1

NATIONAL BAR EXAMINATION SYLLABUS

ETHICS2010 Revision

Danie Smit (Revision)

I. RULES OF PROFESSIONAL CONDUCT..............................................................3

II. THE UNIFORM RULES OF ETHICS (GCB RULES).............................................3

III RULES OF CONDUCT RELATING TO ADVOCATES..........................................6

IV CASES AND SPECIFIC TOPICS.........................................................................13

CROSS-EXAMINATION...............................................................................................14

INVECTIVE, IRRELEVANT, DEFAMATORY MATERIAL............................................27

COUNSEL'S DUTY NOT TO MISLEAD THE COURT.................................................36

DUTY TO DISCLOSE MATERIAL FACTS IN EX PARTE APPLICATIONS................44

DUTY OF COUNSEL TO OBSERVE BAR RULES......................................................50

THE INDEPENDENCE OF COUNSEL.........................................................................56

BEHAVIOUR IN COURT..............................................................................................59

INTERVIEWING WITNESSES FOR THE PROSECUTION.........................................65

PRIVILEGE...................................................................................................................69

CONFLICT BETWEEN THE INTERESTS OF TWO CLIENTS....................................82

DISCLOSURES ON APPLICATION FOR ADMISSION TO THE BAR........................88

PRO DEO COUNSEL...................................................................................................95

GENERAL MISCONDUCT...........................................................................................97

GENERAL DUTY RE ATTORNEYS AND ATTORNEYS’ WORK..............................104

I. RULES OF PROFESSIONAL CONDUCT

These are dealt with in the accompanying document entitled “THE UNIFORM

RULES OF ETHICS”.

II. THE UNIFORM RULES OF ETHICS (GCB RULES)

GENERAL

Introduction

Two sets of rules: GCB rules and the rules of the constituent bars

Professional Rulings of the Johannesburg Bar Council:

Deal with interpretations of the GCB rules.

Enforceability ranges from guides of conduct to strict rules – certain rules

are simply courteous; but most rules are binding and have the force of law.

The limitations also have the binding force of law.

Litigation resolves itself into issues of facts, law and procedure: rules of ethics tell

lawyers how to resolve these issues.

Conventions on addressing judges:

In HC, judge is referred to as “My Lord” or “My Lady”

o Not all HCs use these titles

o Out of court, call judges, “Judge”

In MC, magistrate is referred to “Your Worship”

November SALR, para 14: Directives: from 2 May 2007, mode of address

in SCA, is “Justice X”, or through the Head of court, “The Court”.

CC directive, 1995 (1) SA 177.

Before appearing before a judge or magistrate for the first time, you must present

yourself and formally introduce yourself.

In HC, where there is an appeal of 3 judges, you must introduce yourself

to all of three.

In SCA, the orderly will fetch both counsel at 09:30 and then taken through

to presiding judge for a chat. Do not introduce yourself to any other

judges.

In CC, meet Chief Justice and another judge (usually deputy).

Address the court from the centre in SCA. Put out the names of the judges on the

podium.

Any authorities cited must be taken to court. If old authorities cited, then include

translation.

Convention of using the third person in addressing judges: “If your Lordship could

kindly refer to page 12 …”.

Never leave the court if you are the last advocate, until the judge has left the court.

Convention in addressing colleagues: addressed by surnames or first names.

Blue bags – bag for carrying robe; red bag is awarded by a silk to a junior.

Under the Admission of Advocates Act, any person who has been admitted as an

advocate is entitled to practise as an advocate throughout the Republic, unless

struck off the roll or subject to an order suspending from practise. Likewise, no

person who is not admitted or who is struck off or suspended may in any manner

directly or indirectly practise as an advocate or hold himself out as such, on pains of

criminal punishment.

Liability of counsel for negligence: It appears counsel may only be sued for damages

for fraud and “ill will” (and possibly gross negligence) but not for mere inexpertness

or mistake of fact or law.

Within the limits of the brief and subject to the specific instructions which counsel

may accept, counsel has complete discretion in the conduct of the case. The

decision whether to call a witness or not and the manner of presentation of evidence

and address to the court is that of counsel and not the client. The latter is bound by

it. (R v Matonsi)

It is doubtful whether a court has the power to order that an advocate may no longer

act for an accused.

General Council of the Bar

GCB exists as a legal person separate from the constituent bars and its members,

and has its own rights and obligations.

Has representatives from constituent bars, chair, and vice chair.

Objects include:

Consider, promote and deal with matters concerning the teaching and prac-

tice of law and administration of justice;

Deal with matters affecting the profession and take action thereon;

Uphold the interests of advocates in South Africa;

Transformation, non-racialism and non-sexism.

GCB also recommends rules of professional etiquette and practice for adoption by

constituent bars.

Uniform Rules also called the GCB Rules.

Rules of Professional Conduct and Etiquette (i.e. Johannesburg Bar Rules)

Pupils required to comply with the rules.

Subjects:

Seniority; Advertising; Professional relationships; Professional

independence; Relationship between counsel and attorneys; Counsel’s

duties with regard to briefs and the conduct of cases; Fees; Defaulter’s

rules; Silks and juniors; Pupils; Appointments; Robing; Professional

indemnity insurance; Complaints and enquiries; Pro deo matters.

In relation to assessors: no member of the society shall act as an assessor unless he

has been a member of the society for at least 1 year (except with permission of the

Bar Council).

The Bar Council may permit holders of university academic posts to be members of

the Johannesburg Bar on such terms as to pupilage, chambers, subscriptions as the

Bar Council may direct.

DISCUSSION OF THE UNIFORM RULES OF ETHICS AND RULINGS:

See accompanying document entitled “THE UNIFORM RULES OF ETHICS”

III RULES OF CONDUCT RELATING TO ADVOCATES

Readings: LAWSA, Volume 14, “Advocates”

I have read the LAWSA chapter. It comprises material that falls into the

following categories: historical and unlikely to arise in the exam; background

information about the bar that is of general knowledge to us; material that is

relevant to the exam but that is better addressed elsewhere in the Ethics

notes (this principally relates to the rules of conduct). I have set out below

what I consider to be the most pertinent material for exam purposes (much of

it is addressed in the notes on “THE UNIFORM RULES OF ETHICS”).

Organisation of the Bar

The GCB formulated rules of professional conduct (“the bar rules”) that are

applicable to all bars and may only be departed from by an individual bar

council in exceptional circumstances. Bar rules not exhaustive and some

individual bars have additional rules.

Objects of the bar (i.e. each Society of Advocates): to promote and protect

interests of profession and of members of the bar; to supervise the conduct of

members; to consider, deal with and promote teaching and practice of law

and administration of justice and to form a constituent bar of the GCB and

further the aims of GCB.

Object of GCB: to consider, promote and deal with all matters concerning the

teaching and practice of the law and the administration of justice; to deal with

all matters affecting the profession and to take action thereon; to uphold the

interests of advocates in South Africa.

GCB has no jurisdiction over any constituent bar or its members except as

follows: It has the power to hear and decide appeals by members from

decisions of constituent bars in disciplinary proceedings and appeals in

connection with membership fees, as well as to hear and decide matters

provided for in the constitution of a constituent bar or when requested by a

majority vote of the members of a bar. It may further on its own initiative or

whenever requested by a constituent bar so to do, recommend rules of

professional etiquette and practice for adoption by the bars or a bar.

Discipline, Removal and Suspension

The Admission of Advocates Act provides that subject to the provisions of any

other law, a court of any division may, upon application, suspend a person

from practice as an advocate or order that the name of a person be struck off

the roll of advocates. This power is not merely limited to the court of the

division where the advocate practises or resides or was admitted, but the

ordinary rules of jurisdiction would apply. The court has discretion and this

discretion is vested in the provincial division which hears the application for

suspension or striking-off. The discretion as to the action to be taken against

an advocate rests in the first instance with the court of the division concerned.

It is the function of the court of High Court to determine what is or is not

improper conduct for an advocate. In doing so it will take cognisance of the

rules of conduct laid down by the society of advocates of that division. The

court is empowered to prohibit conduct which, though not in itself immoral or

fraudulent may in its opinion be inconsistent with the proper conduct of a legal

practitioner and calculated, if allowed, to lead to abuses in the future.

Court of appeal will only interfere with discretion regarding striking-off or

suspension when it was exercised arbitrarily or the court acted on wrong

principle.

Application for suspension or for the striking-off of the name of any person

from the roll of advocates may be brought by GCB or by the bar council for

the division which made the order for his or her admission to practise as an

advocate or where such person usually practises as an advocate or is

ordinarily resident. Any person having chambers in any place will be deemed

for these purposes to be a person usually practising in that place.

Rules of Conduct

GCB proposes rules of professional conduct for the members of all the

constituent bars federated to it, but each society is at liberty to adopt or reject

any such rule. As individual bars are entitled to lay down their own rules of

conduct and from time to time make rulings in respect of them it is to be

expected that in certain minor respects there will be differences between the

rules of conduct and etiquette of the various bars.

The rules of conduct set out hereunder can be related to the following

principles: First, there is the requirement of loyalty to the client. This entails

the advocate’s duty of good faith and the obligation to further the client’s

cause to the best of his or her ability. Further there is the requirement of

candour to the court which entails not only frankness and truthfulness, but

absence of deceit in any form and due respect for the judge.6 Further there is

the requirement of fairness to the adversary, namely the opposite party, his or

her witnesses and counsel.7 Lastly there is the obligation to adhere strictly to

the rules of the society of which the advocate is a member and to which he or

she has subscribed.

Duty of an advocate Upon receipt of instructions the duty of the advocate is

first to ascertain carefully the true facts, obtaining at the same time the proof

of them. Secondly, as far as the law is concerned, he or she should determine

whether there is a cause of action or defence.

It is considered unbecoming and disgraceful for those who profess the

knowledge of the law to be ignorant of the laws of the land.

An advocate should, while acting with all due courtesy to the tribunal before

which he or she is appearing, fearlessly uphold the interests of the client

without regard to any unpleasant consequences either to himself or to any

other person. (S v Tromp; GCB rule 3.1) In acting fearlessly he or she should

not act foolishly or irresponsibly. (S v Baleka)

An advocate has the same privilege as the client of asserting and defending

the client’s rights and of protecting his or her liberty or life by the free and

unfettered statement of every fact and the use of every argument and

observation that can legitimately, according to the principles and practice of

law, conduce to this end. (GCB rule 3.1)

In the conduct of the case the advocate may not use abuse, slander and

vituperation. He or she, is however, protected when making a defamatory

statement in the interests of the client, pertinent to the matter in issue, even

though it be false, provided he or she has some reasonable cause for such

conduct. There is no protection when the advocate goes out of his or her way

to defame an individual and to allege or insinuate calumnious charges not

justified by the occasion. (Gluckman v Schneider; Findlay v Knight; Basner v

Trigger)

When drawing pleadings counsel need not believe in the truth of the evidence

that will be available to prove the allegations in the proceedings. It is enough

that the advocate does not know the evidence to be false. An advocate will

not be held liable for defamation if he or she sets out in a pleading allegations

in the truth of which he or she has no belief, unless the advocate knows that

he or she will not be able to support them by evidence at the trial. (Findlay v

Knight; Basner v Trigger) Counsel who has no belief in the truth of an

assertion and knows he or she has no evidence to support it is not entitled to

put it to a witness during cross-examination. (Gluckman v Schneider; Basner

v Trigger) But allegations made by a witness which are going to be disputed

have to be challenged. (S v Xoswa) Questions may not be couched as

statements of fact to which others will depose when no evidence thereon is

intended to be led. (S v Kubeka) Cross examination may not be hectoring,

rude, unreasonable, intimidating, insulting and harassing. (S v Omar; S v Gidi)

Argument by counsel at the conclusion of the evidence stands on different

footing. Here counsel is putting forward submissions as to the weight of the

evidence and the inferences to be drawn from it. Considerable latitude is

allowed to counsel who thus presents the case and attempts to persuade the

tribunal to his or her view. Animus iniuriandi is not to be attributed to him or

her merely because the practitioner does not think his or her submissions well

founded or because they are pitched too high for reasonable acceptance.

(Basner v Trigger)1

No invectives are allowed (Preston v Luyt) and counsel is not allowed to

abuse the other advocate. Neither should there be open or clandestine

contumely of the adversary after the case. (GCB rule 4.12)

The advocate’s duty to the court requires absolute honesty and integrity.

Counsel may make no false statement or lying charges. “[I]t is of vital

importance that when the Court seeks an assurance from an advocate that a

certain set of facts exists the Court will be able to rely implicitly on any

assurance that may be given. The same standard is required in relations

between advocates and between advocates and attorneys. The proper

administration of justice could not easily survive if the professions were not

scrupulous of the truth in their dealings with each other and with the Court.”

(Ex parte Swain; Society of Advocates of Natal & the Natal Law Society v

Merret)

The advocate may not colour that which is unjust by pretence of law and may

not by misrepresentation cause the judge to stray from the path of truth. (S v

Hollenbach)

There should be no repetitiveness, for brevity lubricates the wheels of justice;

however the case should be stated fully. Delaying tactics are forbidden.

The administration of justice is founded upon the preservation of the dignity of

the courts. It is the duty of counsel to assist in upholding it. An attack upon or

derogation from that dignity by counsel can lead to a charge of contempt of

court. (R v Rosenstein)

There may be no irreverence to the judge and counsel must be quiet in court

while other cases are heard.

Counsel is not allowed to prevaricate or act “in dirty ways”.

1 This case dealt with an investigation into labour wages in the mines – an MP made remarks about spying by the Chamber of Mines.

Counsel is not a mere agent of the client; his or her duty to the court overrides

the obligations to the client, subject to the duty not to disclose the confidences

of the client. (GCB rule 3.2)

The independence and objectivity of counsel is compromised if he or she has

identified with the issues by also being a witness. Where counsel has made

an affidavit on the merits he or she should not appear as counsel. (Carolus v

Saambou Bank Ltd)

The overriding duty of counsel not to mislead the court directly or indirectly by

misrepresentations, false statements or otherwise, may lead to a conflict

between counsel’s duty to divulge to the court material facts of which he or

she has knowledge and the duty not to disclose to any person, including in a

proper case the court itself, information confided to him or her as counsel.

Counsel is obliged to inform the court of every authority or decision of which

he or she is aware, whether it be advantageous or prejudicial to the client’s

case. (Toto v Special Investigating Unit) He or she may not invite the court to

enforce an illegal transaction and may not knowingly lead perjured evidence.

It is counsel’s duty in ex parte applications to disclose all material facts to the

court. (Estate Logie v Priest; Power v Bieber ; Ex parte Satbel)

As the system of justice is dependent on the quality of the assistance that

advocates give to the court, it is essential that advocates, who hold

themselves out as competent to practise in a particular field, bring and keep

themselves up to date with recent authority in their field. (Ex parte Hay

Management Consultants)

On the other hand the advocate is not obliged to disclose the client’s previous

convictions or to correct information given or evidence led by the prosecution

or opposing party if such correction would be to the client’s detriment. He or

she is entitled and by virtue of his or her duty to the client is obliged, to test

the prosecution case to the full where the client has made a confession of

guilt to him or her, but may not set up an affirmative case inconsistent with the

confession. (GCB rule 4.11)

An advocate is not entitled in defending a client to attribute to another person

the crime with which his or her client is charged wantonly or recklessly, unless

the facts or circumstances given in the evidence or rational inferences drawn

from them raise at least a reasonable suspicion that the crime may have been

committed by the person to whom the guilt is so imputed. (GCB rule 3.3.3.4)

Counsel has a duty to refer unacceptable appeal records to the instructing

attorney and require rectification. Failure to do so may bring about a punitive

cost order.

Counsel may not delay judicial proceedings. (S v Moalusi )

IV CASES AND SPECIFIC TOPICS

[See next page]

CROSS-EXAMINATION

Readings:

S v Radebe 1973 (1) SA 796 (AD) at 814A-D

S v Azov 1974 (1) SA 808 (T) at 810G-811B

S v Booi 1964 (1) SA 224 (E) at 227-228

S v Makaula 1964 (2) SA 575 (E) at 578

S v W 1963 (3) SA 516 (AD) at 523C-F

S v Xoswa 1965 (1) SA 267 (C) at 273B-E

S v Kubeka 1982 (1) SA 534 (W)

S v Omar 1982 (2) SA 357 (N)

S v Gidi 1984 (4) SA 537 (C)

Purpose of cross examination is to:

weaken/dispute the case for the other side;

elicit favourable evidence;

test the credibility of witnesses.

Techniques of probing, insinuation and confrontation are suggested as being

effective in cross-examination. Inherent in cross-examination is a

confrontational atmosphere. This must be balanced against the ethical duties of

a cross examiner.

Cross examination is a right but also imposes certain obligations.

An accused has a right to confront the accuser and the evidence given against

him.

There is however a duty to do so ethically.

Cross-examination must be fair and reasonable, although this principle would

appear, on face value, to be contradictory to the hostile environment that exists

during cross examination.

Cross-examination is not for the purpose of harassing or annoying the witness.

Counsel should remember his duty to the Court; he is not merely a mouth-piece

for his client.

Dealing with criminal cases:

From a prosecutor’s point of view in a criminal case, there is a duty to try

and establish the truth – not just to cast doubt on the version of the

defence witnesses.

This duty to establish the truth does not lie with the person who is

representing the defence. It is the duty of counsel for the defence to test

the State’s case and cast doubt on it. It is not the duty of counsel for the

defence to get to the truth. The onus lies with the State to prove the

charges beyond reasonable doubt.

If your client confesses to you, you are not necessarily obliged to

withdraw from the case. You must explain the parameters within which

you can present the case to the client. You are not, for example, obliged

to disclose your client’s confession (as this is confidential). You can

proceed on the basis that you test the prosecution’s case and can do

anything short of asserting your client’s innocence or putting forward a

version on behalf of your client. You may cast doubt, for instance, by

asserting that the version of the State witnesses could support more than

one probability/interpretation/scenario, this may cast a “reasonable

doubt” which impacts on the onus of proof and may mean that the State

has not proved its case “beyond reasonable doubt”.

