South Africa Case Law

Ibex RSA Holdco Limited and Another v Tiso Blackstar Group (Pty) Ltd and Others

Ibex RSA Holdco Limited and Another v Tiso Blackstar Group (Pty) Ltd and Others [2024] ZASCA 166; 2025 (2) SA 408 (SCA) (4 December 2024)

Court

Supreme Court of Appeal

Case number

862/2022

Judges

Zondi, Schippers, Hughes, Meyer, Tlaletsi

The Supreme Court of Appeal held that the forensic investigation report was not protected by legal professional privilege or litigation privilege under section 67 of PAIA, as its dominant purpose was to investigate accounting irregularities and enable Steinhoff to produce financial statements, not to obtain legal advice or prepare for litigation. The evidence did not support the assertion that litigation was pending or contemplated at the time of commissioning the report. Even if privilege existed, it was waived by Steinhoff's publication of the overview, which disclosed the substance and key…

Source excerpt

• Promotion Of Access To Information Act
• Legal Professional Privilege
• Public Interest Override
• Corporate Fraud
• Disclosure Of Evidence
• Waiver Of Privilege

Netcare Medical Scheme v Council for Medical Schemes and Another (2023-006058)

Netcare Medical Scheme v Council for Medical Schemes and Another (2023-006058) [2024] ZAGPPHC 247 (7 March 2024)

Court

North Gauteng High Court, Pretoria

Case number

2023-006058

Judge

Nyathi

The court found that the respondents, by referring to and summarizing the legal opinion in their answering affidavit, acted in a manner that objectively constitutes an implied waiver of privilege. Unlike in Contango, where privilege was asserted and no reliance was placed on the contents of the opinions, the respondents here did not assert privilege in their affidavit and relied on the legal opinion to justify their actions, including the decision to seek curatorship. The legal opinion was integral to the respondents' case and the relief sought. The court held that the shield of privilege was…

Source excerpt

• Discovery Of Documents
• Legal Professional Privilege
• Waiver Of Privilege
• Medical Schemes Act
• Curatorship

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…

Source excerpt

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

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…

Source excerpt

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

Astral Operations Ltd t/a County Fair Foods and Others v Minister for Local Government, Environmental Affairs and Development Planning (W Cape) and Others (3509/2014)

Astral Operations Ltd t/a County Fair Foods and Others v Minister for Local Government, Environmental Affairs and Development Planning (W Cape) and Others (3509/2014) [2017] ZAWCHC 114; 2019 (3) SA 189 (WCC) (11 October 2017)

Court

Western Cape High Court, Cape Town

Case number

3509/2014

Judge

Binns-Ward

The High Court held that a disputed memorandum was protected by legal professional privilege and that no waiver had been shown. The application to compel production was dismissed.

• Legal Professional Privilege
• Litigation Privilege
• Waiver Of Privilege
• Judicial Review
• Production Of Documents
• Legal-professional-privilege

South African Airways Soc v BDFM Publishers (Pty) Ltd and Others (2015/33205)

South African Airways Soc v BDFM Publishers (Pty) Ltd and Others (2015/33205) [2015] ZAGPJHC 293; [2016] 1 All SA 860 (GJ); 2016 (2) SA 561 (GJ) (17 December 2015)

Court

South Gauteng High Court, Johannesburg

Case number

2015/33205

Judge

Roland Sutherland

The court held that legal advice privilege is a negative right, entitling a client to refuse disclosure in legal proceedings, but does not confer a positive right to prevent publication once confidentiality is lost. The information at issue had already entered the public domain prior to the urgent application, rendering any interdict futile. The applicant failed to take reasonable steps to ensure effective service of the urgent application, and the conduct of its attorneys was unprofessional. The court found no evidence of waiver of confidentiality by SAA, but held that even if confidentialit…

Source excerpt

• Legal Advice Privilege
• Urgent Interdict
• Public Interest Override
• Freedom Of Expression
• Confidential Information
• Waiver Of Privilege

Du Toit and Another v Stellenbosch University and Another (10332/2014)

Du Toit and Another v Stellenbosch University and Another (10332/2014) [2015] ZAWCHC 126 (8 September 2015)

Court

Western Cape High Court, Cape Town

Case number

10332/2014

Judge

Rogers

The court found that the draft KPMG report was protected by litigation privilege, as it was commissioned by the University for the purpose of obtaining legal advice in anticipation of litigation. However, the privilege existed solely for the University's benefit and could be waived by it. The University had withdrawn its opposition to disclosure and confirmed in correspondence that it did not object to production of the report. The court held that this constituted a waiver of privilege, regardless of whether an affidavit was filed. Roux, as intervening party, had no independent right to asser…

Source excerpt

• Promotion Of Access To Information Act
• Litigation Privilege
• Waiver Of Privilege
• Public Interest Override

A Company and Others v Commissioner for the South African Revenue Services (16360/2013)

A Company and Others v Commissioner for the South African Revenue Services (16360/2013) [2014] ZAWCHC 33; 2014 (4) SA 549 (WCC); 76 SATC 321 (17 March 2014)

Court

Western Cape High Court, Cape Town

Case number

16360/2013

Judge

Binns-Ward

The High Court held that attorneys’ fee notes are not privileged per se; only portions revealing the substance of legal advice may be withheld.

• Legal Professional Privilege
• Tax Administration Act
• Discovery And Disclosure
• Waiver Of Privilege
• Legal-professional-privilege
• Tax-administration-act

Competition Commission of South Africa v Arcerlormittal South Africa Ltd and Others (680/12)

Competition Commission of South Africa v Arcerlormittal South Africa Ltd and Others (680/12) [2013] ZASCA 84; [2013] 3 All SA 234 (SCA); 2013 (5) SA 538 (SCA); [2013] 1 CPLR 1 (SCA) (31 May 2013)

Court

Supreme Court of Appeal

Case number

680/12

Judges

Brand, Nugent, Cachalia, Pillay, Mbha

The Supreme Court of Appeal held that the leniency application submitted by Scaw was privileged, as it was procured by the Commission for the purpose of contemplated litigation against alleged cartelists. However, the Commission waived this privilege by referring to the leniency application in its referral affidavit, thereby making it discoverable under rule 35(12). Any entitlement to claim the application as restricted information under rule 14(1)(e) was similarly waived. The court further held that Scaw's claim to confidentiality must be determined by the tribunal in accordance with the Com…

Source excerpt

• Litigation Privilege
• Leniency Policy
• Confidential Information
• Discovery Of Documents
• Waiver Of Privilege