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

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

The court found that Plaintiff's Counsel had personal knowledge of material facts in dispute and could become a witness on directly relevant issues. This created a risk of Counsel simultaneously acting as advocate and witness, which is undesirable and contrary to professional rules. The Plaintiff's Counsel's decision to withdraw was correct. The Plaintiff, through his Counsel, should have foreseen the likelihood of a factual dispute and the resulting need for withdrawal, which directly caused the adjournment. Therefore, the Plaintiff should bear the costs occasioned by the adjournment.

Citation
[2009] ZAKZDHC 60
Parties
Plaintiff: Hezekia M. Bhengu; Defendant: The Minister of Safety and Security
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
28 October 2009
Case Number
3858/03
Procedural Posture
Civil Trial / Interlocutory Application Regarding Counsel's Withdrawal and Costs
Outcome
The action was adjourned to a date to be arranged, with costs of the adjournment awarded against the Plaintiff.
Judges
Marais
Legal Topics
Counsel as Witness, Adjournment Costs, Wrongful Arrest, Detention
Civil Procedure Counsel as Witness Adjournment Costs Wrongful Arrest Detention

Case Brief

Summary, issues, holding and outcome

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Parties

Hezekia M. Bhengu

Plaintiff

The Minister of Safety and Security

Defendant

Procedural Posture

Civil Trial / Interlocutory Application Regarding Counsel's Withdrawal and Costs

Legal Issues

  1. 1 Whether it is desirable for Plaintiff's Counsel to appear in the action when he may be a material witness.
  2. 2 Who should bear the costs occasioned by the adjournment due to Counsel's withdrawal.

Ratio Decidendi

The court found that Plaintiff's Counsel had personal knowledge of material facts in dispute and could become a witness on directly relevant issues. This created a risk of Counsel simultaneously acting as advocate and witness, which is undesirable and contrary to professional rules. The Plaintiff's Counsel's decision to withdraw was correct. The Plaintiff, through his Counsel, should have foreseen the likelihood of a factual dispute and the resulting need for withdrawal, which directly caused the adjournment. Therefore, the Plaintiff should bear the costs occasioned by the adjournment.

Court Disposition

The action was adjourned to a date to be arranged, with costs of the adjournment awarded against the Plaintiff.

Orders

  • The action is adjourned to a date to be arranged.
  • The Plaintiff is ordered to pay the costs occasioned by the adjournment.