In criminal cases you have a duty to present the best possible case you can on behalf of your client and that is permissible. That is your

first duty. Your second duty is not to mislead the court. You cannot,

therefore put versions that are not sustainable on the facts.

If you feel that you cannot represent your client to the best of your ability

(for instance due to your personal circumstances, e.g. if you have

yourself been subjected to an armed robbery which is what your client is

charged with), you are obliged to withdraw but only if your personal

feelings impact on your ability to represent your client.

Dealing with civil cases:

There is not duty to get to the truth. This consideration does not arise. It is a

matter of evidence and the case must be proved on a balance of probabilities. If

you act for the plaintiff, you bear this onus.

Conflict situations will arise – for instance where your duty to your client conflicts

with your duty to the court.

In these circumstances, you should request a ruling from the Bar Council and, if

not possible, from a silk/senior colleague.

Stand the matter down on the basis that professional ethical issues have arisen.

If necessary, postpone.

Leading questions

You can and must ask leading questions in cross-examination as the

opposing witness is likely to be hostile. This is different to examination in

chief where leading questions are not permissible.

For this reason put propositions to the witness – put your client’s version

and pin the witness down.

But, there is a limit. The questions must be relevant and must go to the

issue. The questions must also be accurate and not misleading. (S v

Kubeka)

For instance, you cannot ask a question such as “Are you still beating

your wife” as this is not a fair question and carries an imputation. It is

misleading and improper. You can’t ask a question that is unfair.

Where the underlying assumption assumes the truth of a proposition

which is still contested, you should not use this for cross-examination.

Judges should control irregular cross-examination.

When cross-examining a witness on what they said earlier, a witness

may have a version put to them which is not quite accurate, and they

agree to this. This is not permissible. Must only put accurate versions to

a witness.

See: Pretorius book on cross-examination. Referred to with approval of

the SCA and the CC. Pages 93-96 deal with leading questions.

Accuracy

You must put accurate propositions in cross examination (S v Kubeka –

Putting as fact a version which is not intended to be supported by

evidence.)

S v Gidi - Cross examination should be impartial, unbiased and

unprejudiced. The prosecutor should not conceal facts favouring the

accused or mitigating against the crime.

Multiple and lengthy questions

You cannot ask a string of questions in one. Confusing. Questions

should be clear so that the witness can understand them. (S v Gidi)

Failure to cross-examine

Rule of professional conduct that you are obliged to put the other

witnesses’ version (your client’s version) to a witness and give them an

opportunity to respond. (Brown v Dunn)

S v Xoswa – Statements left unchallenged in cross-examination.

President of the Republic of South Africa v SARFU (CC)

o High Court, De Villiers J found he couldn’t accept the truth of what

Mandela had said.

o CC (pg 36) discussed the duty to put a witnesses’ version to a

witness.

o CC held this is a fundamental rule in our practice – illustrates

comparative practice: e.g. fn 42 Allied Pastoral Holdings which

makes it clear that it is a professional duty which must be applied

substantively, i.e. the substance of the position must be put to the

witness.

Eliciting an admission

An admission that is elicited stands on the record.

S v W – Assertions made in cross-examination may be used against

cross-examiner’s side. (In this case, the accused was charged with an

offence under the Immorality Act. The counsel for accused put it to a

witness in cross-examination that “The accused would say that he was

with you, but that he was drunk.”)

If in cross-examination you elicit an admission which is contrary to your

case it is assumed that you meant to elicit it and it stands on the record.

It can therefore be used against the cross-examiner’s case once elicited.

Cannot restrict a witness to a yes or no answer

You cannot restrict a witness. They are entitled to explain/ fully answer

the question.

Hectoring, rude, badgering, hostile cross-examination

While you are permitted to be sharp/firm with a witness who is difficult

you are not entitled to be hectoring, rude, badgering, hostile. The line

can be difficult to draw.

Professionally unacceptable to badger a witness.

S v Azov – Witness treated with respect.

S v Booi – Prosecutor’s conduct towards the accused – unbecoming

conduct.

S v Makaula – Presiding officer’s conduct towards the accused –

Harassing cross-examination by magistrate.

S v Omar – Hectoring and unreasonable cross-examination.

S v Gidi – Intimidating, insulting and vindictive cross-examination.

Bias

A prosecutor may not be biased in the manner in which he cross-

examines.

In civil cases, there is a degree of bias on the part of the cross-examiner

but if a reasonable answer is given, counsel is not entitled to portray it as

unreasonable or irrelevant.

S v Gidi – Cross-examination should be impartial, unbiased and

unprejudiced. The prosecutor should not conceal facts favouring the

accused or mitigating the crime.

Interrupting witnesses

The cross-examiner is obliged to give a witness a reasonable opportunity

to answer. Cannot interrupt a witness because you do not like the

answer.

If the witness is refusing to answer, you can interrupt and say “You are

not answering the question. Could you listen to it again and answer it?”

S v Gidi – A witness should be given a fair chance to answer the

question and should not be interrupted.

Ridicule/bullying

GCB rule 3.5 – An advocate should not become a channel for irrelevant

questions. An advocate must exercise judgement in relation to the

questions which he asks.

S v Gidi – The purpose of cross-examination is to discover the true facts;

that purpose would be negated by gratuitous bullying. Adverse

comments about demeanour, credibility, reliability and honesty should be

reserved for argument.

S v Omar – Hectoring and rude and unreasonable cross-examination is

unseemly and unfair.

S v Booi – The prosecutor should conduct himself with restraint.

Harassing and badgering cross-examination is not permissible.

Discrepancy between statement and evidence

Duty of prosecutor – S v Radebe

Emotional response to answers given in cross examination

If you feel repugnance, you must not overstate such repugnance.

Effects of unethical cross-examination and general comments

If bad enough in a criminal trial, may render a trial being set aside on the

basis that it is inconsistent with the right to a fair trial.

For smooth cross-examination, there should be minimal interruption. If a

judge interferes excessively, you have a duty to challenge a judge on

this, politely. Improper interruption by counsel by objections to the

questions – this can disrupt the proceedings. Tactical interruption is

serious misconduct.

Don’t be repetitive or laborious in cross-examination.

Coaching a witness is not allowed.

This is not the same as preparation of a witness, which is allowed: This

involves a description of what will happen in court; explaining how the

process of examination in chief and cross examination will work.

Witnesses often anticipate questions – explain that they must answer the

actual question put to them.

Try to alert them to leading questions and answering them properly.

GCB rules – Duties regarding cross-examination of witnesses

GCB rules 3.31 – 3.3.5. See notes on “THE UNIFORM RULES OF

ETHICS”.

Additional reading: Cross Examination in South African Law by P.J. Pretorius

(1997)

1.1 S v Radebe (1973 AD)

When there is a serious inconsistency between the evidence of a

state witness under oath at trial and his written statement to the

State, the prosecutor is obliged to bring to the court's attention this

inconsistency and to make the witness statement available to the

defence for cross-examination, in the absence of compelling

reasons to the contrary.

If, however, the inconsistency is not fundamental, or if the accused

has admitted the elements of the offence which are at issue in the

witness statement, the statement need not be made available,

because the defence will not be able to cross-examine the state

witness on the elements, the accused having admitted them.

1.2 S v Azov (1974 T)

Witnesses who come into the court are entitled to the ordinary

courtesy and respect one extends to decent people. In giving

evidence they are assisting the court in arriving at truth and

administering justice. They are doing a public duty in coming to

court.

No cross-examiner is entitled to insult a witness without very good

reason. It is the duty of the magistrate to protect the witness.

When attacking witnesses, counsel must lay a foundation to the

satisfaction of the presiding officer that there are grounds for the

attack. Otherwise the cross-examiner must extend to witness the

same respect as to any person in society.

No attacks without reason; don't begin with the express assumption

that they are dishonest and that this is licence to attack them; don't

attack a magistrate who intervenes to protect witnesses.

1.3 S v Booi (1964 E)

[“Have you ever been to Gluckburry?”]

Function of prosecutor is to conduct himself with restraint, with

regard to rights and dignity of the accused.

A cross-examination must be as full and effective as possible but it

is unbecoming to subject a witness, especially the accused, to

harassing and badgering cross-examination.

1.4 S v Makaula (1964 E)

[Presiding officer’s conduct towards accused. Harassing cross

examination by magistrate.]

Injunction in Booi is still more serious when presiding officer follows

suit.

Witnesses being questioned by the court should be treated in a

manner aimed at enlisting the sympathy of the witnesses and the

public with law and order. Inappropriate to conduct harassing cross-

examination of minister of religion because this discredits the court

and makes adverse impression on witnesses and public.

1.5 S v W (1963 AD)

[Sex; alleged extortion by woman; Counsel put to Witness in cross-x: “A

will say [x]”.]

Assertions advanced by a party's attorney in cross examination [ie “x”],

specifically and deliberately made, may be regarded as admissions,

by that party, of the matters so asserted. Such assertions require no

additional formal proof before they may be used against that party.

1.6 S v Xoswa (1965 C)

[Prosecutor left unchallenged A’s denial that he was member of Poqo]

Where the State intends to discredit evidence of an accused it should

cross-examine to that end in order to enable the accused to meet the

State's case. In other words, counsel has a duty to put to each

witness as much of the client’s version as the witness can reasonably

be expected to be able to comment on if counsel intends to lead

evidence disputing the version given by the witness.

Failure to cross-examine may leave an assertion unchallenged, and

the absence of challenge in cross examination may lead the court to

find that the onus has not been discharged either because the

unchallenged version creates reasonable doubt, [or because in a civil

case it affects the discharge of onus on balance or probabilities].

1.7 S v Kubeka (1982 W)

[A’s counsel put it to witness that deceased was killed because he was

winning fight with A. Didn’t lead evidence that this happened.]

Although counsel may put questions to witness, and ascertain

details of events and interrogate thereon to test W’s version, cross-

examiner should not couch questions to witness as statements of

facts to which others will depose later when in truth such "facts" are

not part of the case and no evidence is intended to be led thereon.

Such questions mislead the witness.

1.8 S v Omar (1982 N)

Hectoring, rude and unreasonable cross-examination of accused by

a prosecutor is unseemly and unfair.

P’s questions were interspersed with derogatory comments about

the credibility of the witness' answers and demeanour. Any witness

subject to abuse of this nature would be unfairly handicapped

thereby and precluded from doing full justice to himself.

Although A was represented by counsel and counsel did not object,

presiding officer has the duty to ensure that there is fair trial and that

officers of the court comport themselves appropriately. Presiding

officer should have intervened to prevent such cross-examination.

However, the court found that the witness would have remained

unsatisfactory even if questioned fairly. Therefore, magistrate was

correct in rejecting his evidence as false beyond reasonable doubt.

1.9 S v Gidi (1984 C)

Cross-examination by prosecutor (here of unrepresented accused)

was intimidating, insulting and vindictive – all of which are beyond

the pale. Witness not afforded opportunity to respond to questions

put to him.

Cross-examination must be thorough, complete and effective, but

cross-examination of an accused should be impartial. It should not

be biased or prejudiced and should not seek to conceal evidence or

facts known to prosecutor which may favour the accused in defence

or be of mitigating nature.

This follows from purpose of cross-examination, namely to assist the

court in inquiry into truth and therefore proper administration of

justice. Prosecutor should not put to accused or imply in questions

an assertion adverse to accused which prosecutor knows is false

(eg assertion that evidence in trial is recent concoction, where

prosecutor has deposition from witness in his possession which is

consistent with evidence given).

Proper cross-examination does not permit gratuitous bullying of

Witness by prosecutor by being insulting, browbeating and

overbearing. This defeats the purpose of seeking the truth. Should

not ridicule witness or play on his emotions in order to place him at

unfair disadvantage and incapacitate him from answering questions

to best of his ability. Tactics of this kind negate object and purpose

of cross-examination, i.e. to ascertain true facts. Bullying cross-

examination is calculated to intimidate the witness into fearful or

hopeless concessions or admissions which may be untrue or may

prevent witness from giving an explanation of some circumstance for

which there may be an exonerating or mitigating explanation.

W must be given fair chance to answer questions put to him. Must

not interrupt his answer. Must not put next question before previous

one has been answered. Must not direct a flood of words at

accused to which it is impossible to reply.

Questions must be understandable to Witness so that he can

answer them properly. Avoid multiple questions and long and

involved questions. They confuse W.

Prosecutor must reserve adverse comment on W’s evidence,

demeanour, reliability, lack of credibility or dishonesty for address to

court and not use it as a weapon for attack during cross-

examination.

Prosecutor must not so identify him with case for State that he loses

objectivity. Prosecutor mustn’t associate himself personally with

attack on witness in cross-examination. Must not express personal

sentiments to witness in cross-examination.

Court has duty to restrain prosecutor from above conduct and

protect witness (especially the accused in a criminal case) from

these misguided methods of interrogation. Otherwise it may seem

to accused and others that court is associating itself with the unfair

treatment of the accused – justice is not seen to be done. Where

witness is not represented, prosecutor’s duty of fair cross-

examination and court’s duty to ensure fair cross-examination

should be more assiduously observed.

Unfairness of cross-examination rendered trial proceedings

irregular. Test for whether such irregularity vitiated proceedings is

whether guilt of the accused was proved beyond a reasonable doubt

despite the irregularity, i.e. by evidence which was not affected by

the irregularity.

Here, it is probable that 2A declined to give evidence after having

seen how 1A was intimidated, insulted, harassed and overborne.

2A was in effect convicted unheard as a result of unfair prosecution.

1A was deprived of fair opportunity to answer Q’s and accusations

put to him. Both accuseds therefore prejudiced in trial. Accordingly,

set aside convictions.

SEE Model Answer 68 for a good summary of counsel’s duties in cross-examination.

INVECTIVE, IRRELEVANT, DEFAMATORY MATERIAL

Readings:

Findlay v Knight 1935 AD 58 at 71-73

Preston v Luyt 1911 EDL 298

Basner v Trigger 1946 AD 83 at 106-7

Gluckman v Schneider 1936 AD 151 at 161-162

If counsel has proper basis for accusing witness of lying, he can do so. This is

a privilege; must be narrowly used. Must be used within the ambit of the

qualified privilege that applies to counsel and witnesses, viz. litigation privilege.

Litigation privilege

Applies directly to counsel, and also to witnesses.

If witness tells the truth and this is defamatory, action for defamation

cannot be brought.

Counsel will also say defamatory things about people in court as part of

their duty. So long as this is within legal grounds, this is protected.

The privilege is qualified as opposed to the absolute privilege which

apples in the case of spouses and parliamentarians.

Rationale = counsel must sometimes make statements which are prima

facie defamatory (either in drawing pleadings or in presenting the case).

Counsel must be able to put these statements and present the case with

the necessary freedom.

The privilege is qualified because it is subject to rules, Counsel may not

over step the mark.

The test for qualified privilege is:

o Relevance/pertinence/necessity/germaneness;

o Foundation for putting the proposition.

Counsel does not need to believe in the truth of the statement before

putting it.

What if he is reckless to the truth (i.e. knows recklessly that the

statement may not be true. Findlay v Knight suggests that recklessness

to the truth defeats privilege but Joubert v Venter suggests that

recklessness to the truth is not sufficient and that something more is

required (such as malice).

Malice is not permissible – if it can be shown that the statement was

made maliciously, the privilege is defeated.

Plaintiff bears the onus – Joubert v Venter

Joubert v Venter (1985 A) – leading case

Provisional privilege

To defeat this, a plaintiff must show witness/counsel was motivated by

malice or another improper motive.

Witness/counsel must show that he has reasonable foundation for

making the statement: Cannot define this; must be decided on its own

facts: will look at the instructions.

Distinction between what is said in court and what is put in affidavits.

o Used to be blanket protection of advocates for what said in court.

Slightly watered down now.

o What is on paper is looked at more closely.

See also Solomon v Vansello 1938 TPD 35

GCB rules 3.4 and 3.3.1 to 3.3.5. See notes on “THE UNIFORM RULES OF

ETHICS”.

1.10 Preston v Luyt (1911 EDL)

[Attorney cross-examined witness in forgery case. Witness was a

magistrate who had been called to produce record of civil case. Aim was

to show that prosecution was maliciously instituted and to dent

magistrate’s credibility. Attorney asserted that witness had committed

adultery, which was false, malicious and irrelevant to proceedings.]

An advocate is protected when he makes a defamatory statement in

the interests of his client, pertinent to the matter in issue, even

though it be false, provided he has some reasonable cause for his conduct, i.e. reasonable grounds for believing it to be true, even

though it is in fact false.

But if he acts maliciously, and says something altogether

unjustifiable and not pertinent to the cause in any respect, even on

instructions of attorney, he exceeds the privilege. No protection

when he goes out of his way to slander an individual (i.e. unlike in

England, Roman-Dutch law affords no absolute privilege to

adv/attorney in court).

Should refrain from unnecessary defamation and insult although

may comment severely on conduct and character of witnesses if

there are reasonable grounds. Assumed that if statement was

construed as pertinent to the case, there was no intent to injure.

Wide latitude but not at liberty to make irrelevant malicious slander.

Malicious defamatory statements in cross-examination do not serve

objectives of cross examination nor in interests of justice.

Witnesses must be protected from this; otherwise will be reluctant to

come forward.

Repetition of defamatory statement may amount to separate cause

of action - e.g. repeating a defamation outside court.

Here, evidence of malice found in lack of reasonable grounds;

history between attorney and magistrate (who, on occasion,

reprimanded attorney); vindictive attitude of attorney; effort attorney

made to have a reporter present, promising him “good copy”.

1.11 Findlay v Knight (1935 AD)

[Attorney filed plea containing allegations defamatory of Plaintiff, although

he knew there was no evidence to support the allegations.]

