As a matter of fact, neither Dr Horsley nor his attorney, Mr. Murray were aware that the hearing had been set down on that date and that it would be on an unopposed basis. These two parties must thus have been shocked to receive a fax of the divorce and maintenance order. This fax was followed by a liquidator who arrived at Dr Horsley’s consulting rooms to take charge of the estate pursuant to the order of the court. The latter thus immediately applied and was granted a rule nisi calling upon Mrs. Horsley to show cause against an order rescinding the decree of divorce. Merret initially opposed the rescission order on the ground that Dr Horsley knew the action was proceeding since he knew Mrs. Horsley was flying to Durban for it. Merret attached a supporting affidavit justifying his actions in which he mentioned that he was at no fault, but were it not for the negligent failure of Murray to file an appearance to defend this fracas would not have occurred. Nonetheless, Merret eventually consented to a rescission of the divorce order and he further agreed to pay the costs of the application.
Merret’s actions summarized above led to the applications by the Society of Advocates of Natal and the Natal Law Society. Both applications were based on the duty that an attorney owes to the presiding officer and to his\her fellow colleagues.
COURTS ANALYSIS
Howard JP in this case handed down the judgment with Levinsohn J concurring. The court here had to address two crucial issues viz: -
- Whether Merret had deliberately misled Niles-Duner AJ in his assertion that he believed that Murray knew that the divorce was proceeding on an unopposed basis on that day.
- Whether Merret could still be said to be a fit and proper person to practice law
The first principle that must be taken from this case is that which was brought in by Merret himself in his affidavit in the application brought in by the Society of Advocates of Natal. He conceded that he had all along followed a very formalistic style to litigation, which meant a strict compliance to the Rules of Court. He enumerated this principle as follows,
“ I have come to realize that the strictly formalistic approach
should be tempered by having regard to the wider aspects of each
particular case. I therefore did not give sufficient thought to the
implications of an exchange of correspondence.”
Although there are certain untruths in Merrets submission the point does still stand. The purpose of Rules of the court is not to impede the legal process but to assist. It was thus not proper to hide deceit behind the rules.
What is pertinently strange from Merrets conduct is that he had to assume that Murray was aware of the application This assumption was taken from the belief that since his client was flying to Durban her husband knew of this and he was to inform his attorneys. Why there was a lack of lawyer-to-lawyer communication boggles the mind. Merret should have informed or advised Murray of the court application personally and should not have gone behind his back.
It is clear from this conduct that both the court and the law society view seriously the relationship that should exist between attorneys as they litigate against each other. It is untenable that an attorney should use ‘backdoor’ skills in order to win a case. This case also propounds the rule that although an attorney has duties towards his client these duties should not override ethical considerations. Merret had been under pressure from client who wanted a quick divorce and decided to ignore ethics so as to satisfy the client. According to the judge,
“[Merret] had sedulously refrained from giving Murray
notice of the hearing and knew that if he was forced to do
so at that stage there was little chance of the action
proceeding on an undefended basis.”
What was seen as most appalling in this case was the manner in which Merret misled the presiding officer. The question he was asked was a simple one: whether the defendant’s attorneys knew that this case was being heard as unopposed motion on this day? To this Merret answered that they did know. As has been said earlier, one can never over-emphasize the duty of honesty and good faith that an attorney owes to a presiding officer. Here Merret acted mala fide and this led to the judge saying that in future he will never be able trust or believe Merret. This goes to show that it is unacceptable to lie to a presiding officer.
Having said this the court could only rule that Merret was not a fit and proper person. Reference was made to the case of Ex Parte Swain, where an advocate’s admission application failed because he had previously been dishonest under oath. In this case James JP held that it was important that when the court seeks assurance from an advocate that court should be able to rely on such assurance. He further held that justice would not survive if the profession were not truthful to itself and to the court. Howard J made an important addition to this by deciding that the requirement that advocates should be truthful to one another and to the court applied equally to attorneys.
CONCLUSION
In rounding up this submission reference must be given to certain extracts from LAWSA. It is given here that a person must not be admitted to the profession if such a person will be a danger to the good name of the profession. It is further given that the person to be admitted must be an honest and virtuous character,
“… this excludes persons intending to practice
with disgraceful intrigues; those an important motive of
whom is base avarice; who abuse the law and its practice
to harass and harm their fellow men.”
This extract goes hand-in-hand with the courts assertion that a ‘lack of integrity’ was intolerable.
All in all, we thus see that it is of paramount importance that attorneys and advocates respect each other and the court. We see that officers of the court owe a serious duty to the court and that they cannot afford to simply pay lip service to rules of ethics as they go about their duties. From the judgment given, where Merret was struck off the roll of attorneys we further realize that the court will not sit on the middle of the road when it comes to dishonest lawyers: one is either an honest attorney or not an attorney at all!
