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[2021] ZAECPEHC 57
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Mason v Mason NO (2353/2016) [2021] ZAECPEHC 57 (23 November 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH
Case
No.: 2353/2016
Date Heard: 11 November
2021
Date
Delivered: 23 November 2021
In
the matter between:
GRAHAM
ANDREW
MASON
Applicant/Defendant
and
PATRICIA
BRIDGET MASON NO
(in her capacity as duly
appointed executor
of the Estate of Ashley
Robin
Mason) Respondent/Plaintiff
JUDGMENT
EKSTEEN J:
[1]
This
is an application to compel the production, in terms of Rule 35(7)
[1]
of the rules of court (the rules), of documents, in respect of which
the respondent claimed privilege. The documents, in issue
are
relevant to a pending action between the parties.
[2]
The
applicant, Mr Graham Andrew Mason, is the defendant in the pending
action. The respondent is the duly appointed executrix of
the estate
of the late Ashley Robin Mason (the deceased). During his lifetime
the deceased and the applicant had been the sole
members of a close
corporation, L Mason Electrical CC. After the deceased passed away, a
dispute arose between the parties which
led to the issue of summons
in the pending action on 14 July 2016. The applicant resisted the
claim and filed a counter-claim.
The issues in the pending action are
not material for purposes of the present application. Suffice it to
record that it involved,
amongst others, questions relating to the
valuation of their respective members interest in the close
corporation.
[3]
In
February 2019 the respondent’s attorney of record engaged
PricewaterhouseCoopers Advisory Services (Pty) Ltd (PWC) to provide
professional opinions and advices in respect of the pending
litigation so as to enable him to advise the respondent and to
conduct
the litigation. Correspondence passed between them and
eventually a report, authored by one Bruce Killerby, an employee of
PWC,
was prepared. The respondent gave notice in terms of Rule 36(9)
of the rules of her intention to call Mr Killerby to testify as
an
expert at the trial. A copy of his final report was duly filed as
required by Rule 36(9)(b).
[4]
After
the close of pleadings the respondent had made discovery in terms of
the provisions of Rule 35(2). However, the applicant’s
attorney, on 15 March 2021, delivered a notice in terms of notice
35(3)
[2]
, in which he called for
the discovery of further documents which he contended were relevant
to the litigation. The desired documents
were:
‘
1. A
copy of the engagement letter by the Plaintiff’s
Attorney to PriceWaterhouseCoopers Advisory Services (Pty) Limited
dated
the 28
th
of February 2019;
2. The
extension of service letter by the Plaintiff’s Attorneys to
PriceWaterhouseCoopers Advisory
Services (Pty) Limited dated the 30
th
of July 2020;
3. Inasmuch
as the Report of PriceWaterhouseCoopers Advisory Services (Pty)
Limited (Mr Bruce Killerby)
is entitled “The Final Report”,
the Defendant requests copies of any interim or draft reports
received by the Plaintiff’s
Attorneys from
PriceWaterhouseCoopers prior to the 30
th
of July 2020;
4. A
copy of the letter of instruction by the Plaintiff’s Attorneys
to PriceWaterhouseCoopers
Advisory Services (Pty) Limited and copies
of all correspondence between the Plaintiff’s Attorneys and
PriceWaterhouseCoopers
Advisory Services (Pty) Limited relative to
the aforesaid Report.’
[5]
The
respondent objected to the disclosure of these documents as she
claimed privilege in respect thereof. She provided a brief affidavit
in which she contended:
“
The
documents sought by the Respondent in terms of his Notice in terms of
Rule 35(3) delivered on 15 March 2021 are legally privileged
and the
Plaintiff is not obliged to provide copies thereof to the
Respondent.
The
documents pertain to information provided to and received from the
Plaintiff’s advisors in the course of and in support
of the
current litigation proceedings between the parties.”
[6]
The
present application to compel the production of the documents
followed. In opposing the application the respondent elaborated
as
follows on the privilege which she claimed:
“
All
the documents referred to by the Defendant in his Rule 35 notice are
privileged because those documents came into existence
with the sole
purpose of the existing litigation between the Plaintiff and the
Defendant. They were all prepared for the purposes
of being able to
fully advise the Plaintiff and thereby to enable her to conduct the
litigation against the Defendant on a sound
and sensible basis.”
[7]
The
privilege contended for has become known as “litigation
privilege”.
[3]
It serves
to protect from disclosure communications between a client or their
legal advisor on the one hand, and third parties,
on the other.
Privilege may be claimed in respect of such communications provided
that: (i) it was made for the purpose of being
submitted to a legal
advisor; and (ii) the communication was made after litigation was
contemplated.
[4]
Litigation
privilege applies typically to witness statements, however, the
privilege attaching to such statements is a manifestation
of a much
wider privilege that entitles a litigant to refuse to disclose any
communication that forms part of his or her litigation
brief if it
was brought into existence for the purpose of litigation.
