Coyne Consultancy CC v Coyne Healthcare (Pty) Ltd and Another (18534/2021) [2025] ZAWCHC 607 (9 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Western Cape High Court, Cape Town South Africa: Western Cape High Court, Cape Town You are here: SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2025 >> [2025] ZAWCHC 607 | Noteup | LawCite sino index ## Coyne Consultancy CC v Coyne Healthcare (Pty) Ltd and Another (18534/2021) [2025] ZAWCHC 607 (9 December 2025) Coyne Consultancy CC v Coyne Healthcare (Pty) Ltd and Another (18534/2021) [2025] ZAWCHC 607 (9 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAWCHC/Data/2025_607.html sino date 9 December 2025 FLYNOTES: CIVIL PROCEDURE – Discovery – Legal professional privilege – Party asserting privilege must tender enough factual material to allow meaningful assessment – Asserted privilege in general terms and failed to specify documents or whether they were created to obtain legal advice or in contemplation of litigation – Provided neither an itemised list nor substantive contextual justification – Directed to file a further affidavit rather than immediate disclosure or judicial inspection – Uniform Rule 35(3). IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) Case No: 18534/2021 In the matter between: COYNE CONSULTANCY CC Plaintiff and COYNE HEALTHCARE (PTY) LTD First Defendant WOLA HOLDINGS AG Second Defendant Neutral citation: Coram: ROUX AJ Heard :            18 September 2025 Delivered : 9 December 2025 Summary: Discovery request in terms of Rule 35(3) – Party claiming legal professional privilege must file an itemised list of the documents, properly identified, in respect of which privilege is claimed, setting out the context and purpose of each document, and providing the reasons or grounds upon which it is alleged that each document is privileged, without disclosing the content or substance of the communication in respect of which privilege is claimed. Where a document, or series of documents, has more than one purpose, the party claiming privilege must establish that each document was created for the dominant purpose of using it to obtain legal advice or, in the case of litigation privilege, of using it to conduct existing or contemplated litigation. A non-privileged communication may contain references to a privileged communication. Where such references might reveal the substance or contents of the legal advice sought or given, or where the substance or contents might be inferred from such disclosure, the non-privileged communication will likewise fall within the scope of privilege, but only where the privileged component is so intermingled with the non-privileged component that severance is, for practical purposes, impossible. If the respective components can, in fact, be separated, those parts covered by legal professional privilege will be capable of redaction, and the remainder will be disclosed. A court will not go behind a discovery affidavit, unless on the probabilities or where it is reasonably certain – having regard to the documents identified in the authorities and the applicable facts and circumstances - the party claiming privilege has failed to establish the requirements for its claim. A court retains a general discretion to ensure a just outcome. In exercising this discretion, a court may order that a further affidavit be filed if the discovery affidavit does not cover all, or any, of the requirements of the claimed privilege or is otherwise unsatisfactory. If necessary, a court may also permit the filing of a request for further particulars in relation to the claim of privilege, and where appropriate, compel the party claiming discovery to answer such request. A court may, where it is considered absolutely necessary to ensure a just outcome, conduct a private inspection of the document(s) in respect of which privilege is claimed to determine whether the claim has been properly made. ORDER The following order is made: (a)          The first defendant is ordered to file an affidavit, within 35 calendar days of the date hereof, that: (i)       provides an itemised list of the documents, properly identified, in respect of which privilege is claimed; (ii)    sets out the context and purpose of each document; (iii)  provides the reasons or grounds upon which it is alleged that each document is privileged, without disclosing the content or substance of the communication in respect of which privilege is claimed. (b)          The plaintiff is granted leave to file a supplementary affidavit, within 15 calendar days of the filing of the first defendant’s supplementary affidavit, in response thereto. (c)          The plaintiff is granted leave to re-enrol the matter for hearing, duly supplemented, subject to the directions of the Office of the Judge President and/or Deputy Judge President. (d)          The first respondent shall pay the plaintiff’s costs incurred up to the date of the hearing of the application, including the costs of counsel on scale B. There shall be no order of costs against the second defendant. JUDGMENT A. INTRODUCTION 1. This is an application to compel a reply to the plaintiff’s Rule 35(3)-notice, dated 25 November 2024 (hereinafter referred to as “the notice”). The notice requires the first defendant [1] to make the documents listed in paragraphs 1 and 2 thereof available for inspection in terms of Rule 35(6) or to state on oath within the prescribed time limit that a particular document is not within its possession or under its control, in which event the whereabouts of such document is to be stated, if known. The formulation follows the wording of Rule 35(3). Notably, the relief sought is stated as seeking a reply to the notice in terms of Rule 35(3). 2. The plaintiff, in reply, indicated that it was no longer proceeding with the request made in paragraph 2 of the notice. Accordingly, only the request for the documents listed in paragraph 1 falls to be considered, to wit – (a) all correspondence and documents exchanged between Gert Hoogland and Howard Rosen in connection with: (i) the acquisition by PIAG of its shares in the first defendant; and (ii) the proposed option to be granted to Kevin Croyne to acquire shares in PIAG. 3. The first defendant admits that it is in possession of the documents sought, but asserts a claim of legal professional privilege in respect thereof. The plaintiff, for its part, contends that this is a matter in which the Court ought to direct the first defendant to itemise the documents in question and to make them available to the Court for inspection, in order to determine whether the claim of privilege has been properly advanced. B. BACKGROUND FACTS AND CIRCUMSTANCES 4. The plaintiff’s claim against the first defendant relates to PIAG’s acquisition of shares in the first defendant and related intellectual property rights. The plaintiff relies on an initial agreement [2] and the implementation thereof, which allegedly included the transfer of its products, the granting of licenses in respect of the intellectual property rights, the sale of shares agreement and the appointment of key persons. 