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[2021] ZAGPPHC 425
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All G2 G Ltd and Others v van Rensburg and Others (59644/2020) [2021] ZAGPPHC 425 (25 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHERS
JUDGES: NO
(3)
REVISED
CASE
NO.: 59644/2020
In
the matter between:
ALL
G2 G LTD
FIRST
APPLICANT
CJ
PROFESSIONAL SERVICES
SECOND APPLICANT
MEADOWS
SALARY & ADMIN SERVICES (PTY) LTD
THIRD APPLICANT
and
KAREN
ELIZABETH JANSE VAN RENSBURG
FIRST RESPONDENT
ELMARIE
IBANEZ
SECOND
RESPONDENT
CAROL
JOUBERT
THIRD RESPONDENT
REASONS FOR ORDER
BASSON,
J
[1]
The first applicant (a
peregrinus
)
ALL G 2 G Ltd, is described as a private company incorporated in
terms of legislation in Ireland. The second applicant is CJ
Professional Services (Pty) Ltd a company incorporated in South
Africa and the third applicant is Meadows Salary and Admin Services
(Pty) Ltd. The second applicant is subcontracted to provide the
services to clients of the first applicant and the third applicant
provides administrative services to the second applicant in providing
the services to the first applicant (“
the
applicants”
).
[2]
The applicants brought an urgent application for
an interdict against the first respondent (Ms Karen Elizabeth Janse
van Rensburg),
the second respondent (Ms Elmarie Ibanez); and the
third respondent (Ms Carol Joubert) ordering them to return all
documents, information
and templates removed from the computers or
servers of the third applicant. The applicants further sought an
order interdicting
the respondents not to communicate with any party
whose contact information was illegally obtained from the computers
and/or servers
of the third applicant. The order in prayer two was to
operate as an interim interdict with immediate effect pending
finalisation
of an action to be instituted against the respondents
for damages suffered because of the “
theft”
of and utilisation of information removed from the computers and/or
servers of the third applicant.
[3]
The manager of all three applicants and a
director of both the first and third applicants (Ms Christina van den
Berg – “
the manager”
)
deposed to the founding affidavit on behalf of all three applicants.
She states in the founding affidavit that it came to her
attention
that the first and/or second and/or third respondent “
unlawfully
and with malicious intent, removed personal, sensitive and secret
information pertaining to clients of all three of the
applicants from
the third applicant’s computers and/or servers”
.
The information so “
stolen”
by the respondents contains information in relation to natural and
juristic persons’ financial affairs, physical addresses,
email
addresses, telephone numbers, tax numbers etcetera. She further
states that the attack on the computers was made solely in
an attempt
to pilfer clients from the applicants which, if allowed to continue,
will in future cause great and substantial harm
to the applicants.
[4]
It is common cause that the first and second
respondents were employed by the third applicant and that they both
resigned on 11
November 2020. They were (at the time of the
application) serving out their notice period without rendering any
services to the
third applicant. The third respondent was employed by
the third applicant but left her employment during February 2020. It
was
a term of their employment agreements that they undertake “
not
to disclose any confidential information to any third party or entity
during the duration of this agreement or after its termination
”.
Co-ordinated
resignations
[5]
The manager explains that on 15 November 2020, Mr
Herman Boshoff (“
Boshoff”
),
the IT Support Consultant employed by the applicants, provided her
with a report on the activities of the computers of the second
and/or
third applicant which were used by them up until their resignations.
The report is annexed to the papers ostensibly as annexure
“F”
(as “F1” – “F48”). According to the
report the first and second respondents discussed
and coordinated
their respective resignations and that they had arranged to meet
privately after work. To this effect, the applicants
attach email
correspondence between them which was found on their computers but
subsequently permanently deleted from the server.
[6]
The manager then states that the respective
resignations were discussed between the first and second respondents
and “
coordinated”
.
Attached to the papers is the IT report that claims that this is
evident from comparing the two resignation letters. I fail to
see how
this so-called “
coordination”
is relevant having regard to the relief sought in the Notice of
Motion.
The
e-mail
[7]
The IT specialist (Boshoff) reported that he
found an email in the
deleted
folder of the second respondent’s computer which she intended
to be sent to her private email address with the subject of
JH/Steel-Rock (which is upon perusal of the e-mail is not the correct
heading of the e-mail). Boshoff records three things: Firstly,
this
email was permanently deleted. Secondly, the email had attached to it
“
company digital property”
.
