REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1) REPORTABLE: YES/NO CASE N2: CC01/2024
(2) OF INTEREST TO THE JUDGES : YES/NO
(3) REVISED: YES/NO
THE DIRECTOR PUBLIC PROSECUTIONS
LIMPOPO DIVISION
and
JOAQUIN THOMAS GROBLER
DAWID GROENEWALD
KAREL TOET
JACOBUS MARTINUS PRONK
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
Delivered 13 December 2024. This judgment was handed down electronically
by circulation to the parties' legal representatives by email and
released to SAFLII. The date and time for hand-down of the
judgment is deemed to be 13 December 2024 at 10h00.
JUDGMENT
MAKGOBA RETIRED JP:
[1] The Applicant brought an application against the Respondents seeking an
order in the following terms:
1.1. That the First Respondent, who is a practicing attorney, representing
the Second, Third and Fourth Respondents in a criminal trial as
described in the Applicant's founding affidavit, be permanently barred
from representing the said Second, Third and Fourth Respondents
and I or any other accused persons cited in the indictment during the
criminal trial enrolled on the Court roll of this Court on 7 October 2024
with case number CC 01/2024.That the First Respondent be barred
from representing the respondents mentioned above up and until the
finalisation of the mentioned case.
1.2. Further and I or alternative relief.
[2] The Applicant in this matter has instituted a criminal prosecution against the
Second, Third and Fourth Respondents as well as other accused persons
that are not party to the present application. The First Respondent (Mr
Grabler) is the legal representative for the Second, Third and Fourth
Respondents referred to above as well as Mr T. Erasmus who is not cited in
the present application.
[3] The criminal prosecution currently pending against the aforementioned
Respondents as well as other accused persons who are not parties to the
present application is currently pending under case number CC 01/2024 in
the High Court, Polokwane after being transferred from the High Court,
Pretoria. The first appearance in the High Court, Polokwane was the 9th
February 2024.
Mr Grobler represented the aforementioned Respondents and others wh ile
the case was in the High Court, Pretoria. When the criminal matter was
transferred to the High Court, Polokwane the Second, Third and Fourth
Respondents still engaged the services of Mr G robler.
[4] On the first appearance in the H igh Court, Polokwane on 9 February 2024
the State (the Applicant) informed Mr Grobler that he cannot proceed to
represent the four accused in the criminal matter due to the fact that there
will be an ethical challenge as there is a conflict of interest due to the fact
that Mr Grobler is listed as a State's witness in the said pending criminal
case.
[5] The withdrawal of Mr Grabler as attorney of record for the Second, Third and
Fourth Respondents could not be resolved amicably, hence the Applicant
brought the present application before this Court.
Factual Matrix
[6] The facts in this case are mainly common cause and not seriously disputed.
Such facts are set out hereunder.
[7] The criminal case currently pending before the High Court, Polokwane under
case number CC 01/2024 commenced in September 2010 in the Magistrate
Court of Musina and was thereafter transferred to the High Court, Pretoria.
Mr Grabler attested to a statement dated 4 March 2009 on behalf of Mrs.
Groenewald as the attorney of record for both the Second Respondent and
his wife, Mrs. Groenewald.
[8] Mr Grabler represented the Second Respondent since his arrest in
September 2010 up until the matter was transferred from Musina Magistrate
Court to the High Court, Pretoria and continued to do so until his mandate
was terminated due to practical, logistical and financial reasons. When the
matter was transferred from Gauteng High Court, Pretoria to Limpopo High
Court, Polokwane the Second Respondent re-engaged Mr Grabler as his
legal representative.
[9] The issue of Mr Grobler being a state witness and whether he should
withdraw as attorney was earlier brought up while the criminal matter was
pending in the High Court, Pretoria after which the question whether any
ethical challenges would cause a conflict of interest and consequently
require Mr Grobler to withdraw as attorney of record, was referred to the
then Law Society of the Northern Provinces. The Law Society of the
Northern Provinces confirmed in writing that they could not find any reason
why it could be expected from Mr Grobler to withdraw as attorney of record.
