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[2011] ZALCD 2
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Randles v Chemical Specialities Ltd (D286/10) [2011] ZALCD 2; [2011] 8 BLLR 783 (LC); (2011) 32 ILJ 1397 (LC) (1 February 2011)
Page
21
of
25
Case
No: D286/10
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN DURBAN)
Case No: D286/10
Reportable
and of interest to other Judges
In
the matter between
DAVID
JOHN RANDLES
….........................................................................
APPLICANT
and
CHEMICAL
SPECIALITIES LIMITED
….................................................
RESPONDENT
JUDGMENT
AC
BASSON, J
The respondent (Chemical Specialties
Limited) has sought and the applicant (Mr. David John Randles) has
consented to the determination
of the issues as set out in paragraph
[108] of the respondent’s response to the applicant’s
statement of case on
an
in limine
basis. Paragraph [108]
reads as follows:
“
[108]
Whether the disclosures relied upon by the Applicant constitute
protected disclosures having regard to the definition thereof,
and to
the provisions of Section 5 of the Protected Disclosures Act No. 26
of 2000 (“the PDA”). In this regard the
Respondent pleads
that all material times:
[a]
the Applicant was acting as a legal practioner or a person whose
occupation involves the giving of advice as contemplated by
Section 5
(a) of the PDA;
[b]
the disclosures relied upon by the Applicant were made to the
Applicant with the object of and in the course of obtaining legal
advice as contemplated by Section 5 (b) of the PDA;
[c]
accordingly, the disclosures relied upon by the Applicant as having
been made by him to the Respondent and the Johannesburg
Stock
Exchange are not included in the definition of protected disclosure
set out in the PDA, in that way they were made by a legal
adviser to
whom the information concerned was disclosed in the course of
obtaining legal advice in accordance with Section 5 of
the PDA.”
The Court is requested to consider
the following three questions:
(a) Who bears the onus and duty to
begin in relation to the issues raised in paragraph (108) (that being
whether the disclosures
relied upon are “
protected
disclosures
”, in particular, given the fact that the
definition thereof excludes disclosures made by a legal advisor where
the information
was disclosed in the course of obtaining legal
advice)?
(b) Whether the disclosures relied
upon by the applicant constitute “
protected disclosures
”
as defined by the Protected Disclosures Act 26 of 2000 (“the
PDA”). In determining this question the Court is
asked to
accept the following facts purely for the purposes of determining the
legal point:
(i) That the disclosures relief upon
by the applicant constituted disclosures as defined in the PDA.
(ii) That the applicant was acting as
a legal practitioner or person whose occupation involved the giving
of legal advice as contemplated
by section 5(1) of the PDA.
(iii) That the disclosures relied upon
by the applicant were made to the respondent with the object of and
in the course of obtaining
legal advice as contemplated by section
5(b) of the PDA.
(c) Thirdly the Court is asked to
consider whether on the facts as set out by the applicant in its
statement of claim, if they were
all found to be true and correct
without the hearing of evidence, the applicant has made out a case
that the disclosures constituted
“
protected disclosures
”
as contemplated in the definition section of the PDA (the exception).
Before turning to these questions, it
is necessary to briefly refer to the facts that gave rise to the
present dispute and more
in particular, the present application
before the Court. In summarizing the facts I also had regard to the
facts that were presented
to my learned brother Cele, J in the
urgent application that served before him under case number D42/201
(see the next paragraph).
The
urgent application
The applicant brought an urgent
application to interdict the respondent from proceeding with any
disciplinary action or enquiry
against him on the charges as set out
in the charge sheet against the applicant dated 20 January 2010.
Cele, J granted the following
order:
“
(1)
The respondent is interdicted from proceeding with any disciplinary
action or enquiry against the applicant on the charges as
set out in
its charge sheet against the applicant of 20 January 2010 pending the
outcome of a dispute referred to the Commission
for Conciliation,
Mediation and Arbitration, and if the conciliation does not resolve
the dispute,
pending
the adjudication of that dispute by the Labour Court
.
1
(2)
The Respondent is directed to pay the costs of this application.”
