Promotion of Access to Information Act

40. The information officer of a public body must refuse a request for access to arecord of the body if the record is privileged from production in legal proceedings unless the person entitled to the privilege has waived the privilege.

Mandatory protection of certain confidential information of third party

65. The head of a private body must refuse a request for access to a record of the body if its disclosure would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement.

Mandatory protection of records privileged from production in legal proceedings

67. The head of a private body must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings unless the person entitled to the privilege has waived the privilege.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about the results of any product or environmental testing or other investigation supplied by, carried out by or on behalf of the private body and its disclosure would reveal a serious public safety or environmental risk.

(3) For the purposes of subsection (2), the results of any product or environmental testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.

Mandatory disclosure in public interest

70. Despite any other provision of this Chapter, the head of a private body must grant a request for access to a record of the body contemplated in section 63(1), 64(1), 65, 66(a) or (b), 67, 68(1) or 69(1) or (2) if—

(a) the disclosure of the record would reveal evidence of—

(i) a substantial contravention of, or failure to comply with, the law; or

(ii) imminent and serious public safety or environmental risk; and

(b) the public interest in the disclosure of the record clearly outweighs the harm

contemplated in the provision in question.

Mandatory protection of certain confidential information of third party

SOUTH AFRICA AND THE PRIVILEGE

It is recognised that the privilege is not one which covers every communication between a client and the legal advisor. The communication must be made in confidence and it must be passed for the purpose of advice or litigation. The advice must also be directed towards a lawful end. The distinction between legal advice and presentational advice and/or tactical advice has not been considered.

As far as the litigation privilege is concerned materials and communications obtained from third parties as agents (for example a loss adjuster) of a client made in preparation for litigation must be made “in reference to actually pending or contemplated litigation” : General Accident, Fire and Life Assurance Corporation Ltd vs Goldberg (Supra). The test is a less onerous test than that of “reasonable prospect” applied by the English Courts. What cannot be the subject of litigation privilege are materials and communications of a witness, who is not a client’s agent; that witness may also be asked what he said or did or what was shown to him (other than documents for which in themselves privilege is claimed) at any consultation or interview with a client’s legal advisor : International Tobacco Co vs United Tobacco Cos Ltd 1953 (3) SA 879 (W).

Whereas the privilege was formally regarded as a rule of evidence it has in more recent times increasingly been held to be a rule of substantive law. This is evident in the manner in which our Courts have dealt with privileged claims in the context of statutorily authorised seizure of documents:

- In Andresen vs Minister of Justice 1952 (2) SA 473 (W) the Court held that privileged documents were not exempt from seizure under a search warrant issued in terms of s49 of the Criminal Procedure Act. The Court held that the proper authority to decide whether documents are privileged is the Court, and the time at which such a decision is to be made is when the documents are tendered as evidence in a trial.

- In Mandela vs Minister of Prisons 1983 (1) SA 938 (A) the Court held that the fact that the Appellant’s documents were assumed to be “privileged” did not override the Commissioner of Prisons’ general powers of taking articles from a prisoner and holding them in safe custody. Again the opportune time to claim the privilege was in the course of evidence.

- The Court moved towards recognising the rule as a substantive rule as opposed to an evidentiary rule in Cheadle Thompson & Haysom and Others vs Minister of Law & Order and Others 1986 (2) SA 279 (W). In an obiter statement the Court questioned whether privileged documents ought to be subject to seizure in terms of the Criminal Procedure Act. The Court questioned the Andresen decision. The Court commented:

"When in future the police intend to seize similar material, they should, before taking it away, afford the attorney or client concerned an opportunity to apply to Court to set aside the warrant as it is by no means clear that the law is correctly set forth in Andresen's case".

- In 1988 the Appellate Division in S vs Safatsa and Others (supra), signalled a radically different approach to that in the Andresen and Mandela cases, steering away from the evidentiary nature of the rule to a more substantive approach in regarding the privilege as a fundamental right. While it did not have to decide whether the privilege should be relaxed in the circumstances of the case it stated that any relaxation of the rule can only arise in the context of the exercise of a discretion by the trial judge.

