PRIVILEGE (part 1)

LAW OF EVIDENCE
L384
 PRIVILEGE

DEFINITION
Generally a witness who testifies is obliged to answer all relevant questions put
to him or he will be liable for contempt of court. However, there are instances
when a witness or a party to a court action may lawfully refuse to answer a
relevant question. This happens when he invokes the legal privilege to do so.
REFER TO SECTION 249 CP&E

PRIVILEGE is a right to refuse to disclose evidence which is otherwise relevant

and admissible .
A witness who successfully claims a privilege can lawfully refuse to answer a
question or lawfully withhold documentary or real evidence even if his success
of the case for the other party solely depends on such evidence being adduced
 PRIVILEGE V COMPETENCY
A person who is incompetent (lunatic, intoxicated, tender years or
cannot be compelled- a spouse) does not give evidence. He cannot be
sworn and be compelled by a party to give evidence at all.
Privilege on the other hand is concerned with a witness who is already
in the box but is not obliged to answer a particular question. Thus a
witness who is otherwise competent and/or compellable who wishes to
rely on privilege cannot refuse to enter the witness box. He may only
claim the privilege when the relevant question is put to him.
It also follows that even when a witness has been compelled to give
evidence he can still successfully claim privilege
 PRIVILEGE
• There are two main categories of privilege
1. Private privilege
2. State privilege
 PRIVATE PRIVILEGE
PRIVATE PRIVILEGE
• It refers to privileges which do not protect the interests of the state
but of individuals.
• It is in the interest of society that individuals in certain instances
should have the right to refuse to disclose evidence which would
otherwise have been admissible.
• Under private privilege there are 3 kinds of private privilege
a) Privilege against self-incrimination s.252, s.255 CP & E
b) Marital privilege s250, s251 CP & E
c) Professional privilege s 253 CP & E
 Privilege against self-incrimination
• Section 255 imports the English law under section 23 of Civil
Evidence Ordinance 72/1830 and.
• No witness in any criminal proceeding shall be compelled to
answer a question if the answer might have a tendency to
expose him to any pains, penalty, punishment, criminal
charge or to degrade his character.
• Rationale
There is always a presumption of innocence and the
prosecutor should prove the guilt.
To also encourage people to come forward to give evidence
without fear of incrimination
Privilege against self-incrimination
Qualifications and limitations
• section 252 has a limitation to section 255- a
witness in criminal proceedings may not
refuse to answer a question that is relevant to
the issue by reason only that the answer will
establish a civil liability against him.
 Privilege against self-incrimination
Exceptions
• Accomplice witnesses
S236 provides that if at the trial the prosecution informs the court that
the witness is an accomplice in the offence he will be required to answer
questions which show that he has committed and therefore can raise
privilege.
However section 236 (2) provides that if he fully answers to the
satisfaction of the court he is discharged
If he is discharged at the Preparatory examination(we will deal with this in
L383) and later at the trial he refuses to answer those incriminating
questions or fails to answer fully (to the satisfaction of the court then the
discharge in s 236 (2) is of no effect and may be prosecuted. See section
236 (3)
 Privilege against self-incrimination
If the state as well renegades under section 236 on the
discharge and chooses to prosecute them his incriminating
answers are not admissible against him in respect of the
offence he was an accomplice in.
But if he perjures himself and lies under oath in answering the
questions that were incriminating then section 237 (2) states
that he may be prosecuted and the incriminating answers are
admissible to constitute evidence against the witness.
This section is present to allow witnesses to come forward and
protect them as long as there is justice at the end of the day
to the main accused.
 Privilege against self-incrimination
• Accused himself as a witness-
Section 255 (2) provides that if an accused person called as
an witness on his own application in accordance with section
217(cannot be compelled to testify) he may be asked any
question in cross-examination not-withstanding that it
would tend to incriminate him as to the offence charged
against him.
Section 249 however provides he is protected from
answering questions which may illicit evidence of bad
character or previous convictions unless he loses his shield
