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[2023] ZAECBHC 14
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MEC for the Department of Health v Mousomi (367/2017) [2023] ZAECBHC 14 (15 June 2023)
FLYNOTE:
CIVIL
PROCEDURE – Discovery – Privilege – Plaintiff seeks
documents defendant sought to classify as privileged
–
Appealability of an interlocutory order considered – Whether
plaintiff is entitled to report of doctor in circumstances
where MEC
claims it is a privileged document – Privilege would be deemed
waived if it was utilised by a third party, which
it was not –
Doctor’s report did not lose its privilege – Plaintiff is
not entitled to its disclosure –
Court a quo granting discovery
application – Appeal upheld – Uniform Rule 35(3).
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
Case
No: 367/2017
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL FOR HEALTH,
EASTERN
CAPE PROVINCE Appellant
and
AKTAR
MOUSOMI Respondent
APPEAL
JUDGMENT
DAWOOD
J
Introduction
[1]
This appeal arises from an interlocutory order granted by the court
a
quo
incidental
to an action in which the respondent (as plaintiff) instituted an
action for recovery of damages against the appellant
(sued on a
vicarious liability basis).
[1]
Factual
background
[2]
After pleadings had been closed in the main action, the defendant
filed a discovery affidavit,
inter
alia
,
objecting to the production of the documents set out in the second
part of the schedule to the affidavit claiming that the documents
were privileged from production because of their nature as they are
documents which came into existence and were made or obtained
by the
deponent to the affidavit
[2]
upon
the launch of this litigation wholly or mainly for the purpose of
obtaining and furnishing to his attorneys such evidence
and
information to enable them to conduct the action and advise him.
[3]
Mr Bastile did not specifically mention the report of Dr Boon in the
second schedule but merely made a broad
sweeping statement of
statements of witnesses and reports brought into existence prior to,
in contemplation of and during the continuance
of the main action.
[4]
The plaintiff thereafter specifically requested
inter
alia
the report in terms of her rule 35(3) notice.
[5]
In his rule 35(3) and (6) replying affidavit, Mr Bastile stated that
the report is a confidential internal
privileged opinion which forms
part of Part II of the second schedule in the previous discovery
affidavit.
[6]
The plaintiff then brought an application before the court
a
quo
seeking the discovery of Dr Boon’s
report in terms of rule 35(3).
[7]
In the affidavit filed in support of the application, the plaintiff’s
attorney,
inter alia
, stated:
‘
Prof
Jeena the respondent`s expert witness, specifically refers to Dr G
Boon’s report in her (sic) own expert report. . .
With
respect, the respondent’s contention to the effect that Dr G
Boons report is confidential internal privileged opinion
is baseless.
. .
A
trial date has been allocated in this matter. Applicant is prejudiced
in her on going preparations for trial by virtue of the
Respondent’s
failure to timeously produce Dr G Boon’s report as requested in
the Rule 35(3) Notice.’
[8]
No indication was given in the affidavit as to the report’s
relevance and precisely why or how the plaintiff
would be prejudiced
in the preparation for her trial.
[9]
The application was opposed by the defendant, and in an affidavit
deposed to by Ms Fundiswa Ncula
[3]
,
inter
alia
,
the following was stated:
‘
5.
This application is opposed on the ground that the report sought by
the applicant is an incomplete
fact-finding document and a document
meant for circulation within the Department of Health in the Eastern
Cape . . . The report
was meant for the attention of the employees of
the Department of Health, Eastern Cape. Dr Boon is a general
paediatrician employed
by the Department of Health Eastern Cape. . .
6.
[Dr Boon’s] report has the following markings and/or important
features:
6.1
It is addressed to and for the attention of Dr Gouws who is an
employee of the Department.
6.2
It is marked without prejudice.
6.3
And it is also marked not for court purposes. It was subsequently
sent to the State Attorney for advice on issues raised
in the
report.’
[10]
Ms Ncula went on to say that Dr Boon’s report is a privileged
document.
[11]
Ms Ncula referred to the affidavit of Prof Jeena where he says he did
not utilize the report of Dr Boon. She stated that
Prof Jeena did not
waive the right of the defendant over the document or privileged
rights and protection the defendant enjoys
over the document.
[12]
In his affidavit, Prof Jeena stated:
‘
I
emphasize that I did not utilize the report sought by the applicant
for purposes of formulating my opinion or compiling my report.
It is
indeed a document I had received though not utilized in the
formulation of my report.’
[13]
Indeed, save for the fact that that report was furnished to him, he
made no mention of Dr Boon’s report in his
opinion, whereas he
referred to Dr Pohl`s affidavit in his report.
[14]
The averments made in Ms Ncula’s affidavit do appear to be
contradicting Bastile’s affidavit, if one only
has regard to
paragraph 5 of her affidavit.
[15]
She, however, referred to Mr Bastile’s affidavit and further in
her affidavit when specifically dealing with the
issue of privilege
stated that it is a privileged document, so the fact that it is
incomplete or complete she nonetheless confirms
that it is
privileged.
