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“Reportable”

CASE NO.: A 155/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

JACOB ALEXANDER APPLICANT

and

THE MINISTER OF HOME AFFAIRS FIRST RESPONDENT

THE CHIEF IMMIGRATION OFFICER SECOND RESPONDENT

THE CHAIRPERSON OF THE

IMMIGRATION SELECTION BOARD THIRD RESPONDENT

CORAM: LIEBENBERG, J.

Heard on: 02.02.2010

Delivered on: 03.02.2010

Reasons released on: 03.02.2010

RULING – INTERLOCUTORY APPLICATION:

LIEBENBERG, J.: [1] This is an application made in terms of Rules 35(12) and 53, read with Rule 6(11) of the Rules of the High Court of Namibia in which applicant sought an order against the respondents compelling them to file with the Registrar of this Court, copies of certain documents, alternatively, directing respondents to make available for inspection and copying by the applicant, the said documents. The documents referred to by the applicant are set out in his Notice of Motion in the following terms:

“1.1 the ‘advice from counsel’ referred to in paragraph 17.1 of that affidavit,

1.2 the ‘enlightenment … from the Government Attorney’s Office’ referred to in

paragraph 17.3 of that affidavit, and

1.3 the ‘clarification from our legal practitioners’ referred to in paragraph 19 of

that affidavit.”

After hearing Mr. Hodes, for the applicant, and Mr. Maleka, for the respondents, I dismissed the application with costs; subsequent whereto applicant now applies in terms of Rule 49(1)(c) for reasons for the order handed down earlier. What follows are the reasons for the order made by this Court.

BACKGROUND

[2] The present application was brought against the background where applicant made application on urgent basis (‘the principal application’) in which applicant sought “certain urgent interim relief and certain final relief in the ordinary course, including an order ‘reviewing and setting aside the decision taken by [the Board] on 25 November 2008 to refuse the applicant’s application for the renewal of his employment permit for a period of at least three years and to grant him only an employment permit in terms of section 27 of the Immigration Control Act 7 of 1993 for a period of six months.” The “Board” referred to, means the Immigration Selection Board, established under section 25 of the Immigration Control Act, No. 7 of 1993 and who, amongst other duties, is responsible to consider (i) applications for permanent residence permits referred to in section 24(a); and (ii) applications for employment permits referred to in section 24(b)(i) of the Act.

[3] It is common ground that third respondent in its opposition of the main application, in an answering affidavit deposed to by Ms Ulitala Hiveluah on behalf of the Chairperson of the Board, referred to (legal) advice which the Board received from counsel shortly before the meeting of 25 November 2008; during which the decision (to grant an extension of six months only) was taken. The terms in which reference was made to the advice sought by the Board are correctly set out in the applicant’s notice.

[4] In view of the above stated references applicant subsequent thereto served a notice in terms of Rule 35(12) on the Government Attorney, calling on the respondent to furnish the ‘documents’ referred to. I pause here to remark that from the aforementioned reference(s) it is clear that no mention was made by Ms Hiveluah of any document.

In its reply the Board stated that it refused to produce the documents and/or information requested on the basis that “…these are communications between client and legal practitioner and/or counsel brought into being for the purpose of existing and/or contemplated litigation, and are accordingly protected by legal professional privilege.” Applicant did not accept respondent’s claim of privilege and was of the view that any such privilege had been waived by the respondent’s reference to “…the contents of the documents in support of (its) case.” That is what this interlocutory application is all about – whether respondent had waived the privilege it asserted over the legal advice it obtained through its counsel, or not.

[5] Despite applicant’s further attempts, through correspondence, to have access to the documents which, in his view, formed part of the documents to have been filed under Rule 53, respondent persisted in its refusal to disclose same and in a letter from the Government Attorney addressed to applicant’s legal practitioner dated 21 October 2009 the following was stated:

“2. The advice received from counsel is subject to legal professional privilege. It was therefore properly omitted from the record of decision. Our client has not waived the privilege. On the contrary, our client has elected to exercise it and therefore the opinion cannot form part of the record.”

