In an important decision in the context of litigation privilege and public interest access, the Supreme Court of Appeal (‘the SCA’) was recently tasked with ascertaining whether a third party’s communication was intended for pending or anticipated litigation and thus qualified for protection from disclosure.
In 2017, the auditors of Steinhoff (the now-liquidated former corporate giant) refused to validate the company’s annual financial statements after identifying substantial accounting irregularities. This prompted Steinhoff to appoint an accounting firm to conduct an independent forensic investigation, which produced an approximately 7 000-page forensic report (‘the report’), inclusive of annexures.
After publicly releasing an eleven-page summary, unsatisfied media houses sought to obtain copies of the full report under the provisions of the Promotion of Access to Information Act (‘PAIA’). Averring that access to the report is critical to the exercise of the right to freedom of expression of the media, the requesters contended that the extent of the accounting fraud is a matter of public importance and the report’s disclosure is thus in the public interest.
Steinhoff, however, refused their requests, arguing that the report was legally privileged and therefore protected from disclosure under section 67 of PAIA. To that end, Steinhoff contended that it commissioned the report on the instruction of its attorneys to furnish legal advice in anticipation of litigation.
In Ibex RSA Holdco Ltd v Tiso Blackstar Group (Pty) Ltd, the SCA, however, rejected the argument that the report qualified for protection from disclosure under the banner of ‘legal privilege’.
According to established legal principles, ‘legal privilege’ exists where two requirements are satisfied. First, the document in question must have been obtained or created for the purpose of a litigant’s submission to their legal adviser in pursuit of legal advice. Second, litigation must have been pending or likely anticipated at the time.
The SCA examined various legal tests for establishing legal professional privilege. Assessing the broad legal framework, including foreign judgments, it found that the ‘one of many purposes’ test, which is followed in numerous overseas jurisdictions, is too broad while the ‘sole purpose’ test is too narrow.
Alternatively, the SCA adopted the ‘dominant purpose’ test, which it expressed as follows:
‘A document created with the dominant purpose of its author, or of the person or authority under whose direction it was created, of using it to obtain legal advice, or in the conduct of existing or contemplated adversarial litigation, is privileged and shielded from inspection and production.’
Consequently, the SCA held that purpose of the report was not to obtain legal advice for use in existing or contemplated litigation. Instead, its dominant purpose was to investigate the company’s accounting irregularities with the aim of finalising its financial records. As such, the report does not qualify for protection from disclosure under PAIA, and Steinhoff (now Ibex RSA Holdco Ltd) must disclose the full forensic report to the media companies that requested it.
Notably, the SCA further remarked that Steinhoff’s publication of the eleven-page summary constituted an implied waiver of privilege through its outward manifestations, which, in any event, entitles the media to view the full report.
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