Topic

COMMON LAW ETHICAL

DUTIES OF A LEGAL
PRACTITIONER
 Duties to the State
A legal practitioner is an officer of the court and has a
general duty to sustain the law.

On admission, he or she is required to swear an oath of

loyalty to Zimbabwe.

The duty to sustain the law entails obeying the law and
advising clients to obey the law; it also prevents legal
practitioners from assisting their clients to break the law.

The duty does not however extend to reporting clients to

the authorities if they break the law or seek advice on how
to break the law.
 Non-political illegality
Generally, legal practitioners must not be involved in non-
political illegality, criminal or civil, either in their practice or
in their private life, nor may they counsel others to engage
in it.
For example, a legal practitioner should not engage in a
scheme of tax evasion (as opposed to tax avoidance) nor
encourage a client to do so.
Legal practitioners must advise their clients against
infringements of the law and must not assist clients to
infringe it.
Legal practitioners must not, for example, advise their
clients to disobey court orders
 Non-political illegality…cont
A conviction for any offence of which the ingredients are dishonesty or
moral unworthiness is almost certain to invite some disciplinary action
on the part of the Law Society.
For example, advising or assisting a client to bribe an official would
result in a practitioner’s being struck off or suspended, as would a
conviction for rape or indecent assault.
On the other hand, motoring offences are usually ignored by the Law
Society.
But a deliberate or reckless repetition of an offence otherwise untainted
with dishonesty or unworthiness may well be regarded as supplying
sufficient taint to bring it to the attention of the Law Society.
In other words, persistent or repeated convictions for even a relatively
venial offence may amount to dishonourable or unworthy conduct.
Aitken v Law Society of Zimbabwe 1995 (2) ZLR 383 (S) at 389E.
 Non-political illegality…cont
Generally, the practice of courts has been to treat the
conviction of a legal practitioner for a criminal offence,
whether in his or her capacity as a legal practitioner or not,
as prima facie evidence that the practitioner is unfit to
remain registered, though this applies only to offences of a
kind which cast doubt on the practitioner’s character or
integrity
Proof of a criminal conviction is regarded as prima facie
evidence that the legal practitioner has committed the
offence concerned, though it is open to the practitioner to
try to persuade the court that he or she should not have
been convicted Mafara v Law Society of Zimbabwe 1987 (2)
ZLR 293 (S) at 296 E-F.
 Political dissent
This is always a difficult issue: to what extent may a legal
practitioner defy unjust laws?
A legal practitioner has a positive duty to sustain the law, a
duty to “further the administration of justice to the best of his
ability” (Society of Advocates of SA (Witwaters-rand
Division) v Fischer 1966 (1) SA 133 (T) at 137C-D.
But in Incorporated Law Society, Transvaal v Mandela 1954
(3) SA 102 (T), Mr Mandela’s conduct in addressing a meeting
and urging his listeners to bring about the repeal of the pass
laws by defiance and industrial action, was found not to be
dishonourable even though, as a result of that conduct, he
had been convicted of contravening the Suppression of
Communism Act and sentenced to nine months in prison.
(Read the case)
 Political dissent…Cont..
 On the other hand, in Natal Law Society v Maqubela 1986 (3) SA 849 (N),
the respondent attorney had been convicted of high treason, in that he had
been part of a conspiracy that brought about explosions which caused
considerable damage to property and injured innocent people.
 His conduct, the court found, justified his being struck off despite the fact
that it was politically motivated.
 See also Incorporated Law Society Natal v Hassim 1978 (2) SA 285 (N),
where a conviction for involvement in recruiting people to undergo
political and military training in order to overthrow the government was,
similarly, held to be personally disgraceful justifying a practitioner’s being
struck off. The offence, the court said, was equivalent to high treason.
 In Zimbabwe, given the Draconian nature of our security laws and the very
wide definition of treason in the Criminal Law Code, one can say with fair
certainty that a conviction for treason would not necessarily justify a legal
practitioner’s being struck off or de-registered.
 The penalty, if any, to be imposed upon such a practitioner would depend
on the nature of his or her conduct.
 Duty to the Courts
Legal practitioners are officers of the court and have duties
towards the courts in which they appear.