[6] In the respondent’s answering affidavit deposed to by Mr. Marcus, the Deputy Government Attorney in the Ministry of Justice, it is stated that the “enlightenment” and “clarification” from the Government Attorney’s office - referred to respectively in paragraphs 17.3 and 19 of the answering affidavit - was nothing other than a single elucidating oral answer by the Government Attorney in response to the Board’s request and therefore, it was not in documentary form. Thus, it was submitted, it does not constitute material subject to discovery under either Rule 35(12) or 53.

[7] In view of the “enlightenment” and “clarification” not being documented, applicant, in his replying affidavit, abandoned the relief originally sought in prayers 1.2; 1.3; 2.2; and 2.3 of the notice of motion in the interlocutory application. Applicant however persisted in laying claim to the “advice from counsel” (prayers 1.1 and 2.1), a legal opinion obtained from the respondents’ counsel through the office of the Government Attorney, on the basis that third respondent “by the manner in which the respondent referred to these documents and sought to use them to advance its case in opposition to the relief sought in Part A of the notice of motion”, has waived her right to legal professional privilege.

[8] Applicant, in the mean time, on 27 May 2009, was granted interim relief in terms of “Part A” of the principal application in the following terms:

“2. That pending the final determination of the Application for relief in Part B of the

Notice of Motion (the review) the Applicant may lawfully reside and carry on

business in Namibia.”

The interim relief granted to the applicant, thus, will be effective until the review proceedings of the Board’s decision to grant applicant only a six month employment permit has been finalised.

PRIVILEGE

[9] It is common cause that the legal opinion which the respondents obtained from their counsel falls within the ambit of legal professional privilege, and that the adversary to the party asserting such privilege would normally not be entitled thereto. In Euroshipping Corporation of Monrovia v Minister of Agricultural Economics an Marketing and Others 1979 (1) SA 637 (C) at 643H – 644B Friedman J referred to ‘this fundamental right of a client’, stressing the importance that:

“…inroads should not be made into the right of a client to consult freely with his legal adviser, without fear that his confidential communications to the latter will not be kept a secret”.

In S v Safatsa and Others 1988 (1) SA 868 (AD) at 885 Botha J referred to a comprehensive survey of the history and nature of legal professional privilege based on seven judgments delivered in the High Court of Australia and which is reported in the case of Baker v Campbell [1983] HCA 39; (1984) 49 ALR 385 and endorsed the view held by that court that:

“…this privilege is a mere manifestation of a fundamental principle upon which our judicial system is based”.

In amplification of the ‘fundamental principle’ referred to, Botha J quotes excerpts from the judgement:

“The law came to recognise that for its better functioning it was necessary that there should be freedom of communication between a lawyer and his client for the purpose of giving and receiving legal advice and for the purpose of litigation and that this entailed immunity from disclosure of such communications between them…

Whilst legal professional privilege was originally confined to the maintenance of confidence pursuant to a contractual duty which arises out of a professional relationship, it is now established that its justification is to be found in the fact that the proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients which would not exist if either could be compelled to disclose what passed between them for the purpose of giving or receiving advice…. The restriction of the privilege to the legal profession serves to

emphasise that the relationship between a client and his legal adviser has a special significance because it is part of the functioning of the law itself….

The conflict between the principle that all relevant evidence should be disclosed and the principle that communications between lawyer and client should be confidential has been resolved in favour of the confidentiality of those communications. It has been determined that in this way the public interest is better served because the operation of the adversary system, upon which we depend for the attainment of justice in our society, would otherwise be impaired: see Waigh v British Railways Board [1979] UKHL 2; (1980) AC 521 at 535, 536….

The privilege extends beyond communications made for the purpose of litigation to all communications made for the purpose of giving or receiving advice and this extension of the principle makes it inappropriate to regard the doctrine as a mere rule of evidence. It is a doctrine which is based upon the view that confidentiality is necessary for proper functioning of the legal system and not merely the proper conduct of particular litigation….”