Question 2
Your client is charged driving under the influence of intoxicating liquor. He tells you that the traffic officer offered to drop the case if he paid him R100. You have doubts as to the truthfulness of your client’s allegations.
Will you put the allegations to the traffic officer during cross-examination? Explain with reference to the relevant legal principles and case law. [25]
Many a times one comes across people who assert that lawyers are liars. This assertion has been repeated too many times that it is slowly becoming a truism rather than a cliché. The reason why lay people come to this conclusion is certainly not based on their legal ignorance, but rather by their association with lawyers that pay only lip service to ethical codes. Without ethics the legal profession would be fraught with fraud, bias, dishonesty, cheats, to mention but a few of such vices.
In the facts where an advocate is sceptical about the truthfulness of his client’s submission, various principles have been formulated so as to assist on the right path to take. These principles, however, will fail to be convincing to any lawyer if they do not revolve around the acknowledgment that a lawyer’s fundamental allegiance is towards his\her client. The mammoth task thus often faced by lawyers is to balance the fair administration of justice as given by ethical codes against a possible perversion of justice as given by certain ludicrous instructions from clients.
This brings us now to the question of whether it would be correct to cross-examine the traffic officer as to the allegation of bribery, in spite of the fact that I think that the allegation is a false one.
The law of evidence requires that that in any question during cross-examination, such question mist be relevant. In this case I must thus ask myself the relevance of having to accuse the traffic officer of bribery. For this question to be relevant it must in some way disprove guilt on the part of my client. Questioning in this way is meant to attack the character of the witness and thus his credibility. When one attacks the credibility of a witness the relevance lies in proving that the witness is not reliable or truthful. This further means that his testimony should only be taken with a pinch of salt, if it should be taken at all. If such character assassination should succeed it would surely be to the benefit of the accused. Assuming the allegation is true the admission of the character evidence in this regard would be relevant.
The chief question here, however, is whether knowing that the client is most probably lying, would it still be ethical to put such a question to the traffic officer? In the case of S v W the manner in which the advocate phrased his questions showed his impartiality to the facts. To the present case I would thus put it to the traffic officer in the following way,
“Mr Traffic Officer, Sir, my client is going to testify that on
the day in question you offered to withdraw the case if he paid you
R100. What say you?”
The phraseology adopted in S v W shows that one is simply asking the witness to respond to a future testimony. An attorney’s gut feeling as to whether his client’s testimony is truthful or not should thus not be the yardstick.
The problem, however, in asking questions that go towards the character of the witness was shown in S v Kubeka. Here Slomowits AJ emphasised an evidence rule that an answer to a question involving credibility must be accepted as final. This means that in this case where the traffic officer refutes the allegations such refusal must be taken as final. There can thus never be thorough cross-examination in terms of character evidence.
Advocates and attorneys are both not only researchers of law but also researchers of fact.
Where an advocate thus seems to doubt the truthfulness of his client’s submission he must carry out a factual investigation so as to ascertain the truth. It is said that advocates must not accept information from any party (other than an instructing attorney) to be conclusively true. From the facts given there must thus be a factual investigation carried out.
It must also be borne in mind that the purpose of cross-examination is not to annoy or frustrate the witness. An advocate must thus refuse to be a conduit for questions that are false and are aimed at irritating or aggravating the witness. In S v Gidi & Another we learn the following relevant factors of cross-examination: -
- It should not be biased and should never seek to conceal or withhold evidence,
- An assertion should not be put to a witness which the cross-examiner knows to be false,
- A witness should not be insulted or bullied, and
- A witness should not be ridiculed or have his emotions played with so as to put him in an unfair disadvantage.
What must thus be taken essentially from this case is that it would be pointless to cross examine the traffic officer if such cross examination will only pervert the fair administration of justice. The distinction between a policeman’s interrogation and a lawyer’s cross-examination should not be a blurred one.
In conclusion we see that one cannot simply answer with a yes or no whether such an allegation should be put to the traffic officer or not. This essay has shown that a good lawyer cannot afford to simply go with his gut feeling that the allegation is untruthful. He will instead utilise his factual research skills to ascertain the truth or at least get close to it. It has also been shown that in the event that the allegations are most likely to be untruthful a lawyer must refuse to be the pipeline of such untruthfulness. Furthermore, we have seen that the fair administration of justice is based on the manner in which questions are put towards witness. We have seen in this respect that a rude and impolite cross-examiner will defeat the purpose of cross-examination. Lastly, the same applies where questions are put to the witness that lack relevance and substance. Such questions only serve to delay the whole justice process.
If certain ethical rules such as the above were followed to the very word, it is possible that there will be a refrain from juxtaposing lawyers with deceit. The legal profession, like the medical profession, must be seen as one that is there to cure societal ills and not in fact contribute to those ills.
Gidi Supra at pg 540 Para C