[16]
The fact that she was elaborating on the report and its purpose and
who it was addressed to does not detract from the
fact that she, too,
claims that it is a privileged document.
[17]
The plaintiff’s criticism of the defendant’s failure to
discover Dr Boon’s report adequately in Part
II of the
discovery affidavit has merit since no specific mention is made of
his report therein.
[18]
However, when his report was specifically sought, the plaintiff was
made aware that it was one of the statements referred
to as being
privileged.
[19]
The court
a
quo
found,
inter
alia
,
that the expert reports given in the context of the litigation
process and made available to outsiders (in this case Prof Jeena),
must lose any privilege that may be claimed.
[4]
[20]
The court
a
quo
went
on to find that the mere
ipse
dixit
of
the party holding the document is not binding on the court. This is
worse where a litigant simply classifies the document
as privileged
without laying any basis for such classification. The
onus
rests
on that party to show why it is necessary for the information to
remain secret. The respondent failed to do so.
[5]
The
learned judge went on to find that there was no claim by the
respondent that is in the public interest that the report
be hidden.
In any event, the court would be entitled to scrutinise such evidence
in order to determine the strength of the public
interest affected
and the extent to which the interests of justice might be harmed by
its non-disclosure. ‘In the circumstances
the court
a
quo
could
accordingly find no valid reasons for the refusal to discover the
report of Dr Boon.
[21]
In his notice of appeal, the appellant cited the following grounds of
fact on which it based the appeal against the judgment
of the court
a
quo
:
‘
(1)
The Court erred in granting the respondent’s application on the
18 March 2021. The discovery affidavit in terms
of rule 35(3) and (6)
filed by Mr Bastile is to the effect that Dr Boon’s report is
confidential internal privileged report
which forms part of second
schedule in the discovery affidavit.
(2)
The report of Dr Boon has the following markings on it:
2.1
that it is addressed to and for the attention of Dr Gouws who is also
the employee of the Department.
It is marked without prejudiced and
is marked not for court purpose. It was subsequently sent to the
State Attorney for advice
on issues raised in the report. Therefore,
for all intents and purposes, it is a privileged document which is
not discoverable.
(3)
The report contains discussions between some employees of the
Department and Dr. Boon. At no stage was it intended
for court
purposes. It is addressed to another employee of the Department –
Dr. Gouws. The court erred in issuing an order
that such a document
is discoverable.
(4)
The statements and enquiries contained in the report by Dr. Boon were
made at the instance of the applicant (defendant)
on receipt of the
summons in this matter. The report demanded by the respondent
(plaintiff) is a witness statement and therefore
not discoverable.
(5)
The contention by the respondent that the report of Dr. Boon was
given to an outside expert (Prof. Jeena) must not
stand. Prof. Jeena
did not waive the privilege status of the document in any way. The
document therefore remained privileged. He
had no authority to waive
such status on behalf of the applicant.
(6)
The order dated 18 March 2021 has the potential to prejudice and
compromise the confidential internal communication
between client
(defendant) and State Attorney (the attorney). In any event, the
applicant did not waive the privilege status of
its document.
(7)
The issue the respondent relies on is that Prof. Jeena referred to
Dr. Boon`s report. The respondent does not mention
what information
has Prof. Jeena taken from or relied on Dr Boon`s Report,
particularly in circumstances where it is marked not
for court and
without prejudice. Critically, in circumstances where Prof. Jeena in
his letter dated 8 January states:
“
Even
though, I was privy to Prof. Boon report that I received on the 19
September 2019 I did not use it in compiling my report dated
4
October 2019”.
(8)
The characterization of Dr. Boon’s report as a privileged
document in the discovery affidavit should have
created a departure
point as to whether the respondent is entitled to a document
characterized as such and if so under what circumstances.
It is the
discovery affidavit that characterized it as such not papers filed in
support of rule 35(3) application.
(9)
Appellant at no stage did it issue rule 36 notices for examination of
the respondent and as such owed no rule 36
expert report in terms of
rule 36 (9)(a) and (b).
(10)
A pertinent legal principle in this matter is waiver of rights and a
principle the respondent did not address at all due to
its failure to
adopt the departure point in paragraph 8 above.
(11)
The court is respectfully urged to uphold the appeal sought herein
with costs of two counsel where engaged.’
Issues
to be determined
[22]
At the hearing of the appeal, the respondent persisted with its
contention that the interlocutory order was not appealable
and
accordingly submitted that it is an issue to be determined. It will
be dealt with briefly for the sake of completeness.
[23]
The main issue to be determined is whether the respondent is entitled
to the report of Dr Boon in circumstances where
the appellant claims
that it is a privileged document or witness statement.
Appealability
of an interlocutory order
[24]
Mr
Kunju
,
counsel for the appellant, submitted that, even though an
interlocutory order may not be appealable under the traditional test,
it may be appealable in terms of
section
17(1)
of
the
Superior
Courts Act 10 of 2013
.
