IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

AVONTUUR & ASSOCIATES INC.	FIRST APPLICANT
C.A.S AVONTUUR	SECOND APPLICANT

And

THE CHIEF MAGISTRATE, OUDTSHOORN
MAGISTRATE'S COURT	FIRST RESPONDENT
INSPECTOR FRANK TOLKEN	SECOND RESPONDENT
THE MINISTER OF SAFETY & SECURITY	THIRD RESPONDENT
Coram:		DLODLO, J 
Judgment by:	DLODLO, J

For the Applicants:	ATTOR. C AVONTUUR [IN PERSON]

Middle Floor, Allied Building 
Church Street 
OUDTSHOORN
(RRF. C Avontuur/mva) 
TEL. NO.(044)272 4351 /073 953 1249
C/o Brink & Thomas
107 On St. Georges Mall

CAPE TOWN
TEL. NO. (021)424 1564

|0211 4245051/082 442 5491

Instructed:	State Attorney

22 Long Street 
CAPE TOWN 
(REF. 0394/I2/P25) 
TEL. NO. (021) 441 9200

Date (s) of Hearing	08 MAY 2012

Judgment delivered on	:        06 JUNE 2012

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:
AVONTUUR & ASSOCIATES INC.	FIRST APPLICANT
C.A.S AVONTUUR	SECOND APPLICANT

And

THE CHIEF MAGISTRATE, OUDTSHOORN
MAGISTRATE'S COURT	FIRST RESPONDENT
INSPECTOR FRANK TOLKEN	SECOND RESPONDENT
THE MINISTER OF SAFETY & SECURITY	THIRD RESPONDENT

JUDGMENT DELIVERED ON WEDNESDAY, 06 JUNE 2012

DLODLO. J
[1] On 20 February 2012 members of the South African Police Service under the command of Inspector Frank Tolken conducted a search at the premises of a law firm practicing as such under the name and style as Avontuur and Associates Incorporated. They sought to find and seize a certain number of files apparently belonging to Oudtshoorn Municipality which had been handed over by the latter to the First Appellant with express instructions to do collections on its behalf. The police were armed with two search warrants which had been issued on 17 February 2012 by the chief magistrate of the Oudtshoorn Magistrate's Court, one Mr JS Lambrechts (the First Respondent in these proceedings who is from henceforth referred to as "the chief magistrate").

BACKGROUND
[3] It would appear that there must have been serious allegations of financial mismanagement at the Municipality of Oudtshoorn. I say so because on 4 February 2011 the President of the Republic of South Africa issued Proclamation R6 of 2011. See Government Gazette 34001. This Proclamation authorized the Special Investigation Unit to conduct an investigation into various issues at the Oudtshoorn Municipality. In the schedule portion of the Proclamation the issues that fell to be investigated were (a) the procurement of and contracting for goods, works or services by or on behalf of the Municipality and payment made in relation thereto; (b) losses or prejudice suffered by the Municipality as a result of unlawful conduct or irregular practices; (c) losses or prejudice suffered by the Municipality as a result of the mismanagement of its assets, finances or other resources which allegedly took place between 1 January 2004 and 4 February 2011. I gather from the papers in this matter that it was through the Special Investigation Unit's investigation of the Oudtshoorn's Municipality's affairs that evidence emerged which pointed to the possible commission of offences by the two applicants who had on or during 2005 been awarded a tender to do debt collection on behalf of the Municipality. Investigations resulted in dockets being opened. See MAS Number 36/08/2011 and MAS Number 33/02/2012.

[4] On 2 February 2012 Jan Abraham Celliers, an investigator with the Special Investigation unit in Oudtshoorn contacted Inspector Tolken and reported evidence already collected and his report included a statement by Mr Bjorn Henrique Clayton Metembo ("Mr Metembo") which had Annexures numbered "BM1" and "BM6'\ The list of names which forms part of Annexure "BMP is the same list entitled "Boedels en Deernisse Interim Rekeningstaat". There was a statement by Ms Mari Roux, an Attorney practicing as the director of Mari Roux Attorneys in Groot Brak River ("Roux") with two annexures. Mr Celliers had summarized the evidence gathered as at that stage and made reference to Mr Metembo and Ms Roux's statements' contents. From these statements the following scenario appeared:

