By Sanette Viljoen
A misperception exists that everything I tell my attorney is protected by the privilege between him and me. There are, however, situations when legal professional privilege does not apply in South Africa.
The concept of privilege
Attorney-client privilege is a lawful concept that enables an attorney to keep secret communication with his or her client. An opposing legal team cannot demand access to this information, neither through disclosure nor by asking an attorney to attest under oath. Communication protected by privilege cannot be used a proof or testimony in a trial.
What are the conditions for the application of attorney-client privilege?
One-on-one communication between a client and his or her attorney is regarded as privileged when:
- it is intended for giving or receiving legal advice;
- it is with litigation in mind or in the process of litigation;
- it is given by an internal legal adviser or practitioner;
- it is confidential; and
- privilege is demanded.
Attorney-client privilege cannot be used to get advice for committing a crime or fraud or to conceal a crime or fraud. For instance, privilege cannot be claimed when a client asks his or her attorney how evidence of a crime can be destroyed.
The right to attorney-client privilege belongs to the client ad therefore the client’s intent determines whether privilege applies. However, privilege should rather be demanded.
To demand privilege, means that it is essential for a client to contrive confidentiality by claiming privilege for the communication between the attorney and the client. Written communication, for instance, whether it is an email or a document, must state that the overriding purpose of the communication is to obtain legal advice. In this way you claim privilege.