South Africa Legal Privilege Meets Journalistic Freedom Of Expression

• Published date: 02 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Herbert Smith Freehills
• Author: Mr Cameron Dunstan-Smith, Candice Grieve and Rebecca Critchley

Investigation reports compiled by law firms, accountants or forensic specialists for large companies are usually highly confidential but are also highly sought-after by media outlets seeking access to information which they believe to be in the public interest.

Such seemingly incompatible perspectives - where one side wishes to use legal privilege to prevent dirty laundry from being aired in public and the other seeks to hang it on the washing line for all to see - have recently been placed under the spotlight.

Following developments in the UK courts in recent years, the South African courts have been called upon to consider the extent to which investigation reports are protected by legal privilege in the context of litigation and regulatory proceedings. Yet, in a potentially landmark decision the South African High Court has now considered the issue in an instance where two media houses sought access to an investigation report compiled by Pricewaterhouse Coopers ('PWC') regarding alleged accounting irregularities at Steinhoff International Holdings N.V ('Steinhoff').

Of course, reputational risk and exposure is of paramount importance to corporates and the protection afforded by the principle of legal privilege is usually the comfort relied upon by organisations facing corporate scandals when law firms or forensics analysts are engaged to conduct sensitive investigations. Against this backdrop, the decision in Tiso Blackstar Group (Pty) Ltd and others v Steinhoff International Holdings N. ('Tiso Blackstar') threatens to disrupt the long-standing reliance in South Africa on legal privilege as a panacea that will prevent private materials from being opened up to public scrutiny and exposure. The judgment may also have implications for UK practitioners. Firstly, foreign law (including South African law) can rely on the interpretation and development of legal principles in the UK. Secondly, the judgment may have direct implications for multi-national companies with South African operations - for example, the myriad of multi-national companies implicated in the reports from South Africa's Judicial Commission of Inquiry into State Capture.

To put this into context, the media outlets at the centre of this case became aware of the existence of the report through a SENS announcement issued by Steinhoff mentioning PWC's appointment and mandate to investigate. They subsequently submitted two requests to access the report in terms of South Africa's Promotion of Access to Information Act, 2000 ('PAIA'), which is the primary legislative mechanism available to interested parties when seeking access to information held by another party.

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