STUDY UNIT 8

PRIVILEGE
 INTRODUCTION

EXCLUSIONARY RULES OF LAW OF EVIDENCE

TYPES OF EVIDENCE THAT IS DEEMED INADMISSIBLE

• CHARACTER EVIDENCE

• HEARSAY

• OPINION EVIDENCE EXCLUSIONARY RULES RENDER THESE

TYPES OF EVIDENCE INADMISSIBLE
• PREVIOUS CONSISTENT STATEMENTS

• SIMILAR FACT EVIDENCE

1. SUCH EVIDENCE IS INHERENTLY UNRELIABLE

2. FOR THE LACK OF PROBATIVE VALUE

3. SUCH EVIDENCE CAN POSSIBLY CAUSE PREJUDICIAL EFFECTS ON THE FAIRNESS OF TRAIL

THE REASON WHY THESE TYPES OF EVIDENCE IS DEEMED INADMISSIBLE

• INHERENTLY UNRELIABLE

• LACK OF PROBATIVE VALUE

• POTENTIAL PREJUDICIAL EFFECTS ON THE FAIRNESS OF A TRAIL

 PRIVILEGE

WAT IS PRIVILEGE?

❖ Privilege occurs when a witness is not obliged to answer a question or supply information that
is relevant to an issue before the court

❖ Privilege is the right or duty of a witness to lawfully withhold evidence from a court of law.

A CLAIM OF PRIVILEGE

➢ A CLAIM OF PRIVILEGE EXCLUDES THE RELEVANCE & ADMIMISSIBLE EVIDENCE

Relevant, admissible evidence is excluded because of overriding public policy even though
this can cause ‘good evidence to be lost & this results in obstructing the search for truth

AS A RESULT OF OVERRIDING PUBLIC

POLICY

PRIVILEGE EVIDENCE IS INHERENTLY

EXCLUDED OBJECTIONABLE

NOT BECAUSE OF THE FACT THAT IMPROPER

SUCH EVIDENCE IS

INADEQUATE

C OM P E T EN C E & C OM P ELL AB IL IT Y

➢ In terms of the competence & compellability of a witness, privilege must be distinguished from
evidentiary rules in order for the witness to testify at trial

➢ A claim of privilege must be distinguished from the non-competence or non-compellability of a

witness

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 NON - CLAIM
INCOMPETENT
COMPELLABLE PRIVILEGE

A NON – COMPELLABLE A WITNESS WHO WANTS TO

AN INCOMPETENT WITNESS
WITNESS HAS THE RIGHT TO CLAIM PRIVILEGE IS
LACKS THE CAPACITY TO
REFUSE TO TESTIFY REQUIRED TO ENTER THE
TESTIFY
ALTOGETHER WITNESS-BOX

Example: mentally ill Example: member of SUCH A WITNESS THEN HAS

person derived from Parliament can refuse to TO RAISE PRIVILEGE AS THE
being able to think testify upon completing REASON FOR NOT
properly business in Parliament ANSWERING THE QUESTION

A WITNESS WHO INVOKES PRIVILEGE IS NOT

INCOMPETENT OR NON – COMPELLABLE

A WI TN E S S W H O IN V O K E S PRI V IL EG E

✓ The witness must take the witness box

✓ The witness must in this case raise privilege on a question-by-question basis

✓ All questions not related to privilege must be answered

C A T EG OR I E S OF PR IV IL EG E

PRIVILEGE

PRIVATE PRIVILEGE STATE PRIVILEGE

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 PRIVATE PRIVILEGE STATE PRIVILEGE

• Privilege against self – incrimination & right to remain silent Police docket privilege
Legal professional privilege Detection of crime
Litigation privilege o Informers
Negotiation privilege
Marital privilege o Investigative methods

Private privilege is directed at PROTECTING

THE INTERESTS OF INDIVIDUALS

LEGAL PROFESSIONAL PRIVILEGE

THE GENERAL RULE REGARDING PRIVILEGED COMMUNICATION

The advice DOES NOT in any way ASSIST

IN THE COMMISSION OF A CRIME OR
FRAUD

COMMUNICATIO The client consulted the

The legal adviser was acting in N IS ONLY legal adviser IN
his PROFESSIONAL CAPACITY PRIVILEGED IF CONFIDENCE

The purpose of the

communication WAS TO OBTAIN
LEGAL ADVICE

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❖ The general rule in law is that COMMUNICATIONS BETWEEN A LEGAL ADVISER & A CLIENT
IS PRIVILEGED

❖ The communication between a legal adviser & a client IS ONLY PRIVILEGED IF

❖ This rule stems from the historical foundation of the Anglo – American evidentiary system

❖ In SA this rule is INITIALLY SEEN AS AN EVIDENTIARY RULE

 This rule can ONLY BE INVOKED IN LEGAL PROCEEDINGS

 This rule can thus NOT BE INVOKED IN EXTRA – CURIALLY

o To defeat seizures
o Confiscations of confidential communications An extra-curial statement is
any statement made outside
the court

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 HISTORY & THE RATIONALE OF LEGAL PROFESSIONAL PRIVILEGE

T H E CO N S T IT U T ION

❖ The Constitution changed the position mentioned above regarding SA’s first interpretation of the
evidentiary rule

❖ The Constitution does not expressly recognize the right to consult a legal adviser privately & in
confidence, therefore you won't find these exact words in the Constitution but it is implied

HOW??

