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[2019] ZAKZDHC 23
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Chard v Old Mutual Insure Limited (A66/2017) [2019] ZAKZDHC 23; [2020] 1 All SA 381 (KZD) (30 September 2019)

IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
(Exercising its
Admiralty
Jurisdiction)
Case
No: A66/2017
Name of ship:
mv ‘Rascal’
In the matter
between:
Russel
Chard

Applicant
and
Old Mutual Insure
Limited

Respondent
Judgment
Lopes J:
[1]
This is an application, in terms of rule 35(6) of the Uniform Rules
of this Court, to compel the delivery
of certain expert reports. The
applicant is Russel Chard (Mr Chard) who is the owner of the mv
‘Rascal’ (‘the
vessel’), which partially sank
in the Durban Marina, and sustained damage, including damage to its
engines.  The following
issues are common cause between the
parties:
(a)
A contract of insurance was concluded between Mr Chard and the
respondent, Old Mutual Insure Limited
(‘Old Mutual’),
(previously named Mutual and Federal Insurance Company Limited), in
June, 2007. That contract was renewed
from time to time.  In
March 2016 the contract was amended to cover the vessel in terms of a
renewed schedule and Old Mutual’s
pleasure craft policy.
(b)
The vessel partially sank on the 3
rd
January 2017,
resulting,
inter alia
, in the vessel’s engines being
submerged in salt water.
(c)
Mr Chard gave the necessary notifications to Old Mutual and claimed
an indemnity for his loss
as a result of the sinking.
(d)
The sinking is an insured peril covered by the insurance policy.
(e)
Mr Chard alleges that following the appointment of an assessor and a
technician by Old Mutual,
they negligently caused the damaged engines
to be started and operated, without following the procedures for
doing so where engines
have been damaged by salt water immersion.
(f)
On the 27
th
October 2017, Old Mutual tendered the sum of R1 589 272.06 in full
and final settlement of Mr Chard’s loss.
[2]
The issue between the parties in the action is whether the vessel, as
a result of the sinking, became a constructive
total loss, or whether
Old Mutual is only liable to pay to Mr Chard the reasonable cost of
repair of the vessel, or the reasonable
sound market value thereof,
which Old Mutual contends is in the amount tendered.
[3]
Pursuant to the sinking of the vessel, various experts were appointed
by both parties to investigate
the cause of the sinking.  It is
the Old Mutual’s expert’s reports which form the subject
the matter of this application.
Mr Chard claims, in terms of
rule 35 (6) of the Uniform Rules of this Court, delivery of the
following:
(a)
The assessment report of the mechanical engineer, Johan Bekker;
(b)
The assessment report of the investigator, Martin Blomeyer;
(c)
The assessment report of the insurance assessor, DW Miller; and
(d)
Correspondence between Old Mutual and DW Miller.
[4]
Old Mutual maintains that it is not obliged to disclose any of the
documents sought by Mr Chard because
it is entitled to raise the
defence of litigation privilege.
[5]
Once the usual three sets of affidavits had been delivered, Old
Mutual sought to clarify and amplify
its answering affidavit in a
further affidavit dated the 2
nd
May 2019. That affidavit,
inter alia,
discloses that only the assessment reports of
Messrs Bekker (dated the 17
th
September, 2017), Blomeyer
(dated the 10
th
April 2017 and the 2
nd
May
2017), and the correspondence between Mr Miller and Old Mutual after
the 7
th
March 2017 remain in issue. Mr Chard did not
oppose the admission of that affidavit, choosing instead to reply to
it. Both sets
of additional affidavits form part of the application
papers.
[6]
The relevant background to the production of the expert reports is
not entirely clear, partly because
of the confusing manner in which
some of the emails are presented. The following, however, emerges
from the affidavits:
(a)
The vessel sank on the 3
rd
January 2017.
(b)
A loss adjuster, Mr D W Miller was appointed by Old Mutual on the
17
th
January 2017.  It is evident from the
correspondence that he was going to investigate the state of the
engines of the vessel,
and Old Mutual avers that he was instructed to
investigate the circumstances of the sinking, to consider the
possibility of the
unseaworthiness of the vessel, and to propose any
appropriate adjustments to the claim.