It appears from the judgment in that
matter that the respondent opposed the urgent application on two
grounds namely that the
applicant has not satisfied the several
legal requirements (
facta
probanda
) for the relief
under the
Protected Disclosures Act (PDA
). Secondly the respondent
disputed the applicant’s entitlement to rely on the PDA. Cele,
J, however, concluded that the
applicant has shown the existence of
a
prima facie
right in the relief that he sought
and that he ought
not
to be subjected to a disciplinary
hearing “
until such
time that this matter is properly heard and a decision on it is
made
”
.
2
The applicant has since remained on
suspension with pay.
General
background facts
In his statement of claim, the
applicant makes the following factual statements. He was employed by
the respondent as an executive
director. In this capacity he was
responsible for,
inter alia
, the worldwide legal affairs of
the respondent; managing all aspects of the respondent’s
public company and corporate governance
obligations and overseeing
the respondent’s worldwide ethics and compliance program. It
appears from the judgment of Cele,
J (in the urgent application)
that it is also common cause that the applicant had been practicing
as an attorney for many years.
On 4 August 2009 the applicant made a
report to the auditing committee and the board of directors of the
respondent. In this report,
the applicant advised the auditing
committee and the board of directors that, in his opinion, the
respondent contravened the
law and the code of ethics of the
respondent and/or the King II-report on standards of good corporate
governance that the respondent
purported to adhere to in its annual
reports.
The respondent responded to the
contents of the report on or about 12 October 2009. According to the
applicant’s statement
of claim, he did not believe that the
response was adequate or dealt appropriately with the issues and
concerns raised by him
in this report. On or about 30 December 2009
the applicant submitted a more comprehensive report to the
Johannesburg Stock Exchange
(the regulatory body for listed
companies) and to Mr. Wood (“Wood”) the managing
director of the respondent.
The applicant raised various issues
in both these reports. They are listed in paragraphs 11.1 to 11.13
of the applicant’s
statement of claim. The allegations include
the following: contraventions of the Companies Act; inappropriate
use of company
funds; the increase of earnings to certain directors
without authority; failure to disclose financial interests as
directors
by Wood and the financial director, Mr. MacKinnon;
inappropriate transfer of shares when the company was a private
company; and,
a double cession of the debtors’ books to
different banks.
It appears from the judgment of Cele,
J that a dispute between Wood and the applicant arose about a share
entitlement of the applicant
in the company. Although the applicant
had resigned his position as a director he retained his position as
an employee of the
company. The civil claim against Wood for the
applicant’s share entitlement is still pending.
On 4 January 2010 the applicant was
handed a copy of the charge sheet, with two charges. He was also
simultaneously suspended
pending the disciplinary hearing. The
applicant then approached the Labour Court for the order which was
granted by Cele J (
supra
). As already pointed out, the
applicant has remained on suspension with pay ever since.
The applicant subsequently filed his
statement of claim in which he prays for an order that the
disciplinary proceedings against
him be declared to be an
occupational detriment on account of a protected disclosure in terms
of the PDA. The applicant also
prays for an order interdicting and
restraining the respondent from proceeding with any such
disciplinary action against him
and from subjecting the applicant to
any other occupational detriment as defined in the PDA on account of
the fact that the disclosures
made by the applicant constituted a
protected disclosure. The applicant lastly prays for an order that
he be compensated in an
amount that this Court deems just and
equitable.
The respondent subsequently filed its
statement of response. It is in paragraph [108] (
supra
) of
the statement of claim that the respondent disputes that the
applicant has made out a cause of action in terms of the PDA.
The PDA
I do not for purposes of this
judgment intend to dwell on the purpose of the PDA. Pillay, J in
Tshishonga v Minister of Justice & Constitutional Development
& Another
(2007) 28
ILJ
195 (LC) gave a detailed
exposition of the purpose of the PDA (see paragraphs [166]
et
seq).
I am generally in agreement with her exposition of the
purpose of the PDA. Suffice to emphasise that whistleblowers need
the protected
of the law against suffering an occupational detriment
when making a “
protected disclosure
” as defined
in the PDA. This much is also clear from the pre-amble of the PDA
where it is specifically stated that the
purpose of this Act is to
“
create a culture which will facilitate the disclosure of
information by employees relating to criminal and other irregular
conduct
in the workplace in a responsible manner by providing
comprehensive statutory guidelines for the disclosure of such
information
and protection against any reprisals as a result of such
disclosures”.
Who bears the onus?
