THE SUPREME COURT OF NAMIBIA
NO.: SA 9/2012
15 NOVEMBER 2013
the matter between:
WITVLEI MEAT (PTY)
ATLANTIC MEAT MARKET (PTY)
MARKETLINK NAMIBIA (PTY)
MARKETLINK INVESTMENTS (PTY)
DISCIPLINARY COMMITTEE FOR LEGAL
LAW SOCIETY OF
JA, CHOMBA AJA and O’REGAN AJA
03 July 2013
AJA (MAINGA JA and CHOMBA AJA concurring):
is an appeal against an order of the High Court in which the High
Court dismissed an appeal in terms of s 35 of the Legal Practitioners
Act, 15 of 1995 (the Act). The case concerns the important issue of
the duties of loyalty and confidentiality owed by legal practitioners
to their clients.
April 2010, the six appellants complained to the Law Society that
Koep and Partners, a firm of legal practitioners based in Windhoek
and the second respondent in this appeal (the legal firm) had acted
in conflict with their duty to the six appellants when they took
instructions from the fifth and sixth respondents, Fatland Jaeren AS
and Brodr. Michelsen AS, to institute shareholder litigation against
first appellant, Witvlei Meat (Pty) Ltd. The fifth and sixth
respondents are minority shareholders in the first appellant.
Law Society referred the complaint to its Disciplinary Committee for
Legal Practitioners, established in terms of s 34 of the Act. On 6
July 2011, the Disciplinary Committee informed the appellants that
their complaint did not disclose a prima
case of misconduct.
High Court proceedings
on 17 August 2011, the six appellants launched proceedings in the
High Court seeking a declaration that the complaint lodged with the
Law Society does disclose a prima
case of unprofessional, dishonourable or unworthy conduct within the
meaning of the Act, an order instructing the Disciplinary Committee
to hear the application and an interdict restraining the legal firm
from accepting any instructions which would require them to provide
advice or institute litigation against the six appellants’
the exchange of affidavits, the appellants sought to adumbrate the
facts that had been set out in the complaint that they had originally
lodged. The respondents objected to this, and made application
for the new factual allegations in the affidavits to be struck out.
The High Court granted the respondents’ application, and struck
out the relevant aspects of the affidavit relying upon the decision
Professions Council of SA v De Bruin.
its judgment delivered on 20 February 2012, the High Court found that
the Disciplinary Committee had been correct in concluding that on the
record before it the complaint did not disclose a prima
of misconduct. The High Court accordingly dismissed the
application with costs.
March 2012, the appellants noted an appeal against the whole of the
judgment and order of the High Court. The appeal record was
filed on time, but due to an oversight, appellants did not lodge
security for costs of the appeal timeously. Once this oversight was
discovered, a dispute arose between the parties as to the quantum of
security that had to be filed. The dispute was resolved after
application to the Registrar of the High Court and security of N$30
000 was paid on 2 July 2012.
that in terms of the rules, the late filing of security had resulted
in the lapsing of the appeal, the appellants launched applications
seeking condonation for the late filing of security for the costs of
the appeal, as well as for reinstatement of the appeal on the same
day that the security was finally paid. On 12 April 2013,
appellants made application to lodge a further affidavit in support
of the applications for condonation for the late filing of security
and the reinstatement of the appeal. The new affidavit set out the
appellants’ averments in relation to the prospects of success
on appeal. The respondents opposed the reinstatement
application as well as the lodging of the new affidavit.
in their notice of appeal, appellants noted an appeal against the
whole of the judgment and order of the High Court, in their written
heads of argument and in oral argument, the grounds of appeal were
narrowed to the question whether the Disciplinary Committee was
justified in coming to the conclusion that the complaint lodged
against the second respondent did not disclose a prima
case of misconduct.
Issues for decision
the following issues arise for decision:
the application to lodge a new affidavit in support of the
application for condonation of late filing of security for costs of
the appeal, and the accompanying application for reinstatement of the
appeal, be granted?
Should the application for condonation of the late filing of security
and the accompanying application for reinstatement of the appeal, be
What is the nature of the Court’s power under s 35(3) of the
What was the relationship between the legal firm and the first and
sixth appellants as established on the record before the Disciplinary
What are the relevant legal principles?