(a) Column four entitled "Bedrag (Taksasief referred to the amounts allegedly allowed by the taxing master of the Oudtshoorn Magistrate's Court, Ms Barenda Struwig ("Struwig"); (b) Column five entitled "Bedrag (Mari Roux)" referred to the amounts allegedly calculated by the Applicants' cost consultant, Roux, whom Applicants had appointed to verify the amounts as taxed as it was Applicants' opinion that the taxing master had used the wrong scale to tax the bills, viz. the tariff allowed in the tender as opposed to the attorney-client scale; (c) Column six entitled "Verskil" was the difference in the amounts set out in columns four and five. The total of column six was what the Applicants demanded from the Municipality in their invoice referred to above; and (d) Many of the names contained on the list were the same as the names on an invoice the Applicants had submitted to the Municipality on 6 October 2011.

FOUNDING AFFIDAVIT
[7] This was deposed to by Clyde Alex Shaun Avontuur ("Mr Avontuur" referred to above), an admitted Attorney who practices as such at 102, Allied Building, Church Street, Oudtshoorn. He is cited as Second
Applicant in these proceedings. He describes himself in this Affidavit also as the sole director of Avontuut & Associates Incorporated, a company and a firm of Attorneys at Oudtshoorn. Before dealing with the merits of the application, Mr Avontuur raised what he termed a preliminary point and pointed out that the Second Respondent, Inspector Tolken, applied for the issuing of a warrant in terms of section 205 of the Criminal Procedure Act and that instead of ordering a section 205 subpoena, the chief magistrate issued a wan-ant in terms of section 21 of the Criminal Procedure Act. Mr Avontuur contended that because of the aforegoing procedural defect the warrants became materially so defective that it ought to be set aside on this basis alone.

[8] Mr Avontuur contended that he objects to the admissibility of any communication between himself, the First Applicant and Mari Roux, Costs Consultant. He asserted that all such communications are privileged and are protected from disclosure. He explained that he consulted Ms Roux in confidence pertaining to a dispute with the Municipality and that neither himself nor the First Respondent had given consent, expressly or otherwise that the privilege be lifted. He stated that in fact he had maintained his stance to Inspector Tolken that such communication is protected and asserted the privilege. He averred that he further objects to the admissibility of what he calls hearsay evidence contained in the supporting Affidavit by Jan Celliers annexed to Inspector Tolken"s Affidavit. Mr Avontuur on being confronted by Inspector Tolken and other members of the Police at his practice and having been shown a search warrant issued by the chief magistrate, had proceeded to the latter's offices in order to obtain copy of the application on the strength of which the search warrant was authorized and subsequently issued. He mentioned that in the meantime Inspector Tolken and his team began in earnest to execute the search warrant and that he also assisted them by indicating where they could find the files sought to be found. Mr Avontuur made his staff members available to Inspector Tolken and the team. The reason Mr Avontuur wanted a copy of the application on the strength of which the search warrants had been authorized was that he intended to make an application seeking to set these warrants aside.

"She never made any representation to Metembo or anyone else at the Municipality that all the phase I and 2 accounts had been taxed; she explained in detail that only some of the accounts had been taxed to provide a bench mark for all the other accounts: she had never represented to Metembo or anyone else that Mari Roux had drawn ail the accounts. She explained that she used the different columns not to convey that all the accounts in fact had been taxed or drawn by Mari Roux, but only for our internal office purposes to draw the distinction between what the Taxing Master had allowed and what was drawn according to the formula provided by Roux. Roux's first nine accounts were to serve as concept accounts to see what we were entitled to and what the Taxing Master will allow. It was to serve as the basis for the drawing of all other accounts. "

[12] Responding allegations contained in Inspector Tolken's Affidavit Mr Avontuur contended that reference to MAS 36/8/2011 was highly irrelevant and was included with sole purpose of influencing the chief magistrate. He denied that he represented that Roux made a "Koste bapaling" on the files and that accounts had been taxed. In his view, there is no factual basis for that averment in that he never represented anything than the scale upon which the accounts had been drawn were provided by Mari Roux. He had explained to the Municipality that they (Avontuur & Associates) only used her concept accounts as the basis to draw the other accounts. Mr Avontuur emphasized that at the time of the 84 taxation, the only issue in dispute with the Municipality was the scale that was supposed to be used in compensating them - and by obtaining an opinion on the matter from an independent consultant they tried to persuade the Municipality to pay on the higher scale, namely attorney and client.