It is trite that the incidence of
onus is a matter of substantive law and based upon broard principles
of experience and fairness
(see LAWSA vol 3(1) at paragraph 310.) In
Pillay v Krishna
1946 A 946 at 951 – 952 the Appellate
Division (as it then was) sets out the legal principles in relation
to pleadings and
the onus as follows:
“
The
first principle in regard to the burden of proof is thus stated in
the Corpus Juris: " Semper necessitas probandi incumbit
illi qui
agit " (D. 22.3.21). If one person claims something from another
in a Court of law, then he has to satisfy the Court
that he is
entitled to it. But there is a second principle which must always be
read with it: " Agere etiam is videtur, qui
exceptions utitur:
nam reus in exceptione actor est " (D. 44.1.1). (Exceptio does
not mean, of course, an exception in the
sense in which the term is
now used in our practice.) Where the person against whom the claim is
made is not content with a mere
denial of that claim, but sets up a
special defence, then he is regarded quoad that defence, as being the
claimant: for his defence
to be upheld he must satisfy the Court that
he is entitled to succeed on it.”
The question whether or not an
employee is entitled to the protection afforded by the PDA may arise
in various contexts depending
upon the nature of the occupational
detriment. For example, an employee can claim that he was dismissed
following making a protected
disclosure. Such a dismissal may
constitute an automatically unfair dismissal in terms of section
189(1)(h) of the LRA. An employee
can also refer a dispute in terms
of section 191(13) of the LRA complaining that he or she was demoted
on account of having made
a protected disclosure as defined in the
PDA.
3
The ultimate onus to prove a fair
dismissal rests on the employer (see section 192(2) of the LRA).
Although the LRA is silent
on the incidence of onus to prove an
unfair labour practice, it is generally accepted that he or she who
alleges an unfair labour
practice (in other words the employees)
must prove the allegation.
The onus to prove that an employee is
entitled to the protection provided for by the PDA rests on the
whistleblower
(the employee). For example, if the
whistleblower wishes to succeed with an unfair labour practice claim
(on the basis that he
or she had suffered an occupational detriment
such as a demotion on account of having made a disclosure), the
whistleblower must
first prove that that the disclosure was
protected as contemplated by the PDA and that he or she was
subjected to an occupational
detriment.
4
Having said this, it should be
pointed out that the issue of onus in the context of the PDA is not
specifically regulated in the
PDA. The whistleblower must, however,
set out his or her cause of action in his or her statement of case
and in doing so must
plead such facts that will bring him- or
herself within the parameters of the relevant sections of the PDA.
5
I did not, however, understand the
parties to disagree that the applicant bears the onus to prove that
he or she is in fact entitled
to rely on the statute pleaded (in
this case the PDA). Where the parties differ is whether or not the
applicant also bears the
onus to prove that the disclosure made by
him as a legal advisor was
not
disclosed in the course of obtaining legal advice in accordance with
section 5 of the PDA
.
The
Protected Disclosures Act
The
PDA defines a disclosure and
protected disclosure as follows:
''disclosure'
means any disclosure of information regarding any conduct of an
employer, or an employee of that employer, made by
any employee who
has reason to believe that the information concerned shows or tends
to show one or more of the following:
(a)
that a criminal offence has been committed, is being committed or is
likely to be committed;
(b)
that a person has failed, is failing or is likely to fail to comply
with any legal obligation to which that person is subject;
(c)
that a miscarriage of justice has occurred, is occurring or is likely
occur.”
“
'protected
disclosure' means a disclosure made
to
-
(a)
a legal adviser in accordance with
section 5
;
(b)
an employer in accordance with
section 6
;
(c)
a member of Cabinet or of the Executive Council of a province in
accordance with
section 7
;
(d)
a person or body in accordance with
section 8
; or
(e)
any other person or body in accordance with
section 9
,
but
does not include a disclosure-
(i)
in respect of which the employee concerned commits an offence by
making that disclosure; or
(ii)
made
by
a
legal adviser to whom the information concerned was disclosed in the
course of obtaining legal advice in accordance with
section 5
; “
6
anc" HREF="#sdfootnote6sym">
6
Section 5
referred to of the PDA
reads as follows:
“
5
Protected disclosure
to
legal adviser
Any
disclosure made-
(a)
to
a legal practitioner or
to
a person
whose occupation involves the giving of legal advice; and
(b)
with the object of and in the course of obtaining legal advice,
is
a protected disclosure.”
