“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 (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 (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
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) 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