South African Airways SOC v BDFM Publishers (Pty) Ltd and Others

• Jurisdiction: South Africa
• Citation: 2016 (2) SA 561 (GJ)

South African Airways SOC v BDFM Publishers (Pty) Ltd and Others
2016 (2) SA 561 (GJ)

2016 (2) SA p561

Citation	2016 (2) SA 561 (GJ)
Case No	2015/33205
Court	Gauteng Local Division, Johannesburg
Judge	Sutherland J
Heard	December 9, 2015
Judgment	December 17, 2015
Counsel	T Bruinders SC for the applicant.; A de Kok (with L Grobler) for the respondents.; K Hofmeyr (with N Luthuli) for the amici.

Flynote : Sleutelwoorde B

Evidence — Privilege — Confidentiality — Enforcement — Any relief sought to protect confidentiality subject to public-interest override — In circumstances of present case, public interest in being informed outweighing state organ's rights to confidentiality — Constitution, s 16. C

Evidence — Privilege — Confidentiality — Legal advice privilege — Ambit — Privilege against disclosure not absolute — Protection of confidentiality of any information, including privileged legal advice, subject to public-interest override — In circumstances of present case, public interest in being informed outweighing state organ's rights to confidentiality — Constitution, s 16. D

Evidence — Privilege — Confidentiality — Legal advice privilege — Ambit — Not extending to preservation of confidentiality of advice disclosed by unauthorised means — Constituting only negative right to prevent admission into evidence of advice obtained from legal advisor in confidence.

Evidence — Privilege — Confidentiality — Legal advice privilege — Waiver — E Imputed waiver — Strict test — Whether to impute waiver from delay in claiming confidentiality.

Evidence — Privilege — Confidentiality — Unauthorised disclosure of confidential information — Remedy — Interdictory relief inappropriate — Once disclosed, confidentiality lost and its protection futile. F

Practice — Applications and motions — Urgent applications — Default procedure set out for matters in respect of which less than 24 hours' notice is to be given — Mandatory for applicant's attorney to follow such procedure. G

Headnote : Kopnota

This case concerns an application by the respondent media houses for reconsideration (in terms of Uniform Rule 12(1)(b)) of an order granted in their absence, interdicting them from publishing the contents of a legal opinion that South African Airways (SAA) had obtained and which had entered the public domain by unauthorised means. SAA had served the application for the order on the respondent media houses only after news items covering the contents of the opinion had already been published. Also relevant in the H reconsideration application was that, despite the intended publication having been brought to SAA's attention and their subsequent interactions with representatives of the media houses, SAA made no demand to stop publication, claimed no privilege and gave no indication that legal action would follow to prevent publication. Of further relevance was that when the application was launched, service was by email sent at 22h00, notifying that I the hearing would be at 22h30 but not where it would be held. In the event, the application was decided approximately two hours after notification, shortly after midnight at a judge's home, on SAA's version alone.

At issue were — (1) the implications of the absence of proper service of the urgent application; (2) whether the legal professional privilege could be invoked to obtain an interdict against publication; (3) the futility of the order, given the J

2016 (2) SA p562

A extent of publication prior to the application being served and the order being granted; (4) if legal professional privilege ever existed, whether not claiming it when interacting with the respondents' representatives constituted imputed waiver of the privilege; and (5) whether, assuming a right by SAA in the confidentiality of the contents of the document, public interest trumped such confidentiality rights.

B Held

(1)

There was a mandatory professional duty on an attorney in any urgent application on less than 24 hours' notice, to undertake certain default actions [*] to ensure effective service. The interactions which took place prior to the application were misrepresented in SAA's founding affidavit in a calculated effort to positively mislead the judge and to obscure the C unprofessionalism attendant on the service of the application. These misrepresentations, together with the sham service, by themselves justified dismissal of the application. (Paragraphs [26] and [28] – [29] at 572E – 573C and 573E – 574D.)

