South Africa is on the brink of promulgating the Protection of Personal Information Bill (the Bill). This will codify and regulate the current common law and legislation pertaining to privilege, privacy and protection of personal information.
In terms of the common law, which has been expanded and enshrined in our legal system by case law, any documentation or / and information given by a client to his / her attorney in terms of a mandate, falls within the ambit of legal privilege. This entails that, not only is the attorney bound to treat the information so gained with confidentiality, the State may not seize such information without a warrant. Of course, should legal privilege be waived, or consent given for the disclosure of certain information, the client will no longer enjoy the protection given under the said privilege.
The Bill clarifies how personal information may be obtained and processed, and should the same be obtained unlawfully, it provides remedies to those whose privacy has been breached.
Section 14 our Constitution grants every one the right to privacy over their person, property, possessions and communication. This right is however limited by Section 36 of our Constitution, as, should an infringement of the rights granted be reasonable and justifiable in an open and democratic society, such infringement shall not be lawful.
However, Section 84 of the Bill, states that a warrant issued by the Regulator, to be appointed in terms of the Act, shall not be executable on documentation, information and / or communication between a professional legal adviser and his / her client in connection with a professional matter, whether such documentation, information and / or communication was shared in order to obtain legal advice, or in preparation for court proceedings.
Section 88 of the Bill further prohibits the Regulator from requesting the above information from a responsible person, such as an attorney of legal adviser.
What is important to note is the definition of “legal adviser” as set out in Section 1 of the Bill being:
“any legally qualified person, whether in private practice or not, who lawfully provides a client, at his or her or its request, with independent confidential legal advice.”
It would seem that information given to a qualified person in the scope of procuring legal advice or preparing for court proceedings will fall under the umbrella of legally privileged information.
It is clear that the Bill will not only codify the common law, but also strengthen principles of confidentiality and professional legal privilege.
Ian Mc Laren