GOWORA J: On 9 January 2007 the plaintiff herein instituted
proceedings against the defendant by way of summons for an order for its
ejectment from three immovable properties. The defendants filed papers in
defence of the claim and in due course the matter was referred to a judge in
chambers for the holding of a pre-trial conference. Issues for trial were
agreed by the parties at the pre-trial conference and thereafter the matter was
referred to trial. When the matter was called for trial Mr Uriri on behalf of the defendant indicated to the court that the
defendant had a preliminary issue to be dealt with before the trial could
proceed. The submission by Mr Uriri
was that the court should find that it was improper for Mr Paul to represent the plaintiff in the suit.
The first
point raised on this aspect was that after the defendant had entered appearance
to defend it had, in its plea, taken issue with the authority of those persons
seeking to represent the company in the suit and that the issues at the
pre-trial conference had captured this is a point of contention between the
parties to be resolved at trial. An amended plea filed by the defendant has the
following allegations in relation to the alleged lack of authority:
1.
That a Mr Viera who has purported to institute
these proceedings has not been authorized by plaintiff to bring the current
proceedings
2.
That in any event, no resolution has been passed
by Plaintiff's current directors to bring a claim against the defendant because
defendant is not in occupation of the premises in question.
3.
That the premises in question are lawfully
occupied by the current directors and shareholders of the plaintiff and that
plaintiff can not seek its own eviction as there is no cause for such action.
At the pre-trial conference one of the
issues for trial was recorded as follows:
Has Mr Viera transferred his shares and directorship to
defendant or its representatives.
The contention by Mr Uriri is that the question of who the directors and shareholders of the plaintiff are is of the moment in the
resolution of the dispute between the parties as the actions of the company are
directed by the shareholders through its directors. He contends further that as
of the 14th June
2007 the defendant's nominees had been appointed as directors of
the plaintiff and were making decisions on behalf of the plaintiff. According
to counsel, this court had already made a factual finding on this in a judgment
by CHATUTKUTA J in Central African Building Construction Co (Pvt) Ltd v
Construction Resources Africa (Pvt) Ltd HH 37/09. At p 4 of her judgment the learned judge
stated as follows:
'…………….As from the time the agreement of
sale was concluded, the respondents were running the affairs of the applicant.
The applicant was aware that the 2nd and 3rd respondents
were holding themselves out as its directors. In Case No HC 109/07 the 2nd
and 3rd respondents pleaded that they were the applicant's
directors.”
It is clear that the court did not, in that
case, conclude that the respondents therein were directors of the applicant but
that they were holding themselves out as directors. It is obvious therefore
that the issue of the directorship of the plaintiff herein is central to the
resolution of the dispute in the main claim. The actions of Mr Paul for and on
behalf of the company therefore assume importance.
The complaint against Mr Paul is linked to the following events.
After the pre-trial conference, Mr Viera issued a proxy to Mr Paul, who on the basis thereof called a
meeting of shareholders attended only by himself and at which a resolution was
issued by himself appointing himself as director of the plaintiff. Consequent
upon that appointment Mr Paul in the
capacity of chairman of the directors' meeting then issued a resolution which
sought to ratify the institution of the proceedings before me. The meeting also
sought to declare the appointment of the defendant's nominees as directors as
being null and void. The contention therefore is that Mr Paul was a participant in further happenings that purported to have
a bearing on the issues before the court and that the defendant has considered
issuing a subpoena docus tucum for
the production of minute books and to testify on the circumstances surrounding the various acts
supposedly done on behalf of the plaintiff by him. The further contention by the
defendant is that it would wish to adduce evidence that the unauthorized
conduct of Wintertons in instituting proceedings on behalf of the plaintiff was
ratified through a resolution passed by Mr Paul.
Mr Paul
has contended that he would not call himself as a witness and that it would be
improper for the defendant to subpoena him as such. He argued that the summary
of evidence clearly revealed the evidence that is sought to be led on the part
of the plaintiff and he is not one of the witnesses. He accepted the contention
by Mr Uriri that the issue of who the
shareholders and directors are is for determination by the trial court and
contended that the shareholders nominate the directors. He submitted that at
the pre-trial conference the defendant had belatedly raised for the first time
the issue that plaintiff's representatives, namely Viera Senior and Viera Junior
were no longer directors. He confirms that after the pre-trial conference there
was an Annual General Meeting held to ratify the actions of Wintertons in
instituting the action. Mr Paul is of
the view that that meeting, contrary to the assertions of Mr Uriri is not vital to the issues before
this court.
At para 68, p 156,
Lewis in his book Legal Ethics says:
“In Supreme Court actions the entry of an attorney in the into
the witness-box is by no means uncommon, either because the evidence he has to
give, though expected ab initio, was
of a formal nature only (i e not a grave part of the main contention rendering
withdrawal essential), or because events from the initiation of proceedings up
to trial were not so patterned as to avoid the need for his evidence. In such
circumstances it may become the duty of the attorney to give evidence; and if
counsel finds it necessary to call him he certainly must not seek to avoid
testifying; even to hint to the client that he would rather not give evidence
would be reprehensible. The suggestion is made earlier in this paragraph that
evidence of the attorney which is a grave part of the main contention might
render it essential that he did not act. The reason for this and the picture
presented will be plain to any practitioner experienced in the handling of
Supreme Court litigation……………………………….................................................
………………………………………………………………………………………..
In those circumstances that attorney should
certainly not act as attorney for the defendant in the action brought by the
corporation. He is far too near the matter to exercise the necessary judgment
in advising a client respecting the conduct of the suit let alone its possible
settlement.”