Applying the legal principles to the facts on the record before the
Disciplinary Committee, was a prima facie case of misconduct
Should any relief be granted?
Should costs be ordered?
issue in the applications for condonation of the late filing of
security and reinstatement of the appeal is the question whether
appellants have prospects of success upon appeal. It will,
therefore, be convenient to deal with issues (iii), (iv), (v) and
(vi) before turning to questions (i) and (ii) which relate to
What is the nature of the Court’s
powers under s 35(3) of the Act?
order to answer the key question in this appeal, whether the
Disciplinary Committee was correct in concluding on the record before
it that appellants had not disclosed a prima
case of misconduct against the legal firm, it is necessary briefly to
analyse the relevant provisions of the Act.
IV of the Act provides for the discipline and removal of legal
practitioners from the Roll.
Section 32 provides that a legal practitioner may be struck off the
Roll by the High Court ‘if he or she is guilty of
unprofessional or dishonourable or unworthy conduct of a nature or
under circumstances which, in the opinion of the Court, show that he
or she is not a fit and proper person to continue to be a legal
of the Act provides that an application to strike a legal
practitioner off the Roll shall be made by the Disciplinary
Committee. The composition and establishment of the
Disciplinary Committee is provided for in s 34 of the Act, which
states that the Disciplinary Committee shall consist of four legal
practitioners appointed by the Council of the Law Society and one
person appointed by the Minister of Justice.
Section 35 provides that the Disciplinary Committee shall hear
allegations of alleged unprofessional or dishonourable or unworthy
conduct on application of the Council of the Law Society or a person
affected by the alleged conduct.
35(2) then provides that if the Disciplinary Committee thinks that an
application made to it does not disclose a prima
case of unprofessional or dishonourable or unworthy conduct, the
Committee may summarily dismiss the application. Section 35(3)
then provides that:
applicant who is aggrieved by the decision of the Disciplinary
Committee under subsection (2) may appeal to the Court against that
decision, and the Court may either confirm the decision of the
Disciplinary Committee or order the Disciplinary Committee to hear
the application and deal with it. . . .’
appellants’ application to the High Court was founded on s
35(3) and the question arises how a court should approach the task of
determining the ‘appeal’ contemplated by the subsection.
and Others v Johannes NO and Others,
in a judgment that has been cited with approval by many courts on
many occasions, Trollip J held that the word ‘appeal’ has
at least three different connotations. The first is an ‘appeal
in the wide sense, that is, a complete re-hearing of, and fresh
determination on the merits of the matter with or without additional
evidence or information’.
The second is an appeal ‘in the ordinary strict sense, that is
a re-hearing on the merits but limited to the evidence or information
on which the decision under appeal was given, and in which the only
determination is whether that decision was right or wrong’.
And the third, is a review, ‘that is a limited re-hearing with
or without additional evidence or information to determine, not
whether the decision under appeal was correct or not, but whether the
arbiters had exercised their powers and discretion honestly and
High Court in this case, relying on a decision of the South African
Supreme Court of Appeal, Health
Professions Council of South Africa v De Bruin,
held that an appeal to the Court in terms of s 20 of the Health
Professions Act, 56 of 1974, was an ‘appeal in the ordinary
that is a re-hearing on the merits limited to the evidence on which
the decision under appeal was given. Section 20 of the Health
Professions Act has a broader application than s 35(3) of the Act, as
it provides that a person ‘who is aggrieved by any decision of
the [Health Professions] council, a professional board or a
disciplinary appeal committee, may appeal to the appropriate High
Court against such decision’. Although the appeals
provided for in s 35(3) are narrower in ambit than those contemplated
in s 20, they are nevertheless similar in that they are appeals from
the decisions of professional bodies in relation to the regulation of
Given the similarity of function and context between s 20 of
the Health Professions Act and s 35(3) of the Act under consideration
here it is appropriate that an appeal in terms of s 35(3) should also
be considered to be an appeal ‘in the ordinary sense’.
