IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN DURBAN
Case no. D324/97
In the matter between:
South African Typographical Union & 4 Others Applicant
AND
Republican Press (PTY) Ltd Respondent
JUDGMENT
MLAMBO J.
[1] This is an application in terms of Rule 6(a) and (b) of the Rules of this court. The
applicants seek an order compelling the respondent to discover the following documents:
(a) any internal or other memoranda concerning the operation undertaken
by the undercover agents;
(b) a copy of any writing embodying any contractual arrangements between the
undercover agents and the respondent;
(c) copies of the records of all other disciplinary proceedings in which any of the
undercover witnesses gave evidence regardless of whether the employees were found guilty
or not.
[2] The applicants had also required discovery of an arbitration award of the Commission
for Conciliation Mediation and Arbitration (“the CCMA”) relating to one R Moonsammy.
This request was abandoned at the hearing of the matter, the applicants having obtained the
award in question. The respondent has refused to discover the other documents referred to
above on the basis that they are either privileged or are otherwise not discoverable.
[3] It is prudent to briefly relate the background to this application. The respondent
instituted disciplinary steps against the second to fifth applicants (“the individual
applicants”). The respondent charged the individual applicants with the offence of removing
certain items from its premises without authority. In the ensuing disciplinary enquiries the
respondent relied exclusively on the evidence of two undercover agents which was given in
camera.
[4] It appears that the undercover agents gave their evidence by way of statements and
answers to questions through an intercom system. In the case of the 3rd applicant questions
were relayed to the undercover agents by a certain Mr Raath who was in charge of the
undercover operation. The individual applicants were found guilty of the alleged offences
and their subsequent appeals were unsuccessful.
[5] The applicants articulate the basis for seeking discovery of the documents specified
above as follows:
“5.1 The documents relate to various legal issues in the dispute, and are
or have been in the respondent’s possession or control. Some examples of
the issues to which the documents relate are as follows:
5.1.1 The legitimacy of the undercover agents, more specifically,
their identity and whether they were in fact employed by the
respondent and were not persons who were arbitrarily called upon
to give evidence against the second to fifth applicants at their
disciplinary enquiries;
5.1.2 The accuracy and truthfulness of the evidence which was given by the
undercover agents and relied upon in dismissing the second to fifth applicants.
5.2 There is no legal reason why the documents should not be
discovered and furnished to the applicants, as they are not privileged;
5.3 The discovery of the documents and making them available to the
applicants will advance the applicants’ case, while damaging that of the
respondent. Accordingly, this will place the above honourable court in a
better position to adjudicate the matter;
better position to adjudicate the matter;
5.4 Should the documents not be discovered and furnished to the applicants, the
applicants will be prejudiced in putting their version to the above honourable court.”
[6] The respondent resisted the application on the premise that discovery of the
documents would reveal the identity of the agents and would therefore render nugatory an
intended application for leave to lead their evidence in camera at the trial. Another premise is
that the documents:
“(a) form part of the evidence supporting the respondent’s case;
(b) do not support or tend to support the applicants’ case;
(c) contain nothing impeaching the respondent’s case. ”
[7] The approach to discovery in this court should be similar to that of the High Court
which is regulated by Rule 35 of the uniform rules of court. This is more so due to the
absence of a similar provision in the rules of this court regulating the discovery of documents
for trial purposes.
[8] The prevailing principle governing discovery in the High court is that the documents
are not discoverable if:
8.1 they form part of the evidence supporting the case of the party
objecting to discovery.
8.2 do not support or tend to support the case of the party objecting to discovery, and
8.3 contain nothing impeaching the case of the party objecting to
discovery. See in this regard Lenz Township Co. (Pty) Ltd v Munnick &
Others 1959 (4) SA 567 (T).
[9] To determine if the requested documents are discoverable a closer examination of the
pleadings and pretrial minutes is called for. The primary basis of the attack on the
respondent’s case is that: (1) the evidence on which the individual applicants were convicted
was untrustworthy; and that (2) the manner in which the internal disciplinary enquiries were
conducted was prejudicial to the individual applicants.