(c)
On the 24
th
January 2017 Mr Miller requested photographs
of the extent to which the engines were submerged.
(d)
On the 6
th
February 2017 Mr Chard sent an email to the
deponent to Old Mutual’s affidavits (Mr Ramtahar), informing
him that he had
met with Mr Miller and the technicians involved in
inspecting the engines.  Mr Chard raises the point that although
the boat
can be repaired, no guarantee can be given on the engines.
(e)
On the 9
th
February 2017 Mr Miller emailed Mr Chard
raising the issue of a guarantee for the repair of the engines.
This also notified
Mr Chard that the propeller of the vessel had been
removed and that that could form the subject of a separate claim
(possibly theft)
by Mr Chard.
(f)
On the 14
th
February 2017, Mr Chard expressed his concern
at the procedure in examining and repairing the engines.  His
view was that
the engines should have been removed and only opened on
a work bench by suitably qualified and authorised Volvo engine
technicians.
(g)
On the 16
th
February 2017 a conference call was held
between Mr Chard and Mr Miller.  After that call, Mr Miller
notified Mr Chard that:
(i)
Mr Miller and Old Mutual had no problem with the carrying out of a
diagnostic check
of the engines;
(ii)
If the engines were considered satisfactory after completing
successful sea trials, Old
Mutual would be informed that the engines
had not sustained any long term damage;
(iii)
There was the possibility of future electrical problems with the
engines, which Old Mutual may
wish to guarantee, and had apparently
agreed to do;
(iv)
Old Mutual had funded the initial investigations into the condition
of the engines, and had made a request
‘for the balance of the
work to be carried out’.
(h)
On the 21
st
February 2017 Mr Miller confirmed to Mr Chard
that Old Mutual would pay for certain items of equipment required to
start the engines
in order to inspect and test them.
(i)
On the 1
st
March 2017 Mr Chard wrote to Mr Miller and Old
Mutual stating that he would appoint a private investigator to
investigate the original
sinking in Durban; the disappearance of his
propeller; allegations that there been a break-in into the engine
room causing damage
to the vessel; and other allegations.  In
this letter, for the first time, Mr Chard indicated that he would
follow the process
all the way ‘to prosecution’. What is
not clear is whether this is an indication of an action against Old
Mutual, or
a criminal prosecution for malicious damage against ‘a
certain named individual’.  On balance it appears to be
a
reference to the latter.
(j)
On the 6
th
March 2017 Mr Chard appointed an investigator,
Mr Shaun O’Brien, and requested Mr Miller’s final
assessment report
and copies of all invoices for the work done on the
vessel to date.
(k)
Old Mutual engaged its own Specialist Investigation Unit, and Mr
Blomeyer was appointed
to investigate the claim. Mr Bekker was
engaged to assist Mr Blomeyer. On the 7
th
March 2017, Mr
Chard was first made aware that Old Mutual would not release Mr
Miller’s report to Mr Chard.  In an email
Mr Miller
indicated that he had already discussed the matter with Mr O’Brien
who would in any event, be aware of the contents
of his report
following their meeting.  This did not refer to a copy of a
document, but rather to what they had discussed.
(l)
On the 8
th
March 2017 two representatives of Old Mutual,
and Mr Chard, held a meeting at which it was agreed that a duly
appointed Volvo engine
agent would take over the work on the engine
repairs, a diagnostic test would be carried out on the engines
without delay, and
Mr Miller would assist with the logistics and the
provisions of necessary parts to the persons carrying out the test.
It
was also agreed that Mr Miller would be present during the test.
(m)
On the 15
th
March 2017 Mr Blomeyer emailed Mr Chard,
describing himself as a ‘Claims Evaluator’, employed in
the ‘Claims
Support Services’ department of Old Mutual.
He stated that he would be present when the vessel’s engines
were
stripped.  He also undertook to keep Mr Chard updated as
the matter progressed.
(n)
Eventually, on the 16
th
March 2017 the vessel was taken
out of the water for the engines to be removed and stripped, as
anticipated.
(o)
Mr Bekker, who is a mechanical engineer, also recommended that the
engines be removed from the
vessel and be stripped.