(2)

A person whose confidential legal advice was by some unauthorised means released into the public domain could not invoke the legal professional D privilege to obtain an interdict against its publication. If the confidentiality were lost and the world came to know of the information, there was no remedy in law to restrain publication by strangers who learned of it. This was because the legal advice privilege was a negative right to refuse disclosure, in proceedings, of any confidential information exchanged between attorney and client; not a positive right to protection or preservation E of information, the confidentiality of which had been or may be breached through unauthorised means. This vulnerability to loss of the confidentiality of the information over which a claim of privilege could be made flowed from the nature of the right itself. (Paragraphs [49] and [53.1] – [53.2] at 579F – 580A and 580I – 581A.)

(3)

It was incontrovertible that the contents of the document were confidential F to SAA. However, once shattered, confidentiality cannot be put back together again. In circumstances such as the present, where a court could not conceive of any utility in an order and which would if granted be a mere sterile gesture, courts have refused relief. If confidentiality were not yet breached, an interdict may be an appropriate form of relief to preserve confidentiality, but if already breached it was unlikely that any interdictory relief could be effective, and such an order would be inappropriate. G (Paragraphs [5] and [31] – [38] at 566C – F and 574F/G – 576E.)

(4)

Imputed waiver required clear proof and could not be lightly inferred. The test to impute an intention to waive must be strict. SAA had on four occasions communicated with journalists without claiming that any of its rights were violated, and could properly be criticised for not proclaiming a right to H confidentiality earlier. However, a claim of privilege could be belated, and on the probabilities it could not be assumed that the employees of SAA construed the document as being eligible for a claim of privilege earlier than the consultation with their attorney and counsel. That probability and the clumsiness that attended the urgent application went hand in hand. On the facts, imputing waiver of confidentiality was not justified. I (Paragraphs [55] – [60] at 582E – 583H.)

(5)

The limitations on the application of legal advice privilege did not inhibit a person from seeking relief to prevent publication of confidential information in a general sense. Information which was the subject of a claim of privilege J was simply an example of one form of confidential information. However,

2016 (2) SA p563

any relief sought from a court to protect any form of confidential A information was subject to recognised public interest overrides — an exercise which required a balancing of contending values in a fact-specific context. The right to freedom of expression in s 16 of the Constitution had to be weighed. SAA was an organ of state whose financial and governance affairs were of legitimate interest to all South Africans, and had been subject to B critical scrutiny for a long time. Also, 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. Accordingly, the public interest in being informed outweighed the right of SAA to confidentiality in the contents of the document. (Paragraphs [53.3] – [53.4] and [55] – [60] at 582A – B and 582E – 583H.) C

Cases Considered

Annotations

Case law

Southern Africa

Bank of Lisbon and South Africa Ltd v Tandrien Beleggings (Pty) Ltd and Others (2) 1983 (2) SA 626 (W): dictum at 629G applied D

Buthelezi and Another v Minister of Home Affairs and Others 2013 (3) SA 325 (SCA) ([2012] ZASCA 174): referred to

Competition Commission v Arcelormittal South Africa Ltd and Others 2013 (5) SA 538 (SCA) ([2013] ZASCA 84): referred to

De Jager v Heilbron and Others 1947 (2) SA 415 (W): referred to

Estate Logie v Priest 1926 AD 312: referred to E

Euroshipping Corporation of Monrovia v Minister of Agricultural Economics and Marketing and Others 1979 (1) SA 637 (C): referred to

Ex parte Minister van Justisie: In re S v Wagner 1965 (4) SA 507 (A): referred to

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others F 1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): dictum in para [96] applied

Hassan and Another v Berrange NO 2012 (6) SA 329 (SCA): referred to

In re Several Matters on the Urgent Court Roll 2013 (1) SA 549 (GSJ): referred to

Industrial Development Corporation of South Africa v Sooliman and Others 2013 (5) SA 603 (GSJ): referred to G

ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W) ([1996] 4 All SA 58): referred to

Janit and Another v Motor Industry Fund Administrators (Pty) Ltd and Another 1995 (4) SA 293 (A): compared

Kommissaris van Binnelandse Inkomste v Van der Heever 1999 (3) SA 1051 (SCA): referred to H

Lourenco and Others v Ferela (Pty) Ltd and Others (No 1) 1998 (3) SA 281 (T): referred to

Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W): referred to

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