The general rule in South African law is that communications between a lawyer and their client, as well as documents prepared by lawyers for their clients, may not be disclosed without the client’s consent. Legal professional privilege (or, simply, “privilege”) may be invoked if the communication or document in question was (i) made to a legal adviser (ii) acting in a professional capacity, (iii) in confidence, (iv) for the purpose of pending litigation or for the purpose of obtaining professional advice. The privilege relates to communications of both an oral and a written nature.

A litigant is not obliged, either before or during a trial, to disclose any document brought into existence for the purpose of the litigation. This includes communication between a party's legal adviser and expert witness, instructions given to the expert witness and interim reports compiled by the expert witness in forming their opinion (Mason v. Mason NO). Such privilege can extend to parts or portions of documents, which may be redacted (A Company v. Commissioner, South Africa Revenue Services).

A statement made by a party involved in a dispute which is genuinely aimed at achieving a compromise is protected from disclosure. These statements are usually marked “without prejudice” and can only be accepted into evidence with the consent of both parties. Recently, the court held that, depending on the surrounding circumstances, such an offer can be taken into consideration in determining whether punitive costs should be awarded (AD v. MEC for Health and Social Development, Western Cape).