They are not “mere agents for their clients”, but have duties
towards the judiciary to ensure the efficient and fair
administration of justice.
According to Rule 6 of the IBA International Code of Ethics:
 “6. Lawyers shall always maintain due respect towards
the Court. Lawyers shall without fear defend the interests of their
clients and without regard to any unpleasant conse-quences to
themselves or to any other person. Lawyers shall never knowingly
give to the Court incorrect information or advice which is to their
knowledge contrary to the law.”
 Duty to the Courts…Cont…
And the Canadian Model Code of Professional Conduct states , as
examples of pro-hibited conduct, that a lawyer must not:
“(e) knowingly attempt to deceive or participate in the deception of a tribunal or
influ-ence the course of justice by offering false evidence, misstating facts or law, pre-
senting or relying upon a false or deceptive affidavit, suppressing what ought to be
disclosed or otherwise assisting in any fraud, crime or illegal conduct;
(f) knowingly misstate the contents of a document, the testimony of a witness, the
substance of an argument or the provisions of a statute or like authority;
(g) knowingly assert as true a fact when its truth cannot reasonably be supported by
the evidence or as a matter of which notice may be taken by the tribunal;
(h) make suggestions to a witness recklessly or knowing them to be false;
(j) improperly dissuade a witness from giving evidence or advise a witness to be ab-
sent;
(i) deliberately refrain from informing the tribunal of any binding authority that the
lawyer considers to be directly on point and that has not been mentioned by an opponent;
(k) knowingly permit a witness or a party to be presented in a false or misleading
way or to impersonate another”.
 Duty to the Courts…Cont…
According to Lawton J in Rondel v W [1966] 1 All ER 467 (QB)
at 479:
“An advocate [meaning a pleader in court] … is helping the judge to do justice.
He is most helpful when he is putting his client’s case as well as it can be put, but
he must never forget that he owes a duty to the court as well as to his client.
Many advocates, in the course of their professional lives, have to face the
embarrassment of bringing to the attention of the court authorities of which
their opponents have been ignorant and which they know will lose the case for
the client who has paid their fees … This is but one example of counsel’s duty to
the court … He may not provide or devise a line of defence for a client … He may
not assert that which he knows to be a lie. He may not connive at, much less
attempt to substantiate, a fraud … He must not be a party to any deception of the
court. In a criminal case, if some irregularity comes to his knowledge before
verdict is given, he must bring it to the attention of the court at the earliest
possible moment and must not hold it in reserve with a view to taking it later as
a point before the [appeal court] when it would be too late to remedy the
mistake.”
 Respect for the courts
 Legal practitioners must respect the courts in which they appear, but respect does not mean
spineless subservience.
 The client’s interests must be upheld. Practitioners must not allow judicial officers to browbeat
them and must be prepared to fight against what seems to be unfair treatment.
 But any such fight must be conducted with proper respect and decorum.
 Above all, practitioners must keep themselves under control.
 However obtuse or obstinate a judicial officer may seem to be, practitioners must not lose their
temper, for if they do they are liable to lose their case and their client, and may even be punished
for contempt of court.
 A legal practitioner should avoid criticism of the bench, save in a proper manner.
 Baseless allegations of bias on the part of a judicial officer are improper, as are unsubstantiated
allegations of judicial impropriety
 For a case in which a legal practitioner, who wrote in forceful terms to the Attorney-General
about a perceived injustice to her client, was initially censured by the High Court but exonerated
by the Supreme Court, see Mutanda v Attorney-General & Anor 2013 (2) ZLR 683 (S).
 See Ex parte Chief Immigration Officer 1993 (1) ZLR 122 (S) at 125D–E, where Gubbay CJ said that
practitioners should avoid openly criticising proceedings in which they have been involved, for if
they do there is a risk that their criticism may be partisan rather than objective.
 See also Matamisa v Mutare City Council 1998 (2) ZLR 439 (S) and Dzeka v Nyabango 2004 (1)
ZLR 204 (H).
 Respect for the courts…Cont…
Applications for the recusal of a judicial officer must be made
respectfully and tactfully.
The judicial officer should where possible be informed of the
application and the grounds for it before the application is made.
