Turkcell Iletisim Hizetleri AS and Another v MTN Group Limited and Others (2013/44462) [2020] ZAGPJHC 244 (6 October 2020)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 244
|

|

Turkcell Iletisim Hizetleri AS and Another v MTN Group Limited and Others (2013/44462) [2020] ZAGPJHC 244 (6 October 2020)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBERS: 2013/44462
In
the matter between:
TURKCELL
ĺLETIŞIM HIZMETLERI
A.S.
First
Plaintiff
EAST
ASIAN CONSORTIUM
B.V.
Second Plaintiff
and
MTN
GROUP
LIMITED
First Defendant
MTN
INTERNATIONAL (MAURITIUS)
LTD
Second Defendant
MTN
HOLDINGS (PTY) LIMITED
Third Defendant
MTN
INTERNATIONAL (PTY)
LIMITED
Fourth Defendant
NHLEKO,
PHUTHUMA
FREEDOM
Fifth Defendant
CHARNLEY,
IRENE
Sixth Defendant
Coram:
Wepener J
Heard
:
11 to 14 August 2020
Delivered
:
6 October 2020
Summary:
Practice and procedure – Amendment of pleadings and
discovery of   documents. Amendments introducing vagueness
in
pleadings should not be allowed – pleading of foreign law
must refer to the specific law upon which the pleader relies.
Discovery
– the principle that a court will not easily go behind the
affidavit of a person asserting that relevant documents
have been
discovered, restated. Privileged documents: The principle of joint or
common interest in privileged documents accepted
and applied.
JUDGMENT
Wepener,
J:
[1]
The plaintiffs instituted an action against the defendants during
2013 in which action they claim US$ 4 198 201 610, interest
and
costs, based on a claim alleging that the conduct of the defendants
had unlawfully deprived the plaintiffs of economic opportunities

acquired by them or one of them.
[2]
The first plaintiff is Turkcell ĺletişim Hizmetleri A.S., a
joint stock company under the laws of the Republic of
Turkey with its
principal place of business at Turkcell Plaza, Mesrutlyet Cadessi No:
71, 34430 Tepebasi, Istanbul, Turkey.
[3]
The second plaintiff is East Asian Consortium B.V. It is described
thus:
‘
2.1 East Asian
Consortium B.V.  is a private company with limited liability
incorporated under the laws of the Netherlands
and with its principal
place of business at Rokin 55, 1012 KK Amsterdam, The Netherlands.
2.2 At all material times
set out below, until 18 June 2007, the first plaintiff owned the
shares of the second plaintiff.
2.3 On 18 June 2007, the
first plaintiff transferred its shares in the second plaintiff to a
wholly-owned subsidiary of the first
plaintiff.
2.4 During the period
2006 to 2007, the second plaintiff transferred all its assets to the
first plaintiff, which is in the result,
the owner of the claims set
out herein.
2.5 The second plaintiff
joins in this action for the interest that it has in any judgment
that may be given
2A In the alternative to
paragraphs 2.4 to 2.5 above, and in the event of it being held that
the Second Plaintiff’s claims
set out herein were not
transferred to the First Plaintiff and that, as a consequence, the
second Plaintiff remains the owner of
the said claims, the Second
Plaintiff pursues the said claims, and the First Plaintiff joins in
this action for the interest that
it has in any judgment that may be
given.’
[4]
The first defendant is MTN Group Limited, a company incorporated in
terms of the company laws of the Republic of South Africa
with its
principal place of business at 216 14th Avenue, Fairlands,
Johannesburg.
[5]
The second defendant is MTN International (Mauritius) a company 100%
owned by the first defendant and incorporated in terms
of the laws of
the Republic of Mauritius with its principal place of business at 5
th
Floor, Barkley Wharf, Suite 525, Le Caudan Waterfront, Port Louis,
Mauritius.
[6]
The third defendant is Mobile Telephone Networks Holdings (Pty) Ltd,
a company 100% owned by the first defendant and incorporated
in terms
of the company laws of the Republic of South Africa with its
principal place of business at 216 14th Avenue, Fairlands,

Johannesburg.
[7]
The fourth defendant is MTN International (Pty) Ltd, a company
incorporated in terms of the company laws of the Republic of
South
Africa with its principal place of business at 216 14th Avenue,
Fairlands, Johannesburg.
[8]
The second to fourth defendants are referred to as the ‘MTN
defendants’ and the MTN Group interchangeably, although

strictly speaking, no interlocutory order can be made against the
second defendant as it has disputed the jurisdiction of this
court.
[9]
The fifth defendant is Freedom Phuthuma Nhleko, an adult male, the
chairman of the first, third and fourth defendants and at
all
material times a director of the first, third and fourth defendants
and the Chief Executive Officer of the first defendant,
with business
address c/o Pembani Group, Inanda Greens Office Park, 2
nd
Floor, Building 3, Wierda Road West, Sandton.
[10]
The sixth defendant is Irene Charnley, an adult female and at all
material times a director of the first, second, third and
fourth
defendants with business address at Smile Communications, 12 Culross
Road, Bryanston.
[11]
I refer to the parties as plaintiffs and defendants as they are
referred to in the pleadings, although the plaintiffs are applicants

in the first two applications before me and the respondent in the
third application, whilst the fifth defendant is the applicant
in the
third application.
[12]
There are three applications before me. The first is an application
by the plaintiffs to amend the particulars of claim, the
second is an
application by the plaintiffs to compel further and better discovery
by the MTN defendants and the third application
is brought by the
fifth defendant to amend his plea. The argument in each application
was heard for a full day. The heads of argument
in each application
ran into hundreds of pages. The issues that were argued are numerous.
It will not be possible to deal with
each and every point raised by
counsel.
[13]
After citing the parties the plaintiff sets out how its claim arose.
In short, the government of the Islamic Republic of Iran
(Iran)
issued an international tender invitation for a licence for a global
system for mobile communications (the GSM licence)
for the operation
of a GSM cellular phone public network in Iran.
[14]
The plaintiffs’ claim is based, generally speaking, on a
relationship that existed between them and others prior to and
at the
time when the tenders for the GSM licence were submitted.
[15]
The plaintiffs’ locus standi is derived from its
inter-relationship with each other and other third parties with whom

one of more of them were in a joint venture. A detailed description
of the plaintiffs’ relationship with each other and others
is
furnished in the particulars of claim.
[16]
The summons was issued in 2013. During 2015 the plaintiffs sought and
obtained an amendment to the particulars of claim before
Francis J in
2017. In terms of that amendment, which was opposed and sought by
filing an affidavit setting out the reasons for
the amendment, the
current position regarding the plaintiffs’ locus standi was
established. The amendment had the effect
of removing the second
plaintiff as a claimant for relief.
The
plaintiffs’ application to amend
[17]
During November 2019 the plaintiffs again sought to amend the
particulars of claim. The defendants all objected to the amendment
on
a number of grounds. This compelled the plaintiffs to launch an
application to amend the particulars of claim in terms of the
Rules
of Court. The amendment now sought is said to relate to a ‘minor
corporate transaction’, which has nothing to
do with the merits
of the action and that it might impact on the locus standi of one of
the two plaintiffs.
[18]
The plaintiffs correctly contend that the particulars of claim, as
they currently stand, reflect that the first plaintiff has
locus
standi on the basis that it acquired all of the second plaintiff’s
assets including the claim at issue against the
defendants, in an
inter-company transfer during 2004 to 2005.
[19]
The first part of the plaintiffs’ proposed amendment deletes
the paragraphs in which a transfer to the first plaintiff
of the
second plaintiff’s assets are alleged. The deletion means that
the main claimant is now the second plaintiff. The
defendants do not
oppose that deletion and the plaintiffs could have filed its amended
pages as of right. Whether it did so or
may still do so, is not at
issue in these proceedings. The defendants do, however, object to the
second part of the proposed amendment
which reads:
‘
14.3 Thereafter
the second plaintiff became incorporated.
14.4 On or about the date
of its incorporation:
14.4.1 the second
plaintiff accepted and/or took up the rights and obligations under
and/or adopted the Turkcell Consortium joint
venture agreement and
thereby became a contracting party to that agreement in the place of
the ‘SPV’ defined therein;
and/or
14.4.2 the other parties
to the Turkcell Consortium joint venture agreement agreed to the
substitution of the second plaintiff as
a party thereto in the place
of the “SPV”.
14.5 In the alternative
to what is pleaded in paragraph 14.4 above, in the event that it is
found that the second plaintiff:
14.5.1 did not accept
and/or take up the rights and obligations under and/or adopt the
Turkcell Consortium joint venture agreement
and/or did not become a
party to it; or
14.5.2 the other parties
to the Turkcell Consortium joint venture agreement did not agree to
the substitution of the second plaintiff
as a contracting party to
it, then the rights and obligations of the ‘SPV’ under
the Turkcell Consortium joint venture
agreement and the benefits
flowing therefrom accrued to and became, alternatively remained,
vested in the first plaintiff and Ericsson,
and the first plaintiff
and Ericsson became, alternatively remained, parties to the Turkcell
Consortium joint venture agreement.
14.6 The benefits in
question accrued to or became, alternatively remained, so vested in
the first plaintiff and Ericsson, and the
first plaintiff and
Ericsson became, alternatively remained, parties to the Turkcell
Consortium joint venture agreement by operation
of the laws of
Switzerland, which govern the Turkcell Consortium joint venture
agreement and its construction to the extent that
those laws do not
conflict with any mandatory legal provisions in the Islamic Republic
of Iran.
14.7 All the conditions
precedent to the Turkcell Consortium joint venture agreement were
timeously fulfilled alternatively were
timeously waived, whereupon
that agreement became legally binding upon its parties.
14.8 A reference
hereafter in these particulars of claim to “the second
plaintiff” or to “the plaintiffs”,
insofar as that
includes a reference to the second plaintiff, must, depending upon
the context, be construed as a reference to
the second plaintiff as
described in paragraph 2 above, alternatively to the members of the
second plaintiff when the second plaintiff
was still a joint venture
(namely to the first plaintiff and Ericsson alternatively to the
first plaintiff alone), further alternatively
to the second plaintiff
acting as the representative of the member(s) of the second plaintiff
when it was still a joint venture.’
[20]
The defendants have raised a number of objections. It is not
necessary to deal with each and every objection as I am of the
view
that two of these objections go to the root of the matter and can be
dealt with in initio.
[21]
The current position is that the claim is alleged to vest in the
first plaintiff to the exclusion of the second plaintiff in
that the
first plaintiff acquired all the assets of the second plaintiff
including the instant claim. The amendment that deletes
that
allegations pertaining to the transfer of assets from the second
plaintiff to the first plaintiff, as indicated, may have
been
effected by the plaintiffs without further ado. It is significant
that this position was obtained due to an amendment effected
by the
plaintiffs, having been allowed by Francis J, after hearing an
opposed application to effect an amendment.
[22]
Two of the principles governing amendments of pleadings relate to an
amendment not rendering a pleading vague and excipiable
and when a
party wishes to rely on foreign law it is a question of fact that is
required to be properly and fully pleaded.
[23]
All the parties relied on
Moolman
v Estate Moolman
[1]
where it was held
[2]
:
‘
[T]he practical
rule adopted seems to be that amendments will always be allowed
unless the application to amend is mala fide or
unless such amendment
would cause an injustice to the other side which cannot be
compensated by costs, or in other words unless
the parties cannot be
put back for the purposes of justice in the same position as they
were when the pleading which it is sought
to amend was filed.’
The
onus is on a party seeking the amendment to establish that the other
party will not be prejudiced by it.
[3]
[24]
The first objection that I deal with is that the amendment introduces
matter that will render the pleading vague and embarrassing
and
excipiable. As can be seen, para 14.8 alleges that:
‘
A reference
hereafter in these particulars of claim to “the second
plaintiff” or to “the plaintiffs”, insofar
as that
includes a reference to the second plaintiff, must, depending upon
the context, be construed as a reference to the second
plaintiff as
described in paragraph 2 above, alternatively to the members of the
second plaintiff when the second plaintiff was
still a joint venture
(namely to the first plaintiff and Ericsson alternatively to the
first plaintiff alone), further alternatively
to the second plaintiff
acting as the representative of the member(s) of the second plaintiff
when it was still a joint venture.’
[25]
It would immediately be clear that the pleading will up to para 14.8
mean one thing when the second plaintiff is referred to,
ie, that
which is set out in para 2 and even so in the sub-paragraphs
preceding para 14.8 of the amendment. From para 14.8 or maybe

excluding it, but only thereafter the defendants are required to
determine the context of each use of the words ‘the plaintiffs’

or ‘the second plaintiff according to the context in which it
is used, alternatively. . .’ .
[26]
Counsel for the fifth defendant submitted that there are multiple
permutations that can be attributed to the use of the words

plaintiffs and second plaintiffs.
[27]
This manner of pleading, especially where the locus standi of the
plaintiffs, or either of them, forms a serious dispute, is
highly
undesirable. It is by no means a minor issue in the matter. Indeed
the heads of argument for the plaintiffs refer to it
as ‘a
vital issue that falls to be determined at the trial’.
[4]
[28]
The confusion introduced by this manner of pleading is self-evident.
The very requirement that it must be read in its context
shows that
it is capable of a number of interpretations. This in itself
indicates that the pleading is vague and embarrassing as
stated by
Davis AJA
[5]
:
‘
I have no doubt
that, viewed in this way, this alternative plea is vague and
embarrassing: the argument of respondent's counsel
of itself shows
this fact clearly. He puts forward three (or at least two)
alternative methods on which this plea "can be
supported":
in other words, he gives several ways in which it may be read. …
I have myself given what may be yet another
construction of this
pleading; the learned Judges in the Provincial Division have adopted
yet another. It seems to me impossible
to say that a defence is not
vague and embarrassing in terms of the Rule if it can be read in any
one of a number of ways, and
I cannot say that the embarrassment is
other than substantial. After all, we have to look at the matter from
the point of view
of the party who is faced with a pleading of this
nature.’
[29]
I am of the view that it is highly prejudicial for the defendants to
determine, according to the context, what is meant by
the plaintiffs.
More appropriate is for the plaintiffs to say what they intend saying
to allow the defendants to understand the
case they have to meet.
Each defendant may read the context differently and unintentionally
react differently and not properly
plead its case. This, in my view,
is what is meant by the authorities holding that the amendment should
not cause the opposing
party prejudice. No order for costs or
postponement can cure the prejudice that I referred to.
[30]
The plaintiffs’ response that a litigant is at liberty to plead
alternatives, misses the gravamen of the objection that
it is vague
and embarrassing manner of pleading that leads to prejudice.
[6]
[31]
The introduction of para 14.8 goes to the root of the matter as the
history shows that the plaintiffs’ locus standi has
been and
remains a serious point of dispute in the matter. The introduction of
the amendment would cause the defendants an embarrassment
that should
not be allowed.
[32]
The second objection that is, in my view, well taken relates to the
question of foreign law introduced in the amendment. It
is common
cause between the parties that proving foreign law is proving a fact
and that foreign law is proven through the testimony
of an expert.
[7]
[33]
There is a difference in approach by the plaintiffs and the
defendants. The plaintiffs, in my view, miss the requirements
regarding the manner of pleading or as sixth defendant’s
counsel argued she only requires: ‘it to be identified’.

