Longhurst N.O.. v Lee and Ors (HB 29 of 2006) [2006] ZWBHC 29 (22 March 2006)

STANLEY BRUCE ALFRED LONGHURST N. O. Judgment No. HB 29/06 Case No. HC 498/06 Versus QUENTINE LEE And VISION SITHOLE And NKOSANA NCUBE And THE REGISTRAR OF DEEDS IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 13 AND 23 MARCH 2006 Adv. P Dube for the applicant A Sibanda for 1st respondent B Ndove for 2nd respondent S S Mazibisa for 3rd respondent Urgent Chamber Application NDOU J: At the commencement of the proceedings 3rd respondent objected to Advocate Dube representing the applicant on the basis of conflict of interest. It is common cause that in cross- reference file under cover of HC 494/05 the 3rd respondent sued the 1st and 2nd respondents concerning the same property in casu. The matter involves the same facts and the same parties. Advocate Dube drafted heads of argument. Ideally, it would have been better for counsel to have sorted this issue without going this far. But since they failed I have to determine it HB 29/06 on its merits. The conflict of interest rule is defined in Legal Ethics by E A L Lewis (1982) at page 50 as follows: “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.” As alluded to above, Advocate Dube drafted heads of argument in this same matter on behalf of 3rd respondent. She has indicated from the bar, that she did so from pleadings filed of record in that cross-application. She stated that she did not, however, have access to the instructing legal practitioner’s files. She did not interview 3rd respondent either. In the current application she is instructed to appear on behalf of the applicant who is suing, inter alia, 3rd respondent concerning the same property and the same facts placed before her on behalf of 3rd respondent. Advocate Dube says that she did not have access to the instructing legal practitioner’s files in respect of 3rd respondent. I have no reason to doubt this statement. Dealing with a similar situation the learned author Lewis, supra at pages 53-54 observed: HB 29/06 “If a practitioner wishes to act against a former client or client in circumstances where this is otherwise permissible, whether the matter is contentious or not, he must beware of the possibility that some information obtained under the seal of professional confidence may be or become germane to the matter in hand. His duty to the client or former client absolutely precludes his disclosure or use in any degree of that information without the latter’s consent. His duty to the one for whom he proposes to act (the instructor) is to do his best on the instructor’s behalf and might command that disclosure or that use were it not for the prohibition. In this dilemma he may not act. This most important question is authoritatively dealt with … in Robinson’s case [Robinson v Van Hulsteyn, Feltman & Ford 1925 AD 12] in which the attorney were completely exonerated … The judgment in this case is of paramount importance… ‘In order to advise a client as to his legal position the solicitor must know all the circumstances of his client’s case, and therefore a client is often compelled to reveal to his solicitor the most intimate circumstances of his life. The solicitor may thus become the repository of the most vital secrets of his client. These confidences reposed in him he may not divulge, and if he does the court will punish him for his breach of duty towards his client. If a solicitor who in the course of advising a client has become possessed of his client’s secrets is engaged by another person to act against his former client his knowledge of the latter’s secrets may be of great advantage to his client’s opponent. Although the solicitor may conscientiously endeavour to do his duty to his new client yet he may find himself in an invidious position and his knowledge of the secrets of his former client may unconsciously affect him in doing his duty towards the other. In order to avoid such dilemma the court will restrain a solicitor in whom confidences have been reposed by a client from acting against such client where it is made clear to the court in the words of Cozens- hardy MR “that real mischief and real prejudice will in all human probably result if the solicitor is allowed to act”’ In other words it is manifestly incorrect for a legal practitioner to utilise in favour of one client information gleaned from another client – see also Professional Practice for Attorneys, F Van Blommestein at page 65, R v Chisvo & Ors 1968(2) RLR 54(A); Benmac Mfg Co (Pvt) Ltd v Angelique Entprs (Pvt) Ltd 1988(2) ZLR 52(H) and Pertsilis v Calcaterra & Anor 1999(1) ZLR 70(H). In the Pertsilis case at 74B-D SMITH J stated: HB 29/06 “Legal practitioners owe their clients a duty of loyalty. They are duty bound to advance and defend their client’s interests. A legal practitioner is expected to devote his or her energy, intelligence, skill and personal commitment to the single goal of furthering the client’s interests as those are ultimately defined by the client – see Modern Law Ethics by Charles W Wolfram, 1986 ed p 578 at 10.3.1. A legal practitioner who represents the adversary of his own client in litigation would clearly be violating his or her duty of loyalty and the common law rules against conflict of interests. Nearly 150 years ago, in the American case of Stockton v Ford 52 US (11How) 232; 247; 13 L Ed 676 (1850) the fundamental and important point of the place and role of legal practitioners was made in the following words: “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.” The courts seriously and jealously guard these principles of conflict of interest – S v Sussex Justices Ex parte McCarthy [1924] 1kb 256. In casu, I must state that I have confidence that Advocate Dube will not use the information gleaned from 3rd respondent at the time she prepared heads of argument in HC 494/05 to advance the case of the present applicant against him (3rd respondent) However, my confidence in the ethical conduct of Advocate Dube will only solve but one of the two problems arising from the facts of this matter. The second problem is that nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Therefore, the courts have to regulate the conduct of legal practitioners and ensure that they comply with the high standards HB 29/06 that are required of them. Justice must not only be done but it must manifestly be seen to be done. Therefore, a legal practitioner must decline or cease to act, not only where the interests of a client are prejudiced if the legal practitioner continues to act for the other client, but also where the client’s interests might appear to be prejudiced – Pertsilis case, supra, at 77G-78B and Chisvo case, supra at page 55. The highlighted rule applies to the facts of this case. Third respondent would be fully justified in fearing that his interests would be prejudiced by his prior acquaintance with Advocate Dube when she drafted the above-mentioned heads of argument. The mischief is rightly anticipated. I fully understand and sympathise with the alarm and concern experienced and expressed on behalf of the 3rd respondent. Accordingly, I cannot allow Advocate Dube to continue to act for the applicant in this matter and I order her to cease to act for the applicant. There shall be no order as to costs. Ben Baron & Partners, applicant’s legal practitioners Joel Pincus Konson & Wolhuter, 1st respondent’s legal practitioners T Hara & Partners 2nd respondent’s legal practitioners Cheda & Partners, 3rd respondent’s legal practitioners