(p)
Further correspondence was exchanged between the parties and Mr
Gounden, who had been responsible
for stripping and examining the
engines, reported that because the engines has sustained serious
damage, his advice was to replace
them both.
(q)
On the 20
th
April 2017 Mr Ramtahar emailed Mr Chard,
stating that they were waiting for the final report from the SIU
(Special Investigations
Unit), after which Old Mutual would revert
with a decision. Mr Blomeyer, reading in copy, was asked when the
final report could
be expected.
(r)
In the emails exchanged between Mr Chard and Mr Ramtahar concerning
the value of the
vessel, the issue was raised whether the policy
provided for a payment on the basis that the vessel might be a total
constructive
loss.  It seems probable that at that stage Old
Mutual must have been in possession of a report from Mr Blomeyer on
the state
of the engines.
(s)
Summons was issued by Mr Chard against Old Mutual on the 29
th
August 2017. Old Mutual pleaded on the 11
th
October 2017.
[7]
Mr
Voormoolen
SC submitted that the attitude of Old Mutual as
disclosed in its answering affidavits is that all correspondence
between and Mr
Miller and Old Mutual after the 7
th
March
2017 is privileged. He submitted that litigation privilege protects
communications between a litigant or his legal advisor,
and a third
party, only where such communications are made for the purpose of
pending or contemplated litigation.  In order
to claim
litigation privilege two aspects have to be established:
(a)
the document must have been obtained or brought into existence for
the purpose of the litigant’s
submission to a legal adviser for
legal advice; and
(b)
there must be pending proceedings or proceedings  contemplated
as likely at the time.
See:
Competition Commission of South Africa v Arcelormittal SA Ltd &
others
2013 (5) SA 538
(SCA), paras 20-21.
[8]
Mr
Voormoolen
submitted that at para 22 of
Competition
Commission
, the Supreme Court of Appeal left open the question
whether it was enough for the litigation privilege to apply if the
information
conveyed to the legal adviser was for a ‘definite’
purpose or whether our common law should be developed to accord with

other jurisdictions which require that such information be the
‘dominant purpose’ of obtaining legal advice.
In
this regard Mr
Voormoolen
invited me to extend our common law
on the basis that the present state of affairs does not promote the
spirit and purpose and
objects of the Bill of Rights contained in our
Constitution.  In terms of our common law, the purpose of
conveying the information
to the litigant or their legal advisor must
be for obtaining advice. It must be for a ‘definite purpose’
(but not the
only purpose or the dominant purpose). Only then, is the
information protected from disclosure.
[9]
Mr
Voormoolen
submitted that Old Mutual bore the onus of
establishing the requirement of legal privilege, and in this case had
not demonstrated
that the purpose of conveying the information was
either for a definite purpose or the dominant purpose of obtaining
advice with
regard to intended litigation.  He drew attention to
the fact that in Old Mutual’s answering affidavit Mr Ramtahar
stated:
‘
16.
As such, it was reasonably foreseeable that upon the repudiation of
the claim or
alternatively
the
admission thereof via a tender for payment of a lesser amount, the
Applicant was prone to challenge either such decision through
the
forum of litigation.  Thus, the reports were procured for the
purposes of not only investigating the claim, but also in
respect of
substantiating the repudiation of the claim or
alternatively
justifying the payment of a lesser amount and, in turn to form the
basis of a legal defence. Litigation was clearly contemplated

especially in light of the stance adopted by the Applicant. The
Applicant has confused the timing of the issue of Summons with
the
contemplation of litigation and in this regard the reports were
prepared in contemplation of litigation.
17.  Having
regard to the aforegoing, the reports were commissioned for the sight
of the Respondent’s legal advisers
and considering the
circumstances surrounding the incident, litigation was likely
contemplated as early as January 2017, when the
loss adjuster was
first appointed by the Respondent’.
[10]   In
Old Mutual’s answering affidavit, Mr Ramtahar also draws
attention to the fact that both parties had reserved
their legal
rights in correspondence exchanged as early as May 2017.  He
submits that in the circumstances it is clear that
litigation was
contemplated as early as January 2017 and by the latest in May 2017.