approach of the High Court in this regard can therefore not be
faulted. Nor can its decision that the question whether a complaint
before the Disciplinary Committee had disclosed a prima
case of ‘unprofessional or dishonourable or unworthy conduct’
had to be determined on the record of the proceedings that had been
placed before that Committee. The question for this Court to
determine, therefore, is whether the terms of the complaint put
before the Disciplinary Committee did disclose a prima
case of misconduct. In considering this question, the Court must
first consider what the facts were on the record before the
Disciplinary Committee and it is to this question to which this
judgment now turns.
was the relationship between the legal firm and the first and sixth
appellants as established on the record before the Disciplinary
complaint was lodged by Mr FH Badenhorst, the sixth appellant, in his
personal capacity, as well as in his representative capacity as
Managing Director of Witvlei Meat (Pty) Ltd, the first appellant, and
as Director of Atlantic Meat Market (Pty) Ltd, the second appellant,
Marketlink Namibia (Pty) Ltd, the third appellant, and Marketlink
Investments (Pty) Ltd, the fourth appellant. Mr Badenhorst also
lodged the complaint on behalf of the first, second, third and fourth
appellants, and on behalf of Mr Sidney Martin, in his representative
capacity as a director of the second appellant. Mr Martin is
not a party to the proceedings before this Court.
complaint states that the legal firm ‘created a conflict of
interest’ with the complainants by accepting a new instruction
from the fifth and sixth respondents in relation to a dispute between
those respondents and the first appellant of whom the sixth appellant
is Managing Director. The result, it is argued, is that the legal
firm is likely to be ‘obliged to act against existing clients
in order to diligently protect the new clients’ best
interests’. The complaint states that the legal firm had,
since 2004/5, had an ‘uninterrupted’ professional
relationship of legal practitioner and client with Mr Badenhorst, as
well as with second, third and fourth appellants.
to the complaint was a letter addressed to the first appellant by the
legal firm on 17 July 2009. The letter states that the legal
firm was acting for the fifth and sixth respondents who were
‘concerned in the way the company [the first appellant] has
been managed’, stating that the management of the company is
‘running the affairs of the Company in a manner which is
unfairly prejudicial, unjust or inequitable to the Company as well as
to our clients’. Accordingly, the letter continued, the legal
firm had been instructed to launch an investigation into the affairs
of the company, if necessary, with the assistance of a forensic
auditor. The letter continues by requesting certain disclosures
of documents and information.
complaint also annexed a further letter by the legal firm, dated 24
July 2009. Although it is addressed to the first appellant, it is
marked for the attention of Mr Badenhorst, the sixth appellant, and
from its contents, the letter seems to be directed at Mr Badenhorst
himself. The letter states that
. . you are acting in breach of agreement. Your actions may lead to
serious damages being claimed against you personally, as you have no
authority from Witvlei Meat (Pty) Ltd to act in the manner you are.
are aware of the content of the shareholders agreement, which
agreement is in existence and binding on all shareholders. Any
attempt by you to breach that agreement will be dealt with
is clear from the complaint that the legal firm had taken a brief
from the fifth and sixth respondents to act on behalf of the two
respondents in relation to alleged failures of management in the
first appellant of which the sixth appellant is the managing
director. Although the primary focus of the letter is the first
appellant, the sixth appellant is clearly directly involved in the
pending dispute, as the letter of 24 July 2009 makes plain.
complaint and the initial affidavits in this application suggested
that the conflict of interest arose between all six appellants and
the legal firm, but in argument before this Court, appellants made
clear that they were pursuing only the question of a conflict of
interest between the legal firm and the first and sixth appellants.
This narrowing of the ambit of the complaint was appropriate,
as the record of the proceedings before the Disciplinary Committee
does not suggest that the legal firm was undertaking any mandate to
act against the second, third, fourth and fifth appellants.