under the exceptions.
Privilege against self-incrimination
• Civil liability
Section 252 provides that witnesses may not be
excused from answering questions by reason
that the answer would establish a civil claim
against him.
 CLAIM OF PRIVILEGE
• Before allowing a claim of privilege on the ground of self-
incrimination, the court must be satisfied from the
circumstances of the case and the nature of the evidence
which the witness is called to give; that there is reasonable
grounds to apprehend danger to the witness for
incrimination.
• See S v Lwane 1966 (2) SA 433
• There is a duty of the court to forewarn the witness of his
right to claim privilege since it is not all witnesses in
criminal proceedings that are aware of privilege
Mahase v R 1963-66 HCTLR 44
 CLAIM OF PRIVILEGE
• Effect of denying a witness privilege
In the case of Magmoed v Rensburg 1993 SACR
67 the court held that the evidence that was
tendered before court when a witness is denied
privilege, the evidence is inadmissible in a
subsequent case where he is charged criminally.
 CLAIM OF PRIVILEGE
• Constitutional Implications of statutory denial of privilege
There are statutory enactments that provide for procedures to
get evidence outside those of the Criminal and Evidence Act. They
allow witnesses to appear before an investigation and to answer
questions whether they will incriminate themselves or not.
For example section 205 (4) (6) of the Companies Act, section 65
of Insolvency Proclamation and Section 13 of the Inquests
Proclamation.
• However the Constitution supersedes all statutory enactments
and provides for under section 12 (7) protection against self
incrimination
 CLAIM OF PRIVILEGE
• When sections under the companies act or
any other act are enforced on a witness to self
incriminate the witness can raise privilege
under section 12(7) of the Constitution.
• PLEASE READ Ferreira v. Levin & others 1996
(1) SA 984 for discussion on this topic
 MARITAL PRIVILEGE
• Section 250 provides for privilege arising out of marital status.
S. 250 (1) CP&E- A husband shall not be compelled to disclose any
communication made to him by his wife during the marriage and neither
should the wife.
• RATIONALE-It is sometimes said to be the promotion of confidence
between Husband and Wife (to be more open and frank since they
share that which cannot be shared with their parents).
- Public opinion would find it unacceptable if spouses are forced to
disclose communications from each other.
• Communications from other spouses; (applies to both civil and
criminal proceedings)- If the other wants to disclose-she or he may do
so, that is, if she is a competent witness (REFER S. 216)- Where she is
the complainant.
 MARITAL PRIVILEGE
• Extension of privilege:
• Section 251 provides that no person shall be compelled to answer any
question or give any evidence if such question or evidence is such that
under the circumstances the spouse of such person, under
examination as witness, might lawfully refuse and could not be
compelled to answer or give that evidence.
• This section allows a spouse to refuse to answer a question in any
circumstances in which his spouse would be entitled to claim privilege.
• A witness may also refuse to answer a question on the ground that it
would incriminate his spouse/
• Read with section 250(1) the witness can also refuse to disclose
communication which he has himself made to his spouse; conceivably,
he might claim that the other spouse would have been entitled to
refuse to answer on the ground of legal professional privilege; except
where one spouse is a compellable witness in a prosecution against
 MARITAL PRIVILEGE
• Ex Spouse
Once the marriage between spouses ends, the privilege ends with
it. A widow or widower cannot therefore refuse to disclose
communication from her husband or his wife made during the
subsistence of their marriage.
SEE: Rumping v DPP [1962] 3 All ER 256
section 250(2) extends this privilege to some but not all ex-spouses.
It refers to ex-spouses by virtue of their putative marriage being
dissolved or annulled by a competent court.
 LEGAL PROFESSIONAL PRIVILEGE
SECTION 253 CP&E provides for privilege of professional advisors
Communication between a legal advisor and his client is privileged if the legal advisor
is acting in his professional capacity at the time of the communication; also that he
was consulted in confidence; the communication was made for the purpose of
obtaining legal advise and the advise was not intended to facilitate the commission of
a crime.
An important factor about this privilege is that the legal advisor cannot himself
disclose the communication without first obtaining the consent of his client.

