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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