Case summary written by Courtney Altmuner and checked by Danmari Duguid
5 December 2020
This is an interlocutory application brought before the High Court of South Africa, KwaZulu Natal Division, Pietermaritzburg (“the Court”), in terms of Uniform Rule 35(3) of the Uniform Rules of Court, in which the Applicant sought a copy of one Doctor Batchelder’s (“Batchelder”) report (“the Desired Report”), for reasons more fully described hereinbelow. This application arose from an action, whereby the Applicant had sued the Respondent, on behalf of her minor child for damages arising from her birth (“the action”).
Batchelder was requested to provide the Respondent with a report, to advise as to the claim made by the Applicant against Batchelder in the action. The Desired Report was provided to one Doctor Hall (“Hall”), a paediatric specialist, in order for Hall to provide the Respondent with advice on the claim. Hall also provided the Respondent with a report.
Hall’s report was served on the Applicant. It referred to the fact that Hall had been furnished with the Desired Report. This was its only reference. The Applicant requested a copy of the Desired Report, which was refused. The refusal gave rise to the present application.
The Respondent raised two defences in response to the application, being: (1) that, since the Respondent had not filed her discovery affidavit, the application was premature and as such, Uniform Rule 35(3) cannot be relied upon; and (2) privilege had been attached to the Desired Report and that such privilege had not been waived.
The first defence, the Court held, was a dilatory point and thus held the merits of the matter should determine the outcome.
The Court proceeded to discuss the second defence: privilege, which was held to be the substantive defence in the case. The Respondent in its answering affidavit averred that the Desired Report was a witness statement, obtained for purposes of litigation. Meaning, as early authorities have established, litigation privilege attaches to the Desired Report, given ‘in contemplation of litigation’ and ‘for the purpose of submission to the party’s legal adviser’. 
The Respondent also added that it did not intend calling Batchelder or Hall as an expert witness and is therefore not obliged to comply with Uniform Rules 36(9)(a) and/or (b).
The Applicant submitted that because the Desired Report was furnished to Hall, and was referred to in Halls’ report, the privilege attached to the Desired Report was waived. The Court discussing the principle of waiver, referred to the case of S v Tandwa and others, wherein the Supreme Court of Appeal (“the SCA”) distinguished between ‘implied waiver’ and ‘imputed waiver’. According to this case, implied waiver occurs “when the holder of the privilege with the full knowledge of it so behaves that it can objectively be concluded that the privilege was intentionally abandoned.” Whereas imputed waiver occurs where, irrespective of the holder’s intention, the Court is guided by fairness to conclude that the privilege was waived, therefore actual abandonment is irrelevant.
The Court however pointed out that the aforementioned SCA judgment has been criticised insofar as it distinguishes between the two types of waiver. Referring to the SCA judgment of Contango Trading SA & Others v Central Energy Fund Soc Ltd & Others, we note that the SCA held that there are four things which must cumulatively be taken into account with regard to waiver. The first being that there is no difference between implied waiver and imputed waived. The second is that such a waiver may be implied by the objective conduct of the party claiming the privilege in disclosing part of the subject matter. The third, is whether such a disclosure affects the fairness of the legal process and whether the disputes between the parties can be decided upon fairly, without reference to the subject matter. Finally, is that there is no all-encompassing principle that privilege can be superseded on the ground of fairness alone. The SCA held that “once privileged, always privileged” and it is an essential proviso on which the administration of justice rests, where only waiver can disrupt it.
Further to the above, the SCA held that the test for an implied waiver is said to be “when the conduct of the person concerned is objectively inconsistent with the intention to maintain confidentiality and, if permitted, will unfairly fetter the opponent’s ability to respond to the case or defence advanced on reliance of the privileged material.”
Therefore, the Court concluded that the question at hand was whether providing the Desired Report to Hall and her mention of it in her report, was objectively inconsistent with with the intention to maintain confidentiality and, if permitted, would unfairly fetter the Applicant’s ability to respond to the case or defence advanced in reliance on the privileged material.
The Court pointed out that the Desired Report was only referenced as being received. Hall’s report did not disclose any of the Desired Report’s contents or even conclusions. The Court also pointed out that even if Dr Hall is called as a witness, it cannot be said the respondent is in any way relying on the Desired Report.
As such, the Court held that the applicant would not have been required to respond to the Desired Report without having had an opportunity to consider same. Therefore, the non-disclosure of the desired Report cannot prejudice the Applicant in addressing the Respondent’s defence to the action.
The Court held that the Applicant did not make out a case which illustrated that the Respondent waived privilege. The Court dismissed the application with costs.
The test for an implied waiver is said to be “when the conduct of the person concerned is objectively inconsistent with the intention to maintain confidentiality and, if permitted, will unfairly fetter the opponent’s ability to respond to the case or defence advanced on reliance of the privileged material.
Further, there is no all-encompassing principle that privilege can be superseded on the ground of fairness alone. “Once privileged, always privileged” is an essential proviso on which the administration of justice rests, only disrupted by waiver.
 General Accident, Fire & Life Assurance Corporation Ltd v Goldberg 1912 TPD 494 at 504.
 2008 (1) SACR 613 (SCA) para 18
 2020 (3) SA 58 (SCA) para 48
 2020 (3) SA 58 (SCA) para 51