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[2021] ZAKZPHC 66
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Chetty v Perumaul (AR313/2020) [2021] ZAKZPHC 66 (21 September 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 313/2020
In
the matter between:
HEMELENE
CHETTY APPELLANT
and
SARAS
PERUMAUL RESPONDENT
ORDER
On
appeal from:
Pietermaritzburg Regional
Court (sitting as court of first instance):
The appeal is dismissed
with costs.
JUDGMENT
Mossop
AJ and Seegobin J:
Introduction
‘
Who
steals my purse steals trash; 'tis something, nothing;
'Twas
mine, 'tis his, and has been slave to thousands:
But
he that filches from me my good name
Robs
me of that which not enriches him
And
makes me poor indeed.’
[1]
These
are the words of Iago in Act 3 of Scene 3 in
Othello
by William Shakespeare. They are apposite to this matter, which
concerns an alleged instance of defamation. In the court below,
the
appellant was found to have defamed the respondent and was directed
to pay her the amount of R70 000 as a consequence.
It is against
this judgment that she appeals.
Background
[2]
The
respondent is a senior attorney with 25 years’ experience in
the legal profession at the time of the trial that has led
to this
appeal. She complained in the court below that her good name had been
tarnished by the conduct of the appellant in publishing
allegedly
defamatory comments about her.
[3]
In
the performance of her duties as an attorney, the respondent was
professionally consulted by the appellant’s mother on
16
January 2012. The appellant’s mother wanted her to administer
the estate of the appellant’s grandmother, who had
passed away
during October 2011. After considering the will presented to her by
the appellant’s mother, the respondent informed
her that the
will was invalid but that the estate should be reported and
administered as an intestate estate.
[4]
It
is important to note that the appellant was at no stage present when
the consultation with the respondent occurred: she resides
in Cape
Town and the consultation occurred in Durban. All that the appellant
knows of the consultation with the respondent is what
she was
subsequently told by her mother.
[5]
For
reasons not relevant to this appeal, the respondent was never
instructed to report or administer the intestate estate of the
appellant’s grandmother. In due course, the respondent
delivered a statement of account to the appellant’s mother for
payment in respect of the work that she did prior to her mandate
being terminated. When the account was not paid, the respondent
contacted the appellant’s mother telephonically to ascertain
when it would be paid. It is at this juncture that the appellant
became directly involved in matters.
The
defamatory material
[6]
On
3 February 2012, the appellant telephoned the respondent about the
statement of account that her mother had received. She recorded
this
telephone conversation without the respondent’s knowledge.
During the telephone conversation, the appellant sought to
find out
details of the bill that had been presented to her mother. The
respondent declined to disclose that information to the
appellant.
The appellant instructed the respondent not to telephone her mother
again, which instruction was dismissed by the respondent.
Dissatisfied with the outcome of the telephone conversation, the
appellant thereafter lodged a complaint against the respondent
with
the erstwhile KwaZulu-Natal Law Society (the Law Society). The form
of the initial complaint was an affidavit (the founding
affidavit).
After the respondent had delivered her answering affidavit to the
founding affidavit, the appellant delivered a replying
affidavit to
the Law Society (the replying affidavit). The content of the replying
affidavit contains the allegedly defamatory
material complained of by
the respondent.
[7]
Amongst
other things, the following is to be found in the replying affidavit:
‘
From
Mrs Perumaul’s response it seems that she is trying to get
favour with your office painting a picture that my mother
is a
cold-hearted, gold digging, shrewd, racist woman, who doesn’t
care about her husband, siblings or children in favour
of money. I
can assure you that whether or not you believe it, it is not the
case. My mother had nothing to do with this complaint,
I lodged it
because after speaking to Mrs Perumaul and doing a little
“investigation” of my own, I believe that Mrs
Perumaul is
“scamming” for lack of a better word, the people in the
community, she preys on poor, uneducated people
in their time of
grief and they are losing property and families are breaking up
because of her influence.
The
R3500.00 for me is not an issue, my mother has been through a lot and
there is not any amount of money that I would not spend
for or on
her, I also do have legal aid so if I wanted to dispute this amount I
would have done it through my attorney. The reason
I wrote to you is
to bring to your attention what Mrs Perumaul is doing in the
community, I don’t have any proof of most
things but I believe
that if you conducted an investigation you may uncover things far
worse than what I am speaking of. My siblings
and I are here to fight
on my mother’s behalf, there are many people who don’t
have that someone and they are being
cheated. People respect Mrs
Perumaul and look to her as a professional person.’
The
pleadings
[8]
In
her particulars of claim, the respondent pleaded that the
above-mentioned extract was per se defamatory of her and did not
plead,
or allege, any secondary meaning to the words of which
complaint was made. In her amended plea, the appellant denied that
the words
were defamatory of the respondent and pleaded, further,
that the admitted publication of the words took place in the context
of
a privileged occasion.
