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FORM A FILING SHEET FOR EASTERN CAPE JUDGMENT
ECJ no: 62
PARTIES: ALBERTUS BEYLEVELD and MUHAMED ISMAEL PATEL N.O. AND 2 OTHERS
REFERENCE NUMBERS –• Registrar: 1708/05 • Magistrate:• Supreme Court of appeal/Constitutional Court: EASTERN
CAPE DIVISION
DATE HEARD: 09th NOVEMBER 2006 DATE DELIVERED: 04th DECEMBER 2006
JUDGE(S): JONES J
LEGAL REPRESENTATIVES –Appearances:
• for the State/Applicant(s)Appellant(s): ADV R VAN ROOYEN
• for the accused/respondent(s): ADV J MOHAMED
Instructing attorneys:
• Applicant(s)/Appellant(s): BORMAN & BOTHA
• Respondent(s): NN DULLABH & CO.
CASE INFORMATION – MOTION COURT
• Nature of proceedings: Trial procedure – witnesses – where the defendant serves a subpoena on the plaintiff’s counsel to give evidence against his own client in circumstances where there is no sound reason to believe that that counsel will be able to give admissible evidence which will advance the defendant’s case, the most probable inference is that the service of the subpoena is an abuse of the process of the court which could justify a punitive order for costs on the scale as between attorney and client, and, where he litigates in a representative capacity, de bonis propriis – the subpoena was set aside and a punitive costs order was made.
• Topic:
Reportable
In the High Court of South Africa
(Eastern Cape Division) Case No 1708/05
Delivered: 04/12/06
In the matter between
ALBERTUS BEYLEVELD Applicant
and
MUHAMED ISMAEL PATEL N.O. 1st Respondent
and
DOUG DE KLERCK N.O. 2nd Respondent
and
THE MASTER OF THE HIGH COURT 3rd Respondent
SUMMARY: Trial procedure – witnesses – where the defendant serves a subpoena on
the plaintiff’s counsel to give evidence against his own client in circumstances where there is
no sound reason to believe that counsel will be able to give admissible evidence which will
advance the defendant’s case, the most probable inference is that the service of the
subpoena is an abuse of the process of the court which could justify a punitive order for costs
on the scale as between attorney and client, and, where he litigates in a representative
capacity, de bonis propriis – the subpoena was set aside and a punitive costs order was
made.
JUDGMENT
JONES J:
[1] There are three sets of papers before me. The first contains the
pleadings in the main case which is an action in which the plaintiff Savvas
Peter Koushis N.O. (whom I shall continue to call the plaintiff in this judgment)
seeks the removal of the 1st defendant (who is the 1st respondent and whom I
2
shall continue to call the 1st defendant) as a trustee in the insolvent estate of
the Savdav Trust (‘the Trust’). The second contains an opposed interlocutory
application for an amendment to the plaintiff’s particulars of claim in the main
case. The third set of papers is the application now before me. It is also an
opposed interlocutory application in the main case. In it an order is sought
setting aside a subpoena to give evidence in the main case on the ground that
its issue and service was an abuse of the process of the court. The 2nd and 3rd
respondents are cited for their formal interest in the litigation. No relief is
sought against them, and they have not participated.
[2] The background is that 1st defendant is a joint trustee in the insolvent
estate of the Trust which was placed under a final sequestration order on 3
February 2004. The Trust was a family trust for the benefit of a member or
members of the plaintiff’s family. The plaintiff was a trustee before insolvency.
He and his family retain an interest in the assets of the Trust, the value of
which allegedly exceeds that of its liabilities. The plaintiff was dissatisfied with
the 1st defendant’s administration of the insolvent estate of the Trust. He sued
for an order in terms of section 59 of the Insolvency Act 24 of 1936 declaring
that the 1st defendant is disqualified from acting as trustee, and for his removal
from office. The grounds were certain alleged criminal convictions, which are
not presently relevant, and certain allegedly dishonest and prejudicial conduct
in his administration of the trust, which are relevant to the subpoena issue and
to which I shall refer in due course. The same allegedly dishonest conduct is
3
the basis of an alternative claim for the 1st defendant’s removal from office at
common law.