[10] Like Botha JA, I respectfully agree with the afore stated view and that any claim to the relaxation of legal professional privilege ‘must be approached with the greatest circumspection’.

[11] Another principle applicable to privilege is that the party asserting privilege must claim it as it does not befall a party automatically. In this regard the following was said in Bogoshi v Van Vuuren NO and Others; Bogoshi and Another v Director, Office for Serious Economic Offences, and Others [1995] ZASCA 125; 1996 (1) SA 785 (A) at 793G-I:

“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 JA 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 886I), that the Court has the power to relax the rules of privilege. But most important for our purposes is the principle that privilege does not arise automatically. It must be claimed. This may be done not only by the client but by the attorney. Indeed, he is under a duty to claim the privilege. However, because the privilege is the right of the client, the attorney, in claiming it, must act not in his own interests or on his own behalf but for the benefit of the client. Unless he does so, his claim to privilege may be regarded as not genuine.”

[12] In the present case, the third respondent (through its attorney) from the outset, claimed legal professional privilege in its correspondence with applicant’s attorney. Thus, it was before the present interlocutory application was filed.

WAIVER

[13] Legal professional privilege may expressly be waived by a litigant, which applicant in casu, does not rely on.

[14] Applicant “…does not contend that the legal opinion provided to the Respondent was not originally subject to legal professional privilege, but rather that the Respondent waived that legal professional privilege in respect of that opinion in an affidavit in the terms in which it was done…” (Replying affidavit: p 59, par.13) Hence, his contention that any legal professional privilege that originally may have attached to the opinion respondents obtained from their counsel, had been waived, either impliedly by the conduct of the (third) respondent, and/or imputedly by operation of law, out of considerations of fairness to the applicant.

[15] For a proper understanding of the distinction between implied and imputed waiver I find it apposite to refer to what was said in the Supreme Court of Appeal of South Africa in S v Tandwa and Others 2008 (1) SACR 613 (SCA) at 625 para [18]:

“In Peacock v SA Eagle Insurance Co Ltd [1991 (1) SA 589 (C) at 591-592] and Harksen v Attorney-General, Cape, and Others, [1998 (2) SACR 681 (C) (1999 (1) SA 718) para 61] the courts drew a distinction between implied and imputed waiver of legal professional privilege. Implied waiver occurs (by analogy with contract law principles) when the holder of the privilege with full knowledge of it so behaves that it can objectively be concluded that the privilege was intentionally abandoned. Imputed waiver occurs where –

regardless of the holder’s intention – fairness requires that the court conclude that the privilege was abandoned. Implied waiver entails an objective inference that the privilege was actually abandoned; imputed waiver proceeds from fairness, regardless of actual abandonment. (Emphasis provided)

[16] In an attorney/client relationship (as in the present case), the client can protect the confidence between itself and the attorney or waive it, thereby making public the communications between them. In that instance Van Dijkhorst J in Bank of Lisbon and South Africa Ltd v Tandrien Beleggings (Pty) Ltd and Others (2) 1983 (2) SA 626 (WLD) at 627F-H said:

“The privilege claimed in respect of the attorney’s notes is that of the client, the plaintiff, and not that of the attorney. Any waiver of such privilege is by the client, not by the witness (the attorney). Where the case is conducted by the client’s legal representatives, they are in charge of the proceedings. A client is bound by the conduct of the case by counsel within the limits of his brief and subject to such specific instructions as he may have accepted. R v Matonsi 1958 (2) SA 450 (A) at 456 and 457; S v Mathope 1982 (3) SA 33 (B) at 34. The conduct of the action inter alia involves decisions as to waiver of privilege and the calling of witnesses. Great Atlantic Insurance Co v Home Insurance Co and Others [1981] 2 All ER 485 (CA) at 493h.”

Further at 629E-G:

“In my view a waiver of privilege in respect of a consultation between attorney and client or attorney and witness is a waiver of privilege in respect of the communications between them. This means that these communications may be made public. Surely, there can be no logical reason for the prevention of the disclosure of the record of such communications where their contents are already disclosable.