A practitioner should not seek a judicial officer’s recusal solely because a
client has instructed him or her to do so; before making the application
the practitioner must be satisfied that there are proper grounds for it.
Furthermore, a practitioner should make an application for recusal
upon becoming aware of the grounds justifying the application; it is not
in the interests of justice to permit a litigant, who has knowledge of all
the facts upon which he or she may apply for recusal, to wait until the
judicial officer has delivered an adverse judgment before raising the
issue of recusal.
One way in which legal practitioners show respect for the courts is by
behaving decorously and dressing suitably.
 Courtroom etiquette
 The golden rule for courtroom behaviour can be summed up as: Be polite to everyone in
court: the presiding judicial officer, other lawyers, witnesses, clients and all.
 There are times when one may have to be impolite ‒ when cross-examining a recalcitrant
witness, for example ‒ but a practitioner who follows this golden rule will not go far wrong.
 More specifically, the following advice on courtroom behaviour should be followed:
 Dress appropriately. The dress expected of a legal practitioner appearing in the higher courts ‒ the
Constitutional Court, the Supreme Court, the High Court, the Administrative Court and the Labour
Court ‒ is a dark suit worn over a white shirt (or blouse, in the case of a woman) with either a jabot or
a wing collar and bands. In addition, the practitioner should wear a black lawyer’s gown.
Practitioners appearing in magistrates courts should wear smart business attire, which means in the
case of men suits or jackets and dark trousers, with collared shirts and ties; in the case of women it
means a conservative dress or suit with a plain collared shirt or blouse.
 Be punctual. Arrive in court on time. This does not mean arriving just before court is due to start.
It means getting there in time to sort out your papers and, where necessary, seeing that your client
and any witnesses are there and speaking to the opposing lawyer. In other words, get to court in time
to be ready to begin as soon as the judicial officer enters the courtroom. Practice Note No. 1 of 1981
(published in 1981 ZLR 215).
 Switch off your cell-phone before you enter the courtroom.
 If you are appearing before a judge for the first time, it is courteous to introduce yourself before the
proceedings begin.
 Address the judicial officer by his or her correct title: My Lord (or My Lady) for judges, Your Worship
for magistrates.
 Courtroom etiquette…Cont…
 Address your opposing lawyer as “My learned friend” ‒ even if you dislike him or her intensely.
 If you enter the courtroom when the judicial officer is on the Bench ‒ i.e. if he or she is dealing
with a case ‒ bow towards him or her as soon as you come in and take your seat so as to cause
minimal disruption. Similarly, if you leave the courtroom while the judicial officer is still
sitting, get up from your seat quietly and bow to the judicial officer before you leave the room.
 While in a courtroom waiting for your case to begin, do not read a newspaper or play games
on your smart-phone.
 Do not eat food or sweets or chew gum in court.
 Remember that the judicial officer presides over the court. Address your remarks, requests,
objections and observations to the judicial officer rather than to an opposing lawyer. This
does not apply to questions you put to witnesses when examining or cross-examining them:
you put such questions directly to the witnesses.
 Stop talking and stand up when the judicial officer enters the courtroom and do not sit down
until he or she does. Similarly, when the court adjourns, stand up when the judicial officer
stands and do not sit down or start talking until he or she has left the courtroom. This applies
to judicial officers too: there are few sights more repellent than a bewigged judge chewing
gum.
 Stand up when addressing the judicial officer or answering his or her questions and when
questioning a witness.
 Courtroom etiquette…Cont…
 Stand up when the judicial officer addresses you. When another lawyer is speaking, sit
down until called upon by the judicial officer.
 Do not turn your back on the judicial officer when he or she is talking to you.
 If you have been given a fixed time within which to address the court ‒ as is the case in the
Constitutional Court ‒ do not exceed the time-limit.
 When addressing the court or questioning a witness, try to pitch your voice so that everyone
can hear you. Don’t shout, but don’t whisper either.
 Avoid acrimonious or antagonistic behaviour, towards opposing lawyers and particularly
towards judicial officers. It is never a good way to persuade anyone or to advance your case.
 Do not interrupt an opposing lawyer unless it is absolutely necessary, for example to stop
him or her asking a witness an inadmissible question. Never try to shout down another
lawyer.