Advocates and attorneys conducting cases in open court enjoy

qualified (but not absolute as in England) privilege to utter

defamatory statements unless they are spoken animo iniuriandi.

Qualified privilege based upon public policy.

This qualified privilege embraces two principles of public policy:

o Welfare of soc demands that adv/attorney who pleads cause

of client should have large degree of freedom in laying client's

case before court, even if in so doing he defames a third

party. Qualified privilege extends to the pleadings and other

documents to be placed before the court.

o Process of courts should not be used for wanton defamation

of litigants or third parties. An advocate or attorney must

show that he had reasonable foundation for the defamatory

charges.

Irrelevancy and improper personal motive (e.g. spite or malice) are

usually facts from which animus iniuriandi can be inferred.

But even if these facts don’t exist, there will be animus iniuriandi if

adv/attorney:

o knows charges are false (or does not care whether charges

are true or false); and

o knows, or ought reasonably to know, there is no evidence of

the charge.

In every case, it is for the court to consider whether, in the

circumstances of the particular case, the licence accorded to a

pleader has been transgressed or not. The purpose of the

defamatory allegations is important: has it been made for the

legitimate and honest purpose of laying the claim or charge before

the court?

Difference between advocate and attorney is that adv does not get

info from client, but from attorney; and is entitled to presume that

evidence for attorney’s allegations will be forthcoming. (Attorney, on

the other hand, needs to confirm evidence for client’s allegations.)

1.12 Gluckman v Schneider (1936 AD)

[Attorney, while preparing for defence, was informed by casual

acquaintance that he had been informed that P has 2 previous convictions.

The informant gave the attorney address and age of P.]

Where the advocate has some hearsay evidence that charges made

were justified, the legal inadmissibility of the evidence does not

deprive him from relying on it. Advocate instructed by attorney to

make defamatory charges may assume that the attorney has proof

of the charge (see Findlay).

But basis for making the charge must be reasonable on

consideration of evidence in all its aspects (see Preston and

Findlay). If the evidence is more consistent with absence of belief

than the contrary, then animus may be inferred.

The case goes further and say that that determination of question of

reasonableness is not only relevant to animus, but decisive [but see

Basner].

1.13 Basner v Trigger (1946 AD)

[D advocate made statement in argument that was defamatory of D]

Gluckman and Preston must not be interpreted to say that absence

of reasonable grounds for belief in truth of statements in itself

constitutes animus iniuriandi. Absence of such grounds merely

provides cogent evidence that there was no such belief, which, in

turn, will generally lead to inference of animus and so defeat the

privilege.

Further, while approach to privilege is along same lines in context of

argument as it is in contexts of pleadings and of cross-x, it stands on

somewhat different footing.

State of mind of pleader or cross-examiner can be tested by material

to substantiate what he alleges. But argument takes place after

evidence has been led and, with regard to facts, simply consists in

placing that evidence in the most favourable light.

Considerable latitude must be allowed to party who is thus

presenting his case. Malice must not be attributed merely because

counsel does not think his submissions are well founded or are

pitched too high for reasonable acceptance.

Even far-fetched and fantastic contentions cannot, in themselves,

provide evidence that they were advance from improper motive.

Regarding matters stated in argument, their relevancy is mostly

decisive as to whether or not there is intrinsic evidence of malice.

(As example of exception to this general rule, Pl may be able to

provide evidence from outside statement that D was acting from

improper motive in introducing the defamatory material.)

1.14 Joubert v Venter (1985 AD)

[In application to prevent appointment of substitute receiver in winding-up

proceedings, applicant made per se defamatory allegation that proposed

receiver had stolen property.]

Common cause that affidavit was per se defamatory. Accordingly, 2

presumptions arise: (i) that publication was unlawful; and (ii) that

statements were made animo iniuriandi.

Question is whether nature of onus required to establish privilege is

evidentiary burden (i.e. burden of adducing evidence in rebuttal) or

full onus of proof on balance of probabilities. This question is left

open.

Law confers qualified privilege on counsel, attorneys, witnesses and

litigants iro defamatory statements made during course of legal

proceedings (ie presumed to be innocent).

Some aspects of privilege as it applies to witnesses and litigants:

o no distinction between witness testifying verbally who is a

party and one who is not;

o in order to defeat privilege, P must show at least:

express malice; or

words spoken were false; and witness had no

reasonable grounds for believing them to be true

(possibly, P should have to go further and prove

witness did not believe truth of what he said).]

Regarding counsel's qualified privilege, in the context of legal

proceedings: the statement must:

o (i) have been pertinent or germane to the issue or an issue in

the case; and

o (ii) have had some foundation in the evidence or

circumstances surrounding the trial.

The privilege covers opening address, examination and cross-

examination and addresses to court, and also extends to pleadings

drafted by counsel and other documents necessary to place the

case before the court (including affidavits settled or prepared for

motion court proceedings).

Where counsel drafts a pleading or affidavit on instructions of an

attorney, he is in stronger position than an attorney because he may

assume that the matter has been sifted and that proof will be

forthcoming. Where counsel is briefed to consult with witness and

draft pleadings or affidavits, he is in the same position as an

attorney who act on client's instructions re the privilege. (Findlay v

Knight)

Regarding Q of onus, D must establish (i) in order to be provisionally

protected (Basner). Privilege is thereby established and it is then for

P to prove that D exceeded the occasion (ie (ii)). This is based on

policy considerations of unfettered admin of justice (see Findlay).

P can prove this by proving that D had no foundation for statement,

or malice, or D knew statement was false, or D knew that there was

no evidence to support it, or D made it without instructions and

based on untrustworthy info, or spite. Contrary to suggestions in

Preston, Findlay and Gluckman, it is not sufficient to show that D did

not have reasonable grounds for believing in truth of statement. In

order to be protected by privilege, Counsel need not believe in truth

of statement and, accordingly, absence of grounds for such belief is,

per se, inconclusive.

Here, defamatory statements were made in course of judicial

proceedings and were germane to matter in issue. P must therefore

prove forfeiture of privilege. P failed to prove that there was not any

foundation for statements complained of.

COUNSEL'S DUTY NOT TO MISLEAD THE COURT

Readings:

Ex Parte Swain 1973 (2) SA 427 (N) at 434H

Ex Parte Swain 1973 (4) SA 787 (AD)

S v Hollenbach 1971 (4) SA 636 (NC) at 638

Society of Advocates of Natal and the Natal Law Society v Merret 1997 (2) All SA

273(N)

GCB rule 3.2. See notes on “THE UNIFORM RULES OF CONDUCT”.

Application of this principle can be difficult and, when in doubt, counsel should

obtain a ruling from the bar council.

If taken by surprise it may be difficult to get a ruling in which case you have to

do the best you can by standing the matter down and asking for adjournment.

These issues arise from your professional duty to put your client’s version.

Counsel may not knowingly tell a court something which is false. SEE Model

Answer 84 for the course of action to be followed where an accused tells you in

consultation he is guilty of the offence.

When a client or attorney tells you facts, you cannot know whether they are true

or false. If you are telling the court what your client tells you, you are telling the

truth (about what your client told you).

If you are not aware of something, then you must tell the court that you do not

know the answer.

Counsel cannot be a party to untrue statements (Van der Berg)

If counsel makes a positive statement regarding X, and then discovers X is not

true, then she has a duty to disclose this to the court.

Where your client tells an untruth, you can still present this to the court. But you

cannot tell an untruth. In a trial, you must put your client’s version to the other

side’s witness. If the client then sets out new facts, and says that he did tell you

the new facts:

If you were told the facts and forgot, then apologise;

If you were not told then say nothing as it will make your client look bad.

The inference in your silence is that he is lying.

GCB rule 4.11. See notes on “THE UNIFORM RULES OF CONDUCT”.

Signing pleadings

Every pleading has to be signed by counsel, or attorneys with rights of

appearance, or the unrepresented client.

Signature verifies that this is not a trumped up case and is not brought for

ulterior purposes, and that there is prima facie evidence to support the case.

Can only have prima facie evidence from instructions, or the client directly.

Ensure the instructions are in writing.

Signature is that you have read the instructions and, after proper inquiry, it is a

sound basis of fact, and that it discloses a cause of action or defence.

Contrary to what Marnewick says, tactical denials are permissible (Jansen van

Vuuren v Kruger 1993 (3) 842 (A) at 858)

What happens if you have pleaded a denial which turns out to be false. Denial

in plea is of no consequence and can be tactical. It carries no procedural

weight.

1.15 Ex Parte Swain (1973 N)

[Applicant for admission to Bar did not disclose material facts in

application]

When the court seeks counsel's assurance that a certain set of facts

exists, the Court must be able to rely implicitly on any assurance

given. Same standard is required in relations between advocates

and between advocates and attorneys.

The proper administration of justice could not easily survive if

professions were not scrupulous of truth in their dealings with each

other and with the court.

1.16 Swain v Society of Advocates (1973 AD)

Court will only interfere on appeal on recognised grounds, i.e. where

findings of fact on which decision was based were wrongly made.

The onus is on applicant to show he is fit and proper person to be

admitted. Applicant must show there were no grounds which could

reasonable justify exercise of a discretion [by court a quo] against

him.

Court a quo held that applicant’s failure to disclose in his affidavit the

fact that he had settled a certain action to protect his own interests

at expense of those of his client, and to state why he had settled it,

was breach of utmost good faith which professions of advocate and

attorney require. There was a conflict of interests between two of

his clients; he missed the deadline for the filing of one client’s claim

and so settled that client’s claim against his other client in order to

avoid a claim against him.

1.17 S v Hollenbach (1971 NC)

[Father and son charged with unlawfully purchasing diamonds from traps.

Son pleaded guilty and father pleaded not guilty. Both convicted in

separate trials. Same attorney appeared for both A’s. In mitigation of

son’s sentence, attorney informed court that father had played main role.

This was false representation because son gave evidence in father’s trial

that son was solely responsible.]

Court has right not to be misled by a legal representative. When

father and son were convicted, attorney must have known of their

versions (ie that son was responsible). Son’s confession places

strict limitations on conduct of his defence.

Although confessions of guilt to legal representative do not release

him from duty to defend client, he may not put forward any false

submissions or versions.

Attorney had to act with integrity and integrity demanded that

attorney not allege that father was respondent as mitigating factor in

son’s sentence (i.e. when he knew this was not A’s version during

trial). Court was thereby misled.

Attorney should have refused to defend the father on the basis that

he did.

1.18 Society of Advocates of Natal and Natal Law Society v Merret (1997 N)

[Attorney, who acted for Pl in divorce action, when asked by judge whether

D’s attorney’s knew matter was proceeding on that day on an unopposed

basis, said yes when he didn’t know but had reason to believe defendant

did want to defend. Court eventually rescinded divorce order on

defendant’s application.]

Quoting Swain, court said it could never implicitly trust in or believe

what Merret said from Bar. M had deliberately misled the court,

because he was in an awkward position – his client flew all the way

from Cape Town for the divorce, which would not have proceeded

on an unopposed basis if he disclosed he had no basis to believe

defendant’s attorneys knew the case was proceeding (other than

vague statement from hid client that she told her husband).

Requirement that advocates and attorneys should be honest and

truthful in their dealings with each other and with the court. Merret

here showed demonstrable lack of integrity.

1.19 Van der Berg v The General Council of the Bar 2007 (2) All SA 499

Van der Berg was charged with many instances of misconduct

including overcharging of fees, maladministration of funds and

misrepresentations to the prosecuting authority, failure to disclose

relevant facts to the court.

The charge against him in respect of not having disclosed facts to

the court related to an instance when he when further than his duty

as an advocate.

The matter arose in the following factual circumstances:

o The application for sequestration of Harksen;

o One of the creditors alleged that there was no fund, no trust,

no trustees (in relation to an offshore fund based in

Switzerland).

o Harksen disputed this and produced affidavits attested to by

the “trustees”

o One of the creditors produced evidence that the official who

had attested to the affidavits had never seen two of the

deponents and their attestations were forged.

o Van der Berg and his attorney went to Switzerland to meet

the trustees and secure the affidavits.

o They met with one trustee but he admitted that the attestation

had been forged.

o Counsel produced three affidavits for signature but the

deponents never arrived. He was told that they would be

“arriving soon” as one was in NYC and the other was on the

Mediterranean. They did not arrive.

o Counsel described the whole issue as “ridiculous” and went

home. He then prepared a memo on the whole event.

o In 1996, Harksen’s trustees bring another application for

provisional liquidation in relation to the scam fund. Harksen

provides further evidence in the form of affidavits that the

fund exists, that it has a trust and that there are trustees.

o Van der Berg settles the affidavit despite the fact that he

knew/suspected that the fund/trustees did not exist. He still

settled the affidavit stating the contrary notwithstanding his

experience and the memo which he had prepared thereafter.

Legal principles:

There is a fundamental duty on counsel to his client and to assist his

client to the best of his ability but this duty may be in tension with

counsel’s duty to the court.

Advocate must keep his personal views to himself and cannot be the

judge of his client’s case.

Advocate is obliged to put his client’s version before court but he is

also obliged to tell the court what further information he has which

may cast doubt on that version i.e. the basic facts if these facts have

a material impact on the court’s assessment of the case. They

should be made known to the court.

If Harksen wanted to put a version before the court in relation to the

scam trust/trustees, it was counsel’s duty to do that whether or not

he believed it. There was no difficulty therefore with the fact that

counsel had settled the affidavit despite his knowledge of the facts

to the contrary. Counsel was not obliged to judge his client’s case.

However, because of his personal investigations in Switzerland and

his personal knowledge of the existence or otherwise of the scam

trust and the trustees, he was obliged to tell this to the court

because it could impact on the court’s decision

Joubert v Venter – SCA made it clear, in relation to defamatory

material, that counsel does not lose his qualified privilege if he puts

forward a version which he suspects to be untrue or doesn’t believe.

Counsel is not called upon to believe evidence even if he suspects it

to be false. He is obliged to put that evidence (even if it is a false

version), but if counsel knows something himself which would

influence the court’s decision, he is obliged to disclose it.

Practical advice following this case: Don’t do your own fact finding

as counsel. Work on instructions and don’t go behind the

instructions.

1.20 Incorporated Law Society v Bevan 1908 TS 724

Attorney charged with dishonourable and unprofessional conduct.

Court acquitted D as it was not prepared to find that it disbelieved

him.

It was common cause that his witness had given perjured evidence

but the question was whether or not he had relied on it.

His defence was that he had tried to rely on a technical point and

the court was not prepared to disbelieve him.

Solomon J distinguishes between the passive and the active (page

36). That is, the duty not to mislead the court and the duty to

actively bring information to the court’s attention.

It is the duty of the D not to have relied in any way on perjured

evidence. D could not make submissions on it or rely on it in any

way because the evidence was untrue (after he became aware that

it was untrue – by surprise in court).

The question is then whether this is a complete discharge of D’s

duty, i.e. was it enough simply not to rely on the perjured evidence

or as there some sort of active duty, for instance to withdraw, to

bring the untruth to the knowledge of the court, to disclose what he

knew to be the truth etc.?

Court struggled to set a general rule and said that there were no

hard and fast rules as to what a professional man should have done.

1.21 Ulde v Minister of Home Affairs 2008 (6) SA 453 (W)

[Attorney wilfully did not disclose to court adverse authority in which he had been

involved.]

Must not mislead the court as to what the law is.

Have duty to know what the law is on the issue on which addressing the

court.

Never fail to inform the court of adverse authority.

DUTY TO DISCLOSE MATERIAL FACTS IN EX PARTE APPLICA-TIONS

Readings:

Logie v Priest 1926 AD 312 at 323

Power NO v Bieber 1955 (1) SA 490 (W) at 503-4

Ex Parte Satbel 1984 (4) SA 347 (W)

Ex Parte Hay Management Consultants (Pty) Ltd 2000 (3) SA 501 (W)

Toto v Special Investigating Unit 2001 (1) SA 673 (E) at 683A-I

Herbstein & Van Winsen 4th Edition, pp 312, 350

Ex parte applications are addressed to the registrar.

On affidavit and notice of motion.

Setting out order sought.

No notice is given to any other party because:

The relief sought is not final; or

Because it is not necessary to give notice.

If relief is sought against another party, the notice should be addressed to him

but need not be served on him.

Any person having an interest in an ex parte application that may be affected by

such application may deliver a notice of application by him to oppose the ex

parte application, supported by an affidavit setting out the nature of his interest

and the grounds upon which he wishes to be heard, whereupon the registrar will

set down his application at the same time as the ex parte application (Rule 6(4)

(b)).

The applicant must show the utmost good faith in placing material facts before

the court in ex parte applications (Ex Parte F 1962 (1) SA 48; Schlesinger v

Schlesinger 1979 (4) SA 342 (W) 348C – 354A).

If, for instance, a defendant’s whereabouts are known in an application for

edictal citation, they should be stated. All sources of information as to the

whereabouts of the defendant should be exhausted and fully investigated and

the application must state the steps that were taken.

When making an ex parte application in which relief is claimed against another

party, the applicant must make full disclosure of all the material facts that might

affect the granting or otherwise of the ex parte order (De Jager v Heilbron &

Others 1947 (2) SA 415 (W); Power NO v Bieber & Others 1955 (1) SA 598

(SWA); Schlesinger v Schlesinger.)

The utmost good faith must be observed.

So much so that if it appears that material facts have been kept back – whether

wilfully, mala fide or negligently – that might have influenced the court in making

the order, the court has a discretion to set aside the order with costs on the

grounds of such non-disclosure (Estate Logie v Priest 1926 AD 312 at 323; De

Jager v Heilbron; Power NO v Bieber); Schlesinger v Schlesinger)

The court has a discretion. The mere existence of material non-disclosure will

not necessarily mean that the court will exercise its discretion against the

applicant.

1.22 Logie v Priest (1926 AD)

[Petition for sequestration of estate was sent off after settlement

agreement for payment of an outstanding debt had been arrived at, but

petition made no reference to agreement.]

