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[2023] ZAFSHC 425
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Dzingirai and Others v S - Appeal (A81/2023) [2023] ZAFSHC 425; 2024 (1) SACR 327 (FB) (2 November 2023)
FLYNOTES:
PROFESSION – Legal practitioner –
Duty
to client
–
Legal
representative in criminal appeal informed court that she could
not advance any meaningful argument on behalf of her
clients –
Balance between practitioner’s duty as officer of court
versus duty to client – Legal representatives
owe overriding
and paramount duty to administration of justice – No duty on
legal representative to concede merits
of client’s case or
to concede that no meaningful argument can be advanced on behalf
of client – Provided that
court is not deceived or misled
with regards to facts and law – No basis to upset factual
findings of court a quo –
Appeal dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no:
A81/2023
In
the Appeal of
:
MUSLIN
DZINGIRAI
1
st
Appellant
VALENTINE
MALUNGA
2
nd
Appellant
LAZARUS
GREGORY MAHLANGU
3
rd
Appellant
and
THE
STATE
Respondent
CORAM:
M OPPERMAN J
et
PJJ ZIETSMAN AJ
HEARD
ON:
23 OCTOBER 2023
DELIVERED
ON:
2 NOVEMBER 2023
JUDGMENT
BY:
PJJ ZIETSMAN AJ
Introduction
[1]
On 30 August 2018, and at the R57 road
between Sasolburg and
Heilbron, the appellants robbed a Mercedes Benz truck, the property
of one Suleman and driven at the time
by Mr Molefi. In so robbing
Suleman’s vehicle, Molefi was assaulted, kidnapped and driven
to Thokoza.
[2]
The third appellant, armed with a handgun,
was the aggressor and
threatened to kill Molefi. Was it not for the intervention of the
driver of the getaway vehicle, Mr Jabulani
Justice Khumalo, who
succeeded in convincing the third appellant not to kill Molefi, that
day might have had a very different outcome.
[3]
The appellants were found guilty of
robbery with aggravating
circumstances while acting in and in furtherance of a common purpose.
The first and second appellants
were also found guilty of
contravening the provisions of
section 49(1)(a)
of the
Immigration
Act, 13 of 2002
.
Grounds
of Appeal
[4]
The appeal only lies against the conviction.
[5]
Although various grounds of appeal
were raised, ultimately the appeal
was against the Regional Court Magistrate’s factual finding in
favour of the State’s
witnesses, and more particular the court
a quo’s
finding that the appellants were correctly
identified as the perpetrators of the robbery.
Discussion
[6]
The appellants’ heads of argument
was prepared by Mr Mokoena of
Legal Aid South Africa, Bloemfontein Offices, but the appeal was
argued before us by Miss Abrahams
from the same office.
[7]
The appellants’ heads of argument
was riddled with what appears
to be the appellants’ instructions to their legal
representative. During argument before us
the same approach was
adopted, namely the court was informed of the appellants’
instructions.
[8]
When the legal representative of the
appellants was asked to advance
her submissions, the court was informed that, as an officer of the
court she cannot advance any
meaningful argument on behalf of the
appellants.
[9]
It is maybe apposite, before I deal
with the merits, or demerits, of
the appeal to attempt to define the delicate balance between a legal
practitioner’s duty
as an officer of the court versus the duty
to his client.
[10]
The principles which follows hereunder are applicable to the
independent referral advocate but I deem it equally applicable to all
legal practitioners who practice in the Courts of this country.
[11]
A good starting point is the Cab Rank Rule. All referral advocates
have a professional duty or professional tradition to take all work
offered to them provided they are available and competent to
do it,
and will receive a proper remuneration for it.
[12]
The principles which
flows from the Cab Rank Rule is equally applicable to legal
practitioners from Legal Aid because those practitioners,
like the
referral advocate, do not have the luxury to refuse an
instruction,
[1]
however
reprehensible the actions of the client might appear to be.
[13]
Thus, the Cab Rank Rule
promotes access to justice by ensuring that legal representation is
available to all who need it, including
odious clients and unpopular
causes
[2]
and it ensures that no
advocate can be criticise for presenting a client whom the public
considers to be particularly reprehensible.