legal firm lodged a response to the complaint comprising two
affidavits made by two partners in the firm, Mr R Mueller and Mr P
Koep. No rebuttal to these affidavits appears to have been lodged by
the appellants. In his affidavit, Mr Mueller acknowledged that he had
acted as a correspondent in two pieces of litigation, on instructions
from a firm of South African attorneys, for the second, third, fourth
and sixth appellants in relation to litigation that had arisen
between these three companies and Standard Bank in relation to events
that had taken place between 2003 and 2004. The sixth appellant’s
involvement in the litigation arose from his signature of a deed of
surety. Mr Mueller noted that his role as a correspondent was
‘to take instructions from the instructing attorney in South
Africa, to draft letters, file documents, attend to the necessary
notices in terms of the Rules of the High Court of Namibia and so
forth’. He admitted that he had some draft financial statements
of the second and third appellants in his possession, but that they
date to the year 2004 and disclose no particulars relating to
directors of the second, third and fourth appellants nor any dealings
between the second, third and fourth appellants and the first
Mueller also states that he has no confidential information which
might prejudice any of the appellants and that the complaint does not
identify any such confidential information. He states that in
his view there is no conflict of interest between his role as
correspondent in the litigation involving second, third, fourth and
sixth appellants with Standard Bank, and the instruction his partner,
Mr Koep, had received from fifth and sixth respondents relating to
the first appellant. He states that he has never been privy to
any financial statements of Witvlei (the first appellant) and has
‘absolutely no knowledge of the internal procedures of Witvlei
or how this company is run’.
his part, Mr Koep stated that he had first obtained instructions from
fifth and sixth respondents in 2007 and has acted for them since. He
denies that any conflict of interest exists, and also denies that the
legal firm has in its possession any confidential information
relating to the first appellant or the sixth appellant.
facts set out on the record before the Disciplinary Committee do not
establish that the legal firm has ever acted for the first
appellant. However, the legal firm has acted for the sixth
appellant in a limited fashion: as a correspondent for a South
African firm of attorneys who are acting on behalf of the sixth
appellant in respect of litigation against Standard Bank. Can
it be said on the basis of the relationship between sixth appellant
and the legal firm that a conflict arose when the legal firm took
instructions from the fifth and sixth respondents? In order to
answer this question, it will be necessary to consider briefly the
relevant legal principles.
relevant legal principles
32 of the Act provides that a legal practitioner may be struck off
the Roll by the High Court ‘if he or she is guilty of
unprofessional or dishonourable or unworthy conduct of a nature or
under circumstances which, in the opinion of the Court, show that he
or she is not a fit and proper person to continue to be a legal
practitioner’. The Rules of the Law Society of Namibia
provide some guidance as to what will constitute ‘unprofessional
or dishonourable or unworthy conduct’ within the meaning of s
32. Rule 21(1)(a)
of those Rules states that it will be a breach of the required
professional legal standards if a practitioner is guilty of ‘a
breach of faith or trust in relation to his or her client’.
trust that a client reposes in his or her legal representative is of
foundational importance to the administration of justice and
confidence in the legal profession. As Binnie J reasoned in a
decision of the Supreme Court of Canada:
. . the duty of loyalty – is
with us still. It endures because it is essential to the
integrity of the administration of justice and it is of high public
importance that public confidence in that integrity be maintained. .
. . Unless a litigant is assured of the undivided loyalty of the
lawyer, neither the public nor the litigant will have confidence that
the legal system, which may appear to them to be a hostile and
hideously complicated environment, is a reliable and trustworthy
means of resolving their disputes and controversies.’
determining the ambit of the duty of loyalty, its functional
importance to the integrity of the administration of justice remains
key. As Binnie J remarked in the same case:
an era of national firms and a rising turnover of lawyers, especially
at the less senior levels, the imposition of exaggerated and
unnecessary client loyalty demands, spread across many offices and
lawyers who in fact have no knowledge whatsoever of the client or its
particular affairs, may promote form at the expense of substance, and
tactical advantage instead of legitimate protection. Lawyers
are servants of the system, however, and to the extent their mobility
is inhibited by sensible and necessary rules imposed for client
protection, it is a price paid for professionalism. . . .Yet it
is important to link the duty of loyalty to the policies it is
intended to further. An unnecessary expansion of the duty may
be as inimical to the proper functioning of the legal system as would
its attenuation. The issue always is to determine what rules
are sensible and necessary and how best to achieve an appropriate
balance among the competing interests.
understood, the duty of loyalty is an aspect of the fiduciary
obligation owed by a legal practitioner to his or her client.