[3] The 1st defendant denied the allegations, issue was joined, and the
matter was set down for trial on 11 September 2006. In August 2006, plaintiff
gave notice of his intention to amend his particulars of claim. The amendment
related to two matters. The first was the plaintiff’s locus standi to bring the
action, which had been placed in issue in the plea. The second was to
introduce further grounds for the 1st defendant’s removal from office, which
included a further act of alleged dishonesty by the 1st defendant in his
administration of the Trust. The 1st defendant opposed the amendment. In
doing so he reacted to the allegations of dishonesty made against him by
making counter allegations of dishonesty and improper conduct against the
plaintiff and against one Killick, who had played a prominent role in the affairs
of the Trust prior to its sequestration. He also attacked the honesty and
professional integrity of the plaintiff’s counsel. The application for an
amendment was set down for hearing on the roll of opposed motions to be
heard on 31 August 2006. But it was removed and postponed to 6 September
2006, and then, apparently, to 11 September 2006.
[4] On 6 September 2006 the defendant caused a subpoena to be issued
requiring the plaintiff’s counsel to be present at this court on 11 September
2006 in order to testify on behalf of the 1st defendant at the trial. It was served
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on 7 September 2006. The plaintiff and his legal team regarded the issue and
service of the subpoena as an abuse of the process of the court. Counsel
therefore brought an interlocutory application in his own name to have it set
aside. The 1st defendant opposed. On 11 September 2006 the application for
the setting aside of the subpoena was not yet ready for hearing and the
matter was postponed sine die to enable it to be dealt with in due course. The
application for the amendment was postponed sine die to be dealt with as a
preliminary issue on the roll of opposed motions. And the main action was
postponed.
[5] The opposing and replying papers in the application to set aside the
subpoena were filed in due course and the matter is now before me. The
subpoena has by now lapsed. But counsel for the plaintiff still regards it as an
abuse of the process of the court which should be set aside, and I was
advised from the bar that the 1st defendant has indicated an intention to issue
and serve a similar subpoena on counsel when a new trial date is set. The
issue is therefore still very much alive. Costs are also in issue.
[6] The dispute about the subpoena has its origin in the application for the
amendment. The original particulars of claim included two specific allegations
of misconduct by the 1st defendant. The first is contained in paragraph 12 of
the particulars of claim. It is that he entered into an agreement with one Killick
(allegedly a creditor in the insolvent estate) that in return for Killick’s support
5
for his appointment as a joint trustee he would share his fees as trustee with
Killick. In paragraph 13 he is alleged to have entered into a further feesharing
agreement with Killick, i.e. ‘that the 1st defendant also agreed with Killick,
whom he engaged to perform work on behalf of the Trust’s estate, to share
and accept from the said Killick and/or Finrec Trust a financial benefit for
appointing the said Killick and/or the Finrec Trust [to perform work] on behalf
of the Trust’.
[7] The second act of misconduct is contained in paragraph 14 of the
original particulars of claim, which reads:
14. The First Defendant made a similar arrangement (as pleaded in
paragraph 13) with one Olivier who he also appointed to perform work
on behalf of the insolvent estate.
[8] The amendment is in elaboration of the second act of misconduct set
out in paragraph 14, which becomes paragraph 14.1 if the amendment is
granted. Paragraph 14.2 is to be added. It reads:
14.2 In particular the First Defendant unlawfully entered into a commission
sharing agreement with the said Olivier in respect of the sale of the
properties [i.e. assets in the insolvent estate] and, without disclosing
such unlawful interest, was paid 50% of such commission without being
entitled thereto.
The amendment repeats this allegation in a new paragraph 16.4.3, which
alleges that the 1st defendant acted to the detriment of the insolvent trust and
in particular to the beneficiaries of the trust by disposing of the immovable
6
property owned by the trust at a purchase consideration far below the market
value, wellknowing that
‘16.4.3 he would make, and did make, a secret commission for
the sale of the said property, which commission, besides being
unauthorised and unlawful, was excessive in the circumstances’.
Only the amendments in paragraph 14.2 and 16.4.3, which bring in the same
new allegation, are relevant to the subpoena issue. The 1st defendant also
opposes the other respects in which the particulars of claim are to be
amended. But they have nothing to do with the subpoena.
