ETHICS



National bar examination syllabusETHICS2010 RevisionDanie Smit (Revision) TOC \o "1-1" \h \z \u I.RULES OF PROFESSIONAL CONDUCT PAGEREF _Toc269890731 \h 3II.THE UNIFORM RULES OF ETHICS (GCB RULES) PAGEREF _Toc269890732 \h 3IIIRULES OF CONDUCT RELATING TO ADVOCATES PAGEREF _Toc269890733 \h 6IVCASES AND SPECIFIC TOPICS PAGEREF _Toc269890734 \h 13CROSS-EXAMINATION PAGEREF _Toc269890735 \h 14INVECTIVE, IRRELEVANT, DEFAMATORY MATERIAL PAGEREF _Toc269890736 \h 27COUNSEL'S DUTY NOT TO MISLEAD THE COURT PAGEREF _Toc269890737 \h 36DUTY TO DISCLOSE MATERIAL FACTS IN EX PARTE APPLICATIONS PAGEREF _Toc269890738 \h 44DUTY OF COUNSEL TO OBSERVE BAR RULES PAGEREF _Toc269890739 \h 50THE INDEPENDENCE OF COUNSEL PAGEREF _Toc269890740 \h 56BEHAVIOUR IN COURT PAGEREF _Toc269890741 \h 59INTERVIEWING WITNESSES FOR THE PROSECUTION PAGEREF _Toc269890742 \h 65PRIVILEGE PAGEREF _Toc269890743 \h 69CONFLICT BETWEEN THE INTERESTS OF TWO CLIENTS PAGEREF _Toc269890744 \h 82DISCLOSURES ON APPLICATION FOR ADMISSION TO THE BAR PAGEREF _Toc269890745 \h 88PRO DEO COUNSEL PAGEREF _Toc269890746 \h 95GENERAL MISCONDUCT PAGEREF _Toc269890747 \h 97GENERAL DUTY RE ATTORNEYS AND ATTORNEYS’ WORK PAGEREF _Toc269890748 \h 104I.RULES OF PROFESSIONAL CONDUCTThese are dealt with in the accompanying document entitled “THE UNIFORM RULES OF ETHICS”.II.THE UNIFORM RULES OF ETHICS (GCB RULES)GENERALIntroductionTwo sets of rules: GCB rules and the rules of the constituent barsProfessional 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”Not all HCs use these titlesOut 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 BarGCB 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 practice 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”IIIRULES OF CONDUCT RELATING TO ADVOCATESReadings: 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 BarThe 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 SuspensionThe 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 ConductGCB 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)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”.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)IVCASES AND SPECIFIC TOPICS[See next page]CROSS-EXAMINATIONReadings:S v Radebe 1973 (1) SA 796 (AD) at 814A-DS v Azov 1974 (1) SA 808 (T) at 810G-811BS v Booi 1964 (1) SA 224 (E) at 227-228S v Makaula 1964 (2) SA 575 (E) at 578S v W 1963 (3) SA 516 (AD) at 523C-FS v Xoswa 1965 (1) SA 267 (C) at 273B-ES 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 questionsYou 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. AccuracyYou 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 questionsYou 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-examineRule 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)High Court, De Villiers J found he couldn’t accept the truth of what Mandela had (pg 36) discussed the duty to put a witnesses’ version to a 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 admissionAn 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 answerYou cannot restrict a witness. They are entitled to explain/ fully answer the question.Hectoring, rude, badgering, hostile cross-examinationWhile 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. BiasA 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 witnessesThe 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/bullyingGCB 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 evidenceDuty of prosecutor – S v RadebeEmotional response to answers given in cross examinationIf you feel repugnance, you must not overstate such repugnance.Effects of unethical cross-examination and general commentsIf 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 witnessesGCB 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)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.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.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.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.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.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].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.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. 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 MATERIALReadings:Findlay v Knight 1935 AD 58 at 71-73Preston v Luyt 1911 EDL 298Basner v Trigger 1946 AD 83 at 106-7Gluckman v Schneider 1936 AD 151 at 161-162If 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 privilegeApplies 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:Relevance/pertinence/necessity/germaneness;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 VenterJoubert v Venter (1985 A) – leading caseProvisional privilegeTo 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.Used to be blanket protection of advocates for what said in court. Slightly watered down now.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”.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”.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: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.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:knows charges are false (or does not care whether charges are true or false); andknows, 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.)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].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.)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:no distinction between witness testifying verbally who is a party and one who is not;in order to defeat privilege, P must show at least:express malice; orwords 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:(i) have been pertinent or germane to the issue or an issue in the case; and(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 COURTReadings:Ex Parte Swain 1973 (2) SA 427 (N) at 434HEx Parte Swain 1973 (4) SA 787 (AD)S v Hollenbach 1971 (4) SA 636 (NC) at 638Society 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 pleadingsEvery 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.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.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.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.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. Van der Berg v The General Council of the Bar 2007 (2) All SA 499Van 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:The application for sequestration of Harksen;One of the creditors alleged that there was no fund, no trust, no trustees (in relation to an offshore fund based in Switzerland).Harksen disputed this and produced affidavits attested to by the “trustees”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. Van der Berg and his attorney went to Switzerland to meet the trustees and secure the affidavits. They met with one trustee but he admitted that the attestation had been forged.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.Counsel described the whole issue as “ridiculous” and went home. He then prepared a memo on the whole event.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.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 decisionJoubert 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.Incorporated Law Society v Bevan 1908 TS 724Attorney 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.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 APPLICATIONSReadings:Logie v Priest 1926 AD 312 at 323Power 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-IHerbstein & Van Winsen 4th Edition, pp 312, 350Ex 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; orBecause 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. 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.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.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.Herbstein and Van Winsen, p 80-81Make 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.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.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 RULESReadings: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-BSociety of Advocates of SA (WLD) v Cigler 1976 (4) SA 350 (T) at 354Serrurier v Korzia 2010 (3) SA 166 (W) at 180GGCB 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. TotoMust have done sufficient and adequate research 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.Pick the leading judgments; don’t need to cite every case. Use discretion. 