The duty of loyalty requires legal practitioners to act
disinterestedly and diligently in their clients’ interests.
Implicit in the duty is the principle that a legal representative
cannot act on both sides of a dispute, at the very least without the
explicit consent of both clients. The duty of loyalty is ordinarily
understood to lapse for most purposes once the relationship of lawyer
and client has ended.
A second aspect of the fiduciary duty a legal practitioner owes a
client is the duty to preserve confidentiality, and this aspect of
the fiduciary duty is generally understood to survive the termination
of the lawyer-client relationship.
Lord Millett formulated it in the following words in a leading
decision of the House of Lords in the United Kingdom:
. . the duty to preserve confidentiality is unqualified. It is a duty
to keep information confidential, not merely to take all reasonable
steps to do so. Moreover, it is not merely a duty not to
communicate the information to a third party. It is a duty not
to misuse it, that is to say, without the consent of the former
client to make any use of it or to cause any use to be made of it by
others otherwise than for his benefit. The former client cannot
be protected completely from accidental or inadvertent disclosure.
But he is entitled to prevent his former solicitor from exposing him
to avoidable risk; and this includes the increased risk of the use of
the information to his prejudice arising from the acceptance of
instructions to act for another client with an adverse interest in a
matter to which the information is or may be relevant.’
duties of loyalty and confidence are clear in principle, but
difficulties arise in their application. Where difficulties of
application arise, Judge Binnie’s guidance is useful: a court
should ‘determine what rules are sensible and necessary and how
best to achieve an appropriate balance among the competing
Two of the difficult issues of application of the duties of loyalty
and confidentiality that have arisen are: Do the duties require
that a legal practitioner never act against a former client?
And do they require a legal practitioner never to act against a
current client, no matter if the matters are unrelated and no matter
how attenuated the current relationship with the client is?
respect of the question of acting against former clients, the answer
often turns on the assessment of the risk of the disclosure of
confidential information that may arise. In the early case of
v Ellis Munday & Clarke,
the House of Lords set a test that, although somewhat differently
formulated by each of the three members of the Court, has been
characterised as whether the circumstances give rise to ‘a
reasonable probability of mischief’.
The South African courts adopted the test set in this English case in
an early decision.
recently, courts across the Commonwealth have developed more
stringent tests to determine when a legal practitioner may accept
instructions to act against a former (or existing) client.
In the United Kingdom in Prince
the House of Lords established the principle that a court must be
satisfied ’that there is no risk of disclosure’,
although the risk must ‘be a real one, and not merely fanciful
In Canada, the Supreme Court has held that the existence of a
lawyer-client relationship gives rise to two rebuttable presumptions,
that the former client in the course of the retainer will have
communicated confidential information, and that lawyers who work
together share confidences.
If these presumptions are not rebutted, the lawyer will be prevented
from acting for the new client.
And in New Zealand, by majority, the Court of Appeal established a
balancing test which requires a Court to establish whether
confidential information is held, which if disclosed, would adversely
affect the former client’s interests; whether, viewed
objectively, there is a real or appreciable risk of disclosure; and
whether the Court’s discretionary power to disqualify should be
exercised given the importance of the fiduciary relationship between
lawyer and client and in the light of a client’s interest to
choose a lawyer, as well as practical considerations of mobility
within the profession.
important for the promotion of confidence in the fair administration
of justice that both the duty of loyalty and the duty of confidence
are protected and affirmed. But in applying the principles
reflected in these duties, a court needs to recognise that the
context of any particular legal relationship needs to be taken into
account. It is of particular importance that a client be protected
from the inadvertent (or deliberate) use of confidential information
that he or she may have shared with a legal representative to advance
the interests of either the legal representative or another client.
