Comment: Should legal professional privilege be limited to exclude in-house lawyers under South African criminal law?

• Jurisdiction: South Africa
• Pages: 42-51
• Published date: 16 August 2019
• Citation: (2011) 24 SACJ 42
• Date: 16 August 2019
• Author: Wium de Villiers

Should legal professional privilege be

limited to exclude in-house lawyers

under South African criminal law?

WIUM DE VILLIERS

University of Pretoria

1. Background and rationale for the privilege

Many jurisdictions includi ng the member states of the European

Union, the United States of America, Canada, England and South Africa

provide for legal professional privilege.

These jurisdictions share a common rationale wit h regard to the

protection of communication s between lawyer and client. The r ation-

ale recognises the nature of the legal profession and its contribution to

the rule of law and applies to both crim inal and civil law.

Heydon explains the rationale for the principle of legal professional

privilege under English law as follows (JD Heydon & M Ockelton Evi-

dence: Cases & Materi als 4ed (1996) 417):

‘Men are unequal in wealth, power, intelligence and capacity to handle their

problems. To remove this inequity and to permit disputes to be resolved in

accordance with the strength of the parties’ case, lawyers are necessary, and

privilege is required to encourage resor t to them, and to ensure that all rel-

evant facts will be put before them, not merely those the client thinks favour

him. If lawyers are only told some of the facts, clients will be advised that

their cases are better than they actually are, and will litigate instead of com-

promising and settling. Lawyer-client relations would be full of “reserve and

dissimulation, uneasiness, and suspicion and fear” without the privilege; the

conf‌idant might at any time have to betray conf‌idences.’ [Even though Hey-

don uses the example of litigants in civil law, the rationale is similar and easy

to understand in the criminal context.]

In S v Safatsa 1988 (1) SA 868 (A) at 886A-E, the South Africa n Appel-

late Division (as it then was) held that the conf‌lict between revealing all

relevant information and attorney-client privilege had been resolved in

favour of conf‌identialit y of the communications. T he court explained

that this served the public interest bet ter because of the operation of

the adversary system upon which we rely in pursuit of justice.

Under the adversarial system the par ties to the dispute are essen -

tially respon sible for the preparation and presentation of their cases.

The verdict in the trial comes from an adjudication of the presented

issues. Consequently each party (in the crimin al context, the accused)

must have a proper chance to prepare and present their case. The

42

(2011) 24 SACJ 42

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