That is the objection raised by the defendants, not the manner of
proof by way of expert evidence as perceived by the plaintiffs.

Foreign law is a question of fact, not law. Hence, a party relying on
foreign law must both plead it and prove it, just as other
facts are
proved by appropriate evidence.
[8]
[34]
The pleading of a foreign law as a fact, in my view, requires some
elucidation.
[9]
One cannot just
say, as the plaintiffs do, that they rely on Swiss law to yield a
particular result. The suggestion that the defendants
should consult
an appropriately qualified Swiss lawyer in order to determine what
case the plaintiffs wish to make, is without
merit. The rhetorical
question can be asked: what must they ask this Swiss lawyer?
[35]
It is also not an answer to suggest that clarity will be obtained
through the expert summaries in due course. It is the pleadings
that
determine the issues and the defendants are entitled to know and
plead to the allegations made by the plaintiffs. The pleadings
must
set out the essential facts necessary to elucidate precisely what
principle of Swiss law yields the outcome which they plead
to
constitute a proper cause of action. The prejudice to the defendants
in having to plead to the whole of the Swiss law is, in
my view,
manifest.
[36]
The plaintiffs plead that: ‘by the operation if the laws of
Switzerland. . .’ the benefits accrued or vested in
the first
plaintiff. This is a conclusion drawn from the facts and not fact
specific. A reference to the Swiss law is insufficient
as
‘
where the relevant
foreign law is statutory in nature then in my opinion it is the right
and duty of the court itself to examine
the statute and to determine
the meaning and effect thereof in the light of the expert
testimony’.
[10]
This
would equally be applicable to common law.
[37]
I am persuaded that much more is required than a mere statement that
by the operation of the laws of Switzerland the law of
a foreign
country is invoked in a case such as where the locus standi of the
plaintiffs depend on the acceptance and implementation
of that law,
it requires of the party relying thereon to plead it’s case
with fairness.
[11]
[38]
Surely, a responsible pleader must be able to ascertain precisely
what part of the law is relied upon; it has to determine
what the
principles are; it has to determine if there are exceptions that may
sustain a defence.
[39]
The fact that foreign law is a matter of fact does not result that
those facts which are relevant should be pleaded with any
less
particularity than would be the case in South African law.
[40]
The plaintiffs relied heavily on Australian law,
[12]
submitting that it supports its manner of pleading. However, I am of
the view that these authorities point the other way. Firstly,
the
second question dealt with in
Regie
namely,
whether it was necessary for a plaintiff who sees a forensic
advantage in the foreign law (for example, in its provision
for
strict liability) to plead the law. The court answered this
positively by stating:
‘
It follows that
the rule must be which Dicey regards has “well established”
namely that “a party” who relies
on a foreign lex loci
delicti “must allege, and, if necessary, prove it”’
[13]
The
case therefore is an authority for the proposition that the foreign
law must be particularly pleaded when it was stated that
a party
‘
should give full
particulars of the precise statute, code, rule, regulation, ordinance
or case law relied on, with the material
sections, clauses or
provisions thereof. A mere allegation to that an instrument depending
on foreign law is null and void is too
vague. ’
[14]
According
to McCormish with reference to
Regie
the following applies:
‘
So far as the
technical rules of pleading are concerned foreign law is and an
uneasy fit. Despite its “legal” content,
foreign law is
treated as a matter of fact and is thus subject to the normal rules
of about pleading and particularising material
facts.’
[15]
with
the consequences being that
‘
it will not
suffice to plead merely the conclusion of foreign law upon which the
parties relies. Rather the contents and substance
of the foreign law
are material facts that must be set out with appropriate
particulars.’
[16]
[41]
McCormish further states:
[17]
‘
Thus, even if the
non-mandatory nature of Australian choice of law rules does not
oblige plaintiffs to plead the applicable law,
they should certainly
be obliged to plead sufficient facts to allow the defendant to
identify the applicable law and plead any
defences that may arise
thereunder.’
[42]
In the English case of
University
of Glasgow v The Economist; University of Edinburgh v The
Economist
[18]
the
court reflected on the English position:
‘
It is trite law
that the party who alleges must prove. . . .
. . .
Determination of foreign
law is a question of fact. The rules governing pleadings in this
respect are Order 18, Rule 7: . . .
. . .
The Notes to Order 18,
rule 8, which deal with ‘Matters which must be specifically
pleaded’ under Order 18, Rule 8(7)
say this: ‘Where
foreign law is pleaded in support of, or as a defence to an action,
certain particulars should be given.
Foreign law must be adequately
pleaded, and to avoid surprise at the trial a party must also plead
the peculiar sense and construction
of words in a foreign document or
of matters of substantive foreign law’.
[19]
[43]
In an older case,
Russell
v Van Galen
[20]
(‘Van Galen’), the Court of Appeal of Bermuda (a British
Overseas Territory) referred with approval to the following
passage
from Dicey & Morris on
The
Conflict of Laws (9th Edn)
:
‘
We
were referred to Dicey & Morris on The Conflict of Laws (9th
Edn). Rule 205 (page 1124) reads:
“
(1) In any case to
which, in accordance with this digest, foreign law applies, that law
must be pleaded and proved as a fact to
the satisfaction of the judge
by expert evidence or sometimes by certain other means.
(2) In the absence of
satisfactory evidence of foreign law, the court will apply English
law to such a case.”
The
editors comment on that rule as follows:
“
The principle
that, in an English court, foreign law is a matter of fact has long
been well established. It has two important practical
consequences:
(i) Foreign law must be pleaded. The general rule is that if a party
wishes to rely on a foreign law, he must plead
it in the same way as
any other fact … (ii) Foreign law must be proved. English
courts take judicial notice of the law of
England and of notorious
facts, but not of foreign law. Consequently, foreign law must be
proved in each case.”’
[21]
[44]
The court in
Van
Galen
held, with reference to these principles:
[22]
‘
The defendant
argues that the award of damages for loss of earnings should be
reduced by 30 per cent. That involves a consideration
of foreign law.
He relies on that law. The onus was on him to prove it as a matter of
fact. He has not pleaded it; and even if
he had, such evidence as
emerged in one way or another was wholly inadequate. The relevant
foreign law was neither pleaded nor
proved; and it is for those
reasons that, in my view, ground of appeal must fail and grounds 3
and 4 of the cross appeal must
succeed: in other words, there
should not have been any deduction in respect of English income tax
from the award of damages for
loss of earnings, past or prospective.’
[45]
I am of the view that the plaintiffs must plead the particularity of
the Swiss law upon which they rely as those are the material
facts
that they need to establish in order to arrive at the legal
conclusion that the plaintiffs have locus standi. This is also
so in
English law, referred to by LAWSA in support of its view that foreign
law must be pleaded. This is all the more so because
the pleading
proposes the operation of the laws of Switzerland to govern the
Turkcell Consortium Joint Venture Agreement and its
construction but
only to the extent that those laws do not conflict with the mandatory
legal provisions in Iran. This manner of
pleading is vague in the
extreme.
[46]
The English case of
Ascherberg,
Hopwood & Crew Ltd v Casa Musicale Sonzogno di Piero Ostali,
Societa in Nome Collettivo
[23]
is
instructive. In that case, as in the present, the contention was that
it was not necessary for one of the parties relying on
Italian law to
particularise its reliance.
The
court rejected this
[24]
:
‘
Secondly, they
contended that the amendment that was permitted and indeed called for
by the judge's order by way of particularising
their contentions as
to Italian law was too detailed and too stringent. It was argued
initially that, since their contentions on
Italian law were by the
order required to be set out in affidavit form, this amendment of the
pleadings would involve unnecessary
duplication by setting them out
also in the defence. I think, with respect, that there is nothing in
that point, because once they
have their detailed affidavit of their
expert's views on the various points of Italian law that they
consider to be relevant, the
defence can by a short amendment
incorporate that document by reference.
Further, counsel for the
composer's heirs was concerned lest, if he was required to
particularise in such detail, his expert when
under cross-examination
on his affidavit would not be able or allowed to rebut any suggestion
of error by reference to some law
or authority which was not already
referred to in the particulars by reference. For my part I think that
this anxiety is wholly
ill-founded; and this view was expressly
confirmed by counsel for the plaintiffs. Accordingly I see no ground
for differing from
the judge as to the particularity required.’
[47]
The same point was made in
Belhaj
v Straw
[25]
where
the claimants were relying on breach of laws of various countries
without pleading what those laws were or what they said.
The Court of
Appeal
[26]
stated that
[27]
:
‘
The claimants
advance no authority for the proposition that the applicability of
foreign law cannot be determined at the pleading
stage in the absence
of either party pleading a case in foreign law; and we reject the
suggestion that the timely resolution of
the issue by reference to
the 1995 Act, which is plainly raised on the facts and in the
pleadings in the way we have indicated,
should yield to the
(evidential) presumption of similarity, for what might be described
as tactical reasons.’
[48]
The Court of Appeal went further to state that:
[28]
‘
The inevitable
result of all this is that the claimants will have to plead their
grounds for asserting that the conduct alleged
is unlawful in
accordance with the judge's order; and if they do not do so, or fail
to prove their case on the point, their pleading
will be deficient
and their claims will fail—subject of course to the important
public policy exception in section for which
the judge's order
catered. This is no more and no less than is appropriate in our view
in accordance with the ordinary rules of
pleading which require
litigants to set out the material facts which they must prove in
order to make good their claim: see CP
r 16.4(1)(a).’
[49]
This is in accordance with our law which requires the provisions of
the statute to be expressly identified or that the material
facts
which bring the statute into operation must be fully set out.
[29]
[50]
Both the grounds of objection show that there is at least
‘
a real doubt
whether or not prejudice or injustice will be caused to the defendant
if the amendment is allowed . . . .’
[30]
[51]
Having come to this conclusion, it is unnecessary to consider the
objection that the proposed amendment is lacking of bona
fides and I
say nothing about it as it may still have to be decided in the
future.
[52]
Based on the above two considerations alone, I am of the view that
the proposed amendment cannot be granted and that the application
to
amend the particulars of claim should be dismissed.
The
plaintiffs’ application for further and better discovery.
[53]
In the second application, the plaintiffs seek an order for further
and better discovery by the MTN defendants. The additional
documents
sought are alleged by the plaintiffs to underlie a report authored by
an independent special committee appointed by the
MTN Group to
investigate allegations substantially the same as those which are the
subject matter of this action and, which committee
was chaired by
Lord Hoffman.
[54]
The MTN defendants resist the order sought on the basis that the
documents to which the plaintiffs are entitled have been discovered

and that others are either irrelevant or are privileged due to the
fact that the Hoffman Committee was engaged to furnish legal
advice
to the MTN defendants and for purposes of litigation.
[55]
Although the report itself has been discovered together with certain
attachments, the plaintiffs seek access to each and every
document
referred to in the report and a report referred to as the KPMG report
that was provided to the Hoffman Committee.
[56]
The sixth defendant who is a former senior executive of some of the
MTN defendants has also filed opposing papers on, inter
alia, the
basis of a joint or common interest in a legal privilege in certain
of the documents sought by the plaintiffs. Although
no formal
application for leave to intervene was filed, such leave was sought
in her affidavit and the plaintiffs did not object
to the
intervention.
[57]
The two categories of documents, ie, those that are relevant or
irrelevant to the issues and those that are privileged, are
the
issues that merits consideration in this matter.
[58]
The background to the documents sought is best set out as per the
affidavit filed by the MTN defendants:
‘
10
On or about 26 January 2012, the United States attorneys for the
plaintiffs in the US proceedings, Patton Boggs, furnished to

Freshfields a draft complaint, in the United States District Court
for the District of Columbia in Washington DC, against MTN Group
and
MTN Mauritius.  The plaintiffs alleged inter alia that –
10.1 MTN Group and MTN
Mauritius had conspired with Iranian officials to oust the plaintiffs
from the consortium which had been
awarded the licence for the second
GSM network in Iran.
10.2 Four high-level
executives of the MTN Group were at the centre of the defendants'
actions to take the license from the plaintiffs.
They included
the fifth and sixth defendants in the present proceedings.
11
The allegations in the draft complaint are mirrored in the present
proceedings.
12
On or about 1 February 2012, the board of directors of MTN Group
resolved to appoint a special independent committee to investigate

the allegations made by the plaintiffs in the draft complaint, to
report to the board on the findings of its investigations and
to
advise and make recommendations as to any actions to be taken in
connection with their findings.  The committee included
2
non-executive directors of MTN Group and was chaired by an eminent
international jurist and retired Law Lord, Lord Leonard Hoffmann

("the Hoffmann Committee" or "the Committee").
13
Following its investigation, the Committee produced a report dated 1
February 2013 entitled “Report of the Independent
Special
Committee appointed by the Board of MTN Group Ltd to investigate
allegations in United States proceedings by Turkcell”
(“the
Hoffmann Report” or “the Report”).
14
The plaintiffs make various references to the Report in their notice
of motion and founding affidavit.
15
The MTN defendants discovered the Report as item 1900 of the first
schedule to their discovery affidavit dated 30 October 2018.

