1

2021 EXAM................................................................................................................................................... 2

QUESTION 1: RECEIVING CONFIDENTIAL, PRIVILEGED DOCUMENT IN ERROR......................................................................2

QUESTION 2: NON-LEGAL PUBLICATIONS AND CROSS-EXAMINATION REGARDING DISHONESTY..............................................2
QUESTION 3: DISCLOSING ADVERSE AUTHORITY..........................................................................................................3
QUESTION 4: CONFLICT OF INTEREST BETWEEN COUNSEL AND CLIENTS............................................................................3
QUESTION 5: ACCEPTING BRIEF DIRECTLY FROM PUBLIC................................................................................................4
QUESTION 6: TRUE OR FALSE..................................................................................................................................5

2020 EXAM................................................................................................................................................... 7

QUESTION 1: COUNSEL'S INDEPENDENCE AND EX PARTE DISCLOSURE..............................................................................7

QUESTION 2: PRO BONO DISCLOSURE, PUBLIC REFERRAL, CAB-RANK RULE........................................................................8
QUESTION 3: COUNSELS DUTIES TO COURT AND CLIENT, COUNSEL'S ADMISSIONS AND STATEMENTS OF SETTLEMENT...............9
QUESTION 4: CONFLICT OF INTEREST WITH CLIENTS...................................................................................................10
QUESTION 5: TRUE OR FALSE................................................................................................................................11

EXAM 2019................................................................................................................................................. 13

QUESTION 1: CONTINGENCY FEES...........................................................................................................................13

QUESTION 2: CONSULTATION WITH WITNESS ONCE SWORN, ATTACKS ON CHARACTER......................................................13
QUESTION 3: ENTITLED TO HAND OVER BRIEF TO ANOTHER COUNSEL............................................................................14
QUESTION 4: CAN COUNSEL ACCEPT A BRIEF TO SETTLE A MATTER................................................................................14
QUESTION 5: FACTORS FOR FIXING A FEE.................................................................................................................14
QUESTION 6: ADMISSIONS....................................................................................................................................15
QUESTION 7: ADVERTISEMENT OF LEGAL SERVICES....................................................................................................15
QUESTION 8: OVERDUE FEES, WITHDRAWAL, PAYMENT OF FEES BY CLIENT.....................................................................16
QUESTION 9: TRUE OR FALSE................................................................................................................................16

2018 EXAM................................................................................................................................................. 18

QUESTION 1: INDEPENDENCE OF COUNSEL, DIRECTOR OF COMPANY, MAKING STATEMENTS..............................................18

QUESTION 2: CROSS-EXAMINATION OF RAPE COMPLAINANT........................................................................................19
QUESTION 3: CONSULTATION, DEFAMATION, AND WITHDRAWAL ON BEING SUED............................................................19
QUESTION 4: IMPROPRIETY AND SUSPENSION FROM PRACTICE.....................................................................................20
QUESTION 5: TRUE OR FALSE................................................................................................................................21

2017 EXAM................................................................................................................................................. 23

QUESTION 1: TRUE OR FALSE................................................................................................................................23

QUESTION 2: SIGNING PARTICULARS OF CLAIM.........................................................................................................24
2

2021 Exam

Question 1: Receiving confidential, privileged document in error

The document is covered by legal professional privilege, in that it is a communication

between a client and their legal advisor that was made for the purpose of obtaining legal
advice.

For this reason, I would not disclose the document to my instructing attorney or to the client.
Code 57.10 stipulates that a legal practitioner shall not make use of any privileged
information of the opposing party that has accidently or unlawfully come into their
possession.

The Code goes on to stipulate that the legal practitioner should notify the opposing party as
soon as the document comes to his attention. This is what I would do.

Question 2: Non-legal publications and cross-examination regarding dishonesty

2.1 Non-legal publication

No, I would not allow the request to co-author the article.

In terms of Rule 4.18.3, members of the bar should not write articles in non-legal publications
regarding pending cases. Furthermore, it is contrary to professional etiquette for counsel to
engage in newspaper correspondence regarding matters in which they have been or are
involved as counsel. It is undesirable for a member to express an opinion on any matter that
is pending, except in general terms in a manner that would not pre-judge the result.