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.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.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.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.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.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:obligation to pay fees had to flow from an agreement between parties; this agreement could either be an express agreement or by necessary implication; counsel not allowed in terms of their ethical rules to receive instructions or payment from a client; 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; counsel would not be permitted to conclude an express agreement that his fees be paid by anyone else than his attorney; 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 COUNSELReadings:R v Matonsi 1958 (2) SA 450 (AD) at 456A-457FCarolus 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”.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.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.]Independence and objectivity of counsel (here, attorney) compromised if he had identified himself with the issues by also being a witness.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.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 COURTReadings:R v Silber 1952 (2) SA 475 (AD)R v Rosenstein 1943 TPD 65S v Tromp 1966 (1) SA 646 (N) at 653G-H; 655C & 655H-656AS 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 judgment on contempt of court, per Kriegler JJudges mustn’t be too sensitive about criticism.If a well-articulated criticism on the merits, then it is not contempt.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: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.Ex facie curiae (i.e. not in open court): Cannot be dealt with summarily by a judge, must follow normal procedures for criminal matters.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 trial 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.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.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.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: refer matter to AG to decide whether person should be prosecuted in the ordinary course; orif 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 PROSECUTIONReadings: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 casesCounsel 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 casesR 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:(i) Someone from whom the police have obtained a statement re the charge or the events from which the events have ensued.(ii) Anyone actually called.(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:there is a reasonable risk that disclosure would lead to the identify of an informer or state secrets;there is a reasonable risk that disclosure might lead to the intimidation of witnesses; otherwise prejudice the proper ends of justice; oraccess is not justified for the purposes of a fair trial.(f): Other duties on prosecutors: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;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.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:if such State witness declined to be so consulted; orif 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.PRIVILEGEReadings:Heiman Maasdorp & Barker v S I R 1968 (4) SA 160 (W) at 160 and 162-164R v Cox and Railton 1884 (14) Q B D 153R v Davies 1956 (3) SA 52 (AD) at 57-59S v Kearney 1964 (2) SA 495 (AD) at 499-500R v Fouche 1953 (1) SA 440 (W) at 445-449Joubert v Venter 1985 (1) SA 654 (A)Thint v NPA 2009 (1) SA 1 (CC) at par 184Two types of privilege: legal professional privilege and litigation privilege. They are different.Legal Professional Privilege – GeneralCommon 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)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: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;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;Introduction of a third party is very often evidence that matter is not in nature of a confidence between attorney and client;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.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.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.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.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 munication 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.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 defamationLitigation 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.Joubert v Venter (1985 A) – extractRecent 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 CLIENTSReadings:S v Jacobs 1970 (3) SA 493 (E)S v Naidoo 1974 (3) SA 706 (AD) at 712D-713EEx Parte Swain 1973 (2) SA 427 (N) at 432-433S 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.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.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.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.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:Ask for adjournmentConfirm with chair of bar councilExplain to accused 1 why withdrawAsk permission from judge to speak to accused 2 even though still under cross-examination: Explain to accused 2 why withdrawAdvise instructing attorney that his position also untenableAsk for matter to stand down so that instructing attorney can arrange for two other attorneys and counsel to take overWithdraw from the matter – very short explanation requiredDUTY OF PROSECUTOR TO DISCLOSE STATEMENTSReadings:R v Steyn 1954 (1) SA 324 (AD) at 337S v Radebe 1973 (1) SA 796 (AD) at 814R 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.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 BARReadings:Ex Parte Cassim 1970 (4) SA 476 (T) at 477E-HEx Parte Singh 1964 (2) SA 389 (N)Ex Parte Maharaj 1959 (4) SA 522 (N)Ex Parte Gunguluza 1971 (4) SA 212 (N) at 213In 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.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.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.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.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.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.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.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 PRACTICEReadings: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)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.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.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 COUNSELReadings:S v Gibson NO 1979 (4) SA 115 (D)See Rule on pro deo.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 MISCONDUCTReadings: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.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. ? 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.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.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’ WORKReadings: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 R?semann 2002 (1) SA 235 (C)Distinction Between Attorneys’ and Advocates’ PracticeRecognised 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”.BriefsGolden 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 briefsGCB 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.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 JThe 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 JFramers 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.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 ACJIt 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 JAThe 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 workDoes 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.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. General Council of the Bar of SA v R?semann 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 R?seman, 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. ................
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