The Report runs to about 193 pages and has 10 appendices, some of
which are voluminous.  A copy of the Report and its appendices

will be made available to this Court at the hearing.
16
Annex "VDO5" to the plaintiffs' founding affidavit is a
copy of the Charter of the Hoffman Committee.  Clause
4.5 of the
Charter provided as follows:
"4.5 The
investigation shall be covered by a duty of confidentiality and shall
be privileged (it being conducted at the instance
of the Board, in
contemplation of litigation).  Consequently:
4.5.1 the Committee shall
maintain the confidentiality of the investigation and deliberations
in connection with its responsibilities
under this charter;
4.5.2 disclosure to the
Board, or others within the Company, or as may be necessary for the
purposes of its investigation, may be
made as the Committee deems
appropriate;
4.5.3 any advice the
Committee provides to the Board may include legal advice, including
advice received from legal advisers to
the Committee and/or the
Company; and
4.5.4 publication of any
report of the Committee's findings (including any interim report) is
to be decided by the full Board, on
the recommendation of the
Committee".
17
The contemplated litigation referred to in clause 4.5 of the Charter
was the litigation in the United States, which was threatened
against
MTN Group and MTN Mauritius in the draft complaint.
18
The Hoffmann Report was delivered to the board of the MTN Group on or
about 1 February 2013.  The only, or in any event
the dominant,
purpose of the Report was to provide legal advice to the MTN Group on
the outcome of the Committee's investigation
in response to the
anticipated litigation.  As is apparent from clause 4.4 of the
Charter, the Chairperson, Lord Hoffmann
himself, was "responsible
for overseeing and validating the investigation, as well as ensuring
its integrity and independence."
Moreover, the Board
proposed to refer the Report to the attorneys, whom it had engaged to
defend MTN Group and MTN Mauritius against
the allegations against
them in the draft complaint, for purposes of obtaining their advice.
19
The Hoffmann Committee's covering letter, which attached the Report,
ended with the following recommendation:
"We recommend that,
subject to legal advice in relation to the proceedings in the United
States, the Report be published".
20
The issues raised in the US litigation were substantially the same as
the issues raised in the present proceedings.  The
Hoffmann
Report conveniently summarised these issues in paragraph 8 of chapter
1 of the Report:
"The Turkcell
allegations
8. We shall deal in
detail with the allegations in the complaint which we have been asked
to investigate, but for the moment the
following summary will be
sufficient.  It is alleged that commencing in about June or July
2004, MTN conspired with Sairan
and the Bonyad to oust Turkcell from
the Irancell consortium and take its place. It gained the support of
Sairan and the Bonyad
by -
(a) using its influence
with the South African government to procure the illicit supply to
Iran of defence equipment and in particular
by procuring the South
African Minister of Defence to visit Iran in August 2004 and promise
to supply Iran with a list of such
equipment designated by the code
name 'the Fish';
(b) procuring the South
African representative at the International Atomic Energy Authority
(‘IAEA’) to support Iran's
position on nuclear
development and in particular to abstain from voting on a resolution
on 24 November 2005 to refer the Iranian
nuclear programme to the
United Nations Security Council;
(c) corruptly offering
Sairan and the Bonyad financial support in the form of pretended
loans, never intended to be repaid, for
the purpose of enabling them
to fund their shares of the money required for the capitalisation of
Irancell and the licence fee
payable to MCIT;
(d) bribing one Javid
Ghorbanoghli (‘Mr Ghorbanoghli’), then a deputy secretary
in the Iranian foreign office and head
of the Africa desk, with a
payment of US$400,000 through a sham consultancy arrangement;
(e) bribing one Yusuf
Saloojee (‘Ambassador Saloojee’), then the South Africa
ambassador to Iran, with a payment of
US$200,000."
21
Mr Kilowan is a former employee of the MTN Group and was the senior
representative of the MTN Group in Iran from about August
2004 until
he resigned at the end of November 2007.  This was the period
that was relevant to the US proceedings and is relevant
to the
present proceedings.
22
The allegations made by the plaintiffs in the US proceedings, and
also in the present proceedings, are based almost entirely
on
allegations that have been conveyed to them by Mr Kilowan.  But
the Hoffmann Committee found that all of his allegations
were "a
fabric of lies, distortions and inventions."  Paragraph 4
of the Executive Summary of the Report said the
following:
"We have not found
it necessary to decide whether to prefer the evidence of other
witnesses to that of Mr Kilowan because a
comparison of his evidence
with contemporary documents (mostly written by himself) is sufficient
to show that all the allegations
are a fabric of lies, distortions
and inventions.  Most of this report consists of a comparison of
what he now says and what
he was saying and doing at the time.
It shows him to be a fantasist and a conspiracy theorist."
23
This finding is confirmed in the following statements in the body of
the Report:
23.1
The first sentence of paragraph 18 of chapter 1 of the Report, which
reads as follows:
"Our approach to the
evidence
Our conclusions are based
almost entirely upon what we consider to be authentic contemporary
documents, for the most part reports
and e-mails generated by Mr
Kilowan himself."
23.2
The final sentence of paragraph 18 of chapter 1 of the Report, which
reads as follows:
"It is only when we
have rejected Mr Kilowan's evidence on the ground that it is in
conflict with the contemporary documents,
internally inconsistent or
hopelessly implausible, that we have relied upon the evidence of
other witnesses which appeared to us
to be supported by the documents
or the inherent probabilities of the case."
23.3
Paragraph 148 of chapter 4 of the Report which, under the heading
"Assessing credibility", reads as follows:
"It was only when we
came to compare his [Mr Kilowan's] evidence with the contemporary
documents, and in particular with the
reports which he himself was
sending from Iran, that we were driven to the conclusion that Mr
Kilowan actually has little regard
for whether he is telling the
truth or not.  It became apparent that a number of the most
important incidents to which Mr
Kilowan deposed with a wealth of
circumstantial detail and quotation of direct speech, simply could
not have happened.  …
….  Much of his
evidence is either a deliberately distorted version of some innocuous
facts or made up from whole cloth.
We shall give seven specific
examples at this stage, before turning to the allegations in the
complaint.  Even if one does
no more than read the chronological
series of his reports from Iran set out in Chapter 3, culminating in
a passionate warning against
having any dealings with Dr Mahmoudzadeh
and Mr Mokhber, one will find it impossible to reconcile what he was
saying and doing
at the time with his evidence of the conspiracy
which forms the centrepiece of his evidence".
24
In paragraphs 10 to 17 of the Report the Committee dealt with the
evidence made available to it.  In paragraph 10 the Committee

said the following:
"All the allegations
in the complaint are based upon statements made to Turkcell by Mr
Christian Kilowan ('Mr Kilowan'), who
visited Iran on behalf of MTN
on occasions between May and July 2004 until November 2007.  The
Committee has had access to
Mr Kilowan's evidence in the form of two
witness statements made for the purposes of the BIT arbitration, and
the transcript and
video recording of a deposition in the United
States proceedings made by Mr Kilowan on 30 April and 1 and 2 May
2012 ('Mr Kilowan's
Deposition Transcript, day 1, 2 and 3')".
25
In paragraph 11 the Committee said the following:
"A number of former
and current employees of MTN, and South African and Iranian officials
were interviewed in relation to the
allegations raised in the United
States litigation, and notes of those interviews were made available
to the Committee.  The
persons who were interviewed or from whom
statements were obtained are listed in Appendix 3."
26
Appendix 3 to the Report is annex "VD08" to the plaintiffs'
founding affidavit.  The Committee listed the names
of the 23
persons who were interviewed or from whom statements were obtained.
27
In paragraph 12 of the Report the Committee recorded that:
"Messrs Eversheds
LLP, who represent the IRI in the BIT arbitration, made available to
us their client's factual witness statements
in that arbitration, and
the IRI's counsel and solicitors had a meeting with Lord Hoffmann
(who represented the Committee).
The names of the persons whose
witness evidence we were supplied are also listed in Appendix 3."
28
The BIT arbitration, and the issues that were dealt with therein,
were covered in paragraphs 28 to 35 of the third special plea
(Res
Judicata) of the MTN defendants in the present proceedings.  The
BIT arbitration proceedings were commenced in September
2009 by the
first plaintiff (“Turkcell”) instituting arbitration
proceedings against the Islamic Republic of Iran under
the
Iran-Turkey Bilateral Investment Treaty ("BIT").  The
arbitration tribunal made its award on 15 October 2014.

Accordingly, the investigation carried out by the Hoffmann Committee
overlapped with the proceedings in the BIT arbitration.
29
Eversheds represented Iran in the BIT arbitration.  It made its
client's witness statements available to the Hoffmann Committee.

It did so to enable the Hoffmann Committee to give legal advice to
the MTN Group.  There is a common interest between the
State of
Iran and all the defendants in the present proceedings in relation to
the issues raised in the BIT arbitration and in
the present
proceedings.
30
The same witness statements were produced in the BIT arbitration and
are already in the possession of the plaintiffs.  They
were
discovered by both the MTN defendants and the plaintiffs, as appears
from the following table:
Statements of Witnesses in the
BIT arbitration who are referred to in Appendix 3 of the Report
MTN's discovery
items
Date
Turkcell's discovery
items
Dr Masoum Fardis - First Witness
Statement
1660
2010/05/16
1265
Dr Masoum Fardis - Second
Witness Statement
1665/1829
2012/05/22
1275
Dr Ebrahim Mahmoudzadeh
1873
2012/10/08
1272
Mr Abbas Vafaei
1874
2012/10/09
Mr Hosseinali Farzad
1880
2012/10/23
1237
Dr Seyyed Almlad Motamedi
1881
2012/10/23
1278
Mrs Irene Charnley - First
Witness Statement
1882
2012/10/23
1276
Mr Javid Ghorbanoghli
1886
2012/10/24
1281
Mr Charles Wheeler
1887
2012/10/25
1283
Statements of Witnesses in the
BIT arbitration who are referred to in Appendix 3 of the Report
MTN's discovery
items
Date
Turkcell's discovery
items
Rear Admiral Ali Shamkhani -
letter not a statement
1888
2012/10/28
Dr Masoum Fardis - Third Witness
Statement
1898
2013/01/14
1286
Mrs Irene Charnley - Second
Witness Statement
1899
2013/01/15
1287
31
The evidence of Ambassador Yusuf Saloojee is referred to in appendix
3 to the Report. The MTN defendants have already discovered
the
handwritten (and typed) statements that were furnished by the
Ambassador to his employer, the Department of International Relations

and Cooperation (“Dirco”), as part of an internal
investigation carried out by Dirco (being item 1839 on the MTN
defendants'
discovery schedule).  These documents were likewise
made available to the Committee.
32
Mr Nhleko's evidence was presented to the Committee, at the request
of Freshfields, acting for the MTN Group, by his attorneys,

Werksmans, in the form of a draft unsigned and unsworn statement
marked “Privileged and Confidential” and a supplementary