[5]
[8]
Ms
Bands
, who
appeared on behalf of the applicant recognised these general
principles and acknowledged that the communications which had
been
sought fall within this category of documents and meet the
requirements for privilege. However, the thrust of the applicant’s
case for production of the documents as formulated in the founding
affidavit was:
“
As
is apparent from the defendant’s notice in terms of Rule 35(3)
the documents requested relate to the appointment of the
expert
appointed by the plaintiff.
It is
pivotal in cases where experts are employed to assess and challenge
the accuracy of the factual basis which constitutes the
foundation of
any particular witnesses’ opinion.”
[9]
In
developing this argument Ms
Bands
sought to distinguish between factual evidence and expert evidence
and relied on “
The
Law of Evidence in South Africa: Basic Principles
”
[6]
which explains:
“
In
an accusatorial–adversarial legal system, a party is not
entitled to prior knowledge of the oral evidence that will be
adduced
by their opponent. However, the contrary is true when it comes
to expert evidence because it is necessary for a party’s
legal
representative to acquaint him – or herself with the opinion of
an expert to prepare for trial.”
[10]
This
principle too, is not contentious. The rules
[7]
have for many years required of any party who intends to call a
witness to give evidence as a expert to give notice not only of
the
identity of the expert but also of the opinions which they would
express and the reasons on which they are founded. The purpose
of the
rule is to give an opposing party such information about his evidence
as to remove the element of surprise from the trial.
Compliance with
the rule may enable experts to exchange views before giving evidence
and thus to reach agreement on at least some
of the issues, thereby
saving costs and time at the trial.
[8]
The rule, however, makes inroads on the general principles relating
to privilege and it places a litigating party at a disadvantage
of
having to intimate in advance what their expert is going to say. For
these reasons it must be strictly construed.
[9]
In this case it has been complied with and the report of Mr Killerby
has been provided.
[11]
What
the applicant sought in his Rule 35(3) notice was to make far greater
inroads on the principles of privilege than Rule 36(9)
ever
envisaged. There can be no justification for the extension of the
rule to provide for the discovery of communications between
the
respondent’s legal advisor and Mr Killerby, the instructions
given to Mr Killerby or the interim reports complied in
the course of
the formulation of his opinion.
[12]
In
the result, the application is dismissed with costs.
J
W EKSTEEN
JUDGE OF THE HIGH
COURT
Appearances:
For
Applicant/Defendant: Adv I Bands instructed by
Friedman Scheckter, Gqeberha
For
Respondent/Plaintiff: Adv B Boswell instructed by Rushmere Noach
Inc, Gqeberha
[1]
Rule
35(7) provides:
“
If
any party fails to give discovery as aforesaid or, having been
served with a notice under subrule (6), omits to give notice
of a
time for inspection as aforesaid or fails to give inspection as
required by that subrule, the party desiring discovery or
inspection
may apply to a court, which may order compliance with this rule and,
failing such compliance, may dismiss the claim
or strike out the
defence.”
[2]
Rule
35(3) provides:
“
If
any party believes that there are, in addition to documents or tape
recordings disclosed as aforesaid, other documents (including
copies
thereof) or tape recordings which may be relevant to any matter in
question in the possession of any party thereto, the
former may give
notice to the latter requiring such party to make the same available
for inspection in accordance with subrule
(6), or to state on oath
within 10 days that such documents or tape recordings are not in
such party’s possession, in which
event the party making the
disclosure shall state their whereabouts, if known.”
[3]
It
is sometimes regarded as a component of legal professional
privilege.
(eg:
Competition
Commission of South Africa v Arcelormittal South Africa Limited and
Others
2013 (5) SA 538
(SCA); and
Schwikkard
and Van der Merwe: Principles of Evidence
(3
rd
ed) at 149, however, it may be preferable to recognise it as a form
of privilege separate and distinct from legal professional
privilege
(
Zeffert
and Paizes: The South African Law of Evidence
(2
nd
ed) at p. 668)
[4]
General
Accident, Fire and Life Assurance Corporation v Goldberg 1912 TPD;
Potter v South British Insurance Co. Ltd
1963
(3) SA 5
(W),
Bagwandeen
v City of Pietermaritzburg
1977 (3) SA 727
(N);
Tshikomba
v Mutual and Federal Insurance Co Ltd
1995 (2) SA 124
(T); and
Arcelormittal
para [21]. See also
The
South African Law of Evidence p. 668 and Principles of Evidence
p.
149.
[5]
The
South African Law of Evidence
p.
673
[6]
Bellengére
and Others
at
para 60.3.1
[7]
Rule
36(9)
[8]
The
recent amendment to the provisions of the rule require the filing of
the summary of the witnesses’ evidence shortly
after the close
of pleading. The obvious purpose of the rule as amended, is to
encourage the early settlement of issues and,
if possible, the
trial, in order to curtail costs of litigation.
[9]
Boland
Construction Co (Pty) Ltd v Lewin
1977
(2) SA 506
(C) at 508H; and
Doyle
v Sentraboer (Co-operative) Limited
1993 (3) SA 176
(SE) at 180G-J.