2.2 Cross-examination

In terms of Rule 3.3, you are entitled to refuse to put questions attacking the character or
credibility of a witness in the following circumstances:
3

1. Where the question is not otherwise relevant to the actual enquiry

2. You do not have reasonable grounds for thinking the imputation is well-founded or
true; and
3. Even if the imputation is well founded, the imputation will not materially affect the
credibility of the witness.

Counsel must guard against becoming a channel to harass or annoy the witness.

Counsel may, however, regard an instruction from an attorney that in their opinion the
imputation is well-founded and true as prima facie proof that it is so.

In the current circumstances it would be difficult to refuse to put the question to the witness.
That is because a) it is relevant to the enquiry, b) the attorney has instructed counsel to put
the question to the witness and 3) the imputation will materially effect the credibility of the
witness.

Question 3: Disclosing adverse authority

In terms of Code 61.11, after judgment is reserved a legal practitioner shall not place before,
or try to send to, a judicial officer any further material of whatever nature, except by
agreement among the representatives of all the parties. If the consent of the opponent is
unreasonably withheld, especially where information would assist the Court, application can
be made to court to receive further material.

In the present circumstances there is not a duty to bring the information to the knowledge of
the court. The duty to direct the court to adverse findings during the hearing is one that is
qualified by what relevant authorities counsel is aware of at the time.

Question 4: Conflict of interest between counsel and clients

4.1: Refuse a brief for conflict

4

Yes, you may refuse the brief. That is because a legal practitioner shall not accept a brief if
they have any form of relationship with the opposing party which compromises, or might
reasonably be expected to compromise, his or her independence
4.2 Duties of independence

In terms of Rule 3.1, counsel must fearlessly uphold the interests of the client without regard
to any unpleasant consequences they may face. A legal practitioner should remain
independent and, in this case, that would mean giving the legally correct advice irrespective
of what ones personal beliefs are.

4.3 Opinion given to other side

The position would not necessarily be different. In circumstances where counsel has given a
formal opinion to one side, he is not precluded from taking a brief to argue for the other side.
That is unless he has been placed in possession of facts that would embarrass him in the
conduct of the case. In any event, he would have to get permission from both attorneys to
accept the brief.

In this case, however, the advice was just part of an informal discussion and did not
necessarily represent a formal, legally justified opinion.

Question 5: Accepting brief directly from public

5.1: Accepting brief directly from sister

Section 34 of the LPA states that an advocate may render legal service in expectation of a fee
upon receipt of a brief from an attorney.

In terms of Code 27.2, counsel shall not accept a brief directly from any other person or
entity, besides an attorney, for either litigious or non-litigious work of any kind.

5.2 When can an advocate accept brief from public?

5

Counsel may accept a brief from a justice centre or to perform service on brief from an
attorney or legal practitioner in another country.

An advocate admitted with a fidelity fund certificate may accept briefs directly from the
public.

Question 6: True or false

6.1 Interview witness for other side before judgment in absence of legal rep

True

In terms of Rule 4.3.1, the opponent's legal representatives must be notified of the intention
to hold the interview. Notwithstanding the other side's objection to the interview, the
litigant's legal representative is not precluded from holding or proceeding with the interview.

6.2 Counsel cannot charge excessive fees, even if client can afford it

True

In terms of Rule 7.1:

Counsel is not allowed to charge excessive fees, irrespective of the value of the service.

Counsel is only entitled to charge a reasonable free for all services. Counsel must avoid
charges which overestimate the value of their advice and services. In fixing fees, counsel
may not consider:

1. A client's ability to pay

2. That the client has won the case
3. That the attorney agreed to a higher fee than was justified
6

In terms of Code 29.4, counsel shall not inflate the fee because the client is able to pay
generously.

6.3 Counsel acting on contingency need not be concerned with Contingency Fee Agreement

False

The agreement is not confidential or privileged vis-à-vis counsel. In terms of Rule 7.10,
Counsel is obliged to comply with the Contingency Fees Act. The agreement between the
attorney and the client shall be counter-signed by counsel after having satisfied that the
agreement complies with the relevant provisions of the Act.