unsigned and unsworn statement likewise marked "Privileged and
Confidential". His attorneys made it clear to the MTN
Group and
the Committee that the drafts were provided on a private and
confidential basis so as to enable the Committee to furnish
legal
advice to the MTN Group. In addition, and since the US litigation was
contemplated at the time the Hoffmann Committee was
appointed by the
MTN Group, there was and remains a joint or common interest privilege
between the MTN Group and Mr Nhleko. For
both these reasons, the MTN
Group thus also acquired a privilege in respect of these documents.
Neither it nor Mr Nhleko
has ever waived this privilege.  There
can be no reasonable basis for saying that the publication of the
Hoffman Report created
a risk that unless Mr Nhleko’s draft
statements were also disclosed, the Report may be misunderstood by,
or be misleading
to, or result in some form of unfairness to, the
plaintiffs. This is all the more so since the Committee’s
opinions are irrelevant
in these proceedings.
33
Mrs Charnley's attorneys, Glyn Marais, at the request of Freshfields,
acting for the MTN Group, provided the Committee with a
privileged
and confidential “Combined Summary of Facts and Argument”.
The document was shared by her attorneys
with the Committee on
the basis of a joint or common legal interest she shared with MTN in
resisting the plaintiffs’ allegations
and claims in the United
States litigation. In addition, she contemplated litigation against
herself.  MTN Group thus also
acquired a privilege in respect of
this document.  Annexure “X2” is a copy of the front
page of this document,
which reads as follows:–
“
This document sets
out in summary format, the likely evidence that Mrs Irene Charnley
may give on matters relevant to her.
This document does not
represent Mrs Charnley's actual evidence, as it, together with the
analysis and arguments contained herein,
has been prepared by Glyn
Marais Incorporate[d] and does not amount to a record of statements
made by Mrs Charnley during discussions
with her.
The contents of this
document are confidential and are protected by legal privilege,
attorney client privilege and/or the work product
doctrine.
This information is being provided by Glyn Marais Incorporated, as
Mrs Charnley's counsel, to Freshfields and Webber
Wentzel on the
understanding that she shares a common legal interest with MTN in
connection with the pending and threatened litigation
and the
information is being communicated in furtherance of that interest.
The information in this document may not be communicated
to any
person without the prior written consent of Mrs Charnley's counsel,
which permission will not be unreasonably withheld.
On the basis that the
principles set out above apply to the disclosure of this document to
any persons to whom permission has been
given by Mrs Charnley's
counsel for the disclosure of the document, it is confirmed that this
document may be disclosed to MTN's
directors, senior executives and
personnel involved in the case, including to the Hoffmann Committee,
being a committee of the
MTN Board, as well as to Eversheds
Attorneys, on behalf of its client in the BIT arbitration, and to
Werksmans Attorneys, on behalf
of its client, in this matter.”
34
It is clear from these terms that Mrs Charnley did not intend to
surrender control of the legal privilege that she enjoys in
the
document. The legal privilege in it belongs to her as much as it
belongs to the MTN defendants, and even if the MTN defendants
had
purported to waive it (which they did not), it could not be done by
them alone.
35
As to the remainder of the witnesses who are referred to in paragraph
11 of chapter 1 of the Hoffmann Report:
35.1 They were
interviewed by MTN Group's US attorneys, Freshfields, and notes of
the interviews were made expressly in contemplation
of the US
litigation, for MTN Group to receive advice in that litigation, and
for information and evidence gathering purposes in
that regard.
I refer to what I have already stated above in relation to the joint
or common interest privilege between MTN
Group and others, including
Mrs Charnley and Mr Nhleko, which informed the basis of their
willingness to share information confidentially
including by way of
interviews.
35.2 These notes were
made available to the Hoffmann Committee on a privileged basis and
were provided in confidence to enable the
Committee to carry out its
investigation and provide legal advice to MTN Group.  All such
notes have at all times remained
privileged.’
[59]
The defendants set out facts why, in their view, the documents sought
are privileged documents. The opening paragraphs of the
notes of the
interviews held by Freshfields read:
‘“
The
following memorandum consists of Freshfields' thoughts, conclusions,
mental impressions, and opinions concerning the interview,
which was
undertaken in the context of Freshfields' representation of MTN.
Accordingly, this memorandum has been prepared
with the intention
that it is protected from discovery under the attorney-client
privilege, attorney work product doctrine, and
other applicable
privileges.  This memorandum is not, nor is it intended to be, a
substantially verbatim recitation of statements
made by […]
during the interview.  This memorandum has not been furnished to
[…], nor has […] reviewed,
adopted, or approved the
contents of this memorandum.
A. Introduction
[…] explained that
Freshfields are representing MTN in connection with the claim filed
by Turkcell against MTN in Washington
DC.  […] explained
to […] that Freshfields had been retained by MTN to
investigate these claims, and that Freshfields
represented MTN and
not […].  […] noted that the discussion was
subject to attorney-client privilege, but explained
that the
privilege belonged to MTN, not […].  […] further
noted that in order to maintain this privilege and
in order to guard
against any accusation of witness collusion, […] should keep
the discussion confidential, and not discuss
this or the
contemporaneous events with any other potential witness.  […]
agreed and indicated that […] did
not have any questions.”’
[60]
The affidavits state that the MTN Group only released the report
itself (with its appendices) and not any of the underlying
documents.
They claim that they retained confidentiality and privilege of those
documents, especially notes of interviews and witness
statements. The
further question that arises is whether the MTN defendants waived the
privilege that it claims by virtue of the
references to documents in
the Hoffman report.
[61]
Mr. Alp, a partner of the MTN Group’s attorneys was involved
with the claims made by the plaintiffs against the MTN Group
from the
outset. He states that during Freshfields’ evidence collection
period and review of documents and data, only a small
portion were
found to have any potential value. He further says:
‘
57 As far as the
review of the approximately 6,597 gigabytes of electronic data
collected from hard drives, email repositories and
other electronic
data sources was concerned (as is referred to in appendix 8 to the
Hoffmann Report, which deals with Evidence
Collection; and which is
annex "VDO7" to the founding affidavit), the following is
an outline of the process that was
followed:
57.1 The information was
derived (collected and imaged) in the first instance from identified
custodians' hard drives, email repositories
and other electronic data
sources without any regard to whether that data was relevant or not.
The custodians were initially
identified by Freshfields in
consultation with MTN's then General Counsel on the basis of their
involvement in the Iran bid; and
the list was updated as the document
collection process proceeded.  The identified custodians
included then current MTN employees,
former employees and Board
members.  The information comprised all electronic data from the
identified custodians, without
regard to "search terms" at
that stage.  In other words, the search caught up within its
sweep, not only potentially
relevant information, but also
information wholly irrelevant to Iran, the GSM license process in
question or the plaintiffs' allegations.
For example, the information
included data relating to other operations of the MTN Group in other
territories, personal data, and
the like.  It constituted the
sum total of all electronic data on potentially relevant custodians'
hard drives, email repositories
and other electronic data sources.
57.2 Only thereafter
date-range filters were applied to the data as well as electronic
de-duplication techniques.  There was
significant duplication in
that the same data could have been in the inboxes of 20 or more of
the custodians.  That process
reduced the data to approximately
658 gigabytes (which in itself amounted to about 2,7 million
documents, excluding email attachments).
57.3 Those documents were
then filtered through the use of computer-operated searches using
carefully selected and wide-ranging
"search terms" as well
as a manual review of file names.  Those filters yielded
approximately 781 000 potentially
relevant documents, all of which
were then manually reviewed by the legal teams for relevance through
a 3 level review process.
57.4 If 658 gigabytes
equated to 2.7 million documents, then 6 597 gigabytes of data would
have been about 10 times that number
i.e. 27 million documents.
The plaintiffs have not suggested that there could be about 27
million relevant documents, or
even one tenth of that, namely 2,7
million documents.  These figures show the absurdity of the
plaintiffs' contentions that
not all relevant documents have been
discovered.  These contentions are without merit.’
Mr.
Alp concludes that in most cases the documents were found to be
irrelevant.
[62]
In terms of Rule 35(3) the documents that are relevant must be
discovered. Although it is for a court to decide the relevance
of
each document, it is to be done based on the case before it and the
evidence before it.
[63]
Mr. Alp furnished a detailed explanation of how a large amount of
unstructured data initially collected and refined through
search
words and reviews to identify only that which was potentially
relevant. It is further stated that all documents that originated

from Mr. Kilowan have been discovered. I mention this because the
plaintiff, applicant for discovery, refers to additional documents

sought regarding Mr. Kilowan.
[64]
Mr. Alp’s testimony is that the MTN defendants have discovered
all the relevant documents in their possession or under
their
control:
[31]
‘‘
Courts are
reluctant to go behind a discovery affidavit, which is generally
regarded as prima facie conclusive, save where it can
be shown from:
(a) the discovery
affidavit itself;
(b) the documents
referred to in the discovery affidavit;
(c) the pleadings in the
action; or
(d) any admissions made
by the party making the discovery affidavit, that there are
reasonable grounds for supposing that the party
has or had other
relevant documents is his or her possession or under his or her
control, or has misconceived the principles upon
which the affidavit
should be made.’
[65]
The principle was further elaborated on in
Federal
Wine and Brandy Co Ltd
:
[32]
‘
. . . an affidavit
of discovery is conclusive, save where it can be shown either (i)
from the discovery affidavit itself or (ii)
from the documents
referred to in the discovery affidavit or (iii) from the pleadings in
the action or (iv) from any admissions
made by the party making the
discovery affidavit, that there are reasonable grounds for supposing
that the party has or had other
relevant documents in his possession
or power, or has misconceived the principles upon which the affidavit
should be made.’
[66]
In an analogous case to this one, the High Court explained that
the
[33]
‘
. . . plaintiff
alleges that all relevant documentation in its possession has been
discovered and that no other documentation is
available. [The
defendants have] argued that such a reply is insufficient as there is
still a basement storeroom full of documentation.
By implication he
is suggesting that the plaintiff be ordered to go back to the
storeroom and have another look for such documents
which have either
been discovered incompletely or not at all. In my view this is not
permissible. The plaintiff is on oath as having
that it, who is
supposed to know the documents, has done a proper investigation of
those documents in the basement storeroom and
has extracted what is
relevant. It alleges that there are no more relevant documents. The
defendants have not been able to point
to any specific and relevant
documentation in existence in the storeroom which has not been
discovered. In these circumstances,
there is in my opinion no reason
to go behind the plaintiff's oath.’
[67]
The threshold to successfully impeach factual allegations supportive
of privilege is high, and requires that MTN’s and
Mrs.
Charnley’s allegations are shown to be wrong to a reasonable
degree of certainty. In
United
Tobacco Companies (South) Ltd v International Tobacco Co of SA
Ltd
[34]
(‘
United
Tobacco’
),
the Full Bench of the Court affirmed that:
[35]
‘
It seems to me
that the first matter to be dealt with is the right of the Court to
go behind the statements of the affidavit.
In
Haisham
, supra.
para. 445, it is said:
“
Subject to the
exceptions mentioned below, the statements in the affidavits of
documents are conclusive with regard to the documents
that are . . .
in the possession . . . of the party giving the discovery, both as to
their relevancy, and as to the grounds stated
in support of a claim
of privilege from production for inspection.
So when production for
inspection is sought it will only be ordered where the Court is
reasonably certain from the affidavit of
documents itself, or from
the nature of the case, or of the documents in question, or from the
admissions made by the party in
his pleadings or in any other
affidavit, that he has erroneously represented or misconceived their
nature or effect.”’
[68]
Mr. Alp further confirmed that:
‘“
These
documents record information that was obtained by the legal
representatives of the MTN Defendants in confidence in contemplation

of the legal proceedings referred to in paragraph 133.1.2 above and
are privileged from disclosure.  The MTN Defendants do
not waive
their privilege.”’
and
that all non-privileged documents have so been discovered. I cannot
reject the statement that all relevant documents have been
discovered
unless there is a reasonable basis for concluding that the statement
is incorrect or mistaken. There is nothing before
me to show that the
affidavit of Mr. Alp is not conclusive of this point.
[69]
The plaintiffs require documents, many of which were excluded on
relevancy due to a search and review of many thousands of
documents.
These irrelevant documents were not submitted to the Hoffman
Committee and the plaintiffs do not indicate the relevancy
of these
documents.
[70]
It is the duty of the court to decide on relevance, but having regard
to the issues between the parties, in my view, the plaintiffs
have
failed to show that the documents excluded by the review process of
the MTN Group can be relevant to these proceedings. The
onus to show
that they are indeed relevant is on the plaintiffs.  The
plaintiffs have failed to show that there is good or
any reason to go
behind the affidavit of Mr. Alp, who stated that all relevant
documents have been discovered for purposes of the
action. It ends
the matter of discovery regarding all the documents that were not
discovered as being irrelevant.
[71]
Although the plaintiffs insisted that the documents are not
privileged, the further thrust of the argument before me on behalf
of
the plaintiffs was then that a waiver was indeed shown and the
documents are no longer protected.
[72]
The evidence of the defendants that the witness statements and notes
were obtained and prepared for purposes of litigation
cannot be
seriously disputed. The plaintiffs’ arguments to the contrary
do not overcome this evidence.
[73]
In my view, it can also not be seriously disputed that the Hoffman
report was commissioned due to the contemplated litigation
in the
United States of America (USA) against the MTN defendants. This
evidence stands out despite the plaintiffs’ attempt
to argue
differently. The evidence shows that the purpose of the Hoffman
report was to provide legal advice to the MTN Group for
the
anticipated litigation
[36]
. It
was the intention of the MTN Group to provide the Hoffman report to
its attorneys engaged to defend the MTN defendants against

allegations made in the USA.
[74]
The defendants further argue, and in my view convincingly show, that
the issues raised in the USA litigation match those in
the current
proceedings. This is evidence from the report itself:
‘
The Turkcell
allegations
8. We shall deal in
detail with the allegations in the complaint which we have been asked
to investigate, but for the moment, the
following summary will be
sufficient. It is alleged that commencing in about June or July 2004,
MTN conspired with Sairan and the
Bonyad to oust Turkcell from the
Irancell Consortium and take its place. It gained the support of
Sairan and the Bonyad by –
(a) using its influence
with the South African Government to procure the illicit supply to
Iran of defence equipment and in particular
by procuring the South
Africa Minister of Defence to visit Iran in August 2004 and promised
to supply Iran with a list of such
equipment designated by the code
name “the Fish”;
(b) procuring the South
African representative at the International Atomic Energy Authority
(“IAEA”) to support Iran’s
position on nuclear
development and in particular to abstain from voting on a resolution
on 24 November 2005 to refer the Iranian
Nuclear Programme to the
United Nations Security Council;
(c) corruptly offering
Sairan and the Bonyad financial support in the form of pretended
loans, never intended to be repaid, for
the purpose of enabling them
to fund their shares of the money required for the capitalisation of
Irancell and the licence fee
payable to MCIT;
(d) bribing one Javid
Ghorbanoghli (“Mr Ghorbanoghli”) and a Deputy Secretary
in the Iranian foreign office and head
of the Africa desk, with a
payment of US$400 000 through a sham consultancy arrangement;
(e) bribing one Yusuf
Saloojee (“Ambassador Saloojee”) then the South African
Ambassador to Iran, with the payment of
US$200 000.’
[75]
The report refers to interview notes and witness statements. These
notes of interviews or witness statements were made for
purposes of
litigation in the USA and provided to Lord Hoffman for purposes of
legal advice. In practice the evidence of five witnesses
was
furnished to the Hoffman Committee at the request of Freshfields
acting for MTN by its attorneys, Werksmans, in the form of
draft,
unsigned and unsworn statement material. They were marked privileged
and confidential and were accompanied by a supplementary
statement,
also so marked. It was made clear that those drafts were provided on
a confidential basis for purposes of the Hoffman
Committee to provide
legal advice to the MTN Group.
[76]
A similar position pertains to the statement of the sixth defendant
whose ‘combined summary of facts and argument’
was
provided by her attorneys to the Hoffman Committee. The document
provided under the same circumstances as set out in para 57
above,
and the evidence that litigation was contemplated when the statement
was furnished, cannot be gainsaid.
[37]
[77]
Other witnesses were interviewed by the MTN Group attorneys and notes
were made in contemplation of the USA litigation and
legal advice.
[78]
What occurred in reality is that the Hoffman Committee hardly relied
on any of the notes or statements due to a conclusion
that the
evidence of, Mr Kilowan,  was ‘a fabric of lies and
distortions and inventions. . . .’ However, MTN decided
to
release the Hoffman report and its appendices into the public domain
after it was received. It claims that it retained the confidentiality

