WDL and Others v Gundelfinger and Others (20/24681) [2020] ZAGPJHC 408; 2022 (2) SA 272 (GJ) (21 December 2020)

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[2020] ZAGPJHC 408
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WDL and Others v Gundelfinger and Others (20/24681) [2020] ZAGPJHC 408; 2022 (2) SA 272 (GJ) (21 December 2020)

SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NUMBER: 20/24681
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED:
YES
In the matter
between:
W D
L

First Applicant
W D
L
N.O.

Second Applicant
R B
N.O.

Third Applicant
And
BILLY
GUNDELFINGER

First Respondent
WANDI
STEYN

Second Respondent
A L
(born
B)

Third Respondent
JUDGMENT
WINDELL,
J:
INTRODUCTION
[1]
This is an application for a final interdict. It relates to a
situation
where an attorney (Ms Steyn) has done work on behalf of a
client (Mr L) in divorce proceedings against his wife, (Mrs L) whilst

in the employ of a firm of attorneys (Clarks Attorneys). Ms Steyn
then leaves Clarks Attorneys and joins another firm (Billy
Gundelfinger
Attorneys), whilst the divorce proceedings are still
pending. Billy Gundelfinger Attorneys is representing Mrs L (Mr L’s
adversary) in the divorce proceedings against Mr L.
[2]
Ms Steyn (the second respondent) was employed at Clarks Attorneys
from
at least 2016 until 2020. She was one of three attorneys at
Clarks Attorneys that worked on the divorce matter. The other two
attorneys
at Clarks Attorneys were Beverley Clark
(“Clark”),
and Nicole Raath (“Raath”). From approximately May 2016
to January 2019 Clarks Attorneys represented
the first applicant, Mr
L, and the second and third applicants
[1]
in the divorce proceedings against Mrs L. Mrs L has been represented
by Mr Gundelfinger
[2]
(the first respondent) since 26 November 2014 and is still
represented by him.  On 22 January 2019 the applicants
terminated
the mandate of Clarks Attorneys and have been represented
by Fluxmans Attorneys from that time onwards. Ms Steyn moved from
Clarks
Attorneys to Billy Gundelfinger Attorneys with effect from 1
July 2020. When the applicants discovered that Ms Steyn was working

at the offices of Billy Gundelfinger Attorneys, Fluxmans Attorneys
addressed a letter dated 13 August 2020 to Billy Gundelfinger

Attorneys, pointing out the conflict of interest and requiring Billy
Gundelfinger Attorneys to withdraw as the attorney of record
on
behalf of Mrs L. Mr Gundelfinger did not accede to the demand to
withdraw. The applicants consequently approached this court
for
relief.
[3]
The applicants seek a final interdict. The basis of the application
is
the applicants right to the protection of confidential information
imparted to Clarks Attorneys (Ms Steyn) during the period when
Clarks
Attorneys represented the applicants. The requirements for a final
interdict are trite: a clear right, an injury actually
committed or
reasonably apprehended, and the absence of similar protection by any
other ordinary remedy.
[3]
The applicants seek an order interdicting:
a)    The
first and second respondent (Mr Gundelfinger and Ms Steyn) or any
other employee or attorney associated
with the practice, Billy
Gundelfinger Attorneys,
from representing the third respondent, Mrs L, in the pending divorce
proceedings between the applicants
and Mrs L;
b)    The first and second respondent from interacting
with, briefing, advising, sharing information, knowledge
or documents
with any attorney appointed by Mrs L in the divorce proceedings.
[4]
The main issue for determination, explained in more detail below, is
whether
the information imparted to Ms Steyn is still confidential
and relevant to the issues in the subject matter and therefore worthy

of protection.
[5]
A legal representative owes a fiduciary duty to his or her current
client
to act in their best interests. That duty precludes a legal
representative from simultaneously acting for two clients with
conflicting
interests, because the legal representative cannot
properly serve both of the clients’ interests at the same
time.
[4]
A fiduciary duty exists only while the relationship which gave rise
to the duty remains in place. A lawyer’s fiduciary duties
to
his client terminates when their professional relationship comes to
an end.
[5]
[6]
The only duty that survives the termination of the legal
representative’s
mandate, is the duty to preserve the
confidentiality of information imparted to him through his
professional relationship with
a former client.
[6]
There is therefore no absolute rule that precludes a legal
representative from acting against a former client.
[7]
In order to obtain an interdict to preclude a former representative
from acting against him or her, the client (the applicants)
must
provide evidence and show that:
[8]
a)    The
applicants had a previous attorney-client contract with the
respondents;
b)
Confidential information of the applicants was imparted or received
in confidence as a result of that contract;
c)    That information remains confidential;
d)    That information is relevant to the matter at
hand; and,
e)    The
interests of the present client of the respondents are adverse to
those of the former clients.
[7]
Only once these facts have been proved, does an evidential burden
shift
to the legal representative to show that there is no risk to
the former client if the legal representative acts in the matter. A

court will restrain a legal representative from acting against a
former client where there is a significant risk of disclosure,
or
misuse of information which belongs to the former client.
[9]
While the risk need not be substantial, it must be a real one, and
not merely fanciful or theoretical.
[10]
A court will not likely disqualify a legal representative because the
effect of doing so would be to deprive the current client
of his
right to freely choose his own counsel. A client whose legal
representative is disqualified loses not just time and money,
but
also the benefit of the legal representative’s specialized
knowledge of the case.
[11]
[8]
The applicants submit that they have demonstrated “beyond any
doubt”
that confidential information, which is also privileged,
was imparted to Ms Steyn and to Clarks Attorneys whilst the
applicants
were represented by them in the divorce proceedings.
Ms Steyn is now employed by Billy Gundelfinger Attorneys, the same
attorneys
who have always represented and continue to represent Mrs L
in the self-same divorce proceedings. It is submitted that the
applicants
have an unqualified right to the protection of such
confidential and privileged information and that the applicants have
a well-founded
apprehension of harm that the confidential information
has been or will be compromised by virtue of the employment of Ms
Steyn
by Billy Gundelfinger Attorneys. It is submitted that the only
viable remedy available to the applicants is an interdict as prayed