❖ The Constitution created an absolute right which constitutes that a person has the right to consult
a legal adviser privately & in confidence & the following sections serve as prove

ANY PERSON HAS AN ABSULUTE RIGHT TO CONSULT A LEGAL ADVISER PRIVATELY & IN
CONFIDENCE

SECTION 14 SECTION 34 SECTION 35

EVERY PERSON
THE RIGHT TO HAS THE RIGHT TO SECTION 35 (3) (f) SECTION 35 (3) (j)
PRIVACY ACCESS THE
COURT

THE RIGHT TO BE
THE RIGHT OF AN
Which includes the COMPELLED NOT
This includes the right ACCUSED TO HAVE
right to not have the TO GIVE SELF
to consult a legal ASSISTANCE FROM
privacy of INCRIMINATING
advisor privately & in COUNSEL
communications EVIDENCE
confidence
infringed

ALL OF THESE CONSTITUTIONAL RIGHTS ACTUALLY IMPLY THE RECOGNITION OF THE RIGHT
TO CONSULT A LEGAL ADVISER PRIVATLY & IN CONFIDENCE

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S v S AF AT S A

FACTS:

➢ In this case 8 people were charged with the murder of Mr. Dlamini

➢ Mr. Dlamini was the mayor of a town

➢ Mr. Dlamini house was attacked by a mob of people, stones were thrown at the deceased
house which eventually turned into petrol bombs which set his house on fire

➢ He managed to escape & as he fled, some of the members of the mob caught him

➢ He was assaulted, they threw him with stones, poured petrol over him and set him on fire

➢ In this case, the importance for law of evidence was the fact that the counsel for the accused
had a statement which was made by a state witness to an attorney for the purposes of
obtaining legal advice

LEGAL QUESTION:

➢ Is whether or not that statement was protected by legal professional privilege

➢ NB! this case represents the 1st time where legal professional privilege was recognized as a
fundamental right

➢ It's the 1st case where confidential, honest, and Free Communications between the client and
the legal advisors was recognised as a fundamental right derived from the requirements of
procedural justice and not merely an evidentiary rule

➢ This case changed the entire view with regards to legal professional privilege
 Because, previously it was only seen as the evidentiary rule
 Thus, it could only be invoked during legal proceedings.

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 B EN N E T v MIN I S T ER O F S A F ET Y & S ECU I RI T Y

FACTS

➢ In this case the applicants sought the return of the documents that the police seize in an
extensive search & seizure operation

➢ This was the economics crime unit that had certain search warrants, and they seized about
18,000 documents which actually all fell under the umbrella of the attorney client privilege,
meaning legal professional privilege

LEGAL RULES
➢ The Bennett case is a good example where you can see how the position has changed
 where previously it was seen as only an evidentiary rule
 now it's a fundamental right
➢ NB! Thus, this is very important that you know the principles - why is it a fundamental right?
 Remember It goes to the central issue of ensuring that the constitutional imperative of
a fair trial is met
 It reinforces the constitutionally enshrined rights to legal representation
 it guarantees every person the right to consult with a legal adviser
 but important not only to consult with them, but to do so privately and confidentially.

` COURT JUDGEMENT
➢ The judge found that at the time of the seizure, the police knew the documents were
privileged so the search warrants did not authorize the seizure of privileged documents and
even if it did expressly authorize the seizure of privileged documents, it would still be unlawful

➢ In the case the court ordered that the documents be returned, so the case still continued.

➢ The court reiterated that attorney-client privilege is fundamental right

 It is central to ensuring constitutional imperative of fair trail
 Reinforcing constitutionally enshrined rights to legal representation during legal
representation during legal proceedings
 And guaranteeing right of every person to consult with legal advisor privately and
confidentially

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 REQUIREMENTS

LEGAL ADVISOR MUST ACT IN

PROFESSIONAL CAPACITY

COMMUNICATIONS MUST BE MADE IN

REQUIREMENTS TO CONFIDENCE
INVOKE LEGAL
PROFESSIONAL
PRIVILEGE COMMUNICATIONS MUST BE MADE FOR THE
PURPOSE OF OBTAINING LEGAL ADVISE

ADVICE MUST NOT FACILITATE COMMISSION

OF CRIME OR FRAUD

L EG AL AD VI S ER M U S T A CT IN A PR O FE S S I ON AL C AP A C IT Y

❖ Whether the legal advisor is acting in a professional capacity relates to the question of fact

❖ The payment of a fee is an NB consideration

 BUT ITS NOT A CONCLUSIVE CONSIDERATION

❖ ALL THE SURROUNDING CIRCUMSTANCES MUST BE CONSIDERED such as:

 Was the legal adviser best suited to give advice

 Where did the consultation take place

 What was the underlying purpose of the conversation

SALARIED LEGAL ADVISERS In house counsel

EMPLOYED BY SINGLE
ORGANISATION Goverment lawyers
NO DISTINCTION IS
MADE BETWEEN
ATTORNEYS & ADVOCATES IN  Van den Heever v The Master
PRIVATE PRACTICE  Mohamed v President of RSA

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C OMM UN IC A T ION M U S T B E M AD E IN C ON FI D EN C E

❖ The 2nd requirement is that the communication must be made in confidence

❖ As with the 1st requirement, this is also a question of fact.

 In other words, we have to look at the specific circumstances & the facts before us

❖ Usually, confidence is concluded if you can prove compliance with all the other requirements.

 In other words, if you prove that the client consulted with a legal advisor in their professional
capacity for purposes of legal advice, usually, then confidence isn't is inferred.

❖ COMMUNICATION IN CONFIDENCE CAN BE REBUTTABLE

 If it's obvious from the nature of the communication that you intended for the communication
to be shared with 3rd parties, you no longer satisfy the need of confidence.

 For example, instruction to an attorney to negotiate a settlement

GIOVANGOLI v DI MEO

❖ PRIVILEGE IS INVALIDATED IF:

 Communication occurred in a public place where it could easily be overheard

 Communication occurs in the presence of 3rd parties

C OM M UN I C AT I ON M AD E F OR T H E P URP O S E O F O BT A IN IN G L EG AL AD VI C E

 COMMUNICATION IS NOT PRIVILEGED IF;

 Communication that is made in confidence, but the communication is not made for the
purpose of obtaining legal advice

 For example, a fee note which is not created for the purpose of giving legal advice

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 TO SECURE PRIVILEGE

 IT IS NOT NECESSARY for the communication between the client & the legal adviser to be
linked to pending litigation or actual litigation for the privilege to be attached

 HOWEVER, IT IS NECESSARY that statements from agents & 3 rd parties must be made in
connection with contemplated litigation, BEFORE SUCH STATEMENTS ARE DEEMED
PRIVILEGED

COMMUNICATION BETWEEN CLIENT STATEMENTS FROM AGENTS &

& LEGAL ADVISER THIRD PARTIES

TO SECURE PRIVILEGE TO SECURE PRIVILEGE

IT IS NOT NECESSARY for the IT IS NECESSARY that statements

communication to be linked to pending must have been made in connection
litigation or actual litigation for privilege with contemplated litigation before
to be attached statements will be privileged

ADVICE MUST NOT FACILITATE THE COMMISSION OF CRIME OR FRAUD

 The last requirement is that the advice must not facilitate the Commission of crime or fraud

 A criminal or fraudulent enterprise does not fall within the scope of an attorney-client relationship

 If an attorney, for example, advises a client to lie when they enter the witness box that
would be facilitating the Commission of a crime because it's perjury.