[11]   Mr
Voormoolen
submitted that the answering affidavits give no
indication of the nature of the legal advice sought, or how the
reports that were
proffered by the various experts are linked to that
advice.  Mr
Voormoolen
invited me to accept that,
although the purpose for which reports had been obtained have
variously been described as the dominant
purpose, the sole purpose or
a definite purpose by various courts, I should hold that the ‘real
purpose’ of conveying
the information to a legal representative
must be to obtain legal advice with regard to likely or contemplated
litigation.
In other words the real purpose for obtaining a
report from an expert must be to obtain legal advice from a legal
representative.
Only then will legal privilege attach. In the
instance where an expert report is obtained, and then later given to
a legal representative,
the legal privilege does not attach.
[12]   Mr
Voormoolen
referred to the trends in England, Wales and
Australia where those jurisdictions incline to the view that if a
report is prepared
for more than one purpose, unless the dominant
purpose is the obtaining of legal advice, the documents are not
privileged.
He submitted that a good example of where legal
privilege would attach is where an insurance company instructs
attorneys to defend
a claim, and the attorneys themselves appoint
assessors.  However, even then it may not necessary be for the
purpose of litigation,
but is perhaps likely to be so.  These
jurisdictions also examine the facts in order to make a determination
on an objective
basis, and do not merely rely upon the averment of
the participants.
[13]   Mr
Voormoolen
stressed the importance of the basis for privilege
which is that litigants must be free to make a clean breast of
matters to their
legal representative.  If privilege is to be
claimed, then the onus is on the party claiming privilege to
establish it.
[14]   Mr
Voormoolen
drew attention to the importance of the dates upon
which the various persons who produced reports were appointed. He
stressed that
the persons were appointed to advise Old Mutual on
aspects of the claim, at a time when litigation was not contemplated.
The fact
their reports may have been delivered at a later stage –
ie. September 2017 in the case of Mr Bekker, does not mean the
litigation
only had to be anticipated at that stage. It is the time
when the experts are appointed, when the litigation is contemplated
that
is relevant to determining the privilege. That determination
depends, in turn, upon the purpose of the appointment: was it to help

determine the claim? Or was it in contemplation of litigation, and
with the object of obtaining legal advice?
[15]
Mr
Wallis
, who appeared for Old Mutual, agreed that for the
defence of litigation privilege to succeed, the two requirements set
out in
Competition Commission
must be satisfied.
[16]   The
intention of the party requesting the document is decisive of the
party’s intention, and not the intention
of the party creating
the document. A court will not lightly go behind the averments in a
party’s affidavit in order to investigate
with regard to that
party’s intention when the report was requested. For these
submissions Mr
Wallis
relied on
Competition Commission
.
[17]   Mr
Wallis
relied on
Re Highgrade Traders Ltd
[1984] BCLC
151
(CA) for authority that where there is a duality of purpose by
the insurer wishing to obtain the advice of their legal
representatives,
and also to ascertain the cause of the insured
event, the privilege would attach.
[18]   Mr
Wallis
denied that any development of the common law is
necessary in circumstances where
Competition Commission
had
been decided well after the Constitution, and foreshadowed no such
shortcoming or need for development. He submitted that litigation
had
been suggested by Mr Chard as early as January 2017, when the loss
adjustor was appointed, and at the latest by May 2017.
[19]   Mr
Wallis
submitted that the law as set out in
A Sweidan and
King (Pty) Ltd & others v Zim Israel Navigation Co Ltd
1986
(1) SA 515
(D) at 519 does not require a ‘real purpose’,
and accepts that a document may be privileged where litigation is not

the sole or dominant purpose for its creation. He pointed out that
Booysen J rejected the ‘dominant purpose’ argument
and
referred to a ‘definite purpose’. This judgment was
approved in
Competition Commission
para 24, and by Vahed J in
Ascent Mining Services CC v Richards Bay Minerals
(3412/2011)
[2014] ZAKZDHC 17 (2 May 2014) para 48.