6.4 Fees for success in Pro Amico brief

True

Generally, in terms of Rule 7.3, where a member agrees to no fees, no fees for such a member
shall be brought up for taxation by the attorney instructing him. In terms of code 31,
however, counsel may seek to charge a fee that is permissible under section 92 of the LPA.
All that is required is that counsel disclose the fact that they are acting pro amico to all
interested parties.

6.5 Is duty to disclose in ex parte applications limited to privileged and confidential

information?

False

In terms of Code 57.4, counsel must disclose all information that might reasonably have a
bearing on the decision except that which is privileged or confidential to the court in ex parte
applications

6.6 Counsel's duty to uphold the Constitution

7

False

It is the duty of counsel at all times to uphold the principles and values enshrined in the
constitution and not to let their own personal views erode that duty.
8

2020 Exam

Question 1: Counsel's independence and ex parte disclosure

1.1 Counsels independence in conducting matters

In terms of Code 25.3, counsel shall not permit any person to dictate how the matter should
be conducted. If the decisions made or advice given are not accepted by the instructing
attorney or the client, then counsel must offer to surrender the brief. If the instructing
attorney accepts the surrender, counsel must withdraw.

In the circumstances, I would advise that the correct procedure to follow would be a Rule 43
application. I would then off to surrender the brief if my advice was not taken.

Ex parte disclosures

In terms of Code 57.4, counsel has a duty in ex parte applications to disclose every fact (save
for confidential or privileged information) that reasonably will have a material bearing on the
adjudication of the case.

In ex parte matters, utmost good faith is required by litigants placing material facts before the
court. The following cases are relevant:

In Logie v Priest a settlement agreement to pay the outstanding debt was not placed before
the court in a sequestration application. The court held that it is the duty of the applicant to
lay all the relevant facts before the court so that it may have full knowledge of the
circumstances of the case before making the order. The settlement agreement to pay off the
debt was clearly relevant and important to the decision whether or not to sequestrate the
estate.

In Hassan v Berrange the court held that a failure to place all relevant and material facts
before the court may lead to the order subsequently being set aside.
9

In Schlesinger v Schlesinger the court further elucidated its powers when material is not put
before the court in ex parte applications. In that case, a spouse applied for leave to sue her
husband by way of edictal citation for divorce. But she failed to disclose that there were
already pending divorce proceedings in Switzerland.

The court held that the non-disclosure of facts, be it either due to negligence or mala fides,
may lead to the order being rescinded. The court, however, retains a discretion whether to
preserve or set aside the order.

Question 2: Pro bono disclosure, public referral, cab-rank rule

Question 2.1: Pro bono disclosure

No, there is no duty to disclose to your opponent unless you are wanting to charge a fee under
section 92 of the Act.

Yes, in terms of Rule 7.3 you must immediately give notice to the registrar or clerk of the
court.

Question 2.2: Referral from public

No, a legal practitioner with a trust account cannot accept a referral directly from the public.
In terms of the code, counsel cannot accept a brief for litigious or non-litigious work from
any other person except an attorney. An exception to this is a brief from a justice centre.

Question 2.3: Cab-rank rule and lack of requisite skill

In terms of Rule 2.1, counsel is under an obligation to accept any brief in courts which he
professes to practice.
10

In terms of the Code, counsel may limit his areas of practice and courts in which he practices.
But he must expressly make such limitation known. He may not then refuse a brief which is
in an area in which he practices.

Exceptions to the cab-rank rule arise where special circumstances justify the refusal to accept
a particular brief. These include:

1. A specialist brief where counsel considers himself not competent to accept the brief
2. Where no fee-agreement can be reached
3. Counsel is an SC and counsel is of a reasonable opinion that the services of an SC are
not needed
4. Scale and duration of work is such that counsel is of a reasonable belief that the brief
would impact their personal or professional commitments
5. Instructing attorney is reasonably expected of being unlikely to pay fees.

Question 3: Counsels duties to court and client, Counsel's admissions and

statements of settlement

Question 3.1: Four factors impacting on counsels' duty to court and client

Counsel has a duty to act honestly. This extends to not misleading the court, including by
suppressing facts that would disentitled counsels client to the relief claim. Counsel cannot
tell an untruth when he or she is aware of the untruth.