[10] In paragraph 6.3.1, of the applicants’ statement of case the following is stated
regarding the evidence led during the disciplinary enquiries:
“In the background of such inconsistency, it is arguable that the
statements were not written on a regular basis and that the witnesses
were simply created and given statements to read.”
Further in paragraph 6.2.2 & 6.2.3 of the applicants’ statement of case the following is
stated:
“The respondent’s witnesses, one Patrick and one Farook, who were
agents of a security company which was employed to infiltrate the
workplace and obtain evidence to incriminate the respondent’s
employees, gave their statements and answers to questions through an
intercom system.
intercom system.
The procedure was problematic in that the informants’ answers were
often distorted and barely intelligible. The result of this was that the
members of the trade union and their representatives, were unable to
fully question and put their version to the respondent’s witnesses, thereby
testing the reliability of their evidence. Further, it created uncertainty as
to the identity of the witnesses and therefore the legitimacy of such
witnesses.
This procedure was however permitted by the respondent on the ground
that the informants were in danger of intimidation and harm. This
allegation is totally unfounded and is made against a background of a
record of almost 40 years without a single allegation of this nature ever
being levelled against any member of the trade union.
The court’s guidance in balancing the right of the employer to employ
undercover agents to infiltrate the workplace, against the rights of
employees to know about the presence of such agents and their identities
as well as employees rights to privacy.
One member of the union, namely Ms Mkhize, was prevented from
questioning the respondent’s witness directly. The member’s questions
were relayed to the witness by one Mr Raath, who was from the security
company and was in charge of the respondent’s witnesses. When relaying
a question, Mr Raath would lead the witness.
This further prevented the member of the union from testing the
statement of the respondent’s witness by putting her version to him.
Further, it was a direct contravention of the member’s right to challenge
her accuser, as provided in the list of rights given to her by the
respondent.”
[11] In my view the challenge by the applicants’ case of that part of the respondent’s case
involving the undercover agents relate to no more than procedural unfairness. It is a
challenge to the effect that the individual applicants were prejudiced by their inability to hear
and test the evidence of the agents directly or face to face. They allege that they were
prejudiced by the respondent’s reliance on the agents’ evidence because it was unreliable. It
prejudiced by the respondent’s reliance on the agents’ evidence because it was unreliable. It
is clear therefore that the documents sought by the applicants relate to the evidence used to
convict them.
[12] It is trite that a court will not normally go behind a party’s affidavit to the effect that
documents are either not relevant or are privileged. Such affidavit is, as far as the court is
concerned not conclusive. The court is entitled to examine and consider the pleadings and
case made out to make a ruling. See Rellams (Pty) Ltd v James Brown & Hamer Ltd
1983 (1) SA 556 (NPD). The respondent’s main objection to the discovery of the documents
requested is that they are either privileged or not discoverable. A court will not readily
compel a party to discover privileged documents. However a party claiming privilege must
set out in sufficient details the grounds on which privilege is claimed. Herbtein & Van
Winsen: “The Civil Practice of the Supreme Court of South Africa 4th edition at 594. In
Ferreira v Endley 1966 (3) SA 618 (E) at 620H Eksteen J said:
“The form of discovery required by the Rules is one which should
indicate in the affidavit the existence of documents in respect of which
privilege is claimed, and the grounds on which privilege is claimed must
be stated sufficiently clearly for the Court, if called upon, to decide
whether the documents are in fact privileged from production or not.
The mere claim of privilege is certainly no reason for omitting all
reference to the documents in the discovery affidavit.”
[13] The respondent’s opposing affidavit discloses no grounds on which privilege is
claimed. In paragraph 19 of the affidavit the respondent states that the documents are in
effect witness statements and their discovery would have the effect of disclosing the
respondent’s evidence. It is trite that witness statements are privileged. They cannot be
discovered as this will indeed have the effect of disclosing that party’s evidence. A party can
claim this privilege only in respect of a statement made by a witness he intends to call. See
Mlamla & Another v Marine & Trade Insurance Co. 1978 (1) SA 401 (E) at 402D
403A where De Wet J said:
“The right of a party to an action to resist discovery or to refuse to disclose
evidence is a limited right existing only in certain well defined circumstances.
