PROFESSION – Legal practitioner – Duty to client
Legal representative in criminal appeal informed court that she could not advance any meaningful argument on behalf of her clients – Balance between practitioner’s duty as officer of court versus duty to client – Legal representatives owe overriding and paramount duty to administration of justice – No duty on legal representative to concede merits of client’s case or to concede that no meaningful argument can be advanced on behalf of client – Provided that court is not deceived or misled with regards to facts and law – No basis to upset factual findings of court a quo – Appeal dismissed.
Facts: The appellants robbed a Mercedes Benz truck, the property of one Suleman and driven at the time by Mr Molefi. In so robbing Suleman’s vehicle, Molefi was assaulted and kidnapped. The third appellant, armed with a handgun, was the aggressor and threatened to kill Molefi. The appellants were found guilty of robbery with aggravating circumstances while acting in and in furtherance of a common purpose. The appellants’ heads of argument were prepared by Mr Mokoena of Legal Aid, but the appeal was argued by Miss Abrahams from the same office. The appellants’ heads of argument were riddled with what appears to be the appellants’ instructions to their legal representative. When the legal representative of the appellants was asked to advance her submissions, the court was informed that, as an officer of the court she cannot advance any meaningful argument on behalf of the appellants.
Appeal: Against the conviction on grounds challenging the magistrate’s factual finding in favour of the State’s witnesses, and more particular the court a quo’s finding that the appellants were correctly identified as the perpetrators of the robbery.
Discussion: It is apposite, before dealing with the merits, or demerits, of the appeal to attempt to define the delicate balance between a legal practitioner’s duty as an officer of the court versus the duty to his client. The advocate’s right to represent clients in court is a corollary of the advocate’s duty to serve the administration of justice. One aspect of this duty is the Cab Rank Rule. Another similarly important aspect of the modern advocate’s justice-related responsibilities is the duty to give the court a fair representation of facts and adequate instruction in the law. Advocates thus owe an overriding and paramount duty to the administration of justice. However, an advocate’s duty to fearlessly represent his client, whether considering public hostility or considering hostility from the bench, is just as important to the administration of justice as integrity. Merely to suspect, or even to firmly believe, that evidence is false does not preclude an advocate from permitting his client to place the evidence before a court. On the contrary, it would be improper for an advocate to refuse to do so on those grounds alone. But it is a different matter altogether if an advocate knows, as a fact and not merely as a matter of belief, that evidence is false or misleading. An advocate breaches his duty to the court not only by permitting evidence to be given knowing it to be false but also by failing to speak when he knows that the court is being misled.
Findings: Advocates who confine themselves to acting upon instructions will usually avoid ethical conflicts of that kind. But advocates who depart from that salutary practice, and set about discovering the truth for themselves, which they have no duty to do, invite such conflicts. There is thus no duty on an advocate, or legal representative, in discharging his duty to the court, to concede the merits of his client’s case or to concede that no meaningful argument can be advanced on behalf of his client. It might be that an advocate cannot advance any meaningful argument on behalf of his client, simply because the facts or the law are heavily stacked against him, but not even in such a case is there a duty on the advocate, as an incidence of his duty to the court, to make any concessions, provided that the court is not deceived or misled with regards to the facts or the law. A court of appeal is not at liberty to depart from the trial court’s findings of fact and credibility unless they are vitiated by irregularity, or unless an examination of the record of evidence reveals that those findings are patently wrong. The court a quo gave due consideration to the evidence of the State’s witnesses and the contradictions in their evidence. Upon consideration of the evidence of record, there is no basis to upset the factual findings of the court a quo. Neither did the appellants’ legal representative advance any submissions to support a finding to the contrary.
Order: The appeal is dismissed.
ZIETSMAN AJ (OPPERMAN J concurring)
CONSTITUTION – Education – Further education
Policy in prison not allowing use of personal computer in cells to further studies – Policy an infringement of section 29(1)(b) of Constitution – Content of right includes right to pursue further education without State interference – Security concerns not established as ground of limitation – Use of personal computer in cells will be indispensable for certain courses if prisoner is to pursue their studies with diligent application – Policy invalid to extent that it prohibits use of personal computers in cells – Revised policy to be promulgated.
Facts: Mr Ntuli is a prisoner and is serving a 20-year sentence of imprisonment. He has since July 2018 been imprisoned at the Johannesburg Medium C Correctional Centre. With the support of his family, Mr Ntuli registered with the Oxbridge Academy to pursue a computer studies course, with a focus upon data processing. Mr Ntuli requires the use of a computer to do so but his request to use his personal computer in his cell was not approved by the head of the prison. He escalated his request to the Regional Commissioner and was told he had to use the computer room for study purposes. Mr Ntuli approached the High Court to challenge the education policy pursuant to which his request was denied.
Appeal: The High Court (Matsemela AJ) found that the policy was an unjustified limitation of Mr Ntuli’s constitutional right to further education in section 29(1)(b) of the Constitution and constituted unfair discrimination in terms of the Promotion of Equality and the Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). The High Court declared that Mr Ntuli was entitled to use his personal computer in his cell, without a modem, for so long as he remains a registered student with any recognised tertiary institution in South Africa, subject to inspections, at any time, by prison staff.