5. The first defendant denies that the initial agreement has any contractual force. It admits the sale of the shares agreement and contends that the said agreement regulates the parties’ contractual relationship, including the transfer of the intellectual property rights concerned. 6. It is not necessary for purposes of this application to fully analyse the disputes raised in terms of the pleadings. Suffice to say, the matter involves complicated legal issues and multiple contractual disputes. Accordingly, the request for discovery must be considered in that context. C. APPLICABLE LAW 7. Discovery is a mighty tool to be deployed to expose the truth. Rule 35 regulates the procedure for its deployment. As a starting point it provides for a notice in writing requiring a party to make discovery on oath of all documents and tape recordings in its possession or under its control which relate to the action and for the inspection and copying thereof. 8. The party required to make discovery is obliged to make discovery of such documents on affidavit within the prescribed time limit and in accordance with the prescribed form, specifying separately – (a) such documents and tape recordings in its possession; (b) such documents and tape recordings in respect of which such party has a valid objection to produce; (c) such documents and tape recordings no longer in its possession at the date of the affidavit. [3] 9. If the party requesting discovery is dissatisfied with the discovery made and believes there are documents in the other party’s possession that have not been discovered, it may give notice to such party in terms of Rule 35(3) and require such party to make such documents available for inspection in accordance with Rule 35(6), or to state on oath that it is not in possession of such documents and to state its whereabouts, if known. 10. Rule 35(3) does not expressly state how a party should respond if it claims privilege in respect of such documents and therefore refuses to make it available for inspection. 11. However, the reference to Rule 35(6), by implication, directs the path of response. Rule 35(6) provides that any party may by notice require a party who has made discovery to make available for inspection any document disclosed in terms of subrules (2) and (3). Accordingly, Rule 35(6) contemplates that the party calling for inspection will, by virtue of the disclosure made in terms of subrules (2) and (3), be able to select the documents it desires to inspect. That implies that the disclosure made in terms of subrules (2) and (3) will be of such a nature that the documents concerned would be sufficiently specified to enable such a selection. [4] 12. In the premises, Rule 35(3), properly construed, requires a party to specify the documents in its possession in the same way as required in terms of subrule (2), subject to the necessary changes to be made in respect of subrule 2(c). [5] 13. The reach of Rule 35 is intended to be long. A party is required to discover every document which contains information which may enable the party requiring the affidavit to advance its own case or damage the case of its adversary. A document will meet the said threshold if it may fairly lead to a train of enquiry that may have either of these two consequences. Notably, even where a party is lawfully entitled to object to the production of a document, it remains under a duty to discover it. The party must, notwithstanding its objection, properly itemise and identify the document in its discovery affidavit, together with the grounds upon which production is resisted. This ensures that the opposing party and the Court are apprised of the existence, nature and the basis of any claim of privilege or objection in relation to each and every document . [6] 14. It is not disputed that the documents requested by the plaintiff are in the possession of the first defendant. That means that had the first respondent discovered the documents in respect of which it claims legal professional privilege, as required in terms of subrule 2, the plaintiff would have had the benefit of an itemised list of documents, sufficiently described to enable a Court to determine whether such documents are indeed covered by such privilege. It is self-evident that the mere assertion that a document is privileged is insufficient. [7] Such an assertion amounts to a legal conclusion, which is based on underlying facts. Shorn of such facts, the assertion of a conclusion amounts to a leap of faith, which is an impermissible approach to the admissibility and evaluation of evidence. 15. In the circumstances, it is insufficient for a party who has failed to discover a document in respect of which privileged is claimed, to merely file an affidavit in response to a Rule 35(3)-notice in which it sets out the facts on which it relies for such privilege. Such party is also required to provide the party requiring discovery an itemised list of documents, properly described. In the absence of such a requirement, a party who has failed to properly discover in terms of subrule (2), would effectively be in a stronger or better position than one who has complied with the requirements of subrule (2). The law does not reward those who fail to comply with its rules. At the very least, it brings the transgressors back into line. 16. Legal professional privilege is recognised as a fundamental substantive right which prevails over the public interest in full disclosure of all relevant material to ensure the proper and correct resolution of legal disputes. [8] The proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients. [9] A claim for legal professional privilege is however an unusual claim in the sense that the party claiming privilege and that party’s legal advisers are, in a sense, the judges in their or their own client’s cause. Because of this, the court must be particularly careful to consider how the claim for privilege is made out . [10] 17. T he purpose of an order for discovery is not merely the advancement and protection of the interests of the parties to an action. It provides an itemised record of the relevant documents, properly described, for the parties and the Court, insofar as any such document may become the subject of a dispute. [11] Any seasoned practitioner appreciates the potential value of such a list. The importance of discovery cannot be understated. It serves to assist the court in ascertaining the truth and operates, in addition, as a mechanism to curtail unnecessary costs . [12] 18. A document alleged to be covered by legal professional privilege must be described more closely in the discovery affidavit than other documents. An affidavit in answer to an application for discovery must be construed strictly, because it is very difficult for the other side to adduce evidence to contradict it. [13] The facts upon which privilege is claimed must be set out fully. It is insufficient to merely state that it is a communication between a client and its legal adviser. [14] A detailed contextual explanation must be given to establish compliance with the requirements for legal professional privilege. A party that asserts legal professional privilege should generally be able to provide a rational justification for its claim without needing to disclose the content or substance of the matter in respect of which the privilege