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On 20 November 2025, Daniels J on behalf of the Labour Court of South Africa, Johannesburg, delivered judgment in the reportable matter ofDepartment of Mineral Resources and Energy and others v Impala Platinum Limited ("Impala") & others. The Department of Mineral Resources and Energy is now known as the Department of Minerals and Petroleum Resources ("DMPR").
In the court application, the DMPR sought an order compelling Impala to disclose a report compiled by a third-party company, being DRA. The legal representatives for Impala appointed DRA to provide expert analysis in relation to a winder related incident which occurred at the Rustenburg operations of Impala on 27 November 2023. DRA was appointed to assist Impala's legal representatives to furnish advice to Impala on the impending litigation that would flow therefrom. Impala resisted disclosure of the DRA report on the basis that the said report was legally privileged.
Background
The underlying dispute arose during formal accident inquiry proceedings conducted in terms of section 65 of the Mine Health and Safety Act 29 of 1996 ("MHSA"), in relation to the above incident.
At such inquiry proceedings, the presiding officer instructed the legal representatives for Impala to disclose the DRA report in terms of section 70(c)(i) of the MHSA, which provides that such presiding officer may instruct any person "to produce any book, plan, record or other document or item necessary for the purposes of the inquiry". Said provision is subject to section 71(5), which provides that a person instructed in terms of section 70(c) must comply with such instruction unless the person has "sufficient cause" for not doing so. On behalf of Impala, its legal representatives asserted that the DRA report was legally privileged and, more particularly, that a claim to legal privilege constituted "sufficient cause" for the purposes of section 71(5).
It should be noted that inquiry proceedings must be distinguished from an investigation which the employer is required to conduct in terms of section 11(5) of the MHSA. The objective of the aforesaid investigation is for the employer to determine the cause(s) and subsidiary cause(s) of the accident, any unsafe conditions, acts or procedures that contributed to the accident, as well as remedial measures in this regard, and which investigation commences in the immediate period that follows the incident. Following an instruction issued after the accident by the DMPR, Impala appointed 2 experts, namely CMCS and WSI, to lead the section 11(5) investigation. The section 11(5) report was submitted to the DMPR, following the conclusion of the section 11(5) investigation, and within the time period directed by the DMPR to do so, on 19 January 2024.
Furthermore, as part of Impala's ongoing co-operation with the DMPR for the purpose of the inquiry proceedings, Impala has elected to waive privilege over 2 expert reports, prepared by CMCS and WSI, in the interest of ensuring an expeditious resolution of the ongoing inquiry proceedings.
Judgment
Daniels J found that in this instance, the DRA report is subject to litigation privilege which was properly invoked by Impala, and that the privilege had not been waived. In particular, the court found that:
- legal privilege constitutes sufficient cause for purpose of section 71(5) of the MHSA, to refuse compliance with an instruction to produce a document in terms of section 70(c)(i);
- legal professional privilege is of vital importance in the South African legal system. Legal professional privilege is considered so fundamental that it is absolute, unless waived;
- in this instance, the dominant purpose of the DRA report was to enable the legal representatives of Impala to advise its client on impending litigation; and
- the MHSA contains no provision which limits the right to invoke legal privilege, in favour of an override on the basis of fairness or public interest.
Click here to view a copy of the Judgment.
*ENS represents Impala in the abovementioned inquiry proceedings and court proceedings.
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