Automated Summary
Key Facts
Tiso Blackstar, Rob Rose, amaBhungane, and Karabo Mpho Letta Rajuili applied for access to a PwC forensic report under PAIA, which Steinhoff International Holdings refused, claiming litigation privilege. The court found Steinhoff failed to prove the report was commissioned for legal advice in contemplation of litigation, invalidating the privilege claim and ordering disclosure.
Issues
- Applicants argue Steinhoff waived any privilege by releasing a summary of the PwC report ('the overview'), while Steinhoff contends the overview did not disclose privileged content and thus no waiver occurred.
- Applicants propose a judicial peek to examine privileged portions of the report for disclosure, a remedy Steinhoff opposes citing privilege protections.
- Applicants request partial disclosure of non-privileged sections, while Steinhoff argues the report is not severable as its content is inherently tied to litigation strategy.
- The court determines if the PwC report falls under litigation privilege as it was commissioned in anticipation of legal proceedings, including whether litigation was 'contemplated as likely' at the time of its creation and whether the report was prepared for legal advice purposes.
- The court assesses if the public's right to access information about corporate accountability and investor losses (exceeding R200 billion) justifies disclosure despite claims of litigation privilege.
- Steinhoff's application to strike out these paragraphs succeeds as the court finds they contain inadmissible hearsay evidence not derived from first-hand knowledge by the affiant.
Holdings
- The court set aside Steinhoff's decisions to refuse access to the PwC report under PAIA, finding insufficient evidence to establish litigation privilege. The judge concluded that Steinhoff failed to provide objective facts demonstrating litigation was contemplated as likely at the time the report was commissioned.
- The court ordered Steinhoff to supply the PwC report to Tiso Blackstar and amaBhungane within ten days of the judgment. This was based on the applicants' right to freedom of expression and the failure of Steinhoff to meet its burden of proof regarding privilege.
Remedies
- The decisions of Steinhoff refusing Tiso Blackstar's PAIA request (dated 28 March 2019) and amaBhungane's PAIA request (dated 2 September 2019) in terms of section 53 (1) of PAIA are set aside.
- Steinhoff is directed to supply Tiso Blackstar and amaBhungane, each with a copy of the PwC report within ten days of this order.
- The applicants are ordered to pay costs in relation to Steinhoff's application for striking out, including costs of two counsel where employed.
- Steinhoff is to pay costs of the main application, excluding costs referred to in subparagraph 76.4, including costs of two counsel where employed.
Legal Principles
- The court applied PAIA's burden of proof rules (section 81(3)(a)), requiring Steinhoff to demonstrate that withholding the PwC report complied with PAIA. Steinhoff's evidence was deemed inadequate to meet this standard.
- The court evaluated whether the PwC report was legally privileged under PAIA's section 67. It found Steinhoff's claim of litigation privilege unproven due to insufficient objective evidence, emphasizing that privilege cannot rest on mere assertions without factual basis.
Precedent Name
- M&G Media Ltd and Others v 2010 FIFA World Cup Organising Committee South Africa Ltd and Another
- President of the Republic of South Africa and Others v M & G Media Ltd
- Brümmer v Minister of Social Development & Others
- Competition Commission v Arcelormittal South Africa Ltd and Others
- General Accident, Fire and Life Assurance Corporation Ltd v Goldberg
Cited Statute
- Constitution of the Republic of South Africa Act 108 of 1996
- Companies Act 71 of 2008
- Promotion to Access to Information Act 2 of 2000
- Uniform Rules of Court
Judge Name
L.G. Nuku
Passage Text
- In my view, Steinhoff has failed to do and accordingly its decisions refusing access to the PwC report fall to be set aside.
- With reference to the first point, whether the report was made in contemplation of litigation, I do not think that the circumstances in this case, as alleged by the affidavit on behalf of the company, show that litigation was contemplated. There must be really some contemplated litigation, some fact to indicate that litigation is likely or probable.
- The decisions of Steinhoff refusing Tiso Blackstar's PAIA request (dated 28 March 2019) and amaBhungane's PAIA request (dated 2 September 2019) in terms of section 53 (1) of PAIA are set aside. Steinhoff is directed to supply Tiso Blackstar and amaBhungane, each with a copy of the PwC report within ten days of this order.