[14]
In
Hall
v Simons
[3]
Lord Hobhouse stated that ‘
the
duty to act for any client’
is
‘
a
fundamental and essential part of a liberal legal system’
since even the most
unpopular are entitled to legal representation. He described the Cab
Rank Rule as:
‘
vital to the
independence of the advocate since it negates the identification of
advocate with the cause of his client and therefore
assists to
provide him with protection against governmental or popular
victimization.’
[15]
It is the existence of this rule that allows advocates to
act for and
against the government or any other major consumer of advocacy
services, in different cases, without fear of harassment
or loss of
future instructions. The application of the rule has often been seen
as the strength of the independent referral Bar.
[16]
An advocate’s duty
to his client was eloquently described by Lord Reid in
Rondel
v Worsley
[4]
thus:
‘
Every counsel has
a duty to his client fearlessly to raise every issue, advance every
argument and ask every question, however distasteful,
which he thinks
will help his client’s case. But, as an officer of the court
concerned in the administration of justice,
he has an overriding duty
to court, to the standards of his profession and to the public.’
[17]
The concept of ‘Justice’, or more precisely, acting
in
the interest of justice, has the potential to encapsulate almost all
values required of an advocate namely, independence, trust
and
personal integrity, confidentiality, competence or excellence and
civility.
[18]
However, it is important
to identify the principle of ‘Justice’ as a free standing
principle. The observations of Lord
Hobhouse of Woodborough in
Medcalf
v Mardell
[5]
on the role of the
advocate in securing a fair and just system is apposite:
‘
The judicial
system exists to administer justice and it is integral to such a
system that it provide within a society a means by
which rights,
obligations and liabilities can be recognise and given effect to in
accordance with the law and disputes be justly
(and efficiently)
resolved. The role of independent professional advocate is central to
achieving this outcome, particularly where
the judicial system uses
adversarial procedures.’
[19]
The advocate’s
right to represent clients in court is a corollary of the advocate’s
duty to serve the administration
of justice. One aspect of this duty
is the Cab Rank Rule, discussed above, and another is the
responsibility to ensure effective
representation of those who cannot
afford legal services. Another similarly important aspect of the
modern advocate’s justice-related
responsibilities is the duty
to give the court ‘
a
fair representation of facts and adequate instruction in the law
’
.
[6]
[20]
Advocates thus owe an
overriding and paramount duty to the administration of justice. It is
the existence of this duty that led
Lord Hofmann to conclude that:
[7]
‘
Lawyers conducting
litigation hold a divided loyalty. They have a duty to their clients,
but they may not win by whatever means.
They also owe a duty to the
court and the administration of justice.’
[21]
However, an advocate’s
duty to fearlessly represent his client, whether in light of general
public hostility or in light of
hostility from the Bench, is just as
important to the administration of justice as integrity. In
R
v Farooqi
[8]
it was explained that:
‘
Neither the judge
nor the administration of justice is advantaged if the advocates are
pusillanimous. Provisional integrity, if
nothing else, sometimes
requires submissions to be made to the judge that he is mistaken, or
even, as sometimes occurs, that he
is departing from contemporary
standards of fairness. When difficult submissions of this kind have
to be made, the advocate is
simultaneously performing his
responsibilities to his client and to the administration of justice.’
And as was stated by
Judge Parry in
The
Seven Lamps of Advocacy
[9]
‘
Advocacy
is a form of combat where courage in danger is half the battle.
Courage is as good a weapon in the forum as in the camp.
The
advocate, like Caesar, must stand upon his mound facing the enemy,
worthy to be feared, and fearing no man. Unless a man has
the spirit
to encounter difficulties with firmness and pluck, he had best leave
advocacy alone.’