and privilege of the documents not released. At this time, the USA
proceedings were still pending and, objectively speaking, it
would
have made no sense for the MTN Group to have waived any privilege to
the statements of witnesses and notes of interviews
at the time of
the publication of the report.
[79]
The plaintiffs seek a large number of documents. On the assumption
that they properly identified those documents, the defendants
have
shown that several of the documents sought have indeed been
discovered. Examples are:
· Email message
dated 30 April 2004 from Mr. Mackinnon
· Email message
that was sent to Miss Witbooi on 2 May 2004.
· Email message
that Mr. Cleaver sent to MTN’s Iranian lawyers on 2 May 2004 as
well as a response on 4 May 2004
· Factual witness
statements of the Islamic Republic in relation to the BIT
arbitration.
· Statements of
Mr. Kilowan.
[80]
I do not quite understand why the plaintiffs continue to seek these
documents in this application, save that it gives the impression
that
a shotgun-approach has been taken without having applied its mind
properly to what it seeks when regard is had to what has
already been
discovered.
[81]
The test whether documents are privileged is as follows:
‘
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.’
[38]
‘
See Schwikkard et
al
Principles
of Evidence
(2ed) (Juta, Cape Town 2002) 135-7 where the requirements are set out
as follows: The legal advisor must have been acting in a
professional
capacity at the time; the advisor must have been consulted in
confidence; the communication must have been made for
the purpose of
obtaining legal advice; the advice must not facilitate the commission
of a crime or fraud; and the privilege must
be claimed.’
[39]
[82]
The ambit of the privilege was described thus:
[40]
‘“
The law
came to recognise that for its better functioning it was necessary
that there should be freedom of communication between
a lawyer and
his client for the purpose of giving and receiving legal advice and
for the purpose of litigation and that this entailed
immunity from
disclosure of such communications between them. . .
Whilst legal professional
privilege was originally confined to the maintenance of confidence
pursuant to a contractual duty which
arises out of a professional
relationship, it is now established that its justification is to be
found in the fact that the proper
functioning of our legal system
depends upon a freedom of communication between legal advisers and
their clients which would not
exist if either could be compelled to
disclose what passed between them for the purpose of giving or
receiving advice . . . The
restriction of the privilege to the legal
profession serves to emphasise that the relationship between a client
and his legal adviser
has a special significance because it is part
of the functioning of the law itself . . .
The conflict between the
principle that all relevant evidence should be disclosed and the
principle that communications between
lawyer and client should be
confidential has been resolved in favour of the confidentiality of
those communications. It has been
determined that in this way the
public interest is better served because the operation of the
adversary system, upon which we depend
for the attainment of justice
in our society, would otherwise be impaired: see
Waugh v British
Railways Board
[1979] UKHL 2
;
[1980] AC 521
at 535, 536 . . .
The privilege extends
beyond communications made for the purpose of litigation to all
communications made for the purpose of giving
or receiving advice and
this extension of the principle makes it inappropriate to regard the
doctrine as a mere rule of evidence.
It is a doctrine which is based
upon the view that confidentiality is necessary for proper
functioning of the legal system and
not merely the proper conduct of
particular litigation. . .
Speaking for myself, and
with the greatest of respect, I should have thought it evident that
if communications between legal advisers
and their clients were
subject to compulsory disclosure in litigation, civil or criminal,
there would be a restriction, serious
in many cases, upon the freedom
with which advice or representation could be given or sought. If a
client cannot seek advice from
his legal adviser confident that he is
not acting to his disadvantage in doing so, then his lack of
confidence is likely to be
reflected in the instructions he gives,
the advice he is given and ultimately in the legal process of which
the advice forms part.”'
[83]
The Appellate Division has summarised the rationale, absoluteness and
scope of legal privilege as follows:
[41]
‘
The conflict
between the principle that all relevant evidence should be disclosed
and the principle that communications between
lawyer and clients
should be confidential has been resolved in favour of the
confidentiality of those communications. It has been
determined that
in this way the public interest is better served because the
operation of the adversary system, upon which we depend
for the
attainment of justice in our society, would otherwise be impaired.’
[84]
In
Three
Rivers District Council and Others v Governor and Company of the Bank
of England
(‘
Three
Rivers No 6
’)
[42]
,
the House of Lords held that legal advice covers what should
prudently and sensibly be done ‘in a relevant legal context’,

which includes legal advice or assistance in the presentation of a
case to an inquiry by a person whose conduct might be criticized
by
it.
[85]
The following excerpt from the reasoning of Lord Browne in
Three
Rivers No 6
is to point:
‘
120. I think it
clear that legal advice privilege attaches to the communications
between the Bank and its lawyers concerning the
presentation of the
Bank’s overarching statement (the statement of its case to the
Bingham inquiry). I would go so far as
to state as a general
principle that the process by which a client seeks and obtains his
lawyer’s assistance in the presentation
of his case for the
purposes of any formal inquiry – whether concerned with public
law or private law issues, whether adversarial
or inquisitorial in
form, whether held in public or in private, whether or not directly
affecting his rights or liabilities –
attracts legal advice
privilege. Such assistance to my mind clearly has the character of
legal business. It is precisely the sort
of professional service of
which lawyers are ordinarily employed by virtue of their expertise
and experience . . . It is, moreover,
a service which can only be
effectively be rendered if the client is candid and forthcoming as to
the facts of his case –
the very consideration which justifies
the absolute character of legal advice privilege in the first place.
121. . . . And by the
same token that legal advice privilege must in my judgment apply to
someone whose reputation is at stake,
so too should it apply to
anyone who instructs lawyers with a view to making the best
presentation of his case at an inquiry. It
is simply not practicable
to seek to distinguish between the different interests of those
appearing. This is, after all, an area
of the law where clarity and
certainty are at a premium.’
[86]
Having regard to the purpose of the statements and notes, I find that
they were made at a time when litigation was imminent
in the USA and
provided to Lord Hoffman for purposes of legal advice.
[87]
That results in the documents being privileged and the MTN defendants
may rightfully claim that privilege and refuse to discover
them as
the witness statements and interview notes satisfy the requirements
for legal privilege.
[43]
[88]
Save for the facts referred to regarding the witness statements
already set out, the sixth defendant provided further evidence.
She
understood that she was to be interviewed for the purpose of enabling
MTN to refute the plaintiffs claim in the USA; the interview
was
conducted in anticipation of the USA litigation and possible
litigation in South Africa; the interview concerned her knowledge
of
the plaintiffs’ allegations; she was informed that she would be
a witness for MTN. In addition, the heading of the interview
notes
contained the line ‘
PRIVILEGED AND CONFIDENTIAL Attorney
work product
’ and stated in the preface that was set out in
para 59 above.
[89]
The interview notes are thus protected by a legal professional
privilege. They were made by MTN’s lawyers for the purpose
of
advising MTN in the context of their retainer and in contemplation of
the USA litigation and, according to the sixth defendant,
litigation
in South Africa. The cover page of the sixth defendant’s
statement reads:
‘
The
contents of this document are confidential and are protected by legal
privilege, attorney client privilege and/or the work product

doctrine. This information is being provided by Glyn Marais
Incorporated, as Mrs Charnley's counsel, to Freshfields and Webber

Wentzel on the understanding that she shares a common legal interest
with MTN in connection with the pending and threatened litigation
and
the information is being communicated in furtherance of that
interest. The information in this document may not be communicated
to
any person without the prior written consent of Mrs Charnley's
counsel, which permission will not be unreasonably withheld.’
[90]
The result is that the statement is indeed protected by privilege
both for litigation in the USA and South Africa. There is
nothing to
show that the sixth defendant may have waived her legal professional
privilege. The further issue that the plaintiffs
argued was that the
defendants, by releasing the Hoffman report, have waived the right to
confidentiality of the witness statements
and notes as there are
references to these documents in the Hoffman report. The plaintiffs
contend that the publication of the
Hoffman report itself is a waiver
of any privilege that the MTN defendants enjoyed over the report if
it had one and also the witness
statements and notes. The plaintiffs
averred that the defendants are ‘cherry picking’ what it
will discover and what
not and that this is not permissible. The
plaintiffs submitted that the confidentiality, if it existed, was
destroyed by the publication
of the Hoffman report.
[44]
[91]
The starting point is that if a document qualifies for a legal
privilege, it is absolute and endures forever unless of course
such
privilege is waived.
[92]
The mere reference to a document cannot constitute an implied
waiver.
[45]
In
Astral
Operations Limited,
[46]
the court held:
‘
[31] As it is,
nothing in Johnson’s desktop study suggests that the content of
the memorandum informed the substance, rather
than the ambit, of his
report.  Moreover, no part of the memorandum has been deployed
or relied on by the respondents identifiably
as part of their case in
the review.  Indeed, in the light of Johnson’s June 2016
affidavit, it is plain that the respondents
are not even deploying
the desktop study itself in advancement of their defence of the
review proceedings; it was included in their
papers in error.
[32] For all these
reasons the application is dismissed with costs.’
[93]
In
Peacock
v SA Eagle Insurance Co Ltd
,
[47]
the court, in clarifying the relevant principles as to whether legal
privilege in the undisclosed portion of a certain document
(the
disclosed portion of which contained a diagram) had been waived, said
this:
‘
In my view,
subject to a possible qualification I shall mention in a moment, the
law on this point was correctly stated by Mustill
J (as he then was)
in
Nea Karteria Maritime Co Ltd v Atlantic and Great Lake
Steamship Corporation; The Athanasia Comninos (2)
[1981] Com LR
138
, as follows:
“
I believe that the
principle underlying the rule of practice exemplified by
Burnell v
British Transport Commission
([1955]
2 All ER 822)
is that, where
a party is deploying in court material which would otherwise be
privileged, the opposite party and the court must
have an opportunity
of satisfying themselves that what the party has chosen to release
from privilege represents the whole of the
material relevant to the
issues in question. To allow an individual item to be plucked out of
context would be to risk injustice
through its real weight or meaning
being misunderstood.”
(The Commercial Law
Reports are not available to me and I have taken the above quotation
from the report of the judgment of Templeman
LJ in
Great
Atlantic Insurance Co v Home Insurance Co and Others
[1981] 2 All ER 485
(CA) at 492e-f.)
[48]
. . .
In the present case I
think it clear that Mr Louw did not “deploy” the diagram
in any way. What he did do was to offer
to disclose it, in a spirit
of co-operation, to Mr Binns-Ward. It was Mr Binns-Ward who caused it
to be disclosed to the Court
by asking for it to be put into the
bundle. I do not think the disclosure of the diagram, without the
accompanying statement, prejudiced
defendant in any way.”’
[94]
To similar effect, in
Arcelormittal
the Supreme Court of Appeal confirmed the rationale for the implied
waiver in partial disclosure cases as follows:
[49]
‘
The reason is that
Courts are loath to order disclosure of only part of a document
because its meaning may be distorted. But it
must also be so that it
does not inevitably follow that because part of document is
disclosed, privilege is lost in respect of
the whole document.’
[95]
The onus is on the plaintiffs to prove such a waiver and that onus is
not easily discharged.
[50]
The
answer to the above argument on behalf of the plaintiffs lies in
Contango
:
[51]
‘
Although the
advice received from senior counsel is legally privileged and is not,
I submit, capable of discovery, given where we
are now, suffice it to
say that the senior advocates agreed with the outcome of the CEF
legal review.’
[96]
In his judgment
[52]
, Wallis JA
quoted, with approval, the following passage from the Australian case
of
Mann
v Carnell
:
‘
Waiver may be
express or implied. Disputes as to implied waiver usually arise from
the need to decide whether particular conduct
is inconsistent with
the maintenance of the confidentiality which the privilege is
intended to protect. When an affirmative answer
is given to such a
question, it is sometimes said that waiver is "imputed by
operation of law". This means that the law
recognises the
inconsistency and determines its consequences, even though such
consequences may not reflect the subjective intention
of the party
who has lost the privilege. Thus, in
Benecke v National Australia
Bank
, the client was held to have waived privilege by giving
evidence, in legal proceedings, concerning her instructions to a
barrister
in related proceedings, even though she apparently believed
she could prevent the barrister from giving the barrister's version

of those instructions. She did not subjectively intend to abandon the
privilege. She may not even have turned her mind to the question.

