A recent decision dealing with legal professional privilege is that of Thint (Pty) Ltd v. National Director of Public Prosecutions and Others; Zuma v. National Director of Public Prosecutions and Others. The Constitutional Court held that where a search pursuant to a search warrant is conducted at an attorney’s office, there is a much greater risk of invasion of legal professional privilege than when the search is conducted elsewhere. In this case, however, the scope of the search was fairly narrow and, as a result, the ordinary concerns relating to the seizure of privileged materials in searches of attorneys’ offices did not arise. The court found that no actual prejudice to the applicants had been established, and that their claim was based on the hypothetical ground that there was a possibility that privileged documents may have been seized.

The recent enactment of the Protection of Personal Information Act has resulted in the codification of some common law principles and new obligations on parties processing personal information. Under the new statute, communication between a legal adviser and their client is considered to be exempt from a warrant issued by the information regulator, subject to the legal advice being in respect of the client’s obligations, liabilities or rights. In addition, communication between a legal adviser and their client and any other person, made in contemplation of legal proceedings, is considered exempt. It further prohibits the information regulator from requesting privileged information from a responsible person, such as a legal adviser.

Finally and most recently, in the context of a widely reported case of alleged corporate fraud (Tiso Blackstar Group and Others v. Steinhoff International Holdings N.V.), two media houses successfully applied to court for access to certain accounting reports and records of Steinhoff. When allegations of accounting irregularities arose, Steinhoff appointed an independent accounting firm in South Africa to investigate. The media houses approached the accounting firm directly to request access to its report under the Promotion of Access to Information Act. The firm refused, relying on legal privilege, along with other grounds. The court granted access on a number of grounds, including a rejection of the claim of privilege in the absence of evidence that the report was commissioned in anticipation of contemplated litigation. The judgment will be the subject of an appeal but remains important in considering the balance between the media’s right to information in the public interest and the necessary facts that a party will be required to prove in order to successfully claim privilege.