Onus
[9]
The
question of onus is an important consideration in this matter. In
Yazbek v
Seymour
,
[1]
the court dealt with the question of the onus where justificatory
defences were raised to a complaint of defamation. The court
held
that a defendant had a full onus to establish the justificatory
defences relied upon. Thus the court concluded that the appellant
in
that matter had to prove the publication of the defamatory statement,
the respondent had to prove the fair comment or that the
comment was
published on a privileged occasion and the appellant had to prove
that the respondent was actuated by malice.
[2]
It seems to us that the same approach must be adopted in this matter.
Thus:
(a) the
respondent was required to prove the publication of the defamatory
statement about which she complained;
(b) the
appellant had to prove that the statement was not defamatory,
alternatively was published on a privileged
occasion; and
(c) if
the respondent wished to overcome any privilege that might attach to
the publication, she had to prove
that the appellant was actuated by
malice.
[10]
It
is necessary to clarify an aspect of the appellant’s plea.
Counsel for the appellant, Mr Ender, stated in his opening address
in
the court a quo that the first leg of the appellant’s defence
was that the comments complained of were not defamatory
and were
truthfully made. The first part of that submission is correct: the
second part, the allegation that the comments were
truthfully made,
is not. The appellant’s pleaded defence never included an
allegation of truthfulness. It was solely predicated
on the words not
being defamatory alternatively that they were published in
circumstances where privilege attached.
The
delict of defamation
[11]
The
delict of defamation is defined as the unlawful publication,
animo
injuriandi
,
of a defamatory statement concerning another. Defamatory statements
include statements which injure the reputation of the person
concerned in his or her character, trade, business profession or
office or which exposes the person to enmity, ridicule or
contempt.
[3]
It is trite that
once a plaintiff establishes that the defendant has published a
defamatory statement about him or her, it is presumed
that the
publication was made both unlawfully and intentionally.
The
assessment of written defamatory material
[12]
When
considering the content of a written defamatory statement, as in this
matter, a court should give the article complained of
the natural and
ordinary meaning which it would have conveyed to the ordinary
reasonable reader reading the article once:
‘
Hypothetical
reasonable readers should not be treated as either naïve or
unduly suspicious. They should be treated as capable
of reading
between the lines and engaging in some loose-thinking, but not as
being avid for scandal. The court should avoid an
over-elaborate
analysis of the article, because an ordinary reader would not analyse
the article as a lawyer or an accountant would
analyse documents or
accounts. Judges should have regard to the impression the article has
made upon them themselves in considering
what impact it would have
made upon the hypothetical reasonable reader. The court should
certainly not take a too literal approach
to its task.’
[4]
The
complaint
[13]
The
gravamen of the appellant’s complaint to the Law Society, as
contained in the founding affidavit, appears to be that the
appellant
had telephoned the respondent and, inter alia, asked for a breakdown
of the fees that the respondent had charged her
mother. The
respondent had allegedly then become very rude and agitated,
according to the appellant. The respondent told the appellant
that it
was none of her business. When the appellant indicated that she
wanted to discuss the fees raised by the respondent, the
respondent
replied that she would never discuss that with the appellant.
[14]
The
refusal of the respondent to discuss the matter was interpreted by
the appellant to be rudeness on the part of the respondent.
That the
respondent was correct in not discussing the affairs of her client
with the appellant brooks of no dispute, as such matters
are
confidential.
[5]
The appellant
was not the respondent’s client and she had no right to seek
the details that she sought from the respondent
and the respondent
was not at liberty to disclose such information without the
appellant’s mother’s consent.
[15]
The
respondent replied under oath to the founding affidavit in a detailed
answering affidavit. She addressed each paragraph of the
complaint
and gave extensive detail pertaining to the events in question. There
was nothing, in our view, that was objectionable
or inflammatory in
the respondent’s answer. Indeed, many of the facts adduced in
that affidavit were confirmed by the appellant’s
mother when
she testified at the trial.
[16]
Central
to the matter is the statement of account. It totals in value
approximately R3 600. The statement of account extends just
over two
pages in length and is detailed in its content. Each item of work
performed by the respondent is identified, fully narrated
and
described and quantified, from receiving and perusing the identity
document of the appellant’s late grandmother at a
charge of
R25, to drawing an inventory of four pages at R85 per page, to
consulting with the appellant’s mother at a charge
of R1 065.
The account is unremarkable in its content and in the amount charged
by the respondent. It is little surprise then
that the Law Society
ultimately determined that there was no evidence of unprofessional
conduct on the part of the respondent.
Assessment
of the words about which complaint is made
[17]
The
words complained of by the respondent in the replying affidavit
delivered to the Law Society are the following:
(a) ‘I
believe that Mrs Perumaul is “scamming” for lack of a
better word, the people in
the community’:
The meaning of the word
‘scam’ is ‘an illegal plan for making money,
especially one that involves tricking people’.