The fact and terms of an agreed settlement should have been

brought to the attention of the court.

In ex parte applications, it is the duty of the applicant to lay all the

relevant facts before the court so that it may have full knowledge of

the circumstances of the case before making its order.

The settlement was a relevant and important circumstance in the

proceedings; had the judge been advised of the settlement he may

not have granted the order for sequestration.

1.23 Power NO v Bieber (1955 W)

[Director of company applied ex parte to judge in chambers for commission

to investigate conduct of liquidator of that company. Didn’t give notice to

liquidator of application.]

Too often certificates of urgency are presented where urgency does

not exist. Complete candour and disclosure is required of applicant

in ex parte proceedings.

“The utmost good faith must be observed by litigants making ex

parte applications in placing material facts before the court; so much

so that if an order has been made upon an ex parte application and

it appears that material facts have been kept back, whether wilfully

and mala fide or negligently, the Court has a discretion to set aside

the order on the ground of non-disclosure.” (Herbstein & van

Winsen).

Counsel should not use ex parte procedure to gain tactical

advantage over opponent in circumstances of partial and incomplete

presentation of the facts. Object of ex parte application here was to

steal a march on liquidator.

Here, had notice been given, result would have been different.

Liquidator would have successfully opposed. General practice is

that no order will be made unless person is served with notice.

Audi alteram partem, and any departure therefrom, must be amply

safeguarded and scrutinised.

1.24 Ex Parte Satbel (1984 W)

[Ex parte application ito s311 of Companies Act. In notice of motion, for

unknown reason, draft order submitted by applicant’s attorney to court

calling shareholders’ meeting to consider scheme of arrangement did not

follow standard form.]

Motion court judge has hundreds of cases on his list. Very easy not

to notice a substitution of a standard form.

It is counsel’s duty to draw to the judge's attention any deviations

from the standard form orders in the papers and to explain such

deviation. Standard orders exist to facilitate administration of justice

and have been carefully crafted for that purpose. Judge would not

have given order in form prayed if notified of deviation.

1.25 Herbstein and Van Winsen, p 80-81

Make full disclosure of all material facts which might affect the

granting or otherwise of an ex parte order. Only existing facts may

be alleged. To allege facts in anticipation of the event is improper,

and the court may mark its disapproval by disallowing costs of the

affidavit.

The utmost good faith must be observed by litigants making ex parte

applications in placing material facts before the court; so much so

that if an order has been made upon an ex parte application and it

appears that material facts have been kept back, whether wilfully

and mala fide or negligently, which might have influenced the

decision of the court whether to make an order or not, the court has

a discretion to set aside the order on the ground of non-disclosure.

It is, however, a discretion and is not peremptory, even where non-

disclosure was material.

1.26 Ex Parte Hay Management Consultants (Pty) Ltd 2000 (3) SA 501 (W)

It is counsel’s duty to direct the court’s attention to relevant authority

especially in ex parte applications or cases where the other party is

not represented.

Counsel is not expected to read the law reports as they are

published and recall the contents and effect thereof. But they are, if

they have to present argument, expected to consult textbooks

monthly and consolidated indexes and noter-ups to the ordinary law

reports, as well as the weekly law reports (published after the

ordinary law report indexes) as well as to consult computer services

available to retrieve data.

This duty is not just in contested cases but also uncontested cases.

Counsel has the duty to refer the court to any relevant authority.

Here, had Wunsh J not sat in Full Court decision (on submission to

jurisdiction) which counsel “could not find”, he would have been

misled by counsel’s ignorance and failure to bring it to his notice, to

grant an order against that authority.

The judge in Motion Court proceedings relies on counsel (especially

in ex parte applications) and where cases have no appearance for

the respondent to inform the court of any cases the effect of which

may be that they are not entitled to the relief they seek.

1.27 Toto v Special Investigating Unit 2001 (1) SA 673 (E) at 683A-I

Here, counsel also appeared in a previous case, which was relevant

to the disposition of this matter. He did not bring it to the attention of

the court, arguing later (when the court raised the authority mero

motu) that it could be distinguished.

Counsel has a duty to the judiciary to ensure effective and fair

administration of justice.

Legal practitioners are obliged to act with the utmost good faith

towards the court.

Consequently, if counsel is aware of a judgement that is material to

the issues before the court, he has a duty to inform the court even if

the judgement is against the case that he is presenting.

A legal representative who appears in court is not merely an agent

of his or her client, but has a duty towards the judiciary to ensure the

efficient and fair administration of justice.

The Court should always be able to accept and act on the

assurance of a legal representative in any matter it hears and, in

order to deserve such trust, legal representatives must act with the

utmost good faith towards the court.

The proper administration of justice could not easily survive if legal

representatives were not scrupulous in their dealings with the court.

As a result it has long been regarded as a legal representative's

duty to inform the court of a judgment which is material to the issues

before the court and of which he or she is aware, even if such

judgment is against the case he or she is presenting.

If the judgment is against the case being presented it could be

sought either to argue that it was wrongly decided or to distinguish it.

It is not for counsel to draw the distinction and draw the conclusion

that the case was therefore not relevant.

For a legal representative to be aware of a judgment adverse to his

or her case and not bring it to the attention of the court is a gross

breach of duty.

SEE Model Answer 52 for process to be followed if authority comes

to the attention of counsel after giving of judgment.

DUTY OF COUNSEL TO OBSERVE BAR RULES

Readings:

Pretoria Balieraad v Beyers 1966 (1) SA 112 (T) at 115, 1966(2) SA 592 (AD)

Olivier v Die Kaapse Balieraad 1972 (3) SA 485 (AD) at 498A-B

Society of Advocates of SA (WLD) v Cigler 1976 (4) SA 350 (T) at 354

Serrurier v Korzia 2010 (3) SA 166 (W) at 180G

GCB rule 3.1 and rulings thereon: Duty to client. See notes on “UNIFORM

RULES OF CONDUCT”.

S v Kutali 2003 (4) SA 258 (W). Criminal appeal from the MC: judges refer to

rule 3.1 and quote it. Characteristic of the advocate’s profession is fearless

independence. Independence of the bar is constitutionally protected right; the

right to access to adequate counsel is a right, not a privilege. Para 12.

Maleka 1998 (4) SA 88 (T). Rule which is equally applicable to attorneys; not a

licence to act foolishly, or dishonestly. i.e. to act fearlessly but not foolishly or

dishonestly.

David Pannick QC at 90. Our rule is a modified form of rules of England and

Wales. Advocate has a duty of loyalty; and has to apply himself fully to every

aspect of his obligations. Professional duty to both lay (non-lawyer) clients, and

professional (lawyer) clients. Must have read the papers fully; must interview

well; know all the facts; skills to present in court, etc. See books on advocacy in

UK and Australia – command of language seen as an essential skill.

Counsel also has the same privilege as his client in asserting and defending

client’s rights and to use/adduce every argument and observation that can

legitimately be made in accordance with the principles and practice of law.

Must have a reasonable argument before advancing it.

GCB rule 3.2 and rulings thereon: Duty to court. See notes on “UNIFORM

RULES OF CONDUCT”.

Be astute as to whether you have knowledge of the facts; what the source of

your knowledge is; when you have a duty to disclose, and when not; and if there

are any doubts, get a ruling from the bar council.

Underpinning value is integrity. e.g. May never tell the court an untruth; can

remain silent. Must always have a basis for making assertions in a court, e.g. in

asserting in a motion court that the papers are in order; must check that all the

papers are in order, even on how they were served. Don’t say the papers are in

order if you haven’t checked them and haven’t ensured that they are. Must

point out any problems with the papers.

Duty regarding assertions of law – easier than fact – duty is absolute:

Must bring to the attention of the court, any relevant case on the point in

issue, even if it is against your client. If your opponent fails to disclose a

case, even where it is adverse to your client, you must disclose it. Toto

Must have done sufficient and adequate research

o Ex Parte Hay Management Consulting Wunsh J – Judge said

there was authority on a point; and advocate said there wasn’t.

Judge then found the authority – advocate either incompetent or

didn’t do her job.

o Pick the leading judgments; don’t need to cite every case. Use

discretion.

o Unreported judgments. Used to be customary to hold onto

unreported judgments; now obliged to disclose them and furnish a

copy to the opponent at the earliest possible opportunity.

1.28 Pretoria Balieraad v Beyers (1966 T)

[BC applied for removal of Ras Beyers from roll of advocates. It appeared

that B had in many ways failed to observe rules of conduct. Application

granted with costs.]

BC has established rules of conduct which advocates ought to obey.

The societies are recognised by the courts and by statute and these

rules provide that breaches of such rules must be reported to the

Bar Council. The rules of conduct of advocates laid down by Bar

Councils should, as far as possible, be upheld by the court.

It is provided, inter alia, that advocate must not act without

instructions from an attorney, and must not consult directly with the

public except on instruction and in the presence of an attorney –

other than in exceptional circumstances. Here, respondent did both

advocate and attorney work. The separation between the two

branches of the profession entails reciprocal duties; if a member of

the one profession interferes with the other, cooperation between

the two professions will become impossible. Therefore, application

for removal from the roll of advocates is granted with costs.

1.29 Beyers v Pretoria Balieraad (1966 AD)

The court a quo found that the advocate had breached the Bar

Council rules by unprofessional and unethical conduct. He

continued with a matter without intervention of an attorney,

attempted to obstruct an application from the Bar to have his name

removed from the roll, made his office available for service of

documents and sought publicity for himself.

Beyers took instructions directly from Botha and Van der Walt,

charged them R20 000 for the services and took a pledge of their

plane to secure payment of future fees.

Taken cumulatively and having regard to wide discretion of court a

quo, it was impossible, regard being had to the nature of the

application and the wide discretion of the court a quo, to differ from

the finding of the court a quo in the exercise of its discretion.

1.30 Olivier v Kaapse Balieraad (1972 AD)

[BC applied for removal of O from roll of advocates under Admission of

Advocates Act on basis that he violated Bar rules. O asked attorneys to

pretend that they briefed him. Application granted]

Appellant's whole attitude to the Bar and its rules reflected an

absence of responsibility, honesty and integrity which ought to

characterise the advocate. He was not prepared to subject himself

to the rules and the court is entitled to act against him. (Appellant

was guilty of not sending out accounts, etc.) The matter is not

simply a “domestic” one for his local Bar Council. The court may

regard untruthful evidence given by an advocate as an aggravating

circumstance when deciding upon what steps to take against him.

The court a quo had doubts as to the truth of some of the appellant’s

replies to questions and found that he should be removed from the

roll. Whether this is an independent ground for removal discussed,

but not decided.

In a case such as the instant, proof on a balance of probabilities was

the applicable measure of proof.

Court a quo could not be held to have been wrong in the exercise of

its discretion.

1.31 Society of Advocates v Cigler (1976 T)

[Soc applied to remove Counsel from roll of advocates because he

breached rules of Soc, including doing attorney’s work and charging

excessive fees. Application based on allegation that he is not a fit and

proper person to practise as advocate as envisaged in s7 of Admission of

Advocates Act: “Court may strike advocate off roll if it is satisfied that he is

not a fit and proper person to continue to practise as an advocate.”]

C charged excessive fees and disavowed knowledge of the

“reasonable fees” rule. He received briefs to settle matters, which is

acceptable, but then effectively took over the attorney’s entire

practice by settling hundreds of matters. He also charged for results

and “snatched” a colleague’s briefs.

The fact that an advocate has breached the Rules of the Society

even in isolated instances may be relevant to the Court's decision as

to whether he is a fit and proper person to practice as an advocate,

and so is a finding whether he treats the Rules of the Society with

contempt. Breaches of the Rules may cause an injustice and even

an unfair trial. It is for this reason that the courts have always

assisted the Society of Advocates in upholding and enforcing their

rules.

The charging of excessive fees is not only a breach of the Rules but

is also a matter of serious concern particularly where it is done in a

large number of cases and over a long period.

1.32 Serrurier v Korzia 2010 (3) SA 166 (W)

[Counsel’s fees not paid. Action claiming outstanding amount from

attorney. Attorney’s stance that she not liable to pay counsel's fees, but

that they must look to the client (the third party) for the payment of their

fees.]

It is not in issue that the usual situation is that, when counsel is

briefed by an attorney, the attorney in fact pays counsel's fees. The

question is, what happens if the client does not pay the attorney? Is

the attorney in the position of an agent who is not liable if a client

does not pay?

Bertelsmann v Per misunderstood by some as being to the effect

that an attorney was not liable to pay counsel's fees. That was not

what the decision said. All that it said was that it could not be

accepted as law that an advocate had to be paid by his attorney.

Such a practice had to be proved by evidence. In finding the

attorney liable for the fees the court was satisfied that the

requirement in that judgment, that evidence had to be led to prove

the existence of a professional practice or trade usage, was

satisfied.

Wrt liability of attorney for fees of an advocate, attorney would

always be liable for counsel's fees in view of:

o obligation to pay fees had to flow from an agreement between

parties;

o this agreement could either be an express agreement or by

necessary implication;

o counsel not allowed in terms of their ethical rules to receive

instructions or payment from a client;

o if there was not an express agreement between counsel and

attorney the necessary implication was therefore that it could

never be an implied term of the agreement that counsel

looked to the client to pay his fees;

o counsel would not be permitted to conclude an express

agreement that his fees be paid by anyone else than his

attorney;

o it therefore followed logically that an attorney would always in

South African law be liable for counsel's fees, even in the

event of the client not paying him.

THE INDEPENDENCE OF COUNSEL

Readings:

R v Matonsi 1958 (2) SA 450 (AD) at 456A-457F

Carolus v Saambou Bank Ltd.; Smith v Saambou Bank Ltd 2002 (6) SA 346 (SE)

Counsel should at all times maintain his professional independence.

This principle is essential to the profession which is a referral profession.

Although counsel must follow instructions of client, the manner in which a case

is conducted is the province of counsel. Counsel must therefore heed his

client’s instructions (if client wants to testify although counsel may think this is

ill-advised, he may have to bow to his client’s wishes), but if the course of

conduct that is suggested by the client is so far-fetched, counsel may have to

withdraw. Not a step taken lightly.

GCB rules 3.5, 4.5, 4.29, 4.30, 5.5, 5.6 and rulings. See notes on “UNIFORM

RULES OF CONDUCT”.

1.33 R v Matonsi (1958 AD)

[A convicted of murder. In granting leave to appeal, Judge said A was

prevented from giving evidence by his counsel when he wished to do so.]

An accused may not question counsel's conduct of the trial and

claim relief because counsel "prevented" him from testifying. Trials

cannot be conducted partly by client and partly by counsel. Once

the client has placed his case in the hands of counsel, the latter has

complete control and it is he who must decide whether a particular

witness, including his client, is to be called or not.

If accused, contrary to counsel’s advice, insists on giving evidence,

and thereby makes it impossible for counsel to exercise his legal

ability honourable and faithfully, then the advocate must withdraw

from the case rather than act against the express wish of his client.

If, before verdict, A had claimed right to continue the conduct of his

case in person, situation might be different. An ignorant accused,

who wishes to give evidence contrary to counsel's advice, should be

advised that he is free to withdraw his mandate (even from pro deo

counsel). The dilemma is between precipitous and improper

withdrawal and unreasonably overriding client's will. This is

especially difficult where matter is capital matter where counsel is

representing the accused pro deo and without other legal

assistance.

But here, even if A was entitled to withdraw his mandate at end of

Crown case, he didn’t do so. Only expressed disagreement with

conduct of case after verdict had been given. Accordingly, trial was

regular and correctness of verdict cannot be challenged on appeal.

1.34 Carolus v Saambou Bank Ltd; Smith v Saambou Bank Ltd (2002 SE)

[Attorney appeared for both applicants in court – attorney had also made

affidavits on behalf of applicants deposed to by himself and in relation to

the merits of the matter. Applications for rescission of judgments given on

mortgage bonds. Applications refused.]

o Independence and objectivity of counsel (here, attorney)

compromised if he had identified himself with the issues by also

being a witness.

o Proper and desirable practice required practitioners to have and

maintain an arm's length association with the merits of matters

handled by them. Cannot be counsel and a witness in the same

matter.

o Normally court should not allow such counsel to continue appearing.

At very least must get assurance that they will not rely on the

affidavit in question.

BEHAVIOUR IN COURT

Readings:

R v Silber 1952 (2) SA 475 (AD)

R v Rosenstein 1943 TPD 65

S v Tromp 1966 (1) SA 646 (N) at 653G-H; 655C & 655H-656A

S v Nel 1991 (1) SA 730 (A)

Must exercise the utmost decorum in court and show respect for the court.

Counsel must behave professionally. Misbehaviour detracts from persuasive

presentation. It may amount to unethical behaviour and some misbehaviour is

also a crime – i.e. contempt of court.

CC judgment on contempt of court, per Kriegler J

o Judges mustn’t be too sensitive about criticism.

o If a well-articulated criticism on the merits, then it is not contempt.

o If it does not occur in the face of the court, then it must be dealt with by

way of normal criminal proceedings.

Two categories of contempt:

o In facie curiae: Contempt in the face of the court, then the court has a

duty to protect its dignity and must be deal with the contempt

summarily. Can commit the offender summarily for contempt in facie

curiae (in open court). Judge is prosecutor, witness and judge.

o Ex facie curiae (i.e. not in open court): Cannot be dealt with

summarily by a judge, must follow normal procedures for criminal

matters.

1.35 R v Silber (1952 AD)

[A summary contempt of court order was imposed on an attorney who

applied for the magistrate to recuse himself on the ground of bias, stating,

in effect, that although in general the magistrate had a, possibly deserved,

reputation for honesty, he had failed to live up to that reputation in the tria l

and had given rulings against the defence which he would not have given if

he had not been biased. The court held that this was a “wilful insult to the

magistrate” ito s180 of Magistrates’ Court Act, and the accused had rightly

been convicted.]

