Fairey "Rotodyne" The Rotodyne was a compound aircraft with wings, tractor engines and a tip-driven rotor system.
This case is about what remedies are available to a person whose confidential legal advice, in respect of which that person claims legal professional privilege, is by some or other unauthorised means, released Marketing principle of british airways the public domain.
Moreover, the case also is about the appropriate way to approach a court for an urgent interdict. In addition to condoning non-compliance with the Rules of court on grounds of urgency, the relevant portion of order granted at the urgent hearing provided thus: SAA, is a public company and an organ of state, whose financial affairs have been the subject of intense public interest and media scrutiny for several years in which its viability as a going concern has been the main theme together with the financial support given to it by the state.
A selection of reportage over the year preceding this application was attached to the answering affidavit of the respondents illustrating the controversies. Among the controversies has been the process of acquisition of new aircraft and how SAA might be able to pay for them.
According to Ursula Fikilepi, who describes herself as the General Manager: Legal Risk and Compliance, of SAA, she was asked in confidence by the acting CEO to provide advice to the executive on this matter, and to that end, she composed a submission, including her legal opinions, with recommendations to be put to the board of directors.
That the contents of the document were confidential to SAA is incontrovertible.
This is the document which SAA alleges contains legal advice, in respect of which privilege is claimed on the premise that it is confidential legal advice given to SAA by its in-house legal advisor, Fikilepi.
She says she is an attorney, but does not say whether she is a practising attorney on the practising roll or is on the non-practising roll.
No serious challenge was made to the proposition that the contents of the document are eligible to be the subject matter of a claim of privilege. SAA insists on a confirmation of the interdict, and at the reconsideration stage formally amended the terms of the prayers sought to seek a final interdict.
There are several controversies in relation to whether the order should be confirmed or set aside, which I deal with in turn. The absence of effective service of the urgent application.
The futility of the order, given the extent of publication prior to the application being served and the order being granted. Whether legal professional privilege can be invoked to obtain an interdict against publication. Assuming a right by SAA in the confidentiality of the contents of the document, whether the public interest, including, but not limited to, the rights of free expression pursuant to section 16 of the Constitution should trump such confidentiality rights of SAA.
The overbreadth of the order. Because of the view I take of the matter, it is not strictly necessary to address each of these themes in this judgment to dispose of it.
However, as all these issues are generic to disputes of this nature and are likely to come up again, it is appropriate to express a view on them all. A Narrative of the events leading to the taking of the urgent order 9. Sometime between 5 November and Saturday 21 Novemberat latest, the document entered the public domain.
Whether a person who had legitimate and authorised access to the document revealed it, or a person not authorised to have access to it, stole it, is unknown.
Ostensibly, Kwinana, who at the time of the telephone conversation with Weavind, was weekending at Keiskammahoek in rural Transkei, did not have the presence of mind to alert her colleagues to the conversation. Kwinina claims that she was unaware Weavind had the document, but on the probabilities this is implausible.
Weavind had initially tried to speak to the Board Chair, Dudu Myeni, but was unable to reach her, and then troubled to track down Kwinina. The likelihood that she did not try to elicit comment about the contents of the document or so contrived to ask questions so as to conceal she had the document, is, in my view, nil when the story she must have already had in preparation drew heavily on the text.
What is not stated by Kwinina is whether she had read the document, but the likelihood that she had not, given her role in SAA and the contents of the document, make that improbable; alternatively, if so, quite startling.
Those occasions were these: On Sunday 22 November, Antoinette Slabbert, a freelance journalist, writing for Moneyweb, a publication of the second respondent, emailed Tlali at 10h59 with questions about the contents of the document.
She asked for responses by 18h00 on 22 November. Tlali replied on Sunday evening and said a response would be forthcoming, perhaps as early as that night. Tlali had passed the questions to Lusanda Jiya, the General Manager: She had notified Fikilepi, and suggested to her that the board should respond.
Fikilepi had embraced that suggestion. On Monday 23 November, at 13h39, Carol Paton, who writes for Business Day, a publication of the first respondent, emailed questions to Tlali.
She asked for comment by 17h00 that day. Tlali acknowledged receipt of this request at 13h Tlali called her well after 17h00, at about 19h He asked if the story had been filed.Give new wings to your networking capabilities with the British Malaysian Chamber of Commerce - BMCC. We ensure good ways of benefits to companies involved in trade between Britain and Malaysia.
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