for in the Notice of Motion and that the applicants have made out a
case which justifies the granting of a final interdict.
[9]
The applicants submit that even if the court finds that the
applicants
failed to meet the standard of proof as set out in
paragraph 6 above,
[12]
the court has, as a matter of public policy, an inherent jurisdiction
to control the conduct of its own officers so as to ensure
the due
administration of justice and the integrity of the judicial process.
It is submitted that the court should exercise its
discretion in
favour of the applicants and interdict Mr Gundelfinger from further
representing Mrs L in the divorce proceedings.
[10]
The questions raised in this matter are complex. I was referred to
only two reported cases
in South Africa that have dealt with all of
the issues raised in the present matter:
Wishart and Others
v Blieden N.O. and Others
[13]
,
a judgment penned by Gorven J, and the Supreme Court of Appeal
judgment in the same matter,
Wishart and Others v Blieden N.O. and
Others.
[14]
It is for this reason that the applicants and respondents have not
only referred the court to the principles governing these issues
in
the South African Law, but also to English Law and Australian Law.
CONFIDENTIAL
INFORMATION
[11]
As stated, the basis of the applicants’ application for an
interdict is the right
to protection of confidential information. In
the seminal judgment of the House of Lords in
Prince Jefri Bolkiah
v KPMG (a firm) supra,
[15]
Lord Millet summarized the position as follows:
“
Accordingly, it is
incumbent on a Plaintiff who seeks to restrain his former solicitor
from acting in a matter for another client
to establish (i) that the
solicitor is in possession of information which is confidential to
him and to the disclosure of which
he has not consented and (ii) that
the information is or maybe relevant to the new matter in which the
interest of the other client
is or may be adverse to his own.
Although the burden of proof is on the Plaintiff it is not a heavy
one. The former may readily
be inferred; the later will often be
obvious. I do not think that it is necessary to introduce any
presumptions, rebuttable or
otherwise, in relation to these two
matters. But given the basis on which the jurisdiction is exercised,
there is no cause to impute
or attribute the knowledge of one partner
to his fellow partners. Whether a particular individual is in
possession of confidential
information is a question of fact which
must be proved or inferred from the circumstances of the case."
[12]
It is not disputed that Ms Steyn received confidential information
from Mr L whilst she
was employed at Clarks Attorneys.  This is
clear from the compilation and execution of many court documents and
notices in
the divorce matter, coupled with the fact that her name
appears on many notices, documents, correspondence, emails and
WhatsApp
exchanges.
[13]
The main issue and bone of contention between the parties is the
following: the respondents
contend that the applicants failed to
furnish particularity and specificity of the confidential information
sought to be protected
and as a result they failed to establish that
the confidential information alleged to have been imparted or
reasonably apprehended
to be imparted to Mr Gundelfinger, is still
confidential and relevant to the subject matter of the issues in the
divorce proceedings.
The respondents say so, for the following
reasons: firstly, Mrs L, on Mr L’s own version, is already in
possession of all
the relevant information pertaining to the divorce
action; secondly, Mr L "bared his soul" to Mr Gundelfinger
in a series
of five meetings held directly between them; and thirdly,
at the time that the interdict is sought, Ms Steyn no longer
possessed
confidential information, i.e. information that has not
been communicated to others or has not become common knowledge in the
divorce
proceedings by,
inter alia,
the delivery of pleadings,
affidavits, notices, and discovery affidavits. Each of the reasons
are dealt with below.
Information
in possession of Mrs L
[14]
Mrs L was provided with the following information, by Mr L, which
information pertains
to the pending divorce proceedings:
a)
annual schedules setting out his assets and their location. These
included his offshore accounts and
his South African assets;
b)
the password ("R"), which enabled her to access a file
stored on a computer used by Mr L, which
file was designated "Vehicle
Service Mileage Registration Licence Schedule". This file
reflected Mr L's schedule of assets,
as updated from time to time, so
that in the event of his death, his mother and Mrs L would have
knowledge of the whereabouts of
his assets;
c)
details relating to his local assets and their whereabouts, stating
that the Plettenberg Bay property
was owned by the Trust and a Gowrie
property was owned by a company, the shares of which were held by a
Trust, and the matrimonial
home situate at [ . ..] was owned by C
(Pty) Limited and that she had "a put option" on its
shares;
d)     details relating to the manner in which he
structured the affairs of C
(Pty) Limited so as to avoid the payment of Capital Gains Tax;
e)
details relating to the manner in which he had “contrived”
loans in favour of the Isle of
Man Assurance situated in the Isle of
Man in order to enable the proceeds from the sale of the property
registered in the name
of C (Pty)
Limited to be remitted offshore to an account controlled by him;
f)
repeated advice that it was unwise to invest in South Africa and wise
to be "tax efficient"
and to have healthy foreign reserves;
g)
information in regards the insulation of the South African
property-owning companies and Trust from the
payment of Capital Gains
Tax and any future claims that might arise against him from creditors
and particularly SARS, and that
he had created “fictitious”
debts;
h)     information that the Plettenberg Bay
property purchased by the [….]
Trust had been paid for by
him from his offshore assets, although he had “contrived”
a loan from his sister so that
he could repatriate to his offshore
accounts the proceeds derived from the sale of that property;
i)
information that Mr L had bank accounts and share trading accounts in
Switzerland and that
he held foreign bank accounts;
j)
information that he had made her a joint signatory on certain of the
foreign bank accounts;
k)
information of the banking account maintained at Absa Bank Limited,
which account was held in his sister's
name;
l)
information relating to the source of the funds which were from time
to time credited to
the Absa account, with the indication that such
funds were used to maintain Mr L's and her lifestyle;
m)   a caution in relation to the Absa account;
n)
an undertaking that in order to provide her with financial security,
he would transfer his shares in
A2 CM SA (Pty) Limited ("AA")
to her, which shares were held notionally by A2 I Limited
(incorporated in the Isle of
Man) ("A2"); that he would
give her 50% of the offshore assets and that he would establish an
Isle of Man pension fund
for her at Saxo Bank in respect of which she
would be the sole signatory;
o)
an undertaking to pay her an amount equivalent to what he had gifted
a person by the name of Alison Hind,
namely the sum of R2,4 million;
p)     an undertaking to give her control over
the Absa Bank account;
q)
a share transfer form dated 11 July 2016, signed by him which
transfer form made provision for the transfer
of 74 100 shares in AA
to her;
r)
an undertaking to establish an overseas pension fund for her as part
of a financial settlement,
arranging for a meeting to be held by them
with advisers of “Opes”, an overseas pension fund;
s)
an undertaking that as part of a settlement his business A2, would
pay an amount of US$ 3 000 000,00
held in Saxo Bank, Denmark into her
pension fund; information relating to his strategy in the divorce
proceedings, stating that
he would move his assets (most of which
were not held in his own name to impede visibility, but where held in
the name of Trusts),
that he would always be one step ahead of her in
the litigation, that he would lead her on a wild goose chase looking
for his assets,
that he would ensure that she would eventually run
out of funds to pursue the litigation against him; that he would
force her to
capitulate and that he would place his assets in
living annuities because they would not form part of his estate in
determining
the accrual;
t)      advice that she would receive
nothing from him unless it was on his terms;
u)     an intimation that she could not subpoena
documents from entities outside the
Republic of South Africa and this had been confirmed to him;
v)     advised her that he owned AA and A2.
[15]
It is clear from the information set out in the paragraph above that
Mrs  L had acquired
substantial knowledge of the assets of Mr L
(whether held in his own name or nominally on his behalf), their
location and his liabilities,
both real and fictitious, well before
Ms Steyn joined Mr Gundelfinger in practice.
[16]
It is also important to note, that Mr L conceded that Mrs L knew
about his financial and
business affairs, including the extent of the
accrued matrimonial estate. In ground 22 in his application for leave
to appeal the
order granted by Makume J
[16]
he stated the following:
"22. The learned
Judge failed to give due weight to the fact that the applicant (Mrs
L) knows all about the respondent's proprietary
affairs, including
his business affairs, the extent of the accrued matrimonial estate,
the assets, their whereabouts and their
values and hence there is no
likelihood of the respondent (Mr L) concealing assets from the
applicant (Mrs
L)."
[17]
Mr L, does not dispute that Mrs L has all this information (except
that he created fictitious
loans or contrived loans), but contends
that Mrs L’s averment that she has comprehensive knowledge of
his confidential financial
and other affairs, is contradicted by what
she alleged in other affidavits that have been filed.  In the
Rule 43 application
for a contribution to costs dated 19 September
2019, Mrs L complained that it was necessary for her to obtain a
large amount for
contribution to costs to enable her to conduct an
extensive international forensic investigation to uncover the full
extent of
Mr L’s affairs. It is submitted that it is clear that
she would not need to purport to do conduct such an investigation if

she in fact has the knowledge that she purports to hold.
Meetings
between Mr L and Mr Gundelfinger
[18]
During the period July 2017 to December 2017, Mr Gundelfinger had 5
meetings alone with
Mr L spanning some 8½ hours in an attempt
to settle the then burgeoning dispute. These meetings took place with
the knowledge
of Mr L's erstwhile attorneys and counsel, Advocate
Morison SC, albeit that they were opposed thereto.
[19]
The applicants contend that all those meetings were held on a without
prejudice basis in
the genuine and
bona fide
attempt to reach
a resolution of the divorce proceedings. Any and all statements made
by Mr L during those meetings were privileged
and on a without
prejudice basis. It is submitted that Mr Gundelfinger is not entitled
to use or apply any of the information or
knowledge conveyed to him
during those meetings and it is, from a legal point of view, as if
those meetings never took place. The
applicants therefore apply to
strike out all without prejudice matter from the respondents’
answering affidavit.
[20]
The nature of the relief sought in this application, the requirements
for the granting
thereof, and the facts said to underpin it, raise
the following question: Should without prejudice discussions, in a
bona fide
attempt to resolve a dispute, be allowed and be
admitted into evidence, for the limited purpose of demonstrating that
matters,
said to be confidential, have by virtue of their disclosure
ceased to hold that character?
[21]
In considering the question, a number of competing public policy
considerations become
relevant, namely:
a)    Discussions designed to achieve and promote the
settlement of a dispute, without resort to litigation; is
privileged
and not open to disclosure;
[17]
b)    A
client who has retained the services of a solicitor is entitled to
prevent the disclosure of confidential
information which he may have
imparted to the solicitor, provided only that such information has
remained
confidential;
[18]
c)    A solicitor should otherwise be entitled to act
for clients of his choice and concomitantly clients should
be able to
select representation of their choice.
[19]
[22]
This holds the implication that as a matter of public policy an
attorney ought not to be
deprived of acting for clients of his
choice, and concomitantly a litigant ought not to be deprived of
representation of his choice,
where there is no need to interdict the
disclosure of confidential information, because the information
(which is the subject of
the interdict) has been shared during
without prejudice discussions, and may in any event, subject to
exceptions, not be used against
the party disclosing the
information.
A
further implication arises: it would be contrary to public policy to
prevent an attorney from representing a client on the basis
that that
attorney has acquired confidential information in relation to an
adversary of that client, in circumstances where such
information has
previously been disclosed to the very same attorney.
[23]
An application for injunctive relief in those circumstances would be
tainted with fraud
and it cannot be in the public interest that an
attorney should be restrained from acting for a client of his own
choice (and concomitantly
for the client to choose representation of
her own choice) in circumstances where no legal foundation in law
justifies a restriction
of those fundamental rights. As stated, the
rule which prevents the disclosure of discussions which have taken
place between protagonists
in a
bona
fide
attempt to
settle a dispute is subject to exceptions. Thus, and just as public
policy impels the admission of disclosures made
in "without
prejudice" discussions which have taken place in
[20]
a
bona fide
attempt to resolve a dispute are admissible in
evidence to establish an act of insolvency, or to interrupt
prescription. It must
necessarily impel the admissibility in evidence
of disclosures of that nature for the limited purpose of
demonstrating that what
an applicant claims to be confidential for
the purpose of founding injunctive relief which, if granted, would
severely impact on
the rights of others, is no longer confidential
because it has been disclosed. To contend otherwise would be to
promote conduct
in
fraudem legis
, designed to secure
relief in circumstances where there is no entitlement thereto.
[24]
Mr Gundelfinger submits that during the course of these meetings, Mr
L provided him with extensive
knowledge into Mr L's affairs.  In
his answering
affidavit Mr Gundelfinger sets out in great
detail the information that Mr L provided to him.
[25]
It is not necessary for purposes of this judgment to repeat the
information provided to
Mr Gundelfinger, suffice to say that it
ranges from providing information relating to the nature and
composition of Mr L's estate,
the value thereof in approximately the
sum of R234 000 000,00 (two hundred and thirty-four million Rand),
his control and ownership
of AA and A2, and his tax position. During
these meetings he also advised Mr Gundelfinger that he had consulted
a forensic accountant,
Professor Harvey Wainer who had told him that,
subject to the dwelling (being erf [ . . .]) being an excluded asset,
and subject
further to him being able to establish that the
commencement value of his estate included the Peregrine shares
referred to the
Antenuptial Contract, Mrs L's accrual claim would not
exceed R50 000 000,00 (fifty million Rand). But, despite that, he
accepted
that his liability to her was R100 000 000,00 (one hundred
million Rand) and that he would pay that amount.
[26]
This court has been appointed to case manage the divorce matter and
to deal with interlocutory
applications, if and when they arise, in
order to get the matter trial ready. This court will therefore not
preside over the divorce
trial.  In the circumstances, the
disclosures made by Mr L to Mr Gundelfinger, are admissible in
evidence to demonstrate that
much of the information, which Mr L
alleges Ms Steyn holds, does not constitute relevant confidential
information and can consequently
not be relied upon to found an
entitlement to the injunctive relief sought by the applicants.
The application to strike
out must consequently fail.
Is
the confidential information imparted to Ms Steyn relevant to the
subject matter of the issues in the divorce proceedings?
[27]
The applicants allege that Raath initially fulfilled the role as the
applicants' main associate
attorney at Clarks Attorneys. In
approximately February 2017, Raath left the employ of Clarks
Attorneys, and Ms Steyn then became
the main point of contact at an
associate level. She would, in that capacity, perform "the
lion's share" of the work.
It is alleged that Ms Steyn, in
relation to the divorce proceedings, was involved in the preparation
of a substantial portion of
the correspondence to Billy Gundelfinger
Attorneys and was copied on and involved in practically all
correspondence during 2016,
which continued when she took over from
Raath in 2017. This continued until the cessation of the applicants'
relationship with
Clarks Attorneys on 22 January 2019.
[28]
It is alleged that Ms Steyn was integral to the giving of
instructions in relation to the
drafting of pleadings, the
formulation and preparation of affidavits, and that she served as the
main go-between with the applicant’s
counsel, Advocate Morison
SC, as "meeting organiser" and attended all meetings with
him. She advised the applicants in
relation to the preparation of the
discovery affidavits and the schedules thereto, and exercised her own
judgment in collaboration
with Clark and Advocate Morison SC, and in
consultation with Mr L, to determine which items of correspondence
were obliged to be
discovered and which were privileged. She was
provided with privileged and confidential information relating to Mr
L’s affairs
and the companies of which he was a director,
namely AA. A2, which latter entity administered the A2 [….]
("[….]").
[29]
It is alleged that she was furnished with privileged and detailed
instructions pertaining
to Mr and Mrs L’s relationship and the
reasons for the breakdown of the marriage as well as issues relating
to Mr L's contact
with the children born of the marriage, including
the payment of maintenance in respect of Mrs L and the minor
children.
She was furnished with privileged and detailed
information and instructions in relation to the conduct by Mrs L of
her highly profitable
interior decorating business and the strategies
employed by Mrs L to conceal her earnings and Mrs L's failure over
her lifetime
to register for income tax and the implications thereof.
She was involved with Clark in practically every aspect of the
strategic
planning for the conduct of the divorce proceedings and was
provided with confidential and privileged documentation in relation