Why would the veil of secrecy which was lifted from the communication shroud the contemporaneous documentation thereof? The basis of privilege is confidentiality. When confidence ceases, privilege ceases.”

In that case the plaintiff called his attorney to testify on the contents of a privileged discussion between them and the defendants sought disclosure of the notes taken by the attorney during their meeting. The defendant’s application was granted.

[17] I respectfully agree with the court’s reasoning in the Bank of Lisbon case, as the plaintiff had called his attorney to specifically testify about the contents of the discussions between him and his attorney, thereby bringing it out in public. When regard is had to the manner in which plaintiff conducted himself this, objectively, points towards an intention that he abandoned his right to legal professional privilege. The confidentiality of their discussions had clearly been waived and no reason existed why the notes made during these discussions, reflecting the matters which have become subject to disclosure, had to be protected any further.

[18] Mr Hodes, for applicant, took it a step further and referred me to a plethora of Australian decided cases in which the question was raised as to whether, objectively viewed, a party should be held to have waived privilege over legal opinions if he or she disclosed the substance or conclusion of an opinion? Here the court concluded that it did. Two cases on point are Switchcorp Pty Ltd and Others v Multimedia Limited [2005] VSC 425 and Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101 (FCA).

[19] In the Switchcorp case plaintiffs applied for inspection of all documents constituting or recording legal advice referred to in an announcement by Multimedia (defendant) to the Australian Stock Exchange in which reference was made to the plaintiff’s claim in the following terms:

“The Board’s lawyers have been instructed to vigorously defend the claim and have advised that the plaintiffs’ claim will not succeed.”) (Emphasis provided)

It was submitted by plaintiffs’ counsel that defendant ‘expressly disclosed the substance of its lawyers’ advice to the world at large’ and that the disclosure was ‘deliberate and for a commercial purpose’. Counsel for the defendant on the other

hand argued that ‘there is a clear distinction to be drawn between disclosing the existence of legal advice and disclosing its substance and content’ (British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; (2002) 7 VR 524).

The court said that the particular statement was in the most general terms without identification of the legal claim in question or reference to any particular issue and it was not a case where waiver was subjectively intended or expressly made. At par.11 of the judgment the following appears regarding conduct being inconsistent with the maintenance of the confidentiality under protection:

11 “The majority judgment in Mann v Carnell ([1999] HCA 66; (1999) 201 CLR 1) explained that 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. It is this inconsistency which the courts, where necessary informed by considerations of fairness, perceived between the conduct and the maintenance of confidentiality which brings about the waiver. The majority judgment emphasised that fairness plays a role in assessing whether there is inconsistency, but there is ‘no overriding principle of fairness operating at large’”.

[20] It was further said that each case has to be considered on its own facts, but from decided cases, they all support two general propositions, namely: (i) That a statement that 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 i.e. where it is stated that the party “has legal advice supporting this position/view”; and (ii) That a statement which refers to legal advice, even if it associates that advice with conduct undertaken or with a belief held by the client, will not result in a waiver i.e. where it is said that “on the basis of legal advice received, X believes …”

[21] In Switchcorp the court perceived inconsistency between the particular statement and the maintenance of confidentiality of the advice referred to and found that there was a clear and deliberate disclosure of the gist or the conclusion of legal advice received by the defendant from its lawyers about the outcome of the proceedings. It found that it would be unfair if the defendant were to be permitted “to

cast aside confidentiality of the advice in making the statement to the world at large so as to explain or justify its position and to then insist upon confidentiality when inspection is sought of an otherwise discoverable document.” On that ground the court found that there had been a waiver of privilege.