A stringent test to protect confidentiality is therefore
appropriate. It is this principle that has underpinned the
introduction of more rigorous principles to protect confidentiality
across the Commonwealth, and Namibia should find an appropriately
rigorous approach to protect confidential information. It
is also important that clients can be assured of the undivided
attention of their legal practitioner, and so the duty of loyalty
requires legal practitioners not to act for more than one party in
the same dispute, where the interests of those parties diverge.
determining the proper approach to the duties of loyalty and
confidence, it should be borne in mind that Art 12 of the
Constitution requires that litigants be afforded a fair hearing
before an independent court in the determination of their civil
rights and obligations. In the light of Art 12 of the
Constitution, and drawing on the guidance provided by the
Commonwealth jurisprudence discussed above, the following principles
should guide legal practitioners in observing the duty of loyalty and
the duty of confidentiality that they owe their clients. These
principles are not intended to be exhaustive and may well be
supplemented by other principles as the law develops.
the duty of loyalty imposes an obligation upon a legal practitioner
to act diligently and devotedly in the interests of the client. The
duty of loyalty subsists as long as the relationship of legal
practitioner and client exists, but is terminated when that
relationship is terminated. The duty implies that a legal
practitioner may not ordinarily act against an existing client in
respect of a matter which is related to any matter upon which the
legal practitioner has advised, or acted on behalf of, the existing
client, without first obtaining the written consent of that client.
If a matter involves a contentious dispute between an existing client
and the new client, even written consent may not be sufficient to
render the practice legitimate.
This is not an issue in this case and need not be decided now.
it is a breach of loyalty for a legal practitioner to act against an
existing client in relation to a matter unrelated to any matter upon
which the legal practitioner has advised, or acted on behalf of the
existing client, without first obtaining the client’s consent,
will depend on the circumstances of each case. Those
circumstances include the nature and extent of the relationship
between the legal practitioner and the existing client, as well as
the nature of the new instruction, and the question whether, viewed
objectively, the existing client has a reasonable expectation of
loyalty from the legal practitioner such that the legal practitioner
should seek his or her consent before accepting the new instruction.
The more casual or attenuated the relationship between the legal
practitioner and the existing client, the less likely the existing
client will have a reasonable expectation of loyalty. Of
course, where a client has specifically requested and obtained a
retainer from the legal practitioner, in terms of which the legal
practitioner undertakes not to act against the client in respect of
any matter at all or without first obtaining written consent, then
that undertaking will, in addition to contractual obligations, give
rise to a reasonable expectation of loyalty.
the duty of confidentiality imposes an obligation upon a legal
practitioner not to divulge any information received from a client in
confidence. Nor may a legal practitioner use confidential
information obtained from a client to promote his or her own
interests over those of the client from whom he or she obtained the
confidential information, or to promote the interests of any other
client over those of the client from whom the information was
obtained. The duty persists beyond the termination of the legal
practitioner’s mandate. To ensure the duty of confidentiality
is properly observed, a legal practitioner may not take an
instruction from a new client that will give rise to the risk that
confidential information obtained from an existing or former client
may be disclosed.
determining whether a legal practitioner is liable for misconduct in
circumstances where one client complains that the legal practitioner
has failed to observe the duty of confidentiality by taking
instructions from another client that may result in the disclosure of
information confidentially communicated to the legal practitioner,
the following approach should be adopted. The approach should
be adopted regardless of whether the litigant is a current or former
client of the practitioner.
complaining client must establish (a) that it provided confidential
information to the legal practitioner that is relevant or related to
the issue upon which the legal practitioner has given advice to, or
is acting in litigation on behalf of, another client; and (b) that
disclosure of the confidential information would be likely to be
adverse to the complaining client’s interests. Once the
complaining client has established (a); and, (b), it will be presumed
that there is a risk of breach of confidentiality and the legal
practitioner will bear the burden of establishing the absence of such
risk. The effect of this approach will be to require legal
practitioners to take care when they obtain confidential information
on behalf of a client to ensure that they create a proper record of
possible conflicts to guide them in accepting future instructions to
avoid a breach of their duty of confidence to their clients.