[13] According to Mr Avontuur everybody in the Municipality, including Lesley Swanepoel and Lin Meiring knew that only 84 accounts had been taxed whereupon the Taxing Master's decisions were taken on review and that the review Court referred the matter to action proceedings. Mr Avontuur added that their firm's competitor, Coetzee & Van der Bergh who also did collections on behalf of the Municipality was paid on attorney-client scale and the Municipality did not go through any of their files to verify whether they are entitled to the payment. Mr Avontuur took issue with Inspector Tolken averring that the latter was lying under oath in saying that no taxation took place. Mr Avontuur referred to 84 matters in which each file was subjected to taxation and contended that Inspector Tolken's misrepresentation of the facts in this regard was a deliberate attempt calculated to mislead the chief magistrate and that it appears that he was successful in doing so. Mr Avontuur dealt with the further assertions contained in paragraph 4 of Inspector Tolken's Affidavit filed in support of his application for search warrants and labeled it as misleading and fraudulent. He contended that to say that he refused to co-operate with the Municipality cannot be supported by any evidence under oath or otherwise. On the contrary, according to Mr Avontuur, Inspector Tolken had been informed by Messrs Human and Muller that the First Applicant was in the process of providing all the documentations, including the files that he was looking for. He (Avontuur) also accused Mr Celliers of non-disclosure in that he did not inform the chief magistrate about the Affidavit by Mrs Prins which ran contrary to the assertion made by Mr Celliers.

[14] As far as urgency is concerned, Mr Avontuur merely commented that he had wanted to hand over these files to the Municipality and that the only reason it took some time to do so was that they (the Applicants) wanted to retain copies of each and every file and its contents in order to ensure that proper record would be kept of each and every file (and the contents thereof) and obtain acknowledgement of receipt in the proper way because previously documents submitted went missing which present serious problems for the Applicants. Even though all these files were closed and finalized, according to Mr Avontuur, it remained of vital importance to them (the Applicants) that they retain copies thereof. What constitutes urgency, according to Mr Avontuur is that the nature and extent of the intrusion into his rights to privacy justifiably should be treated as urgent. In conclusion Mr Avontuur contended that the chief magistrate hardly gave sufficient consideration to the question whether documents sought would be obtained by less invasive means. Mr Avontuur accuses the chief magistrate in these proceedings of not being alive to the inherent contradictions contained in Inspector Tolken's application as supplemented by the various affidavits. Further accusations heaped on the chief magistrate are inter alia that he did not request copies of all the various and material annexures that were party to the Affidavits of Mr Metembo and Ms Roux; that he too readily accepted the word of Inspector Tolken that the Applicants had refused to co-operate.

According to Mr Avontuur, the chief magistrate is also the magistrate that allocated the review of taxation proceedings emanating from the Taxing Master's ruling to Ms Venter, the Additional Magistrate who presided over the review proceedings in 2010.

THE ANSWERING AFFFIDAVIT

[17] Inspector Tolken stated that with regard to the question of whether the 750 bills had been taxed or not, the chief magistrate called Ms Struwig into his office to tell him what had happened. According to Inspector Tolken, Ms Struwig told the chief magistrate that 85 matters had been taxed by her in relation to cases which Mr Avontuur had handled on behalf of the Municipality. Inspector Tolken obtained a statement from Ms Struwig the next day which was 17 February 2012. Inspector Tolken stated that it was before 09h2012 on 17 February 2012 that he took Ms Struwig's statement along with all the other documentation to the chief magistrate who then authorized the issue of the two search warrants. Inspector Tolken elucidating further on this aspect mentioned that as he was aware that there was a meeting between Mr Avontuur and the Municipality he did not execute the warrant as he wanted to allow further time and an opportunity for Mr Avontuur to hand over the files to the Municipality.

