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[2015] ZAGPJHC 293
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South African Airways Soc v BDFM Publishers (Pty) Ltd and Others (2015/33205) [2015] ZAGPJHC 293; [2016] 1 All SA 860 (GJ); 2016 (2) SA 561 (GJ) (17 December 2015)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO 2015/33205
DATE:
17 DECEMBER 2015
SOUTH
AFRICAN AIRWAYS
SOC
.................................................................................
APPLICANT
AND
BDFM PUBLISHERS
(PTY)
LTD
...................................................................
FIRST
RESPONDENT
MONEYWEB HOLDINGS
LTD
.................................................................
SECOND
RESPONDENT
MEDIA 24 HOLDINGS
(PTY)
LTD
...............................................................
THIRD
RESPONDENT
JUDGMENT
Headnote
Legal
advice privilege - nature of – it is a species of confidential
information – it is not an absolute right in SA
law - it is a
negative right to prevent admission into evidence of advice obtained
from a legal advisor in confidence - it is not
a positive right to
preserve confidentiality of advice if information disclosed by
unauthorised means – legal advice privilege
not available to
invoke against the world learning of the communications between
client and legal advisor
A
person may rely on a right to the preservation of confidentiality in
one’ own information, inclusive of legal advice in
respect of
which legal advice privilege can be claimed – if
confidentiality not yet breached, an interdict may be an
appropriate form of relief to preserve confidentiality - if
confidentiality in information subject to a claim of legal advice
privilege is lost or any other information loses its attribute of
confidentiality – unlikely that any interdictory relief
can be
effective – such order inappropriate
Waiver
of right of privilege or of right to confidentiality of information –
concept of imputed waiver – applicant had
on four occasions
communicated with journalists without claiming any of its rights were
violated – question of whether this
course of conduct amounted
to a constructive intention to waive any rights which ought to be
imputed to applicant- imputed waiver
not to be lightly inferred –
a claim of privilege can be belated – on the facts no waiver
proven
Any
claim of a right to confidentiality subject to the public interest in
the information being published to the public –
section 16 of
the constitution to be weighed – on the facts, applicant was an
organ of state who financial and governance
affairs were of
legitimate interest to all South Africans – applicant having
been subject to critical scrutiny for a long
time – little of
what was claimed as confidential information was not already in the
public domain before the document containing
the confidential legal
advice was leaked to the media – no harm demonstrable by
applicant that outweighed publication in
the public interest –
publication appropriate
Applicant
sought an interdict against three media houses to prevent publication
of a document or its contents in order preserve
confidentiality of
legal advice contained therein which was subject to a claim of
privilege - publication already had occurred
when application served
– urgent order granted – upon reconsideration ito Rule
6(12) (c) held that order was
futile and was set aside
Urgent
applications ito rule 6(12) – responsibility of applicant’s
attorney to take reasonable steps to achieve effective
service
- not a collegial courtesy, rather a mandatory duty – default
procedure set out for matter in respect which
less than one days’
notice is to be given –
Applicants’
attorney not fulfilling responsibilities regarding service-
unprofessional management of logistics of service
– service of
30 minutes late at night by email to persons not responsible for
management of the newspapers – service
a farce –
inadequate disclosure of such facts to urgent judge – attorney
and client costs awarded against applicant
Sutherland
J:
Introduction
1.
This
case is about what remedies are available to a person whose
confidential legal advice, in respect of which that person claims
legal professional privilege, is by some or other unauthorised means,
released into the public domain. Moreover, the case also
is about the
appropriate way to approach a court for an urgent interdict. These
issues arise in an application by the respondents,
all media houses,
for a reconsideration in terms of Rule 6(12)(c) of the Uniform rules
of the High Court of an ex parte order obtained
by the applicant,
South African Airways (SAA) to interdict them from publishing
information derived from a particular document
belonging to
SAA.
[1]
2.
In addition to condoning non-compliance
with the Rules of court on grounds of urgency, the relevant portion
of order granted at
the urgent hearing provided thus:
‘
(2)
The respondents are interdicted from publishing the legal opinion
including all or any of its contents, signed by Ms Fikilepi,
an
attorney employed by the applicant as a general manager in its legal
risk and compliance department.
(3)
Publication, including the press, on the internet and/or in the
social media or any other media of the contents of the opinion
is
prohibited and interdicted.
(4)
The respondents are to remove all references to the opinion,
including all or any of the contents of the opinion that has already
been published on the internet and social media.
(5)
Publication as set out in (2) – (4) above is interdicted
pending the determination of an application for a final order
interdicting the publication of the legal opinion of Ms Fikilepi.’
3.
I have had the benefit of not only counsel
for the litigants, but also counsel representing two amici curia, the
South African National Editors Forum
and
Section 16
,
both organisations concerned with the promotion of freedom of
expression, pursuant to Rule 16A of the Rules of Court, the
litigants
having consented thereto.
4.
SAA, is a public company and an organ of
state, whose financial affairs have been the subject of intense
public interest and media
scrutiny for several years in which its
viability as a going concern has been the main theme together with
the financial support
given to it by the state. A selection of
reportage over the year preceding this application was attached to
the answering affidavit
of the respondents illustrating the
controversies. Among the controversies has been the process of
acquisition of new aircraft
and how SAA might be able to pay for
them.
5.
According to Ursula Fikilepi, who describes
herself as the General Manager: Legal Risk and Compliance, of SAA,
she was asked in
confidence by the acting CEO to provide advice to
the executive on this matter, and to that end, she composed a
submission, including
her legal opinions, with recommendations to be
put to the board of directors. A document was created which is
titled ‘Advice
on the legal impact of the correspondence from
Airbus dated 2 and 26 October 2015 relating to the predelivery
payments under the
A320-200 purchase agreement’ which was
co-signed by her and by the acting CEO on 5 November 2015. The
correspondence
referred to was pertinent to whether a novation of an
existing agreement might be concluded which would relieve SAA from
the imminent
obligation to pay money it did not have, and if required
to pay up, what effect the embarrassment of not being able to pay
that
debt would have on the triggering of various penalties, on the
risk of trading under insolvent circumstances, on committing
breaches of provisions of the
Companies Act 71 of 2008
, and in the
absence of another financial bale-out from the state, on the need to
apply for business rescue in terms of the
Companies Act. That
the
contents of the document were confidential to SAA is
incontrovertible.
6.
This
is the document which SAA alleges contains legal advice, in respect
of which privilege is claimed on the premise that it is
confidential
legal advice given to SAA by its in-house legal advisor, Fikilepi.
The evidence adduced in Fikilepi’s affidavit
demonstrates that
the information was obtained in confidence and was given by her in
her capacity as legal advisor. She says she
is an attorney, but does
not say whether she is a practising attorney on the practising roll
or is on the non-practising roll.
[2]
Prima facie, it seems that the required conditions which would have
to be present to make the advice contained in the document
eligible
for a claim of privilege by SAA are indeed present. No serious
challenge was made to the proposition that the contents of the
document are eligible to be the subject matter of a claim of
privilege.
[3]
7.