 Even if a legal advisor is ignorant of the client's illegal purpose, such communication will still not
meet the requirements of legal professional privilege & will therefore not be protected.

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 WHO CAN CLAIM THE PRIVILEGE

If the requirements for legal professional privilege

have been met, who can now claim the privilege?

❖ Privilege attaches to the client & the client only

 Therefore, the privilege must be claimed by the client.

❖ The legal representative must claim privilege on behalf of their client

 But to do so the legal rep must act for the benefit of the client & not their own interests.

PRACTICAL EXAMPLE

let's say an attorney wrote a letter to a client. The client can claim privilege that this communication
is not disclosed and say I will not answer any questions with regards to this letter.

But if the client for some or other reason decides that they want to waive, we're still going to look at
the different waivers, but they waive the privilege, so they do not claim privilege.

The attorney or the legal advisor cannot say now ‘Oh no, I refuse to disclose the contents of this
communication because it's the privilege does not attach to the legal advisor It attaches to the
client’.

The court may inform the witness of their right to privilege, but they may not prevent cross
examination. If a witness is prepared to answer the questions.

❖ IF A CLIENT DOES NOT CLAIM PRIVILEGE

 The legal adviser cannot refuse to disclose

❖ Because the privilege attaches to the client, they are allowed to answer the questions if they want
to, of course, if they do not want to and they have been informed by the court of their right, they
can then say I invoke my right to privilege

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❖ SUCCESSORS IN TITLE

• Privilege may also be claimed by a client successor in title

 Beneficiaries under the client’s will

• In other words, if a client has died, there are certain beneficiaries who can claim the
privilege because of the always-privilege rule

THE RULE IS ONCE PRIVILEGED ALWAYS PRIVILEGED

❖ PRIVILEGE EXTENDS TO:

• Interpreters in a law firm

• Candidate attorneys in a law firm

• Secretaries in a law firm

• Other employees in a law firm

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 SCOPE OF RULE

P R O T EC TI ON

 Privilege protects the disclosure of communication between

 Legal adviser & agent
 client & a legal adviser

 privilege does not protect the disclosure of communications between

 client & independent 3rd party
 Legal adviser & independent 3rd party

 DISCLOSURE CANNOT BE PREVENTED

 If another person obtains knowledge of privileged communications

 If another person intercepts privileged documents

However, if the other person obtained the knowledge unlawfully or got possession unlawfully

• COURT CAN REFUSE THE ADMISSION OF DOCUMENTS/ COMMUNICATION

• ADMISSION IS REFUSED ON THE GROUNDS OF ITS DISCRETION TO EXCLUDE

UNFAIRLY OBTAINED EVIDENCE

P R IV IL EG E I S A F UN D AM EN T AL R IG H T

❖ Historically SA courts have held that legal professional privilege does not prevent privileged
documents from being seized by police under valid search warrant
❖ The Constitution & SAFATSA CASE recognized that privilege is a fundamental right
 A fundamental right that is essential for the proper functioning of a legal system

❖ BOGOSHI v VAN VUUREN

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T H E P OW ER OF T HE CO U RT

❖ If a party invokes legal professional privilege, the court automatically has the inherent power to
examine any document in respect of which privileges is claimed

PRESIDENT OF RSA v M&G MEDIA

❖ However, the court should be cautious in exercising its right to peek

 The court should only do so under special circumstances

❖ THE COURTS POWER TO EXTRACT

 There might be a document that has privileged information & information that's not
privileged, so the court has the power to exercise
 This basically means, the court has the power to extract the non-privileged information from
the documents

WAIVER

ONLY A CLIENT CAN PRIVILEGE BELONGS

BECAUSE
WAIVE PRIVILEGE ONLY TO A CLIENT

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3 T Y P E S O F W AI V ER S

1. WAIVER CAN BE EXPRESS

• ‘I waive privilege’

2. WAIVER CAN BE IMPLIED

• When a client behaves in such a way, that it is assumed that the client actually intends to
abandon privilege

• This is when a client willingly discloses privileged information to a 3 rd party

3. WAIVER CAN BE IMPUTED S v TANDWA

• In the case when fairness requires the court to conclude that privilege was abandoned
regardless of the client’s intention
 because it's only fair that the attorney accounts will be able to defend
themselves.

• For example, when the client alleges that there's a breach of duty by attorney, the privilege
is waived with respect to all communications on that issue because the attorney must be
able to defend themselves against the allegations made by the client

R E FR E S HIN G M EM OR Y

❖ PRIVILEGE FALS AWAY

 When a witness uses his statement to refresh recollection in the witness box
 Any privilege relating to the witness’s statement FALS AWAY

❖ PRIVILEGE REMAINS UNDISTURBED

 If a witness refreshes his memory while out of the witness box
 Privilege relating to the witness’s statement is not disturbed
 If a witness who is being cross-examined refreshes his memory during adjournment
 Privilege relating to the witness’s statement is not disturbed

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C R O SS - E X AM IN AT I ON

❖ An accused may not be cross-examined on any content that relates to confidential communication
made to a legal representative during the course of the trail

❖ An accused may not be cross – examined on any content that involves confidential
communication relating to the trail