In Bozimo & and Development Co P/L v First Merchant Bank of Zimbabwe & Ors,
CHATIKOBO J in considering an objection to the appearance as counsel in the
matter before him by a chairman of the applicant opined that due to the
relationship of the legal practitioner of the applicant with the myriad affairs
of the companies that he was chairman of and with whose legal brief the legal
practitioner was seized, he would not permit him to appear fro the same as
counsel but would allow him to appear as an agent of the applicants.
In our jurisdiction a legal
practitioner is an officer of the court and as such the court has jurisdiction
over the said legal practitioner and in the event that it is established that the
legal practitioner has performed acts or actions that are inconsistent with the
legal practitioner's duty to the court, then it is within the power of the
court to sanction such legal practitioner. In the case before me there can be no
talk of a conflict of interest on the part of Mr Paul. There is, however, clear evidence on his part of a breach of
his duty to the court.
He has always acted as the
legal practitioner for the plaintiff in relation to its dispute with the
defendant's representative. At the pre-trial conference in June 2007 he was
aware that the most burning issues for determination in the trial related to
the shareholding and to the directors of the company. A legal practitioner's
duty is to protect the interests of his client and to give legal advice. It is
not the function of the legal practitioner to then step into the shoes of the
client and perform, on behalf of his client, acts that are materially related
to the dispute before the court in an endeavour to buttress the case of his
client. This is especially reprehensible when one takes into account the fact
that the question of the plaintiff's authority to institute the current
proceedings had been raised with Mr Paul
and he was aware that this alone could damage the success of the plaintiff's
claim. Notwithstanding this fact and his legal knowledge, and, more importantly,
his duty to the court, Mr Paul had
the temerity to hold a meeting attended only by himself as director of the
company and at which meeting he issued a resolution in terms of which his
actions as a legal practitioner in instituting the proceedings were ratified by
himself. In addition to this, a resolution passed by Mr Paul under the guise of director of the plaintiff sought to nullify
the appointment of defendant's nominees as directors. Whether their supposed
appointment was irregular or not was not an issue that he was empowered, as a
legal practitioner, to deal with legally. This particular action, if true,
would cast a very serious light on the conduct of Mr Paul as a legal practitioner, especially in light of the
surrounding circumstances of the case, taking into account that that was one of
the issues for determination at trial. Even if it had transpired that the
appointment had been irregular for a legal practitioner to then don his
client's mantle and rectify the irregularity by nullifying the appointments
amounts to serous misconduct. As was said by WESSELS JA in Robinson v van Hulsteyn &
Ors :
“According to our law, a solicitor is an officer of the Court,
the Court exercises jurisdiction over him and will see that in the conduct of
his professional work he displays towards the Court and towards his clients a
very high standard of conduct”
The conduct of Mr Paul towards the court cannot in the
instant case be described as being of a very high standard. He has aligned
himself so closely with his client's case that this court can be forgiven for
stating that he has displayed an interest in the case going beyond that of a
legal practitioner. In HH 37/09 an application brought by the plaintiff against
the defendant for an interdict, the founding affidavit was deposed to by Mr Paul in his capacity as a director of
the plaintiff. I wish to associate myself with the views of CHEDA J in Chafadza v Edgars Stores Ltd & Anor to
the following effect:
“To my mind, it is highly undesirable to either attest to an
affidavit or sign an urgent certificate for and on behalf of a client who is
being represented by his firm as such lawyer clearly has an interest in the
matter at hand.”
It seems to me that the contention
of the defendant that the conduct of Mr Paul
after the pre-trial conference was such
that it has contemplated serving him with a subpoena has merit. The court has
wide powers in regulating the conduct of the legal practitioners over which it
has jurisdiction. The power reposed in the judge is not just to control and
direct the proceedings but also to ensure at the end of the day that justice is
done to all parties to the dispute. Where therefore, in circumstances where the
actions of a legal practitioner may be such th at he may be called as a witness
as may happen in this case, it would be undesirable and indeed not in the
interests of justice, if a legal practitioner who should be an important
witness in the matter in hand is allowed to act for a party to the dispute. It
is important that the legal practitioner should at all time retain his independence
in relation to his client and the litigation which is being conducted. If he is
to give important evidence in the circumstances where his credibility may be
called into question, his independence as a professional adviser to his client
in the matter may be affected. If he is to testify as a witness he acquires an
interest in the matter which may make it difficult for him to discharge his
professional duty to his client, and to this must be added the fact that his
impartiality may be suspect due to his being a legal practitioner for one of
the parties to the dispute. The authors Hoffman & Zeffert 4ed in their book
The South African Law of Evidence state at p378:
“The attorney or counsel acting for a party is also not an
incompetent witness, but it is similarly undesirable that he should give
evidence on anything which is a matter of controversy since this might indicate
a degree of partisanship incompatible with his duty to the court.”
In assuming the mantle of
his clients and accepting the proxies by which he then held meetings and passed
resolutions that had a direct bearing on matters in hand, Mr Paul clearly showed a partisanship with
the case of the plaintiff in manner that is incompatible with his duty to the
court. If he is called to give evidence this would be irregular indeed as a
legal practitioner is instructed to advise his client, and he cannot be a legal
adviser and a witness. He can only assume one role not both.
In the premises in view of
the involvement by Mr Paul in matters
of the plaintiff which have a direct bearing on this trial, it would in my view
be irregular for him to continue acting for the plaintiff. It would also I
believe not be in the interests of justice. I therefore accede to the
application by the defendant and I direct that Mr Paul stop acting for the plaintiff in this trial.
The application is therefore granted as
prayed.
Wintertons, legal
practitioners for the plaintiff.
Kantor & Immerman, legal practitioners for the defendant.