Counsel has a duty to uphold the dignity of the courts and officers of the court. This includes
exercising the utmost decorum in court. Any criticism of a judge must be well-articulated on
the merits and not amount to willful insult.

Counsel must further their clients case fearlessly and to the best of their ability. Is free to use
every argument and observation that can legitimately achieve this end. Should guard
carefully against limiting the privilege afforded to counsel in this regard.
11

Counsel has a duty to maintain the privilege of the client. This includes not disclosing
privileged communications without their consent

Question 3.2: Counsels admissions

No, the statement does not amount to a compromise or settlement of liability. It is, instead, a
concession that of the plaintiff proves liability then the defendant will have to pay.

Yes, the client is bound by this concession.

Counsel may not conclude a binding settlement of any matter without an express and specific
mandate from the instructing attorney. Any admission made by counsel must be fully and
accurately recorded, and be unequivocal and unambiguous. A client is entitled to resile from
an admission that was given by an advocate without any mandate. Statements made in the
presence of the client or instructing attorney are evidence that they have not been repudiated.

A counsel that realizes they have made a mistaken admission should say so fearlessly and
promptly.

Question 4: Conflict of interest with clients

The ethical issue that arises here are a conflict of interest between clients.

It is likely that the brief would cause embarrassment and should not have been accepted.
Counsel is not obliged to accept a brief when he has previously accepted a brief to advise
another person in connection with the same matter.

Counsel is in fact precluded from accepting the brief when any confidential matter was
disclosed to him that has a bearing on the matter as a result of the first brief. In the present
circumstances, the addendum would not constitute confidential material.
12

Counsel is, however, further precluded if it is reasonably thought by the first advised that if
counsel accepted the second brief, the first advised would be prejudiced. It is arguable that
the first advised would be so prejudiced here.

Furthermore, once giving an opinion to the opposing side, counsel must refuse a brief from
the other side if they had been placed in possession of information that would embarrass him
in the conduct of the case. Counsel would be embarrassed because he would have to refer to
his opinion that was clearly incorrect.

In any event, counsel would have to get permission to act from both attorneys.

In terms of the code, counsel must further refuse the brief it is reasonable to belief that the
earlier client would be prejudiced by acceptance of the brief. Furthermore, a legal
practitioner may not accept a brief when they have given an opinion to the opposing side
when a reasonable belief might exist that the client in the earlier brief might be prejudiced by
acceptance in the later brief.

Question 5: True or False

5.1 Counsel as deponent and witness

False

Counsel must avoid putting themselves in a position where they may have to make statements
or give evidence in relation to matters in dispute in cases where they appear.

Counsel must seek permission of Bar Council before deposing to an affidavit or giving
evidence.

5.2 Interview of witness in criminal proceedings

False
13

Blanket prohibition on interviewing state witness was overturned in Shabalala v Attorney-

General.

Must first get permission from the prosecutor, failing which, apply to court for permission.

5.3 Counsel may hold brief for attorney in private practice

True

Counsel may act with attorney who is in private practice where it is desirable to have two or
more counsel, other attorney is not instructing attorney or associated with firm.

5.4 Opinion given to other side, not precluded

True

Counsel is not precluded from taking brief, unless he received information that might
prejudice the earlier client. Permission from both sides attorneys will be needed.

5.5: Propriety of receiving gifts

True

It is not improper to receive a gift, provided it is received through an attorney. The Bar
Council must be notified of the gift and the circumstances in which it was received. The Bar
Council may in its discretion disallow the gift.
14

Exam 2019

Question 1: Contingency fees

1.1 Counsel entitled to act on contingency

Yes, counsel is entitled to act on contingency as long as they comply with the Contingency
Fees Act

1.2 Are there restrictions on what fees counsel can charge?

Yes, there are restrictions on what fees counsel can charge in terms of the Contingency Fees
Act.

If counsel elects to charge a fee higher than their normal fee, the fee shall be no more than
100 percent of their normal fee. In terms of a success fee, the amount shall not exceed 25
percent of the claim sounding ion money that is awarded. Counsel must ensure that the higher
fee charged remains proportional to the endeavor and cannot charge a much higher fee just
because payment will be delayed.