[20]   The
South African authorities may be viewed from:
(a)
General Accident, Fire and Life Assurance Corporation, Ltd v
Goldberg
1912 TPD 494.
Here a claim of privilege was
refused. At that stage our rules were taken directly from the English
rules, and our courts
were guided by decisions of the English Courts
given on those rules – information obtained by or for a
professional legal
advisor for the purpose of advising a client as to
the prosecution or defence of an action, or for advising the client
on whether
a claim should be made or defended, is privileged. The
purpose of the rule is to protect attorney/client privilege. With
regard
to the contemplation of litigation, Mason J stated at 504:
‘
It
is not a question whether a man is very nervous or suspicious that
there may be litigation, and that if he is so nervous and
suspicious
he is to be protected in respect of the document, whereas if he is
not nervous and suspicious he is not to be protected.
There must be
really some contemplated litigation, some fact to indicate that
litigation is likely or probable. It must not be
a mere possibility
which there is nothing to lead one to believe would be converted into
reality according to the facts of the
case.’
(b)
In
Sweidan
, Booysen J accepted that as long as the production
of the report was,
inter alia,
for the definite purpose of
receiving legal advice in pending or contemplated litigation, it
mattered not that there may have been
other purposes for preparing
the report. It need not be ‘at least the sole or primary
purpose’ as long as it is for
a definite purpose.
(c)
In
Competition Commission
, para 30 Cachalia JA, quoting from
United Tobacco Companies (South) Ltd v International Tobacco
Company of South Africa
1953 (1) SA 66T
at 72H, reinforced the
view that courts ‘will not lightly go behind averments in an
affidavit to the effect that the likelihood
of litigation was
contemplated when the document was procured’.   The
point was also emphasised that it is the
intention of the person
under whose authority a document is requested which is important, and
not the intention of the person who
actually prepares the report.
[21]   In
Competition Commissioner
, Cachalia JA stated:
‘
[20]
Litigation privilege is one of two components of legal professional
privilege, the other being the privilege
that attaches to
communications between a client and his attorney for the purpose of
obtaining and giving legal advice. Litigation
privilege, with which
we are concerned in this case, protects communications between a
litigant or his legal advisor and third
parties, if such
communications are made for the purpose of pending or contemplated
litigation. It applies typically to witness
statements prepared at a
litigant’s instance for this purpose. The privilege belongs to
the litigant, not the witness, and
may be waived only by the
litigant.
[21] Litigation
privilege has two established 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.
[22] There is some
uncertainty as to whether documents prepared for litigation must have
submission to legal advisors as their sole
purpose, substantial
purpose, definite purpose or dominant purpose. A suggestion that the
document must have been prepared substantially
for that purpose was
rejected as having been based on a misreading of earlier authority.
In
A Sweiden and King v Zim Israel Navigation
, Booysen J said
it suffices if it is a definite purpose, whether there are other
purposes or not. He considered that the weighty
authority of the
House of Lords in the seminal case of
Waugh v British Railways
Board
, which adopted the dominant-purpose test, did not accord
with our practice. The dominant purpose test has since been applied
in
Canadian and Australian courts. And the parties appear to adopt it
in their submissions.
[23] It is, however,
not always apparent what the definite or dominant purpose is. In
Waugh
, where the two purposes of a document carried equal
weight, the court found that no dominant purpose attached to the
document and
it was therefore not protected by litigation privilege.
But the courts have also looked at these separate or dual purposes as
part
of a single overarching purpose related to litigation. So where,
in
Re Highgrade Traders Ltd
, insurers had commissioned reports
to establish the cause of a fire that had destroyed an insured’s
business the Court of
Appeal was not prepared to find separate
purposes. Instead it said the following:
“
What
then is the purpose of these reports? The learned judge [a quo] found
duality of purpose because, he said, the Insurers wanted
not only to
obtain the advice of solicitors, but also wanted to ascertain the
cause of the fire. Now, for my part, I find these
two quite
inseparable.” (Footnotes omitted).
[22]
Although the adoption of the suggestion of a ‘real purpose’
is, to my mind, an attractive one, in the
circumstances of this
matter, I do not believe that it is necessary for me to expand our
common law in order to arrive at a decision.
The South African law
seems decisive of this matter, and it is not necessary to rely on
foreign authorities.
[23]   At
the outset of the involvement of Old Mutual there seems only to have
been a willingness on its part to co-operate
in trying to resolve the
claim. Even the raising of the spectre of unseaworthiness does not
seem to have been seriously considered
as a candidate for litigation.