[19] Inspector Tolken stated categorically that it was about 09hl5 that he and his colleagues, Warrant Officer C Truter and Constable EC Dean (all having been expressly authorized by the chief magistrate) went to execute the search warrants at the First Applicant's business premises. On arrival they found Mrs Prins and other First Applicant's employees. According to Inspector Tolken he showed the relevant search warrant to them and explained what documents were being sought. Mrs Prins then telephoned Mr Avontuur who arrived within two minutes. When Mr Avontuur arrived, according to Inspector Tolken, he wanted to stop the search and he started making calls on his phone. Inspector Tolken added thai he became aware that Mr Avontuur tried to call the chief magistrate, Mr Muller and Mr Human but that he was unsuccessful. Inspector Tolken in order to break the impulse told Mr Avontuur that he would continue with the search until he had obtained a Court order setting aside the search warrants. Again the Inspector explained the purpose of the search and the files he was looking for to Mr Avontuur and he even showed him the list of articles to be seized and asked him to hand over the files appearing on the list in order to make the search easier and quicker. Mr Avontuur then asked Mrs Prins (according to the Inspector) who apparently worked with these files to point out the relevant files and to give these files to the Police and to remain present throughout the search and seizure. The Inspector hastened to add that he gave a copy of the search warrant to Mr Avontuur. However, Mr Avontuur then left the First Applicant's premises and whilst the search was still ongoing, he came in and left again a few times. The Inspector hastened to mention that at no stage during the execution of the search warrants did Mr Avontuur assert privilege over any of the files on the list of articles to be seized annexed to the search warrant.

[20] Indeed, according to Inspector Tolken, Mrs Prins pointed out the files listed on the list of articles to be seized, the majority of which were laying spread out in a front room at the First Applicant's premises whilst the rest was in her office. A total of 736 files of the listed 750 files were seized from the First Applicant's premises. An inventory or receipt of all the files taken from the First Applicant's premises signed for on behalf of Mr Avontuur by Mrs Prins is attached to the Answering Affidavit as Annexure "FC14". According to the Inspector the numbers of the files on Annexure "FC14" - the inventory, correspond with the numbers of the files on the list of articles to be seized. A copy of the inventory was given to Mrs Prins. According to the Inspector, surprising at the end of the search just as the team was leaving the premises, Mr Avontuur told the Inspector that he should know that the items seized were privileged, without specifying any particular documents. Inspector Tolken stated that he also completed a report on the execution of the warrants - he completed information of who had been present and what had happened during the search and that 736 of the 750 files had been seized. Mrs Prins signed the report and the report also confirmed that no damage had been caused during the execution of the search warrant. The latter report is attached to the Answering Affidavit and is marked Annexure "FC15". These files were packed into 13 evidence bags with seal numbers and the 13 bags were registered on SAP 13 as SAP 13/400/2012 at Oudtshoorn Police station. Inspector Tolken, stated that on 28 February 2012 as per the order of Zondi J dated 22 February 2012, he took the 13 evidence bags to the Sheriff of Oudtshoorn. Acknowledgment to this effect by the Sheriff is attached to the Answering papers as Annexure "FC16".

[21] Responding to paragraph 7 of the Founding Affidavit, Inspector Tolken stated that while it is correct that in the heading of his Founding Affidavit that served before the chief magistrate he mistakenly referred to section 205 of the Criminal Procedure Act, he in fact intended and did make the application for a search warrant under section 21 of the Criminal Procedure Act. He contended that the incorrect reference in the Affidavit supporting the application does not make the search warrants issued pursuant to section 21 materially defective. In any event, stated Inspector Tolken, the documents for which seizure was sought and which were seized related to files in the Applicants' possession that belonged to the Municipality. He added that there is no reference to notes made by Ms Roux or correspondence between Ms Roux and Mr Avontuur and Associates being seized. The Inspector emphasized that at no stage during the execution of the search warrants did Mr Avontuur or Mrs Prins assert that any such documents, i.e. the taxation notes prepared by Ms Roux or correspondence between Ms Roux and Mr Avontuur were subject to privilege and should be placed to one side despite the fact that Mr Avontuur had asserted privilege when these documents were attached to Mrs Prins' statement.