 When the judicial officer has made a ruling against you on a point, do not try to re-argue it.
Your remedy, if any, will be by way of appeal or review. Instead, accept the ruling graciously
by saying: “As your Lordship (or Ladyship) pleases,” where the ruling has been made by a
judge, or “As your Worship pleases,” where a magistrate has made the ruling.
 If you are successful in a case, shake your opponent’s hand if it is offered and offer yours if it
is not. If you lose the case, offer your hand to your opponent. If judgment has been
reserved and you have lost, phone your opponent and congratulate him or her.
Communications with judicial officers
 Legal practitioners should not speak privately to judicial officers about proceedings
involving their clients.
 It is a cardinal rule that whenever a legal practitioner wants to see a judicial officer in
chambers in connection with a contested matter, he or she must notify the other
parties to the litigation, or their legal representatives, and invite them to accompany
him or her to see the judicial officer.
 Any communication with a judge or magistrate who is presiding over such legal
proceedings should be done (if in writing) through the registrar or clerk of the court, or
(if orally) in open court or in chambers in the presence of the legal practitioner for the
other side.
 It is customary for a legal practitioner who is representing a party in a matter that is to
be heard by a judicial officer before whom the practitioner has not previously appeared,
to pay a courtesy call on the judicial officer in chambers before the hearing in order to
introduce himself or herself.
 Even in such a case, however, the practitioner must invite the other parties to
accompany him or her to see the judicial officer.
 Once a case has been argued and is awaiting judgment, a legal practitioner who was
involved in the case must not communicate with the judicial officer in regard to the
merits of the case.
 Any such communication will be construed as an unprofessional attempt to influence
the judicial officer’s decision.
 Abuse of court process
 It is impossible to define comprehensively what is meant by an abuse of court process, but in
general terms it would take place when the court’s procedure is used by a litigant for a purpose
for which it was neither intended nor designed, to the prejudice or potential prejudice of another
party to the proceedings.
 It may also take place when a litigant institutes proceedings that are obviously unsustainable.
 A legal practitioner must not abuse court process, e.g. he must not enter an appearance to
defend when there is no defence, and must not use court procedures to intimidate the other side
or delay matters.
 He should not file bogus pleadings.
 Needless to say, he must not deliberately alter court process, for that usually amounts to forgery
or fraud.
 Nor should a legal practitioner try to frustrate court procedures. For example, if his or her office
is the client’s address for service of court process (which it usually is), it is unethical and
unprofessional for the practitioner to refuse to accept service of process. Standard Credit Corp Ltd
v Bester & Ors 1987 (1) SA 812 (W) at 820A and African Farms & Townships Ltd v Cape Town
Municipality 1963 (2) SA 555 (A) at 565 D-E.
 For example, Ndlovu v Murandu 1999 (2) ZLR 341 (H), where a legal practitioner who assisted his
client in applying for an order confirming the unlawful cancellation of a contract which he knew
was legally binding, was deprived of his fees.
 See also Brenner’s Service Station & Garage (Pty) Ltd v Milne & Anor 1983 (4) SA 233 (W) and
G R Engineering (Pvt) Ltd & Anor v Mitre Engineering (Pvt) Ltd & Anor HB-29-2005.
 Duty to assist the court adjudicate on real issues
 In civil proceedings lawyers should generally try to help the court adjudicate on the real
issues in the case, rather than allow those issues to be obscured in a welter of procedural
objections, interlocutory applications, points in limine and appeals.
 As the Canadian Model Code of Professional Conduct puts it:
 “In civil proceedings, a lawyer should avoid and discourage the client from resorting to
frivolous or vexatious objections, attempts to gain advantage from slips or oversights not going
to the merits or tactics that will merely delay or harass the other side. Such practices can
readily bring the administration of justice and the legal profession into disrepute.”
 A legal practitioner’s duty to help the courts adjudicate on the real issues of a case is a duty
the practitioner owes to the court and it prevails over the practitioner’s duty to the client:
hence practitioners must conduct cases so as not to take up the courts’ time unnecessarily
even if their clients give instructions to the contrary ‒ or, as an Australian judge put it,
“notwithstanding that the client may wish to chase every rabbit down its burrow.” Canadian
Model Code of Professional Conduct, Commentary [8] to Guiding Principle 5.1-1.