SAA insists on a confirmation of the
interdict, and at the reconsideration stage formally amended the
terms of the prayers sought
to seek a final interdict. There
are several controversies in relation to whether the order should be
confirmed or set aside,
which I deal with in turn. They are:
7.1.
The absence of effective service of the
urgent application.
7.2.
The futility of the order, given the extent
of publication prior to the application being served and the order
being granted.
7.3.
Whether legal professional privilege can be
invoked to obtain an interdict against publication.
7.4.
If legal professional privilege ever
existed in respect of the information in the document, whether such
privilege, by reason of
SAA’s conduct in not claiming it when
interacting with certain journalists, ought to be held to mean that
SAA waived the
privilege on the premise of an ‘imputed waiver’.
7.5.
Assuming a right by SAA in the
confidentiality of the contents of the document, whether the public
interest, including, but not
limited to, the rights of free
expression pursuant to section 16 of the Constitution should trump
such confidentiality rights of
SAA.
7.6.
The overbreadth of the order.
8.
Because of the view I take of the matter,
it is not strictly necessary to address each of these themes in this
judgment to dispose
of it. However, as all these issues are generic
to disputes of this nature and are likely to come up again, it is
appropriate to
express a view on them all.
A
Narrative of the events leading to the taking of the urgent order
9.
Sometime
between 5 November 2015 and Saturday 21 November 2015, at latest, the
document entered the public domain. Whether a person
who had
legitimate and authorised access to the document revealed it, or a
person not authorised to have access to it, stole it,
is unknown. The
only certain fact is that SAA’s right to the confidentiality of
the document was violated.
[4]
10.
This much SAA knew, because it was on 21
November that the first of the journalists, Tina Weavind, writing for
City Press, a publication
of the Third respondent, made contact
with Yakhe Kwinana, the chair of the Finance and Audit Committee to
ask questions relating
to information derived from the document.
11.
On Sunday 22 November 2015, the City Press
published Weavind’s story, ‘SAA’s CEO turbulence’
which quoted
from the text of the document. Ostensibly, Kwinana, who
at the time of the telephone conversation with Weavind, was
weekending
at Keiskammahoek in rural Transkei, did not have the
presence of mind to alert her colleagues to the conversation. Kwinina
claims
that she was unaware Weavind had the document, but on the
probabilities this is implausible. Weavind had initially tried to
speak
to the Board Chair, Dudu Myeni, but was unable to reach her,
and then troubled to track down Kwinina. The likelihood that she did
not try to elicit comment about the contents of the document or so
contrived to ask questions so as to conceal she had the document,
is,
in my view, nil when the story she must have already had in
preparation drew heavily on the text. What is not stated by Kwinina
is whether she had read the document, but the likelihood that she had
not, given her role in SAA and the contents of the document,
make
that improbable; alternatively, if so, quite startling.
12.
From that Sunday, 22 November there were
three more occasions when one or other journalist was in contact with
Tlali Tlali, who
is SAA’s public affairs spokesman. These
contacts were made between the time of the City Press’s
distribution, and
the purported attempt to serve an application for
an urgent interdict on the three respondents late on Monday night.
Those occasions
were these:
12.1.
On Sunday 22 November, Antoinette Slabbert,
a freelance journalist, writing for Moneyweb, a publication of the
second respondent,
emailed Tlali at 10h59 with questions about the
contents of the document. She asked for responses by 18h00 on 22
November. Tlali
replied on Sunday evening and said a response would
be forthcoming, perhaps as early as that night. Tlali had passed the
questions
to Lusanda Jiya, the General Manager: Stakeholder/
Shareholder Relations. She had notified Fikilepi, and suggested to
her that
the board should respond. Fikilepi had embraced that
suggestion.
12.2.
On Monday 23 November, at 13h39, Carol
Paton, who writes for Business Day, a publication of the first
respondent, emailed questions
to Tlali. The questions pertinently
interrogated SAA’s stance on the contents of the document. She
asked for comment by 17h00
that day. Tlali acknowledged receipt of
this request at 13h50. Tlali called her well after 17h00, at about
19h35. He asked if the
story had been filed. She confirmed that it
had been. She said changes could be made up to 20h00. Although saying
he would try
to get a response to pass on, Tlali did not call again.
12.3.
On Monday 23 November at about 20h00, Tlali
called Slabbert. She offered to make changes to her story if comment
was received by
22h00. She also confirmed publication would be
triggered between 03h00 and 04h00 the next day, Tuesday 24 November.
However, alerted
to social media reportage emanating from Business
Day on the issue, it was decided by Paul Jenkins, the Moneyweb
manager, that
to compete with Business Day, he would post Slabbert’s
article on line earlier. Slabbert then called Tlali and told
him of the earlier publication time. The story was published in
Moneyweb at 20h18 as “SAA board should apply for business
rescue – SAA legal Head”.
13.
The importance of these four interactions
lies not as much in what was actually said, which was precious
little, but in what was
not said. On not a single occasion did any
representative of SAA demand that publication be stopped. On not a
single occasion did
any representative of SAA claim privilege.
Indeed, the very first moment when privilege was claimed was in the
founding affidavit
deposed to by Fikilepi. To this significance of
this point I shall return. More immediately, there are several
aspects about the
urgent application itself, to be addressed.
14.
According to Fikilepi, a decision was taken
by the Acting CEO, at 17h00 on Monday 23 November to launch an urgent
application to
stop the three respondents from publishing stories
referring to the document. At 19h00, apparently, counsel was
consulted, and
advice was given upon which the application was
prepared.
15.
Taken
at face value, the earliest opportunity to alert the responsible
persons in charge of the three respondents who, it could
be
reasonably supposed, had control over the publication process, of an
impending urgent application, was shortly after 17h00,
or, if it be
regarded as prudent to have first taken counsel’s advice,
probably by 20h00, at latest. Nothing of the sort
took place, despite
the fact that Tlali was in touch with Slabbert and with Paton until
about 20h00.
[5]
To the
significance of the failure of a demand to stop publication and the
failure to notify any respondent of an impending
urgent application,
I shall return.
16.
The so called ‘service’ of the
application occurred at about 22h00, by email to Slabbert, Paton and
Ferial Hafajee,
editor of City Press, who was on extended leave of
absence, and then when, so it is assumed, her auto reply indicated
she was away,
it was emailed to the acting editor, Dumisani Lubisi,
and one other staff member. As indicated earlier, not one of these
persons
had been forewarned. The editorial staff of the third
respondent were emailed, but not the editorial staff of the first and
second
respondents.
17.
Of the three, only Slabbert (a freelancer
with no authority to do anything about the logistics of publication)
was up and about,
studying for an exam the next day, to see the email
with the draft application arrive at about 22h00. In it SAA declared
an intention
to seek an interdict against publication at 22h30, half
an hour hence. SAA’s attorney phoned Slabbert at about 23h30,
90
minutes after transmission, and about thirty minutes before SAA
actually went before a judge, to ask if she had received the papers.
She confirmed that she had. Slabbert had, in the interim, reported
the events to Jenkins, who took the view that nothing could
be done
to resist in time. Notably, Slabbert referred the attorney to
Jenkins. The attorney saw fit to call Jenkins at 01h43,
more than two
hours later and after the order had been taken, and when,
predictably, Jenkins was asleep. Jenkins got the missed
message in
the morning.
