South Africa: The Privilege Checklist

Last Updated: 1 April 2005
Article by Des Williams and Rudolph Raath

Below we discuss the ambit of the protection afforded to your communications with your legal advisers and third parties. We explain the difference between privilege and confidentiality, and conclude with a checklist of the issues which should be considered whenever sensitive documents are created.


In order to obtain accurate legal advice one must be free to communicate openly and honestly with one’s attorneys. This requires not only the assurance that communications with one’s attorneys will be treated in confidence but also that a court of law will not order the disclosure of the contents of such communications, no matter how relevant they may be. It goes without saying that one will have the same sensitivity about communications with third parties in anticipation of, or arising from, legal advice.

Protection of such communications has become particularly important in this age of SMS’s and e-mails, the increasing use of voice recognition word processing and the recording of telephone discussions. Where in former years writing a letter required time, planning and effort, it is today possible to document our thoughts almost as and when we think. Furthermore, documentation electronically stored does not decompose and attempts to tamper with or destroy such information are often easily exposed.

Due to the expanding role that attorneys play in their client’s businesses today and the general proliferation of documentation, it is necessary for businessmen to understand the extent to which such documented communications are protected, or "privileged", as it is referred to in law. As will be shown, the law does not afford blanket protection to all communications between attorneys and clients, and affords restricted protection only to communications with third parties.

What is privilege?

Privilege should not be confused with confidentiality undertakings. Privilege arises as a matter of law, whereas a confidentiality undertaking is a contract. The mere agreement between parties that certain communications will be treated as confidential does not preclude a court from requiring the disclosure of documentation that is relevant to a matter forming the subject of litigation. Our law of evidence, which is largely derived from English Law, considers certain communications to be privileged. The privilege may be raised by a party in court proceedings to resist disclosure.

Legal professional privilege, is based on the general rule that communications between a legal advisers and his/her client are privileged if the legal adviser was acting in a professional capacity at the time, the adviser was consulted in confidence, the communication was made for the purpose of obtaining legal advice and the advice does not facilitate the commission of a crime or fraud.

Litigation privilege, is the privilege attaching to materials obtained in anticipation of litigation, and which serves to protect from disclosure communications between the client or the legal adviser and third parties, if those communications were made for the legal adviser's information for the purpose of pending or contemplated litigation.

Negotiations privilege, is the privilege relating to statements made expressly or impliedly without prejudice in the course of bona fide negotiations for the settlement of a dispute.

It has been held in South African courts that a salaried legal adviser employed by a single organisation may be said to be acting in a professional capacity for the purpose of legal professional privilege. The courts have, however, stressed the importance of the distinction to be drawn between communications made by such employees in their capacity as legal adviser and other communications which would not be of a privileged nature.

Two important issues relating to legal professional privilege have recently been considered by the courts of England. These are the meaning of "clients" (as communications with third parties are not protected by legal professional privilege) and the meaning of "legal advice".

Three Rivers District Council & Others v The Governor and Company of the Bank of England [2003] EWCA Civ 474 and [2004] UKHL48

The Bank of England ("the Bank") had participated in an enquiry into the role of the Bank in the collapse of The Bank of Credit and Commerce International SA ("the BCCI"). It created a special Enquiry Unit ("the Enquiry Unit") consisting of three Bank employees to assume responsibility for the Bank’s presentation at the enquiry. During the course of preparation for the enquiry litigation was not contemplated. The activities of the Enquiry Unit were aimed only at preserving the reputation of the Bank. A large volume of documents were created, including -

  • communications of the Enquiry Unit with other employees and agents of the Bank in preparation for the enquiry; and
  • correspondence between the Enquiry Unit and the lawyers of the Bank, advising the Enquiry Unit on how best to conduct the presentation.

Pursuant to the enquiry, legal action was instituted against the Bank by the liquidators of the BCCI for alleged misfeasance in public office. The Bank refused to disclose its communications with employees and agents of the Bank and with the lawyers of the Bank on the ground that legal professional privilege applied.

