Nash and Another v Director of Public Prosecutions and Others (22324/17) [2019] ZAGPJHC 29 (4 February 2019)

Nash and Another v Director of Public Prosecutions and Others (22324/17) [2019] ZAGPJHC 29 (4 February 2019)

The court found that the application for a stay of civil proceedings and declaratory relief was unsupported by specific evidence of breach of legal professional privilege. The applicants failed to identify particular documents or communications that were privileged or to provide concrete objections. The determination of admissibility and privilege is fact-bound and best left to the trial court. The application was deemed a strategic attempt to delay the civil trial, lacking merit and constituting an abuse of process. The court aligned with previous findings that the applicants had engaged in deliberate delay tactics and dismissed the application with costs on the attorney and client scale.

Citation
[2019] ZAGPJHC 29
Parties
Applicant: Simon John Nash; Applicant: Midmacor Industries Limited; Respondent: Director of Public Prosecutions; Respondent: Magistrate for the Region of Johannesburg; Respondent: Powerpack Pension Fund (in liquidation); Respondent: June Stacey Marks; Respondent: Antony Louis Mostert N.O.; Respondent: Antony Louis Mostert; Respondent: A L Mostert & Company Inc; Respondent: Cullinan Holdings Limited; Respondent: Quentin Alfred Southey; Respondent: Aubrey Henley Wynne-Jones; Respondent: Wynne-Jones & Company Employee Benefits Consultants; Respondent: MTM Industries Limited; Respondent: Karrimor Africa (Pty) Limited; Respondent: Outdoor-Lifestyle Holdings Limited; Respondent: Paul Ronald Anthony Ferguson; Respondent: Neil Oscar Davies; Respondent: Derek North Carstens; Respondent: Anthony Alexander Thompson; Respondent: Peter Ghavalas; Respondent: Financial Services Board; Respondent: Johan Esterhuizen
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 February 2019
Case Number
22324/17
Procedural Posture
Stay Application / Application for Stay and Declaratory Relief Prior to Civil Trial
Outcome
Application dismissed with costs on the scale as between attorney and client.
Judges
Fisher
Legal Topics
Stay of Proceedings, Legal Professional Privilege, Fraudulent Scheme, Breach of Fiduciary Duty, Declaratory Relief, Abuse of Process
Civil Procedure Commercial and Corporate Delict Stay of Proceedings Legal Professional Privilege Fraudulent Scheme Breach of Fiduciary Duty Declaratory Relief +1 more

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Parties

Simon John Nash

Applicant

Midmacor Industries Limited

Applicant

Director of Public Prosecutions

Respondent

Magistrate for the Region of Johannesburg

Respondent

Powerpack Pension Fund (in liquidation)

Respondent

June Stacey Marks

Respondent

Antony Louis Mostert N.O.

Respondent

Antony Louis Mostert

Respondent

A L Mostert & Company Inc

Respondent

Cullinan Holdings Limited

Respondent

Quentin Alfred Southey

Respondent

Aubrey Henley Wynne-Jones

Respondent

Wynne-Jones & Company Employee Benefits Consultants

Respondent

MTM Industries Limited

Respondent

Karrimor Africa (Pty) Limited

Respondent

Outdoor-Lifestyle Holdings Limited

Respondent

Paul Ronald Anthony Ferguson

Respondent

Neil Oscar Davies

Respondent

Derek North Carstens

Respondent

Anthony Alexander Thompson

Respondent

Peter Ghavalas

Respondent

Financial Services Board

Respondent

Johan Esterhuizen

Respondent

Procedural Posture

Stay Application / Application for Stay and Declaratory Relief Prior to Civil Trial

Legal Issues

  1. 1 Whether the civil proceedings should be stayed due to alleged breach of legal professional privilege by the applicants' former attorney.
  2. 2 Whether declaratory relief should be granted regarding the alleged breach of privilege and conspiracy.
  3. 3 Whether the application constitutes an abuse of process intended to delay the civil trial.

Ratio Decidendi

The court found that the application for a stay of civil proceedings and declaratory relief was unsupported by specific evidence of breach of legal professional privilege. The applicants failed to identify particular documents or communications that were privileged or to provide concrete objections. The determination of admissibility and privilege is fact-bound and best left to the trial court. The application was deemed a strategic attempt to delay the civil trial, lacking merit and constituting an abuse of process. The court aligned with previous findings that the applicants had engaged in deliberate delay tactics and dismissed the application with costs on the attorney and client scale.

Court Disposition

Application dismissed with costs on the scale as between attorney and client.

Orders

  • The application is dismissed with costs.
  • The applicants are to pay the costs of the application on the scale as between attorney and client.