Power to commit summarily for contempt in facie curiae is essential

to proper admin of justice. However, in light of fact that magistrate is

defending himself and party affected has less than usual opportunity

of defending himself, it should be restricted to cases where due

administartion of justice clearly requires it.

Many forms of contempt require prompt and drastic action to

preserve the court's dignity and due carrying out of its functions.

Here, there was allegation that A wilfully insulted magistrate in

course of proceedings. To impute bias is a grave insult, but the

statutory inquiry is whether it is not merely an insult but a wilful insult

to the magistrate. Every litigant has the right to ask the presiding

officer to recuse himself but this right must be honestly exercised. It

must not be a cloak for a wilful insulting of the court.

Here the grounds of the application were not the usual ones of facts

which were outside the course of the proceedings but they related

purely to what happened in the course of the trial.

Bias is different to a state of inclination to one side or the other as a

result of evidence or argument. If the court indicates at one stage or

another that it thinks one side has a better prospect of success, this

is not bias.

Although it is not desirable to give an impression of a provisional

view favourable to one side, a claim of bias may not ordinarily be

based upon this alone. Here there is evidence of wilfulness.

The application and its terms were carefully thought out by the

attorney. Even though he may think this may further his client’s

case, an ultimate sense of duty to the client may not save an

immediate intention to insult the court from a contempt order. By

allowing his mind to fall into such a state of hostility to the

magistrate, attorney was reckless whether the charge of bias had

the slightest foundation or not.

1.36 R v Rosenstein (1943 TPD)

[Defence counsel interrupted prosecutor when latter was questioning

Accused, and said A didn’t say things alleged and that record was wrong

and contained many inaccuracies. Refused to apologise to court when

asked to do so, on basis that he was merely stating his opinion. Fined for

contempt of court ito s7 of Magistrates’ Court Act (“wilful insult to

magistrate”).]

Two Q’s to be answered: (i) was the conduct insulting to magistrate;

and (ii) was insult wilful.

Re (i), Court held the conduct had been insulting to the court

because it imputed to the magistrate carelessness or incompetence

in keeping the record, and because the alleged inaccuracies in the

record had not been drawn attention to in the proper manner. To

announce without relevance that record contained inaccuracies was

calculated to bring courts into disrespect, and was rightly regarded

as “insulting”.

Re (ii), the insult was moreover “wilful” in that even if the statement

was made the first time thoughtlessly, on the spur of the moment

and without thought as to its nature and effect, Counsel had

persisted in this attitude (ie by refusing to apologise). By failing to

apologise for it, counsel converted what may have been merely

thoughtless into a wilful insult.

1.37 S v Tromp (1966 N)

[T visited another town and, on his way, struck a pedestrian (S). T

rendered assistance and S did not want to press charges. Afterwards, T

sued one P. P asked Minister of Justice to prosecute T on charges relating

to the incident with S. [See rest of convoluted facts.] In affidavit submitted

in mitigation of sentence, A referred to “malicious conduct of State” and

said “I do sincerely trust that, now that I have allowed State to achieve a

magnificent victory, I will be allowed to live in peace.”]

Contempt of court concerns itself only with that conduct which

impinges on the administration of justice in or by the courts and not

the part played by the executive, its officials, employees and

servants (even a prosecutor), save in so far as attack on them

imports disrespect of the courts.

The above should not be taken as denying that members of the

public and the press have the right to embark upon legitimate

criticism of courts in good faith in public or private; provided they

abstain from imputing improper motives to those taking part in

administration of justice and are not acting in malice. Justice is not

a cloistered virtue.

Appellant’s comments were admittedly sarcastic and derisive. But

not derogatory of prosecutor or calculated to bring admin of justice

by or in courts into disrepute. The State, like any other litigant, must

submit to comment from its opponents. He who enters the lists must

be prepared to take verbal knocks; a contest in the courts is not to

be equated with a young ladies’ debating society.

1.38 S v Nel (1991 AD)

[AD found that Appellant had correctly been convicted of 2 counts of

contempt of court. A had insulted presiding judge by accusing him of

playing cat and mouse games and accusing him of being a coward.

Appellant represented himself in an application for custody of his children.]

Very often conduct which strictly speaking constitutes contempt of

court can quite fittingly be merely ignored without really impairing the

dignity or authority of the courts or the orderly conduct of

proceedings. Too liberal a use of the contempt power can

undermine the reason for the existence of that power.

If presiding officer decides that contemptuous conduct cannot be

overlooked, he has 2 options:

o refer matter to AG to decide whether person should be

prosecuted in the ordinary course; or

o if there is a need to act more speedily to protect the

reputation or authority of the court or the orderliness of the

proceedings, he can find him guilty summarily, ie without

opportunity of being heard. This is done only in the most

exceptional and serious circumstances.

Option (ii) is such drastic deviation from most fundamental principles

of our legal system that it can only be permitted in most exceptional

circumstances – consider background to, and nature of, contempt;

whether person is lawyer or layman and in latter case his knowledge

and experience of court procedures.

Contempt in facie curiae is unique offence; distinct procedure

whereby offender can then and there be found guilty and sentenced.

Offender is not ordinary criminal and should not be treated as such.

Justification for procedure is to maintain reputation and dignity of

court and orderliness of its proceedings. Punishment is imposed to

enforce court’s authority, not for retribution, reformation or

deterrence. Accordingly, heavy sentence is ordinarily inappropriate.

Here A, despite being layman, not only had intention to insult judge,

but was also fully aware that he was committing contempt. But

sentence reduced: what was required was sentence to bring him to

his senses, not to destroy him.

INTERVIEWING WITNESSES FOR THE PROSECUTION

Readings:

Shabalala v Attorney-General, Transvaal 1996 (1) SA 725 (CC)

GCB rules 4.1, 4.2, 4.3, 4.4 and 4.5 and rulings. See notes on “UNIFORM

RULES OF CONDUCT”.

Civil cases

Counsel cannot force a witness to give evidence for his client.

Can subpoena witness to get them to court. This is the machinery to get them

to attend court. It is hazardous to call a witness who you have not interviewed.

In civil litigation, you can interview anyone who want to (no possession over a

witness). If the person has already been interviewed, you must consult the

other side first. They are not entitled to refuse the interview, and are not entitled

to attend the interview. What is permissible is for them to tell the witness that

the witness is not obliged to attend the interview.

If a person has already given evidence in a trial, then you may not interview

them without the other side’s representative being present, unless they decline

to attend.

Criminal cases

R v Steyn (1954) - leading case prior to Shabalala. SEE Model answer 23A for

changes brought about by Shabalala to prosecutor’s duty.

Blanket prohibition on interviewing State witnesses, unless the prosecutor

gave permission for this. Legal professional privilege also exists with

respect to the State – hence the protection for the police docket.

Such blanket prohibition overturned in Shabalala as being unconstitutional.

However, can’t give unfettered access to the docket (and witnesses?),

although a blanket docket privilege is unconstitutional.

Following from this judgment, Rule 4.3.2 was formulated.

Propositions which can be extracted from it:

(a): May not interview anybody who you know is likely to a State

witness unless you first have permission from the prosecutor or AG.

Prosecutor or AG may impose conditions, and you are then obliged to

comply with them.

(b): if prosecutor or AG refuse permission or give unreasonable

conditions, you can apply on notice of motion to a court for

permission.

Rule only relates to a witness who is a witness re the charge against

the accused. A witness for some other purpose is not covered by the

rule.

(c): If unclear whether a person is a witness (but it is reasonable to

suspect that they may be), then you must first get confirmation, before

endeavouring to interview them, that they are not a witness for the

prosecution. The attorney must confirm this in writing. Don’t put

“without prejudice” as it is not without prejudice.

(d): When a person is to be regarded as a witness for the prosecution:

o (i) Someone from whom the police have obtained a statement

re the charge or the events from which the events have

ensued.

o (ii) Anyone actually called.

o (iii) Person who was to be called as a witness and then

prosecutor changes his mind, is still regarded as a witness.

(e): Rules on prosecutors – not clear whether it has any binding effect

on prosecutors, but is a reflection of the common law. Prosecutor

must provide access to statements of witnesses and the police docket

insofar as it enables an accused to exercise his right to a fair trial.

Prosecutor can refuse access where:

o there is a reasonable risk that disclosure would lead to the

identify of an informer or state secrets;

o there is a reasonable risk that disclosure might lead to the

intimidation of witnesses;

o otherwise prejudice the proper ends of justice; or

o access is not justified for the purposes of a fair trial.

(f): Other duties on prosecutors:

o prosecutor must notify the defence of who he will call and to

supply statements of such persons which are in the possession

of the State (except insofar as they are legally privileged) or

any other statements that were made by that person that were

previously in the possession of the State;

o where a state witness departs materially from the statement

given to the police, the prosecutor is obliged to tell the accused

and his representative immediately, and supply the statement.

What is material must be considered in the light of the

Constitution.

1.39 Shabalala & Others v Attorney-General Transvaal (1996 CC)

Insofar as and to the extent that the rule of practice pertaining to the

right of an accused or his legal representative to consult with

witnesses for the State prohibited such consultation without the

permission of the prosecuting authority, in all cases and regardless

of the circumstances, it was not consistent with the Constitution.

An accused person has a right to consult a State witness without

prior permission of the prosecuting authority in circumstances where

his or her right to a fair trial would be impaired if, on the special facts

of a particular case, the accused could not properly obtain a fair trial

without such consultation.

The accused or his or her legal representative should in such

circumstances approach the Attorney-General or an official

authorised by the Attorney-General for consent to hold such

consultation. If such consent is granted the Attorney-General or

such official should be entitled to be present at such consultation

and to record what transpires during the consultation. If the consent

of the Attorney-General is refused the accused should be entitled to

approach the Court for such permission to consult the relevant

witness.

The right referred to above does not entitle an accused person to

compel such consultation with a State witness:

o if such State witness declined to be so consulted; or

o if it was established on behalf of the State that it had

reasonable grounds to believe such consultation might lead

to the intimidation of the witness or a tampering with his or

her evidence or that it might lead to the disclosure of State

secrets or the identity of informers or that it might otherwise

prejudice the proper ends of justice.

Even in the circumstances referred to above, the Court might, in the

circumstances of a particular case, exercise a discretion to permit

such consultation in the interest of justice subject to suitable

safeguards.

PRIVILEGE

Readings:

Heiman Maasdorp & Barker v S I R 1968 (4) SA 160 (W) at 160 and 162-164

R v Cox and Railton 1884 (14) Q B D 153

R v Davies 1956 (3) SA 52 (AD) at 57-59

S v Kearney 1964 (2) SA 495 (AD) at 499-500

R v Fouche 1953 (1) SA 440 (W) at 445-449

Joubert v Venter 1985 (1) SA 654 (A)

Thint v NPA 2009 (1) SA 1 (CC) at par 184

Two types of privilege: legal professional privilege and litigation privilege. They are

different.

Legal Professional Privilege – General

Common law privilege when consulting a legal advisor with the purpose of

obtaining legal advice, with the effect that the legal advisor may not, without the

consent of the client, disclose any confidential matters communicated in words

or documents to him/her by the client. (Heiman Maasdorp)

Legal advisor must to been consulted in confidence.

This can occur even in informal circumstances (Fouche)

Only in respect of matters within the ordinary scope of a lawyer’s professional

employment (for instance, not in respect of the commission of a crime. (Cox)

Communications between legal advisor and client are covered (can be

documents or information orally imparted)

Privilege can be waived by the client. It is there unless waived by the client.

Privilege attaches to the client and not to the attorney (it is not the right of the

attorney). Client invokes privilege. The attorney can claim privilege on behalf of

the client (by virtue of the agency relationship between attorney and client) and

has the same rights to privilege as the client

If privileged information is disclosed accidentally, then it must be returned

without reading it. Privilege is of the client, not the legal representative.

If in court, something occurs which will result is breach of a client’s privilege,

counsel has a duty to prevent it.

Privilege must be claimed. Bogoshi (SCA). Not simply something that the court

will take account of mero motu.

If there is material in a document which is privileged, but the document is

referred to, then the privilege to the confidential/privileged information is

deemed to be waived.

Payment of an attorney is not decisive of the existence of privilege.

Only clients approaching attorneys for advice (not witnesses).

ATTORNEY-CLIENT PRIVILEGE (see (2) for qualified privilege in defamation)

1.40 Heiman, Maasdorp & Barker v Sect for Inland Revenue (1968 W)

Plaintiff’s attorneys asked whether attorney-client privilege applied to docs

relating to client that were demanded by IR ito s74 of Income Tax Act

(“Production of docs to obtain full info iro income of any taxpayer”).

Person has a common law privilege when consulting legal adviser

that his legal adviser will not, without his consent, be permitted to

disclose any confidences communicated to him in words or

documents in the course of the attorney-client relationship, in court

of law or any other tribunal.

Privilege is based on public policy and is part of common law. It is

essential for the proper admin of justice that a litigant may be able to

take his legal adviser fully into his confidence and make full

disclosure to him of circumstances of his case without fear of

betrayal. Furthermore, as a litigant cannot be compelled to give

evidence against himself, he must know and be assured that his

legal adviser also will not without his consent be able to give

evidence against him in regard to disclosures made in course of

consultation.

Attorneys must decide for themselves which of client’s docs are

privileged. Privilege is limited to protection of confidences between

attorney and client.

The general rule of section 74 of the Income Tax Act does not

override the special rule of this privilege.

An attorney may not claim privilege in respect of documents held on

behalf of the client if the client enjoys no such protection.

General observations:

o Attorney cannot claim privilege iro document which, if it were

in the hands of his client, client would be obliged to hand over

to Inland Revenue;

o Nor can he refuse to hand over memo prepared by him for

client’s use in the conduct of his affairs, for memo would not

form part of confidences between attorney and client;

o Introduction of a third party is very often evidence that matter

is not in nature of a confidence between attorney and client;

o Taxpayer cannot, by employing an attorney to do certain

things for him which someone else could equally have done

for him, defeat purpose of s74 by claiming attorney-client

privilege. For it lacks that peculiar confidence between

attorney and client which is implicit in the privilege.

1.41 R v Cox and Railton (1884 QBD)

[Solicitor called at fraud trial to prove that, after judgment had been

obtained against a partnership, partners consulted that solicitor as to how

they could defeat the judgment.]

Q is whether communication between attorney and client is

privileged where client applies to legal adviser for advice intended to

facilitate or to guide client in commission of a crime or fraud, the

legal adviser being ignorant of the purpose for which his advice is

wanted.

Privilege provides that if legal advisers receive a communication or

document in their professional capacity from a client that touches on

matters within the ordinary scope of their professional employment

and for his benefit in the transaction of his business, they are bound

not to disclose such info or docs in any court.

Rule based on interests of justice, which cannot be upheld without

the aid of legal advisers.

Present case doesn’t fall (i) within reason on which rule rests, or (ii)

within its expressed terms. Re (i), the protection of communications

that are criminal themselves or intended to further a criminal

purpose cannot be in interests of justice. Re (ii), communication in

furtherance of a criminal purpose does not come within “ordinary

scope of professional employment”.

Court must determine whether A consulted legal adviser before the

commission of the crime for the purpose of being guided in

committing it, or after the commission of the crime for the legitimate

purpose of being defended. This Q will not always be decisive as to

admissibility of such evidence. Courts must judge for themselves on

the special facts of each case.

1.42 R v Davies (1956 AD)

[In abortion case, accused abortionist was asked in cross-examination

whether she had shown any doctor’s cards regarding patients in question

to her attorney. Counsel objected on the basis that this was privileged

communication.]

The privilege extends only to confidential communications. There

might have been confidential communications in respect of the cards

but not necessarily. If the cards were made by the appellants after

the police investigations had begun and were handed to the attorney

to deceive him into thinking that they were contemporaneous with

treatment, they would not be privileged (see Cox & Railton re

communication for criminal purposes.).

Nor would they be privileged in the hands of the appellants if

properly made at time of treatment – they were then prepared in the

ordinary course of the doctor’s medical practice. And the mere fact

of handing over to attorney does not confer privilege. If client can

be compelled to give up possession, then so can the attorney, under

laws of agency.

The cards themselves not being privileged, A could not claim

privilege iro their delivery to attorney unless it appeared that this had

taken place in confidence. Not the case here.

Appellant was not being asked to disclose the nature of

communications that had passed between him and attorney. Cross-

examiner only testing A’s statement that cards had been made out

for patients. If the cards didn’t exist, there was nothing to which

privilege could attach. If they did exist, and defence was that they

were handed over to attorney in confidence, that could have been

made the subject of an issue.

1.43 S v Kearney (1964 AD) (confession)

[A was director of company that administered insolvent estates. Charged

with theft from certain such estates. A made confession of theft from a

certain estate when interviewed by an attorney acting for liquidator of that

estate in a separate claim against a bank for wrongful payment of

cheques.]

Professional communications by client to attorney are privileged if

they are (i) of a confidential nature and (ii) for the purpose of

obtaining legal advice.

Here, A was not client seeking legal advice from attorney when he

made the confession: he was a former liquidator of the estate in

question, a private individual, a potential witness. (Client was

liquidator, who had waived privilege.) There was therefore no

lawyer-client relationship, since the attorney represented another

party; not the accused.

1.44 R v Fouche (1953 W)

[A made statement to attorney friend (R) when staying with him as guest.

Q whether relationship was friendship or employment as attorney.]

Judge found as fact that R was not merely in a relationship of

friendship with A, but was employed by A as attorney (partly

because R was paid fee, although payment is not necessary

incident of professional relationship).

But that does not conclude matter because not every

communication to attorney is confidential.

Communication must be of confidential nature and for purposes of

obtaining legal advice; if so, it matters not that client and lawyer met

in informal circumstances. Question here is whether communication

made was under seal of professional confidence or as matter of

friendship. Find that A used opportunity of visits to R to discuss

professional matters, the inference being that communication in

question was made in professional confidence.