to many of the elements of (if not practically all of the elements)
relating to all matters pertinent to the divorce proceedings.
[30]
It is alleged that Ms Steyn was the person who dealt with the filing
of practically all
notices and documents in the course of the divorce
proceedings, and in fact signed almost every, if not all, court
documents filed
by Clarks Attorneys after February 2017.
[21]
She advised the applicants under high level supervision from Clark
and Advocate Morison SC on the following matters: (a) the
supplementary
discovery process, and the timing involved in such; (b)
the resolutions and the signature thereof; (c) extensions of time
from
both the plaintiff’s and the defendants' sides; (d)
disclosure of bank statements for discovery purposes; (e) Trust and
trustee
matters, and the signature of resolutions relating thereto;
(f) auditor involvement, letters of authority, completion of audit
and accounting matters; (g) policies in relation to [….]; (h)
draft documents of various types, including draft affidavits
and
court notices; guiding the applicants through the signature,
commissioning and serving of affidavits, and following up on fee

payments; (i) documentation relating to the possible settlement of
the divorce proceedings and other agreements relating thereto;
(j)
the need to ensure that settlement agreements should be properly
drafted by lawyers and not by laypersons; (k) the strategy
for the
timing and presentation of settlement and other agreements, and
involvement in the prospective arranging of a meeting of
all parties
for this purpose; (l) Mrs L's bank statements and the analysis
thereof, utility bills and financial disclosures; (m)
payments to be
made to Mrs L, proof of payments in that regard and documentation
pertaining thereto; (n) parenting plans, and advising
Mr L on the
children's holidays and time allocation regarding the contact with
the children shared between Mr L and Mrs L; (o)
matters which had
been raised by Mr L in WhatsApp communications which he had with
Clark. She was the person who, under the high
level supervision of
Clark and Advocate Morison SC, dealt with an application to compel
further and better discovery until the
mandate of Clarks Attorneys
had been terminated. She was the author of, participated in, or was a
recipient of extensive correspondence
of a party and party nature. It
is alleged that after an
ex-parte
application was granted
against Mr L, Ms Steyn was engaged extensively (with Raath) in the
court proceedings by attending court
on the return day of the matter.
The matter ran over a period of four days, during which she received
extensive confidential and
privileged instructions, documents and
input from Mr L.  She was copied in on innumerable e-mails,
which passed between Mr
L and Clarks Attorneys, and became part of a
WhatsApp group which was established between Mr L, Clark and Advocate
Morison SC for
the purposes of communications between them in the
divorce proceedings.
[31]
The applicants allege that on 23 November 2016 at 09h15, Mrs L took
Mr L’s backpack
containing his laptop from the former
matrimonial home, to the offices of Billy Gundelfinger Attorneys and
returned it later that
day at around 13h00. Mr L suspected that Mrs L
had accessed confidential information on the laptop and arranged for
the laptop
to be submitted for a full forensic investigation and
analysis. In summary, the forensic investigation found that the
laptop had
been transported in a Range Rover vehicle to the offices
of Billy Gundelfinger Attorneys, and whilst at the offices of Billy
Gundelfinger
Attorneys, the laptop was connected to the internet
using the WIFI network of Billy Gundelfinger Attorneys. It is alleged
that
a great many privileged, private and highly confidential
e-mails, files, documents and records were hacked and downloaded,
which
included various documents which were password protected and
encrypted; privileged correspondence between Mr L and Clarks
Attorneys,
highly sensitive and confidential information of the
clients of the [….], including their banking details and share
trading
accounts. It is alleged that access was obtained to Mr L’s
accounts, data, emails and confidential information in various
cloud
based platforms such as Gmail, Google Drive and Google Docs, Dropbox
and Adobe. Numerous documents were downloaded from these

platforms.
[22]
[32]
The applicants allege that after the data theft incident had come to
the attention of Mr
L, Ms Steyn and Raath were fully briefed
regarding the nature of the confidential and privileged information
that had allegedly
been accessed and stolen during the course of that
incident.  Many of the confidential and privileged items were
discussed
with Ms Steyn, and Mr L provided her with instructions and
information in relation thereto. Ms Steyn and Clark were also
provided
with the new unique passwords which Mr L had established
after the data theft incident.
[33]
Arising from the aforegoing, the applicants contend that Ms Steyn
became privy to practically
all exchanges that he had with Clarks
Attorneys.  It is submitted that the interactions between Mr L
and Ms Steyn were frequent,
intense and often lengthy with them
communicating telephonically, on e-mail, in meetings at Clarks
Attorneys and in meetings at
counsel’s chambers. It is
contended that Ms Steyn was "the main foot soldier for the
matter" and was fully and
intimately involved in all aspects of
the matter, becoming "imbued with the full extent of the
confidential and privileged
knowledge relating to practically every
aspect of the divorce proceedings".
[34]
Ms Steyn, in response to the allegations, filed a confirmatory
affidavit in support of
Mr Gundelfinger’s answering affidavit
and filed a supplementary affidavit in answer to Mr L’s
replying affidavit. She
states that she had to reconstruct the work
she performed on behalf of the applicants whilst in the employ of
Clarks Attorneys,
as the applicants refused to allow her to peruse
the notes which she compiled whilst acting for the applicants, as
well as the
fee notes rendered by Clarks Attorneys to the applicants
on account of work performed on their behalf. In these affidavits her
role, which she discharged on behalf of the applicants whilst in the
employ of Clarks Attorneys, was explained. What follows is
a summary
of her involvement and engagements with Mr L in the matter.
[35]
Ms Steyn stated that she attended a consultation with Clark, Advocate
Morison SC and Mr
L, during which consultation the details of a
settlement proposal Mr L wished to make to Mrs L was raised, debated
and agreed upon.
This consultation represented her first interaction
with Mr L. She attended a round-table settlement meeting (together
with Clark
and Mr L) held at the offices of Mr Gundelfinger. She
attended a further two consultations with Advocate Morison SC, Clark
and
Mr L, during which consultations Mr L furnished instructions in
relation to the proposed plea and counterclaim in the action. These

instructions were embodied in those documents and filed of record in
the proceedings. During the course of the consultations, Clark,

Advocate Morison SC and she were instructed that Mrs L was not a
registered taxpayer, that she had earned income from an interior

decorating business, which income had been invoiced through C (Pty)
Limited, that Mrs L had a substantial liability to SARS and
that she
was insolvent because of this liability. These matters were recorded
in both the plea and counterclaim drawn and settled
by Advocate
Morison SC. Mr L, moreover, on that occasion spoke of the
relationship between
AA,
A2 and [….], although she cannot recollect the contents of
that discussion other than Mr L stating that he was not a
shareholder
in any one of these entities, which matter was incorporated in Mr L's
plea and counterclaim.
[36]
Ms Steyn states that she accompanied Clark, Mr L and Mrs L, to a
consultation held with
Advocate John Peter SC for the purpose of
considering the position of the trustees of the [….] Trust in
South Africa in
relation to Mrs L's particulars of claim and, more
especially, whether the Trust should be separately represented in the
proceedings.
She assisted Clark after Raath had left the employ of
Clarks Attorneys. She communicated with Mr L by way of e-mail,
WhatsApp and
telephonically, in relation to the following matters:
contact with the children; reminders relating to the payment of
maintenance;
the drafting and editing of a parenting plan; the
provision of documents for discovery; the furnishing of advice to Mr
L of the
administrative steps which had been taken, such as the
filing of his discovery affidavit, the service of a notice of bar and
the
receipt of Mrs L's notice in terms of Uniform Rules of Court
35(3) and (6); the following up with Mr L of the payment of his
account;
the arrangement of meetings with counsel and liaising and
communicating by e-mail with Mr L, wherein he was advised of the
dates,
times and places of consultations, but then only to the extent
that this had not been attended to by Clark. She states that she

assisted in the drafting of Court Notices; the arranging of dates and
times for meetings and advising the attendees accordingly;
the
following up on the payment of invoices/payment of trust deposits,
the facilitation of the provision of travel consent affidavits
to
enable the children to travel abroad; and communicated to Mr L
complaints and/or requests relating to the payment of interim

