Whilst the rules applicable to discovery in the High Court regulate both documents open to full inspection and privileged documents, they are silent on confidential documents. The overriding yardstick for discovery is relevance. All relevant documents, even if they are confidential, must be discovered, save for privileged documents which are protected from disclosure.

This does not mean that our law affords no protection to a party required to discover confidential documents. Confidential information in this context means information with intrinsic economic value which can be applied in trade or business and therefore has some form of financial value to the proprietor thereof.

The judgement almost 30 years ago, Crown Cork & Seal Co Inc and Another v Rheem South Africa (Pty) Ltd and Others 1980(3) 1093 (W), laid down useful and sensible principles to regulate the discovery of confidential documents. The principles serve to protect both the rights of the party required to discover such documents and the party requiring their discovery.

The defendants were trade competitors of the second plaintiff. The competing parties were all in the business of manufacturing crown cork.

Application was made for a ruling of whether a court may place limitations upon a litigant's ordinary rights of untrammelled inspection and copying of documents discovered by its opponent, where it is claimed that the documents contain the opponent's trade secrets which may be misused.

The second plaintiff had no objection to the inspection of the documents at its attorney's offices under supervision and to the making of notes which did not amount to copies.

The second plaintiff also stated in its discovery affidavit that a limitation should be imposed on certain items listed in its discovery schedule by only allowing controlled inspection and allowing the defendants' legal representatives and experts but not the defendants themselves to take and view copies thereof. The defendants insisted on the inspection and copying of all these discovered documents in the normal manner.

Confidentiality was therefore the only ground of objection. The documents were relevant and were not privileged. The issue for decision was whether there should be some measure of control exercised over inspection and copying of the confidential documents.

The court held that two conflicting principles were in issue. The one is the right to protect property in confidential documents. The other was that no limits should be placed upon a party's procedural rights to make full use of relevant documents in order to present its case without restriction.

The court had to consider English authority as there was no South African case law in point. The English cases require a balancing act weighing up the need for protection of confidential information from misuse by others against the need to ensure that the litigant is entitled to present its case untrammelled. Although the approach of our courts will normally be that there is a full right of inspection and copying, our courts have a discretion "to impose appropriate limits when satisfied that there is a real danger that if this is not done an unlawful appropriation of [confidential information] will be made possible merely because there is litigation in progress and because the litigants are entitled to see documents to which they would not otherwise have lawful access." (at 1100A-B of the Crown Cork judgement).

Our courts have as wide a discretion as the English courts in ordering and limiting inspection of confidential documents. The court always has an inherent jurisdiction to prevent the abuse of its process. Further, Rule 35(7) of the High Court Rules confers an express discretion upon the court to order compliance where there is non-compliance with the duty to discover and to make available relevant documents. If a court has a discretion whether to order compliance at all, it has the power to order something less than full compliance.

The limiting of inspection of confidential documents must also be distinguished from limiting discovery itself. The court in the Crown Cork case imposed the following restrictions in relation to the confidential documents in question:

  • In relation to some of the items, the defendants were entitled to inspect the second plaintiff's confidential documents, but not to have copies made available to them for themselves.
  • In relation to other issues, the court ruled that sufficient protection could be obtained if certain details in the documents (for instance reference numbers to formulae which would allow the defendants to acquire access to products made by the second plaintiff under these formulae) were to be covered up.

As far as the first point is concerned, the court in Unilever plc & Another v Polagric (Pty) Ltd 2001(2) SA 329 (CPD) held that such a arrangement or ruling could place the restricted party's legal advisers and experts in an invidious, even untenable, position and could compromise that party's ability to receive proper advice based on all relevant facts. The court in the Unilever case was otherwise in agreement with the principles laid down by Crown Cork.

The court in the Crown Cork case indicated that it would be better for the parties in these circumstances to attempt to arrive at an agreed formulation once the principles were established. Parties should therefore in the first instance endeavour to agree to the details of restrictions to be place on confidential documents in discovery, based on the principles laid down by the Crown Cork case, before approaching the court for directions.

With the advent of a constitutional dispensation and in particular access to information legislation, there may conceivably well be other categories of documents such documents containing personal information of a third party, which should be treated similarly in discovery to confidential documents.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.