1.45 Thint v National Director of Public Prosecutions [2009] (1) SALR (CC)

[Case concerned search and seizure warrants issued purportedly in of the

National Prosecuting Authority Act by a judge. It concerned the validity of

the terms of those warrants and the lawfulness of the manner of their

execution.]

Policy issues require privilege. Must be possible to make full and frank

disclosure to your legal representative.

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 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. (Par

184)

Accordingly, privileged materials may not be admitted as

evidence without consent. Nor may they be seized under a

search warrant. They need not be disclosed during the

discovery process. The person in whom the right vests may not

be obliged to testify about the content of the privileged material.

It should, however, be emphasised that the common-law right to

legal professional privilege must be claimed by the right-holder or

by the right-holder’s legal representative. The right is not

absolute; it may, depending upon the facts of a specific case, be

outweighed by countervailing considerations. (Par 185.)

LITIGATION PRIVILEGE – General. See also section (2) above on defamation

Litigation privilege – applies directly to counsel, and also to witnesses.

If a witness tells the truth and this is defamatory, then an action for defamation

cannot be brought.

Counsel will also say defamatory things about people in court as part of their

duty. For instance, in conducting a case and drawing pleadings from what is

prima facie defamatory material. So long as counsel is acting within legal

bounds, this will be is protected.

The general test is that counsel has a degree of latitude even in relation to

defamatory material provided that Counsel has no animo iniuriandi. This

applies to statements made in opening, cross examination, examination in chief,

closing and in drafting pleadings and affidavits.

It is however a qualified privilege and not an absolute privilege as in the case of

communications between spouses and in relation to statements made by

parliamentarians in Parliament.

The reason for this is that a defamatory statement may be part of your client’s

version and counsel must be at liberty to put his/her client’s case with the

necessary freedom provided he/she does not overstep the mark.

The test that must be applied for qualified privilege is:

the relevance/pertinence/necessity of the statement;

whether there is a foundation for making the statement. For instance, in

terms of Bar rules, counsel is entitled to put a defamatory statement that

has been told to him by his attorney without question but not so when

such statement has been proffered by his client.

Do you have to believe in the truth of the statement? No.

What if you are reckless to the truth of the statement? Findlay v Knight 1935

suggests that recklessness to the truth may defeat privilege. However, Joubert

v Venter suggests that recklessness is not sufficient to defeat privilege.

Something more is required, for instance a malicious motive.

Malice is not permissible. If you can prove malice privilege is defeated.

The onus lies on the plaintiff to prove malice (Joubert v Venter)

Leading case: Joubert v Venter 1985 (A)

Provisional/qualified privilege.

To defeat this, a plaintiff must show the witness was motivated by malice

or another improper motive.

Witness/counsel must show that it has some foundation for making the

statement – must be a reasonable foundation. Cannot define this; must

be decided on its own facts: will look at the instructions.

Distinction between what is said in court and what is put in affidavits.

Used to be a blanket protection of advocates of what is said in court.

Slightly watered down now.

What is on paper is looked at more closely.

1.46 Joubert v Venter (1985 A) – extract

Recent decisions of the Appellate Division have described the

nature of the onus to establish a plea of privilege in an action for

damages for defamation as a "weerleggingslas" ("the burden of

adducing evidence in rebuttal"). Earlier decisions of the Appellate

Division dealt with the defence of privilege on the footing that the

onus to be discharged is a full onus on a preponderance of

probability. This divergence deserves comprehensive attention.

Our law confers a qualified, albeit very real, privilege upon counsel,

attorneys, witnesses and litigants in respect of defamatory

statements made during legal proceedings. No distinction should be

drawn between a witness testifying verbally who is not a party to an

action and one who is.

The latter is as much a witness as the former and as such is entitled

to the privileges and rights of a witness.

In MacGregor v Sayles 1909 TS 553 INNES CJ expressed the view

that, if a witness makes defamatory statements in the course of legal

proceedings, the plaintiff in an action for damages for defamation

had to "... satisfy the Court of three things: First, that the witness

was actuated by express malice; secondly, that the words spoken

were false; and third, that the witness who uttered them had no

reasonable grounds for believing them to be true...". This dictum is

couched in cumulative terms. This is not a sound approach to the

first requirement, viz that the defendant was actuated by "express

malice". In principle it would seem possible to prove malice by

means of extrinsic evidence without necessarily proving all or even

any of the other requirements mentioned in the cases. The first

requirement should accordingly be read disjunctively in relation to

the others mentioned. The second requirement in MacGregor's

case, viz proof that the words spoken were false, follows naturally

and logically from the very special position of a witness in a court of

law. Without expressing a final view, it would seem that

considerations of policy dictate that proof of falsity should be one of

the minimum requirements to establish liability on the part of a

witness. In regard to the third requirement, viz proof that the witness

had no reasonable grounds for believing his words to be true, there

is no doubt that this is indeed a minimum requirement in order to

establish liability (ie apart from the possibility of proving malice). In

connection with this requirement, there is much to be said in favour

of obliging the plaintiff, in order to defeat the witness' privilege, to go

even further and to satisfy the Court that the witness in fact did not

believe in the truth of what he said, but this question may also be left

open.

It has also been said that the onus is on the plaintiff to prove, inter

alia, that the statement of the witness was "not pertinent to the

question put to him". While this cannot be regarded as an

independent requirement for establishing liability, a litigant who

deposes to an affidavit in legal proceedings carries the burden of

proving that a defamatory statement made therein was relevant to

an issue in the proceedings. In regard to a witness who testifies

orally, two possible approaches concerning the onus in respect of

relevance suggest themselves: (a) that the extent of the privilege

ought not to vary in accordance with the procedure followed or the

manner in which testimony is adduced; (b) that it may be inadvisable

to whittle away the wide protection afforded a witness giving

evidence viva voce by requiring proof of relevance and that

provisional protection should be extended to such a witness solely

on the ground that he was testifying under oath when he made his

statement in issue. This point, however, may also be left open. Apart

from the question of onus in respect of relevance, it is clear that no

difference should be drawn between the extent of the privilege

enjoyed by the two classes of witnesses, viz those testifying orally

and those deposing to an affidavit.

As regards the qualified privilege afforded counsel in the conduct of

legal proceedings, it has been said that the statement must (a) have

been pertinent or germane to the issue (or, it is preferable to say, an

issue in the case) and (b) have had some foundation in the evidence

or circumstances surrounding the trial. The defendant must establish

requirement (a) in order to be provisionally protected. Counsel's

protection is not confined to the opening addresses, the examination

of witnesses, cross-examination and addresses to the Court, but

also extends to pleadings drafted by him and "other documents

necessary to place his client's case before the Court". This last

category is clearly wide enough to include affidavits settled or

prepared for motion proceedings. While counsel who drafts a

pleading or affidavit on the instructions of an attorney is in a stronger

position than the attorney, since counsel presumes that the matter

has been sifted and that proof will be forthcoming, the position of

counsel who accepts a brief to consult with witnesses and thereafter

to draft pleadings or affidavits can, in principle, not differ from that of

an attorney who acts on the instructions of his client.

With reference to the second of the requirements posed immediately

above, it is true that in particular circumstances it may be required of

a defendant pleading privilege to prove that he had reasonable

grounds for making the defamatory statement, but this is certainly

not a rule of universal application. The incidence of the onus in the

present context falls to be determined by considerations of policy,

and what is of paramount and decisive importance is that the

welfare of society demands that an advocate or attorney who pleads

the cause of his client should have a large degree of freedom in

laying his client's case before the Court, even though in so doing he

defames the other party or even a third party. To give due effect to

these considerations it is necessary to lay down that the privilege

which counsel enjoys (and thus the provisional protection afforded

thereby) is established on proof that the statement in question was

relevant or germane to an issue in the legal proceedings in the

course of which it was made, and that it is then for the plaintiff to

prove that the defendant abused the occasion (and thus forfeited the

protection of the privilege). The plaintiff can do this by, for instance,

proving that the defendant did not have "some foundation" in the

evidence or surrounding circumstances for making the statement.

The Court should not, however, be astute to find a lack of "some

foundation" (or "reasonable cause") for counsel's statements. There

are, of course, other ways of defeating the claim of privilege, such

as proof that the defendant was actuated by malice in the sense of

an improper or indirect motive.

As regards the relevance or otherwise of counsel's belief in the truth

of the statement made by him, expressions can be found in some of

the cases suggesting that an absence of (reasonable) grounds for

believing in the truth of a statement is sufficient to attract liability.

This is not a correct reflection of the law. In order to be afforded

protection, counsel need not believe in the truth of the statement

and accordingly the absence of grounds for such belief is, per se,

inconclusive. The absence of a subjective belief on the part of

counsel in the truth of the statement does not defeat the privilege.

As regards relevance generally, by relevance is meant "in some

measure relevant to the purpose of the occasion".

CONFLICT BETWEEN THE INTERESTS OF TWO CLIENTS

Readings:

S v Jacobs 1970 (3) SA 493 (E)

S v Naidoo 1974 (3) SA 706 (AD) at 712D-713E

Ex Parte Swain 1973 (2) SA 427 (N) at 432-433

S v Moseli 1969 (1) SA 646 (O)

Counsel must be able to act fearlessly in the interests of his own client to the

exclusion of all others.

This can be compromised if counsel represents two or more parties in the same

litigation.

GCB rule 4.11. See notes on “UNIFORM RULES OF CONDUCT”.

See also Rule 2.6 (“improper to accept a brief if it would be embarrassing or

prejudicial to a client”) and Rule 3.5.1 – counsel is not to become personally

associated with a client’s cause.

If conflict situation arises, ask for an adjournment. If unsure, take a ruling from

the Bar Council.

In essence, you will not be able to represent either accused if they have

provided you with information in confidence (or publicly) about the other. This is

because you will not be able to cross-examine each of them by putting the

version of the other given that you have acted for both of them up until that

point.

You would have to explain to both accused why you cannot act for them.

If one of the accused is under cross examination you will need the permission of

the judge to do so.

Can offer that the matter be remanded so that they can ask for the services of

another advocate. Ask for matter to stand down so that other counsel/attorneys

can be appointed.

Position of attorney is also untenable due to the conflict.

1.47 S v Jacobs (1970 E)

[When case opened, two A’s were defended by the same attorney. During

progress of trial, it became apparent that there was a conflict in the

defence of the two A’s. Attorney didn’t clarify his position, or withdraw.

Both accuseds convicted; on appeal convictions set aside.]

When conflict originally developed, attorney should have clarified his

own position and should have withdrawn from defence of one A,

allowing himself free rein to do justice to the one client only.

Difficult to imagine greater prejudice to A1 than where attorney who

had up to this late stage had defended him, should now openly tell

the court that the story advanced by A1 conflicts completely with his

instructions; and that he doubted her credibility.

A2 also prejudiced by evidence not being fully tested and ventilated,

as would have occurred but for attorney’s representation of A1.

1.48 S v Naidoo (1974 AD) (attorney for multiple accused)

[2 of 5 convicted A’s appealed on ground that judge had relied substantially

on evidence on other 3 in determining blameworthiness of all A’s, when all

A’s were represented by same Counsel and therefore could not be cross-

examined by such C.]

C was precluded from cross examining any one of the accused

persons because they are each his own witness. Also, A’s could not

have cross-examined their co-accused while being represented by

counsel. Only way for any one A to cross-examine another was to

withdraw C’s mandate, which step they, as lay people, could not be

expected to take. Accordingly, there was an irregularity in the

proceedings.

As soon as it became apparent that some accuseds were shifting

responsibility for the offence to other co-accused, counsel had a

duty to withdraw because of conflict of interest between his clients.

There may be circumstances where it may even be proper for the

prosecutor to direct his opponent’s or presiding officer’s attention to

the question whether defence counsel should not retire from the

case.

Here, prejudice went only to apportionment of blameworthiness in

circumstances where discrepancies between A’s versions were

immaterial (ie limited scope for cross-examination in any event).

Therefore, prejudice immaterial and sentences confirmed.

1.49 Ex Parte Swain (1973 N)

[S as an attorney acted for two clients, and, in context of possible litigation

between the 2 clients, advised C1 to release C2 from liability for a claim.]

S acted gravely to C1's prejudice. He knew there was fundamental

conflict between the 2 clients and that C2's major claim was against

C1. S should have insisted that C2 obtain independent legal advice.

Failure to take these steps was improper. Even if C2 was reluctant

to sue C1 due to friendship ties, proper representation by

independent counsel may have convinced him otherwise.

Improper behaviour as attorney is strong indication that he is not fit

and proper person to be admitted as advocate.

1.50 S v Moseli (1969 O)

[Two A’s represented by same pro deo Counsel, on basis that their

evidence was consistent denial. However, when A2 entered box, he

blamed A1 for offence.]

The court will not allow the same counsel to defend two co-accused

with material conflicting interests on a capital charge, nor to continue

to defend one of them, irrespective of his or her attitude, after such

interests have come to light.

If accused refuses to inform his counsel of the evidence he

proposes to give, especially where the advocate is defending two

accused, he is placed in an impossible position and may withdraw

forthwith from defence of the accused.

Here, circumstances of lying and allegation against A1 put a damper

on his knowledge and spirit with regard to both A’s; in other

circumstances, Counsel can’t continue to represent one accused

(see Jacobs). Counsel is given leave to withdraw and ordered that

two other counsel be appointed.

SEE Model Answer 28 re what to do when a conflict arises in a

criminal trial:

o Ask for adjournment

o Confirm with chair of bar council

o Explain to accused 1 why withdraw

o Ask permission from judge to speak to accused 2 even

though still under cross-examination: Explain to accused 2

why withdraw

o Advise instructing attorney that his position also untenable

o Ask for matter to stand down so that instructing attorney can

arrange for two other attorneys and counsel to take over

o Withdraw from the matter – very short explanation required

DUTY OF PROSECUTOR TO DISCLOSE STATEMENTS

Readings:

R v Steyn 1954 (1) SA 324 (AD) at 337

S v Radebe 1973 (1) SA 796 (AD) at 814

1.51 R v Steyn (1954 AD)

Prosecutor stands in a special relation to the court . Where there is a

serious discrepancy between the proof of a state witness (ie what he

says in a statement beforehand) and what he says on oath at the

trial, the Court has the right to expect that the prosecutor will, of his

own motion, direct attention to the fact and, unless there is a special

and cogent reason to the contrary, make the statement available for

cross-examination.

This should be the invariable practice of prosecutors.

1.52 S v Radebe (1973 AD)

With reference to the rule in Steyn, the contradiction here was not

such as to place duty on the prosecutor to bring the court's attention

to the inconsistency.

In addition, if A has admitted the elements of the offence which are

at issue in the witness statement, the statement need not be made

available because the defence will not be able to cross-examine the

state witness on the elements, the accused having admitted them.

Here, even if the defence Counsel had had the Witness’ statement,

he couldn’t have cross-examined Witness thereon because the

accused had confessed to the crime. Counsel for defence must

have known what evidence of the Witness would be, and therefore

couldn’t have put it to Witness that his evidence was untrue.

DISCLOSURES ON APPLICATION FOR ADMISSION TO THE BAR

Readings:

Ex Parte Cassim 1970 (4) SA 476 (T) at 477E-H

Ex Parte Singh 1964 (2) SA 389 (N)

Ex Parte Maharaj 1959 (4) SA 522 (N)

Ex Parte Gunguluza 1971 (4) SA 212 (N) at 213

In re Rome 1991 (3) SA 291 (A)

Principles as set out above in relation to ex parte applications apply because:

Application for admission as an advocate is ex parte;

Applicant has the onus of proving that he is a fit and proper person to

practise as an advocate. The courts need to be able to rely on

counsel appearing before court for assistance in matters of fact and

law that the court has to decide. If the court were unable to trust

counsel explicitly, the administration of justice would suffer.

The rationale in an application for admission where a material fact has not been

properly disclosed by the applicant is that by his failure to make such disclosure,

he has demonstrated that he is untrustworthy or at least that he is not a fit and

proper person for admission.

Extreme care must be taken when preparing an application for admission to

ensure that facts are properly disclosed.

1.53 Ex Parte Cassim (1970 T)

[In application for admission as advocate, applicant had failed to disclose

that he had been convicted of assault and of defacing post office property.

On his informing Counsel thereof, this was disclosed to court and applicant

was given opportunity to file supplementary affidavit.]

Offences in question do not indicate that A was guilty of dishonest,

disgraceful or dishonourable conduct. Here, the difficulty is failure to

disclose conduct in the application when originally filed. A said he

didn’t think the convictions were material or relevant. Difficult to

accept that he could have thought so.

The profession requires of its practitioners and aspirant practitioners

the utmost good faith and there can be no doubt that the prior

convictions were relevant.

All material facts must be placed before the court. However, court

finds applicant had not failed to show he was fit and proper person.

1.54 Ex Parte Singh (1964 N)

[In application for admission as attorney, A didn’t disclose that he had twice

in one day been fined by magistrate for contempt of court.]

Applicant did not think it necessary to disclose in his application for

admission as an attorney two convictions for contempt on the same

day when he was an articled clerk. Matter is on appeal/review.

The matter should have been mentioned and explained in his

petition. It was conduct of a person in court while still under contract

of articles. Applicant's principal should also have drawn court's

attention to this.

Court required supplementary affidavits from applicant and his

principal to be filed with law society explaining failure to mention the

issue. All the facts must then be before the court. Rehearing to

take place in 14 days. Hearing may have to be postponed again if

judgment has not been given on appeal/review of contempt order.

1.55 Ex Parte Maharaj (1959 N)

[Five years before application for admission as attorney, A had been

caught with notes in a board exam; disqualified from exam and from writing

again for 2 yrs; 2 yrs later he wrote again and passed. At application for

admission, Law Soc sought to have A cross-examined by court to examine

truth of his explanation that he did not know he had book with him.]

Court has necessary power to subject applicant to cross-

examination because, irrespective of previous punishment, truth of

his explanation has bearing on his fitness for admission as attorney.