maintenance. She received the details of Mr L's estate from either
Clark or Mr L, such having been provided by Mr L on an Excel

spreadsheet which Mr L had prepared. From the Excel spreadsheet Clark
was able to compile Mr L's response in terms of Section 7
of the
Act.
[37]
Ms Steyn states that she had one telephonic conversation with Mr
Gundelfinger regarding
the provision by Mrs L of consent for the
children to travel overseas. She attended to matters peripheral to
the divorce proceedings,
such as those relating to household and
motor vehicle repairs, the allocation of holiday periods between Mr L
and Mrs L and travel
consents. She drafted a standard discovery
affidavit for Mr L in both his personal capacity and his capacity as
a trustee, doing
so from documents provided by Mr L. She advised Mr L
of the requirements of Rule 35 of the Uniform Rules of Court relating
to his
obligation to make discovery. In the ordinary course she would
have advised him of the nature of the documents to be discovered
to
prove or disprove the issues which would arise at the trial,
identifying documents such as bank statements, credit card
statements,
those relating to loan accounts, those required to
establish the identity and value of assets and liabilities and those
which demonstrated
the accrual of income, including tax returns and
assessments.
[38]
A settlement meeting was held with Mr Gundelfinger at which meeting
an offer of settlement
was made on behalf of Mr L. Ms Steyn states
that consequently, whatever may have been decided upon at the
meeting, was no longer
confidential. The instructions which Mr L
furnished Advocate Morison SC and Clark at the two meetings attended
by Ms Steyn, were
incorporated in the pleadings filed of record and
thus no longer retained the character of confidentiality. The advice
which Advocate
Peter SC furnished to Mr Gundelfinger was given effect
to in the plea and, here again, no confidentiality can legitimately
be said
to attach thereto. She stated that the e-mail, WhatsApp and
telephonic interactions between Mr L and herself were largely
confined
to matters of a routine nature and it is difficult to
conceive what matters of confidence might have arisen during the
course thereof.
Similar considerations apply to the other peripheral
matters which Ms Steyn attended to on behalf of Mr L, including the
single
telephonic conversation which Ms Steyn had with Mr
Gundelfinger. The work performed by her in relation to discovery and
the advice
which she furnished in regard thereto was standard and
routine in nature. Ms Steyn states that she had no involvement in the
urgent
ex-parte
application and the "data theft incident"
and her involvement in the divorce proceedings was “
intermittent,
peripheral, related primarily to the parenting plan, her presence at
the meetings referred to above, and drafting
of the first applicant’s
initial discovery affidavit and also included administrative
functions.”
[39]
The respondents contend that the suggestion by Mr L in the founding
affidavit that Ms Steyn
disclosed the existence of the password "R"
and the existence of the so-called "Vehicle Service Mileage
Registration
Licence Schedule" to Mr Gundelfinger is
demonstrably wrong. The information was known to Mr Gundelfinger (and
through him
Advocate Woodward SC) prior to 23 November 2016, and thus
almost four years before Ms Steyn entered the employ of Mr
Gundelfinger.
[40]
As stated, in addition to the answering papers, Mr Gundelfinger and
Ms Steyn have delivered
affidavits in reply to the new matters raised
by Mr L in his replying affidavit, including his reliance on
approximately 300 additional
WhatsApp messages and correspondence.
Did
the applicants discharge the onus?
[41]
The decision whether to grant the relief sought by the applicant is
subject to two well-known
principles of South African law, the one
being procedural in nature and the other substantive. As to the
former, the
locus classicus
is the matter of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[23]
which dealt with the impact of disputes of fact on the determination
of relief which is sought in motion proceedings. The principles

enunciated therein are trite.  The principles in question were
formulated by Corbett JA, (as he then was), in the following
manner:
"
Secondly, the
affidavits reveal certain disputes of fact. The appellant
nevertheless sought a final interdict, together with ancillary

relief, on the papers and without resort to oral evidence. In such a
case the general rule was stated by Van Wyk J (with whom
De Villiers JP and Rosenow J
concurred) in Stellenbosch Farmers' Winery Ltd v Stellenvale Winery
(Pty) Ltd
1957 (4) SA 234
(C) at p 235 E-G, to be:
".... where there is a dispute as to the facts a
final interdict should only be granted in notice of motion
proceedings if
the facts as stated by the respondents together with
the admitted facts in the applicant's affidavits justify such an
order....
Where it is clear that facts, though not formally admitted,
cannot be denied, they must be regarded as admitted......”
It seems to me, however, that this formulation of the
general rule, and particularly the second sentence thereof, requires
some
clarification and, perhaps, qualification. It is correct that,
where in proceedings on notice of motion disputes of fact have arisen

on the affidavits, a final order, whether it be an interdict or some
other form of relief, may be granted if those facts averred
in the
applicant's affidavits which have been admitted by the respondent,
together with the facts alleged by the respondent, justify
such an
order. The power of the court to give such final relief on the papers
before it is, however, not confined to such a situation.
In certain
instances, the denial by respondent of a fact alleged by the
applicant may not be such as to raise a real, genuine or
bona fide
dispute of fact (see in this regard Room Hire Co. (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd,
1949 (3) SA 1155
(T), at pp 1163-5; Da
Mata v Otto, NO,
1972 (3) SA 585
(A), at p 882 D - H)”.
[42]
It is therefore well established than when approaching the question
of final relief in
the face of a dispute of fact the court must
determine the matter on the basis of the respondents' version, even
in relation to
matters where the respondents might bear the
evidential burden or onus. As to the matter of substance, it must be
remembered that
what the applicants seek is final interdictory
relief. The requirements therefor are clear and uncontroversial,
namely "a
clear right, injury actually committed or reasonably
apprehended, and the absence of similar protection by any other
ordinary remedy".
[43]
As previously indicated, one of the elements of the right
foundational to the relief sought
by the applicants is that the
information which it is said was imparted in confidence to Ms Steyn,
whilst in the employment of
Clarks Attorneys, remained confidential
and relevant to the subject matter
at the time
Ms Steyn
entered the employ of Mr Gundelfinger (my emphasis). The respondents
contend that it is clear from all the facts set out
in the papers,
that Ms Steyn was the recipient of very little confidential
information and that any such confidential information
which she may
have received – (a) has lost the attribute of confidentiality;
(b) is forgettable; (c) and has no bearing on
what the real issues
are in the divorce proceedings. It is submitted that the applicants
failed to produce any evidence that Ms
Steyn holds any confidential
information relevant to the subject matter and most certainly nothing
by way thereof which she can
call to mind. The respondents further
contend that the applicants should have identified the confidential
information sought to
be protected with sufficient particularity and
specificity, in order to meet the standard required for such
relief.
[44]
As to the identification of confidential information necessary to
found relief such as
that in the case under consideration, the
authors Hollander QC and Salzedo QC in their work “
Conflicts
of Interest
[24]
summarizes the position as follows:
"
The authorities, both
in this jurisdiction and in particular in Australia, have focussed on
the extent it is necessary to define
the confidential information in
question with particularity. In England, the starting point is that
where a party seeks to prevent
the  disclosure of confidential
information, it will usually be incumbent on him to identify
precisely what the confidential
information in question is. This is
often difficult in a conflict of interest case, where the claimant
may have good grounds for
suspicion but
little concrete
evidence or recollection as to what confidential information may have
been provided to the professional. Sometimes
relief will be refused
simply on the ground that the lack of particularity is a fatal
deficiency, other cases are less strict.
An example of the harsh
approach is that adopted by Lightman J. in Mannesmann v Goldman Sachs
(unreported, November 18, 1999).
The claimants sought to identify the
confidential information on which they sought to rely. The judge said
that the information
relied upon could not be categorised as
confidential information, but even if it were, by referring to it in
open court, it had
lost any confidentiality it might once have
possessed and thus could not be relied upon."
[45]
As to the degree of specificity required to imbue material as
constituting confidential information,
Drummond J, in the General
Division of the Federal Court of Australia in
Carindale Country
Club Estate Pty Ltd v Astill and Others
[25]
held that it is a basic requirement, before material will be
recognised as having the character of confidential information, that

the information in question must be identified with precision and not
merely in global terms. The court stated that this requirement
is
insisted upon even though it may necessitate disclosing to the court
the very information the confidentiality of which it is
sought to
preserve by the action. This requirement has its foundation in the
need for the court to be able to frame a clear injunction,
should
relief against misuse of confidential information be granted. The
court held:
“
... But the
requirement goes to a matter more fundamental than that: see
Independent Management Resources Pty Ltd v Brown
[1987] VR 605
at
609: The more general the description of the information which a
plaintiff seeks to protect, the more difficult it is for the
court to
satisfy itself that information so described was imparted or received
or retained by a defendant in circumstances which
give rise to an
obligation of confidence."
[46]
In
Re A Firm of Solicitors
[26]
in regard to the standard of proof required to establish the
confidentiality of information which may have been imparted to a
solicitor, Lightman J said the following:
“
On the issue whether
solicitor is possessed of relevant confidential information: (a) it
is in general not sufficient for the client
to make a general
allegation that the solicitor is in possession of relevant
confidential information if this is in issue: some
particularity as
to the confidential information is required: See Bricheno v Thorp,
Jac 300 and Johnson v Marriott (1833) C&M
183. But the degree of
particularity required must depend upon the facts of the particular
case, and in many cases identification
of the nature of the matter on
which the solicitor was instructed, the length of the period or
original retainer and the date of
the proposed fresh retainer and the
nature of the subject matter for practical purposes will be
sufficient to establish the possession
by the solicitor of relevant
confidential information. (b) It may readily be inferred that
confidential information is imparted
to members of the firm having
the conduct of the client's matter. Such information may, however, be
imparted to other members in
the course of partnership meetings or
social meetings of members of the firm: See In Re A Firm of
Solicitors
[1992] Q.B. 959
, 978c. (c) The court attaches weight to
the evidence of the solicitor as to his state of knowledge and
whether he has received
confidential information, in particular where
there is no challenge to his integrity and credibility: See R v
Mullett (1817) 4
Pr, 353 (solicitor); See In Re A Solicitor (1987)
131 S.J. 1063, per Hoffman J and Pavel v Sony Corporation, 12 April
1995 (barrister)."
[47]
In my view, there are three important principles enunciated in
Re
A Firm of Solicitors
, referred to above.  Firstly, in
general, it is not sufficient to make a general allegation that a
solicitor is in possession
of relevant confidential information if
this is in issue: some particularity as to the confidential
information is required. Secondly,
the degree of particularity
required depends upon the facts of the particular case. In this
regard the identification of the nature
of the matter on which the
solicitor was instructed, the length of the period or original
retainer, the date of the proposed fresh
retainer, and the nature of
the subject matter are important factors to be considered. Thirdly,
the court attaches weight to the
evidence of the solicitor as to his
state of knowledge and whether he has received confidential
information, in particular where
there is no challenge to his
integrity and credibility.
[48]
Lightman J
[27]
also dealt with the question of when confidential information may
legitimately be said to no longer hold that attribute. He held
that
confidential documents and information passing between attorney and
client, like any other confidential information communicated
to
anyone else, subsequently ceases to be confidential. It may become
common knowledge or at least known to an opponent in the
course of a
trial and that some information may be memorable and some eminently
forgettable. The judge also recognized that it
makes common sense
that not all confidential information acquired by a legal
representative will remain in the mind of the legal
representative or
be susceptible of being triggered as a recollection after the lapse
of a period of time. He stated that
:
“
For the purpose of the
law imposing constraints upon solicitors acting against the interests
of former clients, the law is concerned
with the protection of
information which (a) was originally communicated in confidence, (b)
at the date of the later proposed retainer
is still confidential and
may reasonably be considered remembered or capable, on the memory
being triggered, of being recalled
and (c) relevant to the subject
matter of the subsequent proposed retainer. I shall refer to
information that satisfies these three
qualifications as 'relevant
confidential information'."
[49]
In
Halewood International v Addleshaw Booth and Co
[28]
,
Neuberger J said that it is not enough that the information was
confidential at the time the former client communicated it to the

