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[2016] ZAGPPHC 70
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Van der Westhuizen and Another v Stuart and Others (5468/2016) [2016] ZAGPPHC 70 (12 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 5468/2016
Date:
12 February 2016
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
J
F H VAN DER
WESTHUIZEN FIRST
APPLICANT
PROTEA
AFTREE-OORD (VERWOERDBURG) (PTY) LTD SECOND
APPLICANT
And
ELMO-YORK
STUART FIRST
RESPONDENT
EY
STUART
INCORPORATED SECOND
RESPONDENT
LAW
SOCIETY OF THE NORTHERN PROVINCES THIRD
RESPONDENT
JUDGMENT
PRETORIUS
J ,
(1)
The applicants request the court on an urgent basis to grant an
interdict' against the first and second respondents to prohibit
the
manager and/or the body corporates and/or the alleged trustees of the
Protea Aftree Oord Centurion to represent the Protea
Aftree Oord
Centurion. The court is also requested to prohibit the first and
second respondents from divulging any information
or documents they
had received from the applicants to any third parties. Applicants'
further request is for an order that the first
and second respondents
are ordered to provide the applicants with all the documents which
relate to the applicants, without keeping
any copies of these
documents, within seven days of the date of this order, and costs on
an attorney and client scale.
(2)
According to the applicants, the first respondent published
privileged information regarding the applicants in a letter on 26
January 2016, after this application had been served, which makes the
application even more urgent.
BACKGROUND:
(3)
The first and second respondents represented the applicants from
January 2015 until August 2015 as attorney of record in disputes
between the applicants and the alleged trustees of the Protea Aftree
Oord, Centurion. This so-called dispute relates to the fact
that the
legal entities did not and do not comply with the provisions of the
Sectional Title Act. This was the initial complaint
by the
applicants. The legal entities, who became aware of this state of
affairs approached the respondents to assist them to rectify
these
problems. There was no pending.court case or any other facts which
suggest a conflict of interest, according to the respondents.
(4)
On 20 January 2016 the present attorneys of the applicants, Laas
Doman lngelyf, wrote a letter to the respondents, advising
the
respondents that the applicants ascertained that the respondent were
advising the legal entities of Protea Aftree Oord and
demanded that
the respondents had to immediately withdraw as attorney for these
entities, due to a conflict of interest.
(5)
On 21 January 2016 the respondents replied to this demand as follows:
"Dit
word ontken dat daar 'n botsing van belange is tussen die regsdienste
wat tans gelewer word deur skrywer aan die Regspersoon.
Presies
dit wat u klient deur bemiddeling van
ons
kantore op
ons
advies van die
onderskeie Regspersone wou afdwing, is deur die Regspersone aanvaar
en het hulle versoek dat ons behulpsaam sal wees
om die proses te
voltooi."
(Court's
emphasis)
And
"..
.maar
gaan ons voort om die Trustees by te staan met die
aanlê
van 'n Spesiale Algemene Vergadering en van regsadvies te bedien
om
die sake van die Regspersone in orde te kry, ooreenkomstig die
wense van u k/ient en ooreenkomstig u kliënt
se
destydse
skriftelike opdrag aan ons."
(6)
On the following day the attorneys for the applicants threatened to
report the respondents to the third respondent and to launch
an
urgent application, should the respondent not terminate their mandate
with the legal entities of Protea Aftree Oord. On the
same day a
complaint was sent to the third respondent.
(7)
On 25 January 2016 the respondents addressed a letter to the
applicants' attorneys and set out that according to them there
was no
conflict of interest as:
"Ons
benadruk weer dat die Regspersoon s/egs implementeer wat u kliënt
verlang het en wat hulle wou afdwing en u kliënt
sal weldra
kennis ontvang van die Spesiale Algemene Vergadering wat aangele
word.
Die optrede wat die onderskeie Regspersone volg is
in u klient
se
belang en in belang van a/le lede van die
Regspersone
om
te bewerkstellig dat die bepalings van die
Dee/titelwet en Regulasies nagevolg word."
(Court's
emphasis)
(8)
Thereafter the urgent application was launched and served on 26
January 2016. The respondents raised a point
in limine
that
the applicants had not joined the manager of Protea Aftree Oord,
Centurion, nor the three legal entities. Applicants
contend that it
was not necessary to join these entities as they did not exist at
this time.
(9)
The applicants admitted that the legal entities exist, but argued
that no board of trustees had legally been appointed to represent
the
legal entities. Counsel for the respondents submitted that, at the
very least, a
curator ad litem
should have been appointed to
represent the three legal entities whose rights and obligations will
be affected should a final interdict
be granted to compel the
respondents to withdraw as attorneys. This is even more so where the
applicants admit the existence of
the legal entities.
(10)
There exist no disputes between the applicants and the respondents at
present. The applicants did not set out which dispute
is pending, nor
did the applicants indicate which documents are still in the
respondents' possession. This is important as the
respondents argue
that the problems that they are assisting the legal entities with the
same problems which were the problems the
applicants complained of,
to legalize a board of trustees in this instance.
(11)
In any event, the respondents are not the legal entities' usual legal
representative, but are advising the entities and persons
involved
and assisting them only to set up representatives for all three legal
entities. The respondents addressed a letter to
the Chairperson of
the Board of Trustees on 26 January 2016 setting out:
"Ek
verwys na u versoek
om
te adviseer oor stappe wat geneem moet
word
om
die bestuur van die onderskeie Protea Aftree-Oord
Regspersone ("Protea'J in /yn te bring met die bepalings van die
Wet op Deeltite/s,
Wet
95
van 1986 en die Regu/asies daaronder
uitgevaardig.