Thirdly, the IT Specialist, then takes it upon himself - whilst
referring to the second respondent as “
suspect
2”
, to draw a conclusion that “
she
was busy disclosing the company’s Digital Intellectual
Property, to be used to their own intent causing enormous damage
to
the company
”. These comments by the IT
Specialist, are, to say the least, peculiar. On the one hand Boshoff
simply draws the conclusion
that she intended to use the information
whilst on the other hand he confirms that the email has never been
sent. Briefly, this
email informs the recipient,
inter
alia
, that his “
director
fees have substantially diminished over the months due to the fact
that companies are put “In Receivership”
due to late payments from the client, but you
never receive payments retrospectively
”.
[8]
The manager concludes somewhat dramatically that
the conduct on behalf of the respondents constitutes “
grand
scale larceny”
and theft of “
stolen
information to the detriment of all three applicants”
.
She further refers to this email as “
vindictive
propaganda”
and states that the third
respondent used information that was provided to her “
resultant
from the aforementioned theft”
. She
then states that the “
third”
respondent forwarded this email “
to what
currently looks like the entirety of the applicants’ list”
.
[9]
There is simply no basis for this allegation
since the email has never been sent and has in fact been permanently
deleted. To this
end and on 20 November 2020, the respondents’
attorneys sent a letter to the applicants’ attorneys (attaching
a notice
of intention to oppose) to specifically advise the
applicants’ attorneys that the draft email referred to in the
founding
affidavit has not been sent – something that the
applicants in any event knew as they were so informed by the IT
Specialist
in his report.
[10]
The applicants submitted that the mere fact that
the respondents are in possession of the information is a serious
infringement
of their rights and will cause irreparable harm to the
reputation of the applicants. Moreover, the respondents’
conduct will
also attract liability towards clients and the like for
breach of confidentiality as personal, secret and protectable
information
are now out in the open.
The
Walker discussion
[11]
The manager further claims that the applicants’
attorneys received a phone call from a colleague (Mr Walker)
informing them
that he (Walker) had received a phone call from the
third respondent (who was in the presence of the second respondent)
and requested
certain information pertaining to the applicants “
in
order to use in their new business”
.
Although the second and third respondents admit that they had a
discussion with Walker, they deny that they had requested such
information.
[12]
On the papers therefore, no case has been made
out for the relief sought in the Notice of Motion particularly
considered against
the allegation made in the Founding Affidavit that
the information “
stolen”
relates to “
natural and juristic
persons’ financial affairs, physical addresses, email
addresses, telephone numbers, takes numbers, nationality
and business
affiliations
.” The email had been
deleted.
[13]
Regarding the relief sought in paragraph 2.1 of
the Notice of Motion. None of the respondents have in the possession
or under their
control the information. In the circumstances the
respondents were thus unable to provide the undertaking sought in the
Notice
of Motion as they were unable to return or utilise information
which was not in the possession or under their control. The
respondents
further undertook that they would not communicate with
any party whose contact information emanates from the third applicant
and
further indicated that they were prepared to provide such an
undertaking given the fact that they were not in possession of the
information. Accordingly, they also submitted that there was no need
for the applicants to have launched the urgent application.
[14]
There is also a further reason why the
application cannot succeed and that relates to the manner in which
the evidence relied upon
by the applicants was obtained. In their
reply, the applicants deny the hacking attempts and state that the
first and second respondents
were still logged in on the office
computers of the third applicant and therefore the information was
obtained by merely having
a look thereon. I will return to this
issue.
[15]
Pursuant to the replying affidavit, the
respondents brought a strike out application in respect of
allegations contained in the
replying affidavit. I will return to
this issue where I deal with that application. But before I do so, it
is necessary to briefly
deal with other ancillary issues raised in
the papers.
Peregrinus
[16]
I have already referred to the fact that the
first applicant is a
peregrinus
and
that a notice in terms of rule 47(1) was served on the applicant on
21 November 2020 in which it sought security for costs.
An order for
security of costs was granted.
Issues
raised in the respondents’ answering affidavit
[17]
The respondents submitted that the application
was not urgent and that the applicants have failed to comply with the
provisions
of rule 6(12)(b) of the Practice Manual; that the
respondents have failed to make out a case for the relief sought in
the Notice
of Motion; that the relief sought in the Notice of Motion
constitutes in effect final relief; that the material disputes of
fact
cannot be resolved on the papers; that the applicants have
deliberately omitted to attach annexure F22 – F48 to their
papers
and that their failure to do so severely prejudiced the
respondents in that they are unable to deal with, what the applicants
contend
to be “
material evidence”
.