[22] In the Bennett case (supra) the defendant’s lawyer wrote a letter to Mr. Bennett regarding legal advice from which it is apparent that the substance and effect was being communicated in order to emphasise and advance the strength and substance of the case to be made against the plaintiff (Bennett). The content of the legal advice was set out in two paragraphs which, as per Tamberlin J, amounted to imputed waiver of the privilege. In his view, “…it would be inconsistent and unfair, having disclosed and used the substance of the advice in this way, to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed exclusion. It may perhaps have been different if it had simply been asserted that the client has taken legal advice and that the position which was adopted having considered the advice, is that certain action will be taken. In those circumstances, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege.” [para 6] (Emphasis provided)

It was not a case of having disclosed the advice in any detail, but rather the substance of the conduct had been stated. Not only had the legal position been disclosed, but also its interpretation which had been advised to be correct. The court concluded that the disclosure of the conclusion reached in or course of action recommended by an advice, can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed. It was furthermore said that disclosure of one conclusion in an advice does not necessarily amount to waiver of other conclusions which were not disclosed, unless they are so interconnected that they cannot be separated or isolated.

[23] Gyles J in the Bennett (supra) was in agreement that “(t)he voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion.” [para 65]

At [para 68] he states the test to be as follows:

“The test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other. It is not a matter simply of applying general notions of fairness as assessed by the individual judge. The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege.”

[24] The reasoning behind the Switchcorp and Bennett cases accords with what has been stated in Bank of Lisbon and Harksen namely, that whatever the privilege-holder’s intention might have been, where he conducts himself in such a way that an inference in all fairness can be drawn that he no longer relies on his privilege and that there was an imputed waiver of such privilege. Thus, imputed waiver is not determined by the consent of the privilege-holder, but is rather based on the principle of fairness and consistency in legal proceedings.

[25] I have not been referred to any authority from this jurisdiction, but I respectfully find the reasoning behind the Australian and South African cases sound and imitable.

The principles followed in these judgments are:

(i) In order to constitute an implied waiver of legal professional privilege the

requirements are two fold namely, the privilege holder must have full

knowledge of his right; and he must have conducted himself in such

manner that, objectively speaking, it can be inferred that he intended to

abandon those rights. (Harksen v Attorney-General, Cape and Others

1999 (1) SA 718 (C))

(ii) That a statement revealing the contents of legal advice, albeit in a

summary way or even the conclusion or gist of such advice, will, or

probably will, result in a waiver (Ampolex Ltd v Perpetual Trustee Co

Canberra) Ltd (1996) 40 NSWLR 12; Switchcorp [supra]). This includes

the situation where the reasons for the conclusion were given. (Bennett

[supra])

(iii) That a statement which merely refers to legal advice, will not, or

probably will not result in a waver. (Harksen; Switchcorp; Ampolex)

(iv) Each case must be considered on its own facts;

(v) In each case the test is whether, informed by considerations of fairness

where necessary, the court perceives inconsistency between the particular

disclosure and maintenance of confidentiality. It is not a matter of simply

applying general notion of fairness.

(vi) Disclosure of one conclusion but not others in an advice does not amount

to a waiver of the non-disclosed conclusions. (Bennett)

In consideration of the facts in casu, I will apply the above stated principles.

FACTS OF THE PRESENT CASE

[26] As stated earlier, this application arose from an answering affidavit filed by the Chairperson, Ms. Hiveluah, in the urgent interim application and the relevant statements, on which applicant’s application for disclosure is based, appear in paragraphs 17 to 19.2 of the affidavit. These statements were formulated in the following terms:

“17. The reasons for the [Respondents] granting a six months permit only, are the following:

17.1 Firstly, the advice from counsel, which we had requested was received shortly before the meeting was scheduled and it raised more questions, on which it was felt the [Respondents] needed to obtain clarity from the Attorney-General’s office. These matters concerned Namibia’s international obligations regarding fugitives from justice and cooperation in criminal proceedings; it was felt that the [Respondents] could not undermine or contravene our international and domestic obligations, which require us to cooperate with other nations in matters of extradition and the preservation of the proceeds of unlawful activities, if found in our country.

17.2 ………

17.3 ………

17.4 And of course the very fact that applicant was facing extradition proceedings, which may result in his return to the USA and which would leave the status of the property acquired and the investments made in this country uncertain……

17.5 The concern here was what would happen to the property acquired by innocent Namibians, in the event that applicant was to be extradited and the proceeds of his alleged unlawful activities, the property into which the proceeds were transformed were to be seized for handover, in terms of the Extradition Act; the legal position in this regard was also left unclear and it was hoped that the new Act might shed some light on these issues.