Application of the rules to the
facts of this case
cause of the complaint to the Law Society arose from the fact that
the legal firm had accepted instructions from the fifth and sixth
respondents in relation to a dispute between those respondents and
the first appellant. The record before the Disciplinary
Committee does not establish that the first appellant has ever been a
client of the legal firm, and accordingly the complaint, insofar as
it relates to the first appellant does not disclose a prima
case of ‘unprofessional or dishonourable or unworthy conduct’.
situation regarding the sixth appellant is different. In his case,
the record before the Disciplinary Committee makes plain that the
legal firm was on brief to act for the sixth appellant who is the
Managing Director of the first appellant. The question arises whether
the legal firm’s acceptance of instructions from fifth and
sixth respondents in relation to their dispute with the first
appellant, and to some extent with the sixth appellant in his
capacity as Managing Director of the first appellant, constituted
unprofessional or dishonourable or unworthy conduct, To answer this
question, it is necessary to consider the relationship between the
sixth appellant and the legal firm. According to the record
before the Disciplinary Committee, the legal firm was not instructed
by the sixth appellant personally but acted on the instructions of a
South African firm of attorneys as its correspondent. It was
the South African firm of attorneys who were the legal practitioners
appointed to act on behalf of the sixth appellant in relation to the
litigation against Standard Bank.
work done by a correspondent firm of legal practitioners varies but
in most cases it is formal and technical, aimed at compliance with
court rules and the proper service of court process. Legal
practitioners who act as correspondents thus do not ordinarily
provide legal advice to clients or build a close relationship with
them. In his affidavit lodged with the Disciplinary Committee, Mr
Mueller confirmed that his role in the litigation on behalf of the
sixth appellant was a limited one. He described his role as being ‘to
take instructions from the instructing attorney in South Africa, to
draft letters, file documents, attend to the necessary notices in
terms of the Rules of the High Court of Namibia and so forth’.
The sixth appellant thus did not establish that the relationship he
had with the legal firm in this regard was any different to the
ordinary relationship that would exist between a litigant and the
firm that litigant’s legal practitioners choose to act as
correspondent for purposes of compliance with the rules of court.
is no suggestion on the record before the Disciplinary Committee that
the litigation involving Standard Bank is in anyway related to the
dispute between fifth and sixth respondents and the first and sixth
appellants. Nor has sixth appellant pointed to any confidential
information that the legal firm would have obtained acting in their
capacity as a correspondent firm that would have been relevant to the
dispute between fifth and sixth respondents and the first and sixth
appellants. Nor has sixth appellant pointed to any confidential
information that may have been given to the South African firm of
attorneys that would have had any bearing on the dispute between
fifth and sixth respondents and the first and sixth appellants and
might have been transmitted to the legal firm. In all these
circumstances, it must be concluded that it has not been established
that the sixth appellant has provided any confidential information
either to the legal firm, or to the South African attorneys, that
would have any bearing on the dispute between fifth and sixth
respondents and the first and sixth appellants. It must be concluded,
therefore, that appellants have not established a prima
risk of the disclosure of confidential information.
respect of the duty of loyalty, the relationship between the sixth
appellant and the legal firm disclosed in the complaint relates to a
matter entirely unrelated to the dispute between fifth and sixth
respondents and the first and sixth appellants. Moreover, the
relationship as set out in the complaint is not the ordinary
relationship between a legal practitioner and client, which involves
the provision of advice on the basis of information provided in
confidence. It is an attenuated relationship that has been instigated
by another firm of legal practitioners with a correspondent legal
practitioner to ensure compliance with the rules of Court.
There is no evidence on the record before the Disciplinary Committee
that the sixth appellant ever sought advice directly from the legal
firm, or that he ever provided any confidential information to them.
In the circumstances, this Court concludes that the complaint had not
established a close enough relationship with the legal firm to give
rise to a reasonable expectation of loyalty which would prevent the
legal firm from taking instructions from a client whose interests
were adverse to the sixth appellant in an unrelated matter.
Accordingly, it must be concluded that the record before the
Disciplinary Committee does not disclose a prima
case of misconduct.
the conclusion reached above, it is clear that the appeal has no
prospects of success. As there are no prospects of success, the
application for condonation for the late filing of security, and the
application for reinstatement of the appeal should be refused.
Conclusion and costs
appellants have failed in their applications for condonation and
reinstatement of the appeal, and there is no reason why they should
not be ordered to pay the costs of the appeal.
following order is made:
The application for condonation for the late filing of security is
The application for reinstatement of the appeal is dismissed.
The appeal is struck from
The costs of the appeal, including the costs of the applications for
condonation for the late filing of security and for reinstatement of
the appeal are to be paid by the appellants, jointly and severally,
on the basis of two instructed and one instructing counsel.