[1 O] The Law Society of the Northern Provinces, after an investigation and
consideration of the complaint, concluded in their letter dated 14 February
2012, that Mr Grobler does not and did not act improperly in any manner by
continuing to represent the Second Respondent. The Law Society
concluded as follows in their letter:
" ......... is die Etiek Komitee van mening dat, op die beskikbare inligting,daar
nie van Mnr Grob/er verwag kan word om te onttrek nie"
After receipt of the letter from Law Society of the Northern Provinces Mr
Grobler proceeded to represent the Second Respondent and other co
accused.
[11] On 24 March 2010 the Second Respondent received a message that the
relevant authorities intended to do an inspection on his farm, Prachtig in
Soutpansberg. The Second Respondent was not present at the farm and he
instructed his attorney, Mr Grobler to attend the farm, as his attorney, in
order to protect his rights. Indeed Mr Grobler, in his capacity as the legal
representative of the Second Respondent attended the said compliance
inspection conducted by the officials of the South African National Parks and
the Limpopo Department of Environmental Affairs at the farm, Prachtig, on
24 March 2010.
[12] The Second Respondent was arrested in September 2010 in connection
with the pending criminal case. His first appearance in Court was on 22
September 2010. The Second Respondent and his wife (Mrs. Groenewald)
were legally represented by Mr Grobler in their bail application in the Musina
Magistrate Court. The indictment in the High Court was served on the
Second, Third and Fourth Respondents and others in 2014 for the Pretoria
High Court matter under case number CC 92/2014.
[13] On the 9 February 2024 during the first appearance in the Limpopo High
Court, Polokwane, the State (the Applicant) informed Mr Grobler that he is
number one on the list of witnesses attached to the indictment and that he
should withdraw as attorney of record. Mr Grobler did not agree to the
request for withdrawal as contemplated by the Applicant.
Issues for determination
[14] The Applicant relies on two issues to justify their request for an order to
permanently bar the First Respondent (Mr Grobler) from representing the
Second, Third and Fourth Respondents in the pending criminal trial:
14.1. That Mr Grobler attested to a statement on 4 June 2009 during bail
proceedings in a criminal case against two persons wherein he made
certain averments on behalf of one of his previous clients, Mrs
Groenewald.
14.2. The fact that Mr Grobler personally attended a compliance inspection
operation that was executed on the farm Prachtig 538 MS ,
Soutpansberg, District Musina on 24 March 2010. The compliance
inspection was done with regard to rhino related aspects and mainly
to observe the state of grazing on the farm as Mr Groenewald had put
in a tender to purchase 100 rhinos from SAN Parks during 2010.
[15] In opposing the application the Respondents contend that the relief sought
in this application is extremely prejudicial to them. That this is an attempt to
infringe on their fundamental right to legal representation as provided for in
section 35(3)(f) of the Constitution.
[16] Accordingly, the following issues are to be determined by this Court:
16.1. Whether Mr Grobler is a compellable witness; and
16.2. Whether Mr Grobler should be barred from representing the Second,
Third and Fourth Respondents in the criminal matter at hand.
Applicable Law
[17] The right to legal representation is an important right given to an accused
person by the Constitution of the Republic of South Africa, 1996.
Section 35 of the Constitution states the following:
"35 Arrested, detained and accused persons
(3) Every accused person has a right to a fair trial, which includes
the right-
(a)
(b)
(c)
(d)
(e)
(f) to choose, and be represented by, a legal practitioner, and to be informed
of this right promptly.
(g)
(h)
[18] Section 201 of the Criminal Procedure Act 21 of 1977 states the following:
"201 Privilege of Legal Practitioner
No legal practitioner qualified to practise in any court, whether within the Republic
or elsewhere, shall be competent, without the consent of the person concerned, to
give evidence at criminal proceedings against any person by whom he is
professionally employed or consulted as to any fact, matter or thing with regard to
which such practitioner would not on the thirtieth day of May , 1961, by reason of
such employment or consultation, have been competent to give evidence without
such consent: Provided that such legal practitioner shall be competent and
compellable to give evidence as to any fact, matter or thing which relates to or is
connected with the commission of any offence with which the person by whom
such legal practitioner is professionally employed or consulted, is charged, if such
fact, matter or thing came to the knowledge of such legal practitioner before he
was professionally employed or consulted with reference to the defence of the
person concerned."