[22]
Nugent
JA, (with whom Harms ADP, Streicher JA, Lewis JA and Musi AJA
concurred) writing for the SCA in
Van
der Berg v The General Council of the Bar of South Africa,
[10]
explained
the interplay between an advocate’s duty to his/her client and
the advocate’s duty as an officer of the court,
as follows:
‘
[14]
Advocacy fulfils a necessary role in the proper administration of
justice. (What is said in this judgment applies equally to
attorneys
to the extent that they play an equivalent role but for convenience I
have referred to advocates). It is through the
availability of the
knowledge and skills of an advocate that a litigant is able to
realise the right of every person to have a
dispute resolved by a
court of law. Its function in the administration of justice at the
same time defines the duties of those
who practise it. The right of
every person to have a dispute resolved by a court of law would be
seriously compromised if an advocate
were to be required to believe
the evidence of his client before being permitted to present it. That
would mean that the rights
of the litigant would be determined by the
advocate rather than by the court. As David Pannick QC observes (in
his book entitled
'Advocates') an advocate is required
'to
keep his personal opinions of the merits of the case (legal or
otherwise) to himself and not make them the subject of his
submissions.
The advocate's duty to his client authorizes and obliges
the advocate to say all that the client would say for himself (were
he
able to do so) … He has no right to "set himself up as
a judge of his client's case" and should not "forsake
[his]
client on any mere suspicion of [his] own or any view [he] might take
as to the client's chances of ultimate success".
As Baron
Bramwell explained in 1871, a "man's rights are to be determined
by the Court, not by his [solicitor] or counsel
... A client is
entitled to say to his counsel, I want your advocacy, not your
judgment; I prefer that of the Court.’”
The
Master of the Rolls made the same point when describing the duty
of an advocate towards his client in
Rondel v Worsley
:
'[A
barrister] has a monopoly of audience in the higher courts. No one
save he can address the judge, unless it be a litigant in
person.
This carries with it a corresponding responsibility. A barrister
cannot pick or choose his clients. He is bound to accept
a brief for
any man who comes before the courts. No matter how great a rascal the
man may be. No matter how given to complaining.
No matter how
undeserving or unpopular his cause. The barrister must defend him to
the end.'
[15]
… Merely to suspect, or even to firmly believe, that evidence
is false does not preclude an advocate from permitting
his client to
place the evidence before a court. On the contrary, it would be
improper for an advocate to refuse to do so on those
grounds alone. …
An
advocate is not called upon to believe, to any degree, the evidence
that he is instructed to place before a court. Even if he
believes
positively that his client's evidence is false, he is entitled, and
indeed obliged, to place it before a court if those
are his client's
instructions, and there can be no qualification in that regard. (No
doubt it would be prudent for an advocate
to advise his client that a
court is likely to share his belief but that is something else.)
[16]
But it is a different matter altogether if an advocate knows (as a
fact and not merely as a matter of belief) that evidence
is false or
misleading. For the role of advocacy in furthering the proper
administration of justice also gives rise to duties that
are owed to
the court, primarily a duty upon an advocate not to deceive
or mislead a court himself. After observing in
Rondel v
Worsley
that the advocate must do 'all he honourably can on
behalf of his client' the Master of the Rolls went on as follows:
'I
say "all he
honourably
can" because his
duty is not only to his client. He has a duty to the court which is
paramount. It is a mistake to suppose
that he is the mouthpiece of
his client to say what he wants: or his tool to do what he directs.
He is none of these things. He
owes allegiance to a higher cause. It
is the cause of truth and justice. He must not consciously mis-state
the facts. He must not
knowingly conceal the truth. He must not
unjustly make a charge of fraud, that is, without evidence to support
it. He must produce
all the relevant authorities, even those that are
against him. He must see that his client discloses, if ordered, the
relevant
documents, even those that are fatal to his case. He must
disregard the most specific instructions of his client, if they
conflict
with his duty to the court.'
In
Incorporated
Law Society v Bevan
the Chief Justice expressed it as
follows:
'Now
practitioners, in the conduct of court cases, play a very important
part in the administration of justice. Without importing
any
knowledge or opinion of their own - which it is entirely wrong that
they should ever do - they present the case of their client
by urging
everything, both in fact and in law, which can honourably and
properly be said on his behalf. And this method of examining
and
discussing disputed causes seems to me a very effective way of
arriving at the truth - as effective a way, probably, as any
fallible
human tribunal is ever likely to devise. But it implies this, that
the practitioner shall say or do nothing, shall conceal
nothing or
state nothing, with the object of deceiving the Court; shall quote no
statute which he knows has been repealed, and
shall put forward no
fact which he knows to be untrue, shall refer to no case which he
knows has been overruled. If he were allowed
to do any of these
things the whole system would be discredited. Therefore any
practitioner who deliberately places before the
Court, or relies
upon, a contention or a statement which he knows to be false, is in
my opinion not fit to remain a member of the
profession.
