Lex Mundi Global Attorney-Client Privilege Guide |
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South Africa |
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| (Africa) Firm Bowmans Updated 07 May 2020 | |
| Is the ACP recognized in your jurisdiction? | Yes |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | N/A |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | No such distinction is made.
Government authorities are not entitled to require disclosure of attorney-client communications and legal work product. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | Our courts have not as yet formulated a test. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | There is no established higher burden, but in-house counsel may be required to establish that they were acting in that capacity when giving advice, and not, for example, communicating in their capacity as a board member or as a risk or other manager. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | N/A |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | N/A |
| Is the common interest doctrine recognized in your jurisdiction? | It has not expressly been recognized in any court decision, but our courts are likely to follow the English law in regard to questions of privilege. We understand that English law recognizes common interest privilege, and the principles of English law applicable to this form of privilege are likely to be followed. |
| How is the doctrine articulated in your jurisdiction? | See the last response. |
| Must a common interest agreement be in writing? | See the previous response. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | It is permitted and there are no professional rules. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | The exception is a common law one, but has been confirmed by the Constitutional Court in Thint v National Director of Public Prosecutions & Others / Zuma v National Director of Public Prosecutions |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes |
| What are the elements of the protection in your jurisdiction? | Litigation privilege protects communications between a litigant or its legal advisor and third parties, if such communications are made for the purpose of pending or contemplated litigation. It applies typically to witness statements prepared at a litigant's instance for this purpose. There are two established requirements: the first being that the document must have been obtained or brought into existence for the purpose of a litigant's submission to a legal advisor for legal advice; and the second being that litigation was pending or contemplated as likely at the time. |
| Does your jurisdiction recognize an accountant-client privilege? | No |
| Does your jurisdiction recognize a mediation privilege? | Yes, where mediations take place under statute, the particulars of negotiations which took place during the mediation proceedings before a mediator are privileged. In other mediations, the parties will usually sign an agreement that all information exchanged relating to the mediation is without prejudice and privileged, and therefore not admissible as evidence or disclosable in any future proceedings. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes |
Lex Mundi Global Attorney-Client Privilege Guide
Yes
N/A
No such distinction is made.
Government authorities are not entitled to require disclosure of attorney-client communications and legal work product.
Our courts have not as yet formulated a test.
There is no established higher burden, but in-house counsel may be required to establish that they were acting in that capacity when giving advice, and not, for example, communicating in their capacity as a board member or as a risk or other manager.
N/A
N/A
It has not expressly been recognized in any court decision, but our courts are likely to follow the English law in regard to questions of privilege. We understand that English law recognizes common interest privilege, and the principles of English law applicable to this form of privilege are likely to be followed.
See the last response.
See the previous response.
It is permitted and there are no professional rules.
No
Yes
The exception is a common law one, but has been confirmed by the Constitutional Court in Thint v National Director of Public Prosecutions & Others / Zuma v National Director of Public Prosecutions
Yes
Litigation privilege protects communications between a litigant or its legal advisor and third parties, if such communications are made for the purpose of pending or contemplated litigation. It applies typically to witness statements prepared at a litigant's instance for this purpose. There are two established requirements: the first being that the document must have been obtained or brought into existence for the purpose of a litigant's submission to a legal advisor for legal advice; and the second being that litigation was pending or contemplated as likely at the time.
No
Yes, where mediations take place under statute, the particulars of negotiations which took place during the mediation proceedings before a mediator are privileged. In other mediations, the parties will usually sign an agreement that all information exchanged relating to the mediation is without prejudice and privileged, and therefore not admissible as evidence or disclosable in any future proceedings.
Yes