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Fica - attorney client privilege

27 May 2004

Section 37 of the Financial Intelligence Centre Act 38 of 2001("the Act") is relevant for our purposes, it reads as follows:

Reporting duty and obligations to provide information not affected by confidentiality rules
37. (1) Subject to subsection (2), no duty of secrecy or confidentiality or any other restriction on the disclosure of information, whether imposed by legislation or arising from the common law or agreement, affects compliance by an accountable institution, supervisory body, reporting institution, the South African Revenue Service or any other person with a provision of this Part.
(2) Subsection (1) does not apply to the common law right to legal professional privilege as between an attorney and the attorney's client in respect of communications made in confidence between-
(a) the attorney and the attorney's client for the purposes of legal advice or litigation which is pending or contemplated or which has commenced; or
(b) a third party and an attorney for the purposes of litigation which is pending or contemplated or has commenced.

In analysing the import of this section, it is apparent that s 37(2) is a restatement of the common law of legal professional privilege, which privilege is divided into legal advice privilege and litigation privilege. The author then distinguishes between confidentiality and privilege and notes that there is an overlap between them in that "confidentiality is a necessary condition for claiming privilege but is not a sufficient condition for such a claim. The mere fact that a communication was made in confidence will not necessarily mean that that communication is privileged. That privilege attaches only if the communication is made for the purpose of obtaining legal advice, so that a statement unconnected with the giving of legal advice will not be privileged even if it was made in confidence."

This distinction, read in the light of s 37, means that Fica obligations override any duties of secrecy or confidentiality. This is in conflict with the attorney profession's inherent conviction that generally client-attorney communications are confidential. How the profession deals with it will be dealt with next month.

De Rebus website

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