[9] Further background is necessary for an understanding of the subpoena
issue. At one time Killick was closely involved in the Trust’s affairs. Prior to the
sequestration order but at a time when the Trust was in financial difficulty the
plaintiff had appointed him and/or a trust controlled by him (the Finrec Trust)
as the managing agent of the Trust’s immovable property in Port Elizabeth,
with wideranging authority and powers. Killick is alleged to have abused his
powers. More important, he is alleged to have fraudulently obtained a
judgment against the Trust by default in the sum of R294 00000 in the Port
Elizabeth High Court, and to have misappropriated rental that he collected on
behalf of the Trust. The plaintiff commenced proceedings for rescission of the
judgment before sequestration, but decided not to proceed with them. After
his appointment as joint trustee the 1st defendant took up the matter of
7
rescission, and indeed the judgment in question was set aside by the Port
Elizabeth High Court at his instance. The 1st defendant also laid charges of
theft against Killick arising out of the alleged misappropriation of the rental
moneys. As a result, Killick is currently facing criminal charges in the regional
court in Port Elizabeth. The criminal case is part heard.
[10] Counsel for the plaintiff has been considerably involved in litigation
arising out of the Trust’s affairs. He acted for the plaintiff and for Killick in
other related litigation between the parties which has been settled. He acted
for Killick for the limited purpose of arguing a point in limine in the application
for rescission of the judgment referred to above. He is also Killick’s counsel in
the theft case in the regional court. Counsel has always been retained by the
plaintiff in the main action and in the application for an amendment. He has
briefed other counsel to represent him in the subpoena application.
[11] So much for the background. I turn to whether it was an abuse for the
1st defendant to have served this subpoena on his opponent’s counsel. The 1st
defendant explained that this came about by reason of allegations made by
the plaintiff in his affidavit in support of the application to amend. The plaintiff
said in his founding affidavit that he was advised that it was necessary for him
to explain why he wished to make a late amendment to his pleadings. He said
that during the course of pretrial consultations with his counsel and attorney
on 2 August 2006 counsel was given ‘new insights on the facts’. This was as
8
a result of information confirmed and emphasised by him to counsel, and
information which had come to the attention of counsel during the course of
counsel’s conduct of the other civil and criminal litigation referred to above.
The information concerned the alleged improper sharing of commission with
Olivier and had arisen not only during the course of the criminal proceedings
against Killick, but also in the previous litigation between the parties which
had been settled (case No 1245/2004). It was nothing new and its insertion
into the pleadings did not give rise to prejudice.
[12] The 1st defendant’s argument is that by reason of the statements by the
plaintiff in his founding affidavit in the application to amend, his counsel, who
was the source of at least some of the information, became a potential
witness in the main case. He argued that the ‘new insights of the facts’, of
which counsel informed the plaintiff during consultation, form the foundation
and basis of the application for an amendment, and if the amendment is to be
allowed with its new cause of action, ‘he is clearly entitled to access to the
source of such information’. In a letter to the plaintiff’s attorneys, his attorneys
put his contentions thus:
‘Our client accordingly denies that the subpoena is an irregular proceeding
and abuse of process, as we are not dealing with information or advice given
to [counsel] by the plaintiff on a privileged basis. We intend inter alia to test
your client’s credibility and the source of the “socalled new facts” which
[counsel] allegedly brought to your client’s attention by disclosing these “so
called new facts” to your client. [Counsel] ought to have realised that he was
now becoming a potential witness in this matter as your client is clearly
9
relying on hearsay evidence which needs to be confirmed by [counsel].
[Counsel] should therefore have immediately withdrawn from the matter as
your client’s counsel’.
The content of this letter was confirmed by the 1st defendant in his affidavit. It
was the cornerstone of his argument at the hearing of the application. That
argument is entirely without substance. It does not provide a proper basis in
law or in fact for concluding that counsel for the plaintiff can be compelled to
testify against his own client in the main action.
[13] In the first place, what takes place between legal advisors and client
during pretrial consultations is ordinarily privileged, and counsel and
attorneys in this case, acting as the agent of their client, have exercised the
privilege on behalf of their client. Pretrial consultations involve inter alia
discussing the facts, considering the merits, and canvassing in detail the
evidence available for discharging the onus and countering the case which
the other side has put up. It frequently happens that a party’s legal team
investigates the merits, goes to the original source of the facts, and arranges
for those facts to be proved by the best evidence available. What is said
between the legal adviser and client at a pretrial conference patently falls
within the protection of legal professional privilege unless it is to be used for
some unlawful purpose. There is no suggestion here of an unlawful purpose.