 In Telecel Zimbabwe (Pvt) Ltd v POTRAZ & Ors 2015 (1) ZLR 651 (H) at 659C-E, Mathonsi J
castigated lawyers who raise points in limine, particularly objections to having applications
dealt with on an urgent basis:
 “A preliminary point should only be taken where firstly it is meritable and secondly it is likely
to dispose of the matter. The time has come to discourage such waste of court time by the
making of endless points in limine by litigants afraid of the merits of the matter or legal
practitioners who have no confidence in their clients’ defence vis-à-vis the substance of the
dispute, in the hope that by chance the court may find in their favour. If an opposition has no
merit it should not be made at all.”
Duty to assist the court adjudicate on real issues…Cont…
 The learned judge suggested that practitioners who raise such points should be penalised by
ordering them to pay costs de bonis propriis.
 What has been said above applies to civil cases. In criminal cases legal practitioners
representing accused persons can take preliminary points and can raise procedural
objections, so long as they are not frivolous and are likely to assist their clients.
 It must be remembered that in criminal cases the prosecution has to prove its case beyond a
reasonable doubt ‒ a heavy onus ‒ and if the State fails to do so the accused person is
entitled to an acquittal, even if the State’s failure was due to a technicality. Accused persons
who are acquitted on a technicality will often be freed from further prosecution. Hence
raising technical and procedural points is more likely to benefit clients in criminal cases
than in civil ones.
 But, as already indicated, legal practitioners should not raise technical points frivolously, or
purely for the purpose of delaying proceedings, even in criminal cases.
 The reason behind legal practitioners’ duty to assist the courts in deciding real issues
touches on the fundamental purpose of the legal system, which is to resolve disputes
between litigants, to do justice between litigants so that people do not resort to self-help
and use force to secure their rights.
 If the courts decide cases on mere technicalities without dealing with the substance of the
disputes referred to them, the courts and the entire legal system will fall into disrepute.
 Legal practitioners have a duty to ensure that this does not happen.
 Undertakings and assurances to courts
 If legal practitioners give an undertaking to a court that they will do something — for example, file a document
or submit written argument — then they must keep their word.
 It is unethical not to do so, and failure to honour an undertaking may result in the practitioner being ordered to
pay costs.
 Courts usually accept a legal practitioner’s assurances as to matters of fact concerning a case, and in order to
deserve this trust practitioners must act with the utmost good faith towards the court.
 A practitioner must ensure either that his assurances are true — i.e. that their truth is within his knowledge —
or that the source of the practitioner’s information is identified.
 One important undertaking that legal practitioners must do their best to keep is the implied or express
undertaking to appear in court when a case is called in which they are representing a party. Busy practitioners
sometimes find that two cases in which they are involved are set down for hearing at the same time — in other
words, they have “double-dated”. In that event they must try to resolve matters as soon as possible, either by
arranging a postponement of one of the matters (with the consent of their client, the other party and the court)
or by seeing that their client will be represented by another practitioner.
 It is unprofessional conduct for a practitioner to:
 “[Return] a brief which he or she has accepted and for which a fixed date has been obtained or breaking any
other engagement to supply legal services in order to enable him or her to attend or fulfil another
engagement of any kind, except with the consent of the client or other justifiable excuse (in which event the
client shall be notified as soon as possible).”
 It is an invaluable asset for legal practitioners that judicial officers should recognise their honesty and have full
confidence in the truth of statements they make or assurances they give. This is an asset which practitioners can
very easily lose if they ever betray the trust and confidence reposed in them by the courts See for example,
Maposa v Digglefold Development Assoc & Anor HH-47-07.
 Paragraph 3(49) of the Schedule to the Legal Practitioners (Code of Conduct) By-laws, 2018 (SI 37 of 2018).
 Misleading a court: concealment of facts
 A legal practitioner must never knowingly mislead the court, directly or by omission,
but must always act fairly and in good faith.
 Particularly in chamber applications, there must be full disclosure of all material facts
(i.e. of all matters that are material to the granting of the application and of which the
practitioner is aware).