18.
The order was taken just after midnight. It
was emailed to the respondents variously between 01h24 and 01h43.
Paton and the editor
of Business Day, Songezo Zibi learned of the
order from about 05h30 on 24 November by which time two editions of
Business Day had
been distributed. The Third respondent’s
editorial staff learned of the matter after 07h00 on 24 November. A
physical copy
of the order was left at the security desk at the
office of Business Day at 02h30 on Tuesday morning, ostensibly with
no note to
the security staff of its significance. It reached the
editor at 10h00.
19.
It is notable that the notice of motion
emailed does not say where the order shall be sought. In the absence
of any express statement,
it would have been assumed the venue was
the Johannesburg High court, not a judge’s home. Moreover, no
provision is made
in the notice of motion what the respondents could
do if they wished to oppose. In any event, as the example of the
second respondent
plainly shows, even though it had actual knowledge
of the application before the papers were placed before a judge, half
an hour’s
notice at 22h00 to a freelance journalist of an order
to be sought at an unspecified place was ineffective service, to say
the
least. The other two respondents did not and could not have
become aware of the application until after the order had been
granted;
the inefficacy of the service on them is even more
demonstrable. In the case of the third respondent, the service was
effected
about two and a half days after City Press had published the
story.
20.
Moreover, at the time the
decision
was taken to bring an application, the
City Press had already published details from the contents of the
document and the Tweets
circulating about the document from the
editor of Business Day were known to Fikilepi. At the time the
order was taken
,
Moneyweb had already published. By the time the
existence
of the order
came to the attention of
the first respondent, two editions of Business Day had been
published, in which appeared Paton’s
story ‘Dire choices
for Airline SAA’.
21.
In addition, by way of illustration of the
widespread dissemination of the document, references appeared in
Legalbrief, an online
news service on 24 November, and, perhaps among
others, Max du Preez, an independent journalist and leading
commentator on public
affairs, unaware of the events already
described, posted a copy on his website at on 24 November.
Subsequently, he took down that
post under threat of an interdict in
which the urgent order obtained was plainly invoked
in
terrorem
. However, not merely comment
on the document but the full text is accessible to the world on the
internet. In the nature of the
internet and information shared on it,
the document has and presumably, continues to be accessed by any
number of people. The metaphor
of a horse having bolted is
inadequate; a better image might be that virus has infected the
world’s literate population.
The
ineffective service of the urgent application and its implications
22.
The
principle of
audi
alterem partem
is sacrosanct in the South Africa legal system. Although, like all
other constitutional values, it is not absolute, and must be
flexible
enough to prevent inadvertent harm, the only times that a court shall
consider a matter behind a litigant’s back
are in exceptional
circumstances. The phrase “exceptional circumstances’ has
regrettably through overuse, and the habits
of hyperbole, lost much
of its impact. To do that phrase justice, it must mean very rarely,
only if a countervailing interest is
so compelling that a compromise
is sensible, and then a compromise that is parsimonious in the
deviation allowed. The law
on the procedure is well
established.
[6]
23.
In this case the purported service was,
de
facto,
no service at all. The order was
taken
ex parte,
and the service was a farce. The single paragraph in the founding
affidavit which stated that service had been performed by email,
was
true only in the meanest possible way.
24.
The nature of the relief sought is not such
that an
ex parte
order could ever have been justified. Doubtless, SAA appreciated this
obvious fact that service was necessary. However, what it
and its
legal representatives did pursuant to a responsibility to achieve
effective service in order to respect the principle of
audi
alterem partem,
was not simply clumsy,
but unprofessional. When a litigant contemplates any application in
which it is thought necessary to truncate
the times for service in
the Rules of Court, care must be taken to use all reasonable steps to
mitigate such truncation. In a matter
in which less than a day’s
notice is thought to be justifiable, the would-be applicant’s
attorney must take all reasonable
steps to ameliorate the effect
thereof on the would-be respondents. The taking of all reasonable
steps is not a collegial courtesy,
it is a mandatory professional
responsibility that is central to the condonation necessary to
truncate the times for service. When
there is the prospect of a
hearing before a judge after business hours, and even more so, when
there is the prospect of the hearing
taking place elsewhere
than in a courthouse, the duty to take reasonable steps is ever more
important and imperative.
25.
In this case, without any forewarning, on,
at most, 30 minutes notice, the application was emailed at 22h00, at
time at which it
is unreasonable to have expected that the email
would at once be read. The phone calls from SAA, 30 minutes later,
reached one
out of the three persons to whom the papers had been
sent, who was fortuitously awake, to receive it. The notice
omitted
to state the venue for the hearing. In any event, by
then it was too late to offer even token opposition. None of this
could
not have been appreciated by SAA.
26.
In my view it is incumbent on the attorney
of any person who contemplates an urgent application on less than 24
hours’ notice,
to undertake the following default actions in
fulfilment of the duty to ensure effective service:
26.1.
At once the respondents are properly
identified, the names and contact details, ie phone, cell, email,
fax, and physical addresses
of persons who have the authority to
address the application must be ascertained. Obviously, if the issue
has already been the
subject of debate between the parties and an
attorney has already been retained by a respondent, such attorneys
contact details
will top the list.
26.2.
At the earliest moment after deciding to
bring an urgent application, contact must be made to demand
compliance with the relief
to be sought and to alert one or more of
such persons of the intention to bring an application, stating where
it is likely to be
heard, when it likely to served, and the identity
of the judge on urgent duty. Agreement should be reached about who
should receive
service on behalf of the respondent by email or fax or
other method.
26.3.
Next, the urgent judge shall be alerted,
and a report made whether or not the respondents have been alerted.
26.4.
When the papers are ready for service,
direct contact shall again be made with the persons dealing with the
matter on behalf of
the respondent. Where delays occur, the
respondents must be kept informed by interim calls to report
progress.
26.5.
Sufficient time must be allowed for the
respondents to read and digest the papers. It is appropriate to send
a notice of motion
in advance of the founding papers to give the
respondents a chance to formulate a view about the relief being
sought.
26.6.
When the papers are about to be served
electronically or otherwise, the urgent judge should be consulted
about when and where the
hearing will occur, if at all, and how much
notice must be given, in the context of earlier alerts to the
respondents.
26.7.
Once served in any manner other than by
personal physical delivery, the attorney must immediately call the
respondent’s representatives
directly to confirm actual receipt
of all the papers.
27.
The
argument was advanced that there was a failure by the legal
representatives of SAA to make full disclosure to the urgent judge.
That argument addresses two aspects, first, the inefficacy of the
service, and secondly, factors which made the grant of the order
futile. I address the latter topic elsewhere in this judgment. As
regards the aspect concerning the logistics of the service of
the
urgent application and a failure to properly inform a judge in an
ex
parte
application, there is no doubt that a failure to properly inform a
judge of all material facts, whether inadvertently or deliberately,
may lead to a dismissal on such grounds alone.
[7]
28.
