Contango Trading SA v Central Energy Fund SOC Ltd (533/2019) [2019] ZASCA 191; [2020] 1 All SA 613 (SCA); 2020 (3) SA 58 (SCA) (13 December 2019)

Contango Trading SA v Central Energy Fund SOC Ltd (533/2019) [2019] ZASCA 191; [2020] 1 All SA 613 (SCA); 2020 (3) SA 58 (SCA) (13 December 2019)

The Supreme Court of Appeal held that the references to a 'legal review' in the respondents' founding affidavit did not constitute references to a specific document as contemplated by Rule 35(12), but rather to a process. Therefore, the legal review was not liable to be disclosed. The court found that the KPMG and PwC reports were obtained for the purpose of understanding the financial consequences of the impugned contracts, not for legal advice or in contemplation of litigation, and thus did not meet the requirements for litigation privilege. Consequently, these reports must be disclosed. Regarding the counsel opinions, the court held that privilege was clearly asserted and not waived by...

Citation
[2019] ZASCA 191
Parties
Appellant: Contango Trading SA; Appellant: Natixis SA; Appellant: Glencore Energy UK Limited; Respondent: Central Energy Fund SOC Limited; Respondent: Strategic Fuel Fund Association NPC; Respondent: Venus Rays Trade (Pty) Ltd; Respondent: Taleveras Petroleum Trading DMCC; Respondent: Vesquin Trading (Pty) Ltd; Respondent: Vitol Energy (SA) (Pty) Ltd; Respondent: Vitol SA; Respondent: Minister of Energy; Respondent: Minister of Finance
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
13 December 2019
Case Number
533/2019
Procedural Posture
Civil Appeal / Appeal From Interlocutory Applications in the Western Cape Division of the High Court
Outcome
Appeal dismissed in respect of the legal review and counsel opinions; appeal upheld in respect of the KPMG and PwC reports.
Judges
Cachalia, Wallis, Zondi, Van der Merwe, Mokgohloa
Legal Topics
Discovery Under Uniform Rules, Legal Professional Privilege, Litigation Privilege, Waiver of Privilege, Review of Administrative Action
Civil Procedure Commercial and Corporate Discovery Under Uniform Rules Legal Professional Privilege Litigation Privilege Waiver of Privilege Review of Administrative Action

Case Brief

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Parties

Contango Trading SA

Appellant

Natixis SA

Appellant

Glencore Energy UK Limited

Appellant

Central Energy Fund SOC Limited

Respondent

Strategic Fuel Fund Association NPC

Respondent

Venus Rays Trade (Pty) Ltd

Respondent

Taleveras Petroleum Trading DMCC

Respondent

Vesquin Trading (Pty) Ltd

Respondent

Vitol Energy (SA) (Pty) Ltd

Respondent

Vitol SA

Respondent

Minister of Energy

Respondent

Minister of Finance

Respondent

Procedural Posture

Civil Appeal / Appeal From Interlocutory Applications in the Western Cape Division of the High Court

Legal Issues

  1. 1 Whether references to a 'legal review' in affidavits constitute references to a discoverable document under Rule 35(12).
  2. 2 Whether the KPMG and PwC reports are protected by litigation privilege and thus exempt from discovery.
  3. 3 Whether privilege over counsel's opinions was waived by the manner of reference in the founding affidavit.

Ratio Decidendi

The Supreme Court of Appeal held that the references to a 'legal review' in the respondents' founding affidavit did not constitute references to a specific document as contemplated by Rule 35(12), but rather to a process. Therefore, the legal review was not liable to be disclosed. The court found that the KPMG and PwC reports were obtained for the purpose of understanding the financial consequences of the impugned contracts, not for legal advice or in contemplation of litigation, and thus did not meet the requirements for litigation privilege. Consequently, these reports must be disclosed. Regarding the counsel opinions, the court held that privilege was clearly asserted and not waived by...

Court Disposition

Appeal dismissed in respect of the legal review and counsel opinions; appeal upheld in respect of the KPMG and PwC reports.

Orders

  • The appeal by Contango Trading SA and Natixis SA against the dismissal of their applications for disclosure of the legal review is dismissed.
  • The appeals by Contango Trading SA, Natixis SA and Glencore Energy UK Ltd against the dismissal of their applications for disclosure of the opinions of counsel are dismissed.