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”

Related Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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