[18]
The applicants also concede in its reply that
various annexures to the application were not attached but claimed
that in light of
the fact that the respondents have already been in
possession thereof they would not be prejudiced. This argument has no
merit
as the failure to attach documents deprived this court of the
opportunity to peruse the annexures as it is entitled to do in
preparing
for the hearing.
[19]
Although there is merit in most of these
submissions, I have nonetheless exercised my discretion to regard the
matter as urgent
and consider the matter. I am not, as already
pointed out, persuaded that the applicants have made out a case for
the relief sought
in the Notice of Motion.
The
retrieval of the e-mails from the respondents’ computers
[20]
Before I turn to the strike out application, it
is necessary to briefly set out what transpired after the resignation
of the two
respondents (on 11 November 2021). The second respondent
states in her answering affidavit that, when she and the first
respondent
returned from lunch, they were unable to log on to their
assigned computers and were informed that the passwords had been
changed.
They were also informed that they were no longer permitted
to use the computers.
[21]
Both were also later informed by a Labour
Specialist acting on behalf of the third applicant that they would be
searched. They were
then publicly searched in the presence of all
colleagues in the office but no documents or other items were found
in their possession.
[22]
The second respondent sets out facts that point
to suspicious activity on her computer as from 15 to 17 November
2020. She explains
that there had been a series of disconcerting and
suspicious activities experienced by all the respondents which appear
to constitute
unlawful attempts by the applicants to gather
information and support of this application. For example, on 17
November 2020 the
second respondent received the notification from
Microsoft alerting her to the fact that there had been “
unlawful
sign in-activity”
in relation to her
private email account. On 17 November 2020 the first respondent
received a similar notification from Yahoo.
The first respondent
confirms that she was not attempting to sign in on her private
account at that time. On 17 November 2020 the
third respondent
received a similar notification from Dropbox requesting her to verify
whether it was her signing in.
[23]
The respondents claim that they have every reason
to believe that someone employed or contracted by one or more of the
applicants
attempted to gain access to their personal email accounts
and in the case of the third respondent, her Dropbox account.
The
strike out application
[24]
The
respondents filed an application to strike out portions of the
applicants’ replying affidavit and annexures thereto on
the
grounds that (i) the evidence is inadmissible and/or was illegally or
improperly obtained and is protected by legal professional
privilege
and/or litigation privilege; (ii) the evidence is inadmissible and/or
was illegally or improperly obtained counter to
the provisions of
sections 11 and/or 15 and/or 18 of the Protection of Personal
Information Act
[1]
and/or (iii)
section 2 of the Regulation of Interception of Communications and
Provision of Communication-Related Information Act
[2]
(RICA) and/or (iv) sections 86(1) and/or 86(4) of the Electronic
Communications and Transactions Act.
[3]
The offending paragraphs in the replying affidavit and the annexures
thereto relate to (i) the email chain attached as annexure
RO1 to the
replying affidavit; (ii) paragraphs 5.3, 5.4, 5.5, 5.6, 6.3 and 13 of
the replying affidavit; and (iii) the supporting
affidavit of
Boshoff. The applicants (in the strike out application) also seek the
costs of this application.
[25]
The deponent to this application is Mr Willans
(Willans), an admitted and practising attorney and a director of
Werksmans Inc (Werksmans).
He is the attorney representing the
respondents. He explains that he consulted with certain witnesses
including a Mr Hester and
a Ms Meister in preparation of the
answering affidavit. The trail of emails between Willans (on the
letterhead of Werksmans) and
the individuals copied therein somehow
found their way to the applicants’ replying affidavit and is
also attached thereto.
The applicants also rely on this email for the
relief sought in the Notice of Motion.
[26]
Boshoff is candid about the fact that he
downloaded the email by accessing the respondents’ erstwhile
work computers. According
to him, their email accounts were still
logged in and that is how he got access to the respondents’
private email accounts.
By the applicants’ own admission
Boshoff thus accessed such legal privileged communication by
accessing the first and second
respondents’ personal email
accounts without their knowledge and consent. The fact that Boshoff
accessed it from the respondents’
erstwhile work computers does
not give Boshoff nor the applicants the right to access the
respondents’ private email accounts
and download any email they
perceive may assist them in their litigation against the respondents.
A private email account is precisely
that: It is private.
[27]
Willans claims that the contents of the email
exchange (attached to the replying affidavit and marked RO1), is
protected by legal
professional privilege and/or legal privilege. By
unlawfully accessing the respondents’ private email accounts,
it would
appear that the applicants have been privy to all emails
received and sent by the first and second respondents through their
personal
email accounts since their resignation on 11 November 2020
and in circumstances where the applicants are litigating against the
respondents. This undermines the very principle of legal professional
privilege and/or litigation privilege and, in addition thereto,
is in
contravention of the various acts referred to hereinabove.
[28]
Willans further explains that on 20 November 2020
he addressed a letter to the applicants’ attorneys in which he
recorded
that the facts now adduced in the replying affidavit was
inadmissible and/or illegally or improperly obtained and invited the
applicants
to retract annexure RO1 to the replying affidavit together
with the paragraphs referred to hereinabove and the supporting
affidavit
by Boshoff. The applicants were further invited to provide
the respondents with a list of all communications in their clients’
possession that have been accessed from the personal email accounts
of the first and second respondents and to immediately seize
monitoring and accessing their personal email accounts. The
applicants’ attorneys failed to respond to the letter.
[29]
It was submitted on behalf of the respondents
that they would be severely prejudiced if the court does not strike
out the offending
evidence.
[30]
I agree with the submission that these actions
undermine the very principle of legal professional privilege and/or
litigation privilege.
Further, this conduct is unlawful in that it
contravenes the legislation referred to herein above. The court
cannot ignore the
respondents’ allegations that shortly prior
to the receiving the application, there were a series of suspicious
activities
of persons attempting to sign in into the first and second
respondents’ emails and into the third respondent’s
Dropbox
account. The most plausible inference to be drawn from what
they state in their answering affidavit is that some person employed
or contracted by one or more of the applicants attempted to
unlawfully gain access to these accounts. The fact that these
attempts
were made shortly before the respondents were served with
the urgent application certainly supports this inference. Having
regard
to the emails attached to the replying affidavit, this
inference certainly now appears to be correct. The applicants have
unlawfully
gained access to the respondents’ email accounts. To
make matters worse, they downloaded privileged communication between
clients and their legal representative.
[31]
In its opposing affidavit (to the strike out
application), the applicants state that the information sought to be
withheld from
the public domain is not privileged in that it refutes
the allegations made in the opposing affidavit: It shows that the
respondents
were in fact in possession of the applicants’
information. It is further submitted that the communications were not
sent
in confidence to a client and even if it was, the
confidentiality had been lost in that it is now in the possession of
third parties.
Also, under the prevailing circumstances, it can never
be in the interests of justice if a blatant lie cannot be exposed as
the
respondents have now attempted to do. In the event the applicants
submitted that the striking out application stands to be dismissed
with costs.
[32]
Having regard to the confirmatory affidavit of
Boshoff, it is clear that he has been requested to access the
computers which was
used by the second respondent during their
employment. He states that he merely printed the emails and that is
“
how I got access to the information
used in this Application”
.
[33]
Section 2 of the
Regulation of Interception of Communications and Provision of
Communication-Related Information Act clearly provides
as follows:
“
2
Prohibition of interception of communication
Subject
to this Act, no person may intentionally intercept or attempt to
intercept, or authorise or procure any other person to
intercept or
attempt to intercept, at any place in the Republic, any communication
in the course of its occurrence or transmission.”
RICA
further gives a wide definition of “intercept”:
'intercept'
means
the aural or other acquisition of the contents of any communication
through the use of any means, including an interception
device, so as
to make some or all of the contents of a communication available to a
person other than the sender or recipient or
intended recipient of
that communication, and includes the-
(a) monitoring
of any such communication by means of a monitoring device;
(b) viewing,
examination or inspection of the contents of any indirect
communication; and
(c)
diversion
of any indirect communication from its intended destination to any
other destination, and
'interception'
has
a corresponding meaning;”
[34]
There
was some debate about whether the judgment in
South
African Airways Soc v Bdfm Publishers (Pty) Ltd and others
[4]
(SAA)
finds application. Although I agree with the exposition of the legal
principles pertaining to legal privilege (more in particular
legal
advice privilege), the facts of that matter are completely
distinguishable from the facts in the present matter. In
SAA
the
applicant claimed legal advice privilege in circumstances where the
document relied upon was already in the public domain by
virtue of
having been published on the internet. The court quite aptly
remarked: “
Once
confidentiality shattered, like Humpty Dumpty, it cannot be put back
together again
”.
