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Confidentiality - The genie in the bottle

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Litigation & Dispute Resolution Bulletin

In the recent decision of the High Court in the matter of South African Airways SOC v BDFM Publishers (Pty) Ltd and others (unreported case 2015/33205 –Gauteng Local Division), the court had to opine on the nature of confidentiality of information.

The case involved the disclosure by the media of the information contained in an internal document prepared by the in-house legal advisor of SAA for the board of SAA. This document had come into the possession of the media without the consent of SAA.

The court reaffirmed the principle that communications obtained from a salaried in-house legal advisor would be eligible for a claim of privilege by the employer if the legal advisor was giving legal advice in confidence to the employer.

The court went on to clarify what is meant by the concept of legal professional privilege or more aptly called, legal advice taking. The phrase often used to describe privilege is “the document is privileged”. This description, the court said, loses sight of the fact that it is not the document which is privileged but rather the information contained in the document. However, the information is not automatically privileged but only becomes so once the client exercises the right to claim that the information should not be disclosed and not before the claim is made. By claiming legal advice privilege the client invokes a negative right, in other words, holds up a shield of privilege and thereby exercises the right to refuse disclosure.

The right is not a positive right which entitles the client to prevent the world from learning of the advice once the advice is revealed to the world without authorisation.  There may be other remedies available to the client in delict but these do not have their origin in the nature of the right to claim privilege.

Thus the court concluded that “once confidentiality is shattered, like Humpty Dumpty, it cannot be put together again”.

For inter alia the above reasons, the Court refused to uphold an interdict against the media, stating that such relief is inappropriate in the circumstances. An interdict is invoked to prevent future harm and not to redress past harm.


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