Mzayiya v Road Accident Fund [2021] 1 All SA 517 (ECL)
By Michele van Eck
The issue of legal ethics is not novel to the legal profession. In fact, the Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities (GG42364/29-3-2019) read with s 36(2) of the Legal Practice Act 28 of 2014 (the Act) highlights the expected standards of conduct of legal practitioners. This notwithstanding, there are still instances where South African courts have highlighted the importance of legal ethics. A recent example can be found in the Mzayiya case, where the court emphasised that discharging an effective trial strategy is secondary to the legal practitioner’s duty towards the court. Herein the court highlighted ethical principles that are comparable to the expected standards found in the Code of Conduct, which effectively function as guidance of the expected conduct of legal practitioners.
The facts in brief
The issue before the court related to the date of a motor vehicle accident. A default judgment application was brought before the court but the documents that formed part of the application reflected different dates of the accident. On the one hand, the
s 19(f) affidavit, summons, particulars of claim, and the affidavit in support of default judgment application, indicated that the accident occurred in March 2019. While on the other hand, the medical report, draft order, and subsequent explanatory affidavit of the legal practitioner, indicated that the accident occurred in February 2007. The court dismissed the notion that the different dates were that of an error or typo and described it as a misrepresentation. The court also pointed out that:
- The way the incorrect date of the accident was presented in the draft court order and the lack of explanation (or correction of this in the court papers) was a point of concern.
- The incorrect date of the accident in the papers had significant ramifications, including depriving the Road Accident Fund (RAF) from raising a special plea in relation to prescription.
- The name of Mzayiya’s mother appeared as the deponent to the s 19(f) affidavit, as well as the affidavit in support of the default judgment application. This brought to question whether Mzayiyaknew about or had been involved in the claim at all.
Ultimately, the matter was struck from the roll and the court referred the matter to the National Prosecuting Authority to investigate if there was a fraudulent claim, and it was also referred to the Legal Practice Council to investigate whether the legal practitioner was guilty of unprofessional conduct, fraud, and obstruction of justice.
Ethical principles highlighted
It is unfortunate that the court did not refer to the Code of Conduct in its judgment, but it did make important observations regarding the professional and ethical duties of legal practitioners. Central to this was that the litigation strategy employed should not be designed to mislead the court. Therein, five principles can be extracted from the judgment, which is comparable to the principle in the Code of Conduct:
| Principles confirmed by the court |
Code of Conduct equivalent |
| The legal practitioner has a duty to uphold the values of honesty and integrity (para 82). |
Article 3.1 requires a legal practitioner to ‘maintain the highest standards of honesty and integrity’. |
| The legal practitioner has, despite their duty towards the client, a duty towards the court that must be upheld (para 87). |
Article 3.3 requires a legal practitioner to fulfil their duty towards a client, but that such a duty is subject to the legal practitioner’s duty towards the court, the interest of justice, observing the law, and maintaining ethical standards of the profession. |
| The legal practitioner must not offer or rely on false evidence (para 83). |
There are several comparable provisions in the Code of Conduct, but two are highlighted. The first being art 18.15.1, which requires a legal practitioner not to represent anything that they may know to be untrue. Article 9.2 expands on this principle requiring that the legal practitioner must not advise a client to ‘contravene any law’ and may not ‘devise any scheme, which involves the commission of any offence’. |
| Not allow a client to depose of an affidavit that the legal practitioner knows contains false information (para 83). |
Article 9.7.2 may apply indirectly and requires a legal practitioner ‘not [to] recklessly make averments or allegations unsubstantiated by the information given to the legal practitioner’. |
| Documents should not be drafted in a way that is different to the information received from the client (para 83). |
Article 57.1 requires a legal practitioner not to mislead the court ‘on any matter of fact or question of law’, any may not mislead the court on ‘what is in papers before the court’. |
Kroon AJ noted that to ‘suppress evidence or worse still to suborn perjury, is to sabotage the administration of justice and it strikes at the heart of the legal practitioner’s duty to the court’ (para 83). Therein, the duty of disclosure is part of the legal practitioner’s duty to fulfil their role in the ‘proper administration of justice’ (para 87).
Conclusion
This case is one of many cases that have highlighted the professional and ethical duties of a legal practitioner. Not only is there a duty to one’s client, but there are wider considerations necessary to consider when executing legal services. This includes that of the legal practitioner’s duty towards the court, justice, the law itself as well as ethical considerations. Kroon AJ, put it as follows ‘[c]ases can and should be fought fearlessly but they must be fought within the bounds of honour and propriety’ (para 93).
Although the court did not refer to the Code of Conduct, many of these principles are now recorded in the Code of Conduct. A failure to adhere to the Code of Conduct may have a negative impact not only on the outcome of the matter for the client, but also on the individual legal practitioner.
Dr Michele van Eck BCom (Law) (RAU) LLB (UJ) LLM (UJ) LLD (UP) is a senior lecturer at the University of Johannesburg.
This article was first published in De Rebus in 2022 (Jan/Feb) DR 32.