As was held in Adams v Moffat, Hutchins & Co., (1906) 23 SC 343, there
As was held in Adams v Moffat, Hutchins & Co., (1906) 23 SC 343, there
are four main grounds upon which discovery can be resisted. The first is
if the document is criminatory or penal; the second if it is covered by legal
professional privilege; the third is if it will disclose the party’s evidence
and the fourth ground that if it were disclosed it would be injurious to
public interest.
In the instant case the only ground possibly applicable is that the
document would disclose the defendant’s evidence. It seems to me that
the reason for this rule is that the one party is not entitled to know
whether the other party is going to call witnesses and, in the event of such
party calling witnesses, who they are and what they will say. (Cf Knapp v
Harvey, (1911) 2 K.B. 725) as was held in re Stracham, (1895) 1 CH. 439 ,
to give one side the opportunity of knowing what the witnesses for the
other side are going to say and who they are, would give an undue
advantage to that side, which from experience would be most unjust to
the other side.
Statements such the one made by second plaintiff to defendant’s agent are
in my view on a different footing. Defendant does not hold this document
as a statement of his witness, nor does he intend using it as such. He holds
it with the intention, if possible, of damaging the plaintiff’s case.
Frankness in discovery is encouraged because this will narrow down the
issues and cut down the volume of evidence. It seems to me that there can
be no difference between a statement like the one now under discussion
and a letter written by the second defendant containing the same
information.
I accordingly hold that this is not a privileged statement and that it should
have been disclosed by the defendant in his affidavit of discovery. Unless,
therefore, the defendant is granted leave in terms of Rule 35(4) to make
use of this document it may not be used in crossexamination or in any
other way.”
These remarks were cited with approval by Jones J in Mazele v Minister of Law &
Order 1994 (3) SA 380 (E).
[14] The respondent’s allegation that the requested documents are witness statements can
be related to the request for discovery of “any internal or other memoranda concerning the
operation undertaken by the undercover agents”. These documents are essentially
communications between the respondent and its undercover agents regarding the undercover
communications between the respondent and its undercover agents regarding the undercover
operation. They can therefore be regarded as communications between principal and agent.
[15] The general rule regarding communications between principal and agent is that they
are not privileged unless those communications are made when litigation is pending or
anticipated and relate to evidence likely to be produced at the trial by the principal. See
Herbestein & Van Wirren (supra) at page 598. In United Tobacco Companies (South)
Ltd 1953 (1) SA (T) the court ordered the discovery of certain reports which contained
information regarding the transaction that formed part of the subject matter of litigation. The
court’s reasoning was that those specified communications were not made when litigation
was pending or in contemplation thereof. The court held: (quoting from the head note):
“.....however, as the February report which was a communication
between principal and agent in the matter of his agency, contained
information of the facts and circumstances of the transaction which was
the subject matter of the litigation, that it was not privileged even though
the possibility of litigation might at that time have been contemplated.”
[16] In the matter before me there is no doubt that when the communications took place
between the respondent and the undercover agents there was no pending litigation between
the parties nor can it be said that they were made in contemplation of litigation. I am also
not persuaded that these documents are not otherwise discoverable. It is clear that these
documents are relevant and that their discovery will lead to a train of enquiry which may
ultimately serve to advance the applicants’ case or impeach the respondent’s case. In
Ferreira v Endley (supra) Eksteen J said at 622AD:
“The words
“all documents relating to any matter in question in such action
(whether such matter is one arising between the party requiring
discovery and the party required to make discovery or not)”
appearing in Rule 35, must be given a wide interpretation, and will
include any document which may lead to a train of enquiry which may
include any document which may lead to a train of enquiry which may
ultimately serve to advance the case of the party seeking discovery or to
damage the case of his adversary. (Cf Compagne Financiere et
Commerciale du Pacifique v Peruvian Guano Co., (1882) 11 Q.B.D. 55,
quoted with approval in Maxwell and Another v Rosenberg and Others,
1927 W.L.D. 1 at p4, and Federal Wine & Brandy Co. Ltd v Kantor, 1958
(4) SA 735 (E). In the present case several of the letters which are not
referred to in the discovery affidavit contain references to issues between
the parties which may well be important at the trial, and I do not consider
that, at this stage, I can say that the defendant cannot be prejudiced by
nondisclosure. I have no doubt, therefore in all the circumstances, that
defendant is entitled to succeed in his application for a postponement and
the plaintiff should be ordered to pay the wasted costs caused by his late
and incomplete discovery.”