7
Section 6
of the PDA protects
employees who make “
protected disclosures
” to
their employers. This section reads as follows:
“
Any
disclosure made in good faith -
(a)
and substantially in accordance with any procedure prescribed, or
authorised by the employee's employer for reporting or otherwise
remedying the impropriety concerned; or
(b)
to the employer of the employee, where there is no procedure as
contemplated in paragraph (a).”
The protection granted to the
whistleblower is set out in
section 3
of the PDA. In terms of this
section no employee may be subjected to any occupational detriment
by his or her employer on account
or partly on account of having
made a protective disclosure. It is, however, also clear from the
provisions of the PDA that the
protection afforded by the PDA is not
unconditional and that certain requirements must be met before an
employee may be entitled
to the protection afforded by the PDA. The
protection afforded to an employee (the whistleblower) must
therefore be understood
by reference to the definition sections
which define what is a disclosure and what constitutes a “
protected
disclosure
”
. These
sections should also be understood against the general purpose of
the PDA which is to encourage a culture of whistle blowing.
8
Legal advisors
Legal advisors appear in the PDA in
two contexts.
(i) The first is a disclosure made by
an employee (the whistleblower) “
to”
a
legal advisor. It is clear from the definition of what constitutes a
protected disclosure that a disclosure made “
to
”
a legal adviser (in terms of
section 5
of the PDA) may be considered
to be “
protected
” disclosure.
(ii) The second is a disclosure “
by
”
a legal advisor of certain information. If regard is had to the
definition of a “
protected disclosure
” it appears
that what is
not
protected in terms of the PDA is a
disclosure“ “
by”
a legal advisor of
the information that was disclosed to him or her by an employee “
in
the course of obtaining legal advice in accordance with
section 5
”.
The person who will therefore not be able to claim the protection
afforded by the PDA is firstly, the person whose occupation
involves
the giving of legal advice
(section 5(a)
of the PDA)
and
secondly, if the person (in his capacity as a legal advisor) receives
the disclosed information from someone (the whistleblower)
who
disclosed the information with the object of and in the course of
obtaining legal advice
(section 5(b)
of the PDA). Once these two
requirements have been met, the disclosures (
by
the legal
advisor) will not be protected in terms of the PDA. What therefore
appears to be specifically excluded from the protection
of the PDA is
that information disclosed to a legal advisor which will normally
falls within the parameters of what is referred
to as “
legal
privilege
”. (I will return to the issue of legal privilege
in more detail hereinbelow.)
Onus of proof
The crux of the dispute now before
the Court, concerns who bears the onus to prove that
section 5
of
the PDA applies or do not apply. The respondent argued that there
are certain jurisdictional requirements that must be met
for a
whistleblower to fall within the ambit of the protection afforded by
the PDA such as,
inter alia
, that the whistleblower must be
an employee. In addition hereto the PDA will not apply if the
disclosure is not a disclosure
as contemplated by the PDA. I am in
agreement with this submission. A party relying on a statute bears
the onus to bring him-
or herself within the four corners of the act
he or she relies upon. Does that also mean that the applicant now
bears the onus
to proof that the
exclusion
provided for in
section 5
of the PDA does
not
apply to him?
The applicant argued that the
respondent
bears the onus to proof that the exclusion
provided for in
section 5
of the PDA applies in light of the fact
that he (the applicant) has not in his statement of case referred to
the provisions of
section 5
apart from a reference that he,
inter
alia
, handled the respondent’s legal affairs. Nor did he
allege that the provisions of
section 5
do not apply. Put more
bluntly: The applicant did not plead such facts in his statement of
claim that would
exclude
him from the exclusion provided for
in the definition of a protected disclosure. The issue of the
applicant’s exclusion
from protection by virtue of the fact
that he is the respondent’s legal advisor, is raised for the
first time in the respondent’s
response as a
defense
to
the applicant’s claim that he is entitled to the protection
afforded by the PDA on the facts set out in the statement
of claim.
It is lastly argued that in accordance with the general principles
relating to the incidence of the onus of proof,
the
respondent
therefore bears the onus to proof that the exclusion provided for in
the definition of a “
protected disclosure
”
applies by virtue of the fact that the applicant was the
respondent’s legal advisor at the time the disclosures
were
made and that he had received the information as contemplated by the
PDA.