[22] However, Inspector Tolken hastened to add, that as he had not had sight of any of the files seized, he was in no position to confirm whether any such documentation was even seized. The Inspector placed emphasis on the fact that the only privilege Mr Avontuur asserted was done in the most cursory manner and without reference to any specific items and certainly not with regards to these documents he is now claiming are privileged. Inspector Tolken boldly stated that in his view there is no privilege attaching to the taxation notes and communications between Ms Roux and Mr Avontuur for the following reasons:
"(a) The list of names attached as annecure "FT3" in column five prepared by the Applicants refers to "Bedrag (Mari Roux)" which is a deliberate disclosure of the advice which Ms Roux is allegedly to have given the Applicants which constitutes an express waiver of the confidentiality in the alleged amounts she is said to have advised on; and (b) whatever advice Ms Roux gave Mr Avontuur was not given in preparation of litigation; taxation not being litigation. "

REPLYING AFFIDAVIT
[24] As would be expected Mr Avontuur deposed to this Affidavit on behalf of the two Applicants. He premised his reply on an averment that the averments contained in the Answering Affidavit are irrelevant to the issues in this application, particularly any reference to the merits of the charges. In Mr Avontuur's view, the version of Inspector Tolken contained in paragraphs 20 and 2 1 of the Answering Affidavit constitutes a fresh ground of gross irregularity which is of such a nature that it should lead to the setting aside of the entire proceedings before the chief magistrate. Mr Avontuur insisted that he considers the evidence relating to Mr Celliers as hearsay. He also averred that the Special Investigation unit (SIU) has no authority to investigate the current matter since it clearly falls outside the scope of the enabling proclamation. He reiterated that the Taxing Master only taxed 84 accounts and that the remainder of the 735 accounts was drawn using the same scale as that allowed by the Taxing Master. He denied that Ms Roux drew all the accounts as shown in the invoice.

[25] Replying to paragraph 10 of the Answering Affidavit, Mr Avontuur stated the following:

irregularly drove the case for the warrant applicant by calling for and receiving evidence not part of the papers before him. He irregularly decided the application on information that was not on oath and not part of Tolken's papers. "
Mr Avontuur contended that there was a positive legal duty on Inspector Tolken to call and contact either himself (Mr Avontuur) or Advocate Human to confirm whether the Municipality was in receipt of the files or how far the process was. Mr Avontuur denied that there were lengthy delays in providing the files and or that the delays were occasioned by Mr Avontuur himself. He stated that he relocated from Lichtenburg during the first week of January 2012 and his practice only reopened on/about 27 January 2012 - the first meeting with the Municipality was, according to Mr Avontuur, towards the end of January 2012 to discuss a whole range of issues, including the provision of a host of documentation and information to the Municipality by the First Applicant. Concluding in this regard, Mr Avontuur stipulated that the statement by the Inspector that he was concerned that everything would not be scanned or that documents would be manipulated is unfounded and was not part of his motivation for the warrant. In Mr Avontuur's view, this is clearly an afterthought conjured up to persuade this Court.

THE CHIEF MAGISTRATE'S REASONS (IN TERMSOF RULE 53 (1) (b))
[27] The chief magistrate herein cited as the First Respondent gave reasons for his decision to authorize the issue of the two warrants. He premised this by mentioning that Inspector Tolken applied for a search warrant in terms of section 21 of the Criminal Procedure Act and emphasized that although the heading on the Affidavit of Inspector Tolken indicates "Visenteringslasbrief ingevolge artikel 205", it was never the intention to issue a subpoena. Indeed the search warrant by the chief magistrate is issued in terms of section 21 read with sections 20 (a) and (b) of the Criminal Procedure Act.

