SA Airways Soc v BDFM Publishers (Pty) Ltd (2015/33205) [2015] ZAGPJHC 293; [2016] 1 All SA 860 (GJ); 2016 (2) SA 561 (GJ) (17 December 2015) per Sutherland J.

HC headnote

Legal advice privilege – nature of – it is a species of confidential information – it is not an absolute right in SA law – it is a negative right to prevent admission into evidence of advice obtained from a legal advisor in confidence – it is not a positive right to preserve confidentiality of advice if information disclosed by unauthorised means – legal advice privilege not available to invoke against the world learning of the communications between client and legal advisor

A person may rely on a right to the preservation of confidentiality in one’ own information, inclusive of legal advice in respect of which legal advice privilege can be claimed – if confidentiality not yet breached,  an interdict may be an appropriate form of relief to preserve confidentiality  – if confidentiality in information subject to a claim of legal advice privilege is lost or any other information loses its attribute of confidentiality – unlikely that any interdictory relief can be effective – such order inappropriate

Waiver of right of privilege or of right to confidentiality of information – concept of imputed waiver – applicant had on four occasions communicated with journalists without claiming any of its rights were violated – question of whether this course of conduct amounted to a constructive intention to waive any rights which ought to be imputed to applicant- imputed waiver not to be lightly inferred – a claim of privilege can be belated – on the facts no waiver proven

Any claim of a right to confidentiality subject to the public interest in the information being published to the public – section 16 of the constitution to be weighed – on the facts, applicant was an organ of state who financial and governance affairs were of legitimate interest to all South Africans – applicant having been subject to critical scrutiny for a long time – little of what was claimed as confidential information was not already in the public domain before the document containing the confidential legal advice was leaked to the media – no harm demonstrable by applicant that outweighed publication in the public interest – publication appropriate

Applicant sought an interdict against three media houses to prevent publication of a document or its contents in order preserve confidentiality of legal advice contained therein which was subject to a claim of privilege – publication already had occurred when application served – urgent order granted – upon reconsideration ito Rule 6(12)(c) held that order was futile and was set aside

Urgent applications ito rule 6(12) – responsibility of applicant’s attorney to take reasonable steps to achieve effective service  – not a collegial courtesy, rather a mandatory duty – default procedure set out for matter in respect which less than one days’ notice is to be given –

Applicants’ attorney not fulfilling responsibilities regarding service- unprofessional management of logistics of service – service of 30 minutes late at night by email to persons not responsible for management of the newspapers – service a farce – inadequate disclosure of such facts to urgent judge – attorney and client costs awarded against applicant.