However, her intentional act was inconsistent with the maintenance of
the confidentiality of the communication. What brings about
the
waiver is the inconsistency, which the courts, where necessary
informed by considerations of fairness, perceive, between the
conduct
of the client and maintenance of the confidentiality; not some
overriding principle of fairness operating at large.’
[97]
Wallis JA made further reference to the
Man
case in the following terms
[53]
:
‘
Lastly, while
considering Antipodean authority, the Federal Court of Australia
dealt with the question of when fairness, in the
sense used in these
judgments, requires disclosure, in Telstra v BT and Adelaide
Steamship. In Telstra, after analysing a number
of judgments where
the privilege was held to have been waived, the majority formulated
the test for unfairness leading to disclosure
as being whether the
litigant had raised ‘as an element in the cause of action
relied upon, an issue incapable of resolution
without reference to
the material.’ In Adelaide Steamship the court said:
“
In other words the
cases are ones in which, in the substantive proceedings brought, the
privilege holder has put in issue the very
advice received. We
observe in passing that it is questionable whether advice can
properly said to be in issue in a proceeding
merely because it may be
relevant to an issue in it … save, perhaps, where the
proceeding is between client and legal adviser
and the advice is
relevant to the adviser’s defence of that proceeding.”’
[98]
Wallis JA sets out the ratio for his decision as follows:
[54]
‘
Drawing the
threads of both local and foreign authorities together four things
emerge that must be considered cumulatively. The
first is that there
is no difference between implied waiver and a waiver imputed by law.
They are different expressions referring
to the same thing. The
second is that such a waiver may be inferred from the objective
conduct of the party claiming the privilege
in disclosing part of the
content or the gist of the material. The third is whether the
disclosure impacts upon the fairness of
the legal process and whether
the issues between the parties can be fairly determined without
reference to the material. Finally,
the fourth is that there is no
general over-arching principle that privilege can be overridden on
grounds of fairness alone. The
rule is “once privileged, always
privileged” and it is a fundamental condition on which the
administration of justice
rests. Only waiver can disturb it.’
‘
. . . Each case
must be decided on its own facts and there is no presumption that the
disclosure of the gist of legal advice will
inevitably amount to
conduct incompatible with asserting privilege in relation to the
advice itself.
[55]
‘
. . . The
response was to claim privilege. That was a complete answer unless
privilege had been waived. It was for the appellants
to establish
waiver. . . .’
[56]
[99]
Wallis JA considered the judgment in the case of
The
Competition Commission v. Arcelormittal SA Ltd
2013 (5) SA 538 (SCA):
[57]
‘
[52] The facts in
Arcelormittal
are instructive. The Competition Commission had
received information and documents from Scaw concerning alleged
prohibited practices
in the steel industry. Scaw made a formal
leniency application in terms of the Commission's corporate leniency
policy. The Commission
then conducted its own investigation into
pricing in the steel industry and referred a complaint of alleged
prohibited practices
to the Competition Tribunal for adjudication. In
its referral affidavit the Commission said that Scaw had confirmed in
its application
for leniency “that there had been a
longstanding culture of co-operation among the steel mills regarding
prices to be charged
and discounts to be offered.” In addition
there had been arrangements for market division. It referred to its
own investigation
and concluded that it was “as a result of
information contained in the Scaw application” as well as its
own investigation
that it had made the referral.
[53] Against that
background some of the parties against whom the complaint had been
made asked for production of the Scaw leniency
application. This
court pointed out that reference to the information obtained from
Scaw was unnecessary, as a referral could have
been made simply on
the basis of a “concise statement of the grounds of the
complaint and the material facts or point of
law relied on.” By
including it the Commission made it part of its cause of action to
which the other parties to the referral
would have to respond.
Without production they could not do so. In the result this court
held that there had been an implied waiver
of the privilege that
would otherwise have attached to the leniency application.’
[100]
Wallis JA then proceeded to apply these principles to the facts in
question. The following findings were made by the learned
judge:
[58]
‘
The facts in this
case are entirely different. The opinions were referred to solely in
the context of explaining the delay. Privilege
was clearly asserted.
The deponent then added the rather cryptic statement “given
where we are now, suffice it to say”
that the advocates agreed
with the outcome of the legal review. No reliance was placed on the
content of the opinions in support
of the case that had been set out
in some detail in the first three hundred odd paragraphs of the
founding affidavit. The prefatory
words ‘given where we are
now’ referred to the fact that the respondents’ case had
already been set out fully
in the preceding portion of the affidavit.
“Suffice it to say” conveyed that nothing of substance
needed to be said
about the opinions and the advice received. Nothing
of substance was then said, beyond an indication that counsel agreed
that the
disposal agreements fell to be reviewed and set aside.’
[101]
Wallis JA then expanded on the relevant facts and stated inter
alia:
[59]
[101.1] ‘The
respondents referred to the opinions in setting out the timeline of
the steps taken by them in investigating
the disposals. They did not
incorporate the contents of the opinions into their case in a way
that compelled the appellants to
provide a response to those contents
without having had sight of them. . . .’
[101.2] ‘Both
propositions advanced by Mr Strachan were inconsistent with the law
as summarised in para 48 of this judgment.
Questions of the waiver of
privilege are far more nuanced than that. The nature, extent and
purpose of the disclosure is fundamental.
Considerations of fairness
come into play when the disclosure introduces into the claim or
defence contentions that can only be
responded to if there is full
disclosure (is where).
[60]
There is no automatic waiver as a result of a partial disclosure, as
the facts in both
Peacock
v SA Eagle
and
Harksen
demonstrate. Nor is fairness an independent ground for holding that
there has been a waiver of privilege.’
[61]
[101.3] ‘I am also
unable to appreciate on what basis the opinions could bear upon the
just and equitable relief to be granted
to the respondents if the
review succeeded. That outcome would merely establish that the views
of counsel were legally correct.
It is a mystery to me how that could
influence or affect the just and equitable remedy the court might in
due course award. As
with any such case the court would hear
submissions from the parties and craft an appropriate order. If, as
was foreshadowed, the
question of remedy was to be held over until
the merits had been decided it is conceivable that the court might
require further
information to be placed before it or to have a
separate hearing on remedy. The opinions of counsel would not affect
any decision
in that regard.’
[62]
[101.4] ‘I accept
that the statement that counsel were of the opinion that the outcome
of the legal review was correct, constituted
a partial and limited
disclosure of the conclusion reached in the opinions. In some small
measure it may also have conveyed the
gist of those opinions, insofar
as the basis for the conclusions of the legal review had been set out
earlier in the founding affidavit.
To that extent there was conduct
on the part of the respondents that could objectively speaking be
viewed as inconsistent with
preserving in full the confidentiality of
the opinions. However, that conduct must be seen in the light of the
fact that in the
very same paragraph a claim that the opinions were
privileged was asserted.’
[63]
[101.5] ‘In the
face of that assertion, and applying the approach set out in
RAF
v Mothupi
,
there can be no question of the respondents relying on some
undisclosed mental reservation in regard to their right to claim
privilege. They asserted it directly and the perception of a
reasonable person in the shoes of the appellants would have been that

they claimed privilege in respect of the opinions. I accept that the
mere assertion of privilege will not in all cases preclude
a finding
that privilege has been waived. The extent of disclosure may be so
great; the incorporation of the substance of the document
in the
claim or defence so apparent; the necessity in all fairness for there
to be disclosure if the other party is not to be prejudiced
in its
conduct of the defence (so clamant)
[64]
;
that it overrides the expression of a subjective intention not to
waive the privilege. But that is not this case. The content
of the
opinions was not made an issue in the proceedings and there was no
need for the appellants to respond to them. The relevance
of their
contents to the litigation was not apparent. Finally, the appellants
did not attempt to show, as opposed to assert without
explanatory
detail, why it would be unfair for them to proceed with their
opposition to the review without having seen the full
opinions. For
those reasons I conclude that the legal advice privilege attaching to
them was not waived and the appellants were
not entitled to an order
for their production.’
[65]
[102]
The plaintiffs relied on decisions of the Court of the USA for its
argument that all documents underlying the Hoffman report
should be
disclosed. They failed, however, to take the
Contango
decision
into account. The case law of the USA is not in accordance with
Contango
.
[103]
The decision to publish the Hoffman report, in my view, does not
result in a waiver of the privilege that attaches to the
witness
statements and notes. The reference in the Hoffman report is not so
much to the contents of these statements and notes
but a reference to
the fact that they existed and eventually not relied upon for its
conclusion regarding Mr Kilowan. These documents
do not form part of
the Hoffman report. They are separate documents and the argument that
because the report has been disclosed,
privilege in other ‘parts’
has been waived, cannot succeed.
[104]
I am not satisfied that the plaintiffs have discharged their onus to
show that there has been a waiver of the privilege enjoyed
over the
statements that were referred to in a note or fleetingly referred to
in a report but not otherwise disclosed. The defendants
assert the
privilege on a rational and legally sound basis. They have not
disclosed the substance of the witness statements and
notes and never
intended to do so. In the words of
Contango
:
‘
. . . Implied
waiver, as all the cases on the subject show, arises where the
conduct of the person concerned is objectively inconsistent
with the
intention to maintain confidentiality and, if permitted, will
unfairly fetter the opponent’s ability to respond
to the case
or defence advanced in reliance on the privileged material. . . .’
But
these considerations do not arise. The Hoffman report is an opinion
and irrelevant to the proceedings currently underway. This
is
accepted by the plaintiffs. The contents of the report are not relied
upon in the litigation.
[105]
I am of the view that the conclusion which I reached regarding the
privileged nature of the statements and notes, which privilege
has
not been waived, results in the plaintiffs’ failing in their
application.
[106]
There is an additional ground on which the MTN defendants and the
sixth defendant rely for refusing to produce what they have
said to
be privileged documents, particularly the witness statements. The
argument is based on the principle of a joint and common
interest
privilege, which both the MTN defendants and the sixth defendant
claim. That principle requires that parties who have
a shared
privilege in documents or statements must all waive the privilege and
one party cannot do so without the consent of the
other. Although a
less discussed area of our law, the ‘joint interest privilege’
and ‘common interest privilege’
formed part of the
English law on 30 May 1961 and, as such, forms part of the South
African law by virtue of the provisions of
s 42 of the Civil
Proceedings Evidence Act
[66]
and are thus to be accepted in South African law. If this is a
development of the South African common law, I am of the view that
it
is a wholesome development, justified for good reason.
[107]
Firstly, legal privilege is grounded in public policy and encourages
and promotes full and factual disclosure by clients to
their legal
advisors when seeking legal advice. It underlies and supports the
functioning of the adversarial legal system of litigation.
[67]
[108]
Secondly, it prevents one party from prejudicing the rights of
another although it may not assist the parties to raise the
privilege
against one another.
[109]
Joint inherent privilege may arise where two or more parties jointly
retain the same lawyer, or where although there is no
joint retainer,
the parties have a joint interest in the subject matter of the
communication at the time that it comes into existence.
[68]
Once a joint interest privilege is established, it follows that each
party to the relationship can assert privilege in the relevant

communication against the rest of the world.
[69]
The consequences were affirmed in
R
(on the application of Ford) v Financial Services Authority (Johnson
and Another, interested parties)
[70]
as
follows
[71]
:
‘
The consequences
of a joint interest being established are the same as if there were a
joint retainer giving rise to a joint interest.
They were described
by Rix J in
Hellenic Mutual War Risks Association (Bermuda) Ltd
and General Contractors Importing and Services Enterprises v
Harrison, The Sagheera
[1997] 1 Lloyd’s Rep 160 at 165166:
“
Parties who grant
a joint retainer to solicitors of course retain no confidence as
against one another: if they subsequently fall
out and sue one
another, they cannot claim privilege. But against all the rest of the
world, they can maintain a claim to privilege
for documents otherwise
within the ambit of legal professional privilege; and because their
privilege is a joint one, it can only
be waived jointly, and not by
one party alone. These principles are, I believe, well established:
see for instance
Rochefoucauld v. Boustead
, (1986) 65 L.J.Ch.
794,
Cia Barca de Panama S.A. v. George Wimpey & Co. Ltd.
,
[1980] 1 Lloyed’s Rep. 598,
[Re Konigsberg (a bankrupt), ex
p Trustee v Konigsberg
[1989] 3 All ER 289
,
[1989] 1 WLR 1257].
”’
[110]
A common interest privilege arises between parties who share a common
interest in communications shared between them. The
concept was
explored by Lord Denning:
[72]
‘
There is a
privilege which may be called a “common interest”
privilege. That is a privilege in aid of anticipated litigation
in
which several persons have a common interest. It often happens in
litigations that a plaintiff or defendant has other persons
standing
alongside him – who have the self-same interest as he –
and who have consulted lawyers on the self-same points
as he –
but these have not been made parties to the action. Maybe for economy
or for simplicity or what you will. All exchange
counsel’s
opinions. All collect information for the purposes of litigation. All
make copies. All await the outcome with the
same anxious anticipation
– because it affects each as much as it does the others.
Instances come readily to mind. Owners
of adjoining houses complain
of a nuisance which affects them both equally. Both take legal
advice. Both exchange relevant documents.
But only one is a
plaintiff. An author writes a book and gets it published. It is said
to contain a libel or to be an infringement
of copyright. Both author
and publisher take legal advice. Both exchange documents. But only
one is made a defendant. In all such
cases I think the courts should
– for the purposes of discovery – treat all the persons
interested as if they were
partners in a single firm or departments
in a single company. Each can avail himself of the privilege in aid
of litigation. Each
can collect information for the use of his or the
other’s legal advisor. Each can hold originals and each make
copies. And
so forth. All are the subject of the privilege in aid of
anticipated litigation, even though it should transpire that, when
the
litigation is afterwards commenced, only one of them is made a
party to it. No matter that one has the originals and the other has

