Deloitte was Hastie’s auditor from 2005 until 2012. The files include audits of Hastie’s financial statements for the 2010 and 2011 financial years.
After Mr Saayman successfully claimed privilege against self-incrimination in October 2018, it fell to “uninvolved partners” to comply with a court order to produce the documents.
The court met with resistance when the uninvolved partners applied to be excused from the production order because the material was inaccessible in the hands of Mr Saayman.
In a decision published on December 24, Justice Moshinksy dismissed the application.
“The circumstances described … are extraordinary and troubling,” he said.
“The documents were located in the secure litigation room, access to which was limited to Deloitte’s litigation team by a swipe card access system.
“Yet somehow the documents have been obtained by Mr Saayman and he is refusing to release them.
“The series of events appears to have been designed to bring about a situation where the uninvolved partners could argue that they are unable to produce the documents.
“If the events were so designed, and involved not just Mr Saayman but others as well, it may well be the case that the uninvolved partners can produce the documents.”
In May 2012, Hastie announced it had discovered “accounting irregularities” in its services business dating back to 2009, resulting in the resignation of two non-executive directors.
The company was placed into voluntary administration.
The class action proceedings, filed in 2017, allege that Deloitte entities breached corporations and consumer law by giving certain assurances about Hastie’s financial statements and earnings forecasts in a 2011 prospectus and other documents.
In emails seen by the court, Mr Saayman noted that on the grounds of privilege against self-incrimination he was able to refuse to produce the records.
“The physical files and back-up disks have been locked up securely and only I have the keys to these records,” he wrote.
“The electronic files have been password protected and only I know the password to these files”.
Anthony Lee, Deloitte’s in-house solicitor, told the court he did not know how or when the files were removed from the litigation room, which was only accessible by swipe card.
He gave evidence that he had not made any inquiries about whether anybody authorised access to the room by Mr Saayman.