is claimed. Failing such justification, there is nothing before court but the claim to privilege itself. [15] 19. Affidavits claiming legal professional privilege should therefore be specific enough to show something of the deponent’s analysis of the documents or, in the case of a claim to litigation privilege, the purpose for which they were created. It is desirable that they should refer to as much contemporaneous material as is possible without making disclosure of the very matters that the claim for privilege is designed to protect. [16] 20. In general, a court will go beyond a discovery affidavit only if it is satisfied that – (a) from the discovery affidavit itself; or (b) from the documents referred to in the discovery affidavit; or (c) from the pleadings in the action; or (d) from any admission made by the party making the discovery affidavit; or (e) from the nature of the case or the documents in issue, that there is a probability that the party making the affidavit has or has had other relevant documents in his possession or power or has misconceived the principles upon which the affidavit should be made. [17] 21. In the context of a party claiming privilege it is ordinarily not in dispute that such party has further documents in its possession. Accordingly, only two considerations require determination. Relevancy and the misconception of the principles upon which the affidavit should be made. To my mind, the question of misconception, in this context, relates to the question whether the party claiming privilege has sustained a claim for legal professional privilege. In my view, the latter enquiry is directed at whether the party invoking privilege has duly discharged the onus of establishing the factual and legal basis for such a claim. [18] 22. Legal professional privilege comprises two distinct sub-heads, namely legal advice privilege and litigation privilege. The requirements for legal advice privilege, as articulated in A Company (supra), are the following: (i) the legal adviser must have been acting in a professional capacity at the time; (ii) the adviser must have been consulted in confidence; (iii) the communication must have been made for the purpose of obtaining legal advice; (iv) the advice must not facilitate the commission of a crime or fraud; and (v) the privilege must be claimed. At the time of that judgment our law had not yet resolved whether it is required that a document be created for the dominant purpose of obtaining or giving legal advice or whether a definite, albeit not dominant, purpose would suffice. The Supreme Court of Appeal in Ibex (supra) resolved the issue in favour of the dominant-purpose approach. Litigation privilege attaches to communications between a legal adviser and their client or third parties which are brought into existence for the dominant purpose of submission to a legal adviser for legal advice or, otherwise, for use in the conduct of litigation which was pending, or contemplated as likely, at the time. [19] 23. There appears to be a measure of judicial divergence regarding the degree of burden resting upon a party asserting a claim of legal professional privilege. In Continental (supra) , followed in MV Alina (supra) , the court formulated the onus with reference to the balance of probabilities, in other words, it must be shown that the party asserting privilege has, on a balance of probabilities, misconceived the requirements for a valid invocation of privilege. By contrast, a line of authorities in the Gauteng Division has held that it must be shown—by the party challenging the claim—that the assertion of privilege is incorrect to a reasonable degree of certainty. [20] 24. A formulation of the onus with reference to the balance of probabilities is, in my view, to be preferred to a standard requiring reasonable certainty that a party has misconceived the principles of discovery. A standard of reasonable certainty is, self-evidently, more onerous than one based on the balance of probabilities. Given that the party asserting privilege is, by its very nature, in exclusive possession of the documents and the facts pertinent to their production, and that it is ordinarily difficult for the opposing party to adduce evidence capable of contradicting such assertions, there is no discernible policy consideration that would justify imposing a heavier burden on a party already labouring under an inherent disadvantage. [21] Furthermore, the balance of probabilities as a standard is both more readily intelligible and more precisely defined within our law, thereby promoting consistency and predictability in the application of privilege. 25. In expressing the said preference, I am mindful of the position in English law, whereby a discovery affidavit is regarded as conclusive, unless it is reasonably certain from the statements made by the party asserting privilege that the affidavit contains an erroneous representation or reflects a misconception of the applicable principles, or where other evidence before the court demonstrates that the discovery affidavit is materially incorrect or incomplete. [22] 26. However, it bears mentioning that on the matter of a court’s power to undertake an inspection of the documents in respect of which privilege is asserted, English law has undergone a change. In the case of WH Holding Ltd (supra) the Court made it clear that a court’s power to inspect the documents in question is a matter of general discretion and not limited to cases in which the court is “reasonably certain”. [23] 27. A court’s power to inspect or examine the documents concerned constitutes an exception  to the general approach applicable to discovery affidavits. In limited circumstances, a practice has emerged whereby a judge may consider it necessary to undertake a private inspection of documents over which privilege is asserted, in order to reach a just and proper determination of the issue in dispute. Historically, this practice arose predominantly in interlocutory proceedings concerning a party’s entitlement to inspect documents discovered by an opponent who claimed privilege in respect thereof. The procedure entails the judge examining material that is not disclosed to the party challenging the claim of privilege. This inevitably places that party at a disadvantage, being excluded from the process, which is referred to as a judicial peek. The court is also deprived of such party’s assistance in deciding the issue. [24] 28. The process is described as a measure of last resort and it is cautioned that it should be invoked only where it is absolutely necessary. It is reasoned that courts earn public trust by conducting proceedings openly and by providing reasons for their decisions. A court should therefore be hesitant to become a party to secrecy. [25] 29. It is important to bear in mind that our rules of discovery are based upon English law and our courts can with advantage take into consideration decisions of the English courts on matters of discovery. [26] English law recognised a court’s power to inspect a d ocument for the purpose of deciding the validity of a claim of privilege as far back as 1893. Despite some conflicting decisions, the English law has settled on characterising the power to inspect a document as a matter of general discretion. [27] The discretion is described as a solution of last resort and courts guard against looking at documents out of context at an interlocutory stage. The discretion must be exercised in accordance with the overriding objective, which requires balancing dealing with cases justly, proportionately and at proportionate cost and allocating an appropriate share of the court’s resources.  