The
replying affidavit of SAA does not illuminate what oral disclosures
about service were made, if any. It would have been important
to
know, why contemporaneous calls were not made when service was
emailed, and whether the judge was informed calls were later
made to
switched-off cellphones, thereby highlighting the impossibility of a
response by the respondents. Moreover, it would have
been important
to know if the judge was alerted to the fact that the respondents had
no forewarnings at all prior to the emails.
The affidavits of SAA do
not contain any rebuttals of the allegations in the answering
affidavit that falsehoods appear in the
founding affidavit.
[8]
These falsehoods include the pretence that Slabbert in conversation
with Tlali did not ‘threaten’ publication, when
the
exchange with Tlali was quite plain that publication would occur with
or without SAA’s comment, a stance plainly obvious
from the
questions she had emailed to Tlali on Sunday. Further, it was
incorrect to claim that Tlali had asked for undertakings
not to
publish from the journalists, and that they had refused, because no
such remark was made by Tlali. The respondents’
allegations in this regard are not challenged in reply. These were
misrepresentations that were calculated to positively mislead
the
judge and obscure the unprofessionalism attendant on the service of
the application.
29.
In my view, these misrepresentations,
together with the sham service do justify considering, in the
exercise of a judicial discretion,
a dismissal of the application on
those grounds alone. It was argued by counsel on behalf of SAA that
the deficiencies in the manner
in which the application was managed
were deserving of criticism but were to be explained by the intensity
of the pressure under
which the application was prepared. That
explanation may plausibly address the practitioners’
shortcomings. There is however
no excuse for the misrepresentations
of fact which emanate from the employees of SAA. Counsel submitted
that the deficiencies be
addressed by way of a costs order rather
than dismiss the application on such grounds. As it is appropriate to
address the substantive
merits of the application, I shall not
exercise my discretion to dismiss the application for these reasons
but shall indeed address
the matter by way of a costs order.
The
Futility of the relief sought
30.
In
my view, the facts adduced in the evidence contained in the
affidavits demonstrates abundantly that the order, as granted, was
futile even as the ink dried upon it, and at the reconsideration
stage, that condition is even more plain. As a matter of
policy,
courts have long recognised that, in general, they should not make
orders to which effect cannot be given. This is of course,
not an
inflexible rule. It is now commonplace for courts to give judgments
on issues which are moot, a radical departure from earlier
practice.
What characterises these decisions is that despite mootness, some
public interest is served by the issues being decided.
It is a
species of judicial discretion underpinned by a demonstrable broader
utility.
[9]
31.
But in circumstances, such as the present,
even when the court may recognise that a wrong has been committed, ie
a violation of
a person’s right to the confidentiality in that
person’s own information, where a court cannot conceive of any
utility
in an order and which would, if granted, be a mere sterile
gesture, the approach of the courts has been to refuse relief. There
are several examples.
32.
The spectacular cases often, like this
case, involve publications, because, it may be supposed, in the
nature of disseminated information,
once it is released it cannot be
retrieved, and no court, limited by territorial jurisdiction can
enforce its judgments abroad.
In the controversy about the
publication in Great Britain, and elsewhere, of the book ‘The
Spycatcher’, which
supposedly revealed British state secrets,
in refusing an injunction against the publishers, the remarks of Sir
Nicolas Browne-Wilkinson
echo still:
“ …
.I
have borne in mind, rightly or wrongly, one further factor of the
public interest. In think that the public interest requires
that we
have a legal system and courts which command public respect. It is
frequently said that the law is an ass. I, of course,
do not agree.
But there is a limit to what can be achieved by orders of the court.
If the courts were to make orders manifestly
incapable of achieving
their avowed purpose, such as to prevent the dissemination of
information which is already disseminated,
the law would to my mind
indeed be an ass.”
[10]
33.
In Giggs v New Group Newspapers
Ltd & another [2012] EWHC QB at [11] a celebrity figure whose
social indiscretions
were made public failed in an application for an
injunction because once his identity was known, no order could put
the confidentiality
back into the bottle.
34.
South African courts recognise the futility
of such orders too. In South Atlantic Development Corporation
v Buchan
1971 (1) SA 234
(C ) at 239G, a court gave an interim
order prohibiting a fishing vessel from sailing from the Cape with
the intention of fishing
in the waters off Tristan da Cunha. When the
matter came up for the order to be made final, it was refused because
it was not practical
to enforce. Diemont J held at 239G that:
‘
An
interdict is essentially a practical remedy and if it appears that in
the form in which it is cast it will not afford the applicant
the
protection which he seeks the court will hesitate to come to his
assistance.’
35.
In Tshabalala-Msimang v
Makhanya & Others 2008 (6) SA (W), Jajbhay J addressed the theft
of a patient’s private
and confidential medical records which
were leaked to the press. The invasion of her privacy was held to
egregious. Asked to interdict
further comment on the information,
which was in the public domain, Jajbhay J refused, remarking at [56]
that:
‘
Whatever
I may think of the conduct and reporting behaviour of the respondents
in the present matter, it would be false to the precepts
of our
Constitution if I allowed the interdict against the respondents, from
further commenting on the issues that have already
entered the public
domain. The prospect of favouring the applicants with this remedy may
suspend journalism in a manner too dangerous
to accept’.
36.
In Manyathse v M & G Media
[2009] ZASCA
96
at
[12]
, the appellant had been defamed by a premature
identification of him as an Accused in criminal proceedings. Despite
the violation
of his rights, the court held an interdict would be of
no useful effect and refused the application, a finding upheld on
appeal.
37.
In SABC v Avusa
2010 (1) SA 280
(GSJ),
Willis J dealt with a demand by the SABC to return to it a
confidential document revealing various irregularities that had
fallen into the hands of the Sunday Times. The court affirmed a right
to the protection of a person’s confidential information,
distinguishing that right from privacy rights. At [26] Willis J
remarked that: ‘….confidentiality was lost when
the copy
of the report was handed over to the Sunday Times, and handing it
back will not restore the confidentiality which has
been lost’.
The absence of any duty of confidentiality by the reporters of the
Sunday Times to the SABC, unlike the duties
of persons who stood in
some form of relationship to the SABC from which such a duty could
derive, like employees, meant that possession
and dissemination of
the information by the newspaper could not attract a liability to
desist.(at [18])
38.
Moreover,
an interdict is an appropriate form of relief to
prevent
future
harm,
not afford redress for past harm.
[11]
Once confidentiality is shattered, like Humpty Dumpty, it cannot be
put back together again.
[12]
It is not apparent how frank SAA was when addressing the urgent judge
and whether the difficulties arising from the extent
of publication
were properly drawn to her attention and moreover whether the case
law on the approach of the courts to lost confidentiality
were
mentioned. It seems rather plain that had these matters, no less the
real inadequacies of service, been fully dealt with,
the order might
not have been so readily granted.
39.
None of these remarks should be understood
to mean that the grievance which SAA harbours about the breach of its
rights of confidentiality
in its internal documentation is unworthy
of protection, or that a person has no remedies to protect
confidentiality in information.
Can
‘legal advice privilege’ be invoked against the world to
protect confidentiality?
40.