[25]
In
RTS
Industries and Others v Technical Systems (Pty) Ltd and
Another
,
[6]
the
court held:
‘
Whether
or not an interim order is appealable is fact specific. This was
affirmed in
South
African Informal Traders Forum v City of Johannesburg
,
[7]
where
the Constitutional Court held that when determining whether it is in
the best interests of justice to appeal an interim
order, the court
must have regard to and weigh carefully all relevant circumstances.
The factors that are relevant or decisive
in a particular instance,
will vary from case to case.’
[26]
The Constitutional Court in
United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd
and Others
,
[8]
held,
inter
alia
,
as follows:
‘
Whether
this court should grant leave turns on what the interests of justice
require. Whether it is in the interests of justice
to hear and
determine the matter involves a careful balancing and weighing up of
all relevant factors. However, there is no concrete
and succinct
definition of the phrase “interests of justice” and what
it really entails.
[9]
What
is in the interests of justice will depend on a careful evaluation of
all the relevant factors in a particular case. Herein
there are two
different hurdles as to whether this court should grant leave: (
a
)
whether the Supreme Court of Appeal’s order is appealable; and
(
b
)
whether, if the order is appealable, this court should entertain the
merits of the appeal despite the fact that the Supreme Court
of
Appeal did not determine the merits of the appeal.
[10]
Whether
an interim order has final effect or disposes of a substantial
portion of the relief sought in a pending review is merely
one
consideration. Under the common law principle as laid down
in
Zweni
,
if none of the requirements set out therein were met, it was the end
of the matter. But now the test of appealability is the interests
of
justice, and no longer the common law test as set out in
Zweni
.
[11]
The
majority of the Supreme Court of Appeal erred in holding that the
interests of justice did not render the impugned interim interdict
a
“decision” within the meaning of
section
16(1)(
a
)
of
the
Superior Courts
Act. An
interdict
restricting free speech constitutes a grave intrusion on a
constitutional right. Since there was a likelihood that
the life of
the impugned interim interdict, granted pending the outcome of the
defamation trial, might be extended even longer
than it had already
existed, it was sufficiently invasive and far-reaching that it was in
the interests of justice for the grant
of the impugned interim order
to be treated as a “decision”. The Supreme Court of
Appeal in Health Professions Council
of South Africa
held
that, where a litigant may suffer prejudice or even injustice if an
order or judgment is left to stand, leave to appeal against
orders or
judgments made during the course of the proceedings should be
granted. In determining whether the impugned interim interdict
was
appealable, the Supreme Court of Appeal was not exercising a
discretionary power; it was making a value judgment. Accordingly,
this court is entitled to make its own assessment and conclude that
the impugned interim interdict was a “decision”
and thus
within the Supreme Court of Appeal’s
jurisdiction.’
[12]
(Footnotes
omitted.)
[27]
In
Neotel
(Pty) Ltd v Telkom SA Soc Ltd and Others
,
[13]
the
court held:
‘
This
court held that the belief that the execution order was not
appealable was erroneous and that it was clear from cases such
as
S
v
Western
Areas Ltd & others
and
Khumalo & others v Holomisa
that
what was of paramount importance in deciding whether a judgment was
appealable, was the interests of justice.’
[28]
In
Nova
Property Group Holdings v Cobbett
,
[14]
the
appealability of an order to compel discovery was considered. The
court held that even though such an order was not appealable
under
the traditional test laid down in
Zweni
v Minister of Law and Order of the Republic of South Africa
[15]
that
test, as held in
Moch
v Nedtravel (Pty) Ltd
t/a
American Express Travel
Service
[16]
was
not exhaustive. Referring to
Philani-Ma-Afrika
,
[17]
the
court concluded that even though the interlocutory order was not
appealable under the traditional test laid down in
Zweni
,
it was appealable in terms of
s
17(1)
of
the
Superior
Courts Act.[18
]
[29]
The Supreme Court of Appeal at the time of granting leave must have
been alive to the arguments pertaining to the appealability
of
interlocutory orders as this was argued in the court a
quo
and
was one of the reasons for the court a
quo
refusing
leave to appeal and necessitating the defendant/appellant’s
approach to the Supreme Court of Appeal to
seek leave.
[30]
The fact that the Supreme Court of Appeal granted leave to appeal is
not without significance; in my view, it was an
intimation that they
considered this matter appealable and were satisfied that indeed the
appellant had made out a case that it
was in the interest of justice
for the appellant to be granted leave to appeal the interlocutory
application.
[31]
The appeal is accordingly properly before this Court, despite the
respondent persisting with this point in argument and
in its heads of
argument.
Entitlement
to Dr Boon’s ‘report’
[32]
Rule
35(3)
,
which is at the heart of this appeal, reads:
‘
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.’
[19]
Requirements
of the rule
[33]
Herbstein and Van Winsen
[20]
state
as follows—
‘
Even
if such a direction has been made, before a party can rely on
rule
35(3)
she
or he must invoke the provisions of
rule
35(1)
and
receive a discovery affidavit in accordance with
rule 35(2).
