HIGH COURT OF SWAZIALND
BANK SWAZILAND LIMITED
Case No. 2899/2001
the Plaintiff Advocate Theron (Instructed by
the Defendants Mr. P. Shilubane
matter was to commence for trial this morning. When the matter was
called Mr. Shilubane for the Defendant raised a point of law in
limine from the bar. The point raised is that the offices of Robinson
Bertram cannot act on behalf of the Plaintiff in this matter as they
acted for the Defendant in the same matter in 1997. The offices of
Robinson Bertram have not withdrawn as attorney of record for the
Defendant and thus there is a clear conflict of interest in this
Shilubane premised his objection on the dicta in the case of Kirkwood
Garage (Pty) Ltd vs Lategan and another 1961 (2) S.A. 75 where it was
held that where an
acts for both parties he should place an affidavit before the court
explaining how the position arose to show that it was proper for him
so to act.
Shilubane further referred to a textbook by J.R. Midgley, Lawyers'
Professional Liability (Juta's & Co. Ltd) at page 83 where the
learned author discusses the duty to avoid a conflict between a
lawyer's duty to his client and his ethical duties. The learned
author cites Gough to the statement that a lawyer may in some cases
continue to act in a conflict situation provided that both clients
consent, the attorney having informed them of the nature and origin
of the conflict and the implications of such representation. However,
this will not enable an attorney to act where privileged information
is likely to be disclosed, unless waiver has occurred.
general proposition advanced by these authorities, argues Mr.
Shilubane is that in the event of a material conflicting interest
existing or arising during the course of a trial, counsel should
withdraw and act for neither client.
Theron for the Plaintiff argued per contra. He referred the court to
page 20 of "Bundle "A" to annexure "C", more
particularly to Clause 5.2 which reflects that there was a compromise
in this matter and that such has the effect of res judicata and is an
absolute defence to an action on the original contract. For this
proposition he cited the case of Dennis Peters Investments vs
Ollerenshaw and others 1977 (1) S.A. 197 at 202 E to 203 B. He
further cited the authority in the case of Goliach & Comperts
(1967) Pty Ltd vs Universal Mills & Produce Co. (Pty) Ltd and
others 1978 (1) S.A. 914 at 922 to the proposition that a
transaction, whether extra-judicial or embodied in an order of court,
has the effect of res judicata.
is common cause that the offices of Robinson Bertram acted for the
Defendant in the same matter in 1997 as reflected in the application
for summary judgment filed by the Plaintiff against the Defendant.
The latter being represented by the offices of Robinson Bertram. The
application for summary judgement is dated the 8th April 1997. The
case was under Civil Case No. 492/97. It is common cause that the
parties entered into a compromise as reflected in Clause 5.1 in
annexure "C". It is further common cause that attorneys
Robinson Bertram have not withdrawn as attorneys of record for the
Defendant. This was partly conceded by Mr. Theron from the bar when
withdrew on behalf of the office of Robinson Bertram. He however,
argued that the rules of court have not been complied with in the
present case. He contended that what is important is that the parties
had knowledge of what is happening. Rule 41 has not been complied
is furthermore common cause that the offices of Robinson Bertram were
involved in the negotiations and drawing of annexure "C".
It appears to me that the principle enunciated in the cases cited by
Mr. Theron applies "inter partes", the fact remains that
the offices of Robinson Bertram acted for the Defendant and must have
shared certain confidences with the Defendant. I agree with Mr.
Shilubane in his submissions in toto that in casu there is a clear
conflict of interest in this matter.
the present case I hold that it would not be proper for the offices
of Robinson Bertram to act in the matter in the face of what I have
said therefore I would sustain the objection raised by the