The State v Green

• Jurisdiction: South Africa
• Judge: Williamson JP
• Judgment Date: 15 September 1961
• Citation: 1962 (3) SA 899 (D)
• Court: Durban and Coast Local Division

E Williamson, J.P.:

The first thing I wish to do is to give my reasons for a decision made during the course of this trial in relation to the admission of certain evidence. Evidence had been given by the witness Fainstein that a certain document, being minutes of a meeting of International Trawlers (Pty.) Ltd., had been handed to him at a certain F stage by the accused. Later in the case, when the accused was giving evidence he said that this particular document had been prepared by Fainstein with him, the accused; these minutes were prepared and were then to be handed over by Fainstein to D/Sgt. Jurgens, in charge of the investigations in this case. It was a direct statement, then, charging Fainstein with being a party to the preparation of some minutes about G two years after the meeting which is alleged to have taken place and after the close of the preparatory examination. I then asked the witness a question - I interrupted the examination and put the question to him whether he had informed his counsel of the fact that Fainstein had prepared this document. That question was put because the suggestion H that Fainstein had prepared that minute had never been made to Fainstein in cross-examination by the accused's counsel. Objection was taken to the question on the ground that it was intended to disclose a privileged communication between attorney and client or client and counsel. At the request of Mr. Muller, for the accused, it was pointed out to the accused that the statement might be privileged

Williamson JP

and that the question was whether or not he wished to waive his privilege if it were a privileged statement. He did not wish to waive the privilege, and I thereafter ruled that the question could be asked, that the answer was not a disclosure of a privileged communication A between client and attorney, and I said I would give my reasons later. The point was argued fully by counsel for the accused. I have had the advantage of reading some of the authorities and those to which I was referred by Mr. Muller, and the reason why I came to the conclusion I did is shortly as follows:

First of all, it must be realised that the privilege is not one which B covers every communication between a client and his legal adviser. The scope of the privilege is adequately and briefly defined in Halsbury's Laws of England, 3rd ed. vol. 15 p. 421, para. 755. It is set out in these words:

'Confidential communications passing between a client and his legal C adviser and made for the purpose of obtaining or giving legal advice, are, in general, privileged from disclosure. The privilege is available in respect of the oral testimony of witnesses, and the principles which determine whether a communication is or is not privileged are the same for both oral and written communications. Confidential communications other than those passing between a client and his legal adviser are not privileged from disclosure.'

D The principle is set out in other works to which I will refer. The terms of the description of privilege do not differ very materially in any of these works.

Particular reference was made by Mr. Muller to Phipson on Evidence, 9th ed. p. 203, and reference can also be made to May South African Cases on Evidence, 3rd ed., paras. 501 to 506, to Gardiner and Lansdown, 6th ed. E vol. 1 p. 515, and for the fullest...