Among the factors which will be relevant to the exercise of the discretion are (a) the nature of the privilege claimed (b) the number of documents involved and (c) their potential relevance to the issues. [28] 30. It is not necessary for purposes of this case to resolve the conflict between the finding in Continental (supra) and the Gauteng Division authorities referred to hereinabove. However, it is important to distinguish between the ordinary onus borne by a party asserting privilege and a court’s general discretion to inspect the documents concerned. It is well established in South African law that a court’s power to inspect or examine the documents in question is a matter of judicial discretion. Such discretion is exercised where it is necessary to secure a just and equitable decision. [29] Accordingly, our law aligns with the position in English law on this point. 31. Apart from the power to inspect, an English court also has the power to order a further affidavit to deal with matters which the earlier affidavit does not cover or on which it is unsatisfactory. In addition, a court may, in certain circumstances, order cross-examination of a person who has deposed to the discovery affidavit. [30] 32.              In principle, there is no reason why a court, in the exercise of its discretion, may not, in an appropriate case, order the filing of a further affidavit or even the cross-examination of the deponent to a discovery affidavit. It is trite that a court retains an inherent jurisdiction to regulate its own procedure in order to ensure that justice is done. It is important to bear in mind that cross-examination on discovery affidavits, including on any grounds of objection, is permissible at the trial of the matter, especially on issues of credibility. Although such cross-examination may not make inroads into the protection afforded by legal professional privilege, it is conceivable that in a given case such cross-examination may expose the claim of privilege as falling short of the legal mark. There is no reason in principle why a party may not revive its application for discovery under such circumstances. 33.              However, permitting cross-examination at an interlocutory stage may have undesirable consequences, including, but not limited to, the abuse of interlocutory proceedings and undue encroachment upon the powers of a trial court and the findings it must make. There are also the unnecessary risk and potential waste of court resources in inviting findings in interlocutory proceedings which by its very nature are not designed to ensure that a court is apprised of the full factual context of a matter. Notwithstanding, in an appropriate case such measures may be warranted to ensure that a claim of privilege complies with the legal requirements applicable thereto. In keeping with the purpose of discovery—namely, to uncover the truth and to promote the expeditious resolution of disputes—and recognising the difficulty faced by a party seeking discovery in challenging assertions of privilege, it is conceivable that, in exceptional circumstances, it may be in the interests of justice to grant such orders. 34. In my view, before a court resorts to measures of last resort or adopts procedures of an exceptional nature, it ought first to consider directing the filing of a further affidavit to address those matters inadequately dealt with in the initial discovery affidavit. A litigant seeking discovery is required to remain mindful of the court’s discretion to make such an order and should, in its founding or replying papers, raise those matters which the party asserting privilege ought to have raised in its discovery affidavit or ought to address in such further affidavit as may be directed by a court. Where appropriate, the court may also consider affording the party seeking discovery an opportunity to deliver a request for further particulars directed at elucidating the basis of the privilege claimed. [31] 35. In determining whether a particular document falls within the protection afforded by legal advice privilege [32] it must be established that it was a confidential communication between a legal adviser and its client for the purpose of obtaining or giving legal advice. The privilege applies to legal advisers in independent practice and those who are in-house. If the purpose of the communication is to obtain or give commercial or other advice the document is not covered by privilege. [33] However, a document may be brought into existence for more than one purpose. In such a case the test is whether the document was created with the dominant purpose of its contents being used to obtain legal advice. [34] That means if the subsidiary purpose of a document is to obtain legal advice then it will not be privileged. [35] 36.              Accordingly, where the Court is confronted with a single communication between a client and its legal adviser said to have been generated for two or more purposes, it must undertake a weighing of the respective purposes for which that document came into existence. In the absence of cogent contextual evidence, the proper performance of such a balancing exercise becomes exceedingly difficult, if not impossible. 37.              The approach followed by the Supreme Court of Appeal in Ibex (supra) , which was strongly influenced by English law, is both instructive and compelling. The Court undertook a detailed analysis of the facts of the matter in order to answer the question whether the dominant purpose of the person who brought the document into existence was to use it to obtain legal advice. It confirmed that if the document would in any event have been brought into existence for purposes other than obtaining legal advice, it is not privileged. 38.              In Ibex (supra) , the document in question was a report containing facts which the company would have possessed had it not been a juristic person acquiring knowledge through its agents and employees. The SCA held that litigants cannot resist disclosure of their own knowledge of the relevant facts. The report was procured to obtain factual information required to enable the company to finalise its financial statements. It is self-evident that the management of the company would in any event have required those facts to conduct its financial affairs. The dominant purpose could therefore not have been the obtaining of legal advice. At best, it could have been an equal purpose. It is important to bear in mind that the report constituted a communication between the client (being the company in question) and a third party. 39.              