OTHER PROFESSIONAL PRIVILEGES

C ON FLI C TIN G IN TE R E ST S

 Privilege involves two conflicting interests:

1. Society’s interest in preserving & promoting certain relationships

2. Interest of administration of justice to ensure all relevant evidence is before court

P R I OR T O TH E CON S T IT U TI ON

 Preference was given to number 2

 In other words, there was no privilege attatched to communication with certain people
 No privilege was attatched to communication involving
 Bankers
 Doctors
 Accounntants
 Clergy
 Journalists

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C ON S T IT U TI ON AL ER A

 The constitutional right to privacy allowes for certain professional communication to be

protected from disclosure
 S 14 (d)
 Everyone has the right not to have their privacy of communcations infringed
 For example, communication between doctor & patient may be regarded as personal &
private communication

 IF THE STATE CAN PROVE THAT THE REQUIREMENTS OF THE LIMITATION CLAUSE
HAVE BEEN MET, PRIVILEGE CAN BE DENIED

CONFLICT BETWEEN LEGAL PROFESSIONAL PRIVILEGE &

OTHER CONSTITUTIONAL RIGHTS

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 LITIGATION PRIVILEGE

SEPARATE & DISTINCT from legal

professional privilege
LITIGATION PRIVILEGE
NOT AN EXTENTION of legal proffessional
privilege

P R O T EC TI ON

R A T ION AL E

❖ The justification for litigation privilege lies in the adversarial notion that the lawyers brief is actually
sacrosanct
 in words that it's too important or valuable to be interfered with

❖ In the USA it's called the work product doctrine

 This doctrine rests on the belief that the adversarial system works best when neither party
can rely on the other to get evidence, but must instead Use their own initiative

R E Q UIR E M EN T S OF L IT IG A TI ON PR IV ILE G E

❖ There are two requirements

❖ These requirements are distinct from the requirements of legal professional privilege.

1. Communication between a client & 3rd party/ legal adviser & 3rd party

• Communication must be made for the purpose of being placed before a legal adviser so
that advise can be given

2. Communication must have been made AFTER THE LITIGATION WAS CONTEMPLATED
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Must be distinguished from EXCLUTIONARY Rules of
Evidence:
EXCLUSIONARY RULES of evidence render certain
types of evidence inadmissible as a result of the
inherent unreliability of such evidence, their lack of
probative value, and the potential prejudicial effect that
these types of evidence may have on the fairness of a
trial. These types of evidence is only EXCEPTIONALLY
ADMISSIBLE
PRIVATE
Legal practitioners in
personal capacity
Intention of client to communicate
with legal practitioner.
Purpose of obtaining legal
advice
Pending/Contemplated
litigation
Litigation privilege vs legal
professional privilege
Legal
SELF
INCRIMINATION
basis
Rationales for witness’s privilege
against self-incrimination
Application of witness privilege
against self-incrimination
In terms of
common law
ACCUSED’S RIGHT
TO SILENCE In terms of
the Constitution
Must be distinguished from EVIDENTIARY Rules:
EVIDENTIARY RULES concerns itself with the
competence and compellability of a witness to testify at
trial. An incompetent witness lacks the capacity to
testify, and a non-compellable witness has the right to
refuse to testify at trial. Generally, a witness who wants
to invoke a privilege must take to the witness box and
then raise the privilege on a question-by-question basis.
STATE
Common law
development
Privilege is an essen,al
eviden,ary rule because it
Post constitutional
is considered to be in the privilege
interests of society, that in
certain circumstances, an
Promotion of access to
individual, or the state, information
may lawfully refuse to Police
docket
disclose relevant evidence Police docket
at trial even if the privilege Consultations with state
privileged evidence is the witnesses
only evidence available to
a court Crime detection
services
Judicial
privileges
Other state privileges
Statutory
privileges
 Professional
privileges
OTHER
PRIVILEGE Marital
privilege

Statements made without prejudice

 - An individual who intends to claim a particular private privilege cannot refuse to attend court.
- A private privilege must be personally claimed, or waived, by the holder of such a privilege.
- A court cannot claim, or waive, a private privilege on behalf of the accused or witness.
- An individual must be fully aware at all times of the right to claim a particular privilege, and it is the
court’s duty to inform an unrepresented accused, or witness, of the privilege available to them. In
order to circumvent a private privilege
- it is possible to admit secondary, or circumstantial evidence, to prove relevant facts-in-issue
protected by privilege.

The intention of private privilege is to prevent the admission of relevant evidence at trial and
therefore private privilege is limited to the following categories;
(a) legal professional privilege or attorney-client privilege (which may be claimed in civil and criminal
proceedings);
LEGAL PRIVILEGE (b) a privilege against self-incrimination (which may be claimed by the witness, or an accused who
IN MORE DETAIL chooses to testify, when there is a reasonable risk of a criminal prosecution);
(c) an accused’s pre-trial and trial right to silence;
(d) other privileges, including marital privilege, parent-child privilege and statements made without
prejudice.

- It is in the public interest to ensure the efficient and proper functioning of civil and criminal
proceedings.
- In S v Safatsa, it was held that the interests of the administration of justice also require full,
confidential, honest and frank communications between a client and an attorney.
- Legal professional privilege is more than a mere evidentiary rule and amounts to a fundamental
right, or substantial rule of law, designed to reinforce the procedural rights set out in s 35 of the
Constitution and to ensure a fair trial process.
- Legal professional privilege may be claimed for any confidential communication, or
confidential document, made by a client to a legal professional acting in a professional
capacity for the purpose of a pending litigation, or merely for the purpose of obtaining legal
advice.