In
Swissborough
Diamond Mines v Government of the RSA
Joffe
J reviewed the authorities relating to
rule
35(1)
,
(2) and (3) and requirement of relevance. He quoted with approval the
principle stated by Brett LJ in
Compagnie
Financiere et Commerciale du Pacifique v Peruvian Guano Co
.
“
It
seems to me that every document relates to the matter in question in
the action which, it is reasonable to suppose, contains
information
which may — not which must — either directly or
indirectly enable the party requiring the affidavit either
to advance
his own case or to damage the case of his adversary. I have put in
the words ‘either directly or indirectly’
because, as it
seems to me, a document can properly be said to contain information
which may enable the party requiring the affidavit
either to advance
his own case or to damage the case of his adversary, if it is a
document which may fairly lead him to a train
of enquiry which may
have either of these two consequences.”
Joffe
J then stated that the broad meaning ascribed to relevance is
circumscribed by the requirements in both subrules (1) and (3)
of
rule
35
that
the document or (tape) recording must be one “relating to”
(35) (1) or which “may be relevant to"
(35) (3) any matter
in question’, which in turn is determined from the pleadings.
He also stated that in determining the
issues raised by the pleadings
regard would not be had to requests for further particulars for
purposes of trial and further particulars
furnished in response
thereto as requests for particulars for trial are made “after
the close of pleadings” and the
request for particulars would
therefore relate to the pleaded issues and would not raise further or
new issues between the parties.
Where
the documentation sought to be discovered was not relevant to any of
the issues raised in the affidavits in an application,
the
application for discovery was refused.’
[21]
(Footnotes
omitted.)
[34]
In
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
[22]
the
court said the following—
‘
As
indicated above,
Rule
35(3)
provides
the procedure for a party dissatisfied with the discovery of another
party. It requires the former party to give
notice to the latter
party to make the documents or tape recordings available for
inspection in accordance with
Rule
35(6).
Rule
35(6)
requires
the notice to be, as near as may be, in accordance with Form 13 of
the First Schedule. Form 13 requires the production
for inspection of
“the following documents referred to in your affidavit”.
It is obviously designed for inspection
of discovered documents. It
must be adopted to deal with the situation envisaged in
Rule
35(3).
In
particular, the degree of specificity of the documents that the party
dissatisfied with the discovery must comply with
in the notice must
be determined. The importance of this requirement cannot be
understated. A party can clearly be severely prejudiced
by a notice
which does not exhibit the necessary degree of specificity. Failure
to comply with that requirement can result in an
order compelling
compliance, and failure to comply therewith can result in the claim
dismissed or defence being struck out in terms
of
Rule
36(7).
’
[35]
In
The
MV Urgup: Owners of the MV Urgup
[23]
the
court had this to say—
‘
As
to the alternative relief claimed by the respondents which, as I have
said, would in effect be an order in terms of Uniform Rules
35(3) or
(14) compelling the applicant to make available for inspection and
copying the documents listed in annexure A to the notice
of motion,
this may be dealt with These subrules are both intended to cater for
the situation where a party knows or, at the very
least, believes
that there are documents (or tape recordings) in his opponent’s
possession or under his control which may
be relevant to the issues
and which he is able to specify with some degree of precision. In the
case of Rule 35(3) the intention
is to supplement discovery which has
already taken but which is alleged to be inadequate.’
[36]
Nel AJ pointed out in
Mofokeng
v Standard Bank of South Africa
[24]
that―
‘
In
Herbstein & Van Winsen, Civil Practice of the High Courts and the
Supreme Court Appeal of South Africa it is stated as follows:
“
It
has been held that the court will generally regard the discovery
affidavit as conclusive against the party seeking relief, as
to both
the possession of documents or (tape) recordings and the relevance of
their contents. The party who seeks further discovery
has the onus of
establishing facts which raise a strong possibility that there are
further relevant documents or (tape) recordings.”’
A
party seeking an order that documentation or recordings sought in
terms of Rule 35(3) Notice must be provided, must show that
there are
reasonable grounds for believing that the documentation or recordings
are in the opposing party’s possession or
under its control.
In
Herbstein & Van Winsen it is recorded that the requirement of
“reasonable grounds” or “grounds for suspicion”
has been held to mean that the Court must be satisfied to a degree of
conviction approaching practical certainty.
In
the circumstances, a Court must be satisfied that despite what is set
out in the affidavit of the other party, reasonable grounds
exist for
the Court to order the production of the documentation, or the
recordings sought.’
[37]
Ponnan JA referred to a series of cases dealing with the incidence of
the onus in
Centre
for Child law v Hoerskool Fochville and Another
[25]
in
the following terms:
‘
University
City Studios held (at 748A) that:
“
[this]
being an application, I would say that the onus is to be discharged
on the usual basis, i.e., that the applicant bears the
overall onus
of satisfying the Court that the respondent is obliged to produce the
document . . . Where the respondent files an
opposing affidavit . . .
and either denies relevance or avers that he is on ground of
privilege not obliged to produce a document
. . . the applicant
would, to succeed, have to satisfy the Court on a balance of
probabilities that the document is indeed relevant
or not
privileged.”