[19] In this case it should be noted that Mr Grobler started to represent the Second
Respondent and the others in the pending criminal case in September 2010
upon their arrest and during the bail proceedings in the Musina Magistrate
Court and up until the case was transferred to Gauteng High Court Pretoria.
When the State drew up the indictment and enlisted Mr Grobler as a State
witness, Mr Grobler was still the legal representative of the Second
Respondent and the others.
[20] It was therefore not proper for the State to enlist Mr Grobler as a state witness
while being aware that he is the legal representative of the Respondents.
[21] Furthermore when Mr Grobler attended the compliance inspection at the
Second Respondent's farm on 24 March 2010, he did so in his capacity as
the Second Respondent's legal representative, duly instructed by his client.
Therefore, Mr Grobler cannot be a competent and compellable witness to
testify against his client.
It is trite that professional communications by client to attorney are privileged
if they are of a confidential nature and for the purpose of obtaining legal
advice.
See: S v Kearney 1964 (2) SA 495 (A) at 499E
[22] There is a strong policy consideration underlying our system of the
administration of justice which inclines the Courts not to oblige a legal
representative to testify against his own client. It is generally undesirable that
an attorney or advocate should be forced to give evidence against a person
for whom he has acted in his professional capacity.
In S v Boesman and Others 1990 (2) SACR 389 (E) at page 393 it was
held that:
"It is a cornerstone of our judicial system that there should be the utmost
freedom of disclosure to their legal advisors by persons seeking legal advice,
as only then will the legal advisors be in a position to advise them properly'
See also R v Fouchee 1953 (1) SA 440 (W) at 445-6
[23] The State does not dispute the fact that the Second Respondent (Mr
Groenewald) was not in the country during the compliance inspection on his
farm and that Mr Grabler attended the inspection as his attorney of record.
[24] What is strange in the present case is that although Mr Grabler is listed on
the indictment as a state witness, he was never interviewed by the State nor
a statement obtained from him. It is therefore not known what evidence he is
supposed to give at the trial. Moreso it is not known whether such evidence
will be relevant and admissible at the trial.
In Beyleveld v Patel NO and Others 2006 ZAECHC the defendant served
a subpoena on the Plaintiff's Counsel to give evidence against his own client
in circumstances where there is no sound reason to believe that Counsel will
be able to give admissible evidence which will advance the defence case.
The Court held that the most probable inference is that the service of the
subpoena is an abuse of the process of the Court which could justify a
punitive order for costs on a scale as on an attorney and client.
[25] With reference to section 201 of the Criminal Procedure Act, 1977 quoted in
paragraph [18] above, it is also evident from the content of the said statement
made by Mr Grobler on 04 March 2009 that Mr Grobler was already
professionally employed by Mr Groenewald and Mrs. Groenewald during the
time the said information was related to him and consequently Mr Grobler will
not be a compellable witness under the circumstances.
Conclusion
[26] I come to the conclusion that in the circumstances of this case the listing of
Mr Grobler as a witness for the State was irregular and without any legal or
factual basis for its justification. Under the circumstances it is clear that the
Applicant's application is utterly flawed in various aspects as they could not
show any real basis on which Mr Grobler should be barred from representing
the Second, Third and Fourth Respondents as well as Mr Erasmus.
[27] There remains the question of costs. As the successful parties the
Respondents are entitled to costs. It was argued on behalf of the Applicant
that this Court should order that each party pays his own costs in the event
of the application being dismissed. On behalf of the Respondents it was
argued that the Applicant be ordered to pay punitive costs.
The question of costs is in the discretion of the Court. In my view the normal
rule that a successful party be awarded costs shall apply in this case. I find
no justification for a punitive costs order.
[28] In the result the following order is granted:
1. The application is dismissed.
2. The Applicant shall pa'y costs on party and party scale.
3. The costs payable shall include the costs of Senior Counsel for drafting
the papers in this application.
/
RETIRED JUDGE PRESIDENT OF T E HIGH
COURT, LIMPOPO DIVISION
APPEARANCES
Heard on
Judgment delivered on
For the Applicant
For the Respondents
5 December 2024
13 December 2024
Adv. NT Makhubele
Office of the Director of Public
Prosecutions, Limpopo
Mr. JT Grabler
Thomas Grobler Attorneys
Polokwane