Du Toit and Another v Stellenbosch University and Another (10332/2014) [2015] ZAWCHC 126 (8 September 2015)

Du Toit and Another v Stellenbosch University and Another (10332/2014) [2015] ZAWCHC 126 (8 September 2015)

The court found that the draft KPMG report was protected by litigation privilege, as it was commissioned by the University for the purpose of obtaining legal advice in anticipation of litigation. However, the privilege existed solely for the University's benefit and could be waived by it. The University had withdrawn its opposition to disclosure and confirmed in correspondence that it did not object to production of the report. The court held that this constituted a waiver of privilege, regardless of whether an affidavit was filed. Roux, as intervening party, had no independent right to assert privilege or prevent disclosure, as the privilege did not exist for his benefit. The application...

Citation
[2015] ZAWCHC 126
Parties
Applicant: Peter Jacobus Viljoen Du Toit; Applicant: Media 24 Ltd; Respondent: Stellenbosch University; Appellant: Jurie Roux
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
8 September 2015
Case Number
10332/2014
Procedural Posture
Review Application / Judgment on Application to Compel Disclosure Under PAIA
Outcome
Application granted. The University is ordered to provide the applicants with the requested records. Costs awarded against the intervening party for his intervention, with specific costs orders regarding interlocutory applications.
Judges
Rogers
Legal Topics
Promotion of Access to Information Act, Litigation Privilege, Waiver of Privilege, Public Interest Override
Administrative Law Civil Procedure Promotion of Access to Information Act Litigation Privilege Waiver of Privilege Public Interest Override

Case Brief

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Parties

Peter Jacobus Viljoen Du Toit

Applicant

Media 24 Ltd

Applicant

Stellenbosch University

Respondent

Jurie Roux

Appellant

Procedural Posture

Review Application / Judgment on Application to Compel Disclosure Under PAIA

Legal Issues

  1. 1 Whether the draft KPMG report held by the University is protected by litigation privilege under section 40 of PAIA.
  2. 2 Whether the University has waived its privilege over the draft KPMG report, thereby obliging disclosure.
  3. 3 Whether the intervening party (Roux) may assert privilege or prevent disclosure when the University has withdrawn opposition.

Ratio Decidendi

The court found that the draft KPMG report was protected by litigation privilege, as it was commissioned by the University for the purpose of obtaining legal advice in anticipation of litigation. However, the privilege existed solely for the University's benefit and could be waived by it. The University had withdrawn its opposition to disclosure and confirmed in correspondence that it did not object to production of the report. The court held that this constituted a waiver of privilege, regardless of whether an affidavit was filed. Roux, as intervening party, had no independent right to assert privilege or prevent disclosure, as the privilege did not exist for his benefit. The application...

Court Disposition

Application granted. The University is ordered to provide the applicants with the requested records. Costs awarded against the intervening party for his intervention, with specific costs orders regarding interlocutory applications.

Orders

  • The respondent is ordered, within 14 days of this order, to provide the applicants with copies of all the records requested in the first applicant’s request for access to information dated 22 November 2013.
  • The applicants are to pay the intervening party’s costs associated with the interlocutory application dated 24 July 2015 and the rule 28(1) notice dated 5 August 2015.