In
Gorfinkel
v Gross, Hendler & Frank
1987
(3) SA 766
(C
),
Friedman
J disagreed with this
dictum
.
He took the view that the rule should be interpreted as follows:
“
[P]rima
facie
there
is an obligation on a party who refers to a document . . . to produce
it. That obligation is, however, subject to certain
limitations, for
example, if the document is not in his possession and he cannot
produce it, the Court will not compel him to do
so . . . Similarly, a
privileged document will not be subject to production. A document
which is irrelevant will also not be subject
to production. As it
would not necessarily be within the knowledge of the person serving
the notice whether the document falls
within the limitations I have
mentioned, the onus would be on the recipient of the notice to set up
facts relieving him of the
obligation to produce the document.”
Friedman
J’s approach found favour with Thring J in
Unilever
plc v Polagric (Pty) Ltd
2001
(2) SA 329
(C).
[Ponnan JA then held as follows:] For my part, I entertain serious
reservations as to whether an application such as
this should be
approached based on an
onus
.
Approaching the matter based on an
onus
may
well be to misconceive the nature of the enquiry. I thus deem it
unnecessary to attempt to resolve the disharmony on the
point. That
notwithstanding, it is important to point out that the term
onus
is not to be confused with the burden to adduce evidence (for example
that a document is privileged or irrelevant or does not
exist)
.
In my view, the court has a general discretion in terms of which it
is required to try to strike a balance between the conflicting
interests of the parties to the case. Implicit in that is that it
should not fetter its own discretion in any manner and particularly
not by adopting a predisposition either in favour of or against
granting production. And, in the exercise of that discretion, it
is
obvious, I think, that
a
court will not make an order against a party to produce a document
that cannot be produced or is privileged or irrelevant
.’
(Own
emphasis.)
[38]
The case of
TNM
v Member of the Executive Council For Health: KwaZulu-Natal
[26]
is
relevant to the present proceedings since the facts appear to be
similar. The judgment accordingly will be set out in some
detail. The
Court held
inter
alia
as
follows:
‘
It
is common cause that one Dr Batchelder, a specialist obstetrician,
was requested to advise the respondent on the claim against
her. He
produced a report on the matter (the desired report). This
report
was one of many documents furnished by the respondent to one Dr Hall,
a paediatric specialist
,
for the purposes of obtaining her
advice
on the claim
.
Dr Hall likewise provided the respondent with a report. Neither of
these persons examined the applicant or the minor child.
Dr
Hall’s report was served on the applicant. It referred
to
the fact that Dr Hall had been furnished with the desired report.
This was its only reference
. The applicant requested a copy of
the desired report which was refused. The refusal gave rise to the
present application, said
to have been brought under Uniform rule
35(3) of the Uniform Rules of Court, in which the applicant seeks the
following orders:
“
1.
The Respondent is directed to serve a copy of Dr Batchelder’s
report in the above matter within 15 days of this order.
2.
The Respondent is to pay costs of this application on an attorney and
client scale.”
The
respondent raises, in essence, two grounds of opposition. The first
is a point
in limine
. That, since the respondent has not
filed her discovery affidavit under Uniform rule 35(1), the
application is premature. As such,
Uniform rule 35(3) cannot be
invoked. The
second is that privilege attaches to the desired
report and that this privilege has not been waived
. I shall deal
with each in turn.
. .
.
The
words “disclosed as aforesaid” probably imply prior
discovery under Uniform rule 35(1). However, it is clear that,
if she
did discover, the respondent would not include it since it amounts to
a witness statement. These are expressly excluded
in Uniform rule
35(2)
(b)
:
“
Statements
of witnesses taken for purposes of the proceedings, communications
between attorney and client and between attorney and
advocate,
pleadings, affidavits and notices in the action shall be omitted from
the schedules.”
. .
.
The
substantive defence is that the report is privileged. The factual
basis for this was laid in the answering affidavit, to which
the
applicant did not deliver a reply. Various averments have been made.
These include that it is a witness statement and that
it was obtained
for the purposes of litigation. More specifically, it is averred that
the respondent “sought and obtained
the advice of Dr Batchelder
in making his assessment of the [applicant’s] claim.” It
is also averred that the respondent
does not intend utilising Dr
Batchelder as an expert witness and, accordingly, is not even obliged
to give notice in terms of Uniform
rule 36(9)
(a)
or
a summary in terms of Uniform rule 36(9)
(b)
. In fact, it
is said that, despite the report of Dr Hall having been made
available to the applicant, the respondent does not intend
to call
her as a witness.
Early
authority establishes that
litigation
privilege attaches to a document given “in contemplation of
litigation” and “for the purpose of submission
to the
party’s legal adviser”
.
[27]
The
factual averments of the respondent place the desired report into
this category. In argument, the
applicant
conceded that this was the case
.
But
the applicant submits that,
because
the desired report was furnished to a third party
,
Dr Hall, and
is
referred to in the report of Dr Hall, the privilege attaching to it
was waived
.
