South Africa

SAA legal leak raises question of privilege

IT WOULD be a travesty of justice if the media were to publish confidential legal advice given to public bodies, the lawyer for South African Airways (SAA) said in court on Wednesday.

The case, a dispute between media companies and SAA over an urgent gagging order the airline obtained a couple of weeks ago, raises a number of new legal questions. These include whether the public interest trumps legal privilege and whether the right to legal professional privilege (usually asserted to prevent information being put before a court) applies outside the context of litigation.

The interim interdict was granted shortly after midnight on November 24 against Moneyweb, Media24 and BDFM Publishers, which publishes Business Day.

Still in place, it prohibits publication of a document that SAA claims is protected by attorney-client privilege because it contains legal advice from in-house counsel Ursula Fikelepi to the board.

The media houses want the court to reconsider its order, which was granted in their absence.

Johannesburg High Court Judge Roland Sutherland said it was clear the document was never intended to see the light of day and that the national carrier was “legitimately aggrieved” that it had been leaked. But he questioned whether attorney-client privilege applied outside of the litigation context, when the media gets its hands on the information.

SAA lawyer Timothy Bruinders SC said attorney-client privilege was a fundamental human right. A person’s right to consult their lawyer in confidence was “sacrosanct”.

Privilege was not absolute; there were exceptions including when the privilege had been waived, he said.

The public interest aspect was already catered for in those exceptions, said Mr Bruinders.

He said the media companies had not proved they had fallen under one of the exceptions, adding that the media houses’ argument of “imputed waiver” was far-fetched.

Judge Sutherland suggested it was “very disappointing” that so little had been done to inform the media firms that SAA would be going to court. Mr Bruinders said it was a valid criticism, but it did not affect the merits of the case.

Counsel for the media houses Anne-Marie De Kok said privilege did not arise when the document came into the hands of a “third party”. Since privilege was the only ground SAA had used to obtain the interdict, it ought to fail.

Ms de Kok said the interdict should be set aside because SAA had failed to play open cards with the court when it applied for it.

SAA had told the judge it had asked for an undertaking from the reporters not to publish, which was “a lie”, she said. SAA also did not tell the judge publication of the document had already happened.

Kate Hofmeyr, counsel for the South African National Editors Forum and nongovernmental organisation Section 16, appearing as friends of the court, said privilege could be asserted over the media. But she said that, in this case, “fairness dictated” that SAA had lost its right to claim privilege” — a case of “ïmputed waiver”.

Judgment will be handed down next Thursday.

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