Privilege belongs to the client, and must be claimed by the client in order to be effective. Although the legal adviser may claim privilege on their client’s behalf, they act as the client's agent in so doing. Accordingly, a copy of privileged documentation held by the client, as the notional principal in the attorney-client relationship, would be afforded full protection in terms of legal professional privilege.

Yes, but only where an in-house lawyer acts in a professional capacity; a question of fact to be determined in each case.

Recent judgments have drawn on English authorities supporting the view that legal professional privilege also attaches to communications between an employer and its salaried in-house lawyers in circumstances where the communication would otherwise meet the test for claiming privilege, there being no justifiable basis in law to limit the scope of privilege to clients and lawyers in private practice.

Privilege extends to interpreters, articled clerks, secretaries and other employees of the law firm (S v. Mushimba). Privilege would also extend to internal communications between in-house lawyers.

To the extent that a foreign lawyer is acting in a professional capacity, and the communication was made by the client in confidence for the purposes of pending litigation or obtaining professional advice, the communication will be privileged, and the same principles in relation to privilege will apply as in relation to domestic legal professionals and in-house lawyers.

As it stands, professional privilege in South Africa pertains only to the lawyer-client relationship and does not extend to any other professional relationships for any purpose whatsoever (Trust Sentrum (Kaapstad) (Edms) Bpk v. Zevenburg). It has been held, in particular, that privilege does not extend to accountants (Jeeva v. Receiver of Revenue, Port Elizabeth), although submissions have been made to the South African Revenue Service that legal professional privilege should be extended to chartered accountants.

In terms of section 42A of the Tax Administration Laws Amendment Act 2015, a taxpayer claiming legal professional privilege will have to prove the validity of such privilege by providing a list of extensive information which includes – but is not limited to – a description of each and every document not provided and full details of the legal practitioner.