[5]
[35]
Mr Botes argued on behalf
of the applicants that the document is now in the public domain and
in the hands of third parties and
therefore that legal privilege
cannot be claimed in respect of the attached emails. Although it is
accepted that the information
in a document that is privileged may
become lost, this is not one of those instances where, in my view,
the world has come to know
of the information contained therein. The
email was unlawfully retrieved from a private email account and very
soon thereafter
attached to the replying affidavit. The respondents’
attorney immediately reacted to the attachment and proclaimed their
right to privilege. Having regard to the manner in which
the
emails were obtained and the fact that confidentiality has been
claimed immediately upon receiving the replying affidavit and
the
fact that the court papers are disseminated to the immediate parties
to the litigation only, it cannot, in my view, be said
that the
information contained in the email is now somehow in the public
domain. T
he court in
SAA
deals with the issue of legal privilege in detail, I will suffice
with the following quote from the judgment:
“
[45]
The point of departure is to identify exactly what is meant by the
concept of 'privilege' in the context of the taking of legal
advice.
With the possible exception of s 201 in the
Criminal Procedure Act 51
of 1977
, the idea of a legal right to the confidentiality of
communications between a client and a legal advisor is judge-made
law.
As such the rationale for the idea of privilege has evolved over
time in response to judicial perceptions and evolving social mores
about how court proceedings might appropriately be conducted. In our
era it is incontrovertible that the 'right' vests in
the client.
Also, it is clearly recognised that there are two subspecies of this
right. One is called legal professional privilege,
or legal advice
privilege. I prefer the label of legal advice privilege on the
grounds that this phrase actually tells one what
it is about, whilst
the former phrase demands further explanation. The other subspecies
is litigation privilege, which label too
is self-explanatory.
What SAA claims is legal advice privilege.”
[36]
The applicants also make the point in their
opposing affidavit that somehow it is not in the interest of justice
to grant protection
to the status of the email if it exposes a
“
blatant lie”
.
I do not agree that it is now somehow in the interests of justice
that the information contained in the email that has been illegally
obtained, could now be used.
[37]
Also,
the emails relied upon, clearly constitute correspondence between an
attorney and clients / individuals copied into the email.
In this
email Willans gives legal advice to the recipients of the email in
that he points out that certain issues must be clarified
before
considering whether the matter should be taken forward. The
correspondence also deals with the issue whether an affidavit
will
have to be deposed to by a Ms Supra, and if so, whether she would be
prepared to do so. It is also discussed that they will
have to
consider in respect of Ms Supra whether she in fact has knowledge and
information about the hacking of the computers. This
line of
correspondence, at the very least, discusses the legal approach that
must be considered in the midst of litigation between
the parties. In
fact, Willans specifically states in one of the emails that their
strategy and way forward will have to be worked
out. I am therefore
persuaded that privilege whether it is termed legal professional
privilege or litigation privilege or legal
advice privilege satisfies
the test of being “
(1)
legal advice; (2) given by legal adviser; (3) in confidence to the
client and (4) is claimed”
.
[6]
[38]
In the event, the striking application as per the
prayers contained in the Notice of Motion is granted. The application
to strike
out is therefore dismissed with costs, such costs to
include the costs occasioned by the employment of senior counsel.
AC
BASSON
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Electronically
generated and therefor unsigned
Delivered:
This judgment (reasons for the order) was prepared and authored by
the Judge whose name is reflected and is handed
down electronically
by circulation to the Parties/their legal representatives by email
and by uploading it to the electronic file
of this matter on
CaseLines. The date for hand-down is deemed to be 25 June 2021.
APPEARANCES
For
the 1
st
, 2
nd
& 3
rd
Applicant:
ADV. F BOTES SC
ADV. D A DE KOK
Instructed
by:
LANGENHOVEN PISTORIUS MODIHAPULA ATTORNEYS
For
the Respondents:
ADV. M M ANTONIE SC
Instructed
by:
WERKSMANS ATTORNEYS
Date
of hearing:
25 November 2020 (virtual hearing)
[1]
Act 4 of 2013.
[2]
Act 70
of 2002.
[3]
Act 25
of 2002.
[4]
2016
(2) SA 561 (GJ).
[5]
Ibid
ad para 39.
[6]
Ibid ad para 46.3.