The principal jurisprudential controversy
ventilated in this matter has been about the claim by SAA of a right
of legal professional
privilege over the information in the document,
and the implications of such a claim, including whether SAA can
invoke such a claim
against the world and whether, in any event, its
failure to claim privilege, despite the engagement with the
journalists on four
occasions, can be taken as a basis to counter
argue that a waiver of privilege must be imputed.
41.
On behalf of SAA it has been argued that
legal professional privilege is a human right. That proposition has
direct support in the
judgment of Lord Hoffmann, in Special
Commissioner & another , Ex P Morgan Grenfell & Co Ltd
v R [2002]UKHL
21 at [7], where it was held that:
‘
[Legal
Professional Privilege] is a fundamental human right long established
in the common law. It is a necessary corollary of the
right of any
person to obtain skilled advice about the law. Such advice cannot be
effectively obtained unless the client is able
to put all the facts
before the adviser without fear that they may afterwards be disclosed
and used to his prejudice.’
42.
Moreover, Lord Scott in Three Rivers
District Council & Others v Governor and company of
the Bank of England
[2004] UKHL 48
at
[25]
remarked that:
‘ …
.if
a communication or document qualifies for legal professional
privilege the privilege is absolute. It cannot be overridden by
some
supposedly greater public interest.’
43.
Building upon that proposition it was
further argued on behalf of SAA that once a person has exercised the
human right to claim
privilege over given information, the right of
privilege in respect thereof can be invoked as against the world to
protect and
preserve the confidentiality of the information which is
subject to a claim of privilege. Accordingly, so runs the argument,
even
when that confidentiality has been breached, the right to
protection is not extinguished, but continues in perpetuity. Thus,
the
confirmation of the order is appropriate, because a clear right
has been established in the right to privilege so described, further
publication will perpetuate the harm, and no other suitable remedy
can achieve the suppression of further dissemination of the
information. Accordingly, on that premise, it is argued that the
requirements for a final interdict as held in Setlogelo v Setlogelo
1914 AD 221
at 227 have been met.
44.
It seems to me to be necessary to deal
first with various aspects of the terminology used to describe the
right of ‘privilege’
before embarking on an analysis of
the contentions advanced in the debate. I do so because, in my view,
several conceptual clarifications
are necessary.
45.
The
point of departure is to identify exactly what is meant by the
concept of ‘privilege’ in the context of legal advice
taking. With the possible exception of Section 201 in the
Criminal
Procedure Act 51 of 1977
,
[13]
the idea of a legal right to the confidentiality of communications
between a client and a legal adviser, is judge-made law. As
such the
rationale for the idea of privilege has evolved over time in response
to judicial perceptions and evolving social mores
about how court
proceedings might appropriately be conducted. In our era, it is
incontrovertible that the ‘right’ vests
in the client.
Also, it is clearly recognised that there are two sub-species of this
right. One is called legal professional privilege,
or legal advice
privilege. I prefer the label legal advice privilege on the grounds
that this phrase actually tells one what it
is about, whilst the
former phrase demands further explanation. The other sub-species is
litigation privilege, which label too,
is self- explanatory.
[14]
What SAA claims is legal advice privilege.
46.
The more interesting question is the
content
of
the right; ie, what does the right which vests in the client, entitle
the client to do? In the discourse about the privilege
it is
commonplace to read or hear it said that a ‘document is
privileged’. This is a convenient shorthand way to express
oneself, but it suffers from three drawbacks in distilling the exact
content of the right.
46.1.
First, it is not, in truth, the document
which is ‘privileged’; rather, what is really meant to be
said is that the
information
which
is contained in the document is privileged. This distinction is less
precious than it may seem, at first glance, to be.
46.2.
Secondly,
to describe the
information
as privileged, obscures the point that the right
vests
in the client
not in the information and the right is an
entitlement
to claim
‘privilege’ over the information. This can and must mean
no more than
a
right to refuse to divulge the information and prevent it being
adduced in evidence in any proceedings,
usually legal proceedings, but also any sort of adversarial
proceedings where the recipient of legal advice is involved.
[15]
The
information is, thus, never more than the subject matter of a claim
of privilege.
46.3.
Third,
the ‘privilege’ cannot reside in the information anyway,
because it only becomes the subject matter of the claim
of privilege
when
that right not to disclose it is claimed, and not before
.
At most, the information
per
se
,
can never be more than
eligible
to be the subject matter of legal advice privilege; ie, if it
satisfies the test of being (1) legal advice, (2) given by a legal
advisor (3) in confidence to a client and (4) is claimed.
[16]
If privilege is not claimed the information about the legal advice
can be adduced in legal proceedings because then, to use the
shorthand, it is not ‘privileged’.
47.
Moreover, in divining the exact nature of
the right, its rationale must dictate the nature of the right. The
rationale for the concept
of legal advice privilege has been
distilled from what has been understood to be the essence of the
adversarial legal system. The
right of a person to a guarantee of
confidentiality over communications with that person’s legal
advisor is an indispensable
attribute of the right to counsel and the
adversary litigation system. The professional duty of legal
practitioners towards their
clients is inseparable from the duty to
respect their clients’ wishes about the secrets revealed by the
clients and the confidential
advice given to the clients. The legal
advisor is by reason of that relationship forbidden to reveal the
communications in any
proceedings because the relationship between
the legal advisor and the client establishes a right by the client
against the legal
advisor to preserve confidentiality. It is plain
that the privilege is so-called precisely because it is an exception
to the rule
about what
must
be adduced.
48.
By invoking such legal advice
privilege, no less than litigation privilege, the client invokes a
‘negative’ right, ie,
the right entitles a client to
refuse disclosure by holding up the
shield
of privilege
. What the right to refuse
to disclose legal advice in proceedings cannot be, is a ‘positive
right’; ie a right to protection
from the world learning of the
advice if the advice is revealed to the world without authorisation.
The client may indeed restrain
a legal advisor on the grounds of
their relationship, and may also restrain a thief who takes a
document evidencing confidential
information, on delictual grounds.
49.
But
if the confidentiality is lost, and the world comes to know of the
information, there is no remedy in law to restrain publication
by
strangers who learn of it. This is because what the law gives to the
client is a ‘privilege’ to refuse to disclose,
not a
right to supress publication if the confidentiality is breached. A
client must take steps to secure the confidentiality,
and if these
steps prove ineffective, the quality or attribute of confidentiality
in the legal advice is dissipated. The concept
of legal advice
Privilege does not exist to secure confidentiality against
misappropriation; it exists solely to legitimise a client
in
proceedings refusing to divulge the subject matter of communications
with a legal advisor, received in confidence.
[17]
This vulnerability to loss of the confidentiality of the information
over which a claim of privilege can and is made flows from
the nature
of the right itself. The proposition about the consequences of loss
of confidentiality is endorsed by the authorities.
50.
Wigmore, Evidence in Trials at Common Law,
(1961) (Ed J T McNaughton) Vol 8, at paragraphs 2325- 2326. States:
‘
All
involuntary disclosures, in particular, through the loss or theft of
documents from the attorney’s possession, are not
protected by
the privilege, on the principle (Paragraph 2326 infra) that, since
the law has granted secrecy so far as its own process
goes, it
leavers to the client and attorney to take measures of caution
sufficient to prevent being overheard by third persons.