[6]
To use that word, or derivatives thereof, is to impute dishonesty and
deviousness. The complaint made out in the founding affidavit
was
confined solely to the alleged conduct of the respondent in relation
to the appellant and her mother. The reference to the
community in
the replying affidavit expanded the complaint beyond the confines of
the founding affidavit. No evidence of a scam
was adduced at all at
trial. Indeed, it was put to the appellant under cross examination
that her mother had been given an initial
quotation of R3 500 by
the respondent to do the work requested of her. Ultimately, she was
sent a bill for approximately R3 600.
Asked where the scam in
these facts were the appellant’s answer was
‘
There is no
scamming there.’
No other evidence which
could be construed as a scam was forthcoming. The replying affidavit,
in any event, stated that the amount
of R3 500 was not an issue
for the appellant. Had it been, so she said, she would have disputed
it through her attorney. In
other words, there was no dispute over
what had been billed for by the respondent. It was also admitted that
the disputed bill
had never been paid, whether by the appellant or
her mother or her mother’s brother who was also mentioned in
the evidence.
Accepting that as being correct, it is difficult to
understand where the allegation of scamming originated from. In
addition thereto,
there was no admissible evidence adduced at all by
the defence about the respondent’s conduct in relation to the
community
in general;
(b) ‘…
she preys on poor, uneducated people in their time of grief …’:
A prey is an animal that
is hunted down or seized for food, usually by a carnivorous animal.
The use of such words creates a mental
image of a rapacious person
who exploits other weaker people for her own benefit. There was no
evidence of such conduct on the
part of the respondent either. The
appellant’s mother initiated the contact between herself and
the respondent. She went
to the respondent’s offices to consult
with her. In the course of that consultation, the appellant’s
mother was given
legal advice by the respondent. It was not the
position that the appellant’s mother was charged for something
that she did
not receive. It can also hardly be said that the
appellant’s mother was in the height of her grief either: her
mother had
passed away approximately three months before the
consultation;
(c) ‘…
they are losing property and families are breaking up because of her
influence’:
What the influence
complained of was never identified or defined. No proof of any of the
allegations made in this regard was adduced
at trial. In response to
a question as to what families had suffered this fate, the appellant
indicated that her family had broken
up over the incident. Evidence
was led that the appellant’s mother and brother no longer
communicated with each other after
the consultation with the
respondent. The reason for this was, however, not any of the
respondent’s doing – it arose
from an internal dispute in
the appellant’s family over who was to pay the respondent’s
bill. The allegations are thus
unfounded, crass and unworthy;
(d) ‘.
. . I believe that if you conducted an investigation you may uncover
things far worse than what
I am speaking of’:
What was being referred
to in this regard was not definitively spelt out nor was the basis
upon which the appellant entertained
this belief. It appears to have
been a gratuitous slur intended to cast the respondent in an
unfavourable light;
(e) ‘My
siblings and I are here to fight on my mother’s behalf, there
are many people who don’t
have that someone and they are being
cheated’:
The implication here was
that the person doing the cheating was the respondent. Given that the
bill presented by the respondent
was not disputed by the appellant,
it is not clear what the basis is for the allegation that anyone was
cheated, let alone the
appellant’s mother.
[18]
Viewed
as a whole, the words utilised by the appellant impugn the reputation
and integrity of the respondent and were designed to
do so. They
point to unconscionable conduct on the part of the respondent without
providing any foundation for that conclusion.
[19]
We
are satisfied that the statements made by the appellant of the
respondent, at the very least, informs the reader of the replying
affidavit that the plaintiff was guilty of dishonest, unprofessional,
or unethical conduct as an attorney and was not a person
to be
trusted. The statements are clearly defamatory of the respondent.
[7]
[20]
The
respondent has established that the words of which complaint is made
were defamatory and were published. Accordingly, the plea
that the
words complained of are not defamatory of the respondent must fail.
The regional court magistrate was accordingly correct
in our
estimation when she found accordingly.
Privilege
[21]
The
further defence pleaded by the appellant was that the words
complained of were published in the circumstances of a privileged
occasion. It was pleaded that publication was made by the appellant
in the discharge of a duty, alternatively the protection of
a
legitimate interest, to the Law Society, which had a similar duty or
interest in receiving the publication. Such, so it was pleaded,
did
not ground a claim for defamation.
[22]
It
is not clear from the plea whether the appellant pleaded absolute
privilege or qualified privilege. Both defences accordingly
need to
be considered.
[23]
Where
circumstances of absolute privilege find traction, the defendant is
protected absolutely as liability for defamatory comments
is
completely excused. Absolute privilege, however, can only be created
by statute.
[8]
No evidence
whatsoever was adduced to establish the existence of absolute
privilege and it is therefore not a defence that is available
to the
appellant.
[24]
Where
qualified privilege is raised as a defence, such privilege does not
afford absolute immunity to the publisher of a defamatory
statement.
