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

Steinhoff International Holdings NV, a public company listed on the JSE and Frankfurt Stock Exchange, faced serious accounting irregularities in December 2017. Its auditor, Deloitte, refused to sign off on its financial statements. Steinhoff appointed PricewaterhouseCoopers (PwC), purportedly via its attorneys Werksmans, to conduct an independent forensic investigation. PwC produced a 4 000-page report in March 2019 (the Report). On 15 March 2019, Steinhoff published an 11-page public overview summarising the Report’s key findings, which confirmed widespread fraud and irregular transactions inflating profits and asset values. Media organisations Tiso Blackstar and amaBhungane requested access to the full Report under the Promotion of Access to Information Act 2 of 2000 (PAIA). Steinhoff refused, relying on legal professional privilege under s 67 of PAIA. The Western Cape High Court ordered disclosure. Steinhoff (later substituted by Ibex RSA Holdco Limited and Ibex Topco B.V. following a group restructuring) appealed with leave. Steinhoff also sought to adduce further evidence on appeal relating to EU data protection law (GDPR) and applied to uphold the High Court’s striking out of certain paragraphs in the founding affidavit as hearsay. The media respondentscross-appealed the striking-out order.

• Should Steinhoff be allowed to adduce further evidence on appeal regarding data protection law?
• What is the proper test for legal professional privilege under s 67 of the PAIA?
• Has Steinhoff established that the PwC Report is protected by legal professional privilege?
• If the Report is privileged, has Steinhoff waived that privilege by publishing the overview?
• Does the public interest override in s 70 of the PAIA apply to compel disclosure?
• Should the media respondents' cross-appeal against the striking out of hearsay paragraphs succeed?

1. The application to adduce further evidence is refused with costs, including the costs of two counsel. 2. The appeal is dismissed with costs, including the costs of two counsel. 3. The cross-appeal is struck from the roll with no order as to costs.

1. The proper test for legal professional privilege in South Africa is the dominant-purpose test: a document is privileged only if created with the dominant purpose of its author (or the person under whose direction it was created) of using it to obtain legal advice or in the conduct of existing or contemplated adversarial litigation. The prior approach permitting privilege where one of several purposes was for legal advice is overruled. 2. Legal professional privilege is impliedly waived where a party voluntarily discloses the gist or substance of a privileged document to the public; fairness and consistency prevent the party from asserting privilege over the remainder of the document. 3. Under the PAIA, disclosure is the default position and exemptions are exceptions. The public interest override in s 70 applies where the record would reveal evidence of a substantial contravention of the law and the public interest in disclosure clearly outweighs the harm contemplated in the relevant exemption.

1. The Court noted that foreign data-protection regimes such as the GDPR cannot be applied to limit the effect of a South African statute (PAIA), and that any argument under s 63 of the PAIA (unreasonable disclosure of personal information) was rightly not raised in the High Court and could not be introduced under the guise of new evidence. 2. The Court made extensive observations on the rationale for confining legal professional privilege within strict limits, citing the danger that corporate litigants could too easily cloak ordinary business records with privilege, thereby impeding the adversarial system and full discovery. 3. The Court commented that the cross-appeal on the hearsay ruling would have no practical effect given its conclusions on privilege and the public interest override, and thus struck it from the roll without determining the merits of the evidentiary complaint. 4. The Court emphasized the profound public interest in exposing the Steinhoff scandal, affecting millions of pensioners and the integrity of capital markets.

This judgment is significant because it definitively adopts the dominant-purpose test for legal professional privilege in South African law, overruling the previous purposive approach in A Sweidan and King. It clarifies that interposing an attorney between a client and a third-party investigator does not automatically cloak the resulting report with privilege; the document’s dominant purpose must be for legal advice or litigation. The judgment also affirms that voluntary publication of a substantive summary of a privileged document can constitute an implied waiver of privilege over the full document. In the access-to-information context, it vigorously applies the PAIA public-interest override to mandate disclosure of records revealing large-scale corporate fraud, underscoring transparency, media freedom, and accountability in corporate governance.