Contango Trading SA v Central Energy Fund SOC Ltd

The Central Energy Fund SOC Ltd (CEF) and its subsidiary, the Strategic Fuel Fund Association NPC (SFF), instituted review proceedings to set aside their own decisions and related agreements concerning the disposal of approximately 10 million barrels of South Africa’s strategic crude oil reserves. Several oil companies were cited as respondents in the review. Following receipt of the review application, Contango Trading SA, Natixis SA and Glencore Energy UK Ltd issued notices in terms of Rule 35(12) of the Uniform Rules of Court, seeking production of documents referred to in the founding affidavit, including a so-called ‘legal review’, senior counsel opinions, and financial reports prepared by KPMG and PwC. The CEF and SFF refused disclosure, asserting that the ‘legal review’ was a process rather than a document and that the opinions and reports were protected by legal advice or litigation privilege. Applications to compel disclosure under Rule 30A were dismissed by the Western Cape High Court, leading to the present appeal to the Supreme Court of Appeal.

The appeal against refusal to disclose the legal review and senior counsel opinions was dismissed. The appeals relating to the KPMG and PwC reports were upheld, and the respondents were ordered to disclose those reports within 10 days. Each party was ordered to pay its own costs of the appeal, and the costs order of the court a quo was partially set aside and replaced with an order that the respondents pay the costs of the successful disclosure applications in the high court, including the costs of two counsel.

The case provides authoritative guidance on the scope of Rule 35(12) discovery, clarifying that a mere reference to a process does not amount to a reference to a document. It also reinforces the strict requirements for claiming litigation privilege, particularly in relation to expert and financial reports, and underscores the duty of candour resting on organs of state in litigation.