 A legal practitioner must not assist a client to conceal any such facts.
 When preparing affidavits for any applications, legal practitioners must be careful to
ensure that statements of fact in the affidavits are supported by the persons who will
swear the affidavits or by their clients’ instructions.
 The duty to be open with the court begins when the practitioner applies for
registration. The applicant must disclose everything that has a bearing on his or her
fitness to be registered. For example, if the applicant has previously been convicted of
criminal offences that may be material to the application, they must be disclosed.
 On the other hand, a legal practitioner who knows of facts which would assist his or
her adversary in court is not always under a duty to inform the adversary or the court of
those facts, if to do so would prejudice the practitioner’s own client.
 He would be under such a duty if concealing the facts would amount to misleading the
court or lying or would otherwise be regarded as dishonourable. For example, if a
practitioner knows that a relevant affidavit has been filed in the proceedings and is
therefore notionally within the knowledge of the court, then the practitioner has a duty
to inform the judicial officer of its existence if the judicial officer has overlooked it
 Misleading a court: concealment of facts…Cont…
 In defended matters the duty of disclosure may be stated as a duty not to actively
mislead the court.
 The duty would not extend to requiring disclosure of weaknesses in one’s own
case, but might cover the suppression of a fact, unknown to the other side, which
would completely disentitle one’s client to the relief claimed.
 There is no clear demarcation between honourable disclosure and assisting the
other side, but nonetheless practitioners must keep on the right side of the
dividing line between the two.
 It should be mentioned that although practitioners must not mislead courts, they
do not necessarily have to believe in the arguments they address to the courts.
 A practitioner is entitled to put forward a legal argument even though he or she
does not believe it represents the better or more correct view of the law.
 Practitioners must not put forward arguments they know are wrong, of course;
but short of that they may advance arguments in favour of a particular point of
view even though they believe that a different view is more correct.
 That is why lawyers preface their arguments with “I submit …” rather than “I think
…” Lawyers’ submissions do not necessarily reflect what they actually think.
 Argument: citation of authorities, even adverse authorities
 Argument in court must never be misleading, either on the facts or the law. Carelessness is
frowned on in this regard.
 Legal practitioners are expected to know the law or, if they don’t, to make a reasonably diligent
effort to ascertain it.
 Deliberately misleading a court as to the contents of a statute, judgment or other authority is
grossly unethical conduct.
 On the other hand, a legal practitioner does not necessarily have to believe in the correctness of
a legal argument he or she is putting to a court.
 If a law is capable of two or more legitimate interpretations – and few laws are so clear that they
can only be interpreted in one way – then a practitioner is entitled to argue for whichever
interpretation best suits the client’s case even though the practitioner may feel that the law
should be interpreted differently, so long as he or she does not try to mislead the court as to the
contents of any statute, judgment or other authority.
 If the practitioner is aware of any authority, whether case law or statute, that goes against the
argument which he or she is putting to the court, then the practitioner must bring that
authority to the attention of the court, even where the other side is legally represented.
 In the first instance the practitioner may inform opposing counsel of the authority (assuming it
is not cited in counsel’s heads of argument), but if opposing counsel does not refer it to the
court then the practitioner must.
 Failure to do so is unethical and betrays the trust which the court reposes in the practitioner S v
Khumalo HB-70-1991.
 Argument: citation of authorities, even adverse authorities…
Cont
 See the Canadian Model Code of Professional Conduct, Guiding Principle 5.1-
2(e), cited earlier, and the Zimbabwean cases of Kawondera v Mandebvu 2006
(1) ZLR 110 (S) and Mashonganyika & Anor v Pfute & Ors 2014 (2) ZLR 382 (H)
at 389E-H.
 That is why legal practitioners should preface their arguments with “I submit
that …” rather than “I think that …” or “I believe that …”
 A practitioner is submitting the client’s case to the court and is not necessarily
telling the court what he or she actually believes or thinks is the law.
 Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H) at 596.
 Unwarranted allegations
A legal practitioner should not make allegations in legal
proceedings that are intended only to insult, degrade or
annoy the other side, or any witness or other person.
If possible, a practitioner should also avoid naming in open
court persons who are not witnesses or parties to the
proceedings, if naming them is likely to bring their
characters into disrepute.
