Harksen v Attorney-General, Cape, and Others

• Jurisdiction: South Africa
• Judgment Date: 22 May 1998
• Citation: 1999 (1) SA 718 (C)

Harksen v Attorney-General, Cape, and Others
1999 (1) SA 718 (C)

1999 (1) SA p718

Citation	1999 (1) SA 718 (C)
Case No	1028/98
Court	Cape Provincial Division
Judge	Friedman JP, Brand J
Heard	May 7, 1998; May 8, 1998; May 11, 1998; May 12, 1998
Judgment	May 22, 1998
Counsel	M Seligson (with him DAJ Uijs and AntonKatz) for the applicant; G Josman (with him RC Hiemstra) for the respondents

Flynote : Sleutelwoorde B

Evidence — Production and admission of — Privilege claimed — Legal professional privilege — Such not operating where legal advice obtained in order to enable client to further criminal end. C

Evidence — Production and admission of — Privilege claimed — Waiver of privilege — When waiver imputed — Whether publication of privileged material amounting to imputed or implied waiver depending on facts of particular case — Applicant annexing privileged material to founding affidavit in application to prevent material being used in legal proceedings — Despite applicant knowing his rights when annexing privileged material to founding affidavit, not D inferred that he intended to waive rights since whole purpose in doing so to assert privilege, not abandon it — Accordingly no question of implied waiver.

Evidence — Production and admission of — Privilege claimed — Waiver of privilege — When waiver imputed — Legal E professional privilege may be imputedly waived where privilege-holder so conducts himself that, whatever his subjective intention may be, inference having in fairness to be drawn that he no longer relies on privilege — Applicant annexing privileged material to founding affidavit in application to prevent material being used in legal proceedings — F Having regard to purpose for which material annexed to founding affidavit, fairness not dictating that privilege attaching thereto should be regarded as being waived by imputation of law.

Criminal procedure — Evidence — Privilege — Violation of — Remedies — Stay of prosecution — Applicant seeking to stay extradition proceedings where privileged information made available to prosecution without his consent — Apparent G from information contained in documents not privileged that whole of applicant's defence available to prosecution — Privileged information which may be prejudicial contained in other documents not admissible in evidence as documents privileged — Applicant failing to give details of prejudice which he would suffer — Respondents accordingly H unable to reply thereto — While alleged prejudice would be trial prejudice, not established that applicant would be prejudiced by privileged material in question coming into possession of prosecution.

Headnote : Kopnota

The applicant had appointed a firm of accountants to conduct an investigation into his financial affairs with a view I to assisting him in litigation, inter alia, relating to an application for his extradition and an application for the sequestration of his estate. M was the head of the accounting firm's investigative accounting group. M had proceeded with the investigation, but had withdrawn from the assignment due to lack of co-operation he was receiving from the applicant. M had thereafter been subpoenaed duces tecum to attend an insolvency inquiry related to the applicant's sequestration. The J

1999 (1) SA p719

applicant's attorney had objected to documentation in M's possession being handed in and him giving evidence on A the grounds that the documents were privileged. The magistrate overruled the objection and advised that any objection should be made on an ad hoc basis. The inquiry had to be postponed and the magistrate ruled that he would retain the documents in his safe and that they would only be released in the presence of the attorneys involved in the inquiry. On the next date of hearing the applicant's attorney was not present due to a misunderstanding and the documents were handed over to the applicant's trustees. M had also furnished the B investigating officer in a matter relating to the applicant's offence and the prosecutor in the application to extradite the applicant with affidavits, to which were annexed various documents which the applicant claimed were privileged. M had furnished the affidavits pursuant to subpoenas served on him. In response to a request for all C documents which the first respondent intended to use at the application to extradite the applicant, a copy of M's affidavit, together with attached documents, was disclosed. The applicant then launched an urgent application for an order inter alia declaring that the obtaining and use of M's affidavit and certain of the documents attached to it at the extradition enquiry to be unlawful on the basis that the documents, as well as M's comment, arose from the D mandate given by the applicant's attorneys and were covered by legal professional privilege and for the inquiry to be permanently stayed as it was impossible for him to receive a fair hearing. The documents which the applicant alleged were privileged were annexed to the papers filed in support of the application. The respondents opposed the application on the basis that M's mandate was subject to the 'crime/fraud' exception, that the privilege E attaching to the material had been waived and that there was no basis for a permanent stay of the proceedings.