A waiver may be express or implied.
No
case is made out for any express waiver
.
In
S
v Tandwa & Others
,
[28]
the
court distinguished between what it called an implied waiver and an
imputed waiver:
“
Implied
waiver occurs . . . when the holder of the privilege with the full
knowledge of it so behaves that it can objectively be
concluded that
the privilege was intentionally abandoned. Imputed waiver occurs
where – regardless of the holder’s
intention –
fairness requires that the court conclude that the privilege was
abandoned. Implied waiver entails an objective
inference that the
privilege was abandoned; imputed waiver proceeds from fairness,
regardless of actual abandonment.”
This
distinction has now been criticised in
Contango
Trading SA & Others v Central Energy Fund Soc Ltd &
Others
[29]
as
follows:
“
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 overarching 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.”
In
Contango
,
an affidavit put up in the litigation by the Central Energy Fund had
referred to two opinions provided to it by Senior Counsel.
The
reference was limited to the following statement:
“
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.”
[30]
The
court held that the privilege, which admittedly at least initially
attended on the obtaining of those opinions, had not been
waived. The
test for an implied waiver was said to be:
“
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.”
[31]
It
went on to hold that, in the circumstances of that matter, even where
specific reference had been made to the nature of the advice
given in
the opinions, no waiver had been shown. It held that, “[n]o
reliance was placed on the content of the opinions in
support of the
case that had been set out in some detail. . .”.
[32]
and
further that “[t]hey 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”. It was held that the application for
their disclosure
under Uniform rule 35(12) had been correctly dismissed.
The
crisp question determining an implied waiver, thus,
is
whether the furnishing of the report to Dr Hall and her mention of it
in her report “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
.”
[33]
The
reference of Dr Hall to her having received the report
makes
no disclosure at all of its contents or even conclusion
.
The reference is
substantially
less than that in Contango to the opinions
.
In the latter case, it was said that the opinions supported the
review. In the present matter all that is said
is
that the desired report was provided to her
.
There
is no reference at all to the content or findings of the desired
report. It cannot be said that, even if Dr Hall is called
as a
witness, the respondent is in any way relying on the desired report
.
The applicant will not be
required
to respond to the desired report without sight of it
.
The failure to produce
it
cannot in any way prejudice the applicant in addressing the
respondent’s defence to the action
.
In
these circumstances, it is my view that the applicant has not made
out a case that the respondent has waived the privilege. This
means
that the application cannot succeed.’ (Own emphasis.)
[39]
In
Contango
Trading SA and Others v Central Energy Fund Soc Limited
,
[34]
the
Supreme Court of Appeal held:
‘
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.’
[40]
Also at paragraph 29 the Supreme Court of Appeal in
Contango
stated:
‘
In
ArcelorMittal
we
explained that litigation privilege has two requirements: The first
is that the document must have been obtained or brought into
existence for the purpose of a litigant’s submission to a legal
advisor for legal advice; and second, that litigation was
pending or
contemplated as likely at the time.’
[35]
[41]
In the
MEC
for Health, North West Province v Dumisani
,
[36]
the
court agreed that expert reports are privileged:
‘
So
too, are reports produced by experts at the request of attorneys for
the specific purpose of litigation, covered by litigation
privilege.
. .
.
However,
documents provided to the expert on which the expert relied for
purpose of arriving at the conclusions contained in his/her
report
are treated differently. However, privileged those documents might
have been, that privilege is lost once the expert’s
report is
provided to the other side in terms of Rule 36 (8). This is however
different from where the report of the expert does
not contain
information based on a document supplied by the attorney. Such report
of the expert is privileged unless the privilege
is waived. There is
no indication that same is applicable in this matter.’ (Own
emphasis.)
[42]
A litigant is not obliged, either before or during a trial, to
disclose any document which was brought into existence
for purposes
of litigation.
[43]
The most important class of documents falling into this category are
the statements of the litigant’s witness.
[37]
In
this regard, recourse to the discovery affidavit of the defendant
shows that witness statements are not discoverable.
[44]
A commentary under Uniform rule 35(3) at D1-472 in Erasmus
Superior
Court
[38]
it
is said that the courts are reluctant to go behind a discovery
affidavit which is regarded as conclusive save where it
can be shown
either (i) from the discovery affidavit itself; (ii) from the
documents referred to in the discovery affidavit; (iii)
from the
pleadings in the action; (iv) from any admission made by the party
making the discovery affidavit; or (v) the nature of
the case or the
documents in issue – that there are reasonable grounds
supposing that the party has or has had other relevant
documents in
his possession or power or has misconceived the principle upon which
the affidavit should be made.
[45]
In
Thint
(Pty) Ltd v National Director of Public Prosecutions and
Others
,
[39]
the
Constitutional Court held:
‘
The
right to legal professional privilege is a general rule of our common
law which states that communications between a legal advisor
and his
or her client are protected from disclosure, provided that certain
requirements are met. The rationale of this right has
changed over
time. It is now generally accepted that these communications should
be protected to facilitate the proper functioning
of an adversarial
system of justice, because it encourages full and frank disclosure
between advisors and clients. This, in turn,
promotes fairness in
litigation. In the context of criminal proceedings, moreover, the
right to have privileged communications
with a lawyer protected is
necessary to uphold the right to a fair trial in terms of section 35
of the Constitution, and for that
reason it is to be taken very
seriously indeed.’