17.6 In light of the above the Board felt that an extension of six months should be given while the Board would seek clarification on the issues which remained uncertain.

18 ………

19 Having now received the necessary clarification from our legal practitioners, I submit that the correct position is the following:

19.1 In light of the fact that applicant is a fugitive from justice, on the basis of which his extradition is sought by the USA, and more specifically in light of the fact that his

request was accepted by the Minister of Justice acting on behalf of the State, the Board is prohibited from granting a work permit to applicant. Alternatively the Board is lawfully entitled to refuse applicant a work permit on that basis.

19.2 Anything else would amount to an interference with Namibia’s international and domestic obligations to cooperate with certain states in criminal matters, which includes the preservation of the proceeds from unlawful activities. This is particularly so in the present matter, where the sole basis of the application for a work permit is the substantial investment made and still to be made by applicant.”

[27] The underlined portions of the statement are specifically relied on by applicant in his argument that respondent:

“- sought to rely on the contents of the opinion (or gaps therein) as the first reason

for the Board’s ostensible decision to grant a six month extension as an interim

measure while it obtained clarity on questions raised by the opinion; and

• then alleged what ‘the correct position’ was, ostensibly in terms of the opinion, thereby;

• purporting to disclose to the Applicant and to this Honourable Court the essence of the advice received by the Board in the opinion; and

• seeking to rely on this ostensible advice to resist the Applicant’s case in the principal application.”

[28] It seems common cause that the respondents considered the legal opinion obtained from counsel at the stage when it dealt with applicant’s application for a three year work permit – which it was entitled to do. The question that needs to be answered is not whether the respondents (correctly) relied on the advice as per the legal opinion, but whether Ms. Hiveluah in fact disclosed the substance of the advice in such a way, that objectively viewed, it can be said that confidentiality has impliedly been waived, or, based on the principles of fairness and consistency, that there was imputed waiver of the privilege asserted by the respondents.

WAS THERE A WAIVER?

[29] In order to prove that there was an implied waiver by the respondents of its legal professional privilege, applicant had to show that Ms. Hiveluah had full knowledge of her rights (regarding privilege); and, from the manner she conducted herself, considered objectively, one would be able to infer that she intended to abandon those rights.

[30] When considering the extent of the statement made by Ms. Hiveluah in which reference is made to legal advice sought by the respondents and reasons advanced justifying (in their view), the refusal of applicant’s application for a three year work permit, applicant, in my view, failed to meet the aforementioned requirements. If I correctly understood Mr. Hodes’s submissions, this much was conceded. The thrust of his argument therefore, was not that there was an implied waiver, but, based on the principles of fairness and consistency, that the Court should find that there was an imputed waiver.

[31] Mr. Maleka, for the respondents, took issue with the fact that applicant on its papers did not rely on waiver by imputation and only raised this in his heads of argument. There is merit in his submission, however, I am satisfied that counsel in their submissions covered both possibilities of waiver i.e. implied and imputed waiver, and that the Court, on strength thereof and the authorities relied on, could decide the application on that basis.

[32] I now turn to consider the extent of the statement made by Ms. Hiveluah as set out in paragraphs 17 and 19 of the answering affidavit and whether, objectively speaking, it amounted to disclosure of the gist of the legal advice obtained from counsel or otherwise.

[33] What is clear from par.17.1 is that respondents had requested legal advice from their counsel, which was received shortly before the (Board) meeting was to be held; and because more questions arose from it, respondents realised that it had to seek clarity from the Attorney-General’s office. It is further stated that it concerned Namibia’s international obligations regarding fugitives from justice and cooperation

in criminal proceedings; the fact that applicant was facing extradition proceedings; and the legal position of property acquired by and from the applicant.

