Ibex RSA Holdco Limited and Another v Tiso Blackstar Group (Pty) Ltd and Others

Steinhoff International Holdings NV, a large public company listed on the JSE and Frankfurt Stock Exchange, experienced accounting irregularities in December 2017 when its auditors (Deloitte) refused to sign off on its annual financial statements. Steinhoff engaged PricewaterhouseCoopers (PwC) to conduct a forensic investigation into the irregularities. PwC produced a 4000-page report in March 2019. Steinhoff published an 11-page overview of the report but claimed the full report was privileged. The accounting irregularities resulted in a 98% drop in Steinhoff's share value, with investors losing over R200 billion, including massive losses to pension funds like the Government Employees Pension Fund (GEPF). Media organizations (Tiso Blackstar and amaBhungane) requested access to the full report under the Promotion of Access to Information Act (PAIA), which Steinhoff refused on grounds of legal professional privilege.

• Whether the PwC forensic investigation report is protected by legal professional privilege under section 67 of PAIA
• What is the appropriate test for legal professional privilege where a document is created for multiple purposes
• Whether Steinhoff waived privilege by publishing an overview of the report
• Whether the public interest override in section 70 of PAIA applies to require disclosure despite privilege
• Whether further evidence should be admitted on appeal regarding data protection obligations under the GDPR

The appeal was dismissed with costs, including costs of two counsel. The cross-appeal regarding the striking out of certain paragraphs in the founding affidavit was struck from the roll with no order as to costs, as it would have no practical effect given the court's findings on privilege and the public interest override.

A document is privileged only if created with the dominant purpose of obtaining legal advice or for use in existing or contemplated adversarial litigation. Where a document is created for multiple purposes, the purpose of submission to a legal adviser must be the dominant (not merely one of several) purposes to attract privilege. Privilege may be impliedly waived where a party voluntarily discloses the gist or substance of privileged material - fairness and consistency require that after a certain point of disclosure, a party cannot withhold the remainder. Under section 70 of PAIA, the public interest override applies where disclosure would reveal evidence of substantial contravention of or failure to comply with the law, and the public interest in disclosure clearly outweighs the harm contemplated in refusing access.

The court noted that even if applicable, European data protection laws (GDPR) cannot be applied to limit the effect of South African legislation (PAIA). The court observed that legal professional privilege should be confined within strict limits, particularly for corporate records, as claims of privilege by companies do little to promote full and frank disclosure. The court emphasized that disclosure of information is the rule under PAIA and exemption from disclosure is the exception, reflecting the constitutional right of access to information. The court commented that Steinhoff's own statements to Parliament recognized the importance of sharing the findings "so that lessons learnt from these events and processes can be applied."

This case is significant for establishing the dominant purpose test for legal professional privilege in South African law, overruling the previous more permissive approach. It clarifies that a document is only privileged if created with the dominant purpose of obtaining legal advice or for use in existing or contemplated litigation - not merely if that was one of several purposes. The judgment also provides important guidance on waiver of privilege through partial disclosure, and demonstrates the application of the public interest override under PAIA in cases of corporate fraud affecting the broader public. The case is particularly significant given the scale of the Steinhoff fraud (South Africa's largest corporate scandal) and its impact on millions of pension fund members and investors. It affirms the principle that transparency and public accountability outweigh corporate claims to privilege where there is evidence of massive fraud and unlawful conduct.