the copies. All are privileged.’
[111]
The authors of
The Law of Privilege
describe common interest
as follows:
‘
In short, common
interest privilege arises where one party (party A) voluntarily
discloses a document which is privileged in its
hands to another
party (party B) who has a common interest in the subject matter of
the communication or in litigation in connection
with the document
which was brought into being. In such circumstances, provided
disclosure is given in recognition that the parties
share a common
interest, the document will also be privileged in the hands of party
B. The privilege can arise even where the common
interest is subject
to terms as to party B’s use of the document. Although the
point has not been considered extensively,
the better view is that in
order for the privilege to be invoked the common interest must arise
at the time of disclosure by party
A to party B: unlike with joint
interest privilege, it is not necessary for it to arise at the time
the document was created.’
[73]
[112]
In
Cross
on Evidence
[74]
the distinction between the two concepts of joint and common
privilege is said to be:
‘
The distinction
between common interest privilege and joint privilege, though capable
of being drawn analytically, is not always
drawn, and in particular
circumstances both types of privilege may co-exist. What, then, is
the practical significance of the distinction?
The only material
respect thrown up by the cases is that all holders of the joint
privilege must concur in waiving it, and while
normally all holders
with a privilege based on common interest must concur in waiving it,
fairness can require that disclosure
by one holder of common interest
privilege can have effect as a waiver by all.’
[75]
[113]
In The Law of Privilege, the position is discussed in some detail. In
the course of their discussion, the authors refer to
the following
passage from
Farrow
:
[76]
‘
If in principle
legal professional privilege vested in a party is not lost by
dissemination of the contents of confidential documents
to others
with a common interest, I think that fairness, in many cases, will
require that the privilege not be lost because one
of those parties,
be it the provider or the recipient, is minded to waive it. Once
parties with a common interest have exchanged
or provided one to
another the contents of communications with legal advisors about the
subject of their common interest, the question
of whether the
privilege is lost with its waiver by one must be determined by asking
whether the waiver has made it unfair for
the other parties with a
common interest to maintain the privilege;
Attorney General for
the Northern Territory v Maurice
[1986] HCA 80
;
(1986) 161 CLR 475
at 488. This
requires account to be taken of such matters as the circumstances in
which the privileged communication took place
and came to be
exchanged and provided to others,’
[114]
Then the authors say this:
[77]
‘
Hence, it is not
necessarily decisive either way that the party who has waived
privilege was the original holder of the privilege,
or a recipient
who could claim privilege only under the common interest doctrine.
Circumstances relevant to the question whether
waiver by one will
affect the other holders of the common interest privilege include the
circumstances in which the privileged
communication took place and
came to be exchanged and provided to the others. . . .’
[115]
In summary, the position therefore appears to be this: in cases of
joint privilege, all joint privilege holders must concur
in the
waiver for it to be effective; in cases of common interest privilege,
all in the common interest group may claim the common
interest
privilege, although if there is a question of waiver, a factual
enquiry must take place for the purpose of determining
whether
fairness requires that all in the common interest group (even the
primary rights holder in respect of the information,
whose ‘interests
ought ordinarily to be paramount’) should be held to have
waived privilege.
[116]
On the facts before me the documents, and especially statements of
witnesses and interview notes, were compiled on the basis
and within
the knowledge that the plaintiffs had made allegations implicating
both the MTN defendants and the fifth and sixth defendants.
The
allegations against the fifth and sixth defendants were regarding a
time when the fifth and sixth defendants were executives
of the MTN
defendants; the documents had a direct connection to the litigation
in USA which implicated all the defendants; the
MTN defendants and
fifth and sixth defendants took an aligned position in response to
the allegations and the affidavit of the
sixth defendant puts this
beyond any doubt.
[117]
A useful illustration of the principles at play in a common interest
privilege waiver occurred in the Singaporean case of
Motorola
Solutions Credit Co LLC v Kemal Uzan
,
[78]
where the issue was whether common interest privilege had been waived
over various emails, which had been obtained by the plaintiffs

pursuant to a Hong Kong court order from an alleged nominee of the
defendants. The nominee did not object to the disclosure.
[118]
The court (per Chua JC) drew a distinction between waiver by the
provider of the privileged materials and waiver by the recipient
in a
common interest privilege group. Common interest privilege could be
waived unilaterally by the provider. By contract, waiver
by a
recipient would not constitute waiver by the other common interest
holders, including the provider, unless they participated
in the
waiver. As the alleged nominee was merely a recipient of the emails,
and the defendants had not participated in the waiver,
the defendants
could maintain privilege over the emails. Chua JC also noted that
even if the fairness advocated in
Farrow
was adopted,
[79]
it would not
be unfair for the innocent common interest holders to continue to
assert privilege despite waiver by one recipient
in the common
interest group, unless they had themselves participated in the
waiver.
[119]
Applying these principles to the facts, there is nothing to show that
the sixth defendant or any other witness who furnished
a witness
statement or granted an interview, consented to their documents being
made public or that they individually waived their
privilege in the
documents.
[120]
Based on the reasons set out herein, the application for further and
better discovery cannot succeed. The ‘discovery’
of a few
documents by attaching these to the affidavits in these proceedings
is insignificant in relation to the broader ambit
of the application
and, in my view, does not affect the question of costs.
The
fifth defendant’s application to amend his plea
[121]
Although this portion of the hearing also occupied the best part of a
day, the view that I take of the matter does not justify
a detailed
judgment dealing with all the various intricate issues that were
raised.
[122]
The fifth defendant filed a plea in 2017, which plea included several
issues which were pleaded as special pleas. The first
special plea
reads as follows:
‘
1. In this action,
the plaintiffs seek to advance contentions that require this court to
sit in judgment on the sovereign acts of
the Government of the
Islamic Republic of Iran (“Iran”) and Iranian-state
entities.
2. As appear from the
allegations made in support of the plaintiffs’ cause of action,
in particular paragraphs 36 to 38, 47
to 51 and 60 of the particulars
of claim, the plaintiff contends that –
2.1 the Ministry of
Communications and Information Technology (“MCIT”)
representing Iran, was guilty of improper and
unlawful conduct and
acted mala fide in the discharge of his duties;
2.2 the Iran Electronic
Development Company (IEDC”), being an Iranian state-controlled
entity, was guilty of like misconduct;
2.3 Iran (including MCIT)
had been induced through corrupt actions to breach its obligations
and commitments.
3. Such contentions are
integral to the plaintiffs’ pleaded cause of action.
4. It is not in
accordance with customary international law for the court to
adjudicate upon the said contentions and it does not
accord with
section 232 of the Constitution of South Africa, 1996 and the
provisions of
section 2(1)
of the
Foreign States Immunities Act, 187
of 1981
, all of which prevent the Court from adjudicating upon the
legality, validity or acceptability of such acts, being the acts of a

sovereign state in its area of sovereignty.
5. In the premises and by
virtue of the act of state doctrine, this Court should not adjudicate
upon the matter.
WHEREFORE the fifth
defendant prays that this honourable court should decline to
adjudicate the matter and dismiss same, or grant
a perpetual stay of
action, with costs.’
In
issue is the common law doctrine of state immunity and that this
court lacks jurisdiction to adjudicate the matter.
[123]
The plaintiffs replicated to this first special plea, which plea was
also raised by the other defendants. The plaintiffs replicated
that
they denied that the doctrine of state immunity prevents the court
from adjudicating on the legality, validity or acceptability
of the
acts of a sovereign state in its area of sovereignty, alternately
they deny that the acts in question were sovereign acts;
they
asserted that the acts and conduct of the State of Iran and its
Agencies were in breach of constitutional and or other enforceable

rights of the plaintiffs; and in any event that the State of Iran was
not integral to the cause of action and that the fifth defendant’s

liability did not depend upon the legality, validity or acceptability
of the conduct of the Government of Iran.
[124]
The issue of jurisdiction has, consequently, been canvassed in the
pleadings and will form a part of the hearing in this matter
when the
facts are placed before the court. The amendment, in my view,
introduces no new defence but it is an amplification that
the fifth
defendant and others had raised before. Counsel for the fifth
defendant submitted that all that is done is to present
the plea in
greater detail as to both facts and the law and to distinguish more
lucidly between the
Foreign States Immunities Act
[80
]
and the Act of  State doctrine.
[125]
It will be apparent that three of the objections raised by the
plaintiffs relate to the competence of the jurisdiction issue,
which
the plaintiffs had already replicated to and which is and will be an
issue at the trial. If the amendment is not allowed
the very issue
that the plaintiffs state is excipiable, remains on the pleadings and
it will be determined at the trial. The act
of state defence has been
pleaded by the MTN defendants in para 7.12 in their plea. The sixth
defendant introduced it by way of
amendment in October 2019 without
objection from the plaintiffs.
[126]
As a court has a discretion to allow an amendment even if it would
render the pleading excipiable, it is my view that the
excipiable if
it is indeed excipiable, exists even without the amendment. To embark
on a preview to determine the excipiability
of the amended plea would
be an exercise in futility – that very issue remains alive and
will have to be dealt with at the
trial. Any finding by this court
will not bind the trial court. In my view this is pre-eminently a
matter where I should exercise
my discretion and not pronounce on the
issue which will inevitably serve before the trial court where all
the defendants will participate
and not at this interlocutory stage
as between the plaintiffs and the fifth defendant only. I am
fortified in my view by the judgment
of the full bench of the Western
Cape in
Obiang
v Janse van Rensburg and Another
[81]
where it was said:
‘
[63] The Cherry
Blossom was an application for a temporary interdict restraining the
removal of a cargo of minerals on board the
vessel The Cherry Blossom
anchored in the port of Koega pending the institution of a
vindicatory action by the alleged owners (The
Saharawi Arab
Democratic Republic – “the SADR”) of the cargo. A
provisional order was granted in favour of the
SADR and on the return
day the matter was heard by the Full Bench in light of the importance
thereof. The act of state doctrine
was raised by certain of the
respondents (“OCP” and “Phosboucraa”)
opposing the attachment who alleged
that the cargo actually belonged
to the Government of Morocco. Hence the court was urged to desist
from confirming the rule and
was requested to refrain from
entertaining the application by exercising judicial restraint in
accordance with the act of state
doctrine in favour of Morocco.
[64] The response of the
SADR was that the question of judicial restraint ought not to be
considered at that stage but rather by
the court hearing the
vindicatory action. Reliance was placed on the House of Lords
decision in
Kuwait 1
in which the court held that it was
preferable that reliance on the doctrine should only be considered
once the issues had been
properly articulated in the pleadings rather
than at a preliminary stage of the matter. The reply from OCP and
Phosboucraa was
that the Full Bench had all the issues before it and
that nothing would change by the time the vindicatory action was
heard. The
court was accordingly urged to apply the doctrine.
[65] The Full Bench
followed
Kuwait 1
and declined to apply the doctrine.
“
[92] It is indeed
so that the issues have been set out in considerably more detail than
in Kuwait 1. Nevertheless, the salutary
principle articulated in that
matter remains of application, namely that a court dealing with an
interlocutory proceedings, particularly
one such as the present which
involves significant issues of considerable complexity, will only
decide such issues where it is
strictly necessary to do so and where
the issues upon which the decision is required have been fully and
precisely determined in
the pleadings between the parties. . .
[95] OCP and Phosboucraa
assert that the broad definition of the issues in the papers is
sufficient to engage the question of a
foreign act of state. In our
view that is not so. A court which is called upon to exercise
restraint or to refrain from adjudicating
a matter in respect of
which it otherwise has jurisdiction will do so with caution and then
only in circumstances where it is necessary
to determine the
particular issue engaged by a foreign act of state… The scope
and application of the principle of restraint
is a matter for
determination at domestic law. There is no public international law
principle which obliges a domestic court to
refrain to adjudicate a
matter involving a foreign act of state in respect of the subject
matter of which the court otherwise has
jurisdiction. . .
[96] This court, bound as
it is to apply the Constitution as supreme law and to give effect to
the spirit, purport and objects of
the Constitution, will be mindful
of the fundamental rights contained therein, particularly the right
of access to the courts enshrined
in s34, in determining the
circumstances in which and the ambit of the exercise of its
discretion to decline adjudication in circumstances
where an act of a
foreign sovereign is engaged.
[97] A court will
accordingly require precision in definition of the particular issues
to be determined. In the present matter it
is not entirely clear
precisely what the act of a foreign state is that OCP and Phosboucraa
rely upon which may render the matter
non-justiciable. It is
certainly not clear at this stage precisely what issue the trial
court may be called upon to adjudicate.
OCP and Phosboucraa contend
for title upon the basis that Moroccan law applies in the territory
and that their mining operations
are lawful in accordance with that
law. That may perhaps be the necessary issue to determine. Equally,
the question of compliance
with the UN framework regulating the
exploitation of mineral resources in a non-self-governing territory,
upon which OCP and Phosboucraa
also rely, may prove to be the central
issue for adjudication. Whether that is so will depend upon the full
and proper ventilation
of the issues on the pleadings in the
vindicatory action. If indeed the latter issue is the central dispute
to be determined, then
it is difficult to conceive on what basis it
could be contended that the dispute is non-justiciable before this
court.
[98] It follows from this
that the question of the justiciability of the dispute ought not now
to be decided. In these circumstances
it would be imprudent to
express any view in regard to either the nature or ambit of the
doctrine of a foreign act of state as
it applies in our law.”
[70] In the result, I am
of the view that it would be prudent for this court to follow the
route proposed by the Full Bench in
The Cherry Blossom
and
decline to finally determine this dispute through the application of
the act of state doctrine at this stage, given that proceedings
for
attachment are essentially interlocutory in nature. Rather, the
parties should be given adequate opportunity to properly articulate

the defence and any response thereto in the pleadings to be filed in
the proposed action whereafter the trial court, having heard
all the
evidence and argument, will be best placed to adjudicate thereon.’
[127]
Counsel for the plaintiffs attempted to distinguish the
Obiang
matter on the basis that it was an urgent matter whilst this matter
is not. I fail to see the distinction as being relevant.
[128]
I agree with the reasoning of
Obiang
and it results in the objections regarding the jurisdictional issues
not being upheld in this part of the proceedings. The amendment
will
obtain a proper ventilation of the dispute between the parties, to
determine the real issues between them
[82]
and it will not cause such prejudice to the plaintiffs as cannot be
cured by an order for costs, and, where appropriate, a
postponement.
[83]
In my view,
the correct time and place to deal with this objection is at the
trial where it will feature prominently. The circumstances
are such
that the balance of convenience renders such a course of conduct
desirable.
[84]
[129]
What remains is the fifth defendant’s assertion that the Act
should be interpreted in accordance with the United Nations