[28] The chief magistrate states that the Affidavits presented to him when the application was made are the following:
(a) Frank Jacques Tolken (with Annexure "FJ1"); (b) Warren Marco Muller (with Armexures "WM1-5"); (c) Jan Abraham Celliers; (d) Brenda Struwig (with Armexures "BS1-2"; (e) Mari Roux; (f) Bjorn Henrique Clayton Metembo (with Annexure "BM1 - same as Annexure "FJ1"). According to the chief magistrate he thoroughly scrutinized the Affidavits with annexures to ensure that the warrant provides clarity as to which offence has been committed or is suspected of having been committed. The chief magistrate in his reasons states that after consideration of the Affidavits and annexures, he was in terms of section 21 (1) (a) read with section 20 (a) and (b) satisfied that there are reasonable grounds for believing that the files are in the possession or under the control or on the premises of the Applicants. He says he was further satisfied that the files were the articles as referred to in section 20 (a) and (b). The chief magistrate states in his reasons that it was clear from the evidence presented before him that a fraudulent misrepresentation was made to the Municipality in order to convince them to pay over R313 267.99 to the Applicants and he concluded that the files were needed for investigation. The chief magistrate stipulates that it was clear from the evidence that the Respondents (the present Applicants) were not prepared to hand over the files. The chief magistrate expressed a view that there were no contradictions in the papers presented to him by Inspector Tolken. Importantly the chief magistrate although cited as the First Respondent has indicated that he abides with the Courts decision herein.

DISCUSSON
[29] As it appears in the Founding papers, the Applicants seek relief setting aside the warrant and the documents seized returned on the basis that (a) the communications between the Applicants and Mari Roux (the tax consultant) is privileged and the files themselves are privileged; (b) the magistrate decided the application on information that was not on oath and not part of Inspector Tolken's papers; (c) the magistrate failed to exercise his discretion when deciding whether or not to authorize the warrants in that:
i)	Inspector Tolken who had a legal duty to do so did not inform him that a less invasive means than the search and seizure existed to obtain the files; he had been able to secure relevant information from the Applicant; Applicants had given their full support and cooperation to his investigation; and he deliberately and purposefully misled the chief magistrate by representing that no taxation had been done; (ii) There is no jurisdictional basis on which to authorize a warrant to search Mr Avontuur's home; the Special Investigation Unit was not authorized to investigate the charges against the Applicants; and lastly the admissibility of hearsay in motion proceedings.
ii)	
PRIVILEGE (the Attorneys' files)

Raad lank terug reeds besluil het dat vorderings gestaak moet word, A & G ingelig was daarvan, en hul kostes R313 267.99 beloop het. (Met die verwisseling van personeel by die Munisipaliteil het ander amptenare as die in aanhangsels WM2 & WM 3, [met die uilsondering van Mnr Leslie Swanepoel]', die aangeleentheid gehanteer). A & G het verder voorgehou dat 750 leers foutiewelik deur die takseermeester getakseer was, en dat hul firma die 750 leers aan 'n koste consultant, ene Marl Roux, voorgele het vir ondersoek. A & G het ook beweer dat Mari Roux die kostes vasgestel het op 'n prokureur/klient skaal of tarief en A & G daarop geregtig was. Die tariewe wat Mari Roux na bewering bepaal het is heelwat meer as die soos (na bewering) deur die takseermeester vasgestel. A & G het daarna die verskil tussen die skale van die takseermeester en die van Mari Roux, aan die Munisipaliteit gefaktureer. Die Munisipaliteit het op 9 Desember 2011 die bedrag aan A & G betaal. Geen gespesifiseerde rekeningstate of enige leers was egter deur A & G aan die Munisipaliteit oorhandig of voorsien nie, soos versoek. " "12. Die leers is uiters belangrik vir die Munisipaliteit aangesien die Munisipaliteit nie weet of A & G wel gelde gevorder het op die leers nie, en of die leers wel getakseer was soos A & G in hul faktuur voorgee nie, en of die koste consultant wel die tariewe vasgestel het soos vermeld in die faktuur nie. "

