Du Toit v Stellenbosch University (10332/2014) [2015] ZAWCHC 126 (8 September 2015) per O Rogers J.
In terms of the Promotion of Access to Information Act 2 of 2000 the High Court compelled the University to provide a forensic report to the applicant concerning alleged financial irregularities involving, amongst others, a former employee who intervened in the legal proceedings. It was held that the draft forensic report was legally privileged but that the University had waived its privilege. This prevented the intervening former employee from objecting to the disclosure of the report.
Extracts without footnotes
[2] The University refused access, relying on s 40 of the Act. That section provides that the information officer of a public body (it is common cause that the University is such) must refuse access if the record is privileged from production in legal proceedings unless the person entitled to the privilege has waived it. In August 2013 KPMG gave an oral report to the Committee regarding the financial irregularities in question. The University engaged Werksmans as its attorneys and requested KPMG to furnish its written report, when ready, directly to Werksmans, with a view to the latter providing advice and recommendations in regard to civil claims, criminal prosecution and employment law issues. KPMG delivered its draft report to Werksmans on 30 August 2013. Werksmans thereafter furnished legal advice and engaged senior counsel for an opinion.
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Draft KPMG report privileged?
[13] The argument focused on whether Roux could assert privilege, having regard to the University’s withdrawal of its opposition and its attorneys’ letter of 24 July 2015. However it is convenient first to consider whether the draft KPMG report was, subject to subsequent events, privileged. This was not a question fully addressed in argument.
[14] The form of privilege with which we are concerned is not legal professional privilege relating to communications made for purposes of obtaining legal advice but the distinct form of privilege now recognised as so-called litigation privilege (see Competition Commission v ArcelorMittal South Africa Ltd & Others 2013 (5) SA 538 (SCA) paras 20-22; Hoffmann & Paizes The South African Law of Evidence 2nd Ed 678-682).
In general, litigation privilege entitles a person to refuse to disclose documents, including communications from agents and third parties, brought into existence at a time when litigation is pending or contemplated as likely and for submission to the person’s lawyer for purposes of obtaining the latter’s advice in respect of the pending or contemplated litigation.
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[17] This ‘subsidiary rule’ cannot apply to an agent engaged specifically to undertake investigation and report to his principal on the subject matter of contemplated litigation and in circumstances where the principal intends to submit the report to his lawyer for legal advice in relation to the contemplated litigation. This was recognised by a subsequent ruling made by Clayden J as the trial judge in the same litigation.
I refer to International Tobacco Co (SA) Ltd v United Tobacco Cos (South) Ltd 1953 (4) SA 251 (W). There a private detective, Mr Plumley, had been engaged by the plaintiff, in advance of litigation, to investigate and report on matters relevant to anticipated litigation. Mr Plumley in the course of his investigations received reports from his own employees and from third persons. It was taken for granted on both sides that Mr Plumley’s report to the plaintiff was privileged. Clayden J held that what Mr Plumley’s employees and third persons had told him was likewise privileged.
[18] In the present case KPMG was specifically tasked to investigate and report to the University on matters which were anticipated to give rise to litigation and for purposes of the submission of such report to the University’s lawyers for legal advice in relation to such litigation. The draft report was thus legally privileged.
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Has the privilege been waived?
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[27] In my view, the University’s motive for withdrawing its objection to the production of the report is irrelevant. What is important is that the University does not object to the production of the report.
Insofar as may be relevant, one can safely infer that it has reached this conclusion inter alia after taking legal advice. The only reason that the report has not yet been handed over is that Roux claims a right to assert that the University is not obliged to hand over the report. I do not think he has any such right. Put differently, I am quite satisfied that the University has waived any privilege that may have existed in the draft report. It has hitherto refrained from actually giving the report to the applicants out of respect for the judicial process between the applicants and Roux. This display of deference does not give Roux any right which he did not otherwise have.”