The protection conferred by this defence is provisional and the
publication will be wrongful if the publisher acted
with an improper
motive. The rationale behind this is that there can be no legal,
moral or social duty to publish matters for malicious
reasons.
[9]
[25]
In
National
Education, Health and Allied Workers Union and another v Tsatsi
,
[10]
the Supreme Court of Appeal recognised that one of the occasions that
enjoys the benefit of the defence of qualified privilege
is an
occasion where the statements were published in the discharge of a
duty or the exercise of a right. Qualified privilege thus
exists
where someone has a right or duty to make, or an interest in making,
specific defamatory assertions and the person or people
to whom the
assertions are published have a corresponding right or duty to learn
of such assertions.
[11]
This
is precisely what the appellant pleaded in this matter.
[26]
The
defence of qualified privilege was considered in
Yazbek,
[12]
to which reference has previously been made, where the court reasoned
that such a defence was
‘
'not concerned
with the truthfulness or otherwise of the publication, though proof
that the defendant did not believe that the facts
stated by him were
true may give rise to the inference that he was actuated by express
malice . . . But the truthfulness or otherwise
of the statements has
no bearing on whether they were germane to the occasion or not.’
[13]
(reference omitted)
The
court went on to explain that the reason for this stems from the fact
that it is the occasion and not the statement that is
privileged.
[27]
In
our view, the purpose of permitting members of the public to deliver
complaints to a body such as the Law Society is predicated
upon
encouraging members of the public to speak up when they believe that
legal practitioners have conducted themselves in an unacceptable
manner. It is a mechanism through which the Law Society comes to know
about the conduct of their members. It thus assists the Law
Society
in regulating the conduct of its members, thereby helping to maintain
standards. It also, obviously, allows steps to be
taken against those
members in respect of whom complaints have been upheld. Members of
the public who believe that they are the
victims of unacceptable or
unprofessional conduct by a legal practitioner have the right to
report their experiences and substantiate
their complaint. In
inviting such reports to be made to it, the Law Society clearly has
an interest in receiving such reports and
the complainant has a right
to deliver such complaint.
[28]
The
matter of
Gishen
v Babu
[14]
involved, as in this case, a complaint made to a law society. The
body in that matter was the Law Society of the Northern Province.
As
in this case, the defamatory material was contained in the complaint
made to that body. In considering the question of qualified
privilege, which was also raised as a defence in that matter, the
court stated that
‘
There can be no
doubt that an occasion where a member of the public lays a complaint
before the professional body representing attorneys
is a privileged
one. The privilege is a qualified one.’
[15]
[29]
We
are in agreement with the reasoning adopted in
Gishen’s
matter and we find that the appellant delivered her complaint in
circumstances of qualified privilege. Having failed to establish
that
the words used were not defamatory of the respondent, the appellant
did establish the existence of circumstances of qualified
privilege.
The regional magistrate was correct in arriving at the same
conclusion. It is now necessary to consider the issues of
relevance
and malice.
Relevance
[30]
A
party pleading qualified privilege must show that the statement
published, and about which complaint is made, was relevant and
germane to the matter.
[16]
Relevance in the context of qualified privilege is not to be equated
with relevance in a strict evidential sense. What is logically
irrelevant may not necessarily be irrelevant in relation to privilege
and the test is not as rigid as with the evidentiary test.
Smallberger JA, in
Van
den Berg v Coopers and Lybrand Trust
[17]
said that
‘
While the public
interest undoubtedly requires that the approach to relevance in
relation to privilege should not be too strict
or rigid lest
witnesses or deponents to affidavits be unduly restricted or fettered
in their testimony or depositions, thereby
detracting from their
right to freedom of speech . . . too liberal or wide an approach to
relevance could effectively undermine
or negate a defamed person's
right to the protection of his or her dignity. An allied
consideration is that a more generous approach
to relevance may be
justified in the case of a witness who makes a defamatory statement
while giving viva voce evidence than where
that is done by a deponent
to an affidavit, bearing in mind that the latter situation would
normally allow opportunity for reflection
and advice.’
[18]
(reference omitted)
[31]
The
distinction to be drawn between oral defamatory matter and written
defamatory matter alluded to in the extract above applies
in this
matter. The defamatory matter was in writing in this matter. The
founding affidavit submitted to the Law Society contained
no material
about which complaint could be made. The respondent delivered her
answering affidavit at the end of June 2012. Thereafter,
the
appellant had two months to formulate the terms of her replying
affidavit, which is dated 31 August 2012. Under cross examination
at
the trial, the appellant stated that:
‘
The essence, the
main point of my complaint to The Law Society was twofold:
1.
The unprofessional behaviour from Miss Perumal [sic] in dealing with
my mother and myself.
2.
The information that I became aware of, but I thought The Law Society
would want to become aware of,
if they had to investigate it
further.’