Requirements to establish legal privilege

 NB!
Scope extends to all employees of the law
firm, not only consulting legal practitioner.
NB!
- Privilege does not extend to
independent third parties, example,
inadvertently overhearing the
communication, intercepting, or making
copies of the communication, the
independent party cannot be prevented
from disclosing it.
- Where the communication comes into the
possession of a third party through an
unlawful act, a court may refuse to
admit it on the basis of its discretion to
exclude unfairly obtained evidence.
- A litigation privilege, separate from that
of legal professional privilege although
often misinterpreted as an extension of
legal professional privilege - applies to
contracted third parties or agents such
as private detectives, assessors,
accountants etc, who are employed to
generate information for the purpose
of litigation, but only when;
• the communication between the
client, the legal professional, and
the agent was made after the
contemplation of litigation, and;
• the communication was intended
to be submitted to the legal
professional.
Waiver by client:
Expressed: “I waive privilege”
Implied: client willingly discloses
privileged info to 3rd party
imputed: when client alleges breach
of duty by attorney.
1. Professional capacity:
- the legal professional must act in a professional capacity.
- A payment of a fee to an attorney, or advocate, in private practice is a good indication that this
requirement has been met, although a salaried in-house legal advisor may also act in a
professional capacity when giving legal advice to an employer.
- Factors that are good indicators are:
o Whether the legal professional was acting professionally,
o Whether the legal professional was best suited to give advice and to consult with the
client on the matter,
o The place where the consultation was held;
2. Communication must be made in confidence
- the client must intend that the communication be made to a legal professional in confidence.
- The nature of the communication is important in determining whether it was intended to be
confidential.
- If the communication is intended to be passed on to other parties, or other independent parties
are present during the making of the communication, then it is not made in confidence.
- Usually a communication is intended to be confidential when it is made in a private place such
as a legal professional’s office, and it is not usually interpreted to be confidential when made
in public place where it can easily be overheard
3. For the purpose of obtaining legal advice.
- The client must be seeking legal guidance and not some other form of advice.
- The privilege cannot be claimed where the client seeks legal advice in order to plan or further
a criminal or fraudulent activity;
4. In respect to a pending or contemplated litigation.
- A communication made directly between attorney and client for the purpose of legal advice
need not be connected to pending or actual litigation in order for the privilege to apply. However,
statements from, or communications to agents, and other third parties, will only be considered to be
privileged when made after litigation is contemplated.
5. The privilege must be claimed by the client.
- The privilege attaches to the client
- A court will not uphold the privilege unless it is claimed by the client.
- A legal professional claims the privilege on behalf of a client
- Where a client waives the privilege a legal professional is bound by such a waiver.
- The client’s waiver may be done directly or expressly, it may be implied or imputed,
- Must, at all times be made intelligently, knowingly and voluntarily.
- Refreshing of memory:
o Privilege pertaining to witness’s statement falls away when witness uses statement to
refresh recollection while in the witness box.
o Privilege NOT disturbed if witness refreshes memory while out of witness box.
o Privilege NOT disturbed if witness — who is being cross-examined — refreshes memory
during adjournment.
o Accused may not be cross-examined on content of confidential communication made to
legal representative during course of trial and which relates to trial.
 The Court’s powers in respect of A-C privilege
1. Seizure of confidential documents in terms of a valid police search and seizure warrant
• Can be claimed to prevent seizure of confidential documents in terms of legally obtained police search- and seize warrant = Fundamental right of the
accused
• A court has an inherent power, especially during the process of civil discovery, to examine any document for which a claim of privilege has been
made.
• A court’s discretion to examine any document in order to determine whether a claim of privilege is valid should be used sparingly and only in special
circumstances - where it is necessary and desirable for a just decision to be made, or some reason exists which casts doubt on a claim of privilege.

2. A court also has the power to cut out portions from a privileged document not covered by the privilege.
• Where legal professional privilege, as a fundamental right, is in conflict with other constitutional rights, a court must seek to resolve the conflict by
establishing a reasonable balance between the conflicting rights,
• In certain circumstances the privilege may clash with a person’s right to access information in terms of section 32 of the Constitution.
• Jeeva v Receiver of Revenue, Port Elizabeth,
o In certain circumstances, the privilege constituted a reasonable and justifiable limitation on a person’s constitutional right of access to
information.
o The bias in favour of the privilege was due to its unique importance to the entire administration of justice.
o There could be circumstances where the privilege should not take precedence over the constitutional right of access to information.
• Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions,
o Court examined the relationship between the privilege, the Constitution, and sections 28 and 29 of the National Prosecuting Authority Act
o Said sections permits the search of premises under investigation, and the seizure of objects, or the examination and the making of copies of
documents found on the premises.