Convention on Jurisdictional Immunities of States and their Property
(the Convention). The new allegations are as follows:
‘
6. The immunity
provided for in the Act should be interpreted with regard to the 2004
United Nations Convention on Jurisdictional
Immunities of States and
their Property (“the Convention”) which is recognised in
international law as an authoritative
statement on state immunity and
is consistent with international law within the meaning of of the
said section 233 of the Constitution,
7. In particular, the
immunity conferred by section 2 of the Act must be interpreted with
reference to article 6(2) of the Convention
which provides:
“
A proceeding
before a court of a State shall be considered to have been instituted
against another State if that other State:
a) is named as a party to
that proceedings; or
b) is not named as a
party to the proceedings but the proceedings in effect seek to affect
the property, rights, interests or activities
of that other State.’
[130]
The plaintiffs object to this on the basis that South Africa is not a
signatory to the Convention and therefore the Convention
cannot be
relied upon for an interpretation of s 2.
[131]
However, it was recognised in the case of
Belhaj
v Straw
[85]
as:
‘
The most
authoritative statement . . . on the current international
understanding of the limits of state immunity in civil cases.’
[86]
[132]
In
The Cherry Blossom
, the
Belhaj
decision was endorsed
and applied and it was said that it was necessary to have regard:
‘
to customary
international law and, in particular, the manner in which the
principle is interpreted and applied.’
[87]
The
approach is supported by the decision in
Minister
of Justice and Constitutional Development and Others v Southern
African Litigation Centre and Others.
[88]
A reference to s 2 of the Act is consequently not objectionable.
[133]
Having come to this conclusion, it is unnecessary to deal with the
further legal arguments advanced by the parties.
[134]
There can therefore, in my view, be no objection to the reliance on
an interpretation aid which has been approved in
The Cherry
Blossom.
[135]
In these circumstances, I am of the view that the amendment should be
allowed and the objection thereto be dismissed.
[136]
I issue the following order:
1. Leave is granted to
the sixth defendant to intervene in the application for further and
better discovery.
2.
The plaintiffs’
application to amend:
The application is
dismissed with costs. These costs include the costs occasioned, in so
far as the MTN defendants are concerned,
the costs occasioned by the
employment of three counsel and in the case of the fifth defendant,
the costs of three counsel and
in the case of the sixth defendant,
the costs of two counsel.
3.
The plaintiffs’
application for further and better discovery:
The application is
dismissed with costs. These costs include the costs occasioned by the
MTN defendants by the employment of three
counsel and in the case of
the sixth defendant, the costs of two counsel.
4.
The fifth
defendant’s application to amend his plea:
The amendment is allowed
and the objection is dismissed with costs, such costs to include the
costs of three counsel employed by
the fifth defendant.
_________________
W.L.
Wepener
Judge
of the High Court of South Africa
APPEARANCES
Counsel for the
Plaintiff: J.P.V. McNally SC with J.J. Meiring and T. Moretlwe
Plaintiff’s
heads also signed by: A.E. Franklin SC
Attorney for the
Plaintiff: Vasco de Oliviera Inc. (V. De Oliviera)
Counsel for the First
to Fourth Defendants: W. Trengrove SC with S. Symon SC and P.
Ngongo
Attorney for the First
to Fourth Defendants: Webber Wentzel (N. Alp)
Counsel for the Fifth
Defendant: M. Kuper SC with J. Cane SC and L. Sisilana
Attorney for the Fifth
Defendant: Werksmans Attorneys (D. Williams)
Counsel for Sixth
Defendant: D.M. Fine SC with J. Partington
Attorney
for Sixth Defendant: Glyn Marais Inc. (R. Du Plessis)
[1]
1927 CPD 27.
[2]
At 29.
[3]
Union
Bank of South Africa Ltd v Woolf
1939
WLD 222
at 225;
Euro
Shipping Corporation of Monrovia v Minister of Agriculture Economics
and Marketing and Others
1979 (2) SA 1072
(C) at 1090B;
Trans-Drakensburg
Bank Ltd (under judicial management) v Combined Engineering (Pty)
Ltd and Another
1967 (3) SA 632
(D) at 640-1;
Caxton
Ltd and Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990 (3) SA 547
(AD) at 565.
[4]
Plaintiffs’ submissions: Application for leave to amend the
particulars of claim para 46.
[5]
General
Commercial and Industrial Finance Corporation Limited (Appellant) v
Pretoria Portland Cement Company Limited (Respondent)
1944 AD 444
at 454.
[6]
See
Trope
v South African Reserve Bank and Another
1992 (3) SA 208
(TPD) at 211: ‘Thus it may be possible to
plead particulars of claim which can be read in any one or number of
ways by
simply denying the allegations made: likewise to a pleading
which leaves one guessing as to its actual meaning. Yet there can be

no doubt that such a pleading is excipiable as being vague and
embarrassing . . . . ‘
[7]
In
Standard
Bank of South Africa Limited and Another v Ocean Commodities
Incorporated and Others
1983 (1) SA 276
(A) it was held at 294G:
‘
The
content and effect of a foreign law is a question of fact and must
be proved (
Schlesinger v Commissioner for Inland Revenue
1964
(3) SA 389
(A) at 396G). Proof is usually furnished by the evidence
of properly qualified persons who have an expert knowledge of the
law
in question. Where the relevant foreign law is statutory in
nature, then, in my opinion, it is right and duty of the Court
itself
to examine the statute and to determine the meaning and
effect thereof in the light of the expert testimony especially where

such testimony is of a conflicting nature. (Cf Cheshire and North
Private International Law
10
th
ed at 129; Dicey
and Morris
The Conflict of Laws
10
th
ed at
1211-12;
De Beéche v South American Stores ltd and Chilian
Stores Ltd
[1935] AC 148
at 158-9.) It follows that the party
relying on the foreign statute should, generally speaking, place
that statute before the
Court.’
[8]
See Joubert et la
The
Law of South Africa
Vol 7(1) (3
rd
Ed) para 313 (Conflict of Laws, authored by M. Dendy). Also see
Forsythe’s
Private
International Law
(5
th
Ed) pages 109-110:
‘
.
. . where the judge is a passive judge – as is the case of the
English and South African judge – it is to be expected
that
foreign law must be pleaded and possibly proved before any
cognisance will be taken of it.’
[9]
Standard
Bank of South Africa Limited and Others
supra
at 294G.
[10]
Standard
Bank of South Africa Limited
supra at 294G-H.
[11]
See for example
Imprefed
(Pty) Ltd v National Transport Commission
1993 (3) SA 94
(AD) at 107 where the court says:
‘
...
it goes without saying that a pleading ought not to be positively
misleading by referring explicitly to certain clauses of
the
contract as identifying the cause of action when another is intended
or will at some later stage . . . be relied upon. As
it was put by
Milne J in
Kali v Incorporated General Insurances Ltd
1976
(2) SA 179
(D) at 182A:
"...
a pleader cannot be allowed to direct the attention of the other
party to one issue and then, at
the
trial, attempt to canvass another".'
[12]
Regie
Nationale des Usines Renault SA v Zhang
[2002] HCA 10
;
(2002)
210 CLR 491
and James McComish ‘
Pleading
and proving foreign law in Australia
’
(2007) 31 Melbourne Law Review 400, at 410. 004-1980.
[13]
Regie
para 71.
[14]
Regie
para 68.
[15]
McCormish at 409-410.
[16]
McCormish at 410.
[17]
At p 412.
[18]
[1990] Lexis Citation 2430.
[19]
Ibid.
[20]
(1985) 36 WIR 144.
[21]
Ibid at 166-167.
[22]
Ibid at 166.
[23]
[1971] 3 All ER 38 (CA) 41.
[24]
At p 41.
[25]
[2017] AC 964.
[26]
On a point not reversed by the Supreme Court when the matter went
up.
[27]
At para 154.
[28]
At para 158.
[29]
Secretary
for Finance v Esselmann
1988 (1) SA 594
(SWA) at 598A-C;
Yannakou
v Appollo Club
1974 (1) SA 614
(AD) at 623-624 (A);
Fundtrust
(Pty) Ltd (in liquidation) v Van Deventer
1997 (1) SA 710
(A) at 726A.
[30]
Union
Bank
supra at 225.
[31]
Joubert et al
The
Law of South Africa
Vol 4 (3
rd
ed) para 492. See, also
Marais
v Lombard
1958 (4) SA 224
(E) at 227G:
‘
.
. . when a party seeking discovery has sworn an affidavit as to the
irrelevancy of certain documents, the Court will not reject
that
affidavit unless a probability is shown to exist that the deponent
is either mistaken or false in his assertion.’
[32]
Federal
Wine & Brandy Company Limited v Kantor
1958 (4) SA 735
(E) at 749G-H.
[33]
Copalcor
Manufacturing (Pty) Ltd and Another v GDC Hauliers (Pty) Ltd
2000 (3) SA 181
(W) para 30.
[34]
1953 (1) SA 66 (T).
[35]
Ibid at 205. The same threshold for interference exists in the
United Kingdom. See eg
West
London Pipeline & Storage Ltd and Another v Total UK Ltd and
Others
[2008] EWHC 1296
(Comm) para 86.
[36]
Both advice privilege and litigation privilege can consequently be
claimed.
See
Astral Operations Ltd t/a County Fair Foods and Others v Minister
for Local Government, Environmental Affairs and Development
Planning
(W Cape) and Others
2019 (3) SA 189
(WCC) paras 6 to 7.
[37]
Contango
Trading SA v Central Energy Fund SOC Ltd
2020 (3) SA 58
(SCA) para 29;
The
Competition Commission v. Arcelormittal SA Ltd
2013 (5) SA 538
(SCA)para 21;
Bagwandeen
and Others v City of Pietermaritzburg
[1977] 2 All SA 562 (N).
[38]
Thint
(Pty) Ltd v National Director of Public Prosecutions
2009 (1) SA 1
(CC) para 183.
[39]
Thint
supra at fn 124.
[40]
S v
Sefatsa
1988 (1) SA 868
(A) at 886A-G, quoting with approval the High Court
of Australia decision in
Baker
v Campbell
[1983] HCA 39
;
(1983) 49 ALR 385
at 442-445.
[41]
See
Waymark
NO v Commercial Union Assurance Co Ltd
1992 (3) SA 779
(Tk) at 782D-E.
[42]
[2004] UKHL 48.
[43]
Thint, supra para 183 and fn 124, which cited with approval the
requirements as laid out in Schwikkard et al,
The
Principles of Evidence
(2
nd
ed) Juta 135-137.
[44]
See
Astral
Operations t/a County Fair Foods & Others v Minister of Local
Government, Environmental Affairs and Development Planning
(W. Cape)
and Others
2019 (3) SA 189
(WCC) paras 5-7.
[45]
See
Governing
Body of Hoërskool Fochville v Centre for Child Law [
2014]
4 All SA 204
(GJ) para 53;
Arcelormittal
supra
para 34.
[46]
Supra paras 31 to 32.
[47]
1991 (1) SA 589
(C) at 591G-592G.
[48]
At 591H-592A.
[49]
At 592F.
[50]
Contango
supra
para 61 and
Road
Accident Fund v Mothupi
2000 (4) SA 38
(SCA)
para 19.
[51]
At para 39.
[52]
Supra para 45.
[53]
Supra para 47.
[54]
Supra para 48.
[55]
Supra para 59.
[56]
Supra para 61.
[57]
Supra paras 52-53.
[58]
Contango
para 54.
[59]
Supra para 60.
[60]
Own deletion.
[61]
Contango
para 63.
[62]
Contango
para 65.
[63]
Contango
para 66.
[64]
Own deletion.
[65]
Contango
para 67.
[66]
Act 25 of 1965.
[67]
Thint
,
supra para 183.
[68]
Carpenter, Chloe (edited by Thanki QC)
The
Law of Privilege
Oxford University Press (Third Edition) (The Law of Privilege) at
6.01 – 6.02, 6.07.
[69]
Ibid, at 6.08.
[70]
[2011] EWHC 2583.
[71]
At para 17.
[72]
See
Buttes
Gas and Oil Co v Hammer
(No 3)
(‘
Buttes
’)
CA ([1981] 1 QB 223.
[73]
The
Law
of Privilege
at 6.20.
[74]
Heydon, J D
Cross
on Evidence
Field, Queensland Evidence Law 5th Edition, 2019.
[75]
Ibid, at [25265].
[76]
Farrow
Mortgage Services (Pty) ltd (in Liquidation) v Webb
(1996)
39 NSWLR 601
at 608 and 619-20
[77]
At 6.62.
[78]
[2015] SGHC 228.
[79]
Supra para 25.
[80]
Act 87 of 1981.
[81]
2019 (4) All SA 287
paras 63-65 and 70.
[82]
Blaauwberg
Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd.
[2004] 1 All SA 129
(SCA) (28 November 2003) para 12.
[83]
ABSA
Bank Ltd v Public Protector and Several Other Matters
[2018] 2 All SA 1
(GP) (16 February 2018) para 119.
[84]
Cross v
Ferreira
1950 (3) SA 443
(C) at 450E-F.
[85]
[2017] UKSC 3
(17 January 2017).
[86]
Belhaj
para 25.
[87]
Saharawi
Arab Democratic Republic and Another v Owner and Charterers of the
MV ‘NM Cherry Blossom’ and Others
2017 (5) SA 105
(ECP)
para
63.
[88]
2016 (3) SA 317
(SCA).