Legal professional privilege provides for the protection of communications, between clients and their professional legal advisor, from being disclosed without the client’s consent. The purpose of this privilege is to promote disclosure to legal advisors without fear of prejudice.
In South African law legal professional privilege is a common law right. However our Constitutional dispensation has resulted in our courts balancing the right of privilege and the constitutional right of the individual to information.
In addition to legal privilege being a common law right it is also recognised by the Promotion of Access to Information Act. The Act upholds the privilege by not having application with regard to pending litigation and by expressly prohibiting access to privileged records.
The recognition of legal professional privilege has been extended by our courts to include in-house attorneys or legal advisors.
In Mohamed v President of South Africa and Others 2001 the court held that legal professional privilege may be claimed in respect of communications with internal legal advisors where such communication amounts to the equivalent of an independent external legal advisor’s confidential advice.
The court emphasized that compliance with the requirements would need to be shown as well as the fact that the communications were made in the advisor’s capacity as legal advisor as opposed to a general or commercial capacity.
In order for the privilege to apply the following requirements must be complied with:
- The legal advisor must have been acting in a professional capacity in other words giving legal advice and not performing another managerial or employment role;
- The communication between the advisor and client must have been made in confidence and should not have been intended to be disclosed;
- The communication was for the purpose of obtaining legal advice or with litigation in mind;
- The privilege, which is a right of the client, has to be claimed. The client is entitled to disclose the communication if he wishes to;
- The communication must not have been made with fraudulent or criminal intent. Therefore advice to facilitate a dishonest or criminal purpose is not privileged.
The aforesaid outlines the current position in our law. In the European Court of Justice it was ruled that legal professional privilege does not extend to communications between an undertaking and its in-house lawyers.
The reasoning behind this decision was that the in-house attorney does not enjoy the same degree of independence from his / her employer as an external attorney does and is therefore less able to effectively deal with any conflicts between their professional obligations and the aims of their client / employer.
While this case does not change the South African position our courts are likely to consider this reasoning in future cases.
In addition to the common law protection, the Protected Disclosures Act 2000 includes in its definition of protected disclosure a disclosure made to a legal advisor, or person whose occupation involves the giving of legal advice, and with the purpose of and in the course of obtaining legal advice.
The purpose of the aforesaid Act is to protect an employee from being subjected to an occupational detriment on account of having made a protected disclosure.