In the case of a series of communications (as opposed to a single communication) the application of the dominant purpose test is more complex. The inquiry must account for the distinct purpose for which each document in the series came into existence, as well as the overarching context in which the series was produced. In many cases, especially where a transaction involves protracted dealings, advice may be required at various stages. Hence, there will be a continuum of communications and meetings between a legal adviser and the client to keep both informed so that advice may be sought and given as required. Legal advice privilege applies to all communications made in a legal context, provided that they are directly related to the performance of the legal adviser’s professional duties and made for the dominant purpose of obtaining legal advice.  Once that legal context is established, all such communications attract privilege, unless particular communications are capable of being identified and separated as falling outside the scope of privilege. In determining whether the requisite context exists, it is necessary to consider the communications which preceded and followed the document in question. 40. It is important to bear in mind that legal advice is not confined to communications which expressly seek or give legal advice. It is also not confined to advice on the application of the law, but includes advice given with the benefit of a legal adviser’s skills. [36] That encompasses advice as to what should prudently and sensibly be done in the relevant legal context. [37] It remains incumbent on the party claiming privilege to show that the dominant purpose of a particular communication or document was to obtain or give legal advice. [38] 41. Legal advice privilege also covers communications passing on, considering and applying legal advice. Accordingly, it also covers the dissemination of the advice to third parties and, if authorised, communications by a legal adviser to a third party. [39] However, it does not cover communications between a third party and the legal adviser, unless such third party was employed as an agent of the client to obtain legal advice. [40] 42. The application of the dominant purpose test is not necessarily dispositive of a matter. A non-privileged communication may contain references to a privileged communication. Where such references might reveal the substance or contents of the legal advice sought or given, or where the substance or contents might be inferred from such disclosure, the non-privileged communication will likewise fall within the scope of privilege, but only where the privileged component is so intermingled with the non-privileged component that severance is, for practical purposes, impossible. If the respective components can, in fact, be separated, those parts covered by legal professional privilege will be capable of redaction, and the remainder will be disclosed. [41] 43. The same principle applies to communications which occur simultaneously between the client, the legal adviser and third parties. By way of example, communications may occur at a recorded meeting or through a series of emails addressed to multiple recipients consisting of the client, the legal adviser and third parties. If the dominant purpose of such a meeting or of such multiple-addressee communications is commercial, or otherwise non-legal, the record of the meeting or such emails will not attract privilege. However, where legal advice is requested or given at such a meeting or in one of the multiple-addressee communications, that part will remain privileged. Such a communication between the client and the legal adviser satisfies the dominant purpose test insofar as it constitutes a separate communication forming part of several communications taking place at a meeting or through a series of communications. Accordingly, where disclosure of the non-privileged meeting or series of emails might reveal the substance or contents of the privileged communication, or where the substance or contents thereof might be inferred from such disclosure, the non-privileged communication will likewise fall within the ambit of privilege, but only where the privileged component is so intermingled with the non-privileged component that severance is, for practical purposes, impossible. If the respective components can practically be separated, those parts covered by legal professional privilege will be capable of redaction, and the balance will be disclosed. [42] 44.              In summary: 45.Top of Form 46.Bottom of Form (a)          A party claiming professional legal privilege bears the burden of establishing compliance with the requirements for such privilege. (b)          To discharge this onus, the party must depose to a discovery affidavit in which sufficient facts are alleged to establish the legal and factual basis of the claim. This means that, notwithstanding any objection, such party must properly itemise and identify the document in its discovery affidavit, together with the grounds upon which production is resisted. The grounds must include a detailed contextual justification for the claim of privilege without disclosing the content or substance of the matter in respect of which the privilege is claimed. (c)          Where a document, or series of documents, has more than one purpose, the party claiming privilege must establish that each document was produced for the dominant purpose of using it to obtain legal advice or, in the case of litigation privilege, of using it to conduct existing or contemplated litigation. (d)          A non-privileged communication may contain references to a privileged communication. Where such references might reveal the substance or contents of legal advice sought or given, or where the substance or contents might be inferred from such disclosure, the non-privileged communication will likewise fall within the scope of privilege, but only where the privileged component is so intermingled with the non-privileged component that severance is, for practical purposes, impossible. If the respective components can, in fact, be separated, those parts covered by legal professional privilege will be capable of redaction, and the remainder will be disclosed. (e) A court will not go behind a discovery affidavit, unless on the probabilities or where it is reasonably certain – having regard to the documents identified in the authorities and the applicable facts and circumstances [43] - the party claiming privilege has failed to establish the requirements for its claim. (f)           A court retains a general discretion to ensure a just outcome. In exercising this discretion, a court may order that a further affidavit be filed if the discovery affidavit does not cover all, or any, of the requirements of the claimed privilege or is otherwise unsatisfactory. If necessary, a court may also permit the filing of a request for further particulars in relation to the claim of privilege, and where appropriate, compel the party claiming discovery to answer such request. (g) A court may, where it is considered absolutely necessary to ensure a just outcome, conduct a private inspection of the document(s) in respect of which privilege is claimed to determine whether the claim has been properly made. Furthermore, where required, a court may consider developing the rules applicable to discovery to include an order for the cross-examination of a deponent to a discovery affidavit to ensure that a just decision is made. [44] D . APPLICATION TO THE FACTS 47.              