Our Courts had accordingly come to recognise the rule, not merely as an evidential rule, but as a fundamental right, the relaxation of which must only be approached with the greatest circumspection. The advent of the Interim Constitution however and the introduction of competing fundamental rights focused our Courts’ attention on the relaxation of the rule.

Our Courts have already considered the fundamental right of legal advice privilege against the right under the Constitution that every person has of access to any information held by the State. This has involved a balancing exercise:

- In Jeeva and Others vs Receiver of Revenue, Port Elizabeth, and Others 1995 (2) SA 433 (SE) the Applicants applied for an Order in terms of s23 of the Interim Constitution (now s32 of the Constitution) directing the Receiver of Revenue to give access to information in its possession. The Receiver opposed the application on the grounds that the information was subject to legal professional privilege. The Court held that the privilege constituted a reasonable and justifiable limitation of the Applicant’s right of access to information and upheld the claim of privilege. In a lengthy and instructive judgment wherein the Court referred to recent decisions of the Australian and Canadian Courts in regard to the balancing of interests of society with those of individuals and groups the Court concluded:

"... the Courts should, in my judgment, be inclined to uphold a bona fide claim to legal professional privilege in answer to a claim for access to information". (page 455)

- In Van Niekerk vs Pretoria City Council 1997 (3) SA 839 (T) however the Court held that the conclusion, as expressed in Jeeva’s case “may be too generally stated”; that “claims to legal professional privilege differ greatly in their nature, and the ambit of the privilege may be very wide indeed”. The Court ordered the Local Authority to disclose the contents of a report drawn up by an electricity department as to the cause of a power surge resulting in damage. While the Court found that the Local Authority’s claim for privilege was bad, such that the Court was not therefore required to balance the Constitutional right of the individual to information against the fundamental right of privilege, the Court stated:

... recourse to legal professional privilege as a defence to a right under s23 should be carefully scrutinised". (page 849

This more critical approach to claims for legal privilege was illustrated again in Harksen vs Attorney-General of the Province of the Cape of Good Hope & Others 1998 (2) SACR 681 (C). In that matter the Applicant’s claim for the permanent staying of an inquiry in terms of the Extradition Act was dismissed. The Applicant had sought to argue that the inquiry would impinge on his fundamental rights to privilege in respect of certain information. The Court found that any breach of privilege was insufficiently serious and that no prejudice would result.

THE POSITION OF THE LEGAL ADVISER

Given this more critical approach I conclude with a few remarks in relation to corporate legal advisers:

- In the decision of the Commercial Court in USA vs Philip Morris (Supra) the Court suggested that it will scrutinise the activities of in-house lawyers more closely:

"Lawyers do not cease to be regarded as professional legal advisers simply because they are employed by their clients, but in the nature of things those who are employed in that capacity are more likely than independent practitioners to become involved in aspects of the business that are essentially managerial or administrative in nature." (paragraph 64)

- The “in-house legal adviser” ought therefore to remain scrupulously aware of the distinction between communications made in the capacity as legal advisor, which would enjoy the protection of privilege, and other communications not made in that capacity but in a commercial or managerial capacity, which would not be privileged. That is indeed the approach adopted by the South African Courts (refer to Mahommed vs President of the Republic of South Africa and Others 2001 (2) SA 1145 (C)).

- Prudence would dictate that an in-house lawyer who has a dual-function (an executive as well as a legal role) should avoid including communications relating to the executive role in a document relating to the legal role as the resulting confusion could lead to the privilege being lost.

- It is only legal professionals whose advice is privileged. This should be borne in mind where a legal department consists of lawyers and other professional advisers.

FINALLY

With the trend of the Courts to scrutinise more closely claims for legal professional privilege we can now safely say that there will be more challenges to such claims. Hence the need for added caution.