solicitor. If for any reason it subsequently ceases to be
confidential information, it is not to be treated as confidential
information
for the purpose of the requirements.
[50]
With these principles in mind, I will now turn to the specific facts
to establish whether the
applicants have discharged the onus.
[51]
Ms Steyn became a senior associate of Clarks Attorneys in November
2017.
Clark, however, was the
attorney that mainly dealt with Mr L’s matter and Ms Steyn
assisted Clark, more so, after Raath left
in 2017. Mr L terminated
his mandate with Clarks Attorneys on 22 January 2019. Ms Steyn left
Clarks Attorneys in July 2020, approximately
eighteen months after Mr
L terminated his mandate.  Ms Steyn has therefore been
uninvolved in the divorce matter for a lengthy
period of time.
[52]
The degree of particularity required will depend on the facts of a
particular case. It is generally
not sufficient for an applicant to
make a general allegation that the attorney is in possession of
relevant
confidential information if
this is in issue
(emphasis added).  The more general the description of the
information which an applicant seeks to protect, the more difficult

it is for the court to satisfy itself of the relevant confidential
information that should be protected. This requirement must
be
insisted on even though it may necessitate disclosing to the court
the very information sought to be protected. Ms Steyn had
set out, in
quite some detail, the extent of her involvement in the divorce
proceedings. The applicants have not made the slightest
attempt to
identify, with the necessary degree of specificity, the information
which they contend was confidential. In the specific
circumstances of
this case, it is a fatal deficiency.  Moreover, the applicants
have not attempted to demonstrate that the
information imparted to Ms
Steyn remained confidential and, if so, might legitimately be said to
be memorable and not forgettable.
The failure to do so, in the
specific circumstances of this case, is also fatal to their
application, more especially in light
of the knowledge which Mr L
imparted to Mr Gundelfinger; the knowledge which Mr L imparted to Mrs
L; the knowledge said to have
been gathered from the alleged data
theft; the knowledge gained from documents obtained as early as in
2016; the knowledge encapsulated
in the pleadings and documents filed
of record in the divorce action, including Mr L's response in terms
of section 7 of the Act;
the Financial Disclosure Statement
recently attested to by him under oath;  the tender made by him
pursuant to Rule 34 of
the Uniform Rules of Court; his affidavit of
discovery; the affidavits in the two Rule 43 applications; Mr L’s
further and
better discovery after notices were served in terms of
Rule 35(3) and (6); and from the documents received to subpoenas
duces tecum
issued by Mr Gundelfinger.
[53]
This is exacerbated by the following: the remaining issues in the
divorce action are confined
and limited to: the solvency (or lack of
solvency) of Mrs L and its impact on the provisions of the
Antenuptial Contract concluded
between Mr L and Mrs L; the
identification of the composition of each party’s estates for
the purpose of determining the
accrual; and the income and expenses
of each of the parties relevant to the determination of Ms L’s
claim for maintenance,
postulating that Mrs L’s accrual claim
fails.
[54]
The lever arch file of correspondence referred to in Mr L’s
founding affidavit as well
as the WhatsApp messages contained in the
founding affidavit and the recently introduced WhatsApp messages and
emails relied upon
by the applicants in their replying affidavit to
refute Ms Steyn's contentions, do not in fact support Mr
L’s
allegations and take the matter no further. An analysis thereof
reflects that Ms Steyn's involvement in the matter was
of a routine,
intermittent and peripheral nature.
[55]
To be treated as confidential, the information must still be
confidential at the time that injunctive
relief is sought, i.e. it
must not have been communicated to others or otherwise have become
common knowledge; must reasonably
be considered remembered and not
eminently forgettable or capable on the memory being triggered of
being recalled, and must be
relevant to the subject matter of the
subsequent proposed instructions. Recognition must be afforded to the
fact that not all confidential
information acquired by a solicitor
will remain in the mind of the solicitor or be susceptible of being
triggered as a recollection
after the lapse of a period of time. In
none of the examples given by the applicants, is there any indication
which may be gleaned,
on a reasonable basis, why the information
remains confidential and relevant
.
Whatever confidential information Ms Steyn may have obtained
in relation to Mr L whilst in the employ of Clarks Attorneys does not

constitute relevant confidential information in that it had long
since become known through the information as set out above. Any

residual confidential information which may not have become known as
aforesaid is, on any realistic appraisal, forgettable and
has become
forgotten by Ms Steyn.
[56]
The applicants’ application for a final interdict must
therefore fail at the most fundamental
level, for they have not
established that the right foundational to the relief sought by them
was extant at the time Ms Steyn entered
the employ of Mr
Gundelfinger.
[58]
As the applicants had failed to discharge the onus, the evidential
burden to show that there
is no risk to Mr L if Mr Gundelfinger
continues to act for Mrs L, did not shift to the respondents. But, in
case I am wrong on
the first issue, it is appropriate to consider
whether there is a real risk of disclosure or misuse of relevant
confidential information
in the possession of Ms Steyn and whether
effective and reasonable measures are in place to eliminate the risk.
IS
THERE A REAL RISK?
[58]
In
Bolkiah supra
,
[29]
in relation to the degree of risk Lord Millet that it is of the
highest importance to the administration of justice that a solicitor

or other person in possession of confidential and privileged
information should not act in any way that might appear to put that