The plaintiff brought the application on the basis that the first (and second) defendants failed to deliver a reply to the plaintiff’s Rule 35(3) notice dated 25 November 2024. 48.              Prior to bringing the application the parties attempted to settle the issues arising from the Rule 35(3) notice (hereinafter referred to as “the notice”). The settlement negotiations broke down in early March 2025. As a result, the plaintiff’s attorneys on 4 March 2025, as an indulgence, granted the defendants until 10 March 2025 to reply to its notice. 49.              The defendants failed to file an affidavit as required in terms of Rule 35(3) by 10 March 2025. On 11 March 2025 the plaintiff’s attorneys demanded a reply by no later than 14 March 2025, failing which it would proceed with an application to compel. 50.              On 25 March 2025 the defendants’ attorneys responded that it was in the process of collating the relevant documents and undertook to respond in detail by no later than 11 April 2025. 51.              The defendants failed to live up to its undertaking. No reply to the notice was filed. As a result the present application was issued on 17 April 2025. The main relief sought, unsurprisingly, is an order directing the defendants to reply to the notice. 52.              The defendants filed an answering affidavit on or about 3 July 2025. In the said affidavit the first defendant tendered the plaintiff’s costs, albeit limited to scale A in respect of counsel. 53. More pertinently, it claimed, without stating it by name, legal advice privilege and litigation privilege on the following factual allegations: (a) Mr Rosen is a solicitor. [45] (b) Mr Rosen, in his capacity as a solicitor, acts for and advises the first defendant and other relevant parties in general and in relation to this action and matters consolidated with it. (c) All the documents relevant to the notice that are in the first defendant’s possession were brought into existence in that context. 54.              The first defendant failed to deliver an itemised list of documents, properly described. It simply described the documents as “all of the documents relevant to this request that are in the first defendant’s possession.” 55. The said response is wholly inadequate. 56. No attempt was made to provide a detailed contextual explanation in respect of each and every document. It is not known what documents are in the first defendant’s possession, nor are the dates of such documents disclosed. Confidentiality is not expressly alleged. No analysis was undertaken in respect of each and every document or the purpose for which it was created, and no reference was made to any contemporaneous material. Most significantly, no allegation was made that the documents were created for the purpose of obtaining or giving legal advice. It was also not alleged that litigation was pending or contemplated as likely at the time when  the documents were brought into existence. 57.              The plaintiff, in its replying affidavit, stated that Mr Rosen, whilst being a solicitor, was also a director of PIAG and involved in the commercial negotiations relating to the agreements referred to in the pleadings. As corroboration, the plaintiff attached email correspondence allegedly exchanged between Mr Rosen and the plaintiff’s representatives concerning the commercial terms of the parties’ relationship. It appears from the correspondence that on 26 February 2016 Mr Coyne, the plaintiff’s representative, addressed an email to Mr Rosen concerning commercial and legal issues pertaining to the terms of the agreement the parties were negotiating. Mr Hoogland was also copied in the email. Mr Hoogland replied to the email, not Mr Rosen, although the latter remained copied in the chain. 58. It must be borne in mind that, on the pleadings, the dispute concerns the sale of a business through the acquisition of its shares and the purported transfer of the associated intellectual property rights. The plaintiff accepts that Mr Rosen was involved in the commercial negotiations relating to the relevant agreements; [46] he would therefore have been privy to the underlying factual matrix. The agreements relied upon reflect that the parties considered numerous matters material to the transaction, which they regulated through various terms, including guarantees relating to the financial condition and performance of the business. Such provisions are customary. In these circumstances, it is unsurprising that a party—such as the first defendant—would seek legal advice from an appropriately qualified expert. The first defendant’s claim to privilege is thus not inherently improbable. 59.              The email exchanges on which the plaintiff relies include, among other things, discussions concerning financial statements of the entities involved, including the budget of one of the entities. Although it is conceivable that Mr Rosen’s advice on such matters may have extended to the first defendant’s commercial interests, this does not mean that such advice may not also have comprised legal advice. As noted, one of the agreements expressly provides for guarantees relating to the financial condition and performance of the business. The commercial interests of the parties were therefore regulated through contractual terms. It would be unsurprising if the advice of a qualified solicitor on such matters were informed by both commercial considerations and legal analysis. However, given Mr Rosen’s dual role as director and in-house legal adviser, it was incumbent upon the first respondent to advance allegations establishing the capacity in which Mr Rosen acted, and the context within which he acted, in respect of each document. This it did not do, instead leaving the Court to glean such information from the pleadings and annexures. 60.              Having regard to the aforesaid, it appears that this matter concerns a series of documents created within the overarching context of a complicated commercial transaction. The Court was not provided with the specific context within which each document came into being. Quite remarkably, the Court was not even provided with an itemised list of the documents or particulars of the period during which the documents were created. The allegations advanced in support of the claim of privilege are bald in nature and do not, in any event, address all the requirements for establishing legal professional privilege. 61.              In the circumstances, the first respondent has failed to establish legal professional privilege. However, it is evident from the facts and circumstances that the first respondent’s claim to legal professional privilege is not inherently improbable. The fact that the first respondent misconceived the legal rules applicable to claims of legal professional privilege does not, of itself, mean that the Court must order disclosure of the documents. In the absence of an itemised list of documents, properly described, the Court is in any event unable to effectively enforce any order for discovery. Moreover, legal professional privilege is a fundamental substantive right upon which the administration of justice rests. A client must be able to place all relevant facts before a legal adviser without fear that they may thereafter be disclosed or used to the client’s prejudice. A Court should avoid intruding upon that right merely because the client’s legal representatives may have misconceived the applicable principles. 