The risk of
insufficient precautions is upon the client. This principle applies
equally to documents.
The
law provides subjective freedom for the client by assuring him of
exemption from its processes of disclosure against himself
or the
attorney or their agents of communication. This much, but no more, is
necessary for the maintenance of the privilege. Since
the means of
preserving secrecy of communication are largely in the client’s
hands and since the privilege is a derogation
from the general
testimonial duty and should be strictly construed, it would be
improper to extend its prohibition to third persons
who obtain the
knowledge of the communications. One who overhears the communication,
whether with or without the clients knowledge
is not within the
protection of the privilege. The same rule ought to apply to one who
surreptitiously reads or obtains possession
of a document in original
or copy.(Paragraph 2325 supra)’
51.
The idea, propounded by Lord Scott, as
cited above, and relied upon by counsel for SAA that no (further)
balancing is required in
respect of legal advice privilege, is an
attractive notion, if it is understood to operate within the
confined zone of legal
proceedings, in which it might to thought that
the concept of privilege is already the outcome of a balancing
between contending
social values about the efficacy of the
adversarial legal system and all the necessary compromises have
already been accomplished.
However, that is not our law. Lord Scott,
recognised that the law of Canada did not regard privilege as
absolute, and although
he did not allude to South Africa, neither
does our law regard it as absolute. In Thint (Pty) Ltd v
NDPP
2009 (1) SA 1
at [183] – [185] Langa CJ held:
‘
The
right to legal professional privilege
[183]
The applicants did not assert that the Constitution itself protects
legal professional privilege and I therefore do not need
to explore
that question now. We are thus primarily concerned with the
common-law right to legal professional privilege, and with
how that
right is protected by s 29 (11) of the Act. Again, because it is
accepted by all the parties to this case that the legislation
and
common-law principles in question are consistent with the
Constitution, the applicants' arguments must be assessed, in the
first instance, in the light of the applicable provisions of s 29 of
the Act. Of course, both the common-law right and the statutory
provisions must be dealt with in a way that complies with s 39(2) of
the Constitution. I turn first to consider the right to privilege
and
then deal with s 29(11).
[184]
The right to legal professional privilege is a general rule of our
common law which states that communications between a legal
advisor
and his or her client are protected from disclosure, provided that
certain requirements are met. The rationale of this
right has changed
over time. It is now generally accepted that these communications
should be protected in order to facilitate
the proper functioning of
an adversarial system of justice, because it encourages full and
frank disclosure between advisors and
clients. This, in turn,
promotes fairness in litigation. In the context of criminal
proceedings, moreover, the right to have privileged
communications
with a lawyer protected is necessary to uphold the right a fair trial
in terms of s 35 of the Constitution, and
for that reason it is to be
taken very seriously indeed.
[185]
Accordingly, privileged materials may not be admitted as evidence
without consent. Nor may they be seized under a search warrant.
They
need not be disclosed during the discovery process. The person in
whom the right vests may not be obliged to testify about
the content
of the privileged material. It should, however, be emphasised that
the common-law right to legal professional privilege
must be claimed
by the right-holder or by the right-holder's legal representative.
The right is not absolute; it may, depending upon the facts of a
specific case, be outweighed by countervailing considerations.’
(Emphasis
supplied, footnotes omitted)
52.
As held in Midi TV t/a E-TV v DPP
[2007] ZASCA 56
;
2007 (5)
SA 540
(SCA) by Nugent JA at [9] ff, a balancing is unavoidable to
reconcile contending values protected in the constitution. The way in
which the Promotion of Access to Information Act 2 of 2000 (PAIA)
deals with legal privilege illustrates its place in the legal
normative system. Section 40 requires a public body to refuse
to hand over information which is ‘privileged from production
in legal proceedings’. But that is subject to the section 46
public interest override. That section provides:
‘
Despite
any other provision in this chapter [ie including section 40] the
information officer of a public body must grant a request
for access
to a record of the body contemplated in [various sections of the
chapter] if
(a)
The disclosure of the record would reveal
evidence of:
(i)
A substantial contravention of or a
failure to comply with the law, or
(ii)
An imminent and serious threat to safety or
environmental risk; and
(b)
The public interest in the disclosure of
the record clearly outweighs the harm contemplated in the provision
in question.’
53.
In summary therefore, in my view, the law
is as follows:
53.1.
Legal advice privilege is a negative right
to refuse to disclose, in proceedings, any confidential information
exchanged between
attorney and client.
53.2.
Legal advice privilege cannot be invoked to
assert a positive right to the protection or preservation of
information whose confidentiality
has or may be breached through
unauthorised means as a result of which the information has become or
may become known to strangers.
53.3.
The limitations on the application of legal
advice privilege position does not inhibit a person from seeking
relief to prevent publication
of confidential information, whether
confidential because of the claim of privilege or because its
confidential in a general sense.
53.4.
Any relief sought from a court to protect
any form of confidential information is subject to any recognised
public interest overrides,
an exercise which requires a balancing of
contending values in a fact-specific context.
54.
It follows that the contention advanced on
behalf of SAA that legal advice privilege is absolute cannot succeed.
The understanding
of legal advice privilege, as described in this
judgment, does not detract from the right, eg, in the case of SAA, to
an interdict
to protect
confidential
information
, regardless of whether it
was information that is subject to a claim of privilege or simply any
other confidential information.
On the facts of this case, SAA had a
right protect its right to confidentiality, which is its true cause
of action, rather than
legal advice privilege. Information which is
the subject of a claim of privilege is simply an example of one form
of confidential
information. However, as addressed elsewhere, at the
time relief was sought and granted, the confidentiality of the
information
had already been lost.
Was
there waiver of confidentiality of the information in the document?
55.
The
contention to be tested is whether SAA should be held to an imputed
waiver of confidentiality. Again this is a shorthand way
of
expressing the position where, by reason of the ambivalent conduct of
a client, such conduct is held to be inconsistent with
a claim of
privilege and a constructive intention to waive confidentiality is to
be imputed.
[18]
An imputed
intention it is to be assessed by external manifestations which
induce strangers to commit themselves to a course of
conduct premised
on an absence of a claim of confidentiality
56.
In State v Tandwa 2008(1) SACR 613 (SCA)
Cameron JA recognised that the rationale for imputing such a
constructive intention was
fairness. At [18] it was held that;
‘
Imputed
waiver occurs where- regardless of the holders intention- fairness
requires that the court conclude that the privilege was
abandoned.
Implied waiver entails an objective inference that the privilege was
actually abandoned; imputed waiver proceeds from
fairness, regardless
of actual abandonment’
57.
Because, in my view, it was not open to SAA
to articulate a claim to privilege to found the interdict, the
question of waiver of
privilege
per se
does not arise on the facts. However, as I have held that SAA could
have invoked confidentiality, the same test would apply to
that
question.
58.