information at risk of coming into the hands of someone with an
adverse interest and that the court should intervene unless it
is
satisfied that there is no risk of disclosure. The risk must be a
real one, and not merely fanciful or theoretical. But it need
not be
substantial.
[59]
In relation to the adequacy of protective measures designed to
preserve the confidentiality of
information Lord Millet said:
"
There
is no rule of law that Chinese walls or other arrangements of a
similar kind are insufficient to eliminate the risk but the
starting
point must be that, unless special measures are taken, information
moves within a firm. In MacDonald Estate v Martin 1990
77 D.L.R. (4
th
240, 269) Sopinka J. said that the court should restrain the firm
from acting
for
the second client "unless satisfied on the basis of clear and
convincing evidence that all reasonable measures have been
taken to
ensure that no disclosure will occur." With the substitution of
the word "effective" for the words "all
reasonable"
I would respectfully adopt that formulation."
[60]
The applicants contend that information barriers are generally
considered entirely inadequate
in the case of small firms due to
obvious practical limitations. The respondents disagree. In support
of their argument the respondents
rely on three cases emanating from
English law where injunctive relief was in issue in situations where
a single individual moved
from a firm which had represented a
particular client to another firm which sought to represent that
client's adversary in a related
matter. The first is the matter of
Re
A Firm of Solicitors
[30]
wherein the following was stated:
"Adopting that test,
what is the position in this case? The firm have put all the
documents relating to the earlier inquiries
and actions in special
store. There seems to be no risk of leakage of those. The staff and
personnel who are handling the present
litigation are not those who
were concerned in the earlier cases. But in view of the complexity of
the issues in all the cases,
the reasonable man knowing of the
overlap could not be confident that in the course of the present case
some inadvertent revelation
might not take place, caused perhaps by
the awakening of a memory or by someone consciously or unconsciously
availing himself of
information which had in the past been obtained
from A & A and other members of the firm. He might well not
appreciate the
origin of the information, but the risk is there.
There is no analogy to be drawn from the two-man firm in Rakusen's
case to a
large firm of 107 partners and obviously a correspondingly
large staff of executives and other employees. The
reasonable man would
recognise the existence of a risk of use of the earlier information
no matter what steps the firm had taken
to protect it."
[61]
The second case is
Halewood International v Addleshaw Booth &
Co
[31]
,
which involved an application for injunctive relief by an importer of
wine and the proprietor of a trade mark (Halewood International)
who
had been represented by a solicitor, Mr
Andrew R, who was then in
the employ of a firm of solicitors known as Gordon, Wright and
Wrights. Halewood International in that
litigation sought to restrain
a competitor from using a similar name to that used by it in
marketing its products. During the litigation
Mr R entered the employ
of ABC, a substantial firm of solicitors with 93 partners. ABC
commenced acting for a consortium against
Halewood
International
which then sought injunctive relief against ABC on the basis that in
light of the knowledge which Mr R had obtained
while acting for it at
Gordon, Wright and Wrights, it was not right for ABC to be acting
against Halewood on behalf of the consortium.
Despite the
establishment of an information barrier, the Lower Court upheld the
injunctive relief which had been sought. This was
reversed on appeal
on the basis of an undertaking by Mr R not to disclose confidential
information of Halewood International which
he might have gathered
and his total isolation from any involvement in the litigation
between the consortium and Halewood International.
During the course
of his judgment, Neuberger J dealt with the relevant legal principles
which in part are as follows:
“
As I understand Prince
Jefri's case, the court must ensure that there is no additional risk
to the client. It must be satisfied
that barriers are in place which
are effective to prevent ... disclosure of confidential information.
The crucial question is 'will
the barriers work?'. If they do, it
does not matter whether they were created before the problem
arose or are erected
afterwards. It seems to me that all Lord Millett was saying was that
Chinese walls which have become part of
the fabric of the institution
are more likely to work than those artificially put in place to meet
a one-off problem. Nor do I
accept Mr Pollock's suggestion that only
a barrier which prevents direct or indirect contact, both socially
and professionally,
is acceptable." .......
.......(g) Once the former
client shows that the solicitors have relevant confidential
information the evidential burden is on the
solicitors to show that
they fall within the exception is heavy....
...... (h) The requirements
and the exception are connected to the extent that, if the former
client establishes only a relatively
weak case that the requirements
are satisfied, then when considering whether or not the solicitor
falls within the exception, that
is a factor that can be taken into
account.”
[62]
The second case the respondents rely on is the case of
Koch
Shipping Inc v Richards Butler (a firm)
[32]
which involved a situation where a single individual moved firms. Ms
Peaston acted for Koch whilst a partner of Jackson Parton.
She
thereafter moved to the firm of Richard Butler who were acting
against Koch in an arbitration relating to a particular ship.
Koch
sought to interdict Richard Butler from continuing to act in the
arbitration. Undertakings were given by Ms Peaston not to
communicate
at all with any person at Richard Butler working on the arbitration.
Richard Butler and his professionals working on
the arbitration also
furnished undertakings. She was housed on the 10th floor of the
building occupied by Richard Butler and the
professionals working on
the arbitration were on the 11th floor giving rise to a degree of
physical separation. A court of first
instance granted injunctive
relief in favour of Koch but this was overturned by the Court of
Appeal which placed significance on
the fact that only one individual
was involved which materially affected the risk of inadvertent
disclosure. On this score, Tuckey
LJ at para 5.3, said as follows:
"
I think there is a
danger inherent in the intensity of the adversarial process of courts
being persuaded that a risk exists when,
if one stands back a little,
that risk is no more than fanciful or theoretical. I advocate a
robust view with this in mind so as
to ensure that a line is sensibly
drawn."
[63]
The applicants contend that Mr Gundelfinger's practice is a small one
(there are only three qualified
attorneys), thereby heightening the
potentiality of abuse. It is submitted that Mr Gundelfinger himself
has disclosed that he has
not been attending at the office for
several months due to medical treatment that he has been receiving.
That leaves Ms Steyn as
one of only two attorneys that are physically
in the offices. It is contended that the respondents have failed to
set out sufficient
facts to show that there are effective measures in
place for the enforcement of any form of "information
barrier".
[64]
As stated previously, Mr L terminated the mandate of Clarks Attorneys
approximately eighteen
months prior to Ms Steyn entering the employ
of Mr Gundelfinger. There is no real suggestion that Ms Steyn had
since then had any
involvement in the proceedings between Mr L and
Mrs L. On the version of Mr Gundelfinger and Ms Steyn, she has had
none. On leaving
the employ of Clarks Attorneys, Ms Steyn took no
documents relating to the matter between Mr L and Mrs L and she has
had no access
to the e-mail and WhatsApp messages which passed
between her and others in relation to that matter. On leaving Clarks
Attorneys,
Ms Steyn signed a confidentiality agreement. It was
further a basis of the employment contract concluded by Mr
Gundelfinger and
Ms Steyn that Ms Steyn would not be involved in the
litigation between the applicants and Mrs L and certain other
matters. Ms Steyn
states that she has had no involvement in the
divorce proceedings. Mr Gundelfinger and Ms Steyn have also furnished
appropriate
undertakings.
[65]
Mr Gundelfinger's office is comprised of eight people in total and,
other than the receptionist
Mrs Bezuidenhout, each has a separate
office. Mr Gundelfinger states that his members of staff have been
instructed not to provide
Ms Steyn with any documents relating to the
litigation between Mr L and Ms L or to discuss anything with her in
regard thereto.
Mr Gundelfinger conducts what has been described as a
"small practice" and such information of Mr L which might
still
have retained its confidential nature is reposed in a single
person. The documentation relating to the proceedings between Mr L

and Mrs L are separately stored in a boardroom which is kept locked
and to which Ms Steyn has no access, neither physically or

electronically. Mr Gundelfinger states that he conducts his practice
from his home and since Ms Steyn entered his employ he has
only
attended the office on a single occasion for the purpose of a
meeting, which meeting did not involve the participation of
Ms
Steyn.
[66]
The applicants attack the efficacy of the information barrier that
has been put in place with
regard to two particular aspects. Firstly,
Ms Steyn was admitted onto the CaseLines system for this specific
matter on or about
6 July 2020, within a few days of her joining
Billy Gundelfinger Attorneys. The applicants contend that this
demonstrates that
she was involved in the divorce proceedings at
least for the period from 6 July 2020 to 17 August 2020 when she was
removed from
CaseLines, “coincidently” the same day of
the date of expiry of the demand directed to Mr Gundelfinger by
Fluxmans
Attorneys to withdraw as attorneys of record on behalf of
Mrs L.  Secondly, it is submitted that Advocate Woodward SC,
during
the course of the recent case management meeting
[33]
:
(a) understated the standing of Ms Steyn when employed by Clarks
Attorneys, and (b) allegedly overstated the period during which
Ms
Steyn had been employed by Mr Gundelfinger. Thirdly, Mr Gundelfinger
is said to have advised Advocate Woodward SC of the R password
and
the existence of the "Vehicle Service Mileage Registration
Licence Schedule" which information he must have obtained
from
Ms Steyn which he subsequently passed on to Advocate Woodward SC.
Fourthly, the applicants contend that the version given
by Mr
Gundelfinger and Ms Steyn is expressed by Mr Gundelfinger in the
answering affidavit as if he is in the position of Ms Steyn.
It
is submitted that not only is it wholly inappropriate for Ms Steyn to
fail to give her own evidence in her own name directly,
but
furthermore, it is clear that Mr Gundelfinger and Ms Steyn have
discussed each and every allegation, and no doubt all the underlying

facts relating thereto, between them. This is the very “evil”
that the application seeks to prevent.
[67]
The respondents state that the invitation sent to Ms Steyn to join in
on CaseLines in the matter
was done inadvertently and that of the
five invitations which Ms Steyn received on email to CaseLines, she
responded to only one
and then only because of a “slip of the
finger”. The respondents further contend that it cannot be
suggested that Advocate
Woodward SC deliberately engaged in a
subterfuge in order to promote the interests of the respondents and
the allegation made about
the password has been shown to be false. As
far as the answering affidavit is concerned it is submitted that, as
direct parties,
Mr Gundelfinger and Ms Steyn both have an interest in
the proceedings.  Ms Steyn disclosed to counsel verbally and in
writing
her involvement in the divorce proceedings when employed by
Clarks Attorneys. That involvement was incorporated into one
answering
affidavit, deposed to by Mr Gundelfinger, setting out the
extent of her involvement on behalf of the applicants which was
necessary
since the nature of that involvement lies at the very heart
of the matter. There is nothing which Ms Steyn told counsel and which

is incorporated into Mr Gundelfinger’s answering affidavit
which by any stretch of the imagination can be classified as relevant

