South Africa Case Law

Wolf v S - Ruling (16/2022)

Wolf v S - Ruling (16/2022) [2023] ZAECQBHC 62 (20 October 2023)

Court

Eastern Cape High Court, Gqeberha

Case number

16/2022

Judge

Govindjee

The court found that the applicant had established prima facie entitlement to access sections 'B' and 'C' of the police docket, given the unusual circumstances of the case, including material changes in witness statements, concerns about the impartiality of the investigating officer and prosecutor, judicial criticism of prosecutorial conduct, and the late disclosure of potentially critical evidence. The State failed to demonstrate any objective or reasonable grounds for refusing disclosure that would realistically impede the ends of justice. The court applied the test from Panayiotou, holding…

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• Docket Disclosure
• Right To Fair Trial
• Litigation Privilege
• Cross Examination
• Disclosure Of Evidence

MEC for the Department of Health v Mousomi (367/2017)

MEC for the Department of Health v Mousomi (367/2017) [2023] ZAECBHC 14 (15 June 2023)

Court

Eastern Cape High Court, Bhisho

Case number

367/2017

Judges

F B A Dawood, S M Mbenenge, M Makaula

The court held that the interlocutory order compelling discovery of Dr Boon's report was appealable under section 17(1) of the Superior Courts Act, as the interests of justice test now governs appealability rather than the traditional Zweni test. On the merits, the court found that Dr Boon's report was compiled after litigation commenced, for the purpose of legal advice, and was marked as privileged and not for court use. Although the report was furnished to Prof Jeena, he did not utilise it in his expert report, and there was no express or implied waiver of privilege. The authorities establi…

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• Discovery Of Documents
• Litigation Privilege
• Waiver Of Privilege
• Expert Evidence
• Uniform Rule 35
• Interlocutory Orders

S v Murphy and Others (CC27/2018)

S v Murphy and Others (CC27/2018) [2022] ZAWCHC 278 (15 August 2022)

Court

Western Cape High Court, Cape Town

Case number

CC27/2018

Judge

D M Davis

The court set aside broad subpoenas to prosecution staff as an abuse of process, but confirmed a subpoena requiring a State advocate to testify.

• Subpoena Duces Tecum
• Litigation Privilege
• Abuse Of Process
• Fair Trial Rights
• Disclosure Of Evidence
• Criminal Procedure Act

Tiso Blackstar Group (Pty) Ltd and Others v Steinhoff International Holdings N.V (18706/2019)

Tiso Blackstar Group (Pty) Ltd and Others v Steinhoff International Holdings N.V (18706/2019) [2022] ZAWCHC 265; 2023 (1) SA 283 (WCC) (10 May 2022)

Court

Western Cape High Court, Cape Town

Case number

18706/2019

Judge

L.G. Nuku

The court found that Steinhoff failed to provide sufficient objective evidence that litigation was contemplated as likely at the time the PwC report was commissioned. The evidence presented, including the SENS announcement and the engagement letter, did not establish the dominant purpose of litigation, and Steinhoff's assertions were unsupported by underlying facts. The court held that the right to freedom of expression under section 16 of the Constitution entitles the applicants to access the report under section 50 of PAIA. The refusal to provide the report unjustifiably limited the applica…

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• Promotion Of Access To Information Act
• Litigation Privilege
• Freedom Of Expression
• Media Rights
• Severability Of Records

Caxton and CTP Publishers and Printers Limited v Novus Holdings Limited (219/2021)

Caxton and CTP Publishers and Printers Limited v Novus Holdings Limited (219/2021) [2022] ZASCA 24; [2022] 2 All SA 299 (SCA) (9 March 2022)

Court

Supreme Court of Appeal

Case number

219/2021

Judges

Petse, Molemela, Plasket, Hughes, Unterhalter

The Supreme Court of Appeal held that documents referenced in Novus’s affidavit had to be produced under rule 35(12), including the section 165(4) report, subject to confidentiality limits.