[32]
This
was in contra-distinction to the version that was put to the
respondent by the appellant’s counsel, namely that the purpose
behind the complaint was the manner in which the appellant’s
mother had been invoiced. The second part of the appellant’s
answer referred to above could not have been correct. At the date of
the lodging of the complaint, 24 February 2012, the appellant
could
not have known, if she ever did know, of the matters that she
mentioned in her replying affidavit. On her own version, she
performed her ‘investigation’ after the founding
affidavit was delivered. The fact of the matter is that what was said
in the replying affidavit was new material that was not germane to
the initial complaint lodged. In our view, the appellant has
not
established that her subsequent comments in the replying affidavit
were relevant or germane to the complaint that she delivered
to the
Law Society and she is accordingly not protected by the qualified
privilege that she has established.
[33]
In
the event that we are wrong on that score, we now consider the issue
of malice.
Malice
[34]
While
circumstances of quasi-privilege may afford some form of protection
to a person making defamatory comments, a privileged occasion
cannot
be misused. It is misused when the making of the defamatory comments
is actuated by malice.
[35]
Malice
means more than spite or ill-will. Any motive that does not originate
from a ‘sense of duty or the desire to protect
an interest
gives rise to improper motive or malice’.
[19]
[36]
In
Basner v
Trigger
,
[20]
the court found that where a defamatory statement was made on a
privileged occasion, the party making the statement would not be
liable unless malice in making the statement was proved. In
Naylor
and another v Jansen
,
[21]
the court found that
‘
In the event of it
being shown that the statement was made with knowledge of its
untruthfulness, the inference that would arise,
in the absence of any
indication to the contrary, would be that the statement was actuated
by malice.’
[22]
[37]
Similar
sentiments were expressed in
Borgin
v De Villiers and another
,
[23]
where the court found that proof that the defendant did not believe
that the facts stated by him were true may give rise to the
inference
that he was actuated by express malice.
[38]
In
her evidence under cross examination, the appellant denied that she
had been actuated by malice. She said
‘
There was not any
malice. It was not a personal attack against Ms Perumal [sic]’
We
are not able to agree with this. The words were, without question, a
personal attack upon the respondent.
[39]
In
the replying affidavit of the appellant there is, in our view,
evidence of malice on the part of the appellant:
(a) The
first indication is to be found in the statement of the appellant
that ‘I believe that if you
conducted an investigation you may
uncover things far worse than what I am speaking of.’ There was
no attempt made to advance
any evidence that might support such a
conclusion or to explain what was intended by these words. There was
no need to mention
this at all as it did not correlate with the
complaint in its original form. That these words were used seems to
be nothing more
than a malicious attempt to stir up trouble for the
respondent and influence the Law Society to look beyond the scope of
the complaint
made by the appellant and to find fault, any fault,
with the respondent’s conduct;
(b)
The
second indication is to be found in the statement of the appellant
that ‘I don’t have any proof of most things.’
The
appellant thus had no evidence for ‘most things’. The
allegations made appear therefore to have been made gratuitously,
as
the regional magistrate found. The result is that the appellant could
not herself have genuinely believed any of the objectional
things
that she communicated to the Law Society as she, on her own
admission, had no proof of them. Reference has already been
made to
authorities that indicate that a lack of belief in the comments made
may constitute evidence of malice. In
Featherby
,
[24]
the defendant stated that he had no factual foundation for a number
of the allegations that he made about the plaintiff. He was
found
liable to the plaintiff. In our view, such is the case in this
matter. The appellant is liable to the respondent for her
act of
defamation, as the regional magistrate found; and
(c) Whilst
the appellant claimed to have performed her own investigation, she
did not name any of the people
who allegedly provided her with
information. No attempt was made to call these persons at the trial.
Admittedly one of the persons
apparently consulted by the appellant
had died, but the other (it appears she only spoke to two people) was
alive, but was not
called.
[40]
We
are satisfied that the regional magistrate correctly found that the
respondent had established that the appellant acted with
malice and
that as a consequence the defence of qualified privilege could not be
sustained.
Quantum
[41]
A
successful plaintiff in a defamation action is entitled to an award
of general damages as a
solatium
to compensate him
or her for the injury to his or her dignity and reputation. A court
has a wide discretion in determining
the award of general damages.
There is no precise formula that can be applied to determine the
amount awarded. It is, however,
important to note that
‘
Our Courts have
not been generous in their awards of solatia. An action for
defamation has been seen as the method whereby a plaintiff
vindicates
his reputation, and not as a road to riches.’
[25]
[42]
The
regional magistrate was well aware of this. She carefully surveyed a
number of cases before determining the amount that she
decided to
award. The amount that she ultimately awarded falls within a broad
range of awards granted by various courts over the
years.
