LEGAL PROFESSIONAL PRIVILEGE

Transcription

1 LEGAL PROFESSIONAL PRIVILEGE Global Guide, 4th Edition, 2016 South Africa Date of Download: 19 January 2017

2 SOUTH AFRICA Last modified 25 August 2016 CONCEPT OF LEGAL PROFESSIONAL PRIVILEGE IN SOUTH AFRICA Legal professional privilege in South Africa consists of two components: 1. Legal Advice Privilege: protects communications between legal advisers and their clients, provided that: The legal adviser must have been acting in his/her professional capacity as a legal professional, and The communication must have been made in confidence, and The communication must have been made for the purpose of obtaining or giving legal advice, and The advice should not have been sought for an unlawful purpose. 2. Litigation Privilege: protects communications between legal advisers and/or their clients on the one hand; and third parties on the other hand provided that: The legal adviser must have been acting in his/her professional capacity as a legal professional, and The communication must have been made in confidence, and The communication must have been made for purposes of being placed before the legal adviser in order to enable him/her to advise, and The communication must have been made for the purpose of intended or contemplated litigation, and The communication/advice should not be for an unlawful purpose. The contents of privileged documents need not be disclosed; however, the existence of a privileged document must be disclosed. No distinction is drawn between legal professional privilege in the context of litigation, criminal investigations and investigations by the competition authority, as long as either component referred to above is satisfied. SCOPE OF LEGAL PROFESSIONAL PRIVILEGE IN SOUTH AFRICA What is protected by legal professional privilege? 01 Legal Professional Privilege South Africa

3 Any communication that satisfies the requirements of legal professional privilege is protected. If a document is not privileged, privilege cannot be created by simply handing over the document in a confidential manner to a legal adviser, as it will not be a communication for the purpose of obtaining legal advice. Documents that come into existence in the business of the client are not protected from disclosure merely because they may reach the hands of a legal adviser or because litigation has commenced. Does legal professional privilege apply to communications with in-house counsel? The court in Mohamed v President of South Africa and Others SA 1145 (C) found that legal professional privilege can be claimed in respect of communications with internal legal advisers where they amount to the equivalent of an independent external legal adviser's confidential advice. In order for legal professional privilege to apply in this instance, in addition to compliance with the requirements ordinarily applicable, the party claiming the privilege would also need to prove that the communications in question were made in the legal adviser's capacity as such, as opposed to in a general commercial or managerial capacity. Does legal professional privilege apply to communication with foreign qualified lawyers? Although the South African courts have not yet pronounced on the issue, it is likely that communications with foreign qualified lawyers, that satisfy the requirements of legal professional privilege, will also be protected. How is legal professional privilege waived? Legal professional privilege is for the client to claim and must be claimed before it can exist. Only the client can waive legal professional privilege. This can also be done through an agent of the client. Waiver of legal professional privilege can be express, implied or imputed. It is implied if the person who claims the privilege discloses the contents of a document, or relies upon it in its pleadings or during court proceedings. It would also be implied if only part of the document is disclosed or relied upon. For a waiver to be implied the test is objective, meaning that it must be judged by its outward manifestations. Imputed waiver occurs when fairness requires the court to conclude that privilege was abandoned. RECENT CASES AND/OR OTHER LEGAL DEVELOPMENTS IN SOUTH AFRICA In the matter of The Competition Commission v. Arcelormittal South Africa Ltd, delivered by the Supreme Court of Appeal in May 2013, it was held (in the context of the Commission s corporate leniency policy) that reference to a part of a document sufficient to constitute waiver destroys the legal professional privilege attached to the entire document, and not just the part referred to (unless the document consists of severable parts and is capable of severance). In A Company and Two Others v The Commissioner for the South African Revenue Service 2014 (4) SA 549 (WCC) the court held that where a fee note sets out the substance of the privileged communications in respect of the person seeking or giving of legal advice, or contained sufficient particularity of their substance to constitute secondary evidence thereof, those parts, but not the document as a whole, would be amenable to the privilege. The test was whether, upon an objective assessment, the references disclose the content, and not just the existence, of the privileged material. The privilege should be asserted by blacking out the information, so as to disclose those parts of the document that were not subject to the privilege and covering up those that were, and that the party asserting the legal professional privilege should generally be able to provide a rational justification for such claim without needing to disclose the content or substance of the matter in respect of which the privilege is claimed. The right to privilege is also recognised by the Promotion of Access to Information Act 2 of 2000, which was enacted to give effect to the right to access to information. This piece of legislation upholds privilege by firstly 02 Legal Professional Privilege South Africa

4 excluding its application to pending litigation, where the rules of discovery remain unchanged, and secondly prohibiting access to privileged records. KEY CONTACTS Peter Bradshaw Director T +27 (0) peter.bradshaw@dlapiper.com 03 Legal Professional Privilege South Africa

5 DISCLAIMER DLA Piper is a global law firm operating through various separate and distinct legal entities. Further details of these entities can be found at This publication is intended as a general overview and discussion of the subjects dealt with, and does not create a lawyer-client relationship. It is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. DLA Piper will accept no responsibility for any actions taken or not taken on the basis of this publication. This may qualify as 'Lawyer Advertising' requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome. Copyright 2016 DLA Piper. All rights reserved. 04 Legal Professional Privilege