- R v Camane, “no one may be compelled to give evidence incriminating himself/herself, either
before a trial or during a trial”.
- The witness’s privilege against self-incrimination, and the accused’s right to silence, is therefore
premised on the central notion that an individual is entitled to a fair trial.
- The witness privilege against self-incrimination allows a witness while in the witness box to
refuse to answer any questions which will incriminate himself/herself.
- This privilege is set out in the common law, statutory law, and is also defined in section 35(1)(a), (b)
and (c) of the Constitution
- The justifications for the existence of a privilege against self-incrimination are based on the following
rationales;
o a witness possess a natural privilege against self-incrimination, and an accused
possesses a natural right to silence, as a consequence of the presumption of
innocence which places the burden of proof on the shoulders of the prosecution to prove
guilt beyond a reasonable doubt;
 NB!
Non-party or witnesses privilege requirements:
• The non-party privilege must be expressly
invoked either by the witness or the witness’s
nominated legal representative.
• The privilege does not provide a blanket ban
against the taking to the witness stand and must
be claimed on a question-by-question basis.
• The invocation must be made timeously:
o at the point when the incriminating
question is asked and
o may not be made by a witness who has
already been convicted of the offence in
question, or
o where the crime has prescribed, or
o where the witness no longer runs the risk
of prosecution.
• The privilege may only be claimed by the
witness and does not extend to a spouse,
relative, or a third party.
• The court is obliged to warn the witness of the
privilege, and a failure to do so may render the
incriminating testimony inadmissible in any
future prosecution.
• The privilege is said to flow naturally from an
accusatorial type criminal justice system and
is an important instrumental element of the fair
trial principle.
• It is also said to protect the witness’s dignity,
privacy and personal autonomy during the
criminal process.
• The risk of self-incrimination must:
o be real,
o appreciable and
o may not amount to a mere remote and
naked possibility of legal peril.
• The determination of risk is a matter of judicial
discretion, and the court may test the validity
and substance of the witness’s claim.
• The privilege applies to:
o answers which may directly incriminate
the witness.
o answers, though innocent in themselves,
which may indirectly form a material link in the
chain of causal proof thereby ultimately leading
to incriminating evidence and the risk of a
criminal charge?
o the necessity to ensure that witnesses will come forward and testify freely with the
knowledge that they will not be forced to incriminate themselves;
o a constitutional right to privacy and dignity possessed by all persons subject to legal
proceedings;
o the public’s aversion to the inherent cruelty of compelling witnesses to incriminate
themselves while in the witness box thereby exposing them to a risk of criminal punishment;
and
o to prevent an improper investigation by law enforcement officials which may result in
unreliable evidence; and
o to guarantee the truth-seeking function of a court.
OTHER LEGISLATIVE PROVISIONS
- Section 203 of the Criminal Procedure Act:
o a witness in criminal proceedings may refuse to answer a question if the answer would expose
the witness to a risk of a possible future criminal prosecution.
o The South African privilege against self-incrimination may be invoked during a criminal, or a
civil trial, whenever there is a reasonable risk of a possible future criminal prosecution.
o The privilege applies to any person whether a suspect, accused, witness, citizen, legal or
illegal resident.
- Section 35(3) (j) of the Constitution
o accused’s right “not to be compelled to give self-incriminatory evidence”.
o The wording of section 35(3) awards a right against self-incrimination only to the arrested or
detained accused and specifically excludes the non-party witness.
o As a result of the narrow focus of section 35(3) on the arrested or detained accused, the non-
party witness privilege continues to be governed by common and statutory law.
o Serves as protection against unfair trial practices.
o If the right to a fair trial is not threatened then the right against self-incrimination cannot be
invoked.
o The individual, appearing before a non-criminal investigatory inquiry or tribunal, does not
possess a right against self-incrimination.
o The right against self-incrimination is only triggered once the suspect is arrested, charged or
detained.
o Ferreira v Levin NO:
§ an examinee before a liquidation inquiry may be compelled to produce direct self-
incriminatory evidence but
§ the evidence so obtained may not be used in a subsequent criminal trial.
§ The use-immunity is specifically limited to evidence directly obtained from the
examinee.
§ Whether the prosecution may make indirect or derivative evidentiary use of facts sifted
from the compelled testimony is a question to be decided on the merits of each
individual circumstance and examined against the standard of a constitutional
commitment to a fair trial
-

• Common-law = pre-trial silence by a
NB!
The failure to reveal an alibi may also
give rise to an adverse inference
which strengthens the prosecution’s
prima facie case at trial. However,
once the suspect has been arrested
and cautioned, a failure to deny a
charge, or to indicate a defence,
cannot amount to admissible evidence
and no adverse inference may be
drawn from such a failure at trial.
OTHER LEGISLATIVE PROVISIONS (CONTINUED)
- Sections 14 & 42 of the Civil Proceedings Evidence Act
• A witness in civil proceedings may invoke the privilege by refusing to answer questions which may
expose the witness to a risk of a criminal charge and/or the risk of a penalty (usually an administrative
penalty) or a forfeiture.
• Much wider than the privilege defined in section 203 of the Criminal Procedure Act.
• A witness may also claim the privilege at inquest proceedings.
- Section 203 of the South African Criminal Procedure Act
• May a juristic person (i.e. a company or corporation) may properly invoke the privilege in respect to
incriminating testimony which exposes the company to a probable future criminal prosecution?
• Usually in the form of documentary evidence or some form of electronic communication.
• The English Act allows for a claim of privilege by a juristic person – supported by ratio decidendi in
Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd and Rio Tinto Zinc Corporation
v Westinghouse Electric Corporation
• South African Bill of Rights which applies not only to the natural person but also to a juristic person.
• The right to silence = fundamental component of the accused’s right to be presumed innocent
until proven guilty.
• Right cannot be properly exercised unless the accused has a right to legal representation.
• In the absence of a legal representative the accused must be warned of:
o the right to silence; and
o the right not to be compelled to give incriminating evidence
• Applies at the pre-trial as well as the trial stage.
Pre-trial Trial
• The accused’s failure to testify cannot be used to draw a direct
suspect during the police interrogation inference of guilt
stage has no evidentiary probative value, • To do so would result in the accused being compelled to give
except: evidence
o when the suspect is unable to explain • NB!!! The right to silence applies only to testimonial-
a suspicious circumstance; communicative evidence and not to non-testimonial physical
o answers questions in a selective and evidence
evasive manner; or • Section 37 of the Criminal Procedure Act empowers police
o is unable to explain away the officers, or any court, before which criminal proceedings are
possession of stolen goods; and pending, to take fingerprints, palm prints or footprints from an
o failure by a suspect to reveal an alibi arrested or charged person, including the taking of photographs
defence during a police interrogation. request any prison medical officer, district surgeon, registered
nurse, or medical practitioner to take a blood sample or to
examine the body of a concerned person for any distinguishing
mark, characteristic, feature, condition or appearance.
 Bail applications
• The accused may:
o invoke the privilege against self-
incrimination during a bail application
prior to trial, but
o if the accused chooses not to testify, or
answer incriminating questions, he or she
may run the risk of having bail refused. I
• Section 60(11B)(c) of the Criminal Procedure
Act –
o allows for the admission at trial of the bail
record and all evidence given by the
accused at the bail application.
o The accused must make an informed
decision during a bail application whether
to speak or to remain silent.
Trial(continued)
• Does S37 constitute the infringement of the constitutional rights
of a person?
• R v Camane- approved of the distinction between testimonial
and non-testimonial evidence, noting that the privilege was
based on the exclusion of all testimonial evidence obtained by
state compulsion, and that non-testimonial, or passive physical
evidence, such as bodily complexion stature, marks or features
were excluded from the ambit of the privilege.
• Seetal v Pravitha, drew a firm bright line between
communicative self-incriminatory evidence covered by the
privilege and non-communicative self-incriminatory evidence
which was not covered by the privilege.
• S v Huma & another - none of the constitutional rights to
privacy, dignity, bodily integrity, or the right not to give self-
incriminatory evidence, were violated by the taking of non-
communicative and passive body samples. In essence, section
37 did not unreasonably violate the constitutional rights of a
person, especially when these personal rights were balanced
against the state’s duty to ensure the effective administration of
the justice system.