However, justice of case does not require that court investigate

dishonest motive or truthfulness 5 years ago. Court is very much

concerned with honesty and truthfulness of candidate for admission,

and in proper case would not hesitate to make a further investigation

as to past conduct of applicant. But this is not such a case: As the

body primarily concerned with the applicant’s misconduct dealt with

it on a certain basis, and meted out a severe punishment, the court

did not think it should now consider whether to punish him further.

But these proceedings should be lesson of importance of member of

legal profession avoiding at all times even the suspicion of

dishonesty or untruthfulness.

1.56 Ex Parte Gunguluza (1971 N)

[A for admission as an attorney had cheated in his board exam.]

Established fact that applicant cheated on exam shows prima facie

that he was not a fit and proper person to be an attorney. Court will

scrutinise facts to see if fall from grace has ceased in manner which

assures the court that applicant is at time of application a fit and

proper person. This is a similar investigation to the one employed

where an attorney was struck off the roll, and now applies for re-

admission.

Here, there has been full disclosure, integrity and evidence of

contrition. Accordingly, court disposed to admit him but delay

effective entry by postponing taking of oath of office and loyalty to

future date some months hence.

1.57 In Re Rome (1991 A)

Applicant for admission disclosed (properly) that she was an attorney and

counsel at law in the State of New York. This resulted in an enquiry as to

whether she was prevented from being admitted as an advocate. The

Court held that it did not. She properly drew the court’s attention to facts

that could have been a bar to her admission.

1.58 Ngwenya 2006 (2) SA 88 (W)

[Ngwenya had been a prosecutor. Convicted of theft and defeating the

ends of justice. Served 10 month prison sentence.]

Ngwenya argued he had been improperly convicted, alternatively

wrongly convicted. If correctly convicted, he was very sorry.

Court held he couldn’t make this election. It was one or the other.

1.59 Ex Parte Krause 1906 TS: Applicant for admission found guilty of high treason for

conspiring to kill the High Commissioner. Since this was a political crime, this did

not make him an unfit person to be admitted.

FIT AND PROPER PERSON TO PRACTICE

Readings:

Fine v Society of Advocates of SA (WLD) 1983 (4) SA 488 (A)

Hayes v The Bar Council 1981 (3) SA 1070 (ZAD)

Society of Advocates of Natal and the Natal Law Society v Merret 1997 (2) All SA

273 (N)

1.60 Fine v Society of Advocates (1983 AD)

[Advocate sent lessor fraudulent g’tee letter icw a lease, and thereby also

breached Soc rules which prohibited carrying on of any other commercial

u’taking.]

Admission of Advocates Act (s 7) provides that, in disciplinary

proceedings against an advocate, the court must decide (i) if he is a

fit and proper person to practice; and, if not (ii) whether to suspend

him or order his name struck from the roll.

(i) is decided on balance of probabilities and appeal court will

investigate whether court a quo was correct.

(ii) is for court a quo to decide in the exercise of its discretion and

will only be interfered with if material misdirection or irregularity or

because no reasonable court could make that decision.

Re (i), court a quo was correct that F was not a fit and proper person

to continue to practise as advocate. Re (ii), no grounds for holding

that court a quo’s decision to strike F off roll was incorrect.

1.61 Hayes v The Bar Council (1981 ZAD)

[Applicant had previously appeared unsuccessfully for himself and had

numerous altercations with the Bench and officials of court and had

adopted irresponsible attitude to the courts before whom he now wished to

practice.]

The onus is on the applicant to establish that he is a fit and proper

person; whether he is or not is an objective question of fact, not a

matter of trial court discretion. Disagree with Ex Parte Swain (A) to

the extent it implies otherwise.

Test to be applied in determining whether applicant for admission is

fit and proper person comes down to duty of court to see that

officers of court are proper persons to be trusted by court with

regard to interests of suitors. So far as possible, court must be

satisfied that A will be able with honesty and balance to perform the

duties of an advocate to advantage of those he represents.

It is not the task of the court to assess his professional competence

if he has the necessary qualifications, but it can take into account his

previous conduct in the courts and his expressed attitudes to the

courts if relevant.

In addition, profession of advocate and attorney requires utmost

good faith from practitioners and aspirant practitioners (Cassim).

The court must be able to place complete trust in an advocate's

reliability and integrity since he owes a duty as much to the court as

to his client. And court must be satisfied that he will not by his

behaviour do anything to bring courts or profession into disrepute.

Here, disrespectful and discourteous behaviour, irresponsible

attitude to court, unacceptable lack of balance, unreliability, lack of

frankness. Applicant failed to discharge onus; not admitted.

1.62 Soc of Advocates of Natal and Natal Law Soc v Merret (1997 N)

[Attorney, who acted for Pl in divorce action, when asked by judge whether

D’s attorney’s knew matter was proceeding on that day on an unopposed

basis, said yes when he didn’t know.]

Quoting Swain, court said it could never implicitly trust in or believe

what D said from Bar. He was struck attorney off roll because of rqt

that advs and attorneys should be honest and truthful in their

dealings with each other. D here showed demonstrable lack of

integrity.

PRO DEO COUNSEL

Readings:

S v Gibson NO 1979 (4) SA 115 (D)

See Rule on pro deo.

1.63 S v Gibson (1979 D)

[Case of contempt against newspaper because reported that pro deo

counsel were inadequate for political trials because they didn’t have

appropriate qualifications.]

There are at least three elements to the offence of contempt: (a) it is

a crime of intention; (b) it is a crime which relates to the

administration of justice in the Courts and not generally; and (c) it is

designed to prevent or punish violations of the dignity or authority of

the Courts and not mere criticism of the administration of justice in

the Courts. Justice is not a cloistered virtue.

The notion that pro deo counsel would be deterred from doing their

duty with proper zeal and confidence because an article in a

newspaper, no matter how influential, had quoted a university

professor, no matter how distinguished, as saying that pro deo

counsel were inadequate for political trials because they did not

have the appropriate qualifications, needs only to be stated to be

rejected: Such an article is therefore not capable of inhibiting

counsel from undertaking pro deo defences, still less can it be

regarded as being calculated or likely to do so. In this regard, it is

relevant that the Bar is not a profession of shrinking violets. It is part

of the cut and thrust of general practice to encounter sarcastic,

sneering and sometimes even insulting or humiliating language from

one’s opponent or litigants.

Whatever the legal theory, in practice, pro deo counsel are

appointed by the Bar Council or BC committee and not by the court.

In a "dock defence" (Eng concept which may mean same thing as

pro deo) it is A who makes a selection of counsel from amongst

barristers actually sitting in the court (see rules).

“Pro deo” means counsel is not paid, but in fact they are paid a fee

and refresher and travelling expenses by the State.

Pro deo are usually the most junior members of the Bar and have

the least experience and it often takes an alert judge to see that

justice is done, but an indispensable part of proper administration of

justice. It is an anomaly that the most serious capital cases are

defended by the most inexperienced counsel.

GENERAL MISCONDUCT

Readings:

Algemene Balieraad van Suid-Afrika v Burger 1993 (4) SA 510 (T)

Society of Advocates, Natal v Z 1988 (3) SA 443 (N)

General Council of the Bar of SA v Matthys 2002 (5) SA 1 (E)

Many forms of misconduct. Not just contempt of rules.

Can be misconduct in professional or private life which is so serious that it impacts

on the reliance and trust which the court places on counsel’s word may be sufficient

for the removal of an advocate’s name from the roll.

Can relate to:

Accepting briefs, litigation, obligations relating to briefs, fees etc.

1.64 Algemene Balieraad van Suid Afrika v Burger (1993) (T)

[Application to strike a senior and junior advocate off roll for charging

excessive fees, fees for hours not worked, and inaccurate accounting.

Matter arose from three identical urgent applications of members of the

Civil Co-operation Bureau against the Ministry of Defence, B’s client.

Among other things, B charged one fee for each matter, where one

composite fee would have been appropriate, with a small premium. ¾ of

fee taxed off.]

Admission of Advocates Act (s7(2)) confers right on GCBar well as any

Society of Advocates to launch an application for the removal of an

advocate's name from the roll of advocates; ie BC and Law Soc

expressly vested with locus standi to bring applications for removal. The

Legislature expressly met the need of the Court, in exercising its

supervision of advocates, to have somebody to place information and

evidence before it.

BC, in disciplinary hearing, found C’s guilty of charges and decided to

move for their removal from the roll of advocates. Defences of no locus

standi (see above) and estoppel. Re estoppel, even if Bar had not told A

that application for removal was contemplated (which facts reject) (i)

representation by Bar does not bind GCB and (ii) professional body

cannot be prevented from doing its statutory duty.

Re charges, must determine whether overcharging was so unreasonable

as to be totally indefensible. Take account of Bar rules pertaining to what

constitutes “reasonable fee”.

Fact that case was of great importance to client justified, at most, a

moderate increase in C’s normal rate – not, as B charged, three times

the normal rate. Fact that attorney readily paid fees is worrying.

Attorney has duty to question fees that are significantly higher than

normal or at least to debate it with counsel. However, satisfaction of

attorney is little or no excuse or mitigation for misconduct by such

advocate in the form of flagrantly excessive fees. The advocate has

misused the attitude of the attorney who had, to the knowledge of the

advocate, not fulfilled his duty.

Although in a case of an advocate acting as a junior to a senior advocate,

fees are primarily fixed by the senior, where the junior knows or should

know that the fees fixed by the senior are so unreasonable as to be

indefensible, it is the duty of the junior to fix a reasonable fee for himself

or to seek guidance from a senior advocate or from the chairman of the

Bar Council.

B had previous infractions, which showed that he had a lack of

responsibility and integrity and a disdain for the Rules. He is struck off.

His junior (Kemp) is suspended for 6 months.

1.65 Society of Advocates, Natal v Z 1988 (N)

[Applicant had sought an order in terms of s 7(1)(d) of the Admission of

Advocates Act 74 of 1964, striking respondent off the roll of advocates,

alternatively, suspending him from practice as an advocate for an

appropriate period.

Conduct of the respondent which the applicant complained of as falling

short of the standards of behaviour to be expected of an advocate revolved

around the trading history and subsequent demise of a business, B Motors.

Incidents concerned extra-professional behaviour by the respondent and

the court remarked that although there was some distinction to be drawn

between extra-professional activities and the respondent's conduct within

the profession, regard could be had to the former as shedding light on the

character and integrity of respondent and that, in deciding whether or not

any particular action is morally reprehensible, it should be borne in mind

that as far as actions are concerned which take place in the particular

context of a business community, the standards of that community must

colour the conduct and may in certain circumstances explain conduct but

not excuse it against the background that the conduct is that of an officer of

the court.]

Respondent's misleading evidence before the licensing officer,

bearing in mind that he was at that time an officer of the Court,

constituted disreputable conduct. Z in essence acted as a front for

someone else; if the misrepresentation was not made, the trading

license for the second-hand dealership might not have been

granted.

Respondent had misused his professional designation in regard to a

letter of demand (on his chambers’ letterhead, signed “Adv J v Z”).

He was in effect performing a service as an attorney for B Motors

without the intervention of an attorney and in this regard his conduct

fell substantially short of that to be expected of a responsible and

proper member of the Bar.

It constituted unsavoury conduct on respondent's part to receive

from a person in substantial financial straits a cheque in an amount

in excess (double) of the debt the latter owed him. The debtor was

shortly afterwards sequestrated.

These findings did not merit respondent being struck off the roll as

(a) been no complaint against respondent's conduct in the long

period following these incidents; (b) the conduct in question was not

conduct within the profession itself but associated with another

activity altogether; and (c) there did not appear to have been any

real prejudice to anyone.

Ordered respondent's suspension from practice for one year.

1.66 General Council of the Bar of SA v Matthys 2002 (E)

[Respondent was a member of Independent Association of Advocates of

South Africa (IAASA), which was not affiliated to the applicant. Applicant

applied for an order in terms of s 7(1)(d) of the Admission of Advocates Act

74 of 1994 that the respondent's name be struck from the roll of

advocates. Relevant section provided that the court could, upon

application, suspend any person from practice as an advocate or order the

name of any person to be struck off the roll of advocates if the court was

satisfied that such person was not a fit and proper person to continue to

practise as an advocate.

Respondent was charged with lying to and/or misleading courts and/or

presiding officers; failing to comply with the duty owed to a client to prepare

properly and fully for the presentation of the client's case and to act in the

best interests of the client; failing to appear on various dates before a

presiding officer, either at all or timeously, in a criminal matter in which he

was representing the accused; failing to appear before a Regional Court on

dates to which matters in which he was appearing had been postponed;

accepting clashing briefs; failing to return a deposit paid by a client after

the termination of the mandate and non-performance of the services in

respect of which the deposit had been paid; and accepting instructions

from a member of the public without the intervention of an attorney. The

respondent largely admitted that he had conducted himself in the manner

alleged by the applicant. In some respects he sought to dispute the

alleged conduct or the validity of the categorisation of misconduct applied

by the applicant to the conduct in question. In cases where he admitted

misconduct, he tendered an apology and, in most cases, an explanation for

his conduct.]

Proceedings were not ordinary civil proceedings, but sui generis.

They were proceedings of a disciplinary nature of the court itself, not

those of the parties, with the court exercising its inherent right to

control and discipline practitioners who practise within its jurisdiction.

Applicant, in bringing the application, acted as the custos morum of

the profession in the interests of the court, the public at large and

the profession, its role being to bring evidence of the practitioner's

misconduct before the court in order for the latter to exercise its

disciplinary powers. Evidence which would have been inadmissible

in civil proceedings may be considered in disciplinary proceedings.

Had to be decided whether the offending conduct had been

established on a preponderance of probabilities and, if so, whether

the person was a fit and proper person to practise as an advocate.

The latter finding to some degree involved a value judgment but was

in essence one of making an objective finding of fact. Discretion did

not enter the picture. However, once there was a finding that the

respondent was not a fit and proper person to practise, he could, in

the court's discretion, either be suspended or struck off the roll. It

was permissible to have regard to the totality of the respondent's

conduct and the cumulative effect thereof in arriving at a decision.

When assessing the effect that the respondent's conduct had on the

question of whether he was a fit and proper person to practise as an

advocate, it was permissible to have regard to the explanations

tendered by the respondent for his conduct, either to the applicant

when it had called for an explanation for his conduct or in the papers

filed by the respondent in the application.

After considering the evidence and explanations tendered, that it

was an unavoidable conclusion that the respondent had misled the

courts and/or presiding officers as alleged, and had done so

deliberately. In the circumstances it could not be said with

confidence that the respondent would not lie to, or mislead, a court,

or be party to a client of his doing so in the future. Furthermore, in

seeking, in his answering affidavit, to persist in false allegations, the

respondent had been untruthful to the instant court. Such conduct

was deserving of severe censure and it had to be concluded that the

respondent was not a fit and proper person to practise as an

advocate.

In failing to comply with the duty owed to a client to prepare properly

and fully for the presentation of the client's case and to act in the

best interests of the client, the conduct of the respondent reflected

such a fundamental breach of the duty which a practitioner owed to

his client and such a grave dereliction of duty that no other

conclusion was possible but that the respondent was unfit to

practise as an advocate.

Conduct of the respondent in failing to appear in court on

designated dates or arriving late without adequate explanation was

not only disruptive, if not subversive, of the administration of justice,

but also constituted extreme discourtesy and a disservice to the

court, the prosecutor, the client and the witnesses involved, and was

contemptuous of the court. The conduct had been aggravated by

the respondent's failure to apologise to the court or explain his

absence. This, also, was extremely discourteous and reflected an

attitude towards the court that could not be countenanced.

Rule against an advocate accepting clashing briefs was a time-

honoured and fundamental one. The respondent conceded that his

indulging in the practice was improper and inexcusable.

The issues of whether it was improper for the respondent to have

accepted a fee in advance for work to be performed by him and

whether such deposit constituted trust funds did not have to be

determined for the purposes of the judgment. It was not in dispute

that on the termination of the mandate, prior to having performed the

services he had been engaged to perform, the respondent became

immediately obliged to refund the whole of the deposit.

Respondent's statement that he did not have the funds immediately

to repay the amount once the client had been located amounted to

no more than the fact that the respondent had used the funds to

which he had not been entitled and had thereby placed himself in

the position where he could not fulfil his legal and moral obligation to

a former client. His conduct had been improper and sufficiently

deserving of censure for it to be found that he was not fit to practise

as an advocate.

Respondent's conduct in accepting instructions from, and

performing services for, a client without the intervention of an

attorney had to be found to have been unprofessional.

Respondent's intimations of remorse, that, while remorse, if

genuine, was a mitigating feature, the nature of and circumstances

surrounding the transgressions established against a practitioner

might nevertheless be such that he merited the severest censure the

court could impose. The present was such a case. The

genuineness of the respondent's professed remorse was somewhat

tainted by the feature that even in the instant proceedings the

respondent had not been completely frank and open with the court.

Therefore respondent was not a fit and proper person to practise as

an advocate and should be disbarred.

Respondent's name was accordingly struck from the roll of

advocates.

GENERAL DUTY RE ATTORNEYS AND ATTORNEYS’ WORK

Readings:

Society of Advocates of Natal v De Freitas (Natal Law Society Intervening) 1997 (4)

SA 1134 (N)

De Freitas v Society of Advocates of Natal 2001 (3) SA 750 (SCA)

General Council of the Bar of SA v Van der Spuy 1999 (1) SA 577 (T)

General Council of the Bar of SA v Rösemann 2002 (1) SA 235 (C)

Distinction Between Attorneys’ and Advocates’ Practice

Recognised divisions of work between the two professions:

Advocates work is based on referral – i.e. cannot be given directly to counsel

by the client. Advocate does not deal directly with members of the

public. Work is referred via an attorney. Taking money directly from the

public without a trust account is a criminal offence i.t.o. the Attorneys’

Act.