• Discovery Procedure
• Rule 35 12
• Confidentiality Regime
• Litigation Privilege
• Companies Act Section 165
• Derivative Actions

Mason v Mason NO (2353/2016)

Mason v Mason NO (2353/2016) [2021] ZAECPEHC 57 (23 November 2021)

Court

Eastern Cape High Court, Port Elizabeth

Case number

2353/2016

Judge

J W Eksteen

The High Court dismissed an application to compel discovery of litigation documents and expert-related correspondence, holding they were protected by litigation privilege.

• Litigation Privilege
• Discovery Of Documents
• Expert Evidence
• Rule 35
• Rule 36
• Litigation-privilege

TNM v Member of the Executive Council For Health: KwaZulu-Natal (10133/2015P)

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

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

10133/2015P

Judge

Gorven

The High Court held that a medical report prepared for litigation remained privileged, and mere mention of it in another report did not waive privilege.

• Discovery Of Documents
• Litigation Privilege
• Waiver Of Privilege
• Uniform Rules Of Court
• Litigation-privilege
• Waiver-of-privilege

Contango Trading SA v Central Energy Fund SOC Ltd (533/2019)

Contango Trading SA v Central Energy Fund SOC Ltd (533/2019) [2019] ZASCA 191; [2020] 1 All SA 613 (SCA); 2020 (3) SA 58 (SCA) (13 December 2019)

Court

Supreme Court of Appeal

Case number

533/2019

Judges

Cachalia, Wallis, Zondi, Van der Merwe, Mokgohloa

The Supreme Court of Appeal held that the references to a 'legal review' in the respondents' founding affidavit did not constitute references to a specific document as contemplated by Rule 35(12), but rather to a process. Therefore, the legal review was not liable to be disclosed. The court found that the KPMG and PwC reports were obtained for the purpose of understanding the financial consequences of the impugned contracts, not for legal advice or in contemplation of litigation, and thus did not meet the requirements for litigation privilege. Consequently, these reports must be disclosed. Re…

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• Discovery Under Uniform Rules
• Legal Professional Privilege
• Litigation Privilege
• Waiver Of Privilege
• Review Of Administrative Action

Chard v Old Mutual Insure Limited (A66/2017)

Chard v Old Mutual Insure Limited (A66/2017) [2019] ZAKZDHC 23; [2020] 1 All SA 381 (KZD) (30 September 2019)

Court

Kwazulu-Natal High Court, Durban

Case number

A66/2017

Judge

Lopes

The court found that Old Mutual had not satisfied the requirements for invoking litigation privilege over the expert reports and correspondence. The evidence did not establish that the reports were obtained for the definite purpose of obtaining legal advice in circumstances where litigation was likely or reasonably anticipated. The initial involvement of Old Mutual was cooperative, and litigation was not contemplated until much later. The respondent failed to demonstrate the necessary intention or linkage to legal advice at the relevant time. Accordingly, the applicant was entitled to the dis…

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• Litigation Privilege
• Disclosure Of Documents
• Insurance Claims
• Expert Evidence

MEC for Health,North West Province v Dumisani,MR oo BM ;In Re:Dumisani,MR obo BM v MEC for Health,North West Province (319/2016)

MEC for Health,North West Province v Dumisani,MR oo BM ;In Re:Dumisani,MR obo BM v MEC for Health,North West Province (319/2016) [2019] ZANWHC 28 (31 May 2019)

Court

North West High Court, Mafikeng

Case number

319/2016

Judge

R D Hendricks

The court held that expert reports prepared for the purpose of litigation are protected by litigation privilege and are not discoverable unless privilege is waived. Mere reference to expert reports in expert summaries does not amount to waiver of privilege. Rule 36(9) requires only a summary of expert opinion and reasons, not disclosure of the full report. The applicant failed to establish that privilege was waived or that the respondent was obliged to produce the expert reports and underlying documents. Accordingly, the application to compel production was dismissed.

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• Discovery Of Documents
• Expert Evidence
• Litigation Privilege
• Rule 35
• Rule 36