MADLANGA J
performance by the media of their obligations, is protected by section 16(1)(a). Like
the High Court, I place reliance on Tsoka J who held as much in Bosasa. Relying on
local and foreign authorities, he put it thus:
“[I]t is apparent that journalists, subject to certain limitations, are not expected to reveal
the identity of their sources. If indeed freedom of press is fundamental and sine qua
non for democracy, it is essential that in carrying out this public duty for the public
good, the identity of their sources should not be revealed, particularly, when the
information so revealed, would not have been publicly known. This essential and
critical role of the media, which is more pronounced in our nascent democracy founded
on openness, where corruption has become cancerous, needs to be fostered rather than
denuded.”149
[116] I agree with the applicants that legal professional privilege is an essential part of
the rights to a fair trial and fair hearing. This Court in Thint held:
“The right to legal professional privilege is a general rule of our common law which
states that communications between a legal advisor and his or her client are protected
from disclosure, provided that certain requirements are met. The rationale of this right
has changed over time. It is now generally accepted that these communications should
be protected in order to facilitate the proper functioning of an adversarial system of
justice, because it encourages full and frank disclosure between advisors and clients.
This, in turn, promotes fairness in litigation. In the context of criminal proceedings,
moreover, the right to have privileged communications with a lawyer protected is
necessary to uphold the right to a fair trial in terms of section 35 of the Constitution,
and for that reason it is to be taken very seriously indeed.”150
[117] This means that, although originally sourced from the common law, legal
professional privilege is now undergirded by the Constitution. The proper functioning
of our legal system is reliant on the confidentiality of communications between lawyer
and client. That in turn promotes the rule of law. Thus the wholesale interception of
149
Bosasa above n 38 at para 38.
150
Thint above n 116 at para 184.
62
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