Attorneys profession is not a referral profession – attorneys do deal with

members of the public directly.

There are arguments for and against the advocates’ profession being a

referral profession.

For: It is essential for the advocates’ profession to be a referral

profession to ensure the proper administration of justice.

Against: It engenders a sense of elitism amongst members of the

profession and the public alike.

As matters stand, advocates may only act on instructions from an attorney

except in a few carefully defined circumstances.

Advocates’ profession is a referral profession. This is a clear principle of

law.

Certain work is attorneys work and other work is advocates work. Advocates

may not do attorneys work. What is the distinction between the two:

Attorneys – receiving documents; issuing notices; discovery affidavit (can

advise on what is discoverable or not; or on evidence, but not to do

the affidavit).

Advocates – forensic (to do with courts and litigation) work. Can sign

pleadings in HCs; give advice/opinions; consult with witnesses.

GCB rules 5.12 (Brief must from attorney). See notes on “UNIFORM RULES

OF CONDUCT”.

Briefs

Golden rule – if you are unclear on an ethical rule, then get a ruling.

Brief is a mandate; an authority to act.

Brief can be used to mean (a) giving a mandate to do what is required; (b) also

refers to the written brief.

GCB rule 5.1 (briefs and special retainer), 5.2 (retainers) and rulings. See notes

on “UNIFORM RULES OF CONDUCT”.

Duties of counsel in connection with briefs

GCB rule 2.1 (duty of counsel to accept briefs), 2.2 (Cab Rank rule), 2.3

(Obligations with regard to appeals), 2.4 (Counsel shall give personal attention

to all briefs), 2.5 (Holding briefs for another), 2.6 (When to refuse a brief), 2.7

(Counsel’s involvement in costs), 2.8 (Settling a matter), 2.9 (Providing a signed

pleading), 5.5 (briefs which could cause embarrassment), 5.6 (where briefing

might be influenced), and rulings. See notes on “UNIFORM RULES OF

CONDUCT”.

Don’t have to take a matter in a court in which you normally don’t practice. As a

baby junior, you don’t usually have a court in which you normally practice.

Therefore more obliged to take all matters. Unlikely to be offered matters that

are way out of your experience. Good idea to take on junior briefs with silks and

other juniors.

SEE Model Answer 76 for circumstances were an advocate is entitled to take

instructions from persons who are not attorneys: general rule; dock defences /

presiding judge asks; pro deo defences and criminal prosecutions; various

special institutions; where GCB determines that it is in public interest to do so.

In last two instances, GCB may impose conditions.

1.67 Society of Advocates of Natal v De Freitas 1997 (N)

Application to strike respondent from the roll of advocates on the ground of

unprofessional conduct in that he had accepted instructions directly from

members of the public and represented clients in litigation without an

attorney's instructions.

Independent Association of Advocates of South Africa (or IAASA), of which

the first respondent was a member, and brought a counter-application for

an order declaring that advocates, alternatively those who were members

of IAASA, had the right to accept instructions without the intervention of an

attorney.

Court delivered two unanimous judgments.

Per Thirion J

The practice that advocates do not take work off the streets without

the intervention of an attorney came to South Africa from Holland

and England, where the professions of the advocate and the

attorney had been distinct since ancient times. The territories

which became the Union of South Africa eventually all passed

legislation separating the legal profession into two branches and

prohibiting advocates from performing the functions of an

attorney and vice versa, which prohibitions were still extant in the

Admission of Advocates Act 74 of 1964 and the Attorneys Act 53

of 1979.

It was a natural corollary of these statutory prohibitions that an

advocate could not accept instructions in litigation without the

intervention of an attorney.

The division of the profession was a longstanding, natural and

practical one which had been uniformly observed in South Africa

from 1937 until 1994, when IAASA was formed. It left the

attorney free to pursue the more practical side of the profession

while allowing the advocate to practise his specialist forensic

skills.

The abandonment of the rule that advocates may not take work from

the street would lead to the erosion of the distinction between the

professions.

Important also was the fact that while the legislature in ss 25, 26, 41,

78 and 79 of the Attorneys Act provided for the protection of a

client against theft by the attorney of money held on his behalf by

the attorney, there was no corresponding statutory provisions for

the safeguarding of money held by an advocate on behalf of his

client. The legislature's omission to make provision for the

protection of moneys held by an advocate on behalf of his client

was the direct consequence of the operation of the rule here in

question. The rule had indirect statutory recognition and any

change thereto had to be effected in collaboration with the

legislature.

Many High Court Rules framed on the premise that whenever an

advocate acted in proceedings in the High Court he would do so

on instructions of an attorney. Nor did the rule place an undue

restriction on the advocate's right to freely exercise his calling. It

was a reasonable restriction that was historically inherent in his

practice and one which aspiring advocates foresaw and

accepted in the interest and well-being of their profession.

Argument that direct access to the advocate would be more cost

effective lost sight of the fact that if he was going to perform work

usually done by an attorney, he was going to charge for it. The

advocate operated more effectively and therefore more

economically if he confined himself to the proper functions of the

advocate.

The rule was one by which the relationship between advocates and

attorneys had been regulated for a very long time and could as

such not be dismissed as a mere household rule of the applicant.

It reflected a well-established practice on the strength of which

court procedure had been arranged and on the strength of which

the legislature had distinguished between the positions of

advocate and attorney. It was reasonable and justifiable in the

interests of the legal profession and the public and had to be

sustained.

Disobedience of applicant's rule of conduct, which was but an

embodiment of a long-standing rule of practice, was bound to

lead to irregularities and abuses and had to be treated as

unprofessional conduct justifying the exercise of the court's

disciplinary powers. The court accordingly dismissed the

counter-application. It found that the first respondent's conduct

amounted to unprofessional conduct and it suspended him from

practice for six months.

Per Combrinck J

Framers of the Magistrates' Courts Rules did not intend to do away

with the division of work between attorneys and advocates by

providing that an advocate should be entitled to do work that was

essentially that of an attorney. The whole tenor of the

Magistrates' Courts Act and the Rules promulgated thereunder

showed that procedural matters were to be dealt with by

attorneys and that the work of counsel was restricted to the

drafting of pleadings and applications and appearances in court.

First respondent's reliance on Rule 2 was ill-founded: though it

defined 'plaintiff', 'defendant', 'applicant', 'respondent' and 'party'

to 'include the attorney and counsel appearing for any such

party', the words 'appearing for any such party' indicated that it

was a reference to appearance in court. Nor did Rule 52(1)(a)

by using the word 'practitioner' in providing that a 'party may

institute or defend and may carry to completion any legal

proceedings either in person or by a practitioner' override all the

contrary indications in the Act and the Rules.

NB: Court found that it is a rule of the common law; not just a rule of a voluntary

society. Therefore that De Freitas was bound by it irrespective of not being a

member of the KZN Bar. De Freitas suspended for six months, since no dishonesty

was involved.

1.68 De Freitas v Society of Advocates of Natal 2001 (SCA)

In an application in the Supreme Court of Appeal for leave to appeal:

Per Hefer ACJ

It is trite that the courts have inherent disciplinary powers over

practitioners in cases of misconduct or unprofessional conduct.

Where the courts are asked to interfere in cases where the

conduct complained of falls outside the clear ambit of criminality,

immorality or actual misconduct, it is for the court to consider the

propriety of the conduct proved and, if it is found to be

unprofessional, what the penalty should be. It must take account

of all the circumstances of the case with due regard to the

demands of the proper administration of justice, and the interests

of the profession and the public.

The referral practice clearly serves the best interests of the

profession and the public in litigious and non-litigious matters.

In litigious matters the benefits to the client are manifest:

although some attorneys have the same academic

qualifications as advocates, their practical schooling is

different since it is aimed at the acquisition of special skills

to do different types of work.

In general, advocates concentrate on the craft of forensic

practice, while attorneys, with their more general skills,

perform the administrative preparatory work in litigation.

Where an advocate is not briefed by an attorney he would

either have to do the work which the attorney would

otherwise have done or the client, at the very least, would

require the advocate's guidance in these matters, matters

of which the advocate him- or herself usually knows very

little.

No attorney can specialise in every area of law. An attorney might

also have so close or long-standing a relationship with a client, or

be so involved with the detail of the client's case, as to be

prevented from taking a sufficiently detached view. Having

access to the services of a corps of advocates who are, in

principle, available to all, are able to offer expert legal advice and

bring an independent view to bear is clearly in the interests of the

client.

One reason why an advocate should not perform the functions of an

attorney is that, unlike attorneys, who in terms of the Attorneys

Act are required to keep separate trust banking accounts and

deposit therein money held or received on account of any

person, advocates are not required to keep trust accounts. No

amount standing to the credit of an attorney's trust account may

be regarded as forming part of the attorney's assets or may be

attached by or on behalf of any creditors. Equally important is

that in proper circumstances any shortfall in the trust account

may be recovered from the Fidelity Fund. A client who does not

employ an attorney and instructs an advocate directly enjoys no

such protection. Such a state of affairs is plainly not in the public

interest.

The adoption of the interim Constitution has not altered the position:

the right of an accused or detained person to engage a legal

representative of his choice entrenched by ss 25(1)(c) and 25(3)

(e) does not mean the right to engage an advocate without the

intervention of an attorney. The right freely to engage in

economic activity and to pursue a livelihood entrenched by s

26(1) does not mean that a trade, industry or profession cannot

be regulated in a manner which does not in effect deny that right.

Weighed as a matter of public interest against the benefits of the

referral practice, the new right of appearance in Superior Courts

afforded to attorneys by the Right of Appearance in Courts Act

62 of 1995 is not sufficient reason to do away with or alter the

established practice.

Per Cameron JA

The crisis of legal services in South Africa is too acute, and the

threat this crisis represents to the administration of justice too

grave, for the courts to enforce tradition without there being

compelling reason in the public interest for doing so. A claim by

a branch of the legal profession that a professional rule or

practice exists in the public interest and should, for that reason,

be enforced by the courts must be scrutinised to ensure that it is

not loosely or over-broadly made.

Where a rule of professional practice is sourced in statute, any

limitation of rights by that statute will have to pass muster under

the Constitution. Where such a rule is not sourced in statute it

would be subjected, if anything, to even more exacting

constitutional scrutiny. The test formulated for judicial

proscription of conduct 'which is not in itself immoral or

fraudulent' as unprofessional in Pienaar and Versfeld v

Incorporated Law Society 1902 TS 11 is still valid, the test being

that the conduct must (a) be inconsistent with the proper position

of a legal practitioner and (b) be calculated, if generally allowed,

to lead to abuses in the future.

While there is nothing intrinsically improper in a specialist corps of

litigation-practitioners operating without the referral rule in its

widest sense; nor, as experience in comparable jurisdictions

shows, that sensible adjustments to the rule would be inimical to

the continued flourishing of a such a corps, there is a very

particular reason, namely the position with regard to trust

accounts, for concluding that the 'proper position' for advocates

in South Africa, at least for the present, entails the enforcement

of the referral rule since its disregard, if generally allowed, would

lead to abuses in the future. Because the statutes regulating the

two branches of the profession are, by and large, premised on

their division into two branches, advocates of necessity operate

outside the statutory apparatus of s 79 of the Attorneys Act and

cannot, by virtue of South Africa's trust laws, create trusts by

unilateral declaration. A real and substantial danger to the public

would result if advocates were permitted to handle public money,

whether by dealing with their client's money or even taking

deposits on fees in advance. For so long as the absence of

statutory trust fund protection continues, it provides a compelling

reason for the courts to enforce the referral rule in the public

interest.

Society of Advocates of Natal v De Freitas 1997 (N) confirmed.

Pro Amici work

Does this rule apply where advocates are doing work pro amici? Rule

refers to “acting for reward”; corresponding rules in England and Wales

don’t stipulate that it must be for reward.

Giving legal advice to friends is not covered by the rule. In theory rule

does apply where work is pro amici.

1.69 General Council of the Bar of SA v Van der Spuy 1999 (T)

Application for the striking off of the respondent's name from the roll of

advocates. Court found that the respondent had been guilty of

professional misconduct in that (a) had accepted instructions and fees

directly from clients without the intervention of an attorney; (b) had allowed

his address to be used for the service of papers or as the client's address

for the purposes of litigation; and (c) had performed attorneys' work. He

was also held to have transgressed the provisions of ss 83(1) and 83(8) of

the Attorneys Act 53 of 1979.

The respondent had been admitted as an advocate in 1950 and had been

senior counsel since 1968. After being convicted of professional

misconduct by the disciplinary subcommittee of one of the applicant's

constituent Bars, he had joined a voluntary association, the Independent

Association of Advocates of South Africa (IAASA), as a founder member.

With regard to the question whether or not he was a fit and proper person

to continue to practise as an advocate and whether he should be

suspended from practice or whether his name should be struck from the

roll, the respondent argued that he had reasonably believed, and still

believed, that in terms of the law of South Africa he had been entitled to act

in the manner he had. It was submitted that the belief was not

unreasonable given the recent far-reaching changes in the law.

Furthermore, the rules of conduct of IAASA specifically allowed the

acceptance of briefs directly from members of the lay public without the

intervention of attorneys. He also submitted that there was no reason to

doubt his bona fides and that none of the acts he had performed had

brought the advocates' profession into disrepute.

As senior counsel of long standing, respondent's belief that he had

been entitled to act as he had done had been wholly unreasonable.

His reliance on the rules of conduct of the IAASA was wholly

misleading in that, as a founder member and council member, he

had been at least co-responsible for their formulation.

It would be unrealistically charitable to the respondent to say that the

proceedings had been conducted on a bona fide basis. Nor could

his conduct be attributed to a mere misconstruction of the legal and

ethical position. Moreover, his harping on the rights of the

underprivileged to reduced costs of litigation (by not having to pay

fees to both an attorney and an advocate) smacked of being

sanctimonious in the light of his disciplinary conviction of

unprofessional conduct for proposing a fee of R180 000 when a fee

of R45 000 had been appropriate.

Respondent's letter, published in a weekend newspaper in August

1995, had been an express attack on the advocates' profession

couched in belittling, insulting and extravagant terms. His

description of the profession as an outmoded legal order aimed at

protecting an elite cartel by forcing the public to use attorneys to

gain access to the 'heilige voorportale van die advokatuur' could

only have served to malign the profession in the eyes of the public.

Although the papers showed that both the ambit and continued

existence of the rule that advocates could not take direct instructions

from lay clients were the subject of continued debate, it had been

held by the AD in Beyers v Pretoria Balieraad that the rule existed,

that advocates had to adhere to it and that those who did not were

guilty of unprofessional conduct.

It was the respondent's failure to appreciate that no society could allow

each individual to decide whether or not he agreed with a particular

rule and, if he or she did not, to disregard it that led to the

conclusion that he was not a fit and proper person to continue to

practise as an advocate.

In view of the fact that the respondent had displayed a lack of the

judgment required for the practice of an advocate, rather than

dishonesty, he should be suspended from practice for a period of six

months.

1.70 General Council of the Bar of SA v Rösemann 2002 (C)

There is certain work which is properly within the exclusive ambit of the

functions of the attorney who has been instructed by his client to act

for him. Such work is usually done best, and most cost-effectively,

by the attorney or his clerk. That is why it is usually done by the

attorney, and not by counsel. That the advocate's profession is a

referral profession has now been resoundingly repeated by the

Supreme Court of Appeal in De Freitas and Another v Society of

Advocates of Natal.

The advocate is 'the specialist in forensic skills and in giving expert

advice on legal matters' (In re Rome). The attorney, on the other

hand, 'takes care of matters such as the investigation of the facts,

the issuing and service of process, the discovery and inspection of

documents, the procuring of evidence and the attendance of

witnesses, the execution of judgments, and the like' (De Freitas). It

is not proper for an attorney to shuffle off these functions onto the

shoulders of an advocate by simply briefing the latter to attend to

them on his own, nor can it be proper for counsel to accept such a

brief. There can, of course, be no objection to counsel being briefed

to advise an attorney on how to deal with a specific problem which

may have arisen in a particular matter; for example, in connection

with discovery, or the service of process, or the execution of an

order, or to assist an attorney in drafting a particular document, or to

settle its terms. In such a case the advocate advises or assists the

attorney concerned so that the latter can better and more effectively

perform the attorney's functions, which remain, ultimately, the latter's

responsibility. That is a far cry from the situation where the attorney

divests himself of those functions, as it were, washes his hands of

them, and passes them over to the advocate to perform in his stead

without any further active participation by the attorney. The mere

fact that an advocate had instructions from an attorney to act as he

did (in casu to perform the work of an attorney, i.e. signing and

issuing summonses and notices of motion in the magistrates’ court

and furnishing an address for the service of process) is insufficient

to render his conduct proper. “Whatever other crosses it may be the

lot of counsel to bear from time to time during the course of his

professional life, bearing such fardels as these is not one of them;

moreover, an advocate may not permit himself to become an

attorney’s lackey or factotum.”

The provisions of Rules of the Magistrates' Courts Rules, read with the

definition of 'practitioner' in s 1 of the Magistrates' Courts Act 32 of

1944, do not entitle an advocate to do work that is essentially that of

an attorney. There is no basis for the proposition that it was the

intention in those Rules to do away with the long-established

division of work between attorneys and advocates.

NB: In Röseman, the advocate tried to get around the rules by getting

a brief that stipulated that he should do everything required in the case.

He consequently signed the Notice of Motion in the MC, wrote letters

which attorneys write; etc, ie did attorneys work – court found that the

fact that you have a brief to do this does not make it acceptable.

In re Rome (1991): Rome was admitted to practice as an attorney in

the US, and SA statute says you cannot be an attorney in SA or

elsewhere. Court had to look at the essence of the distinction between

the two professions. (See above). Court found that in the USA there

was no split profession as there was here and therefore Rome was not

regarded as having been doing the work of an attorney in the USA: See

listing of differences (7) between advocates and attorneys at 306A-E.