In summary:
The dividing line
in the argument therefore appears to be the following: The
respondent is of the view that that applicant bears
the onus to
prove that the exclusion provided for in the definition of a
protected disclosure (re legal advisors) does not apply
to him. In
other words, the applicant should have made the averment that
section 5
does not apply to the disclosures made by him in his
statement of claim and therefore the applicant bears the onus in
this regard.
The applicant is, however, submitting that the
respondent is raising a
defense
namely that, because the
disclosures were made “
by
” a legal advisor in the
context provided for in the PDA. The disclosures therefore do not
attract the protection provided
for in the PDA. The
respondent
therefore attracted the onus to prove that the exclusion applies.
Legal privilege
The parties were not in dispute that
legal privilege is an important and in fact an essential pillar of
our legal system. As already
pointed out where the parties differ is
who
bears the onus (in the context where the applicant - who
is a legal advisor - made certain disclosures) to prove that his
disclosures
fall within or without of the parameters of protection
afforded to by the PDA.
The principle of legal privilege is
firmly entrenched in our common law and refers to the professional
privilege that attaches
to information disclosed to a legal advisor
for the purpose of obtaining legal advice. It is recognised that it
is necessary
that members of the public (and other legal entitles
such as companies) may, and should in good faith, seek legal advice
from
a legal advisor with the confidence that such questions asked
by and information provided to the legal advisor during this process
would not be disclosed. The importance of legal privilege
particularly in an adversarial legal system was confirmed by the
Constitutional Court in
Thint (Pty) Ltd v National Director of
Public Prosecutions and Others: Zuma and Another v National Director
of Public Prosecutions
and Others
[2008] ZACC 14
;
2009 (1) SA 141
(CC). The
Constitutional Court also accepted that the right to professional
privilege has crystallised into an implicit constitutional
right:
“
The
right to legal professional privilege
“
[183]
The applicants did not assert that the Constitution itself protects
legal professional privilege and I therefore do not need
to explore
that question now. We are thus primarily concerned with the
common-law right to legal professional privilege, and with
how that
right is protected by s 29(11) of the Act. Again, because it is
accepted by all the parties to this case that the legislation
and
common-law principles in question are consistent with the
Constitution, the applicants' arguments must be assessed, in the
first instance, in the light of the applicable provisions of s 29 of
the Act. Of course, both the common-law right and the statutory
provisions must be dealt with in a way that complies with s 39(2) of
the Constitution. I turn first to consider the right to privilege
and
then deal with s 29(11).
[184]
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 in order 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 s 35 of the Constitution, and
for that reason it is
to be taken very seriously indeed.
[185]
Accordingly, privileged materials may not be admitted as evidence
without consent. Nor may they be seized under a search warrant.
They
need not be disclosed during the discovery process. The person in
whom the right vests may not be obliged to testify about
the content
of the privileged material. It should, however, be emphasised that
the common-law right to legal professional privilege
must be claimed
by the right-holder or by the right-holder's legal representative.
The right is not absolute; it may, depending
upon the facts of a
specific case, be outweighed by countervailing considerations.”
9
See also footnote 123 where the
Constitutional Court referred with approval to the following extract
from Zeffertt:
“
See
Zeffertt et al The South African Law of Evidence (formerly Hoffmann &
Zeffertt) (LexisNexis Butterworths, Durban 2003) at
557 - 8 for a
discussion of the possibility that the right to legal professional
privilege has crystallised into an implicit constitutional
right.”
See also
S v Safatsa
1988 (1)
SA 868
(A) at 886 where the Court emphasised the importance of legal
privilege with reference to the High Court of Australia in
Baker
v Campell
:
“
The
conflict between the principle that all relevant evidence should be
disclosed and the principle that communications between
lawyer and
client should be confidential has been resolved in favour of the
confidentiality of those communications. It has been
determined that
in this way the public interest is better served because the
operation of the adversary system, upon which we depend
for the
attainment of justice in our society, would otherwise be impaired:
see Waugh v British Railways Board
[1979] UKHL 2
;
[1980] AC 521
at 535, 536....
The
privilege extends beyond communications made for the purpose of
litigation to all communications made for the purpose of giving
or
receiving advice and this extension of the principle makes it
inappropriate to regard the doctrine as a mere rule of evidence.
It
is a doctrine which is based upon the view that confidentiality is
necessary for proper functioning of the legal system and not
merely
the proper conduct of particular litigation....”
