As an attorney, the most worrying aspect of the Scorpion raids in connection with former deputy president Jacob Zuma is that the offices of his attorneys were raided.

One does not wish to be sensationalist, but the implication for the whole justice system is so serious that it cannot simply be left to expressions of concern by the legal profession.

The representative bodies of the legal profession, namely the Law Society of SA, the General Council of the Bar, the Black Lawyers Association and the National Association of Democratic Lawyers, should seek an audience with the justice minister to discuss the conduct of the Scorpions and protection of the principle of attorney-client privilege.

In lay terms, attorney-client privilege means that communication between an attorney and his or her client is confidential and cannot be disclosed by an attorney or other person to any one else, including a court of law.

Essentially, communication that is privileged falls into two categories: first, communication between an attorney and his or her client for the purpose of providing legal advice; second, communication for the purpose of preparing for litigation. Both are protected.

Attorney-client privilege is not simply a rule of evidence. It is far more than that. Legal writers, as well as judges through case law, have confirmed that attorney-client privilege is substantive law and vital for the proper functioning of an adversarial judicial system, as we have in SA.

The nature of the privilege is best understood through a quotation from an Australian case by LH Hoffman and DT Zeffert in their classic, The South African Law of Evidence: “… it is now established that its (attorney-client privilege) justification is to be found in the fact that the proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients which would not exist if either could be compelled to disclose what passed between them for the purposes of giving or receiving advice … the restriction of the privilege to the legal profession serves to emphasise that the relationship between a client and his legal adviser has a special significance because it is part of the law itself”. The Australian case has been cited with approval in South African cases.

If the confidentiality of communication between an attorney and his or her client is not respected, proper functioning of the judicial system is at risk. Thus, “… the privilege extends beyond communications made for the purpose of litigation to all communications made for the purpose of giving or receiving advice and this extension of the principle makes it inappropriate to regard the doctrine as a mere rule of evidence”.

The privilege belongs to the client, and can only be claimed on behalf of the client.

It is therefore clear that attorney-client privilege is not merely an evidentiary rule, but is in fact substantive law. It has been argued that it takes precedence over the right of access to information in terms of section 32 of the constitution.

In the raids, the Scorpions apparently took numerous documents and hard drives of computers, which clearly would contain both privileged and nonprivileged information. The fact that the Scorpions have indicated in the press that they would seal privileged information and leave it with the master of the high court is cold comfort for lawyers. The very people who have to frame charges against Zuma and produce evidence to substantiate those charges will have sight of both advice and confidential communication between him and his legal advisers in the process of separating privileged from nonprivileged documents.

Raiding attorneys’ offices would not be objected to if in fact there was evidence that attorneys were actually committing criminal offences or participating in the commission of a criminal offence.

The issue raised among lawyers in private conversation is the granting of a warrant to search attorneys’ offices. What information would have been placed before the judge and, more importantly, what considerations were weighed up by him to approve the raiding of lawyers’ offices, considering the serious consequences for the judicial system?

No one doubts the Scorpions’ legal powers to search premises after obtaining search warrants. In raiding lawyers’ offices and seizing privileged documents they have exceeded their powers, and Zuma’s lawyers are correct to challenge such seizure. It is essential, though, that the legal profession as a whole sit up and take notice as it is likely hereafter that attorneys are vulnerable whatever area of law they happen to be practising in.

Qunta is a partner in the law firm Qunta Incorporated.

With acknowledgements to Christine Qunta and the Business Day.