Fondling v Minister of Correctional Services (584/08) [2009] ZAECPEHC 28 (11 June 2009)

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[2009] ZAECPEHC 28
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Fondling v Minister of Correctional Services (584/08) [2009] ZAECPEHC 28 (11 June 2009)

FORM A
FILING SHEET FOR EASTERN CAPE,
PORT ELIZABETH
PARTIES
:
PATRICK FONDLING v MIN OF CORRECTIONAL SERVICES NOT
REPORTABLE
Case
Number:
584/08
High
Court:
EASTERN
CAPE, PORT ELIZABETH
DATE
HEARD:
9
JUNE 2009
DATE
DELIVERED:
11
JUNE 2009
JUDGE(S):
JANSEN
J
LEGAL
REPRESENTATIVES –
Appearances:
for
the Applicant(s):
ADV
HARTLE
for
the Respondent(s):
ADV
DALA
Instructing
attorneys:
Applicant(s):
JAMES
PHILLIPSON ATT
Respondent(s):
STATE
ATTORNEY
CASE
INFORMATION -
Nature
of proceedings
:
Key
Words
:
Summary:
IN
THE HIGH COURT OF SOUTH AFRICA
NOT
REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case No.: 584/08
Date delivered: 11 June 2009
In
the matter between:
PATRICK
FONDLING
Plaintiff/Applicant
a
nd
THE
MINISTER OF CORRECTIONAL SERVICES
Defendant/Respondent
JUDGMENT
JANSEN,
J:
The plaintiff
instituted an action against the defendant claiming damages and
further relief. The cause of action is an alleged
assault committed
on the plaintiff on 25 November 2005 whilst the plaintiff was
detained as a prisoner at St Albans Prison in the
district of Port
Elizabeth. The alleged assault was committed according to the
Particulars of Claim by one Zeelie, one Rockman,
one Williams, one
Simon and another person known to the plaintiff as “Psycho”. It
is alleged in the Particulars of Claim that
the said persons were all
employees under charge of the defendant in the Department of
Correctional Services.
A conference in
terms of the provisions of the Rule of Court 37 was held at the
chambers of defendant’s counsel on 14 May 2009.
Mr
Dala,
counsel for the defendant, was present. Paragraphs 14 and 15 of the
Minutes of the Conferences reads as follows:
“
14. The
Plaintiff requested the Defendant to admit that members ZEELIE,
ROCKMAN, WILLIAMS, SIMONS and another known to the Plaintiff
only as
“PSYCHO” were investigated by the Department of Correctional
Services arising from the assault on the Plaintiff on
25 November
2005 and the Defendant indicated in response that the Plaintiff was
not entitled to the particularities sought as it
is privileged. The
Plaintiff thereupon requested the Defendant to indicate on what basis
privilege is claimed and the Defendant
responded by indicating that
the privilege is legal privilege.
15. The Plaintiff
requested the Defendant to make the investigation dossiers pertaining
to the investigations as referred to in
the previous paragraph
available to the Plaintiff for immediate inspection and the Defendant
refused to do so indicating that the
documents are privileged and the
nature of the privilege is legal privilege.”
Plaintiff filed a
notice in terms of Rule 35(3). The plaintiff requires discovery
(paragraph 3 of the notice) of “investigation
dossier(s) in respect
of the assault on plaintiff pertaining to members Rockman, Zeelie,
Williams and Simons including reports,
minutes, witness statements,
photographs, correspondent and memoranda etc.” The defendant’s
response to paragraph 3 of the
notice is that the plaintiff is not
entitled to the information sought. The defendant’s stance in the
matter caused the plaintiff
to apply to this Court by way of Notice
of Motion for an order in the following terms:
“
Directing that
the Respondent make available to the Applicant the original
investigation dossiers in respect of the assault on the
applicant
pertaining to Department of Correctional Services members Rockman,
Zeelie, Williams and Simons including reports, minutes,
witness
statements, photographs, correspondence and memoranda.”
In his founding
affidavit the plaintiff’s attorney refers to the Rule 35(3) Notice
and the defendant’s reply thereto as well
as to the contents of
paragraphs 14 and 15 of the Rule 37 Minute. He emphasises that the
defendant has placed on record that his
refusal to make available the
investigation dossiers is based on the belief
that the dossiers are legally privileged. He further submitted that
respondent has no basis upon which he can refuse to make the
dossiers
available.
The defendant
opposes the application. On his behalf a legal officer employed by
the defendant, Cecil Xola Peyi states under oath
that the
investigation dossiers are privileged. He does not state on what
ground privilege is claimed. With reference to the
plaintiff’s
attorney’s submission that a defendant has no basis upon which he
can refuse to make the investigation dossiers
available to the
plaintiff, Peyi submits that the plaintiff has failed to lay a proper
and complete foundation in the founding
affidavit for the exercise of
the right that the plaintiff seeks to enforce in adjudication of the
application. He further submits
that this Court cannot “permit
this application to succeed where the manner of the validity of such
invocation cannot properly
be considered, as the instant application”
(
sic).
It
was never denied on behalf of the defendant that an enquiry in terms
of the Department’s Standing Orders had been held. It
was also not
in dispute that the minutes of such an enquiry are in possession of
the defendant.
Mr
Dala
,
on behalf on the defendant, in actual fact only opposed the
application on the basis that the plaintiff failed to lay a
sufficient
foundation for the relief sought. He specifically
emphasised the fact that nowhere in the founding affidavit is it
detailed as
to why the plaintiff required the documentation. For his
submission that the proper foundation had not been laid he firstly
relied
on the decision of
Clutchco
(Pty) Ltd v Davis
2005 (3) SA 486
(SCA) where it was held by the Supreme Court of
Appeal that the respondent in that matter had failed to lay a proper
foundation
as to why the companies records were required. That case
can clearly be distinguished from the present one as the application
in that matter was in terms of the provision of
section 50(1)(a)
of
the
Promotion of Access to Information Act No. 2 of 2000
. Mr
Dala
further relied on a
dictum
by Cameron J in
Van
Niekerk v Pretoria City Council
1997 (3) SA 839
(T) where he quoted from the head note “that an
applicant had to lay a proper foundation for why the document is
reasonably required
for the exercise or protection of his/her
rights”. This principle was laid down in a matter where an order
in terms of section
23 of the Interim Constitution was made for a
report in possession of the respondent to be made available to the
applicant. Discovery
in terms of the Rules of Court was not in
issue. Rule 35 relied upon by the plaintiff requires a party to any
action who has been
requested thereto to make discovery of all
documents and tape recordings “relating to any matter in question
in such action”.
It was never the
defendant’s case that the minutes of the enquiry are not relevant
to the issue in question in the action between
the parties. The
defendant refused to discover the minutes because he claims it to be
privileged. When it was enquired from the
defendant’s legal
representative on what basis privilege is claimed the reply came that
“the privilege is legal privilege”.
In his heads of argument Mr
Dala
made the submission that “it is a trite legal principle that
statements of witnesses taken for purposes of the proceedings …