Question 2: Consultation with witness once sworn, attacks on character.

2.1 Consultation with witness once sworn

It is in general undesirable to interview a witness who has been sworn in, but you may do so.

2.2 Consultation with witness during cross-examination

It is improper for counsel to interview a witness who is under cross-examination, unless the
circumstances make such an interview necessary. In such circumstances, counsel shall
inform the opposing legal practitioner of such a need and will not hold the interview unless
they consent. If they do not consent, must get leave from the court to do so.
15

2.3 Questions attacking character in cross-examination

It is only appropriate for the question to be put if counsel for the opposition has reasonable
grounds for thinking that the imputation is well founded or true. Even if true, the question
should only be put if it would materially effect the credibility of the witness. In the present
case, it would materially effect the credibility of the witness if true, as it would speak to his
ability to accurately recollect what he saw.

Question 3: entitled to hand over brief to another counsel

Yes, in cases of illness or intervention of unforeseen and unavoidable consequences.

Question 4: Can counsel accept a brief to settle a matter

It is not improper for counsel to accept a brief to settle matters, as opposed to a brief for the
matter to go to trial.

Question 5: Factors for fixing a fee

The fee must be reasonable and proportional to the services rendered.

Factors include:
1) the time and labour required, along with, the difficulty and novelty of the matter;
2) the customary charges charged by counsel of comparable standing for similar
services;
3) the amount involved and the controversy or importance of the matter to the client.

Counsel may not have regard to, the ability of the client to pay more, whether or not the
matter is successful and that the attorney has made an agreement to pay more than is justified.
16

Question 6: Admissions

6.1 Consideration of merits at pre-trial

You should consider the merits of the case, as counsel has a complete discretion over the
conduct of the case. This is not to say that you should make an admission, but they should at
least be considered. Duty to help progress the matter and facilitate the process.

6.2 Require instructions to respond to request for admissions when attorney is present

Counsel has no authority to make an admission unless they receive express or implied
instructions to do so. Admissions can be made by counsel at any time, deliberately and
formally. The client can, however, resile from the admission if it was given without a
mandate. As held in Hawks v Hawks, counsel has authority to compromise any matter, but
no compromise will be binding if it flies in the face of the client's instructions to the contrary.

An admission made in the presence of an instructing attorney is evidence against the client,
unless it is repudiated.

To ensure the admission is binding, I would take an instruction.

Question 7: Advertisement of legal services

Counsel may advertise their services. The advertisement must be factually true and may not
be of a kind that might be:

1. False, misleading or deceptive

2. In contravention of legislation
3. Vulgar, sensational or would bring the court or legal profession into disrepute

With the prior approval of the Bar Council, counsel may advertise themselves as a specialist
or offering specialist services, based on a specialized qualification or experience.
17

Question 8: Overdue fees, withdrawal, payment of fees by client

8.1 Entitlement to withdraw

[Counsel can stipulate that payment be made in advance. Counsel is, however, not entitled to
withdrawn and must notify non-payment to the Board Council. Once the client has offered to
pay, then Counsel also can not withdraw because the over due payment will be satisfied.]

Seems from a memo that you can actually just withdraw, because the money wasn’t paid

8.2 Entitlement to accept payment directly from client

[Fees may only be paid by the attorney, the legal aid board or the road accident fund.]

Can get the money with the consent of the attorney.

8.3 Entitled to accept payment in cash for fees

Can accept fees in cash from attorney

Cannot accept fees in cash from client

Question 9: True or False

Question 1: permissible to seek services of junior colleague against payment

True

Permissible to hire devil as long as advocate retains professional independence and it does
not turn into an employment relationship

Question 2: Agree to mark such fees as will be allowed on taxation

18

False

All briefs must be marked with a fee at the earliest reasonable opportunity after which work
is done.
Question 3: Is it proper for advocate to establish company and act through it

False

Counsel must act in his own name and adopt personal responsibility for their matters
19

2018 Exam

Question 1: Independence of Counsel, director of company, making statements

1.1 Taking brief from a company of which you are a director

You should not accept the brief.

In terms of Rule 5.6, counsel should not accept a brief if they occupy a position with respect
to the client which compromises, or might reasonably be excepted to compromise, their
independence. A quintessential example would be when the counsel is a director of a
company.