10
Legal privilege extends to both
external
and
internal
(salaried) legal advisors (the
so-called in-house lawyers). See
Mohamed V President of The
Republic of South Africa and Others
2001 (2) SA 1145
(CPD)
where
the Court held as follows:
‘
8.
The extent of legal professional privilege
…
.
The learned authors of the leading textbook on evidence Hoffmann and
Zeffertt The South African Law of Evidence 4th ed at 250
- 1 deal
with the question as follows:
'Many
qualified lawyers are, today, employed as full-time, salaried legal
advisers by corporations or statutory bodies. It was held
in Alfred
Crompton Amusement Machines Ltd v Customs and Excise Commissioners
(supra) that, because a salaried legal adviser, whether
a barrister
or a solicitor, who is employed by a government department, has the
same duties as a lawyer in private practice, professional
privilege,
within defined limits, attaches to confidential communications
between the salaried adviser and his ''client'', that
is to say, his
employer. It is quite clear from the tenor of the decision that the
same would apply to a private commercial concern.
The view of Lord
Denning MR to this effect has, as its rationale, that the rules of
privilege had been worked out when most legal
advisers were in
independent practice. Today, things are different; and salaried legal
advisers
''.
. . are regarded by the law as in every respect in the same position
as those who practice on their own account. The only difference
is
that they act for one client only, and not for several clients. They
must uphold the same standards of honour and etiquette.
They are
subject to the same duties to their client and to the Court. They
must respect the same confidences. They and their clients
have the
same privileges.''
…
..Leading
modern commentators accept categorically that the privilege extends
to communications made to salaried legal advisers.
Whether such an
adviser will, in South Africa, be regarded as acting in a
professional capacity, is an open question.'
The
leading modern commentators to which Hoffmann and Zeffertt refer are
collected in footnote 8 at 251 and, having read both, I
am satisfied
that the authors are correct in their comment that in England
privilege extends to communications made to salaried
legal advisers.
The
authors of the more recent South African textbook on the law of
evidence, Principles of Evidence by Schwikkard Skeen & Van
der
Merwe, deal with the topic more tersely but in the same vein. At 123
para 10.3.2.1 the learned authors deal with the topic
of acting in a
professional capacity as follows:
'Whether
an adviser is acting in her professional capacity will be a question
of fact in each case. Although a strong inference
can be drawn that
this requirement has been fulfilled where a fee has been paid, the
absence of such payment does not necessarily
mean that an adviser was
not acting in her professional capacity. Hoffmann and Zeffertt submit
that the weight of legal opinion
in England supports the view that
salaried legal advisers (that is those employed by corporations and
statutory bodies) must also
be considered as acting in a professional
capacity for the purposes of legal professional privilege. Whether
the South African
Courts will follow this approach remains an open
question.'
…
.The
respondents relied upon the dictum of Lord Denning in Alfred Crompton
Amusement Machines Ltd v Commissioners of Customs and
Excise. The
relevant part of the dictum (at 376f - 377b) reads as follows:
‘
the
law relating to discovery was developed by the Chancery Courts in the
first half of the 19th century. At that time nearly all
legal
advisers were in independent practice on their own account. Nowadays
it is very different. Many barristers and solicitors
are employed as
legal advisers, whole time, by a single employer. Sometimes the
employer is a great commercial concern. At other
times it is a
government department or a local authority. It may even be the
government itself, like the Treasury Solicitor and
his staff. In
every case these legal advisers do legal work for their employer and
for no one else. They are paid, not by fees
for each piece of work,
but by a fixed annual salary. They are, no doubt, servants or agents
of the employer. For that reason the
Judge thought that they were in
a different position from other legal advisers who are in private
practice. I do not think this
is correct. They are regarded by the
law as in every respect in the same position as those who practice on
their own account. The
only difference is that they act for one
client only, and not for several clients. They must uphold the same
standards of honour
and of etiquette. They are subject to the same
duties to their client and to the Court. They must respect the same
confidences.
They and their clients have the same privileges. I have
myself in my early days settled scores of affidavits of documents for
the
employers of such legal advisers. I have always proceeded on the
footing that the communications between the legal advisers and
the
employer (who is their client) are the subject of legal professional
privilege; and I have never known it questioned. There
are many cases
in the books of actions against railway companies where privilege has
been claimed in this way. The validity of
it has never been doubted.