shall be omitted from the schedules.” That statement is correct,
but that is not what the plaintiff seeks. The plaintiff is
clearly
not entitled to statements taken of witnesses for the purposes of the
proceedings. Ms
Hartle
,
appearing on behalf of the plaintiff, referred me to
Schwikkard
& Van der Merwe
Principles
of Evidence
2
nd
Edition at 134 where legal professional privilege is discussed. It
is specifically stated that before legal professional privilege
can
be claimed the communication in question must have been made to a
legal adviser acting in a professional capacity, in confidence,
for
the purpose of pending litigation or for the purpose of obtaining
professional advice. The client may claim the privilege
and the
lawyer can claim the privilege on behalf of his client once the
client has made an informed decision. Nothing was placed
before me
that the communications in question have been made to a legal adviser
acting in a professional capacity in confidence
for the purpose of
pending litigation.
It was submitted on behalf of the
defendant that the plaintiff in essence seeks a trial advantage.
That statement loses sight of
the fact that that is precisely what
the defendant has at the moment. It is inevitable that at the
enquiry conducted the plaintiff
would have testified. His evidence
is available to the defendant. His evidence is part of the
information the defendant is withholding
from the plaintiff.
Mr
Dala
furthermore relied
upon the decision of
Msimang
v Durban City Council and Others
1972 (4) SA 333
(DCLD) where it was held that where the defendant had
convened a fact-finding tribunal in contemplation of legal
proceedings to
determine relevant issues, the plaintiff in that case
would not be entitled to witness statements made before the trial.
In the
instant case it was not alleged by Peyi that when the
investigation by the Department was held litigation by the plaintiff
had
been contemplated. It was only on that basis that the documents
in
Msimang
’s
case were ruled to be protected by legal professional privilege.
In the result the following order is
made:
1. The defendant is
directed to make available to the plaintiff the original
departmental investigation dossiers in respect of
the assault of the
plaintiff pertaining to Department of Correctional Services members
Rockman, Zeelie, Williams and Simons,
including reports, minutes,
witness statements, photographs, correspondence and memoranda.
2. The
defendant
is directed to make payment of the costs of this application.
__________________________
J C H JANSEN
JUDGE OF THE HIGH COURT