In considering the scope of legal professional privilege, the following principles should be borne in mind:
- Legal professional privilege is a negative right to refuse to disclose any confidential information exchanged between a client and a legal adviser. The right vests in the client, not the lawyer.
- Where confidential information has been made available to third parties without consent, legal professional privilege is lost.
- Nothing prevents a person, whose confidential information is compromised, from seeking appropriate relief from a court to prevent the dissemination of that confidential information if it is not yet public.
- The extent of the protection depends on the facts, which must be assessed in the context of recognised public interest values.
These principles were considered in South African Airways v BDFM Publishers and others. An in-house legal advisor prepared a legal opinion for a company. Certain media houses wished to publish confidential information contained in the opinion. The company approached the court on an urgent basis and obtained a court order preventing the media houses from publishing any information contained in the opinion on the basis that it was protected by legal professional privilege. The media houses applied to court for a reconsideration of the order. The court set aside the urgent protective order for the reasons given above.