“Without prejudice” is a legal term used in South Africa to indicate that a communication or document is made in an attempt to settle a dispute or negotiate a resolution of a claim or dispute, and that it cannot be used as evidence in court or as an admission of guilt or liability. This type of communication is considered privileged, which means that it is protected from disclosure to a third party, such as a court. This privilege can be waived if both parties to the dispute agree to waive it.
The “without prejudice” rule is based on the principle that parties should be encouraged to settle disputes without going to court. This is in line with the general legal principle that disputes should be resolved as cheaply, quickly and amicably as possible. The rule is also based on the idea that parties should be able to speak freely and candidly in an effort to reach a settlement, without the risk that what they say will be used against them in court.
In South Africa, this law is regulated by the Evidence Act, which provides that evidence of a settlement agreement or negotiations is not admissible in court, unless the agreement or negotiations are reduced to writing and signed by the parties or their agents. This means that even if the “without prejudice” rule is invoked, the parties may still be able to rely on the agreement or negotiations as evidence in court if they are reduced to writing and signed.
The “without prejudice” rule is a useful tool for resolving disputes in South Africa, as it allows parties to speak freely and candidly without the risk that what they say will be used against them in court. However, it’s important for parties to be aware that the rule does not apply to all types of communication, such as admissions of guilt or liability, and that the privilege can be waived if both parties agree to waive it. As such, it’s always best to seek the guidance of legal counsel when dealing with any legal dispute and to have a lawyer review any documents marked as “without prejudice”.