[46]
If from the pleadings and the nature of the case the court regards it
as probable that the party making discovery has
other relevant and
disclosable documents in his possession, it may order production
thereof.
[40]
Conclusion
[47]
Apropos
the
document by Dr Boon, here is my conclusion:
(a)
It is a document compiled by an employee of the appellant.
(b)
It was compiled after action had been instituted against the
appellant by the respondent.
(c)
Mr Bastile alleges that it is confidential internal privileged
opinion and Ms Ncula also confirms this in addition to
stating that
it is an incomplete fact-finding document and a witness statement.
(d)
Dr Boon did not treat the plaintiff or the minor child and is not
employed at this hospital.
(e)
The document, despite being furnished to Prof Jeena, was not utilised
by him.
(f)
It was clear that the opinion was requested from Prof Jeena by the
state attorney and one of the documents he received
was an expert
opinion by Dr Boon. Prof Jeena however in his confirmatory
affidavit
[41]
states:
‘
I
emphasize that I did not utilize the report sought by the applicant
for purposes of formulating my opinion or compiling my report.
It is
indeed a document I had received though not utilised it in my
report.’
(g)
The furnishing of the report alone does not vitiate or nullify the
privilege, nor could it be said to have been waived.
(h)
It is unclear who furnished this report to Prof Jeena although the
request for the opinion emanated from the State Attorney.
(i)
Prof Jeena in any event did not utilize the document and has stated
this in unequivocal terms and accordingly there
has been no waiver of
privilege by the document being made available to him. The test for
waiver goes beyond furnishing it to a
third party. The authorities
are clear that it would be deemed waived if it was utilised by the
third party, which it was not in
this case.
(j)
The document did not lose its privilege.
(k)
The respondent is accordingly not entitled to its disclosure.
(l)
The court
a quo
accordingly with respect ought to
have dismissed the application on the basis that it was a privileged
document.
(m)
This Court is not privy to the contents of the document, and neither
was the plaintiff/respondent to expect the plaintiff in
those
circumstances to set out the basis upon which it considers the
document relevant in the circumstances would result in an
injustice.
However, this document was obtained after litigation and that Dr Boon
was not the treating physician.
(n)
Even if one were to accept that the document was relevant, one would
still need to consider the issue of whether the document
was
privileged or not.
(o)
The plaintiff/respondent disputed that the document was privileged
predominantly on the basis that it was made available
to Prof Jeena
who is not an employee of the hospital and thus it lost whatever
privilege it may have had.
(p)
The authorities are clear that the privilege is that of the client
and the facts of this case do not demonstrate that
this privilege was
waived.
(q)
The plaintiff/respondent accordingly is not entitled to the report of
Dr Boon.
[48]
There is no reason why costs should not follow the result both in
respect of the application before the court
a
quo
and
this Court. This case turns on facts in the context of rule 35(3). It
does not constitute the testing of one’s constitutional
rights
in the
Biowatch
context.
[42]
The
case, however, does not warrant the involvement of two counsel. The
record is not voluminous and the issues are not complex.
Order
[49]
In the circumstances, the following order is made:
1.
The appeal is upheld with costs.
2.
The order of the court a quo is set aside and substituted with the
following order:
‘
The
application in terms of rule 35(3) is dismissed, with costs.’
F
B A DAWOOD
JUDGE
OF THE HIGH COURT
I
agree.
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
I
agree.
M
MAKAULA
JUDGE
OF THE HIGH COUR
Appearances
Counsel
for the appellant:
V
Kunju SC
(with him,
N D
Ngadlela
)
Instructed
by: The
State Attorney, East London
C/o
Shared Legal Services
Office
of the Premier
King
Williams Town
Counsel
for the respondent:
N
K Siyo
Instructed
by: Matiwane
Attorneys
Queenstown
C/o
Gordon McCune Attorneys
King
Williams Town
Heard: 20
March 2023
Delivered: 15
June 2023
[1]
The
main action. In the court
a
quo
’s
interlocutory proceedings, the respondent was the applicant and the
appellant the respondent. The appellations ‘plaintiff’
and ‘defendant’ will be used interchangeably with
‘respondent’ and ‘applicant’, respectively
and, where appropriate, with ‘appellant’ and
‘respondent’.
[2]
Mr
Zekhaya Bastile.
[3]
Ms
Ncula.
[4]
Para
14 of the court
a
quo’
s
reasons for judgment.
[5]
Para
15 of the reasons for judgment.
[6]
[2022]
ZASCA 64
para
24.
[7]
[2014]
ZACC 8
;
2014
(6) BCLR 726
(CC);
2014
(4) SA 371
(CC)
para 20.