RATIONALE
In civil and criminal proceedings communications made between a lawyer and his
client may not be disclosed without the client’s consent. To compel either the legal
advisor or the client to disclose their communication, inter se, is tantamount to
involuntary self-incrimination.
 LEGAL PROFESSIONAL PRIVILEGE
NO EXCEPTIONS
In R v Sefatsa the Appellate Division for the first time recognized that legal professional
privilege is a fundamental right derived from the requirements of procedural justice, and
not merely an evidence rule.
SEE; R V SEFATSA 1988 (1) SA 868
R V DERBY MAGISTRATES COURT [1995] 4 AII ER 526
Privilege and Search Warrant
South African courts have held that legal professional privilege does not prevent
documents falling under legal professional privilege from being seized by the police
under a valid search warrant.
In Bogoshi v Van Vuuren 193 (3) SA 953 it is held that Legal privilege is a fundamental
right and not a rule of evidence only. It can therefore be claimed, not only in the course
of actual litigation, but also to prevent seizure by warrant of a privileged document.
However the claim of privilege failed in that case as it had not been claimed in the
interests of the client but in the interests of the attorneys.
SEE; THINT V NDPP [2008] ZACC 13
 LEGAL PROFESSIONAL PRIVILEGE
REQUIREMENTS FOR CLAIMING PRIVILEGE-the following are requirements that the
courts asses when one claims professional privilege. Look at the cases
1. Acting in a professional capacity:
SEE; R v Fouche 1953 (1) SA 440
Mohamed v President of RSA 2001 (2) SA 1145

2. Acting in confidence:
SEE; Giovagnoli v Di Meo 1960 (3) SA 393

3. Purpose of obtaining legal advice:

SEE; Minter v Priest [1930] AII ER 431

4. Not to facilitate the commission of a crime:

SEE; Botes v Daly & Another 1976 (2) SA 215
 LEGAL PROFESSIONAL PRIVILEGE
WAIVER
SEE; S v Tshomi & Another 1983 (1) SA 1159

COMMUNICATION BETWEEN ATTORNEY, CLIENT, AGENT & THIRD PARTIES

SEE; General Accident, Fire & Assurance v Goldberg 1912 TPD 494

WITNESS’s STATEMENTS
The privilege attaching to the witness’s statements in both criminal and civil is sui
generis and separate form professional privilege; mainly because it serves to protect
unrepresented persons from the niceties of the law applicable to professional
privilege.
SEE; R v Steyn 1954 (1) SA 324

ACCESS OF ACCUSED TO POLICE DOCKET

SEE; Lepoqo Molapo v DPP 1997-98 LLR-LB 384
 LEGAL PROFESSIONAL PRIVILEGE
OTHER PROFESSIONAL PRIVILEGES
The legal recognition of a privilege attaching to communications between categories of
people inevitably involves two conflicting interests: firstly, society’s interests in
preserving and promoting certain relationships and secondly, the interests of justice.
Ordinarily, courts have favored the latter as a result professional privilege attaches only
in lawyer-client relationships and not other professional relationships. Bankers,
however, do enjoy a limited privilege in that they are not obliged to disclose bank
books unless under an order of court.
Priests, insurers and accountants do not enjoy this privilege, unless they can show just
cause why they refuse to testify; the court now has the discretion of determining
whether privilege attaches in such relationships or not. Journalists can be compelled to
disclose their sources.
An argument can be raised that certain professional communications may be
protected from disclosure by the constitutional right to privacy. Indeed the
Constitution does provide that everyone has the right not to have the privacy of the
communications infringed.
 LEGAL PROFESSIONAL PRIVILEGE
NOTE; The important point to remember is that no privilege
attaches in other professions save the legal profession. Before
the issue is brought before court, privilege may attach but it
ceases to be privileged when it enters the courtroom; the
court has the discretion to allow a witness to refuse to
disclose information where such disclosure would be a breach
of some ethical or social norm and further that if non-
disclosure would be unlikely to result in serious injustice in
the case in which it is being claimed.