The foundation of SA’s legal system was secured by Judge Ismail Mahomed’s finding last week that the Scorpions raid on Jacob Zuma’s attorney, Julekha Mahomed, was illegal, lawyers say.

SA’s legal community has voiced concern about last month’s raids on the offices of Zuma’s lawyers, saying they put attorney-client privilege in jeopardy.

Mahomed asked the Johannesburg High Court to instruct the Scorpions to return files they had seized, arguing that they would give substantial insight into Zuma’s defence against his fraud and corruption charges.

“Attorney-client privilege is the foundation of the existence of the legal profession,” says Ed Southey, senior partner at Webber Wentzel Bowens. “It is the premise on which an individual consults with his or her lawyer without evidence being used against them. It is the root of the foundation of our law.”

No other professional — accountant, priest or journalist — can claim privilege in a court of law, Southey says.

Attorney-client privilege has its roots in SA’s common law and is entrenched in the Bill of Rights. Even during the apartheid era, courts diligently protected it.

The privilege relates to communication between an attorney and a client, which is confidential and cannot be disclosed to any third party, including a court. “The client claims the privilege and only he or she can waive it,” Southey says.

Dale Hutchison, a law professor at the University of Cape Town and director at Sonnenberg Hoffmann Galombik, says attorney-client privilege is an integral part of the administration of justice.

For example, thousands of South Africans consulted their lawyers about the foreign exchange control and tax amnesty. “They (the lawyers) were not compelled to spill the beans (about violations). If they were made to, that would have affected the administration of justice,” Hutchison says.

Clients communicate openly with their lawyers without the fear of being apprehended by the authorities. Hutchison says that the concept of attorney-client privilege is not compatible with searches and seizures of lawyers’ files by the National Prosecuting Authority.

Lawyers who have had their documents seized will have to exercise “eternal vigilance” to ensure that their clients’ rights have not been violated, Hutchison says.

Seized documents, which lawyers claim are privileged, can be deposited with the registrar of the high court after a search. A ruling is then made by the court on the confidentiality of the documents.

However, the authorities can have sight of advice and confidential communication between clients and their lawyers while separating privileged from nonprivileged documents, Hutchison says.

Southey says attorney-client privilege is a complex issue, and how far it extends is debatable.

“The privilege belongs to the client and not the lawyer. Only the client can waive it,” he says.

Lawyers have a legal and professional obligation to refuse to disclose privileged communications, except where the client has waived the privilege.

Southey says the protection from disclosure ensures that clients can be candid with their lawyers without any fear that what is communicated between them will subsequently be used for another purpose, except with their consent.

The communication must be made in confidence and be directed towards a lawful end.

This should be taken into consideration where a legal department consists of both lawyers and professional advisers, as only legal professionals’ advice is privileged.

Errol Knowles, a director at Knowles Husain Lindsay, says that attorney-client privilege can only be disturbed “if a lawyer knowingly engages in fraudulent activities with the client”.

There would be no legal obstacle to the seizure of privileged documents in such circumstances, Knowles says.

Where a client asks a lawyer to hold documents in safekeeping, the privilege does not apply, Knowles says. “The lawyer would be acting as a custodian.”

“However, if the police had to arrive at my office and ask me to hand over a client’s files, I believe I would have grounds to refuse to do so on the basis of privilege,” he says.

“A warrant would have to be very specific and waive the attorney-client privilege.” 

With acknowledgements to Sanchia Temkin and the Business Day.