Legal Professional Privilege

When you enter your attorney’s office (mine included!), you as the client can rest assured that the information you share is confidential and cannot be used against you.

Legal professional privilege is a right which allows you to properly consult with your legal advisor in order to obtain legal advice without the fear that such communication will be used against you during legal proceedings.

The communication protected comprises oral and written communication between you and your legal advisor (which includes attorneys and advocates), but being an advocate or attorney should not give rise to the conclusion that ALL communication with a client is privileged. In order for these communications to be unchallengeable and to qualify as being privileged, it must comply with the following requirements:

• The legal advisor must act in his or her professional capacity. A mere friendly conversation is not covered.

• The communication must be made in confidence. This confidence covers all oral and documentary information in respect of the client’s affairs gained in acting for him whether from the client himself or any other source.

• The communication must be made for the purpose of obtaining legal advice or in pursuit of litigation. If a client makes a confession to an attorney without seeking that attorney’s legal advice in connection therewith, the confession is not privileged information. A simple illustration of this requirement is shown in S v Kearney 1964 (2) SA 495 (A) where the accused, an employee of a company, had confessed to theft to a shareholder’s attorney, the court held that the confession was not privileged because the accused had not made the statement for the purpose of obtaining legal advice.

Legal professional privilege does NOT apply if you were seeking advice for the purpose of committing a crime. Even if the legal advisor was unaware at the time of the communication of the client’s plan to commit a crime, such communication will not be privileged.

If the communication took place through an intermediary, for example an interpreter, the latter is also obliged to uphold the confidentiality. However, an independent third party who gets to know about the communication may NOT claim privilege (International Tobacco Co (SA) Ltd v United Tobacco Cos (South) Ltd (2) 1953 (3) SA 879 (W)).

The privilege, being the right of the client, has to be claimed either by the client or the legal advisor acting on his or her behalf. Therefore, if you are requested during legal proceedings to reveal the content of communication which meets the above requirements, you or your legal advisor must object to such information being disclosed on the grounds that it is privileged. You as the client may however decide to waive this right and disclose the privileged communication.

If a legal advisor acts for both parties or opponents in a matter (which really shouldn’t happen), the communication cannot be said to be confidential and will thus not be legally privileged. Similarly, an instruction to a legal advisor regarding settlement of a matter would not be confidential as it is intended to be made known to the client’s opposition and as such, cannot be said to be privileged.

It is in the public interest to allow communications between a legal advisor and his or her client to remain privileged as such communication assists the litigation process. It is for this reason that privilege does not attach to communications made to anyone other than a legal advisor. There is no privilege regarding communications made to: journalists, assurance assessors, ministers of religion, doctors, bankers or auditors. There have however been extraordinary cases where exceptions were made.

In Munisamy v Hefer NO and Others the Court held that the applicant (a newspaper reporter) was required to attend the proceedings and be sworn in. Thereafter she or her legal advisers could raise objections to questions she found objectionable.

An English court in the case of Sir Elton John v Express Newspapers refused to compel a journalist to disclose the identity of the source who had given him a copy of a draft opinion which had been stolen from counsel’s chambers and published in breach of Elton John’s legal professional privilege.

In S v Forbes 1970 (2) SA 594 (C) at 599, the court, because of public policy, allowed a psychiatrist to withhold communications made to him in the course of a professional examination. That was done to avoid the creation of suspicion among patients about professional investigations done in the interests of justice.

In S v Makhaye the court allowed a statement made to a priest.

Our law favours disclosure and so the rules of privilege are narrow and are interpreted restrictively.