Fondling v Minister of Correctional Services (584/08) [2009] ZAECPEHC 28 (11 June 2009)

Fondling v Minister of Correctional Services (584/08) [2009] ZAECPEHC 28 (11 June 2009)

The court found that the defendant failed to establish that the investigation dossiers were protected by legal professional privilege. There was no evidence that the communications were made to a legal adviser in confidence for the purpose of pending litigation. The defendant did not dispute the relevance of the documents, nor did it allege that litigation was contemplated at the time of the departmental enquiry. The court distinguished the authorities relied upon by the respondent, noting that the present application was for discovery under Rule 35, not for access under the Promotion of Access to Information Act or section 23 of the Interim Constitution. The court held that the plaintiff...

Citation
[2009] ZAECPEHC 28
Parties
Applicant: Patrick Fondling; Respondent: Minister of Correctional Services
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
11 June 2009
Case Number
584/08
Procedural Posture
Civil Application / Discovery Application Under Rule 35(3)
Outcome
Application granted; defendant ordered to make available the investigation dossiers and pay costs.
Judges
J C H Jansen
Legal Topics
Discovery of Documents, Legal Professional Privilege, Relevance of Evidence
Civil Procedure Discovery of Documents Legal Professional Privilege Relevance of Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Patrick Fondling

Applicant

Minister of Correctional Services

Respondent

Procedural Posture

Civil Application / Discovery Application Under Rule 35(3)

Legal Issues

  1. 1 Whether the defendant is entitled to refuse discovery of departmental investigation dossiers on the basis of legal privilege.
  2. 2 Whether the plaintiff has laid a sufficient foundation for the relief sought under Rule 35(3).
  3. 3 Whether the documents sought are relevant and not protected by legal professional privilege.

Ratio Decidendi

The court found that the defendant failed to establish that the investigation dossiers were protected by legal professional privilege. There was no evidence that the communications were made to a legal adviser in confidence for the purpose of pending litigation. The defendant did not dispute the relevance of the documents, nor did it allege that litigation was contemplated at the time of the departmental enquiry. The court distinguished the authorities relied upon by the respondent, noting that the present application was for discovery under Rule 35, not for access under the Promotion of Access to Information Act or section 23 of the Interim Constitution. The court held that the plaintiff...

Court Disposition

Application granted; defendant ordered to make available the investigation dossiers and pay costs.

Orders

  • The defendant is directed to make available to the plaintiff the original departmental investigation dossiers in respect of the assault of the plaintiff pertaining to Department of Correctional Services members Rockman, Zeelie, Williams and Simons, including reports, minutes, witness statements, photographs,...
  • The defendant is directed to make payment of the costs of this application.