1. Professional privilege
• Privilege involves two conflicting interests:
o society’s interest in preserving and
o promoting certain relationships
• it is in the interest of administration of justice to ensure that all relevant evidence is before court
• Prior to Constitution = no privilege attached to communication with:
o bankers (although only have to produce books on court order)
o doctors
o accountants
o clergy
o journalists
• Constitutional era = Certain professional communications may be protected from disclosure by
constitutional right to privacy:
o S 14(d): everyone has right not to have privacy of communications infringed (E.g., communication
between doctor and patient may well be regarded as personal and private communication)
• However, privilege may be denied if state can establish that requirements of limitations clause have been met.
2. Marital privilege:
• S 198(1) of the Criminal Procedure Act, and S10 of the Civil Proceedings Evidence Act,
• Marital privilege exists between spouses who may refuse to disclose any communication from the other spouse
made during the course of a marriage.
• Existence of marriage (or putative marriage) = requirement
• In S 198(2) the privilege exists in respect to:
o all communications made during the course of a marriage and
o all communications that continue after divorce with regard to all communications made while the marriage
was in existence (even communications made between spouses during the course of a putative marriage are
protected);
o BUT communications made between ex-spouses after a divorce are not protected.
o Widow may not refuse to disclose a communication from a spouse made during the existence of the
marriage.
• Section 199 of the Criminal Procedure Act, and section 12 of the Civil Proceedings Evidence Act:
o permits a spouse to refuse to answer any question during legal proceedings if the other spouse is entitled to
claim a privilege of any kind.
o For example, a spouse may refuse to answer a question on the ground that it may incriminate the other
spouse – a refusal based on the other spouse’s privilege against self-incrimination.

3. Statements made without prejudice:

• A statement made:
o without prejudice,
o either expressly or impliedly,
o during the course of a bona fide negotiation for the settlement of a dispute
o may not be disclosed in evidence at trial
o without the consent of both parties.
• The reasons for the existence of this privilege are based on:
o the express or tacit consent of the parties
o that they will respect the privilege,
o as well as public policy considerations
o which gives parties the freedom to settle disputes
o without the fear that what they have said during a negotiation
o may be held against them at trial.
• The privilege applies, irrespective of whether the actual words “without prejudice” are used, when:
o the statement forms part of a bona fide attempt to negotiate a settlement,
o the statement is directly or indirectly connected to the dispute.
• Statements which are irrelevant or entirely unconnected to the dispute are not protected,
• The privilege continues to exist until the dispute is finally settled.
• Once the dispute is concluded the reasons for the privilege fall away, and a court may examine any document in
order to determine whether privilege attaches to it.
4. Marital privilege:
• S 198(1) of the Criminal Procedure Act, and S10 of the Civil Proceedings Evidence Act,
• Marital privilege exists between spouses who may refuse to disclose any communication from the other spouse
made during the course of a marriage.
• Existence of marriage (or putative marriage) = requirement
• In S 198(2) the privilege exists in respect to:
o all communications made during the course of a marriage and
o all communications that continue after divorce with regard to all communications made while the marriage
was in existence (even communications made between spouses during the course of a putative marriage are
protected);
o BUT communications made between ex-spouses after a divorce are not protected.
o Widow may not refuse to disclose a communication from a spouse made during the existence of the
marriage.
• Section 199 of the Criminal Procedure Act, and section 12 of the Civil Proceedings Evidence Act:
o permits a spouse to refuse to answer any question during legal proceedings if the other spouse is entitled to
claim a privilege of any kind.
o For example, a spouse may refuse to answer a question on the ground that it may incriminate the other
spouse – a refusal based on the other spouse’s privilege against self-incrimination.

5. Statements made without prejudice:

• A statement made:
o without prejudice,
o either expressly or impliedly,
o during the course of a bona fide negotiation for the settlement of a dispute
o may not be disclosed in evidence at trial
o without the consent of both parties.
• The reasons for the existence of this privilege are based on:
o the express or tacit consent of the parties
o that they will respect the privilege,
o as well as public policy considerations
o which gives parties the freedom to settle disputes
o without the fear that what they have said during a negotiation
o may be held against them at trial.
• The privilege applies, irrespective of whether the actual words “without prejudice” are used, when:
o the statement forms part of a bona fide attempt to negotiate a settlement,
o the statement is directly or indirectly connected to the dispute.
• Statements which are irrelevant or entirely unconnected to the dispute are not protected,
• The privilege continues to exist until the dispute is finally settled.
• Once the dispute is concluded the reasons for the privilege fall away, and a court may examine any document in
order to determine whether privilege attaches to it.
 • Section 202 of the Criminal Procedure Act and section 42 of the Civil Proceedings Evidence Act.
o These provisions allow state privilege to be claimed in respect to police crime prevention strategies,
police investigatory methods, and the identity of police informers.
o disclosure of sensitive state information concerning state security, military secrets, high government
policy, international diplomatic initiatives, and the proper functioning of state organs, etc, would be
harmful to the national security interests of the country, and therefore the need to preserve the
secrecy of state information by withholding evidence from a court (thereby depriving the court of
relevant evidence) will take precedence over the equally important interest in ensuring the fair
administration of justice.
• Procedural differences between state and private privilege;
o private privilege allows for the admission at trial of secondary and circumstantial evidence (i.e. copies
of privileged documents, or oral evidence) of the privileged information, whereas state privilege does
not;
STATE PRIVILEGE o private privilege must be claimed by the holder of the privilege, a court cannot claim the privilege on
behalf of the holder, whereas state privilege may be claimed by a court mero motu; and
IN MORE DETAIL o a party to whom private privilege attaches may voluntarily waive privilege, but state privilege can only
be waived on the express authority of the Minister of the concerned state organ.