Vir
doeleindes van die oefening gaan dit nodig wees vir die Trustees
om
kennisgewing van 'n Spesiale Algemene Vergadering te gee, 'n
Voorsittersvers/ag ter verduideliking van die proses aan die lede
voor
te hou en het ek dit derhalwe goed geag
om
met
agtergrond-feite in die Voorsittersverslag (hierby aangeheg) te
hande/.
In
kort kom dit daarop neer dat daar nie 'n geldige
Samewerkingsooreenkoms vir die gesamentlike bestuur van die 3
Regspersone bestaan
nie."
And
"Die
probleem met die huidige bestuurste/sel en samewerking tussen die 3
Regspersone ondanks die feit dat die bestuur vir etlike
jare vlot
verloop het, is ongelukkig
.
in stryd met die bepalings van die
Wet en Regu/asies en
as
voorbeeld kan 'n eienaar die locus
standi van die Regspersoon betwis waar hy byvoorbeeld aangespreek sat
word vir betaling van agterstallige
heffings deur die Regspersoon.
Dit kan geskied enersyds omrede daar nie 'n ge/dige verkose Raad van
Trustees is ten aansien van
elke spesifieke Regspersoon nie, dat
begrotings en
demalwe ook die bepaling van heffings, nie deur
'n geldige verkose Raad van
Trustees
ingestel is en
soos
voorgeskryf by Regulasie nie."
(12)
The first respondent set out solutions to the Chairperson of how to
solve the problem of installing a regular board of trustees
in each
instance and suggesting three options. There is no indication
whatsoever that he was advising in any capacity against the
applicants. He sets out in his opposing affidavit that the legal
entities have their own lawyer who deals with all other aspects.
I
have scrutinized the letter carefully and can find no indication
whatsoever that he was acting in conflict of interest of the
applicants in this regard. There is no mention of the applicants in
this letter.
(13)
The legal position was set out in Robinson v van Hulsteyn, Feltham
and Ford
1925 AD 12
at 23 as follows:
"In
such a case it is not enough to make a general charge against the
solicitor that he must have become acquainted with the
secrets of his
client Specific instances must be given of confidential information
having been given to the solicitor and of this
information having
been utilised for the benefit of the new client.... He must show to
the Court that the respondents did in fact
become acquainted with his
secrets and that they used the confidential information reposed in
them to his detriment."
(Court's emphasis)
(14)
In
GL Wishart and Others v The Honourable J Blieden NO and Others
659113 [2014) ZASCA 120 (19 September 2014)
Lewis JA held at
paragraph 34, referring to English Law:
"While
it is now accepted that the lawyers in this
matter
did not
have
access
to confidential information in respect of the
appellants, it is worth noting the English law which has
been
followed in
several
jurisdictions. The high court cited the
locus classicus in this respect:
Prince Jefri Bolkiah v
KPMG
(a firm)
where,
after discussing
a
lawyer's duty to
a
current client, Lord Millett said:
''
'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 solicitor
and client
comes
to
an end with the termination of the retainer. Thereafter the solicitor
has no obligation to defend and advance the interests of
his former
client. The only duty to the former client which survives the
termination of the client relationship is
a
continuing duty
to preserve
the confidentiality of information
imparted
during its subsistence.
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 may be
relevant to the new matter in which the interest of the other
client is or may be adverse to his own.'"
(Court's
emphasis)
And
at paragraph
44:
"What
the law seeks to do in these situations
is
to protect
a
former client of
a
lawyer from being prejudiced by having
that representative, in whom trust
has
been reposed, and who
is
armed with information about that client, act against him
or her."
This
is not the position in the present application, as the applicants did
not show any information being used against them in any
way. There is
no pending application or action against the applicants.
(15)
The Law Society of the Northern Provinces filed a letter dated 5
February 2016, after the matter had been heard. The letter
takes the
application no further and refers to the case law which the court had
already dealt with. The only further aspect relates
to a document
attached to the application which deals with rulings of the Law
Society. In paragraph (e) of the document it is set
out:
"Where
proceedings have terminated and the same attorney is thereafter
instructed by the adversary in another matter, the former
client
is
not entitled to object to the attorney accepting the brief solely
on the basis that the attorney gave him/her legal
advice and
did formal legal work for him/her.
Specific instances must
be given of confidential information having been utilised for the
benefit of the new client.
It is
incumbent upon
a complainant to show that as a matter of substance real mischief has
been done"
(Court's emphasis)
In
this instance no specific instances were given of confidential
information being utilised for the benefit of the present client,
thereby causing prejudice to the applicants.
(16)
I have carefully studied the affidavits, listened to counsel's
arguments and applied the principles set out in the
Robinson case
(supra)
and the
Wishart case
(supra).
I can
find no evidence that the respondents acted against former clients
and they did not use confidential information. This is
clear from the
letter of 26 January 2016. The applicants do not pass the required
test, as set out in the authorities, and therefore
the applicant
cannot succeed.
(17)
Accordingly the application is dismissed with costs, including the
costs of senior counsel.
________________________
Judge
C Pretorius
Case
number
: 5468/2016
Matter
heard on
: 03 February 2016
For
the Applicant
: Adv J Rust
Instructed
by
: Pieterse & Curlewis Inc
For
the Respondent
: Adv Q Pelser (SC)
Instructed
by
: Bernhard Van Der Hoven Attorneys
Date
of Judgment
: 12 February 2016