[43]
The
regional magistrate also, correctly in our view, considered the
attitude of the appellant when arriving at her award. The following
interaction in the evidence in chief of the appellant at trial no
doubt influenced the regional magistrate:
‘
Ms Perumal, in
terms of this letter, The Law Society states that the attorney has
not acted unprofessionally. You say, in your statement,
that you will
apologise to Mrs Perumal if nothing is found. Have you apologised to
her? --- I have not
Why do you refuse to
apologise to her? --- Because I said in my statement, to The Law
Society, that I am asking them to conduct
an investigation. If they
investigate and find that she has done nothing wrong, then I will
apologise. But it is according to me,
they have not investigated.’
[44]
This
extract illuminates the mind-set of the appellant. The Law Society
had investigated her complaint. It had rendered its decision.
It
found no evidence of unprofessional conduct. There was no basis for
the appellant to hold the view that no investigation had
taken place.
The extract further demonstrates her lack of contrition for what she
had said, knowing on her own version that she
did not have proof of
most of what she said. The regional magistrate was correct in our
view when she found that the appellant
was impenitent.
[45]
The
regional magistrate further correctly found that there had been
limited publication of the defamatory comments. That being said,
the
words of Holmes AJA in
Gelb
v Hawkins
[26]
still ring true:
‘
. . . it is a
grave and ugly thing falsely to say of an attorney that he
deliberately deceived the Court, and to that end was a
party to the
leading of perjured testimony. It is worse when it is said of an
attorney who, according to the evidence, was trained
in the strict
observance of professional ethics, and for thirty years has jealously
guarded his good name.’
[27]
[46]
We
accept that the facts are different in the matter under appeal, but
impugning the good name of an attorney remains a serious
matter. The
most valuable assets that a legal practitioner possesses is repute
and integrity. Once either is lost it is seldom
recovered.
[47]
We
have considered the reasoning of the regional magistrate and we
cannot find fault with it. For this appeal to succeed, material
misdirections by the regional magistrate would need to be
demonstrated to exist.
[28]
We
are unable to discern any.
The
conduct of legal practitioners
[47] Before
concluding this judgment, we feel compelled to make some comments
about the manner in which this trial
was conducted before the learned
regional magistrate in the court below. While neither counsel
conducted themselves in a manner
of which they can be proud, the
conduct of the appellant’s counsel must enjoy particular
scrutiny. The record indicates that
from the outset of the
proceedings, and for reasons known only to himself, the appellant’s
counsel appeared to have adopted
a rather hostile attitude towards
the respondent and her legal representative.
[48] The
record is replete with instances where the appellant’s counsel
was openly hostile and discourteous
to the respondent in the manner
in which he was cross-examining her. He often cut her off in
mid-sentence; he interrupted her continuously
making it extremely
difficult for her to provide a meaningful response to the question
posed and at times he ridiculed her by simply
laughing at her for no
apparent reason. This type of behaviour resulted in an atmosphere
that was unduly tense and completely unnecessary.
[49] This
conduct was not lost on the learned regional magistrate who, on
several occasions, cautioned the parties
to behave themselves and to
‘cool down’ or else she would leave the court-room. At
page 286 of the record the learned
regional magistrate had the
following to say:
‘
COURT: I am going
to adjourn this case and allow you people to cool down and deal with
it when we can proceed. Just……
Ms Perumaul, just try
and be coolheaded here because we want to get to the bottom of this.
I have already appealed to you people
to conduct this in the manner
that it is supposed to be conducted. You ask questions and you give
her a chance to respond. Do not
have this dialogue……
Otherwise I will have to adjourn for the day so that next time when
we come maybe you people
would have cool down for us to proceed. ……’
[50] In
spite of the above warning by the learned regional magistrate the
disruptive and unruly conduct continued
unabated thereby forcing the
learned regional magistrate to adjourn her court.
[29]
[51] Unfortunately,
the further proceedings were marred by similar disruptions and
disrespectful behaviour. At
some stage, the appellant’s counsel
even went to the extent of clarifying the issues with his client (the
appellant) notwithstanding
the fact that she was being cross-examined
by the respondent’s legal representative at that stage.
[52] That
the proceedings before the learned regional magistrate were allowed
to degenerate into this kind of chaos
is a matter of deep concern.
This of course has nothing to do with the learned regional magistrate
who tried her utmost to maintain
the integrity of her court in the
administration of justice. Rather, it has everything to do with the
duties of a legal representative
both in relation to his/her client
as well as to the court. Not surprisingly, in argument before us the
appellant’s counsel
admitted that he may have been a little
over-zealous in the manner in which he pursued his client’s
case and that on mature
reflection there were many aspects of this
trial that he would have handled differently. These admissions were
well made and he
is thanked therefore.
[53] However,
the manner in which this trial was conducted fills us with a sense of
disquiet. That the learned
regional magistrate was able to finalise
the proceedings in a calm and rational manner is without doubt a
testament to her patience
and tolerance. We consider, however, that
no judicial officer should be placed in a position where he/she is
forced to adjourn
their court simply because of the abhorrent
behaviour of the legal representatives appearing in that court.
