The Hidden Line: Legal Privilege and the Fine Art of Waiver

Legal Advice Privilege and Litigation Privilege

In Anglo American South Africa Limited v Kabwe and 12 Others (2020/32777) [2021], the court explained that there are two main types of legal privilege: legal advice privilege and litigation privilege.

Legal Advice Privilege

To claim legal advice privilege, the following requirements must be met:

• The communication must constitute legal advice
• The advice must be given by an attorney
• The communication must be made in confidence
• Privilege must be claimed by the client

Litigation Privilege

Litigation privilege protects communications between litigants or their attorneys and third parties, provided those communications are made for the purpose of actual or anticipated litigation.

To qualify, two criteria must be satisfied:

• The document or communication must have been created for submission to an attorney for legal advice
• Litigation must have been pending or reasonably contemplated at the time

Distinctions Between the Two

The courts have identified important differences between legal advice privilege and litigation privilege:

• Legal advice privilege applies only to confidential communications between client and attorney
• Litigation privilege applies to third-party communications, including non-communicative documents
• Legal advice privilege is narrower and restricted to advice, while litigation privilege includes material created in preparation for litigation

Circumstances Under Which Privilege May Be Waived

Legal privilege can be waived either expressly or through implied conduct.

Implied or Imputed Waiver

In Contango Trading SA v Central Energy Fund SOC Ltd (533/2019) [2019], the court confirmed that there is no practical difference between implied waiver and waiver imputed by law.

A waiver arises when:

• The disclosure of privileged information is objectively inconsistent with the intention to maintain confidentiality
• The disclosure would unfairly fetter the opponent’s ability to respond to the case or defence advanced in reliance on that information

Case Example: MEC for Health, North West Province v Dumisani

In MEC for Health, North West Province v Dumisani, MR obo BM (319/2016) [2019], the court held that the test for implied waiver is objective, and that even inadvertent or mistaken disclosure can lead to a waiver of privilege.

The court explained that:

• Mere reference to a document in a pleading may be insufficient to constitute waiver
• However, disclosure of full contents can amount to waiver
• Determining waiver is a matter of degree and requires a value judgment by the court

Importantly, once privilege is waived, it typically applies to the entire document, unless the document contains severable parts.

Conclusion

Legal privilege plays an essential role in South African legal proceedings by safeguarding the confidentiality of attorney-client communications and materials prepared in anticipation of litigation. As illustrated by case law, however, privilege can be lost through express consent, conduct inconsistent with confidentiality, or inadvertent disclosure.

Attorneys and litigants must remain alert to how documents are used and referenced in litigation. Once privilege is lost, the entire content of the document may become accessible to the opposing party.

The principle remains: once privileged, always privileged, unless the client waives it.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.