The
contestation about waiver crystallised thus: On behalf of the
respondents, it was argued that SAA, on four opportunities
to do so,
repeatedly failed to claim a right to privilege, and that course of
conduct is sufficient to impute a waiver. On behalf
of SAA it was
argued that the time period that elapsed between knowledge of the
breach of confidentiality and the service of the
application was
brief, ie two days, and furthermore, that the several authorities
cited all illustrate instances where the imputed
waiver was linked to
the client’s culpability in some degree in causing the release
or partial release of the information.
[19]
In this case, it was argued, no basis exists to hold that SAA was
culpable in the revelation of the confidential information. Moreover,
a belated claim is not
per
se
a reason to deny a claim of privilege, as Langa CJ, in Thint
Ltd v NDPP 2009(1) SA 1 (CC) at [193] held:
‘
If
a searched person does not know or appreciate that items are
privileged, and therefore fails to claim the privilege during the
search,
he or she does not lose the
right to claim subsequently the common law protections provides to
privileged items.
The right to object
to the admissibility of privileged items will remain and the matter
will only be determined when the State seeks
to have the items
admitted in evidence.’(Emphasis supplied)
59.
In my view, SAA can properly be criticised
for not proclaiming a right to confidentiality earlier. However, if
it is correct that
waiver requires clear proof, and is not lightly to
be inferred, then in order to impute such an intention to waive from
conduct,
the test must for that can be no less strict. On the
probabilities, it cannot be assumed that the employees of SAA
construed the
document as being eligible for a claim of privilege
earlier than the consultation with their attorney and counsel. That
probability
and the clumsiness that attended the urgent application
seem to me to go hand in hand. Self-evidently, a litigant who has a
right,
but who is ignorant of it or uncertain if it can be invoked in
given circumstances, ought not to be unsuited because of a delay
matching the time taken to get advice about the very right being
asserted.
60.
Accordingly, in my view the circumstances
evidenced in this matter do not justify imputing a waiver of
confidentiality of the information
to SAA.
The
Public Interest
61.
Assuming I were to be wrong to find that
futility disposes of the matter, and that SAA remains entitled to an
order, at least to
protect its confidential information, the question
arises whether in the public interest further suppression of the
information
should be allowed. I am of the view that it does not.
62.
The information in the document that was
not previously in the public domain or was not subsequently put into
the public domain
by a public statement on 3 December 2015 by the
Treasury about the Airbus transaction, is very little. Indeed, the
only revelation
of note seems to me to be the knowledge that at least
two executives of SAA were diligently applying their minds to the
predicament
in which SAA found itself, appreciated that it was
inappropriate to trade recklessly in insolvent circumstances,
appreciated that
positive steps were necessary, and advised the board
of directors candidly and fully on what steps could be taken to avoid
embarrassment,
both financially and in terms of governance
protocols.
63.
The harm alleged in the founding affidavit
is said to be financial and reputational damage to SAA and to the
government. In the
replying affidavit, these allegations were
amplified by suggesting that the way SAA responds to the airbus
correspondence might
result in an action against SAA by creditors or
might trigger unspecified provisions of the companies Act. In my view
these allegations
are vacuous. Moreover, knowledge that the executive
is applying it mind to problems which were already well known, is
unlikely
to diminish SAA’s reputation any further than the
controversy that had raged beforehand had damaged it. The options
alluded
to in the document about what to do about the Airbus
transaction are self-evident and do not address strategies, indeed on
the
crucial legal aspects, it calls for expert advice to be procured
on English law, which law governs the transaction, and about which
Fikilepi quite properly advised should be obtained from an English
Law legal advisor.
64.
Over and above those factors, it would be
precious indeed to inhibit further comment about the issues that
derive from the contents
of the document. The approaches as
illustrated in SABC v Avusa and in Tshabalala-Msimang v Makhanya,
(supra), in my view, commend
themselves to me.
65.
Moreover, the controversy about SAA and its
dependence on taxpayer funds seems to me to be a demonstrably obvious
topic about which
every citizen has a tangible interest to be
informed. If the constitutional promise of transparency in public
administration is
to mean anything, then awareness of what public
bodies do with the nation’s money is a low threshold to demand.
When an existing
controversy is raging, this is all the more so.
Accordingly, the public interest in being informed outweighs
the right of
SAA to confidentiality in the contents of the document.
Overbreadth
of the Order
66.
The criticism advanced relates to paragraph
3 of the order. In my view were the plain text to have been intended
to apply to the
world it would have unequivocally been overbroad.
However, I am satisfied that the text is intended to be confined to
the three
respondents and appearances to the contrary are simply the
result of poor drafting. If indeed, as has been suggested, but
about which I have made no firm finding, the demand made to Max du
Preez to remove the document from his website was based on this
order, rather than a threat of a further interdict against him,
the demand made of him was wholly improper. No further comment
is
necessary.
Costs
67.
The Respondents having been successful must
be awarded their costs. The scale of costs is dictated by the conduct
of the urgent
application. What I have described as unprofessionalism
in the management of the application is a sufficient reason to award
punitive
costs. Barring that factor, an attempt by a justifiably
aggrieved person to seek relief against a breach of its confidential
information
would have, in general, attracted a sympathetic reception
on costs. However the egregious conduct by SAA described above, in my
view, warrants a costs order on the attorney and client scale.
The
Order
68.
I make this order:
68.1.
The order granted on 24 November 2015 is
set aside.
68.2.
The applicant shall pay the costs of the
respondents, including the costs of two counsel, on the attorney and
client scale.
Roland
Sutherland
Judge
of the High Court,
Gauteng
Local Division, Johannesburg.
Hearing:
9 December 2015
Judgment:
17 December 2015
For
the applicant: Adv Timothy Bruinders SC,
instructed
by E. Anderson and E. Morweng of Tshisevhe Gwina Ratshimbilani Inc
For
the Respondents: Adv Anna-Marie de Kok, with her, Adv L Grobler,
instructed
by E. Van den Berg of Fasken Martineau (Bell Dewar and Hall)
For
the Amici: Adv Kate Hofmeyr, with her Adv Ndumiso Luthuli.
Instructed
by D. Milo and S. Scott of Webber Wentzel
[1]
Rule
6(12) (c ) provides that: ‘ A person against whom an order was
granted in his absence in an urgent application may
by notice set
down the matter for reconsideration of the order’ The approach
by the court is a comprehensive revisit
of the circumstances
as they present at the time of the reconsideration. See: ISDN
Solutions (Pty) Ltd v CSN Solutions
CC & Others
1996
(4) SA 484
(W) at 486H-J; Lourenco & Others v Fenela
(Pty) Ltd & Others (No 1) 1998 (3) SA 281 (T); Industrial
Development
Corporation of South Africa v Sooliman &
Others 2015 (5) SA 603 (GSJ)
[2]
The
notion that an attorney who is not in private and independent
practice but who is an employee of an entity, is a person who
is
contemplated as an appropriate ‘legal advisor’ for the
purposes of the legal professional privilege is recognised
in our
law. See: Van der Heever v Die Meester
1997 (3) SA 93
(T) &
Kommissaris van Binnelandse Inkomste v Van der Heever
1999 (3) SA 1051
(SCA) and Mohamed v
President, RSA
2001 (2) SA 1145
(C ), these decisions drawing
inspiration from the dictum of Lord Denning in Alfred Crompton
Amusement Machines Ltd
v Commissioners of Customs and
Excise (No 2)
[1972] 2 All ER 353
(QB) at 376.
