Randles v Chemical Specialities Ltd (D286/10) [2011] ZALCD 2; [2011] 8 BLLR 783 (LC); (2011) 32 ILJ 1397 (LC) (1 February 2011)

Randles v Chemical Specialities Ltd (D286/10) [2011] ZALCD 2; [2011] 8 BLLR 783 (LC); (2011) 32 ILJ 1397 (LC) (1 February 2011)

The court held that the respondent, having raised the defence that the disclosures were made by a legal advisor in the circumstances envisaged by the Protected Disclosures Act, bears both the onus and the duty to begin in relation to the preliminary issues. The court found that the privilege afforded by section 5 of the PDA is properly raised by the respondent as a defence or exception, and that the common law principle applies: the party claiming professional privilege must prove the circumstances justifying such reliance. Placing the onus on the applicant to prove a negative would be contrary to policy considerations and could deter legitimate whistleblowers. The exception raised by the...

Citation
[2011] ZALCD 2
Parties
Applicant: David John Randles; Respondent: Chemical Specialities Limited
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
1 February 2011
Case Number
D286/10
Procedural Posture
Civil Judgment / Determination of Preliminary Issues in Limine
Outcome
Preliminary issues determined in favour of the applicant; exception dismissed; costs awarded to applicant.
Judges
AC Basson
Legal Topics
Protected Disclosure, Legal Professional Privilege, Onus of Proof, Occupational Detriment, Exception to Pleadings
Labour Law Civil Procedure Protected Disclosure Legal Professional Privilege Onus of Proof Occupational Detriment Exception to Pleadings

Case Brief

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Parties

David John Randles

Applicant

Chemical Specialities Limited

Respondent

Procedural Posture

Civil Judgment / Determination of Preliminary Issues in Limine

Legal Issues

  1. 1 Who bears the onus and duty to begin regarding whether the disclosures relied upon are protected disclosures under the Protected Disclosures Act.
  2. 2 Whether the disclosures made by the applicant constitute protected disclosures as defined by the Protected Disclosures Act, considering the exclusion for legal advisors.
  3. 3 Whether, on the applicant's pleaded facts, a case is made out that the disclosures are protected disclosures under the PDA, assuming all facts are true.

Ratio Decidendi

The court held that the respondent, having raised the defence that the disclosures were made by a legal advisor in the circumstances envisaged by the Protected Disclosures Act, bears both the onus and the duty to begin in relation to the preliminary issues. The court found that the privilege afforded by section 5 of the PDA is properly raised by the respondent as a defence or exception, and that the common law principle applies: the party claiming professional privilege must prove the circumstances justifying such reliance. Placing the onus on the applicant to prove a negative would be contrary to policy considerations and could deter legitimate whistleblowers. The exception raised by the...

Court Disposition

Preliminary issues determined in favour of the applicant; exception dismissed; costs awarded to applicant.

Orders

  • The respondent bears the onus and the duty to begin on the issues in paragraph [108] of their response to the statement of claim.
  • The exception is dismissed.