confidential information.
[68]
As stated in
Halewood International supra
, despite all that is
set out in the papers, the crucial question is, will the barriers
that Billy Gundelfinger Attorneys have put
in place work? This issue
must again be approached on the basis of the rule in
Plascon-Evans.
There is no reason to doubt Ms Steyn's and Mr Gundelfinger’s
version that: a) since joining Billy Gundelfinger Attorneys
Ms Steyn
has had no involvement in the proceedings between Mr L and Mrs L and
b) that reasonable information barriers have been
put in place to
avoid any risk. Given this, the applicants can only assail the
efficacy of the information barrier established
by Mr Gundelfinger by
contending that Mr Gundelfinger and Ms Steyn have perjured
themselves. Any suggestion to that effect is otiose
and
unsustainable.
[69]
In my view, the smaller the firm, the less likelihood of the
disclosure eventuating.  I
am satisfied that the respondents
have discharged the evidential burden in demonstrating the
establishment of an effective and
reasonable information barrier
designed to ensure that such confidential information of Mr L which
Ms Steyn may possess is not
disclosed or misused, whether by design
or inadvertence.
INHERENT
JURISDICTION
[70]
The respondents invite the court to exercise what is referred to in
Australia as the court’s
inherent jurisdiction to “
control
the conduct of its own officers so as to ensure the due
administration of justice and the integrity of the judicial process
.”
In
Geelong School Supplies (Pty) Ltd v Dean
[34]
,
the court restrained a solicitor from acting in a matter based on the
inherent jurisdiction approach. Young J held that the leading
English
case of
Bolkiah supra
did not exclude such approach and he
followed the test of Brereton J in
Kallinicos and Another v Hunt &
Others
.
35
Brereton J in
Kallinicos
explained
the approach in the following manner:
[35]
•
‘‘
[T]he court
always has inherent jurisdiction to restrain solicitors from acting
in a particular case, as an incident of its inherent
jurisdiction
over its officers and to control its process in aid of the
administration of justice…
•
The test to be applied in
this inherent jurisdiction is whether a fair-minded, reasonably
informed member of the public would conclude
that the proper
administration of justice requires that a legal practitioner should
be prevented from acting, in the interests
of the protection of the
integrity of the judicial process and the due administration of
justice, including the appearance of justice…
•
The
jurisdiction is to be regarded as exceptional and is to be exercised
with caution…
•
Due
weight should be given to the public interest in a litigant not being
deprived of the lawyer of his or her choice without due
cause…
•
The timing of the application
may be relevant, in that the cost, inconvenience or impracticality of
requiring lawyers to cease to
act may provide a reason for refusing
to grant relief….
•
The
inherent jurisdiction of the court is discretionary.”
[71]
In
Wishart supra,
Gorven J,  in deciding whether to
develop the common law to include the inherent jurisdiction approach,
referred to the matter
of S
pincode (Pty) Ltd v. Look Software
(Pty) Ltd and Others,
[36]
where Brooking JA discussed the basis of the approach. He was
quoted as follows:
"
Since the earliest days
of attempts to prevent solicitors from acting against their former
clients it has been recognised as a basis
— I use the
indefinite article advisedly
—
of the jurisdiction
is that which the Court has over solicitors as its officers. Sir
Samuel Romilly, for Lord Clinton, said that
there were two heads of
jurisdiction: irreparable injury which supports an injunction and in
addition the general jurisdiction
over an officer of the Court."
‘
There is a good deal
of authority for the view that a solicitor, as an officer of the
court, may be prevented from acting against
a former client even
though a likelihood of danger
of misuse of confidential
information is not shown.”
[72]
Gorven J found that the applicants had not established sufficient
facts to apply the inherent
jurisdiction approach. He stated that the
only basis of which he was aware on which the Australian courts have
invoked this jurisdiction
relates to the possibility of confidential
information being misused where no fiduciary duty concerning that
information exists;
or if it is known that confidential information
was disclosed but the applicant is unable to establish what that
information might
be.
[37]
Gorven J concluded that, even if the inherent jurisdiction approach
formed part of our law, the applicants did not make out a case
for
its application in that matter. He did not, however, exclude the
possibility that this may be appropriate in different circumstances
.
[73]
On appeal in the matter of
Wishart and Others v Blieden N.O. and
Others
[38]
,
the Supreme Court of Appeal, summarized the issue on appeal as
follows:
“
[33] Recognizing that
the lawyers had no such confidential information, as the high court
found, the appellants argued nonetheless
that this court should
develop the common law so as to ensure that as a matter of public
policy, and in the interests of the administration
of justice, it is
improper for a legal practitioner to act against a person who had an
interest in an entity for whom the practitioner
had previously acted.
They contended that this court should follow the development of the
law in other jurisdictions which have
recognized the principle that a
lawyer should not act against a person who has had a close
connection, or close convergence of
interests, with a former client
of the lawyer.”
[74]
In deciding this issue, Lewis JA, recognized that
Bolkiah
was
silent on the question of the court’s inherent jurisdiction in
so far as the administration of justice is concerned,
but that it
could not have been the intention of the court to abolish it;
considered and quoted, with approval, the principle in
Kallinicos
;
recognised that the inherent jurisdiction should be exercised with
circumspection, and recognised that countervailing considerations

relating to a client’s right to choose his or her legal
practitioner and the latter’s right to choose a client, are

important factors to be taken into account. The court quoted
extensively from the leading English work on conflicts of interest,
Conflicts of Interest,
[39]
wherein it was pointed out that the inherent jurisdiction to restrain
lawyers from acting in the interest of the administration
of justice
in England has been limited to cases ‘
where the lawyer has
had a longstanding
professional
relationship with one party but then seeks to act on the other side,
where the lawyer will or may be a material witness,
or where he is
acting against one of two former joint clients on a matter related to
the joint retainer”.
The court specifically referred to the
Chancery Division of the Queen’s Bench in England in
Halewood
International supra
[40]
in which the principle was endorsed by Neuberger J, after referring
to a client’s right to impart information confident that
it
shall remain confidential, and not used against him subsequently, in
which it was said:
‘
It is wrong not to
overlook the countervailing factors, however. There are the rights of
the professional adviser to act subsequently
for whatever party
chooses to instruct him, and the right of third parties to instruct
whatever professional advisers they choose.
These countervailing
rights also have a public interest dimension, as does the right of
the former client.’
[75]
Lewis JA concluded that, on the specific facts of that case, even if
they were to find that our
law has such an inherent jurisdiction, “
we
are still dealing with parties who were not themselves clients of the
lawyers. And so the appellants’ cause of action is
yet one more
step removed.”
[41]
[76]
The applicants contend that the facts
in casu
justifies the
recognition of the inherent jurisdiction approach in South Africa,
and justifies an injunction against Billy Gundelfinger
Attorneys from
further representing Mrs L in the divorce proceedings against Mr L.
The respondents argue, with reference to
Bolkiah
, and
Halewood
International,
that it is doubtful whether the English Courts
will, by virtue of their inherent jurisdiction in relation to the
administration
of justice, restrain a solicitor from acting in a
matter at the instance of a former client in circumstances where the
abuse or
potential abuse of that client's confidential information
does not arise. It is further submitted that our Courts, with
reference
to
Wishart
[42]
,
have not seen the need to exercise its inherent jurisdiction on that
basis. The respondents contend that should such inherent
jurisdiction
however exist, there are a multitude of countervailing factors which
militate against the grant of the relief sought.
[77]
The facts of this matter are distinguishable to the facts that
confronted the Supreme Court of
Appeal in
Wishart
. In that
matter the court was considering the extension of the conflict of
interest principle to "quasi-clients", namely
— the
directors of the companies and not to restrict the prohibition only
to the companies themselves, who had been the actual
clients. On the
facts of the present matter, there is no requirement to "extend"
the application of the principle: the
applicants (particularly Mr L)
were the direct clients of Clarks Attorneys (Ms Steyn).  Mrs L
is the direct client of Gundelfinger
Attorneys who now employs Ms
Steyn. Our courts have always had inherent jurisdiction over the
officers of Court. In the normal
exercise of this discretion, this
court, as a matter of routine, admits legal practitioners to practice
and similarly, removes
such legal practitioners. As a matter of
public policy and in the interest of the administration of justice, I
have no doubt, that
the facts in the present matter justifies the
recognition of the inherent jurisdiction approach in our law.
[78]
Applying the test as proposed in
Kallinicos
the question is
would a reasonably minded person in possession of all the relevant
facts consider the judicial process and due
administration of justice
to be threatened if Mr Gundelfinger continue to act for Mrs L in the
divorce proceedings? For this to
be the case, the applicants must
show that, if Mr Gundelfinger continues to do so, this will prejudice
the applicants.
[43]
[79]
The applicants contend that the employment of Ms Steyn by Mr
Gundelfinger was always avoidable.
It is the voluntary and deliberate
act of the respondents that has led, gratuitously to the situation in
which Mrs L now finds
herself.  It is contended that it is
completely illogical to suggest that the applicants should be the
ones bearing the prejudice
that may arise from an entirely extraneous
act of Mr Gundelfinger and Ms Steyn in concluding an employment
relationship, over which
the applicants had no say at all. The effect
of the contentions in relation to so-called “counterveiling
considerations”
is to lay at applicants’ door, the
"prejudice" that Mrs L’s own attorney has caused her
and of which Mr Gundelfinger
now complains. Public policy could never
entertain such a result.  Mrs L is perfectly at liberty to and
able to obtain alternative
legal representation.
The
freedom to act and the retention of confidence
[80]
In the matter of
In Re A Firm of Solicitors supra
[44]
,
Lightman J dealt with the interrelationship between the freedom of a
solicitor to act for a client and the need to retain the confidence

of a client at as follows:
“
The law regulating the
freedom of a solicitor who, or whose firm, has at one time acted for
a client subsequently to act against
that client reflects the need to
balance two public interests. First there is the interest in the
entitlement of that client to
the fullest confidence in the solicitor
whom he instructs and for this purpose that there shall be no risk or
perception of a risk
that confidential information relating to the
client or his affairs acquired by the solicitor will be disclosed to
anyone else."
[81]
On this score, a legal representative should not too readily be
disqualified from acting for
a new client who wants his services for
it is in the public interest that the services of legal
representatives should be freely
available.
[45]
[82]
The following countervailing considerations are of application in the
case: Mr Gundelfinger has
the freedom to act on behalf of clients of
his choice, which freedom he exercised prior to Mr L engaging the
services of Clarks
Attorneys. Mrs L has the freedom to appoint legal
representation of her choice, which freedom she similarly exercised
prior to
Mr L engaging the services of Clarks Attorneys. Mr
Gundelfinger has acted for Mrs L for at least six years and is still
acting
for her, devoting many hundreds of hours to her cause. The
applicants do not only seek an order interdicting Billy Gundelfinger