• Section 32(1) of the Constitution

o awards everyone a right of access to,
§ any information held by the state, and
§ any information held by a private person that is required for the exercise or protection
of any right.
• The Promotion of Access to Information Act 2 of 2000 (PAIA) gave effect to section 32(1).
• In order to access information in terms of the constitutional right a party must institute legal
proceedings by means of the enforcement mechanisms set out in PAIA.
• The important provisions of PAIA are,
o section 3 = PAIA applies to public or private records containing any form of recorded
information in the control or possession of a public or private body,
o section 5 = PAIA applies to the exclusion of any other legislation that prohibits or
restricts the disclosure of a public or private record, and that is materially
inconsistent with the object or provisions of PAIA,
o section 11 = a requester must be given access to the records of a public body if the
requester has complied with all the procedural requirements set out in PAIA, and
access to that record does not fall within the parameters of any ground of refusal set
out in chapter 4 of PAIA,
o chapter 4 = circumstances and grounds on which access to certain types of records
must be refused or may be refused, subject to the overarching provisions of section
46.
• A police docket is divided into three parts:
o section A – containing witness statements, documentary evidence and expert reports,
o section B – memoranda and other reports, and
o section C – the investigation diary.
• Pre-constitution: Followed blanket privilege approach =
o The blanket privilege usually applied to section A but could be extended to the other sections in the
docket.
• Blanket approach no longer followed strictly, adopted more flexible approach
• The principles which define the nature and scope of docket privilege have been set out by the
Constitutional Court in Shabalala v Attorney-General of the Transvaal
o Based on balancing test between interest of accused to a fair trial vs state interest in protecting the
ends of justice, on a case by case basis.
o The accused’s interest in obtaining access to a docket may be based on the following
considerations;
§ to enable an accused to properly prepare a defence; to properly challenge the state’s evidence;
to identify defence witnesses able to contradict witnesses;
§ to properly prepare for cross-examination of state witnesses;
§ to identity weaknesses and contradictions in the state’s evidence, etc.
§ The state interest in denying access to a docket may be based on;
§ a risk that a disclosure of witness statements would reasonably result in the intimidation of
witnesses’,
§ the disclosure of state secrets, or
§ the identity of informers, or
§ impede the proper ends of justice, etc.
• The state bears the onus of objectively satisfying a court that there is a reasonable risk that access
would impair the interests of justice.

Shabalala v A)orney-General of the Transvaal

The principles set out in Shabalala are;
(i) an accused should be entitled to access documents in a docket which are exculpatory, or
which are prima facie likely to be helpful to the defence, unless the state can in the
circumstances justify a refusal of such access on the grounds that it is not justified for the
purpose of a fair trial;
(ii) an accused’s right to a fair trial includes access to witness statements (section A of the
docket) and any contents of a docket (i.e. sections B and C) as are relevant to enable an
accused to properly exercise that right, unless the prosecution can justify a denial of access
on the ground that it is not justified for the purposes of a fair trial;
(iii) the state is entitled to refuse access to any particular document in a docket on the grounds
that it is not justified for the purpose of a fair trial, or there is a reasonable risk that access to
the document would disclose the identity of an informer, or state secrets, or lead to the
intimidation of witnesses, or otherwise prejudice the proper ends of justice;
(iv) even where the state has satisfied the court that the denial of access to information in a
docket is justifiable, the court retains a discretion to grant access by balancing the degree of
risk involved in attracting the potential prejudicial consequences sought to be avoided by the
prosecution (if such access is permitted) against the degree of the risk that a fair trial may
not ensue for the accused (if such access is denied).

Consultations with a state witness:

According to Shabalala an accused may consult with a state witness as follows;
(i) an accused person has the right to consult a state witness without prior permission of the
prosecuting authority where the right to a fair trial will be impaired;
(ii) the accused, or legal representative, should approach the prosecuting services for consent
to hold such a consultation. If consent is granted a prosecution official is entitled to be present
and to record the consultation. If consent is refused an accused is entitled to approach a
court for permission to consult;
(iii) an accused cannot compel a consultation with a state witness if the witness declines to be
consulted, or there is a reasonable risk that such a consultation might lead to the intimidation
of a witness, the tampering with a witness’s evidence, or the disclosure of state secrets, or
the identity of an informer, or might otherwise prejudice the proper ends of justice.
 • The purpose of this type of public privilege is to protect police inves4ga4ng techniques,
procedures, and the methodology of crime detec4on. The privilege has evolved to prevent the
disclosure at trial of;
o communica4ons between police officials which relate to the methods used in a criminal
inves4ga4on; and,
o communica4ons made between informers and their police handlers in order to prevent the
public exposure of the informer’s iden4ty.
• Court assesses the crime detec4on privileges it must do so by balancing the accused’s need for a
fair trial against the legi4mate interests of the state in enhancing and protec4ng the ends of jus4ce
(Shabalala v A)orney-General, Transvaal, and Els v Minister of Safety and Security

Judicial proceedings:
• judges as a rule of prac4ce cannot be compelled to give evidence of a maCer over which they have
presided.
• Judges do remain compellable witnesses in law, and may be subpoenaed to appear in civil
proceedings but only with the leave of a court.
• Magistrates can be called to give evidence about proceedings before them.
• However, although compellable, it is undesirable for aCorneys and advocates to give evidence about
proceedings in which they were engaged especially when such evidence can be provided by other
witnesses.
Statutory privileges:
• Sec4on 4(1) of the Income Tax Act of 1962 prevents the disclosure of the private financial affairs of
a tax payer by Inland Revenue officials, and leave of a court must always be obtained to produce
these financial documents at trial.
• Sec4on 38(3) of the Financial Intelligence Centre Act 38 of 2001 (FICA) protects the iden4ty of
persons at trial whose duty it is to report suspicious banking transac4ons and suspicious electronic
transfers of money to or from the Republic.