[24]
Even after the appointment of Mr Blomeyer as a specialist
investigator in early March 2017, and his attendance
at the
examination of the engines, there appears to be no intention or
contemplation of litigation. Only when Old Mutual declines
to share
information with Mr Chard is any hint of a triable dispute visible.
Even then, the hitherto approach of Mr Chard, and
even his
expressions of tough negotiating do not seem to have been done with
the prospect of litigation in mind, but rather the
obtaining of the
best deal he could. In reaching these conclusions I do not believe
that I am going behind the averments of Mr
Ramtahar. This is simply
because, despite his conclusions, he never really addresses the
matter of when and why litigation was
contemplated, and what areas of
advice were sought for comment on by Old Mutual’s legal
advisors. He had every opportunity
(including his supplementary
affidavit) to do so, but did not.
[25]
With regard to Mr
Wallis’s
reliance on
Highgrade
,
that matter is distinguishable from the present circumstances. In
Highgrade
, the insurers suspected arson and requested a report
to that end within four days of the fire. The circumstances of a
recent increase
in insurance cover, the difficult financial position
of the company and the industry, and the initial report of the fire
led inevitably
to that conclusion. In the present matter the
circumstances were not similarly suspicious. The initial appointment
of the loss
adjustor is not in any way indicated to have been for the
purpose of notifying legal representatives in order to obtain advice
for contemplated litigation. There does not appear to be any
suggestion of a duality of purpose in this matter until at least the

7
th
March 2017.
[26]
After the proposed meeting of the 8
th
March 2017 involving
Govie Govender taking over the work on the Volvo engines, a
diagnostic test was to be conducted in the presence
of both Mr Miller
and Mr Blomeyer. This did not in any way connote animosity between
the parties, but rather a spirit of co-operation
and a will to
compromise. It is only when sharp differences arise as to the
interpretation of the policy that matters became more
heated. Indeed,
Mr Blomeyer agreed with the approach to be adopted. It seems clear
that both he and Mr Miller were keen to obtain
the views of the Volvo
engine experts. There seems little doubt that this must have filtered
down to Mr Bekker, the mechanical
engineer.
[27]
According to the email of Mr Ramtahar, Old Mutual was still waiting
for the report of Mr Blomeyer on the 20
th
April 2017. At
this stage there is no evidence of contemplated litigation. The
source of the litigation itself ultimately appears
to have been the
incorrect interpretation of the policy by Mr Ramtahar, which he later
conceded, as set out in the plea. It also
appears improbable that Old
Mutual considered litigation up to at least the 23
rd
May
2017 because it had by that stage concluded that it was obliged to
compensate Mr Chard as only quantum was in dispute and Old
Mutual
anticipated that it would become the owner of the vessel.
[28]   A
further indication that litigation was not contemplated lies in Old
Mutual’s plea, where it records that
Mr Chard’s claim is
premature because Old Mutual had not decided (presumably at the date
of issue of summons) that it would
repudiate the claim. In those
circumstances Old Mutual has not satisfied the two requirements for
invoking litigation privilege
– that the reports were obtained
for the purpose of obtaining legal advice, in circumstances where
litigation was likely
or reasonably anticipated.
[29]   In
the circumstances Mr Chard is entitled to an order in terms of
prayers 1.1, 1.2, 1.4, and 3 of the Notice of
Motion. With regard to
the question of costs, I see no reason why the costs should not
follow the result.
[30]   A
dispute is raised in the affidavits regarding the existence of a
voice recording of the meeting on the 8
th
March 2018 (as
opposed to the video recording previously discussed in
communications) in the possession of Mr Ramtahar.  I
was not
addressed on this aspect, nor asked to make an order in this regard.
Suffice to say, had I been asked to do so I
would have ordered the
disclosure of any voice recording as well.
[31]   I
accordingly grant an order in terms of prayers 1.1, 1.2, 1.4, 2
(including the costs of Senior Counsel), and
3 of the Notice of
Motion dated the 7
th
June 2018.
Lopes J
Date of
hearing:
29
th
July 2019.
Date of
judgment:
30
th
September 2019
For the
applicant:
Mr AV Voormoolen SC (instructed by Shepstone
& Wylie).
For the
respondent:         Mr P
Wallis (instructed by Clyde & Co).