Attorneys from representing Mrs L, but also from, briefing, advising,
sharing information, knowledge or documents with any attorney

appointed by Mrs L in the divorce proceedings. Should the
interdictory relief be granted, the time devoted by Mr Gundelfinger
to Mrs L's cause will be lost. Mrs L states that her financial
position is such that she will effectively be deprived of
representation.
[83]
Ms Steyn's involvement with Mr L was limited and peripheral. I have
already found that whatever
confidential information may have been
imparted by Mr L to Ms Steyn, such has either been disclosed or
forgotten. Ms Steyn has
had no involvement in the pending divorce
action for at least eighteen months and an effective information
barrier has been established
to obviate any inadvertent disclosure of
confidential information.
[84]
The prejudice that Mrs L would suffer if Mr Gundelfinger is
interdicted from further representing
her in the divorce proceedings,
compared to any possible prejudice the applicants might suffer is not
comparable. The inherent
jurisdiction of the court to grant such
relief is discretionary and should be exercised only in exceptional
circumstances and with
caution. I am satisfied that a reasonably
minded person in possession of all the relevant facts would not
consider the judicial
process and due administration of justice to be
threatened if Mr Gundelfinger continue to act for Mrs L in the
divorce proceedings.
In the circumstances, it is not in the
public interest to disqualify Mr Gundelfinger from continuing his
services to Mrs L.
THE
CODE OF CONDUCT PRESCRIBED UNDER THE LEGAL PRACTICE CODE
[85]
The applicants contend that the Code of Conduct that is prescribed
under the Legal Practice Act
No 28 of 2014 sets out a standard of
ethical conduct to be observed by legal practitioners:
"3. Legal practitioners, candidate legal practitioners and
juristic entities shall—
3.1
maintain the highest standards of honesty
and integrity;
3.2
uphold the Constitution of the Republic
and the principles and values enshrined in the Constitution, and
without limiting the generality
of these principles and values, shall
not, in the course of his or her or its practice or business
activities, discriminate against
any person on any grounds prohibited
in the Constitution;
3.5      refrain from doing anything in a
manner prohibited by law or by the code of conduct which places
or
could place them in a position in which a client's interests conflict
with their own or those of other clients;
3.6      maintain legal professional
privilege and confidentiality regarding the affairs of present or
former clients or employers, according to law...”
[86]
The applicants submit that the wording of clause 3.5 regulates not
only actual conflict but extends
the scope to circumstances where
there "could" be a conflict of interest situation.
Interwoven into the application of
the test prescribed by the Code of
Conduct is the requirement to maintain
"integrity"
and the express obligation to "
maintain legal professional
privilege and confidentiality regarding the affairs of present or
former clients or employers, according
to law."
It is
contended that this standard is quite obviously and patently lacking
from the conduct of Mr Gundelfinger and Ms Steyn in relation
to the
undoubted conflict of interests between the applicants and Mrs L who
are adversaries in the same suit.
[87]
In
Supasave Retail Ltd v Coward Chance (a firm) and Others; David
Leigh & Co (Lincoln) Ltd v Coward Chance, (a firm) and Others
[46]
Sir Nicholas Browne-Wilkinson V-C dealt with the weight and cogency
which fell to be attached to rulings of the Law Society:
"
The Law Society's
relevant committee having refused to express a view itself pending
this hearing, I think I should make it clear
that I am not at this
hearing concerned with questions of the rules of the Law Society or
the etiquette of the profession. As I
understand it, that is a matter
for the profession itself to regulate. To the extent that the rules
of etiquette are inconsistent
with and do not comply with the general
law, then they would obviously be improper. But it is a common
feature of professional
rules that they impose a higher duty on the
members of the profession than does the law itself. It seems to me in
this case that
I am concerned with legal obligations, not the
obligations imposed by professional rules of conduct laid down by the
Law Society.
Nothing that I say in this case should be taken by
expressing any view of them beyond saying that, as a purely personal
opinion,
I find the rules that have been laid down sensible and good.
That is not a finding of law; merely an expression of opinion. My job

is simply to say whether, in law, in the circumstances that have
happened, Dibb Lupton Broomhead & Prior can with propriety,
in
the absence of the consent of the Marks defendants and possibly
Coward Chance and Mr Airey, continue to act for the
liquidators."
[88]
The applicants' reliance on paragraph 3.5 of the Code is, misplaced.
The Code does not create
a substantive rule of law. There is no merit
in this argument.
CONCLUSION
[89]
The applicants have not made out a case for the relief sought, and it
consequently falls to be
dismissed.
[90]
In the result the following order is made:
90.1    The application is dismissed with costs, which
include the costs of two   senior counsel.
L. WINDELL
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines.  The date for
hand-down is deemed to be 21 December 2020.
APPEARANCES
Attorneys for the
applicants:
Fluxmans Attorneys
Counsel
for the applicants:
Attorney K.J. van Huyssteen
Attorneys for the respondents:
Tshabalala Attorneys, Notaries and Conveyancers
Counsel for the
respondents:
Advocate G. Farber SC
Advocate J. Woodward SC
Date
of hearing:

9 October 2020
Date of
judgment:

21 December 2020
[1]
The second and third applicants are Mr L and Ms B (Mr L’s
mother), cited in their capacities as trustees of the P Trust,
an
inter vivos
Trust. Both the second and third applicants are
cited as defendants in the pending divorce proceedings under case
number 9827/18.
[2]
The first respondent is a professor of the
College of Law at the University of South Africa since 1 October
2011 and practices
with that title.
[3]
Setlogelo v Setlogelo
1914
AD 221
at 227.
[4]
Wishart and Others v Blieden N.O. and Others
2013
(6) SA 59
(
KZP
)
ad para [37].
[5]
See
Prince Jefri Bolkiah v KPMG (a firm)
[1998] UKHL 52
;
[1999] 1 All ER 517
,
referring to the decision in the Court of Appeal in
Rakusen v
Ellis, Munday and Clarke
[1912]
1 Ch. 831
,
where Lord Millet stated: "
Where the Court's intervention is
sought by a former client, however, the position is entirely
different. The Court's jurisdiction
cannot be based on any conflict
of interest, real or perceived, for there is none. The fiduciary
relationship which subsists
between the solicitor and client comes
to an end with termination of the retainer. Thereafter the solicitor
has no obligation
to defend and advance the interests of his former
client.”
See also the decision in
Netcare Hospitals
(Pty) Ltd v KPMG Services (Pty) Ltd
[2014]
4 ALL SA
241
(GJ) at para [76].
[6]
R v Van Hulsteyn, Feltham and Ford
1925
AD 12
at para [21] to [22].
[7]
Wishart
supra
at para [50]. See also
Netcare
Hospitals
supra
at para [82].
[8]
Wishart supra
at para [39] (cited with approval in
Netcare
supra
at para [89]).
[9]
Wishart
supra
at para [26] with reference to
Bolkiah
at 237 F- G.
[10]
C. Hollander QC and S. Salzedo QC,
Conflicts of Interest
, 5
th
Edition (2011)  page 128.
[11]
Moyane v Ramaphosa
(82287/2018) [2019] ZAGPPHC 573 (11
December 2019).
[12]
Wishart supra
ad para [39].
[13]
2013 (6) SA 59
(KZP).
[14]
[2014] 4 ALL SA 334
(SCA);
2020 (3) SA 99
(SCA) (19 September 2014);
2020 (3) SA 99 (SCA).
[15]
Prince Jefri Bolkiah v KPMG (a firm)
[1998] UKHL 52
;
[1999] 1 All ER 517.
Quoted with approval in
Wishart and Netcare
supra and in the
Supreme Court of Appeal in
Wishart and Others v Blieden N.O. and
Others
2020 (3) SA 99 (SCA).
[16]
An
ex parte
order granted on 17 November 2016 by Makume J
interdicting Mr L from,
inter alia
, transferring any assets
owned by him or his nominees or in the name of Trusts, pending the
outcome of Part B of the same application.
[17]
Naidoo v Marine & Trade Insurance Co Ltd
1978 (3) SA 666
(A) at 674A-B;
KLD Residential CC v
Empire Earth
Investments
17 (Pty) Ltd
2017 (6) SA 55
(SCA) at paras
[19]-[29].
[18]
Re A Firm of Solicitors [1995] 3 All ER 482.
[19]
Re A Firm of Solicitors
[1997] Ch.1
Fruehauf Finance
Corporation Pty Ltd v Feez Ruthning
(a firm)
[1991] 1 Qd
R 558
at 566.
[20]
Naidoo
v Marine & Trade Insurance Co Ltd
1978 (3) SA 667
(AD) at
667 A-D; and 681 B-D;
Absa Bank Ltd v Chopdat
2000 (2) SA
1088
(W) at 1094 at F;
Lynn & Main Inc v Naidoo and Another
2006 (1) SA 59
(N) at para [30];
Absa Bank v Hammerle Group
2015 (5) SA 215
(SCA).
[21]
Ms Steyn signed the following court documents: (a) the first and
second applicants' notice of intention to defend dated 26 March

2016; (b) the third applicant's notice of intention to defend dated
17 April 2018; (c) Mr L's notice in terms of section 7 of
the
Matrimonial Property Act, 88 of 1984 ("the Act") dated 18
May 2018; (d) the applicants' notice of bar dated 8 June
2018; (e)
Mr L's notice in terms of Rule 35(1), (6), (8) and (10) dated 20
July 2018; (f) the notice of withdrawal dated 23 January
2019.
[22]
The “data theft incident” is the subject of a pending
legal proceedings instituted by Mr L against
inter alia
Billy
Gundelfinger and Mrs L.
[23]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634D-635C.
[24]
C. H.ollander QC and S. Salezedo QC,
Conflicts of Interest
,
4
th
Edition (2011) at page 156 to page 158.
[25]
(1993) 115 ARL 112.
[26]
[1997] Ch.1 at 10 E-H.
[27]
Re A firm of Solicitors
[1997] Ch. 1
at
9G-10B.
[28]
[2000] P.N.L.R  788 (199) at page 5.
[29]
at 236H-237B.
[30]
[1992] 1 All ER 353
at 369E-G.
[31]
[2000] P.N.L.R 788 (1999) at pp 4-5.
[32]
[2002] Lloyd's P.N. 603.
[33]
Judicial case management meeting held via MS Teams on 25 August 2020
between Windell J and the legal representatives acting on
behalf of
the parties.
[34]
[2006] FCA 1404.
35
[2005] NSWSC 1181
[35]
Kallinicos
at para [76].
[36]
[2001]
4 VR 501.
[37]
Cleveland Investment Global Ltd v Peter Evans
[2010]
NSWSC 567
.
[38]
2020 (3) SA 99
(SCA) at para [33].
[39]
Supra
footnote.
[40]
[2000] P.N.L.R. 788
at 791.
[41]
2020 (3) SA 99
at para [40].
[42]
Wishart and Others v Blieden N.O. and Others
2013 (6) SA 59
(KZP) at para [57] and
Wishart and Others v Blieden N.O. and
Others
2020 (3) SA 99
(SCA) at paras [37] and [40].
[43]
Wishart
supra
at para [55].
[44]
[1997] Ch. 19B-C.
[45]
See
Fruehauf Finance Corporation Pty Ltd v Feez Ruthning (a firm)
[1991] 1 Qd R 558
at 566;
MacDonald Estate v Martin
(1990) 77
DLR (4th) 249 at 270 and
Carindale Country Club Estate Pty Ltd v
Astill and Others
115 ARL 112 at 119.
[46]
[1991] 1 All ER 668
at 672F.