[54] What
this case demonstrates is a complete lack of respect for the court
and its role in the proper administration
of justice. It also
demonstrates just how far some legal representatives will go in
pursuing their client’s case without
paying any heed to their
overriding duty, which is to the court. Some legal practitioners tend
to forget for a moment that they
are officers of the court and that
their ultimate duty is to the court and no one else. It is perhaps
convenient at this juncture
to remind legal representatives of this
duty and their role in the proper administration of justice. The
cases cited hereunder
illustrate the point quite adequately. The
reference to ‘advocates’ in these cases would in our view
apply equally
to the role of attorneys as well.
[55] In
S v
Khathutshelo and another
[30]
the court held as follows, after highlighting the exchange between
counsel and the presiding magistrate
‘
[20] The words
used by counsel were both unnecessary and unfortunate. They
demonstrated acute lack of respect for the court and
its role in the
administration of justice. Judges and magistrates alike have been
entrusted with the most difficult job: to find
the truth and
administer justice between man and man. They are fallible like all
others and, in recognition of this weakness, there
is a hierarchy of
courts so that mistakes can be corrected on appeal or review. It does
not serve any purpose for a practitioner
to be theatrical and make
demands which he knows the court is not in a position to accede to.
[21] The ethics of the
legal profession say an advocate is an officer of the court. As an
officer of the court he is required to
assist the court in the
administration of justice. Inasmuch as counsel has a duty to advance
his/her client's case with zeal, vigour
and determination, he should
always remember that his primary duty is to the court. His role in
court is not only to push his or
her client's interests in the
adversarial process . . .
[22] It is axiomatic
therefore that an advocate should in the execution of his duties act
with integrity and professionalism. He
should always measure his
words and be of good temperament. He should understand that he makes
submissions to court with a view
to persuading it to find in his
client's favour. He does not make demands. Once the court has made a
ruling, it becomes his duty
as a person trained in law to advise a
client on the remedies available to correct what he may regard as an
error of fact, law
or procedure.
[23] He should always
maintain the decorum of the court and protect its legitimacy in the
eyes of the public, so that its confidence
is not eroded in their
eyes. More than 100 years ago, in the winter of 1908, Chief Justice
Innes said the following about practitioners:
“
Now practitioners,
in the conduct of cases, play an important part in the administration
of justice. Without importing, any knowledge
or opinion of their own
. . . they present the case of their clients by urging everything
both in fact and in law, which can honourably
and properly be said on
his behalf.”
See
Incorporated Law
Society v Bevan
1908 TS 724
at 731.
[24] The
paramountcy of the duty to the court is of the utmost importance to
the effective functioning of the legal system.
It is imperative that
lawyers, clients and the public understand this. The integrity of the
rule of law and the public interest
in the administration of justice
depend upon it. When lawyers fail to ensure that their duty to the
court is at the forefront of
their minds, they do a disservice to
their clients, the profession and the public as a whole.’
[56] In
Van der
Berg v General Council of the Bar of SA
[31]
the
court held that:
‘
[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 authorises 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.”’
(footnotes omitted)
[57] In
a speech titled ‘
The
Duty Owed to the Court - Sometimes Forgotten
’
delivered by the Honourable Marilyn Warren AC at the Judicial
Conference of Australia – Colloquium, Melbourne on 9
October
2009,
[32]
the learned Justice
spoke to the duties of counsel to the court in relation to its role
in the proper administration of justice.
The speech commences with
the following quotation from the judgment of Lord Reid in the matter
of
Rondel
v Worsley
[33]
‘
[A]s an officer of
the court concerned in the administration of justice [a legal
practitioner] has an overriding duty to the court,
to the standards
of his profession, and to the public, which may and often does lead
to a conflict with his client’s wishes
or with what the client
thinks are his personal interests’
[58]
Later on in her speech the learned Justice highlights a
practitioner’s duty to the court as follows:
‘
The Duty to the
Court
The lawyer’s duty
to the court is an incident of the lawyer’s duty to the proper
administration of justice. This duty
arises as a result of the
position of the legal practitioner as an officer of the court and an
integral participant in the administration
of justice. The
practitioner’s role is not merely to push his or her client’s
interests in the adversarial process,
rather the practitioner has a
duty to “assist the court in the doing of justice according to
law.”
The duty requires that
lawyers act with honesty, candour and competence, exercise
independent judgment in the conduct of the case,
and not engage in
conduct that is an abuse of process. Importantly, lawyers must not
mislead the court and must be frank in their
responses and
disclosures to it. In short, lawyers “must do what they can to
ensure that the law is applied correctly to
the case.”
