The judgment of TMM Holdings (Pty) Ltd and Another v Skycastle Securities (Pty) Ltd and Others, which was delivered by the Gauteng Division of the High Court, Johannesburg is essential reading for litigation practitioners. The court had to determine whether certain documentation need not be disclosed, on the grounds that these documents were brought into existence or obtained for the dominant purpose of obtaining legal advice in or in contemplation of litigation.
Background
The court was dealing with an application to compel further and better discovery. In the underlying action, TMM Holdings (Pty) Ltd and Goldsol II (Pty) Ltd (“the Applicants”) had mandated Skycastle Securities (Pty) Ltd (“Skycastle”) to manage their investments. The Applicants alleged that Skycastle breached certain mandate agreements, causing the Applicants significant financial loss. It was common cause that a former director of Skycastle, Oliver Russell (“Russel”), was the primary wrongdoer. The Applicants