COMMUNICATION WITH MS ROUX
[32] All of the accounts drawn by Ms Roux do appear on the list of names. Indeed Annexure "CA4" to the Founding papers is a list of all the accounts (they are eight in number) drawn up by M Roux that appear on the list of names. The relevant accounts that were drawn by Ms Roux are attached to the Founding papers as Annexure "CA55". The accounts attached as "CA55" corresponded with the names on the list but for "Scholtz C and Daniels V". It is common cause that Ms Roux did not check every file. This was never her instruction anyway. It is common cause that the First Applicant submitted an invoice in the amount of R313 267.99 as already shown earlier on in this judgment. The list of names thereon attached has six columns, the importance of which lies in column four (4), five (5) and six (6): (a) Column 4 entitled "Bedrag (Taksasie)" referred (I am told) to the amounts allegedly allowed by the Taxing Master of the Oudtshoorn Magistrate's Court. According to the Applicants only 84 accounts were taxed whilst the remainder (735) accounts. ...was drawn using the same scale as that allowed by the Taxing Master; (b) Column 5 entitled "Bedrag (Mari Roux)" allegedly referred to the amounts neither determined by Ms Roux in the case of the eight accounts or by the First Applicant by applying the formula worked out by Ms Roux; (c) Column 6 entitled "Verskil" was the difference in the amounts set out in columns 4 and 5. The total of column 6 was what the Applicants demanded from the Municipality in the invoice.

"It follows from what has been said that the matter must be approached on the basis that each of the files seized contained some privileged documents. But privilege is not cast in stone; it has its limitations. It may be waived. Or it may be destroyed (see R v Barton [1972] 2 ALL ER 1192 (Crown Ct) and the comments of Botha J A on that case in S v Safatsa and Others 1988 (1) SA 868 (A) at 883E-F). There is also the possibility, referred to in Safatsa (at 8861), that the Court has the power to relax the rules ofprivilege. "

'Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicted in every waiver. I.e., not only the element of implied intention, hut also the element of fairness and consistencv. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his immunity shall cease, whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final. '
I fully agree with this passage. In any event, the same passage has featured prominently in cases decided by various Courts in this Country. See for instance:

RELEVANT CASE LAW INCLUDING CASES OF FOREIGN JURISDICTIONS

Preiss J granted the application, subject to one reservation, on the ground that fairness and consistency required that the whole of the statement be disclosed (at 484C-E). The reservation was that if the statement dealt with separate subject-matters, the privilege was waived in relation to the part constituting the subject-matter of the disclosed portion only, a matter to be determined by the judge's examination of the entire statement (at 484F-A).

'There is a dispute about the conversation ratio. Ampolex maintains that the correct ratio is 1:1 and has legal advice supporting this position.' Rolfe J said (at para 19): 'In my opinion the substance of the advice may well be disclosed if the ultimate conclusion, without the supporting reasoning process, is revealed. At that stage there has been, in my opinion, a disclosure of the substance of the advice, that is, what the advice is. Further the ultimate conclusion, whilst it may be a 'result' or

 

[40] In his judgment, Tamberlin J added, amongst other things, the following reference to the letter in question:

'...[T]he cases which have dealt with like circumstances to those existing here seem to me to support the following general propositions:
1. A statement which reveals the contents of legal advice, even if it does so in a summary way or by reference only to a conclusion, will, or probably will, result in a waiver...

'The issue is inconsistency. As Justice Emmeft observed in Bennett [2004) 140 FCR 101 at para 35]:

a person who would otherwise be entitled to the benefit of legal professional privilege mav waive the privilege ..-It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and the maintenance of confidentiality which effects a waiver of the privilege.... Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognizes the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the parry who has lost the privilege... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. '

[43] The following principles relating to the effect of the partial publication of privileged material on the legal professional privilege (especially in respect of legal advice), emerge from these cases:

DID THE CHIEF MAGISTRATE FAIL TO EXERCISE HIS DISCRETION?

[46] It is perhaps necessary to say something about alleged misrepresentations to taxation and less invasive means. The Applicants conveniently omit to mention that the chief magistrate did not make his decision to issue the warrants only on the basis of information on oath contained only in Inspector Tolken's supporting Affidavit. There was the host of sworn statements by various persons some of which were contained in the Police docket. On taxation the magistrate spoke to the Taxing Master, Ms Struwig and independently obtained confirmation that 85 taxations had in fact been done. There was nothing wrong that the chief magistrate directed that the statement be obtained from the Taxing Master. It would be irresponsible not to so direct. That hardly can be said to be partisan at all.

 

ORDER

[50]   In the result I make the following order:

(a) The Applicants' application is dismissed with costs.

DLODLO, J