It does not matter that in the course of the consultations counsel told the client
what was said in evidence in other litigation in which counsel was involved, or
10
that counsel told his client about facts that have come to his knowledge from
his involvement in the other litigation. While the facts relating to shared
commission are not privileged, the communication which passed between
counsel and client in relation to them is indeed privileged. What happened
here was that during the course of consultations information was exchanged
which resulted in advice from counsel that further allegations should be made
in the pleadings. This communication was made by counsel acting in his
capacity as counsel for the purpose of advising his client on the conduct of the
trial. It cannot be used ‘to test [the plaintiff’s] credibility’. I conclude that in this
case counsel cannot be compelled to testify on the matters in respect of which
he has been subpoenaed for the purpose stated by the 1st defendant.
[14] The suggestion was made in the course of argument that by referring
to the “new insights of facts” in his affidavit the plaintiff has waived his
privilege. That suggestion is unsound. The plaintiff did not disclose privileged
information in his affidavit. He disclosed merely that information had been
given without revealing the detail of what it was. A party to litigation cannot be
held to have expressly or impliedly intended to waive something so important
as a professionally privileged communication during the course of pretrial
consultations merely by asserting that such a communication was made. That
is particularly so within the present context, where the party was required to
explain the reason why an amendment was being made at a late stage. There
was no element of publication of the information itself which can serve as a
11
ground for the inference that the plaintiff no longer wished to keep the
communications between him and his counsel during the consultations
confidential (Ex parte Minister of Justice: in re S v Wagner 1965 (4) SA 507
(A) 514).
[15] From the aforegoing it is clear to me that the 1st defendant’s own
reasons for serving the subpoena reveal that the grounds for doing so are
inadequate. The allegations by plaintiff’s counsel in his affidavit, which cannot
realistically be disputed, place the matter beyond any doubt. This is not a
case of counsel having or acquiring direct personal knowledge of the facts of
the case independently of his brief. It is not as if he was a witness to the
commission sharing agreement and or has original knowledge of the ‘new
facts’ relating to it. He is not in a position to give direct, relevant, admissible
evidence about the matter. In addition, his case is that the information he
received was given to him in confidence as counsel, which raises complicated
issues of privilege enjoyed by others. Counsel’s advice was merely that as a
result of information about the commission arrangement that emerged during
the course of other proceedings, the plaintiff should adduce evidence of it in
the main case. Furthermore, his affidavit explained that following an
agreement reached at a pretrial conference the objective facts relating to the
issue of shared commission have become now common cause in the main
action. The rule 37 conference minute has recorded an admission that on 4
June 2005 the 1st defendant paid R99 50000 to Olivier in respect of agent’s
12
commission for the sale of the property in question, which was 10% of the
purchase price, and that on the same date the 1st defendant received R50
00000 from Olivier, which was deposited into his wife’s banking account. To
these admissions the 1st defendant added a reservation that he denied that he
received the money in his personal capacity. At the trial the only dispute will
be the intention or motive or reason for making and accepting the payment. In
the light of all of this, I am unable to understand what legitimate purpose there
could be in serving a subpoena on counsel to reveal the source of the
information.
[16] Questions of relevance and privilege are, of course, not necessarily
decisive of the subpoena issue. Counsel enjoys no immunity from having to
testify just because he is counsel for the plaintiff. Counsel in a case is and
remains a competent and compellable witness for either party at common law.
If there is a legitimate purpose for calling him as a witness on the merits he
will have to go into the witness box, take the oath and answer all lawful
questions put to him. In that event he will have to relinquish his brief to
represent the plaintiff. That is because if he is a witness he compromises his
capacity to give the conduct of the case his objective professional attention.