Discussion: That the policy permits a prisoner registered for a course of study to use their personal computer, but only in a designated room, at set times, and under supervision and it prohibits a prisoner from using their personal computer in any cell; that Matsemela AJ had not been designated as a presiding officer of the Equality Court and enjoyed no power to entertain Mr Ntuli’s claim under the Equality Act; that the court below made an order that the policy is declared to constitute unfair discrimination in terms of the Equality Act when Matsemela AJ had no power to make such an order, and, as a result, that order must be set aside; and that under the Constitution prisoners have the rights given to all persons, entrenched in the Bill of Rights, subject to a regime of punishment that meets the criteria of limitation set out in section 36 of the Constitution.
Findings: The outright prohibition of the policy that excludes a prisoner from using a personal computer in his cell to study is an infringement of Mr Ntuli’s right to pursue his further education and is thus an infringement of section 29(1)(b) of the Constitution. Prisoners who have smuggled cell phones into prison already have unauthorised access to the outside world. Absent some factual basis to suppose that some significant additional risk arises, there is nothing but speculation to weigh in the balance against the blanket prohibition that infringes Mr Ntuli’s constitutional right to further education. The court does not hold that every course of further education requires that a prisoner must be allowed to make use of their personal computer in their cell. Such use will be indispensable for certain courses, if a prisoner is to pursue their studies with diligent application. The court also does not hold that the State is under an obligation to provide prisoners with a computer for use in their cells to further their education.
Order: The appeal is partially upheld and the order of the court a quo is set aside and replaced with an order declaring the Policy Procedure Directorate Formal Education invalid to the extent that it prohibits the use of personal computers in cells. The respondents are directed to prepare and promulgate a revised policy for correctional centres permitting the use of personal computers in cells for study purposes. Pending the revision of the education policy the applicant (and any registered student in a correctional centre who needs a computer to support their studies) is entitled to use his personal computer in his cell, without the use of a modem, for as long as he remains a registered student with a recognised tertiary or further education institution in South Africa.
UNTERHALTER AJA (DAMBUZA JA, MEYER JA, MATOJANE JA and GOOSEN JA concurring)
RAF – Attorney and client fee agreement – Order of court
Fee agreement in two cases not related to litigation and should not have been included in draft order to be made order of court – Agreement does not require judicial approval as is the case where parties have entered into contingency fee agreements which require judicial oversight – High Court not entitled to make orders that were not sought – Effect of orders was to deprive attorney and counsel of their right to claim fees for services they had rendered to RAF plaintiffs without affording them opportunity to be heard before orders were made – Appeals upheld.
Facts: Ms Majope was a passenger in a motor vehicle collision and Mr Machabe was injured when he fell off a moving bakkie in which he was a passenger. Both Ms Majope and Mr Machabe consulted with and mandated Ms Ngomana to lodge claims against the Road Accident Fund (RAF) and signed their respective attorney and own client fee agreements. The RAF conceded liability for negligence and what remained in dispute was the quantum. On the day of the hearing on 22 March 2022 there was no appearance on behalf of the RAF. Ms Ngomana and Mr Tshavhungwe as counsel appeared on behalf of Ms Majope and Mr Machabe. The High Court directed Ms Ngomana and Mr Tshavhungwe to prepare draft orders. Both draft orders that were handed in recorded that there was no contingency fee agreement. The proposed orders triggered an enquiry by the High Court, which did not believe that no contingency fee agreements had been concluded.
Appeal: The High Court order included that Ngomana and Associates shall not recover any disbursements or fees from the plaintiffs and directed that the Legal Practice Council (LPC) investigate the conduct of Ms Ngomane and Advocate Tshavhungwe. The LPC was directed to nominate a firm of attorneys to be appointed by the court for purposes of receiving the moneys due and payable by the RAF to the plaintiffs.
Discussion: Certain parts of the orders were never sought by any of the parties. Neither were they canvassed with Ms Ngomana and Mr Tshavhungwe before they were made. They are therefore not competent. These orders were premised on a finding by the High Court that the fee agreement concluded between Ms Majope and Mr Machabe with Ms Ngomana was a contingency mandate which was invalid because of non-compliance with certain provisions of the Contingency Fees Act 66 of 1997. The effect of these orders was to deprive Ms Ngomana and Mr Tshavhungwe of their right to claim fees for the services they had rendered, without affording them the opportunity to be heard before the orders were made. Not only were Ms Ngomana and Mr Tshavhungwe deprived of their right to claim their fees but Ms Majope and Mr Machabe were also deprived of their right to recover their costs from the RAF.
Findings: It was particularly concerning that these extraordinary orders were made against Ms Ngomana and Mr Tshavhungwe when they were not parties to the case before the High Court. A fee agreement is in essence a contract between an attorney and client to arrange for payments outside the prescribed tariff. To delegitimise such agreements erodes a basic principle of our law of contract. The fee agreement between Ms Majope, Mr Machabe and Ms Ngomana is not related to the litigation and should not have been included in the draft order, to be made an order of court. Such an agreement does not require judicial approval as is the case where parties have entered into contingency fee agreements which require judicial oversight. It is open to Ms Majope and Mr Machabe to request that the attorney and client fee agreement should be submitted to the Taxing Master for taxation should they wish to do so.
Order: In respect of both appeals, the appeals are upheld with no order as to costs. The orders are replaced with orders where judgment is granted for R661,795 and R200,000 for loss of earnings in each case and that the RAF is ordered to pay the plaintiffs’ taxed or agreed party and party costs incurred up to 22 March 2022.
CARELSE JA (ZONDI JA, DAMBUZA JA, MOLEFE JA and NHLANGULELA AJA concurring)
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Spartan Case Law
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