62.              The Court is clothed with a general discretion to ensure a just outcome. Having regard to the facts and circumstances, I am of the view that this is an appropriate matter in which the Court should exercise its discretion to order the first defendant to file a further affidavit to address the matters it failed to deal with in its initial affidavit. The plaintiff, should it wish to do so, is also granted leave to file an affidavit in response to that affidavit. Only once such further affidavits have been filed will a court be in position to consider whether the first defendant has complied with the requirements for legal professional privilege and whether it should exercise its discretion to inspect the documents concerned. 63.              The plaintiff has attained substantial success. Had it not been for the Court’s concern about the overriding public interest in protecting the first defendant’s potential legal professional privilege at play, and the first respondent’s inexcusable failure to provide an itemised list of documents, the plaintiff may well have obtained complete success. Accordingly, there is no reason why costs should not follow the event. 64.              There remains a procedural point taken by the first defendant which requires determination. The first defendant contended that the plaintiff followed the incorrect procedure. In essence it is contended that as soon as the first respondent filed an affidavit which the plaintiff considered inadequate, it should have proceeded with a separate application in terms of Rule 35(7). That is the normal procedure. However, the circumstances of the case warranted a departure therefrom. 65.              It bears repetition that, notwithstanding repeated demands, the first defendant failed to file a reply to the notice. As a result, the plaintiff launched the present application. In terms of the notice of motion the applicant only sought an order directing the defendants to file a reply to the notice. The first defendant, through its answering affidavit, in effect filed a reply thereto, thereby rendering the relief sought in terms of the notice of motion moot. The plaintiff, in response, proceeded with the matter on the basis that the first defendant’s response was inadequate and that the Court should inspect the documents to determine the claim for privilege. This was done in the context of a trial date which was about two months away. The plaintiff used its replying affidavit to set out the basis upon which it decided to proceed with the application. It failed to amend the notice of motion accordingly. 66.              The first defendant protested that, had the plaintiff proceeded in terms of Rule 35(7), it would have been afforded an opportunity to file an affidavit addressing the allegations made in the plaintiff’s replying affidavit. It is, however, self-evident that any such affidavit could not have cured the first defendant’s failure to comply with the most basic requirements applicable to a claim of legal professional privilege. In any event, the first defendant was entitled to apply for leave to file a supplementary affidavit should it have wished to address any of the allegations raised in reply. As matters transpired, the first defendant was able to deal with the issue in argument. In any event, the matter is now moot in light of the Court’s decision to direct the filing of a further affidavit. 67. It bears emphasis that our courts have reiterated that, in the absence of prejudice, technical objections to less than perfect procedural steps should not be permitted to derail the adjudication of disputes. [47] Litigation is not intended to be strategic battlegrounds of technical manoeuvres. The rules exist to serve the interests of justice. 68.              Legal costs are high, and most individuals—and even commercial entities—can scarcely afford litigation, particularly litigation consumed by procedural skirmishes. Litigants approach the courts to have their disputes determined on their substantive merits. Yet, regrettably, opportunistic litigants often invite courts to dispose of matters on facile procedural points. Such points may present themselves as a temptation—an ostensibly easy route to finality without engaging with the real issues. In many instances, obfuscation becomes the objective or the defence. Courts must remain vigilant to this trend which undermines the rule of law; and although not every technical or procedural point is without merit, many plainly are. 69.              For the reasons stated, the technical procedural point advanced by the first defendant is without merit. Were it to succeed, the consequence would merely be that the plaintiff would have to institute a further application based on substantially the same facts. No attempt has been made to demonstrate how such a course would alter the potential outcome. Furthermore, although the procedure adopted by the plaintiff was somewhat unusual, it constituted a reasonable response to the first defendant’s failure to comply with the rules. In these circumstances, it would be inappropriate to elevate the procedural threshold for a litigant who merely endeavoured to address the consequences of its opponent’s remissness. D. CONCLUSION 70. In the result, the following order is made: (e)          The first defendant is ordered to file an affidavit, within 35 calendar days of the date hereof, that: (iv)   provides an itemised list of the documents, properly identified, in respect of which privilege is claimed; (v)     sets out the context and purpose of each document; (vi)   provides the reasons or grounds upon which it is alleged that each document is privileged, without disclosing the content or substance of the communication in respect of which privilege is claimed. (f)           The plaintiff is granted leave to file a supplementary affidavit, within 15 calendar days of the filing of the first defendant’s supplementary affidavit, in response thereto. (g)          The plaintiff is granted leave to re-enrol the matter for hearing, duly supplemented, subject to the directions of the Office of the Judge President and/or Deputy Judge President. (h)          The first respondent shall pay the plaintiff’s costs incurred up to the date of the hearing of the application, including the costs of counsel on scale B. There shall be no order of costs against the second defendant. W ROUX ACTING JUDGE OF THE HIGH COURT Appearances For the plaintiff:          Adv. Quixley Instructed by: Mr Ford of Bernardt Vukic Potash & Getz For defendants:           Advs. Manca and Quinn Instructed by: Mr Gootkin of Werkmans [1] Although the application was brought against the first and second defendants, it is clear from a reading of the papers that the relief sought was confined to the first defendant. The defendants are