SAA on gag order: Publication doesn't waive privilege

Cape Town – The leaked memo that South African Airways (SAA) wants kept secret could harm the state-owned company in litigation over disputes with companies like Airbus.

The state entity said in court papers on Friday that if privilege of a leaked internal memo is not protected by the court, it is more than conceivable that debtors or creditors in dispute with SAA, including Airbus, could use the opinion prejudicially against it in litigation over those disputes.

In its application to have a court order prohibiting publication of the contents of the memo made final, SAA denied that its application for an urgent interdict on 23 November to halt publication was done in bad faith.

It claimed legal privilege over the memo, which was prepared by Ursula Fikelepi, the head of legal, risk and compliance at SAA, for former acting CEO Thuli Mpshe to the SAA board. Fikelepi said the memo contained “privileged” and “highly confidential” information of a “very sensitive nature”.  

This comes after several media groups, including City Press and Fin24, published information from a leaked memo last month. Journalists have been focusing on SAA’s financial crisis, which has been exacerbated by the controversial Airbus deal.

Nene rejects Airbus proposal

This was clarified this week, with Minister of Finance Nhanhla Nene rejecting the SAA board’s proposed amendment to SAA's Airbus A320/A330 swap transaction structure.

"Although possible benefits may be realised through allowing the airline to continue to pursue an alternative transaction, these were far outweighed by the high probability of a default on the government guarantees and the severe consequences thereof," Treasury said in a statement. In its replying affidavit on Friday to media outlets BDFM, Moneyweb and Media24 to have an interim order set aside, SAA said it will now amend its notice of motion to seek a final order prohibiting publication.

SAA argued earlier that the information could have “the potential of causing real and serious reputational and financial damage to [SAA] and the government”.

SAA said on Friday it does not say that the reconsideration application should not be heard or that the court should not redetermine the application, but on the face of the facts it said the court should grant a final interdict prohibiting publication of the opinion.

In court papers submitted to court on Monday, Business Day editor Songezo Zibi, on behalf of the applicants, said the interdict should not have been granted because sufficient notice was not given and no signed affidavit was served prior to the application being heard.

Too late to keep it secret?

Additionally, he said the information and documentation was, and is, already in the public domain, such as on cloud servers, social media platforms and on the Legal Brief website. Columnist Max du Preez also published the memo on his Facebook account, but was legally threatened by SAA to remove it.  

Zibi also said the document is not legally privileged, as indicated by SAA. “The document does not constitute independent legal advice as required in order to assert this privilege,” he said.

“Whatever SAA’s objections to the publication of these parts of the document, whether it be commercial embarrassment or otherwise, legal professional privilege does not apply,” he said.

SAA, however claims that, just because the legal opinion was brought into the public domain when published in the media by the respondents, it does not change it being privileged, since it (SAA) never authorised such disclosure.

The airline, therefore, claims that publication is not an exception to the rule against disclosure or publication of legal opinion. It argues that it would be unfair for a person just to publish a privileged document and then to simply claim loss of privilege because it was published.

The matter will be heard on 9 December in the Gauteng High Court.

Fin24

This article first appeared on News24 – see here.