SA Confidential: Discovery and privilege in South Africa

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30 Sep 2012

Privileged and confidential information are not one and the same thing. Communication between an attorney and his client is generally protected by legal privilege, but the same principle doesn’t necessarily apply to legally privileged documents.

For any company to function properly, it must be able to keep certain communications and information out of the public domain. The right to privacy ensures that an individual’s personal affairs are not unnecessarily made public. But privacy is not an absolute right and the consequence of pursuing court proceedings is that information or documents that might otherwise have been kept private, could be exposed to public scrutiny.

It can happen that documents will have to be disclosed in court proceedings, even if they are marked private or confidential.

Once proceedings have been initiated through South African courts, the words confidential or private carry little or no weight in determining whether or not a document is kept from scrutiny by third parties.

Unless the court directs otherwise, all proceedings conducted through our courts are conducted in an open and public manner. All pleadings and documents filed during the course of proceedings are deemed to be ‘public documents’ once that matter is called in open court. Because of this, parties often choose to arbitrate their disputes. In general, arbitration proceedings are conducted in private and all papers and documents filed during the course of the arbitration proceedings are kept from public scrutiny.

The South African legal system is structured to avoid ‘surprises’ at the hearing of any matter. For this reason, the legal process of providing ‘all relevant documents’ to a party’s opponent (known as the discovery procedure), obliges both parties to discover all documents “relating to any matter in question in such action”. This includes tapes and other electronic recordings.

There are some exceptions to this principle. For example, documents protected by legal privilege will remain private. Legal privilege is a specific term given to documents or information which our law recognises as worthy of protection against public disclosure. However, a court will not raise privilege on behalf of a litigant; it is up to a party seeking legal privilege protection to claim it.

Documents for which legal privilege may be claimed include those that might incriminate or expose someone to the risk of penalty or forfeiture, communications between spouses, and communication that is by its very nature, ‘without prejudice’ (whether marked as such or not). Communications between attorneys and their clients are generally protected from disclosure by legal privilege. But the list of documents for which legal privilege can be raised is not exhaustive. If a document satisfies the requirements for legal privilege, a litigant may invoke the protection that privilege affords. All communications between clients and their legal advisers are protected by legal privilege where they are made in confidence, for the purpose of obtaining legal advice or in the process of or in contemplation of litigation and are not obtained for the purpose of committing a crime or fraud. The legal privilege applies to communications between both in-house legal advisers and practicing attorneys.

If a party to a court proceeding knows of the existence of a document in its opponent’s possession that has not been discovered, that party is entitled to request the court to compel its opponent to discover the document. Disclosure of that document, if relevant to the matters in issue, will be compelled unless the document is properly subject to legal privilege. If legal privilege does not apply, then the party will be obliged to discover the document in question and so, introduce it into the public domain.

Clearly, a proper understanding of the difference between privileged and confidential information is important and the position should be carefully evaluated before initiating court proceedings.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
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