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Concept Of Legal Privilege In South Africa


In South Africa, legal professional privilege consists of two components:


Privilege of Legal Advice

Preserves interactions between legal advisers and their clients, provided that:

  • The legal advisor would have served as a legal practitioner in her professional capacity.

  • The notice must have been made in trust.

  • The disclosure must have been made for the purpose of receiving or offering legal advice, and

  • The advice should not have been obtained for an illegitimate reason.


Litigation Privilege

covers, on the one hand, correspondence between legal advisers and/or their clients; and, on the other hand, third parties if:

  • The legal advisor would have served as a legal practitioner in her professional capacity.

  • The notice must have been made in trust.

  • For the purposes of being put before the legal adviser, the contact would have been made in order to encourage them to advise the legal advisor.

  • The disclosure must have been made for the benefit of the planned or envisaged litigation, and

  • There should be no contact / guidance for an unlawful reason

  • It is not appropriate to reveal the contents of privileged documents; the presence of a privileged document, however, must be revealed.

No distinction shall be made between the legal professional right of the competition authority in the sense of litigation, criminal prosecutions and investigations, provided any of the components referred to above is satisfied.

In addition, during any investigation carried out by the South African Competition Commission pursuant to merger regulation, any communications that fall within the scope of legal professional privilege remain covered. Where legal professional privilege is asserted by the Competition Commission during a search or investigation, the investigator may, by order of the High Court of South Africa, require the Sheriff of the High Court to attach and delete the allegedly protected communications for safekeeping before that court decides whether or not the communications are in fact legally privileged.


Legal professional privilege scope

Any contact that meets the legal professional privilege requirements is covered. If a document is not privileged, it is not necessary to establish a privilege simply by confidentially handing over the document to a legal lawyer, since it would not be a contact for the purpose of receiving legal advice. Documents that come into being in the client’s company are not protected from disclosure solely because they can enter a legal adviser’s hands or because litigation has begun.


Does legal professional privilege protect interactions with in-house counsel?

The court in Mohamed v President of South Africa and Others 2001 2 SA 1145(C) held that it is possible to assert legal professional privilege in connection with interactions with internal legal advisors where they amount to the equivalent of confidential advice from an independent external legal advisor. In order for the legal professional privilege to be exercised in this situation, in addition to complying with the usually applicable conditions, it would also be appropriate for the party seeking the privilege to show that the communications in question were made in the capacity of the legal adviser as such, as opposed to in the general commercial or managerial capacity.


Will the legal professional right of contact with trained foreign lawyers apply?

Although the South African courts have not yet ruled on the matter, it is likely that communications with accredited foreign lawyers that comply with legal professional privilege standards will also be covered.


When the right is waived?

The legal professional right is for the client to assert, and before it can occur, it must be asserted. Legal professional right can be waived only by the client. This can also be achieved through a client’s agent. It is possible to convey, infer, or impute the waiver of legal professional privilege. It is implied that the person seeking the privilege discloses, or depends on, the substance of a document in his or her pleadings or during court proceedings. If only part of the document is revealed or relied upon, it will also be inferred. The evaluation is objective in order for a waiver to be implied, meaning it must be measured on its external manifestations. Imputed waiver happens when the court is forced to believe the right has been abandoned by justice.