[8]
[2022]
ZACC 34
;
2023
(1) SA 353
(CC);
2022
(12) BCLR 1521
(CC)
.
[9]
Ibid
para 34.
[10]
Ibid
para 35.
[11]
Ibid
para 43.
[12]
Ibid
para 46.
[13]
[2017]
ZASCA 47
para
20.
[14]
[2016]
ZASCA 63
;
2016
(4) SA 317
(SCA);
[2016]
All SA 32
(SCA)
317 (SCA).
[15]
[1992]
ZASCA 197
;
[1993]
1 All SA 365
(A).
[16]
[1996]
ZASCA 2
;
1996 (3) SA 1
(SCA).
[17]
Philani-Ma-Afrika
and Others v Mailula and Others
[2009]
ZASCA 115
;
2010 (2) SA 573
(SCA);
[2010] 1 All SA 459
(SCA).
[18]
Also
see
Minister
of Police and Another v Gqada
[2023]
ZAECMKHC 69 paras 15-16, where the court held:
‘
The
test in
Zweni
is
easier stated than applied, hence in
Cronshaw
and Another v Coin Security Group (Pty) Ltd
the
question regarding when a decision is ‘interlocutory’,
and thus not appealable, or ‘final’,
and thus appealable
is ‘a question that has vexed the minds of eminent lawyers for
many centuries, and the answer has not
always been the same. The
question is intrinsically difficult, and a decision one way or the
other may produce some unsatisfactory
results’.
The
common law test for appealability has since been denuded of its
somewhat inflexible nature. Unlike before, appealability no
longer
depends largely on whether the order appealed against has final
effect or is dispositive of a substantial portion of the
relief
claimed in the main application. All of this is now subsumed under
the constitutional ‘interest of justice’
threshold.’
[19]
See
The
MV Urgup: Owners of The MV Urgup v Western Bulk Carriers (Australia)
(Pty) Ltd and Others
1999
(3) SA 500
(C)
at 515―
‘
These
subrules are both intended to cater for the situation where a party
knows or, at the very least, believes that there are
documents (or
tape recordings) in his opponent's possession or under his control
which may be relevant to the issues and which
he is able to specify
with some degree of precision. In the case of Rule 35(3) the
intention is to supplement discovery which
has already taken place,
but which is alleged to be inadequate. Rules 35(3) and (14) do not
afford a litigant a licence to fish
in the hope of catching
something useful.’
[20]
Herbstein
and Van Winsen
Civil
Practice of the High Courts and the Supreme Court of Appeal of South
Africa
5
ed (2009).
[21]
Ibid
at 814-815.
[22]
1999
(2) SA 279
(T)
at 321;
Rellams
(Pty) Ltd v James Brown & Hamer Ltd
1983
(1) SA 556
(N).
[23]
The
MV Urgup: Owners of the MV Urgup
above
n 19 at 515;
Continental
Ore Construction v
Highveld
Steel & Vanadium Corporation Ltd
1971
(4) SA 589
(W).
[24]
[2022]
ZAGPJHC 49 paras 29-32.
[25]
[2015]
ZASCA 155
;
2016
(2) SA 121
(SCA)
[2015];
4 All SA 571
(SCA)
para 18.
[26]
[2020]
ZAKZPHC 56 paras 2-12. Also see
Peacock
v SA Eagle Insurance Co Ltd
19991
(1) SA 589 (C).
[27]
General
Accident, Fire & Life Assurance Corporation Ltd v Goldberg
1912
TPD 494
at
504. See also
Competition
Commission of South Africa v Arecelormittal South Africa Limited &
Others
2013
(5) SA 538
(SCA)
para 21.
[28]
S
v Tandwa & Others
2008
(1) SACR 613
(SCA)
para 18.
[29]
Contango
Trading SA and Others v Central Energy Fund Soc Ltd and Others
2020
(3) SA 58
(SCA)
para 48.
[30]
Ibid
para 39.
[31]
Ibid
p
ara
51.
[32]
Ibid
para
54.
[33]
Ibid
para 10.
[34]
Above
n 29 para 48.
[35]
Ibid
para 29.
[36]
MEC
for Health, North West Province v Dumisani, MR oo BM; In Re:
Dumisani, obo BM v MEC for Health, North West Province
[2019]
ZANWHC 28
paras
12-14.
[37]
Zeffert
Evidence 732-746 and D1-468 to 469 Erasmus
Superior
Court Practice
service
5 (2017).
[38]
Practice
service
7 (2018).
[39]
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others,
Zuma and Another v National Director of Public Prosecutions
and
Others
[2008]
ZACC 13
;
2009
(1) SA 1
(CC);
2008
(12) BCLR 1197
(CC)
para
183.
[40]
Rellams
above
n 22 and
Webster
v Webster
1992
(3) SA 729
(ECD)
at 734A-B.
[41]
That
appears at page 72 of volume 1 at paragraph 4.
[42]
Banda
v Minister of Police
[2021]
ZAECGHC 55 paras 65 and 66 and the authorities cited therein with
approval.