TNM v Member of the Executive Council For Health: KwaZulu-Natal (10133/2015P) [2020] ZAKZPHC 56 (15 October 2020)

TNM v Member of the Executive Council For Health: KwaZulu-Natal (10133/2015P) [2020] ZAKZPHC 56 (15 October 2020)

The court found that Dr Batchelder's report was obtained for the purposes of litigation and thus attracted litigation privilege. The mere reference to the report in Dr Hall's report, without disclosure of its contents or conclusions, did not amount to a waiver of privilege, whether express or implied. The conduct of the respondent was not objectively inconsistent with the intention to maintain confidentiality, nor did it unfairly fetter the applicant's ability to respond to the respondent's case. The application for production of the report was therefore dismissed, and costs were awarded to the respondent.

Citation
[2020] ZAKZPHC 56
Parties
Applicant: TNM; Respondent: Member of the Executive Council For Health: KwaZulu-Natal
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
15 October 2020
Case Number
10133/2015P
Procedural Posture
Interlocutory Application / Application for Production of Privileged Report Under Uniform Rule 35(3)
Outcome
Application dismissed with costs.
Judges
Gorven
Legal Topics
Discovery of Documents, Litigation Privilege, Waiver of Privilege, Uniform Rules of Court
Civil Procedure Discovery of Documents Litigation Privilege Waiver of Privilege Uniform Rules of Court

Case Brief

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Parties

TNM

Applicant

Member of the Executive Council For Health: KwaZulu-Natal

Respondent

Procedural Posture

Interlocutory Application / Application for Production of Privileged Report Under Uniform Rule 35(3)

Legal Issues

  1. 1 Whether the respondent is obliged to produce Dr Batchelder's report under Uniform rule 35(3).
  2. 2 Whether litigation privilege attaches to the report and, if so, whether such privilege has been waived by disclosure to a third party.

Ratio Decidendi

The court found that Dr Batchelder's report was obtained for the purposes of litigation and thus attracted litigation privilege. The mere reference to the report in Dr Hall's report, without disclosure of its contents or conclusions, did not amount to a waiver of privilege, whether express or implied. The conduct of the respondent was not objectively inconsistent with the intention to maintain confidentiality, nor did it unfairly fetter the applicant's ability to respond to the respondent's case. The application for production of the report was therefore dismissed, and costs were awarded to the respondent.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.