It therefore appears justified to conclude, on this basis that the communications
between the respondent and the undercover agents are not privileged and should be
discovered.
[17] The other documents sought to be discovered are “a copy of any writing embodying
any contractual arrangements between the undercover agents and the respondent” and
“copies of the records of all other disciplinary proceedings in which any of the
undercover witnesses gave evidence regardless of whether the employees were found
guilty or not.” A document embodying a contractual arrangement between parties can
hardly be regarded as a communication between those parties. It is a document regulating the
parties’ relationship. A party seeking the discovery of the document must satisfy the court of
that document’s relevance. In this case applicants have not demonstrated in what respects
they allege that this document is relevant. The most they state about the undercover agents
is:
“17.1 The legitimacy of the undercover agents, more specifically, their
identity and whether they were in fact employed by the respondent and
were not persons who were arbitrarily called upon to give evidence
against the second to fifth applicants at their disciplinary enquiries;
17.2 The accuracy and truthfulness of the evidence which was given by the
undercover agents and relied upon in dismissing the second to fifth applicants.”
[18] In my view there is no basis to suggest that documents embodying contractual
[18] In my view there is no basis to suggest that documents embodying contractual
arrangements between the respondent and the agents are relevant to the issues in this matter.
The subject matter in this matter has nothing to do with the contractual arrangement between
the respondent and the agents, it has more to do with the veracity of their evidence. I can also
find no basis to suggest that these documents will advance the case of the applicants or may
impeach the respondent’s case.
[19] The other category of documents requested relate to the evidence of the undercover
agents at disciplinary enquiries involving other employees. These documents do not relate to
any matter in dispute in the present matter. Their relevance can only relate to the modus
operand of the undercover agents and possibly be relevant concerning questions of credibility
and reliability. I have already stated that courts have in the past permitted the discovery of a
document which may lead to a train of enquiry which may ultimately serve to advance the
case of the party seeking discovery and/or to damage the case of the party resisting discovery.
See Ferreira v Endley (Supra). On this basis I find that the respondent is not justified in
refusing to discover these documents.
[20] Whilst it is so that I have found no merit in the respondent’s resistance to discovering
two of the three categories of documents, there remains, still for consideration, the matter of
the respondent’s intended application to lead the evidence of the undercover agents in
camera. It is correct, as pointed out by the respondent that discovery of the documents will
render such intended application nugatory. It appears justified therefore to rule that the
discovery of further documents permitted by this court be held in abeyance until after the
respondent’s intended application has been finally determined.
[21] In the circumstances I make the following order:
1. The respondent is ordered to discover the documents set out in paragraphs 1
and 3 of the notice of motion.
2. The respondent shall make discovery of the stated documents within 14 days from the
2. The respondent shall make discovery of the stated documents within 14 days from the
date on which an order or judgment is given relating to its application to lead certain evidence
in camera.
3. The respondent is ordered to lodge its application in which it seeks to lead evidence in
camera, within 21 days from the date of this judgment.
4. The respondent is ordered to pay the applicants’ costs.
MLAMBO J
Date of judgment: 05 March 1999
For the applicants: Mr I Moodley instructed by Van Onselen O’ Connel Inc.
For the respondent: Mr L.C.A Winchester instructed by Strauss Daly Inc.