The lawyer’s duty
to the administration of justice goes to ensuring the integrity of
the rule of law. It is incumbent upon
lawyers to bear in mind their
role in the legal process and how the role might further the ultimate
public interest in that process,
that is, the proper administration
of justice. As Brennan J states, “[t]he purpose of court
proceedings is to do justice
according to the law. That is the
foundation of a civilized society.”
When lawyers fail to
ensure their duty to the court is at the forefront of their minds,
they do a disservice to their client, the
profession and the public
as a whole.’ (footnotes omitted)
[59] From
everything that we have said thus far on this aspect and from the
authorities referred to above, it is
clear that this duty was
breached before the learned magistrate on numerous occasions. In our
view, this type of conduct is unacceptable.
It serves no purpose
other than to undermine the effective functioning of a court and due
administration of justice. Such conduct
must not recur in the future.
[60] In
all the circumstances, we make the following order:
The appeal is dismissed
with costs
Mossop
AJ
Seegobin
J
APPEARANCES
Counsel
for the appellant: Advocate
G.
E. Ender
Instructed
by:
Talbot
Attorneys
Suite
01, 2 Shackelford Road
Pietermaritzburg
Counsel
for the respondent: Mr
Attorney Y. Perumaul
Instructed
by:
Perumauls
Attorneys
Suite
1, 2
nd
Floor
Gem
City Building
54
Parthenon Street
Phoenix
Date of
Hearing: 27
August 2021
Date of
Judgment: 21
September 2021
[1]
Yazbek
v Seymour
2001
(3) SA 695
(E).
[2]
Yazbek
v Seymour
,
supra,
at 702E-H.
[3]
Featherby
v Zulu
[2021] ZAKZDHC 2 paras 4 and 5.
[4]
Tsedu
and others v Lekota and another
2009
(4) SA 372
(SCA) para 13 quoting
Simon
Brown LJ in
Mark
v Associated Newspapers Ltd
2002
E M L R 38 para 11.
[5]
‘Confidentiality’
refers to the duty of an attorney to preserve the confidentiality of
all communications between
himself or herself and the client (Willem
de Klerk
et
al
Clinical
Law in SA
2
ed (2006) at 42).
[6]
The
Cambridge On-Line Dictionary, available at
https://dictionary.cambridge.org/dictionary/english /scam, accessed
16 September
2021.
[7]
Mineworkers
Investment Co (Pty) Ltd v Modibane
2002
(6) SA 512
(W) paras 10-12.
[8]
Katz
v Welz and another
[2021] ZAWCHC 76 para
35.
[9]
Katz
v Welz and another
,
supra, para 38.
[10]
National
Education, Health and Allied Workers Union and another v Tsatsi
[2006]
1 All SA 583
(SCA), para 11.
[11]
Chalom
v Wright and another
[2015] ZAGPJHC 105 (4 June 2015) para 23.
[12]
Yazbek
v Seymour
2001
(3) SA 695 (E).
[13]
Yazbek
v Seymour
,
supra, a
t
page 701H-I.
[14]
Gishen
v Babu
[2007] ZAGPHC 391.
[15]
Gishen
v Babu
,
supra, at para 13.
[16]
Van
der Berg v Coopers and Lybrand Trust (Pty) Ltd and others
2001
(2) SA 242 (SCA).
[17]
Van
der Berg v Coopers and Lybrand Trust (Pty) Ltd and others
,
supra.
[18]
Van
der Berg v Coopers and Lybrand Trust (Pty) Ltd and others
,
supra, para 24.
[19]
Chalom
v Wright and another
[2015] ZAGPJHC 105 para 30.
[20]
Basner
v Trigger
1946
AD 83.
[21]
Naylor
and another v Jansen
[2005] 4 All SA 26 (C).
[22]
Naylor
and another v Jansen
,
supra,
at
para 11.
[23]
Borgin
v De Villiers and another
1980
(3) SA 556
(A) at 578H.
[24]
Featherby
v Zulu
[2021] ZAKZDHC 2 para 22.
[25]
Argus
Printing & Publishing Co Ltd v Inkatha Freedom Party
[1992] ZASCA 63
;
1992 (3) SA 579
(A) 590E-F.
[26]
Gelb
v Hawkins
1960 (3) SA 687 (A).
[27]
Gelb
v Hawkins
,
supra, at
693F-G.
[28]
Public
Protector v South African Reserve Bank
2019
(6) SA 253
(CC) at para 144.
[29]
Page
289 of the record.
[30]
S
v Khathutshelo and another
2019 (1) SACR 480
(LT) paras 20, 21, 22, 23 and 24.
[31]
Van
der Berg v General Council of the Bar of SA
[2007] 2 All SA 499
(SCA) para14.
[32]
The
speech is available at
http://www.austlii.edu.au/au/journals/VicJSchol/2009/15.pdf,
accessed 25 August 2021.
[33]
Rondel
v Worsley
[1967] UKHL 5
at 2;
[1969] 1 AC 191
at 227,
[1967] 3 All ER 993
at
998.