Is a legal practitioner’s involvement in presenting misleading evidence a breakdown in the justice system?

September 1st, 2021
x
Bookmark

Picture source: Gallo Images/Getty

By Nomthandazo Mahlangu

In the recent case of Koni Multinational Brands (Pty) Ltd v Beiersdorf AG (SCA) (unreported case no 553/19, 19-3-2021) (Schippers JA (Cachalia JA and Sutherland and Unterhalter AJJA concurring)), the Supreme Court of Appeal (SCA) firstly considered whether the respondent established the requisite reputation and goodwill in its ‘get-up’ (packaging), and secondly considered whether the appellant’s use of a ‘get-up’ similar to that of the respondent had the likelihood to create confusion.

Summary of the facts

The respondent argued that the appellant was passing off its shower gel as that of, or as being associated with the respondent, using a get-up likely to cause market confusion about the source of the shower gel or its connection to the respondent. Beiersdorf argued that given the extensive and longstanding use of its get-up, the packaging has become associated with it and so too have NIVEA personal care products. Though this decision merits an incisive analysis, this article focuses merely on the questionable conduct of the respondent’s legal practitioners. The first part of the judgment reads:

‘The Legal Practice Council [LPC], Pretoria, to investigate the circumstances in which the respondent’s attorneys, [and the customer who gave the evidence], failed to disclose [the customer’s] association with the respondent’s attorneys to the Gauteng Division of the High Court, Johannesburg and this court, when filing an affidavit by her as a member of the public, and to take whatever steps it deems appropriate in the light thereof’.

In the original court proceedings, the respondent’s legal practitioners relied on evidence obtained from a customer believed to be a member of the public. According to the affidavit, the customer thought she was purchasing the applicant’s shower gel, when she was actually purchasing the respondent’s shower gel. The customer claimed that she realised the error after closely inspecting the product at home and after her husband had already used it.

During the hearing in the SCA, a member of the Bench inquired whether the customer was associated with respondent’s legal practitioners of record, which the counsel confirmed. The customer’s identity was then revealed. As it turned out, the customer was a legal practitioner, who at the time, worked for the law firm, Adams & Adams, the respondent’s legal practitioners. This then prompted the appellant’s legal practitioner to submit that the conduct of the respondent’s legal practitioners had constituted a serious and material non-disclosure. Differently formulated the argument was, that the respondent’s legal practitioners failed to disclose a material fact. Non-disclosure, however, is seemingly a misnomer under the circumstances, or maybe not?

The High Court in reaching its decision determined that customers were likely to be confused based on – among other considerations – the evidence presented by the purported customer. To a degree the court’s decision was attributable to evidence of actual confusion. The premise encapsulated in the court’s observation that the appellant’s get-up exhibited ‘signs of straining every nerve to evoke the respondent’s product in the minds of consumers’. The irrefutable conclusion was, the evidence of actual confusion that was presented, strongly swayed the court’s decision in the applicant’s favour, and to determine precisely the extend of such influence is somewhat impossible.

What makes this case unique?

Central to this exposition, was the question of whether the presentation of misleading evidence was deliberately planned?

In common practice, if the trademark owner suspects that passing off is taking place, it sends agents to suppliers to make test purchases and see if they can detect cases of confusion. In addition, if confusion is present, the trademark owner will issue a cease-and-desist letter through its legal practitioners. Litigation ensues if the so-called infringer refuses to either accede to or capitulate to the demand. The remarks by court in Beiersdorf AG v Koni Multinational Brands (Pty) Ltd 2019 BIP 23 (GJ), per Makgoka JA, correctly bolsters this contention, namely that ‘Beiersdorf knew very well that had it disclosed [the customer’s] true identity, her evidence would have carried little, if any weight at all’. The court reasoned that ‘in the absence of any explanation, an irresistible inference must be that this was a conscious effort to mislead the court’.

Implicit in this case, are the nuances to flirt with the confines of perjury, which only engenders the elements of non-disclosure. The challenge is whether the respondent’s legal practitioners passive involvement in presenting misleading evidence caused the miscarriage of justice, hence, their actions were just as unethical as the act of perjury. The aim of this article is not to persuade readers that the respondent’s legal practitioners committed perjury, certainly the conduct in question does not satisfy the legal definition of perjury. However, it does not negate the respondent’s legal practitioners’ effort to sail as close to the wind as possible.

Another point that invites dialogue is the reason for court’s referral of this matter to the LPC, which will be dealt with under the Legal Practice Council Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and Juristic Entities. The LPC is conferred with the power to regulate the affairs of the legal practitioners and to hold members answerable to its norms and standards. Naturally, this is understood considering the fact of the prevailing jurisdictional constrains. However, the question is, whether or not the conduct of the respondent’s legal practitioners fall within the Code of Conduct’s definition of circumstances under which a legal practitioner may be found guilty of non-disclosure, or if non-disclosure is simply not expressly prohibited – then what, does it connote that conduct, which is not prohibited is permitted?

The risk is that the court is treating ethical conduct in the terms of what the rules stipulate, ignoring the fact that any experienced sophisticated legal practitioners can omit material information and likely circumvent disciplinary action. If the respondent’s legal practitioners are not disciplined, what perception would that conjure up to the public and legal fraternity? By hypothesis, if the LPC effectively polices itself and decisively disciplines the legal practitioners, it will be in consonant with its rules. But if the rules inadvertently allow impugned conduct to go unpunished then the belief that courts are bound by transformative imperatives rings hollow. Borrowing from the wisdom of the court that:

‘In [all organised] societies, people often rely on the courts of law to give direction in their disputes. How the court discharges this task will have a bearing on how the public views the whole justice system. In colonial times and later apartheid era, courts of law did not have legitimacy in the eyes of the black majority’ (Thulani Nkosi and Neo Mahlako ‘Are courts going out of their way to accommodate racists? A critique of South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others’ (2020) 24 Law, Democracy & Development 338).

Conclusion

Legal practitioners are held to the highest standards of honesty and integrity. Presenting evidence knowing it is inadmissible, is inconsistent with the duty that legal practitioners owe to the court, and it amounts to professional misconduct. What is particularly poignant in this case, is the posture of the court and its silence or rather its reluctance to condemn the conduct of the respondent’s legal practitioners. This is not to suggest that courts must usurp the power of the regulatory authority. On the contrary, the court has a meaningful role to play in litigation, which is to seek the truth. The egregious failure of the judiciary is situated in the South African legal culture of the courts, which undermines the constitutional transformative agenda, which would otherwise require the democratic values, social justice and fundamental rights to be prominently featured in the court’s decision. The role of judges is not only limited to interpreting legal sources but also to transformatively shape the conduct and values of society. Presenting evidence knowingly of its inadmissible nature taints the image of courts.

Nomthandazo Mahlangu LLM (Unisa) is an independent researcher in Pretoria.

This article was first published in De Rebus in 2021 (Sept) DR 16.

X
South African COVID-19 Coronavirus. Access the latest information on: www.sacoronavirus.co.za