Whereas the judgment deals with the legal professiona, the principles of privilege should also inform the relationship between planners and client.
LEGAL PROFESSIONAL PRIVILEGE
Just the Two of Us
“I’ll tell you a great secret, my friend. Don’t wait for the last judgment. It happens every day.”
– Albert Camus (1913 – 1960)
JUDGE ASHLEY Binns-Ward in the Cape Town High Court has set out the principles relating to legal professional privilege and legal advice privilege in particular. Legal advice privilege covers communications between lawyers and their clients whereby legal advice is sought or given. It is a general rule of our common law which provides that communications between a legal advisor and his or her client are protected from disclosure provided that certain requirements are met.
The requirements are that:
• The legal advisor must have been acting in a professional capacity at the time;
• The advisor must have been consulted in confidence;
• The communication must have been made for the purpose of obtaining legal advice;
• The advice must not facilitate the commission of a crime or fraud;
• The privilege must be claimed.
The judge quoted an Australian judgment which has been accepted in our courts as well:
“Legal professional privilege extends beyond communications made for the purpose of litigation to all communications made for the purposes of giving or receiving advice and this extension of the principle makes it inappropriate to regard the doctrine as a mere rule of evidence. It is a doctrine which is based upon the view that confidentiality is necessary for proper functioning of the legal system and not merely the proper conduct of particular litigation.”
The judge pointed out that at one stage the privilege was even considered to be that of the lawyer rather than of the client. He referred to a decision of the English courts, which set out the position:
“Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and, if proceedings begin, for representation; it springs no less from the advantages to a society which involves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.”
A Company and Others v. Commissioner, South African Revenue
Service 2014 (4) SA 549 (WCC).
Source: MacRobert Law Letter
30 January 2015