[34] From what is stated in par.17.1 it cannot, in my view, be said that either the contents of the legal advice; or the gist or conclusion thereof had been disclosed. All that was revealed is that respondents had obtained legal advice, which was not clear to them and which necessitated further clarification. What was stated was a mere reference to legal advice obtained earlier and I am unable to read into that, that respondents, by making reference thereto, disclosed the contents of the opinion obtained or any part thereof. There is nothing in that paragraph which implies that Ms. Hiveluah disclosed any material content of the legal opinion and when objectively viewed, it does not, in my view, constitute a waiver of the legal professional privilege claimed by the respondents earlier.

[35] The “clarification on the issues which remained uncertain” (par.17.6) and the “necessary clarification from our legal practitioners” (par.19) does not take it any further and refers to the oral legal advice obtained from the Attorney-General’s office regarding issues which remained uncertain at the time. Because of the legal advice not being documented, applicant did not pursue disclosure thereof under Rule 35 (12) and for purposes of this application, relied on what is stated in par.17.1 of Ms. Hiveluah’s affidavit.

[36] Even where applicant still relies on par.19 in support of his application, I am unable to find that where the statements reads: “Having now received the necessary clarification from our legal practitioners, I submit that the correct position is the following: ……” that this part of the statement could be construed to mean that, what follows thereafter was a summary or conclusion from what is contained in the legal opinion. What is stated there is the opinion of Ms. Hiveluah’s (the Board’s) and not the legal opinion itself or a summary or conclusion thereof. The present case seems to be on point with the proposition referred to in Switchcorp (supra) in par.12.2 where Whelan J said:

“A statement which refers to legal advice, even if it associates that advice with conduct undertaken or with a belief held by the client, will not, or probably will not, result in a waiver. In this respect I refer to Ampolex in relation to the statement ‘On the basis of legal advice received, Ampolex believes’……”

Ms. Hiveluah in her affidavit stated that the Board sought legal advice from their counsel which was provided in the form of a legal opinion. From this opinion arose questions which required clarification, and which clarification was verbally communicated to the Board by Mr. Marcus from the Attorney-General’s office. Only after clarification of the outstanding issues were obtained, did Ms. Hiveluah depose to her affidavit in which she expressed (as Chairperson) her/the Board’s view as to what the ‘correct position’ is. It has not been stated that the view expressed is that of their counsel and therefore is the correct position. It merely refers to the legal opinion and the clarification of certain issues arising from the opinion where after the Board took the decision it did as regards applicant’s application. From the wording of the statement set out in par.19.1 – 19.2 of the affidavit it is, in my view, objectively speaking, impossible to infer that the gist; summary or conclusion of the legal opinion, had been disclosed through the statement, thereby resulting in a waiver of privilege. I accordingly so find.

[37] Applicant, in my view, failed to show that, on the facts, there had been an implied waiver or, based on the principles of fairness and consistency, that the Court should find imputed waiver.

[38] Now is not the time to decide whether the reasons advanced by the Board comply with the requirements imposed upon it; and whether it acted fairly and reasonable when considering applicant’s application, as that should only be decided during the main application.

[39] In view of the conclusion I had come to, it is not necessary to consider, as Mr.Maleka contended, the issue of relevance of the information sought by the applicant for purposes of the pending review.

COSTS

[40] Unless there are reasons justifying otherwise, an order for costs is usually awarded in favour of the successful party and whereas applicant in this instance was unsuccessful in bringing this application, he ought to pay the costs. In my view, a cost order on the basis of one instructing legal representative and two instructed counsel is justified.

[41] These then are my reasons for the order made.

____________________________

LIEBENBERG, J

COUNSEL FOR THE APPLICANT: ADV. HODES, SC

ASSISTED BY: ADV. CHASKELSON, SC

ADV. KATZ, SC

INSTRUCTED BY: METCALFE LEGAL PRACTITIONERS

COUNSEL FOR THE RESPONDENT: ADV. MALEKA, SC

ASSISTED BY: ADV. PELSER

INSTRUCTED BY: GOVERNMENT ATTORNEY

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