The judgments restated the principles of legal professional privilege without cause for controversy. The courts confirmed that communications between a client and lawyer seeking legal advice were privileged. The Court of Appeal's interpretation of these two concepts are, however, noteworthy.

Insofar as the meaning of client was concerned, however, a very narrow interpretation was adopted in terms of which the court held only the three members of the Enquiry Unit qualified as a client of the Bank’s lawyers. All internal correspondence between members of the Enquiry Unit and other employees of the Bank (even the Governor of the Bank) were regarded as third party correspondence and therefore not capable of being covered by legal advice privilege. The fact that such communications were presented by the Enquiry Unit to the Bank’s lawyers did not assist the Bank.

Insofar as the meaning of legal advice was concerned the Court of Appeal also adopted a restrictive approach. It held that the advice regarding the Bank’s presentation at the enquiry did not relate to the Bank’s rights and obligations. It was merely concerned with how to protect the Bank’s reputation in the public eye by presenting it in the most favourable light. The advice did therefore not qualify as legal advice and the Bank could not claim privilege. On appeal, the House of Lords rejected this narrow interpretation of "legal advice". Advice qualifies as legal advice, when it is given in a "relevant legal context", in other words, where your attorney is wearing his "legal spectacles" rather than acting as a "man of business". The House of Lords held that communications between the enquiry unit and its lawyers were privileged as the advice related to rights, liabilities, obligations or remedies of the client either under private law or under public law.

United States of America v Philip Morris Inc [2004] EWCA Civ 330

In this English case privilege was claimed in respect of advice given by a lawyer, Mr Foyle, on his client’s document management policy in relation to major tobacco litigation in the USA. An order was sought in England compelling Mr Foyle to submit to questioning by representatives of the USA government. The request was opposed on the ground that the questioning would relate to privileged communications.

The court found that litigation privilege did not apply. A real prospect of litigation, as distinct from a mere possibility, is required, although litigation need not be more likely than not. Considering legal professional privilege, the court refused to grant Mr Foyle blanket protection where segments of the communications in issue constituted legal advice and others not. The court expressed doubt as to whether advice on a client’s document management system, albeit in respect of sensitive documents, amounted to legal advice about rights and obligations, or that it required knowledge of the law. Mr Foyle was accordingly compelled to give evidence but remained entitled to claim legal advice privilege under examination as and when questions relating to privileged communications were posed.

The checklist

These decisions demonstrate that the mere involvement of one’s attorneys does not necessarily render related communications privileged. It is therefore important to take care when any form of communication is documented to consider whether or not it is privileged and, if not, what the impact of having to reveal such documents at a later stage may be. Without attempting to provide an exhaustive list, we recommend that the following issues should be considered whenever a document is created -

  • When there is a concern about potential litigation, this should be clearly stated, an attorney should be involved and witnesses should be interviewed in the presence of the attorney;
  • Be wary of recording communications regarding sensitive issues in documentation where the communication is not in anticipation of litigation;
  • Do not consider communications to be privileged merely because they are copied to (or even channelled through) an attorney. Unless the requirements of legal professional privilege or litigation privilege are met such communications are not protected;
  • Insofar as your attorneys render business advice to you, take steps to ensure that business advice rendered by your attorney is documented separately from legal advice;
  • Do not refer to "without prejudice" communications in correspondence which is not privileged;
  • Do not respond to e-mails in the heat of the moment. Take time! Hasty and emotional responses can often be damaging. If possible, discuss an appropriate reply with an attorney or in-house corporate lawyer;
  • In the face of crisis or possible censure, refrain from sharing your predicament with all and sundry via e-mail. Excuses often contain admissions which should not be made;
  • Always ask yourself whether you would be embarrassed or prejudiced if the document which you intend producing were to be disclosed in court. If the answer is affirmative, don't create the document!

Nothing in this publication should be construed as legal advice from any lawyer or this firm. The articles published are general summaries of developments or principles of interest, and may not apply directly to any specific circumstances. Professional advice should therefore be sought before action based on any article is taken.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions