Inadvertent disclosure

The principle underpinning privilege in South African law is confidence, and “when confidence ceases, privilege ceases” (Bank of Lisbon and South Africa Ltd v. Tandrien Beleggings (Pty) Ltd and Others (2)). Thus, where a third party acquires knowledge of a privileged communication, or possession of a privileged document, there is no rule at common law to prevent them from disclosing its contents, and privilege may therefore be defeated. It is only if such knowledge or possession came about as a result of an unlawful act (e.g., theft), that a court may refuse admission of such evidence by use of its inherent discretion to exclude unfairly obtained evidence.

In a recent case, the court emphasized the distinction between legal advice privilege and litigation privilege (South African Airways Soc v. BDFM Publishers (Pty) Ltd and Others). The court stated that while the right to legal professional privilege was a necessary means of protecting South Africa’s adversarial justice system, it was not an absolute right. The client invoking the privilege would be invoking a “negative right”, making legal advice provided to them by a legal practitioner inadmissible as evidence. The court was of the opinion that this right could not be interpreted as a positive right, which would otherwise entitle a client to suppress publication once confidentiality has already been breached.

Litigation privilege

Since it is in the public interest to facilitate the obtaining and preparation of evidence, where communications are made between the legal adviser or client and a third party, privilege (commonly known as “litigation privilege”) will extend to such communications if: (i) the communication was made for the purpose of being submitted to a legal adviser; and (ii) the communication was made after litigation was contemplated (General Accident, Fire and Life Assurance Corporation Ltd v. Goldberg). It is only in these circumstances that a privileged document may be furnished to a third party without losing protection.