The phrases “confidentiality” and “privilege” are also used interchangeably in the sense of legal professional ethics. Although in some ways these two words can overlap, they remain two distinct concepts. To the degree that their differences ensure the proper functioning of the South African legal system, which is based on freedom of communication between legal practitioners and their clients, the distinction between confidentiality and legal professional privilege is absolutely important.
A brief confidentiality consideration
‘Confidentiality’ refers to an attorney’s responsibility to protect the confidentiality of all correspondence between himself and the client (Willem de Klerk et al Clinical Law in SA 2nd (Durban: LexisNexis 2006) at 42). The standard is that, by virtue of a fiduciary relationship or even in relation to a criminal obligation prohibiting such disclosure, this duty may present itself as an explicit or tacit term of a contract. Confidentiality is claimed to be much broader than the legal professional privilege doctrine, because even though it is not covered by legal professional privilege, knowledge can be confidential. Confidentiality applies to all knowledge, whether oral or documentary in nature, about the affairs of the clients. The right to protect correspondence belongs entirely to the customer and only the customer can specifically waive this right (De Klerk op cit). This responsibility survives the dissolution and even the death of the client of the mandate between attorney and client. This (mostly) contractual responsibility is important to the extent that it guarantees that the client is willing (without fear) to trust and reveal to the legal practitioner all relevant details as far as the circumstances or case are concerned. At all times, legal professionals must ensure that confidentiality is preserved, secured and maintained. A violation by a legal practitioner of this obligation may result in a suit for damages against himself or herself, or may result in the granting of a prohibitive injunction against further disclosure. The responsibility to confidentiality remains in place at all times and not only in the face of legitimate information requests.
Demarcating the difference: Experience of legal professional privilege
The International Code of Ethics forbids legal practitioners from revealing communications rendered to them in their capacity as legal practitioners, unless legitimately ordered to do so by a court or in terms of legislation, except after ceasing to be the lawyer/legal practitioner of the client (J Auburn Legal Professional Privilege: Law and Philosophy (USA: Hart Publishing 2000) at 23). The theory of legal professional privilege, as it applies in the South, must be understood on this basis.
This doctrine maintains that such messages should not be used in testimony between practitioners and clients.
As set out in Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v National Director of Public Prosecutions and Others 2009 (1) SA 1 (CC), four legal professional privilege conditions are to be enforced, namely:
In a professional capacity, the legal practitioner must have acted. This goes beyond the simple fact that an admitted attorney or lawyer is a legal practitioner. Other indicators may also be considered, such as the payment of fees or the reported keeping of consultations, in order to comply with this requirement.
The client must have confidentially contacted the legal professional. At this point, as confidentiality is a required precondition for claiming privilege, the overlap between confidentiality and privilege becomes evident. For it to be privileged, a contact must have been meant to be confidential. This provision extends to all contact, whether written or oral, between the legal professional and the client. This provision is frequently challenged and confidentiality can be found to be lacking where, for instance, the attorney works in a case for both parties.
The contact must have been made to seek legal advice for the purpose of (or, at the least, closely connected thereto). A distinction is drawn between the privilege of legal advice, which relates to all communications between the legal practitioner (advocate/salaried in-house legal adviser) and the client (to give professional advice to the client); and the privilege of litigation, which relates to and covers all communications between the legal practitioner and the client or between the legal practitioner and the client.
The claimant, South African Airways (SAA), had previously sought and received an injunction against the respondents (three media outlets) to prohibit further publication of a legal impact review document prepared by the in-house legal advisor of SAA. The classified legal text was leaked in November 2015 and distributed in different national newspapers.
Sutherland J stressed the distinction between legal advice and litigation privilege in setting aside the previous order; delineating that, while the common law right to legal professional privilege is a necessary means of defending the adversarial justice system of South Africa, it is not an absolute right. Sutherland J noted that the right to legal professional privilege is a ‘negative right’ which makes legal advice given to a client by a legal practitioner inadmissible as evidence. This right cannot be viewed as a constructive right which would otherwise entitle a customer, after confidentiality has already been violated, to delete publication. As such, it is difficult to assert legitimate professional privilege against the world at large; to have immunity from forced disclosure. In cases where damage has already occurred, issuing an interdict is pointless. As such, no recourse exists to restrict further disclosure until the public becomes aware of sensitive legal correspondence between the client and the legal practitioner. (See the ‘Civil Procedure’ 2016 (June) DR 40 and’ Facts ‘2016 (June) DR 44 legislative reports.)
The advice given does not make it easier to commit a crime or fraud. This applies irrespective of the fact that such a crime or fraud might be entirely unknown to the solicitor. A tape recording was introduced into evidence in the case of Waste Products Utilisation (Pty) Ltd v Wilkes and Another 2003 (2) SA 515 (W), in which the defendant, in conversation with his counsel, decided to fabricate evidence in order to confuse the court. The court accepted it in testimony, agreeing that the tape recording was illegally made, arguing that the legitimate professional right so asserted by the defendant was forfeited as a result of the fraudulent intent behind the contact.
Furthermore, legal professional privilege shall not extend to communications not intended to be privileged, to communications not intended to be confidential, to the client’s identity and to the information learned by legal professionals by their own means and methods (De Klerk op cit at 42). The right belongs to the client and this privilege can only be specifically waived by the client.
Relevant examples of the applicability and constitutional challenge of legal professional privilege?
In the recent case of A Business and Others v Commissioner, South African Revenue Service 2014 (4) SA 549 (WCC), it was held that owing to legal professional privilege, some parts of the applicant’s attorney’s tax invoice were shielded from disclosure. In the past, if a taxpayer requested information from the South African Revenue Service (Sars) about an audit or interview, the taxpayer could refuse to do so on the basis that the information was legally privileged. However, a taxpayer alleging the applicability of legal professional privilege will now have to prove the validity of such privilege in terms of s 42A of the Tax Administration Laws Amendment Act 23 of 2015, by presenting a list of detailed information that includes, but is not limited to, a summary of each and every document not given and the legal practitioner’s complete descriptions.
Interestingly, the Financial Intelligence Centre Act 38 of 2001 (FICA) poses significant obstacles to the doctrine of legal professional privilege as another topical concern currently being considered. Accountable institutions such as banks and lawyers are expected to comply with different duties in compliance with schedule 1 of FICA. The onerous responsibility imposed on responsible institutions to report any suspicious activity or transactions to the Financial Intelligence Centre is the most contested of those duties (FIC).
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