Held, that, although legal professional privilege did not operate where legal advice was obtained in order to enable a client to further a criminal end, in the factual circumstances of the present matter the crime/fraud exception F could not be relied upon as a basis for finding that no privilege attached to the material in question. (At 729F/G—G and 732C/D—D.)

Held, further, that the question whether publication of privileged material would amount to an imputed or implied waiver depended on the facts of the particular case. In casu, although the applicant had known what his rights were when he annexed the privileged material to his founding affidavit, it could not be inferred that he intended to G waive his rights, since his whole purpose in doing so was to assert his privilege, not to abandon it. Accordingly there could be no question of implied waiver. (At 733H—I/J.)

Held, further, that, while legal professional privilege might be imputedly waived where the privilege-holder so conducted himself that, whatever his subjective intention might have been, the inference had in fairness to be H drawn that he no longer relied on his privilege: having regard to the purpose for which the material in casu had been annexed to the founding affidavit fairness did not dictate that the privilege attaching thereto should be regarded as having been waived by imputation of law. (At 732I—J and 733J—734B.)

Held, further, that, given that the magistrate at the insolvency inquiry had ruled that objection had to be raised on I an ad hoc basis and that questions relating to the extradition proceedings were only to be raised at that hearing, no adverse inference could be drawn from the applicant's attorney's failure to object to each question put to M. In the light of the ruling by the magistrate the applicant's failure to take steps to protect his privilege when it had become apparent that his trustees were in possession of the documents J

1999 (1) SA p720

could not be construed as an intention to abandon his right to claim privilege at the extradition hearing. (At A 734D/E—F and 734I/J—735B.)

Held, accordingly, that the privilege claimed by the applicant had not been waived. (At 736A.)

Held, further, that, if regard was had to what was contained in documents which were not privileged, it was B apparent that the whole of the applicant's defence was available to the prosecution. To the extent that privileged information which might have been prejudicial was contained in the remainder of the documents, such documents would not be admissible in evidence as they were privileged. (At 742E/F—F/G and 743C.)

Held, further, that the applicant had given no details of the prejudice which he would suffer and the respondents were accordingly unable to reply thereto. (At 743F—F/G.) C

Held, further, that, while the prejudice the applicant alleged he would suffer was trial prejudice, it had not, on the evidence, been established that the applicant would be prejudiced by the privileged material in question having come into the possession of the prosecution. This was particularly so having regard to the fact that the prosecution D would not be permitted to use this material in evidence and to the vast amount of material which was not privileged and other information probably known to the prosecution from its own investigations. (At 744F—H.)

Held, accordingly, that the present case was not one where the breach of privilege was sufficiently serious to warrant the inference of prejudice per se and it had not been established that as a result of the breach of privilege E the applicant would be prejudiced to such an extent as to warrant a permanent stay of the extradition inquiry. (At 744I/J—745A/B.)

Cases Considered

Annotations

Reported cases

Attorney-General, Northern Territory v Maurice and Others (1986) 161 CLR 475 (HCA)((1987) 61 ALJR F 92): followed

Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A): dictum at 704F—H applied

Botes v Daly and Another 1976 (2) SA 215 (N): followed

Burmah Oil Co Ltd v Bank of England (Attorney-General Intervening) [1979] 3 All ER 700 (HL): referred to

Francis & Francis (a firm) v Central Criminal Court [1988] 3 All ER 775 (HL): followed G

Goldberg and Another v Ng and Others (1996) 185 CLR 83 (HCA): followed

Great Atlantic Insurance Co v Home Insurance Co and Others [1981] 2 All ER 485 (CA): distinguished H

Klein v Attorney-General, Witwatersrand Local Division, and Another 1995 (3) SA 848 (W) (1995 (2) SACR...