The test to determine whether a document that is brought into existence for different purposes, only one of which is to obtain legal advice for contemplated litigation, is protected by legal professional privilege has previously not been decided by the South African Supreme Court of Appeal.  The law is now clear that legal privilege only attaches to a document which is created with the dominant purpose that it be used for obtaining legal advice in the context of contemplated litigation.

The Supreme Court has now in the Ibex and Steinhof judgment (previously discussed here), having considered and analysed South African and other law on the question of whether litigation contemplation is a or the purpose for which the document was created, concluded that that court should state what the proper test is. 

The court held: 

“…A document created with the dominant purpose of its author, or of the person or authority under whose direction it was created, of using it to obtain legal advice, or in the conduct of existing or contemplated adversarial litigation, is privileged and shielded from inspection and production.

On the facts of the case before it, the court held that the dominant purpose in procuring the relevant forensic report was the investigation of accounting irregularities within the Steinhof Group to finalise the consolidated financial statements of the group.

There was no foundation in the evidence for the assertion that the auditors were engaged to obtain legal advice “to deal with the immediacy of legal demands, threats, and claims, and in due course for Steinhoff to institute legal proceedings against third parties”. The court held that given the dominant purpose for which the report was prepared, public disclosure was justified.

Ibex RSA Holdco Limited and Another v Tiso Blackstar Group (Pty) Ltd and Others (Case No 862/2022) [2024] ZASCA 166 (4 December 2024)