Bhengu v Minister of Safety and Security (3858/03) [2009] ZAKZDHC 60 (28 October 2009)

IN THE KWAZULU-NATAL HIGH COURT, DURBAN

REPUBLIC OF SOUTH

AFRICA

CASE NO: 3858/03

In the matter between

HEZEKIA M. BHENGU Plaintiff

and

THE MINISTER OF SAFETY AND SECURITY Defendant

____________

JUDGMENT

1. The Plaintiff instituted action against the Defendant for damages suffered arising from wrongful arrest and detention.

2. When the matter was called the Defendant’s Counsel raised concern about the appearance of the Plaintiff’s Counsel and pointed out, in explanation, that the Plaintiff’s Counsel was directly involved in the events giving rise to the action.

3. By agreement between the parties I was then required to determine whether or not it was desirable for the Plaintiff’s Counsel to appear in the action. (Plaintiff’s Counsel, correctly, in my view, informed me that, in such event, he would withdraw).

4. It is common cause that the Plaintiff was arrested on 31 October 2002, detained until 7 November 2002 (when he was released on bail) and that the case was adjourned, thereafter, to 10 December 2002 (when the charges were withdrawn).

5. It is common cause that the Plaintiff’s Counsel was involved in two factual events:

(a) in terms of the first, Plaintiff’s Counsel arrived with the Plaintiff and, apparently, made him available to the police. (The Defendant contends that the Plaintiff was produced in terms of arrangement concluded with the Plaintiff’s Counsel, in terms of which the Plaintiff would be handed over for arrest and detention);

(b) in the course of the bail application, the Plaintiff stated that he had been informed by his Counsel (the same Counsel who appeared before me) that he (the Counsel) had been informed by the police involved in the Plaintiff’s arrest, that the Plaintiff was, in fact, not implicated in the attempted robbery and attempted murder on which he was arrested and that he (the Plaintiff) was required as a witness. In argument Plaintiff’s Counsel confirmed having been involved in these discussions and having drafted the affidavit making reference thereto and, therefore, admitted, by implication, that if he had to testify, he would confirm that the police had made these statements to him. The Defendant’s Counsel, however, denied (on his instructions) that the police had made such a statement.

6. It is clear from the aforegoing that a direct factual dispute will arise on the two issues. It is also clear that the two issues are directly relevant to the main issue, namely whether or not the Plaintiff was wrongfully arrested and detained. (After all, if the Plaintiff was required as a witness and simply arrested when he refused to co-operate, on charges which did not implicate him, such a finding would go a long way, if not all the way, towards establishing wrongful arrest and detention).

7. It follows from the aforegoing that I am satisfied that Counsel had personal knowledge and could become a witness, on directly relevant factual disputes.

8. I was not told whether or not Counsel would be called as a witness. Since the parties agreed that in the event of my making a finding in terms of para 3 above, the action should be adjourned. In the circumstances I made an order adjourning the action to a date to be arranged (preference having been granted by Shabalala JP).

9. The Defendant claimed that the Plaintiff should pay the costs occasioned by the adjournment. The Plaintiff argued that the costs should be reserved.

10. I do not think that any purpose would be achieved by reserving the costs for another Judge to consider.

11. In general it is undesirable for Counsel to act as Counsel and witness. In the present case there is no indication that Counsel would, indeed, be called to give evidence for the Plaintiff. There does, however, seem to be a reasonable prospect of that happening. After all, the Plaintiff (independently represented) might well be heard to say that his best witness is his Counsel whose credibility is presumed to be above suspicion. Where that risk exists, Counsel should be careful to avoid the situation where, in due course, he might find himself simultaneously at the Bar and in the witness box:

“...in circumstances where his credibility may be in issue it would appear to be undesirable for an Attorney who is to be an important witness in any matter to act as the Attorney of Record. The fact that the witness is the Attorney of Record for one of the litigants does of course not affect his competence as a witness in any way. It is important that an Attorney should at all times retain his independence in relation to his client and the litigation which is being conducted. If he is to give important evidence in the case in circumstances where his credibility may be called in question, his independence as a professional advisor to his client in the matter may, in my opinion, be affected”.

Elgen Engineering Co v Hillview Ortor Transport 1961 (4) SA 450 D (at 454).

12. These remarks apply even more to Counsel.

13. I have also considered the relevant Rules of the General Council of the Bar and the Society of Advocates (KZN) which, equally, demonstrate that, in a case like this, it would be desirable for Counsel to withdraw.

14. It therefore seems to me that Mr Slabbert’s decision to withdraw is correct. (In fact, he informed me that, when this had become clear during the course of last week, attempts had been made to find other Counsel, all to no avail).

15. How does this affect my discretion on costs?

16. It seems to me that Plaintiff’s Counsel should have anticipated this state of affairs. Although the pleadings do not identify these events as issues, Mr Slabbert should have foreseen the likelihood of a factual dispute on the main issue. After all, he must have anticipated a dispute on this issue, since, as I have said, arrest and detention on charges of attempted robbery and murder, of a witness who refuses to co-operate must go a long way towards establishing the wrongfulness of the arrest and detention. Since, according to the Plaintiff’s affidavit, the arresting officer had admitted to Mr Slabbert that the Plaintiff had not been implicated in the robbery and that he would be arrested, nevertheless, if he did not co-operate as a witness.

17. Irrespective of the Defendant’s failure to respond to the specific questions raised at the pre-trial conference (relating to these issues), the very problem which now arose, should have been foreseen by the Plaintiff. That directly caused the adjournment. In the circumstances the Plaintiff should pay the costs occasioned by the adjournment.

_____

MR ACTING JUSTICE

MARAIS

28 OCTOBER 2009