[17]
An advocate breaches his duty to the court not only by permitting
evidence to be given knowing it to be false but also by failing
to
speak when he knows that the court is being misled. An example
is
Meek v Fleming
, in which counsel knew that the
jury was under the impression that a police witness was a Chief
Inspector and failed to disclose
that the officer had been demoted to
the rank of sergeant on account of misconduct.
[18]
Advocates who confine themselves to acting upon instructions will
usually avoid ethical conflicts of that kind. But advocates
who
depart from that salutary practice, and set about discovering the
truth for themselves (which they have no duty to do) invite
such
conflicts. For by doing so they run the risk of becoming material
witnesses themselves and thereby compromising their ability
to
perform their proper function. That is what occurred in the present
case.’
(footnotes
omitted)
[23]
There is thus no duty on an advocate (or legal
representative) in discharging his duty to the court, to concede the
merits of his
client’s case and/or to concede that no
meaningful argument can be advanced on behalf of his client.
[24]
It might well be that an advocate cannot
advance any meaningful argument on behalf of his client, simply
because the facts and/or
the law are heavily stacked against him, but
not even in such a case is there a duty on the advocate, as an
incidence of his duty
to the court, to make any concessions provided
that the court is not deceived or misled with regards to the facts
and/or the law.
[25]
I now turn to deal with
the merits of the appeal. It is trite that a court of appeal is not
at liberty to depart from the trial
court’s findings of fact
and credibility unless they are vitiated by irregularity, or unless
an examination of the record
of evidence reveals that those findings
are patently wrong.
[11]
[26]
The court
a
quo,
in
a lucid judgment, gave due consideration to the evidence of the
State’s witnesses and the contradictions in their evidence,
and
on a conspectus of all the evidence came to the following conclusion:
[12]
‘
I find the
witnesses to have been honest and consistent in their identity of the
accused. There is nothing in my view, which called
for the rejection
of their versions. There is in my view further enough corroboration
among the state witnesses regarding the identity
of each accused and
their respective roles and that serves as a safe guard against false
identification. I therefore accept the
testimony concerning the
identities of the accused persons and their respective roles in the
robbery as reliable.’
[27]
I have considered the evidence of record and find that there
is no
basis to upset the factual findings of the court
a quo.
Neither
did the appellants’ legal representative advance any
submissions to support a finding to the contrary.
[28]
It follows that the appeal should fail.
Order
[29]
The following order is issued:
1.
The appeal is dismissed.
PJJ
ZIETSMAN AJ
I
concur
M
OPPERMAN J
Counsel
for the Appellants:
Adv V
Abrahams
Legal
Aid South Africa: Free State
BLOEMFONTEIN
Counsel
for the Respondent:
Adv
BG Claassens
Director
of Public Prosecutions: Free State
BLOEMFONTEIN
[1]
There
are exceptions to the rule which are not discussed in this judgment.
[2]
The
difference between the independent referral advocate and Legal Aid
is that the client who has the means to instruct an independent
advocate has the right to choose an advocate to represent his/her
case whereas a Legal Aid client does not have that luxury,
but that
difference does not detract from the general application of the Cab
Rank Rule.
[3]
[2002] 1 AC 615
at 739 G – H.
[4]
[1969]
1 AC 191.
[5]
[2002] UKHL 27
;
[2003]
1 AC 120
at
[51]
.
[6]
Lord
Hofmann in Hall v Simons
[2002] 1 AC 615
at 692 D.
[7]
Hall
v Simons
supra
at
686 E – F.
[8]
[2014]
1 Cr App R 8, [2013] EWCA Crim 649 at [109].
[9]
[
London],
1923 at p 23.
[10]
2007
JDR 0169 (SCA) at par [14] – [18].
[11]
S
v Frances
1991
(1) SACR 198 (A) at 198 J – 199 A;
S
v Hadebe
1997
(2) SACR 641 (SCA) at 645 E – F.
[12]
Judgment
a
quo
para
[32].