[3]
An
argument was raised in the papers that the document, properly
construed, was that of the acting CEO, who signed it and that
it was
a communication by the CEO to the board, rather than a legal opinion
from Fikilepi to the CEO. The contention was not
pressed. Indeed, in
my view, appropriately so, because Fikilepi herself also signed it,
and moreover, the particular form in
which an opinion is captured or
stored, ought not to be dispositive of the status of the document or
of its contents. The allegation
by Fikilepi that her confidential
opinion was encapsulated in the document ought to be accepted as
prima facie proof of that
assertion.
[4]
As
to the right of a person to protect the confidentiality of its own
records, See: Janit & Another v Motor Industry Fund
Administrators (Pty) Ltd & Another
[1994] ZASCA 110
;
1995 (4) SA 293
(SCA). In
that matter, the confidential records of the respondent had been
stolen and given to the appellant, who was privy to
the unlawful
act. The appellant wished to adduce the records in evidence. The
court a quo excluded the records from evidence.
The appellant
was also ordered to hand over the records and was interdicted from
passing the information on to third parties.
(See, esp at 331).
Also, SABC v Avusa & another
2010 (1) SA 280
(GSJ) at esp [18].
[5]
Apparently,
Tlali flew out of OR Tambo Airport at 20h35 on 23 November and
returned on 28 November 2015.
[6]
Section
6(12) (a) and (b) provides:
(a)
In urgent applications the court or a judge may dispense with the
forms and service provided for in these Rules and may dispose
of
such matter at such time and place and in such manner and in
accordance with such procedure (which shall as far as practicable
be
in terms of these Rules) as to it seems meet.
(b)
In every affidavit or petition filed in support of any application
under paragraph (a) of this subrule, the applicant shall
set forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not
be afforded
substantial redress at a hearing in due course.
See
too: Luna Meubel Vervaardigers (Edms ) Bpk v Makin &
another
1977 (4) SA 135
(W). More recently, Wepener J,
addressed at length the importance of compliance and the
responsibility of practitioners:
IN RE Several Matters on the Urgent
Court Roll
2013 (1) SA 549
(GSJ) esp at [17]
[7]
De
Jager v Heilbron & Others 1947(2) SA 415 (W) at 419-420; Hassan
v Berrange N.O.
2012 (6) SA 329
(SCA) at [14]. On the duty of
disclosure itself: Schoeman v Thompson
2001 (1) SA 673
€ at
283; Power N.O. v Bieber
1955 (1) SA 490
(W) at 503A-504C. Estate
Logie v Priest
1926 AD 312
at 323.
[8]
On
the application of the rule in Plascon Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 E-G the
respondent’s version prevails in such circumstances.
[9]
Leading
examples of decisions on moot issues include: Sebola & others
v Standard Bank of SA 2012(5) SA 142 (CC)
at [32]ff;
Buthelezi v Minister of Home Affairs & Others 2013
(3) SA 325 (SCA)
[10]
Attorney-
General v Guardian Newspapers Ltd
[1987] 1 WLR 1248
at
1249.
[11]
Philp
Morris Inc v Marlboro Shirt Co Ltd
1991 (2) SA 720
ADS at
735B-C.
[12]
Bank
of Lisbon and South Africa v Tandrien Beleggings (Pty) Ltd &
Others 1983 (2) 626 (W) per Van Dijkhorst J; at 629G: ‘The
basis of privilege is confidentiality. When confidentiality ceases,
privilege ceases. See Wigmore, 3rd ed, para 2311.’
[13]
Section
201 of the criminal procedure Act 51 of 1977 provides:
‘
No
legal practitioner qualified to practise in any court, whether
within the Republic or elsewhere, shall be competent, without
the
consent of the person concerned, to give evidence at criminal
proceedings against any person by whom he is professionally
employed
or consulted as to any fact, matter or thing with regard to which
such practitioner would not on the thirtieth day of
May, 1961, by
reason of such employment or consultation, have been competent to
give evidence without such consent: Provided
that such legal
practitioner shall be competent and compellable to give evidence as
to any fact, matter or thing which relates
to or is connected with
the commission of any offence with which the person by whom such
legal practitioner is professionally
employed or consulted, is
charged, if such fact, matter or thing came to the knowledge of such
legal practitioner before he was
professionally employed or
consulted with reference to the defence of the person concerned.’
This provision create a privilege
for the lawyer in
contradistinction to the common law concept which is that the
privilege is that of the client.
[14]
The
study of this topic by D T Zeffertt and A P Paizes in The South
African Law of Evidence, 2nd Edition, at pp 625 – 671
furnishes an historical account of the conceptualisation of ‘legal
privilege’. See too: Three Rivers District Council
&
Others Governor and Company of the Bank of England
[2004] UKHL 48
at esp [10]
[15]
Ferreira
v Levin N.O. & Others
1996 (1) SA 984
SCA at [96]
[16]
See:
Thint (Pty) Ltd v NDPP 2009 (1) SA (CC) per Langa
CJ at [184] and footnote 124, citing Schwikkard et al,
Principles of
Evidence, 2nd Ed , Juta (20020 at 135-7.
[17]
This
notion does not, in my view, contradict the dictum by Botha JA in
State v Safatsa
1988 (1) SA 868
(AD) at 886G in which he expressed
agreement with the perspective expressed by Dawson J in Baker v
Campbell
[1983] HCA 39
;
(1983) 49 ALR 385
that the rule about privilege is not a
mere rule of evidence, but rather, by implication, a substantive law
rule. The central
idea is that it is a rule which underpins
the legal system and is not merely a procedural aid. I agree.
[18]
Eg,
Mann v Carnell
(1999) 201 CLR 1
; Kommisaris Van
Binnelandse Inkomste v Van der Heever
1999 (3) SA 1051
(SCA) at [24], citing Wigmore, (1961) Vol 8, Paragraph 2327, on
‘waiver by implication’ – a label equivalent
to
‘imputed waiver’.
[19]
Examples
of waiver in which the holder of privilege was implicated in its
loss include: Euroshipping Corporation of Monrovia
Minister of Agricultural Economics and Marketing
1979 (1) SA 637
(C
); Competition Commissioner v ArcelorMittal
2013 (5) SA
538
SCA; Derby & Co Ltd v Weldon
[1990] 3 All ER
762
; Guiness Peat Properties Ltd v Fitzroy
Robinson Partnership (a firm)
[1987] 2 All ER 716
; Bank of
Lisbon and South Africa Ltd v Tandsrien Beleggings (Pty)
Ltd ( No 2)
1983 (2) SA 626
(W) ; State v Nhlapo
1988
(3) SA 4812
(T); Ex Parte Minister Van Justistie: In Re S v
Wagner
1965 (4) SA 507
(AD); Peacock v SA Eagle
Insurance Co Ltd
[1991] 3 ALL SA 602
(C ); Spedley Securities Ltd
(in Liq) v Bank of New Zealand
(1991) 26 NSWLR 711.