I speak, of course, of their communications in the capacity of legal
advisers. It does sometimes happen
that such a legal adviser does
work for his employer in another capacity, perhaps of an executive
nature. Their communications
in that capacity would not be the
subject of legal professional privilege. So the legal adviser must be
scrupulous to make the
distinction. Being a servant or agent too, he
may be under more pressure from his client. So he must be careful to
resist it. He
must be as independent in the doing of right as any
other legal adviser…
…
To
conclude, I believe that the rules relating to professional
privilege, as they are currently understood, should remain confined
to the relationship between legal practitioners in private practice
and their clients. But, because of the anomalies that I have
demonstrated in the law as it now stands, I think a new privilege has
to be created, a privilege that relates to any confidential
communication whose secrecy may be regarded as serving the public
interest. Anyone who has made a confidential communication to
any
adviser should be able to claim it. If he does so, the court should
be required to determine, on a social balance, whether
society would
best be served by disclosure or non-disclosure. And if the court
should find it necessary to hear the communication
to determine this
issue, it must be entitled and required to hear the evidence in
private. By this relatively simple means the
present invidious
position in which doctors, psychiatrists, clergymen, journalists,
accountants and many others are put by our
law would be considerably
ameliorated.' …………..
In
the circumstances I accordingly find that legal professional
privilege can lawfully be claimed in respect of confidential
communications
between Government and its salaried legal advisers
when they amount to the equivalent of an independent adviser's
confidential
advice. This finding is not, however, dispositive of the
matter.”
It is also a general rule that the
person who claims legal privilege also bears the onus to prove the
circumstances which justifies
it. See
Mohamed
(
supra
)
where the Court held as follows at paragraph 5 of the judgment:
“
5.
The onus of proof
It
is common cause that the onus in respect of the claim of legal
professional privilege rests upon the respondents. This accords
with
first principles and is in line with the notion that the onus of
establishing a constitutionally acceptable justification
in terms of
s 36 of the Constitution rests upon the party relying on it (see S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC)
(1995 (2) SACR 1
;
1995
(6) BCLR 665)
at para
[9]
).
The
applicant conceded that a claim to legal professional privilege
constitutes a justifiable limitation within the limits prescribed
by
s 36 of the Constitution. This concession was rightly made in the
light of the decisions in Qozeleni v Minister of Law and Order
and
Another
1994 (3) SA 625
(E) at 643C; Jeeva and Others v Receiver of
Revenue, Port Elizabeth, and Others
1995 (2) SA 433
(SE) at 453C - D;
and Van Niekerk v Pretoria City Council
1997 (3) SA 839
(T) at 850B.”
Having broadly restated the
well-known common law principles relating to legal privilege, the
next question to consider is whether
or not section 5 of the PDA
retains the common law principles regarding legal privilege? I am of
the view that it does. A plain
reading of section 5 of the PDA
appears to reaffirm the common law principle of legal privilege
attaching to the information
disclosure to a legal advisor for the
purpose of obtaining legal advice. I am also persuaded by the
argument that there is a
presumption that the legislature intends to
amend the common law as little as possible.
I am furthermore not persuaded that
it could have been the intention of the legislature to place an onus
on the whistleblower
to prove a
negative
(namely that the
exclusion in respect of information provided for by a legal advisor
does not apply). I also do not accept that
there rests an onus on
the applicant to plead that the information he received was not
privileged prior to the issue being raised
by the respondent. I
therefore accept that the privilege afforded by section 5 of the PDA
is properly raised by the respondent
in paragraph [108] of the
pleadings as a defense or as an exception to the relief claimed.
In the event, I am of the view that
in setting up a defense to the case made out by the applicant (in
terms of paragraph [108])
of the statement of case, the respondent
has attracted the onus of proof in this regard. I am of the view
that this approach
is in accordance with the common law principle to
the effect that the party who claims professional privilege bears
the onus
to prove the circumstances which would justify such a
reliance. As was pointed out by the Court in Mohamed (at 1150), a
claim
to legal professional privilege constitutes a justifiable
limitation within the limits prescribed by s 36 of the
Constitution.
