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[2014] ZAGPPHC 1062
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S v Machobane and Another (A3004.13) [2014] ZAGPPHC 1062 (2 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
SUPREME
COURT REFERENCE NO
:
06/2013
MAGISTRATE
CASE NO
:
A3004/13
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED.
2
MAY 2014
______________
DATE A
C BASSON
BASSON,J
[1]
The two accused (Mr Moses Machobane and Mr Joseph Tladi) pleaded not
guilty to three accounts of assault with intent to cause
grievous
bodily harm and one count of
crimen iniuria.
[2]
This special review was referred to this Court by the presiding
officer Ms Pisanie who is of the view that the attorney representing
the two accused has a conflict of interest and as a result should not
be allowed to continue representing the two accused. The
two accused
are represented by Mr van Heerden from an attorneys firm Mills and
Groenewalt.
[3]
Whilst the complainant (Mrs Danpu Carol Jaine) was still testifying
in chief, the Court was adjourned in order for the presiding
officer
to attend to a telephone call. It was during this adjournment that it
was brought to the attention of the presiding magistrate
by the civil
magistrate (Ms Dineso) that the complainant was involved in a civil
matter where she (the complainant) was the applicant
and the two
accused the respondents. In the civil matter the complainant (then
the applicant) was represented by Mr Grove from
the same attorneys
firm (Mills and Groenewald). The civil matter has since been settled.
[4]
Mr van Heerden confirmed on record that he was from the same
attorneys firm as Mr Grove. The issue was discussed on record and
the
presiding officer conveyed to the parties that she was of the view
that there is a conflict of interest where the complainant
had been
represented by the same attorneys firm in a previous civil matter.
[5]
Mr van Heerden denied that he had any knowledge of the civil matter
and stated on record that he did not even know the complainant.
He
also stated that he did not discuss the matter with Mr Grove.
[6]
At the outset it must be pointed out that this is not a case where
the same legal representative first represented the complainant
in
civil proceedings (against the two accused) and thereafter represents
the accused in the criminal trial where his previous client
is now
the complainant. I am of the view that in the latter scenario the
potential for a conflict of interest is more likely. This
scenario is
different: The only common denominator is the fact that the two
attorneys are from the same firm. Nothing was placed
before the
presiding officer indicating a conflict of interest but for the fact
that Mr van Heerden is from the same firm as Mr
Grove. I am also
mindful that this fact was disclosed to the prosecution and that it
appears from the record that the prosecution
had no objection.
Unfortunately the presiding officer did not afford Mr Van Heerden an
opportunity to fully explain his position
before bringing an end to
the proceedings nor did she enquire from the two accused whether they
were aware of the situation and
whether they had any objection.
[7]
Under these circumstances I am of the view that there is no reason to
exclude Mr van Heerden from representing the two accused
especially
in light of the fact that nothing is on record indicating that the
two accused were of the view that their right to
a fair trial was
being infringed upon.
[8]
In arriving at my conclusion I had regard to the following general
principles as was summarised by the Zimbabwean High Court
in
Longhurst NO v Lee & others
[2006] JOL
18501
(ZH)
with reference to
Legal
Ethics
by EAL Lewis (1982) at page
50:
"The
rule is this: A practitioner must not act at the instance of a client
or prospective client if he has or is likely to
have a conflicting
interest as above defined and if such an interest or its likelihood
appears when he is already acting he must
cease to act unless before
undertaking the task or when the interest or its likelihood appears,
he shall have made the fullest
disclosure to the client or
prospective client of that interest or its likelihood and the latter,
with the clearest understanding
of the disclosure and of the
implications, shall have unreservedly consented to his acting. There
is however the rider that even
with such understanding and consent
the attorney shall avoid acting or continuing to act if he is not
absolutely certain of his
ability to do so without leaning towards
any preference contrary to the client's interest unless exceptional
circumstances operate
. . . The making of full disclosure in any
instance may be inhibited by considerations of privilege or
confidence which if not
waived may render it impossible for the
attorney to proceed on behalf of the instructor."
In
the same matter the Court referred to
Stockton
v Ford
52 US (11How) 232; 247
[1850] USSC 138
; ;
13 L
Ed 676
(1850) where the following was stated:
“
There
are few of the business relations of life involving a higher trust
and confidence that that of attorney and client, or generally
speaking, one more honourably and faithfully discharged; few more
anxiously guarded by the law, or governed by sterner principles
of
morality and justice; and it is the duty of the court to administer
them in a corresponding spirit, and to be watchful and industrious,
to see that confidence thus reposed shall not be used to the
detriment or prejudice of the rights of the party bestowing it.'"
[9]
I am in agreement with the principles as set out in the above cases
and I am in agreement with the view expressed in
Longhurst
(
supra
) that it is for the Courts to seriously and jealously
guard the principles in respect of conflict of interest.
[10]
I am, however, of the view that a conflict of interest will not
necessarily arise in each and every case merely because another
attorney from the same firm has had some involvement in matters
affecting the parties before court. (See in this regard
Dobrock
Holdings (Pvt) Ltd v Turner & Sons (Pvt) Ltd & Others; Turner
& Sons v Zambezi Paddle Steamer (Pvt) Ltd &
Another
[2007] JOL 19622
(ZH).) Whether a conflict or a perceived conflict of
interest exists in these circumstances is always a matter of fact and
of discretion.
[11]
I accordingly make the
following order:
11.1
Mr van Heerden is allowed to represent the two accused.
_____________________
AC
BASSON
JUDGE
OF THE HIGH COURT