Nobody, not even he, can be sure that he will be able to observe and perform
in a proper and professional manner his composite duty to the client, the court
and the good administration of justice. It follows that if there is any sound legal
basis for the subpoena it will have to be obeyed. In seeking a sound basis for
13
it, it is necessary again to stress that while legal professional privilege applies
to communications between counsel and client and not to the facts which form
the basis of the allegation in the amendment, there is no basis in law for
requiring a party to litigation, who has made discovery of documents and
complied with the rules of court with regard to disclosure, to furnish his
adversary with the source of the facts or information which are part of his
cause of action. He does not have to disclose what his evidence is going to
be, let alone from what source that evidence emanated. In order to ascertain
whether there is a sound legal basis for the subpoena, I asked counsel for the
1st defendant repeatedly to explain to me in what respects the 1st defendant’s
case will be advanced if he is in a position to call the plaintiff’s counsel as a
witness. 1st defendant’s counsel was unable to do so. He was, furthermore,
not able to suggest any prejudice to the 1st defendant in the conduct of his
case if counsel was not called to give evidence on his behalf.
[17] There is therefore no possible reason at all for departing from the
strong policy considerations underlying our system of the administration of
justice which incline the courts not to oblige a legal representative to testify
against his own client. These policy consideration have been held to apply
even if, on a strict application of the law, he can be compelled to do so (S v
Boesman and others 1990 (2) SACR 389 (E)). In the absence of good
reasons why it is necessary for counsel to attend the trial as a witness, I need
not consider the matter from the standpoint of legal policy. I do not have to go
14
into the nature of our adversarial system and the importance to it of the
fundamental (though not absolute) rights which underpin confidentiality and
privilege as between legal advisor and client in our law (Sv Safatsa 1988 (1)
SA 868 (A) 885 E – 886 G).
[18] I have come to the conclusion that in the circumstances of this case the
issue and service of the subpoena on the plaintiff’s counsel was irregular and
without any legal or factual basis for its justification. The most probable
inference from the lack of good reasons, from the nature of the flimsy reasons
put up in argument by the 1st defendant, and the obvious embarrassment to
the plaintiff and to his counsel, is that it was indeed an abuse of the process of
the court. It must be set aside on that account. See Meyers v Marcus and
another 2004 (5) SA 315 (C) 323 B – 324 F; Beinash v Wixley 1997 (3) SA
721 (SCA) 734 E; Sher and other v Sodewitz 1970 (1) 193 (C) 195 D – E.
[19] There remains the question of costs. As the successful party the
applicant is entitled to costs. The application papers call for a punitive order
that the 1st defendant should pay the costs personally on the scale as
between attorney and client. That would be the order which would ordinarily
follow upon an abuse of the process of the courts. Mr Van Rooyen for the
applicant did not press for a punitive costs order in argument before me, but I
do not understand him to have abandoned it. In the final analysis I must make
a just costs order – a costs order which is fair to both parties. I should bear in
15
mind that the 1st defendant litigated in a representative capacity, and that if he
took a decision in the conduct of the case which was not objectively and
reasonably supportable as a proper decision in the interests of the insolvent
estate, but was instead an abuse of the process of the court, it will be unjust
that the insolvent estate should have to bear the costs. That being so, an
order that 1st defendant pay the costs de bonis propriis is in my view the only
proper order to make. I also consider that an order for costs on the scale as
between attorney and client is, in the circumstances, a proper order. Such an
order is designed not merely to mark the court’s disapproval of unwarranted
and unreasonable conduct which amounts to an abuse of its procedures. It is
also designed to ensure that a party is compensated properly and adequately,
more so than is possible on a party and party basis, for being brought to court
unnecessarily because the procedures of the court have been abused. In this
instance the 1st defendant has persisted with his justification of the subpoena
to the point of stating that it will be reissued when a new trial date is
allocated. He must have been aware that the step of subpoenaing counsel for
the other side was an unusual step, almost an unprecedented step, which
should not be resorted to lightly because of the acute embarrassment and
potential prejudice it would cause not only to the plaintiff but counsel as well.
He nevertheless took that step and has persisted with it for reasons which
turn out to be unsustainable. I can see no reason why the 1st defendant
should not be ordered to pay the applicant’s costs de bonis propriis on the
scale as between attorney and client.
16
[20] The following order will issue:
1. The subpoena issued at the instance of the 1st defendant on 6
September 2006 and served thereafter on the applicant is set aside.
2. The 1st defendant is ordered to pay the applicant’s costs de bonis
propriis on the scale as been attorney and client. The costs shall
include the costs of the proceedings on 11 September 2006 which
were reserved.
RJW JONESJudge of the High Court19 November 2006
17