Where a brief should be so refused, counsel may nevertheless accept such a brief with the
prior permission of the Bar Council. The Bar Council might set certain conditions, such as
disclosing the relationship to the Court.

A brief should also not be accepted where there was any undue influence, on the part of
counsel or someone else, to have the client brief counsel. It is irrelevant whether or not this
was before or during the time on which the counsel joined the bar.

1.2 Making a press statement after matter is dismissed

In terms of Rule 4.21, counsel should not make any statements to any news or current affairs
media in connection with any matter in which they are or have been instructed.

In terms of Rule 4.18.3, it is contrary to professional etiquette for counsel to engage in

newspaper correspondence regarding matters in which they have been or are involved as
counsel.
20

Question 2: Cross-examination of rape complainant

Counsel is obliged to tell the court of the information that he has which may cast doubt on the
version of the accused. That would be the district surgeon's report.

Due to that report, counsel would not be able to ask questions during the cross-examination
that would attack the credibility or impugn the character of the witness, in so far as they may
amount to an accusation that she is lying about the rape. That is because it is known to
counsel that the evidence of the rape has been corroborated by the report.

Counsel should put forward the best case forward for the accused, which is to say that the sex
was consensual. In cross-examining the complainant to prove that the sex was consensual,
counsel should treat the complainant with courtesy and respect. Counsel should not ridicule
the witness but put here version forcefully to the complainant.

This is what is required in S v Gidi, where intimidating or overbearing cross-examination

amounts to an irregularity. Adverse comment should be reserved for argument and questions
should be put the complainant in a manner that they understand.

Question 3: Consultation, defamation, and withdrawal on being sued

3.1 would you request to consult with client before drafting

I would not request to consult with the client, as I have been provided with written
instructions on all the necessary averments from the instructing attorney.

3.2 Defence to claim of defamation

The defence I would raise would be qualified privilege. As was held in Joubert v Venter, the
test for the existence of qualified privilege is:

1. The statement was relevant, germane or pertinent to the issue at hand; and
21

2. Counsel had some foundation in evidence or the surrounding circumstances to show

that the statement was true.

Here it was self-evidently germane to the issue of divorce that Mrs Smith was adulterous and
had stolen money from the client. Counsel also had reason to believe the allegation was true,
as the information was given to him by his instructing attorney. Counsel is allowed to act
upon the information given to them by their instructing attorney and may reasonably assume
that such information is true.

Counsel does not himself need to believe the truth of the statement if 1) and 2) above obtain.

Finally, the defence of qualified privilege will not be available if counsel was actuated by
malice in making the statement.

3.3. Surrender brief in light of action against counsel

No, you would not have to surrender the brief as the independence of counsel has not been
impugned.

Question 4: Impropriety and suspension from practice

4.1 Improper to accept multiple briefs on same day

Yes, it is improper for counsel to accept multiple briefs for the same day and charge the full
day fee. This is similar to what was held in GCB v Geach where the same conduct was
sanctioned there.

4.2 May a court grant a suspension order

Yes, a court may grant the order sought. Section 43 of the LPA obliges the Council to instate
legal proceedings in the High Court to suspend a legal practitioner. Whether to suspend or
strike the practitioner from the roll is an inherent power of the court.
22

4.3 What is the test to be applied

The test laid down in Jasat as followed in Geach and Jiba is to be applied. The test has three
stages and asks:

1. Whether the impugned conduct has been proved on a balance of probabilities

2. If the conduct is so proved, whether the legal practitioner is a fit and proper person to
continue
3. If they are not fit and proper, whether they should be removed from the roll or
suspended

Court has inherent power to order repayment of monies as a condition of further practice

Question 5: True or false

5.1 Counsel can accept a gift from client

True

It is not improper to receive a gift, provided it is received through an attorney. The Bar
Council must be notified of the gift and the circumstances in which it was received. The Bar
Council may in its discretion disallow the gift.

5.2 Counsel hold a brief to appear with an attorney in private practice

True

Counsel may act with attorney who is in private practice where it is desirable to have two or
more counsel, other attorney is not instructing attorney or associated with firm.