11
The person who wishes to rely on a
claim of legal professional privilege must place such facts before
the Court to justify its
reliance on legal privilege. Lastly I am of
the view that there are persuasive policy considerations in not
placing an unnecessary
onus on the person seeking the protection of
the PDA. By doing so it may have the effect of preventing or
deterring a legitimate
whistleblower from claiming the protection
afforded to him or her by the PDA. See also
Tshishonga
(
supra
)
where Pillay, J held the following in respect of the question who
bears the onus of proving that disclosures were made “
in
good faith
”
as
required by the PDA:
“
To
saddle the employee with a burden of proof would set too high a
standard which, if not met, could disqualify the disclosure and
bar
an enquiry into whether the employer breached the PDA by subjecting
the employee to an occupational detriment. Unfair labour
practices
and unfair dismissal are occupational detriment. Ultimately, the
employer bears the burden of proving that it did not
commit an unfair
labour practice or dismiss the employee unfairly.”
It follows in my view from the
aforegoing that not only does the respondent bears the onus to prove
the exclusion provided for
in the PDA is applicable, but also to
begin. Although the mere fact that a person bears the onus does not
necessarily mean that
that person also have to begin, I am of the
view that the respondent in these circumstances also attracts the
duty to begin.
The respondent raised the defense namely that the
disclosures were made by a legal advisor in the circumstances
envisaged by
the PDA. Accordingly it is, in my view reasonable to
accept that the respondent is able to present evidence that the
motivation
of the person conveying the information to the legal
advisor did so for the purpose of obtaining legal advice. I am
further of
the view that it would be unfair to require of the
applicant to commence leading evidence about a subjective event
which may
not be within his personal knowledge.
In light of the above order it is not
necessary to consider the exception raised against the pleadings of
the applicant.
There is one last issue that needs to
be dealt with. It appears from the respondent’s heads of
argument that the respondent
is seeking an order discharging the
interim interdict granted by Cele, J. It was argued that it is clear
from his order that
the respondent is interdicted “
pending
the adjudication of that dispute by the Labour Court
”. I
have declined to discharge the order for the following reasons:
Firstly, there is no application before me for the
discharge of the
order. Secondly, on a plain reading of the order disciplinary action
is interdicted pending the adjudication
of the dispute by the Labour
Court. The purpose of these proceedings was to determine preliminary
matters. The real issue or
dispute between the parties as it is
formulated in the pleadings is not before this Court.
In the event the following order is
made:
1. The respondent bears the onus and
the duty to begin on the issues in paragraph [108] of their response
to the statement of claim.
2. The exception is dismissed.
3. The respondent to pay the
applicant’s costs in determining these issues.
AC BASSON, J
DATE OF HEARING
: 29
NOVEMBER 2010
DATE OF JUDGMENT
: 1
February 2011
FOR THE APPLICANT:
Adv Paul Schumann. Instructed by
Stirling Attorneys.
FOR THE RESPONDENT:
G.D Harpur SC and Adv A Coutsoudis.
Instructed by Garlicke & Bousfield Inc.
1
Court’s
emphasis.
2
At
paragraph [59] of the judgment of Cele, J.
3
Section
186 (2) (d) of the LRA provides that an unfair labour practice mean
any unfair act or omission that arises between an
employer and
employee involving an occupational detriment other than dismissal in
contravention of the Protected Disclosure Act
2000 (Act No. 26 of
2000), on account of the employee having made a protected disclosure
defined in that Act.
4
See
Grogan Workplace Law (10
th
edition) at page 85.
5
See
the urgent application under case no D42/2010 where Cele, J held as
follow at paragraph [56]: “
The applicant appears to believe
in the truth of his disclosure. The disclosure was first made to the
board and when the applicant
was not satisfied about the type of
response given to them, he escalated the disclosure to the JSE as
the respondent is a public
company. His disclosure comes across as
having been made in good faith. At trial he may success to prove it
to be a protected
disclosure.”
6
The
Court’s emphasis.
7
Ibid
.
8
See
the introductory paragraph of the PDA which reads as follows: “
To
make provision for procedures in terms of which employees in both
the private and the public sector may disclose information
regarding
unlawful or irregular conduct by their employers or other employees
in the employ of their employers; to provide for
the protection of
employees who make a disclosure which is protected in terms of this
Act; and to provide for matters connected
therewith
.”
9
Court’s
emphasis.
10
Ibid
.
11
In
this case the claim was made in respect of information given to a
legal advisor in the employ of the State.