There has been a heated discussion about the raids carried out on the offices of former deputy president Jacob Zuma's lawyers.

It is reported that members of the legal fraternity are outraged by the raids carried out by the Scorpions of National Prosecuting Authority in search for documents related to the forthcoming trial of Zuma. What is at stake here is a very serious threat to attorney-client confidentiality.

Throughout our legal and constitutional history our courts have been assertive in jealously protecting the relationship of professional privilege between attorney and client. This privilege has it origin in our ancient common law and continues to exist by virtue of the provisions of the Bill of Rights.

A trenchant illustration of the operation of the protection of this privilege is found in the case of Heiman, Maasdorp and Barker versus Secretary for Inland Revenue handed down in 1968.

The question that arose in this case was whether the Secretary for Inland Revenue, using statutory authority, could demand the production of specified documents in the possession of attorneys, Heiman, Maasdorp & Barker, thereby overriding the fundamental common-law privilege relating to non-disclosure of confidential information arising in an attorney-client relationship.

The court unequivocally upheld the fundamental principle of non-disclosure of confidential information in the common law with the following cogent apology, stating that: "This well-established rule is to be found throughout our jurisprudence and has repeatedly been described as sacrosanct and inviolate."

This privilege is of fundamental importance for the professional responsibility of the legal professions and it is understandable that both the Law Society and the South African Bar Council have expressed their profound concern about the raids.

Even under our previous discredited legal system during the apartheid era our courts have diligently protected attorney client privilege. Exemplary in this regard was the judgment of the former Appellate Division of the Supreme Court's decision in the criminal case of the State versus Mushimba in 1977.

In this case the Appellate Division found that there had been a very serious breach of confidentiality because a member of the staff of attorneys who had defended the accused persons had leaked confidential information to the Security Branch of the S A Police.

The court found that this constituted a miscarriage of justice and set aside the convictions.

If the raid of the Scorpions has indeed breached the confidentiality relationship between Zuma and his legal representatives, it could have very serious consequences for the trial of Zuma and a mistrial is a distinct possibility, depending on the circumstances. This will be for the courts to decide and ultimately the Constitutional Court will have to pronounce on the nature and ambit of attorney-client confidentiality.

Although the Scorpions have important tasks to fulfil they are subject to the Constitution and the law of the land. They cannot behave as a law unto themselves as the security police did in the apartheid era.

Furthermore, the search warrant issued by the judge must also comply with the provisions of the Constitution and the law.

This is a matter of fundamental principle for our system of democratic government. South Africans, having achieved and created a democratic system of government at a sublimely great cost, need to defend it against the predations of those in the new body politic who prove to be power-hungry and unscrupulous.

The Mercury asked me whether a criminal could take refuge behind the attorney-client privilege and attempt to hide documents relating to crime, with his/her lawyer. What is clear is that the relationship between attorney and client is confidential, and that documents relating to such will be protected.

The courts will not permit the right to be abused as a front for the cover-up of criminal activity that is not directly involved with the relationship. Its exact ambit will have to be fashioned by the courts, and, in particular. the Constitutional Court.

The narrowly focused right must enjoy protection if the legal professional is to operate effectively.

George Devenish is a former professor of constitutional law. He writes in his personal capacity.

With acknowledgements to George Devenish and The Mercury.