T J Frank SC (with A W Corbett)
Conradie & Damaseb
2ND 5TH &
R Heathcote (with R L Maasdorp)
Instructed by Koep
(4) All SA 392 (SCA) at para 23.
is defined in s 1 of the Act as ‘the register of legal
practitioners referred to in section 2’ of the Act.
Section 2 provides that the Registrar of the High Court shall keep
the Roll, which shall include the names of all people admitted and
authorised to practise as legal practitioners in terms of the Act,
as well as particulars of any court order striking the name of a
legal practitioners from the Roll (see s 2(2) of the Act).
32(1)(b) of the Act.
above n 1 at para 23.
at para 23. The Supreme Court of Appeal cited the earlier
decision of Thuketana
v Health Professions Council of South Africa 2003
(2) SA 628 (T) with approval.
this regard, see the comment by Van Heerden JA in De
the Health Professions Council is the statutory custos
of the medical profession. Id. at para 23.
v Neil 2002
SCC 70,  3 SCR 631 at para 12.
for example, Prince
Jefri Bokiah v KPMG 
1 All ER 517 (HL(E)) at 526, where the House of Lords held that the
duties of the auditors in that case were to be treated in the same
way as the duties of solicitor (at 526) but that general
fiduciary duties do not survive the termination of the relationship
above n 12 at para 15.
– 1913] All ER Rep 813.
formulated by Lord Millett in Prince
cited above n 14, at 527.
v Van Hulsteyn, Feltham & Ford 1925
AD 12 at 22: “real mischief and real prejudice will in all
human probability result if the solicitor is allowed to act”.
Meiring Attorney v Walley 2008
(2) SA 513 (D) at paras 42 – 43 where the Court found that an
attorney had acted unprofessionally in circumstances where she had
acted for one party to a marriage in contested divorce proceedings
some years after advising the other party to the marriage in
relation to a matrimonial dispute.
above n14, at 528.
Estate v Martin (1990)
77 DLR (4th)
even stronger test was stated in R
cited above n 12, at para 29, where Binnie J stated ‘the
general rule that a lawyer may not represent one client whose
interests are directly adverse to the immediate interests of another
current client – even
if the two mandates are unrelated – unless
both client consent after receiving full disclosure (and preferably
independent legal advice), and the lawyer reasonably believes that
he or she is able to represent each client without adversely
affecting the other’. (Italics in the original)
Scepticism has been expressed as to how consistently this apparently
bright line has been applied in practice. See, for example,
Gavin McKenzie ‘How Murky can a Bright Line Be? Coping with
Conflicts of Interest in the wake of R.
(Paper presented at the Tenth Colloquium of the Canadian Bar
Association, March 28, 2008),
Richard F. Devlin and Victoria Rees ‘Beyond Conflicts of
Interest to the Duty of Loyalty: From Martin
v. Gray to
84 (2005) Canadian
Bar Review 433
– 456. Devlin and Rees question, for example, whether
the performance of ‘merely technical tasks’ will
generate the duty of loyalty (at 454). The apparent ambit of the
rule in R.
v Neil also
needs to be considered in the light of the facts of the case, which
involved an egregious conflict in criminal proceedings, where one
lawyer who was representing two co-accused persons, had sought to
present a defence on behalf of one of his clients which implicated
McVeagh McKenzie Bartleet & Co v Tower Corporation 
3 NZLR 641 (CA).
for Namibian authority in the criminal law context, S
v Smith and Another 1999
NR 142 at 144; and for authority relating to civil proceedings, see
the following South African authority, for example, Zulu
and Others v Majola 2002
(5) SA 466 (SCA) at para 18; and Kirkwood
Garage (Pty) Ltd v Lategan and Another 1961
(2) SA 75 (E) at 77E–G, where O’Hagan J called upon an
attorney to provide an explanation on affidavit as to why he had
acted for two creditors petitioning for insolvency of two
respondents in circumstances where he had represented the
respondents. The record before the Disciplinary Committee in a
closely related matter.
the full discussion in Lewis Legal
Juta) paras 59 – 64.