represented by the same attorneys and the erroneous inclusion of the second defendant, as a party against whom relief was also sought, is inconsequential from a costs’ perspective. [2] Concluded with the holding company of PIAG. [3] Rule 35(2). [4] Copalcor Manufacturing (Pty) Ltd and another v GDC Hauliers (Pty) Ltd 2000 (3) SA 181 W at para 23-28; Coetzer v Wesbank, a division of FirstRand Bnak Ltd, an unreported judgment of the Gauteng Division delivered on 10 July 2024 at para15-19. [5] Rule 35(3) is of wider application. [6] Carpede v Choene NO and Another 1986 (3) SA 445 (O); Prinsloo v Saaiman 1984 (2) SA (O); Hireservices F and Hireservices I Ltd v AN POST 2020 IECA 120 at para 21 and 38. [7] A Company and Others v Commissioner for SARS 2014 ZAWCHC 33 at par 11. [8] West London Pipeline and Storage Ltd v Total UK Ltd 2008 EWHC 1729 (Comm); A Company (supra) at par 5 thereof. [9] S v Safatsa and others 1988 (1) SA 868 AD; A Company and Others v Commissioner for SARS 2014 ZAWCHC 33 [10] West London Pipeline and Storage Ltd v Total UK Ltd 2008 EWHC 1729 (Comm) at par 86. [11] Hireservices E and Hireservices I Ltd v An Post 2020 IECA 120 ; (Cleary and ors v. Sheehan [2013] IEHC 456 at para. 26. [12] MV Alina II Transnet Ltd v MV Alina II 2013 (6) SA 556 WCC at par 19. [13] Prinsloo v Saaiman 1984 (2) SA 56 (O) at p59. [14] Prinsloo v Saaiman 1984 (2) SA 56 (O). [15] A Company and Others v Commissioner for SARS 2014 ZAWCHC 33 at para 1 and 39. [16] West London Pipeline and Storage Ltd v Total UK Ltd 2008 EWHC 1729 (Comm) at par 53. [17] Continental Ore Construction v Highveld Steel & Vanadium Corporation Ltd 1971 (4) SA 589 (W) at p598; MV Alina II Transnet Ltd v MV Alina II 2013 (6) SA 556 WCC at par 26. [18] West London Pipeline and Storage Ltd v Total UK Ltd 2008 EWHC 1729 (Comm) at par 50. [19] Ibex RSA Holdco Ltd and Another v Tiso Blackstar Group (Pty) Ltd 2024 ZASCA 166 at par 41-42; Al Sadeq v Dechert LLP and others 2024 EWCA Viv 28 at par 185; West London Pipeline and Storage Ltd v Total UK Ltd 2008 EWHC 1729 (Comm) at para 50-62. Although the requirements for litigation privilege are sometimes stated only with reference to submission to a legal advisor for advice, it is generally understood that evidence or information sought or obtained for use in connection with existing or contemplated litigation also enjoys protection under litigation privilege. [20] Anglo American South Africa Ltd v Kabwe and others, an unreported judgment of the Gauteng Division, Johannesburg delivered on 26 October 2021 at para 30-31 where reference is made to a number of decisions. The SCA in the matter of Competition Commission v ArcellorMittal South Africa Ltd and others 2013 (5) SA 538 SCA referred with approval to the leading Gauteng decision on this point, but without referring expressly to the formulation of the onus itself and the conflicting decisions relative thereto. [21] In Ibex RSA Holdco Ltd and Another v Tiso Blackstar Group (Pty) Ltd 2024 ZASCA 166 , the Supreme Court of Appeal clarified the threshold applicable to the public-interest override in s 70 of the Promotion of Access to Information Act 2 of 2003 (“PAIA”). The Court held that the jurisdictional facts required for the application of the override must be established on a balance of probabilities. In addressing factual disputes arising in PAIA proceedings, the SCA further confirmed that the Plascon-Evans rule finds application. This approach stands in contrast to the position under the rules of court governing claims of legal professional privilege, where it is trite that a court will not lightly go behind a discovery affidavit in which privilege is asserted. The SCA’s adoption of a less exacting standard under PAIA underscores the distinct statutory context and reflects a deliberate judicial stance. The Court justified this more flexible approach—particularly regarding the purpose for which a document was created—on the basis that it promotes broader disclosure and thereby facilitates the adjudication of disputes on the fullest factual matrix available. When viewed cumulatively, these developments in Ibex signal a perceptible shift towards narrowing the protective scope traditionally afforded to legal professional privilege, at least within the statutory framework of PAIA. [22] West London Pipeline and Storage Ltd v Total UK Ltd 2008 EWHC 1729 (Comm); WH Holding Ltd and another  v E20 Stadium LLP [2018] EWCA Civ 2652 ; Al Sadeq v Dechert LLP and others 2024 EWCA Viv 28. [23] Par 39. [24] A Company and Others v Commissioner for SARS 2014 ZAWCHC 33 at par 37. [25] President of the Republic of South Africa v M&G Media Ltd 2012 (2) SA 50 (CC); A Company (supra) at par 38. [26] Crown Cork & Seal Co Inc and another v Rheem South Africa (Pty) Ltd and others 1980 (3) SA 1093 (W) at 1098-1100. [27] WH Holding Ltd and another  v E20 Stadium LLP [2018] EWCA Civ 2652 at par 39. [28] WH Holding Ltd and another  v E20 Stadium LLP [2018] EWCA Civ 2652 at par 40. [29] See: A Company and Others v Commissioner for SARS 2014 ZAWCHC 33 and the cases referred to in footnote 40, to wit: Lenz Township Co (Pty Ltd) v Munnick 1959 (4) SA 567 (T) at 574G-H; Van der Linde v Calitz 1967 (2) SA 239 (A) at 260B; South African Football Union and Others v President of the Republic of South Africa and Others 1998 (4) SA 296 (T) at 300H-302 and Mohamed v President of the Republic of South Africa 2001(2) SA 1145 (C) at 1150J-1151A. [30] West London Pipeline and Storage Ltd v Total UK Ltd 2008 EWHC 1729 (Comm) at par 86. 30 Little and another v Irish Bank Resolution Corporation Ltd (IN SPECIAL LIQUIDATION) and Launceston Property Finance Ltd [2019] IEHC 656. [32] Legal professional privilege has two sub-heads each with their own requirements, legal advice privilege and litigation privilege. [33] Al Sadeq v Dechert LLP and others, 2024 EWCA Viv 28; The Civil Aviation Authority v The Queen on the application of JET2.Com Ltd and another, 2020 EWCA Civ 35. [34] Ibex RSA Holdco Ltd and Another v Tiso Blackstar Group (Pty) Ltd 2024 ZASCA 166 at par 73. [35] Al Sadeq v Dechert LLP and others, 2024 EWCA Viv 28; The Civil Aviation Authority v The Queen on the application of JET2.Com Ltd and another, 2020 EWCA Civ 35. [36] Al Sadeq (supra) at par 228. [37] A Company (supra) at par 25. [38] A Company and Others v Commissioner for SARS 2014 ZAWCHC 33 at para 22-26; The Civil Aviation Authority (supra) at para 60-96. [39] The Civil Aviation Authority (supra) at par 45. [40] The Civil Aviation Authority (supra) at par 46. [41] A Company (supra) at para 31-40; The Civil Aviation Authority (supra) at para 97-101. [42] See footnote 41 above. [43] See: par 20 above. The nature of a case and the documents concerned includes the relevant facts and circumstances. [44] The discretion to order cross-examination is subject to a court first determining whether the rules of discovery must be developed to include such a power. It is not necessary for purposes of this case to consider such development. [45] In the UK and the Republic of Ireland. [46] There are a number of contractual disputes concerning same. [47] Copalcor Manufacturing (Pty) Ltd and another v GDC Hauliers (Pty) Ltd 2000 (3) SA 181 W at par 17. sino noindex make_database footer start