5.3 Improper for counsel to pass on brief on to colleague

False
23

In cases of illness or intervention of unforeseen and unavoidable consequences can pass on

brief

5.4 Do not have to disclose acting on instruction at company meeting

False

Must disclose you are counsel and briefed to appear

5.5 Counsel entitled to leave the court once matter is completed

False

Counsel must remain in court until next counsel has risen.

5.6 Do not need a brief form an attorney when approach to act as commissioner

False

Must obtain a brief from the attorney

24

2017 Exam

Question 1: True or false

1.1 Counsel shall not appear in absence of instructing attorney

True

May appear with candidate attorney only where matter does not warrant the costs of more
than one representative.

1.2 Entitled to interview their clients and witness without there attorney

False

Only entitled to do so in exceptional circumstances, or pro deo or dock defences

1.3 Counsel may depose to affidavit or give evidence

False

Counsel must avoid putting himself in a position to make a statement or give evidence in a
matter in which they may appear. Must get permission from the Bar Council before giving
evidence.

1.4 Counsel entitled to refuse brief on appeal when they acted for opposite side

True

Counsel is not obliged to take a matter with which they have been involved and ought to
refuse a matter if they received confidential information
25

1.5 Counsel may form partnerships

False

Counsel may not form partnerships or companies and must advise in their own name

1.6 Counsel may, but is not obliged, to accept briefs to make representations to ministers

True

Counsel can draft a memorandum that is signed and transmitted by attorney to official.
Should not, however, do attorneys work.

1.7 Counsel may accept a brief even if he previously accepted a brief to advise on the same
matter

True

Except where confidential information given or first person will be prejudiced

1.8 Counsel approached to be arbitrator does not need to be briefed by attorney

False

Unless it is a formal arbitration organized by the Bar Council.

Question 2: Signing of pleadings

Yes, I would be required to sign the particulars of claim as my attorney does not have right of
appearance

No, advocate Shuttleworth is not required to sign the pleading because his attorney has right
of appearance
26

Question 3: Duty to act honestly, interviews, refusing to cross

3.1 Expert witness' firm is funding litigation

In terms of the Rules and Code of the Legal Practice Council, counsel is under a duty to act
honestly. This includes not misleading the court on any matter of fact or question of law.
Counsel must also not rely on any statement or fact which they know to be false.

In opposed proceedings, this duty is specifically to not suppress a fact that would disentitle
the client from the relief claimed.

The facts in the question closely mirror what was at issue in Schneider v Schneider. There
the court emphasized that expert witnesses are there to assist the court and are not a "hired
gun" for a party. In that case, the expert witness was part of an organization that advocated
for home schooling (the subject matter of the case). What was not mentioned was that the
organization had funded the litigation. Moreover, the expert had been brought in for the sole
purpose of discrediting the testimony of the other side.

None of this was disclosed to the court. The court held that the legal representatives owed
the court a fiduciary responsibility, even when they acted in the interest of their clients. The
representatives failed in this duty by not informing the court of the true nature and objectives
of the case.

The judgment was referred to the Johannesburg Bar society for investigation

In light of this, in dealing with the situation I would say that it must be disclosed to the court
that the expert witness' organization is funding the litigation and his role….

[can say more wanky things here]

3.2 Interview in the middle of trial

No, it would be entirely inappropriate to give input or grant an interview.

27

In terms of Rule 4.21, counsel should not make any statements to any news or current affairs
media in connection with any matter in which they are or have been instructed.

In terms of Rule 4.18.3, it is contrary to professional etiquette for counsel to engage in

newspaper correspondence regarding matters in which they have been or are involved as
counsel.

It is undesirable for counsel to express opinion by press, letter or article on any matter
pending in courts – may express opinion in general terms as long as they don’t purport to pre-
judge matter

3.3 Refuse to put questions in cross examination

This depends on what the nature of the questions were, if it caused a conflict with counsels
duty to court, in that counsel was asked to propagate a falsehood, then it is not improper to
refuse questioning.

One must also not be used as a conduit to harass the witness. Questions affecting credibility
of witness by attacking character, which are not otherwise relevant to the actual enquiry,
ought not to be asked.

Question 4