The interdict was granted in the early hours of 24 November to prevent the publication of a legal opinion by SAA legal head Ursula Fikelepi. In this opinion, that was also signed by then-acting SAA CEO Thuli Mpshe and served before the board on 6 November, Fikelepi stated that the board should apply for business rescue or liquidation.

She explained the impact of letters from aircraft manufacturer Airbus to SAA and described how the failure of the board to ratify a renegotiated deal with Airbus for the lease of aircraft, led to demands from Airbus and a developing default. This could have a domino effect with other creditors and financiers accelerating SAA’s debt repayments, according to the report.

In his ruling on Thursday, Sutherland slammed SAA and its legal representatives for the unprofessional way they acted in failing to give the media companies proper notice when seeking the interim order. It was granted in the early hours of 24 November at the judge’s private residence. The respondents were never even informed where the hearing would take place.

Sutherland set out the minimum steps any party launching an urgent application should take, if the respondents are giving less than 24 hours’ notice and clearly showed that the conduct of SAA and its legal representatives was not adequate.

Lied about Moneyweb, Business Day

He said SAA lied in its founding affidavit in stating that SAA spokesperson Tlali Tlali sought undertakings from the Moneyweb and Business Day journalists that they would refrain from publishing the content of Fikelepi’s legal opinion. In reality no such undertaking was ever sought and the first the media companies learnt of the application was when Moneyweb saw an unsigned application at around 22:00 the previous evening. This was too late to launch an effective defence, he said. The other two companies had no prior notice.

Sutherland said on that alone, SAA’s application to confirm the interim order, and make it final, should fail.

Apart from that, publication had already taken place at the time the interim order was granted and the order was therefore futile from the beginning and was even more futile by the time he heard arguments. The document has been made widely available on several internet sites and on social media.

Sutherland did not accept the argument forwarded by SAA that professional legal privilege, pertaining to legal advice, is absolute and operates against the world. He said the right means that a client does not have to divulge advice they got in confidence from their legal counsel.

That right can never operate in a positive way to enable the client to hide such information from the world, he ruled. It is for the client to keep the information confidential. If a third person for example overhears the conversation between the client and their legal advisor, or comes across a document containing such advice, the privilege does not operate against the third person.

In the public interest

He said SAA did have a right to protect its own confidential information and privilege is one form of confidential information. As a state-owned company and especially in the light of current controversy about the state of the airline, the public interest in the content of Fikelepi’s report outweighs the right to confidentiality, he said.

“Moreover, the controversy about SAA and its dependence on taxpayer funds seems to me to be a demonstrably obvious topic about which every citizen has a tangible interest to be informed,” Sutherland said.

Sutherland ordered that the interim interdict be set aside and gave a punitive cost order against SAA for its failure to allow the respondents an opportunity to oppose the initial application.

This means that the media companies can now freely publish the document and its contents.

Moneyweb has done so here.

SAA has not responded to requests for comment.

See Moneyweb Editor Ryk van Niekerk’s response on Thursday’s judgement here.