Instead, the practitioner should ask the court to receive
their names and addresses in writing, rather than allow their
names to be revealed in public.
 Interviewing witnesses
Generally
Generally, it is most improper to interview a witness who is still giving evidence (e.g. during an
adjournment).
It can only be done after informing the court and explaining to the court why it is necessary to do so.
A prosecutor who does this is guilty of unprofessional conduct, which amounts to a gross irregularity
that may warrant setting aside the proceedings.
To tamper with a witness by trying to get the witness to change his or her evidence is serious
misconduct.
In similar vein, it is improper to offer payment to a witness contingent upon the nature of the
evidence the witness gives, or upon the outcome of the case. Clearly such a payment is likely to have
a material effect on the witness’s evidence.
On the other hand, it is not improper to offer to pay a witness’s expenses for attendance at court, so
long as the payment is not made contingent on the nature of the witness’s evidence or the outcome of
the case.
Witnesses’ statements should not be taken on oath. It is improper to do so in civil cases. The only
reason for taking such a statement on oath is to make the witness fear a perjury charge if he or she
departs from the statement; hence making a witness swear an affidavit is a form of undue influence.
The rule (against taking witnesses’ statements on oath) should also apply to criminal cases.
Needless to say, the rule does not apply to proceedings such as applications, where the evidence of
witnesses is normally adduced by means of affidavits.
 Interviewing witnesses
Civil cases
In civil cases, a legal practitioner can interview anyone as a prospective
witness, whether or not that person has been interviewed or subpoenaed by the
other side.
If, however, the person has been interviewed or subpoenaed by the other side,
a legal practitioner should notify the other side’s practitioner before interviewing
the person.
And if such a person is interviewed, it should be done only with a view to
deciding whether or not the person should be called or in order to obtain
information which may lead to the obtaining of other evidence.
The interview should not be used to obtain material for cross-examining the
person should he or she be called by the other side.
International Tobacco Corp (SA) Ltd v United Tobacco Co (South) Ltd 1955 (2)
SA 1 (W) at 12.
 Interviewing witnesses
Criminal cases
In criminal cases, the defence may not interview State witnesses to find out what
their evidence will be, unless the prosecutor consents.
On the other hand, if the State does not call one of the people it has told the
defence it will call as a witness, then it must make that person available to the
defence.
To avoid problems arising over the interviewing of State witnesses, practitioners
should always ask the prosecutor to provide them with the names of persons
whom the State intends to call as witnesses.
A prosecutor must provide such a list when asked for it.
Reid Rowland (Criminal Procedure in Zimbabwe, pp 18–32-3) recommends that
prosecutors should not interview State witnesses, other than expert witnesses,
unless it is necessary to clarify the witness’s evidence in the prosecutor’s mind.
Any such interview should be conducted with a colleague present.
In the case of expert witnesses, on the other hand, an interview is often a good
thing because it may give the prosecutor an insight into the nature and importance
of the technical evidence which the witness will be giving.
 Examination of witnesses
When examining and cross-examining witnesses, the legal
practitioner must be fair, and must not try to adduce
irrelevant or inadmissible evidence.
Bullying a witness is not permissible.
While cross-examination may be a powerful engine for
eliciting the truth, cross-examination by harassment is one
of the greatest impediments to the truth.
It must be avoided.
 Freedom of speech: defamation
 A legal practitioner must have a considerable degree of freedom in laying his
or her client’s case before the court.
 Hence a practitioner who, in the interests of a client, makes a defamatory
statement in court, or in pleadings, is protected by qualified privilege if he or
she proves that the statement was relevant to the question at issue in the case.

 If the practitioner proves this, then it is for the person suing the practitioner
for defamation to prove that even though the statement was relevant it was
not supported by reasonable grounds or that the practitioner, in making the
statement, acted with an improper motive.
 This applies to statements made in civil and criminal cases.
 The legal practitioner is not obliged to satisfy himself that the statement is
true. He may accept the instructions of his client but should consider himself
as upon his inquiry as to the reliability of those instructions.
 If he obtains the information from someone other than his client, he should
satisfy himself that the information is correct before using it.
 See Neethling, Potgieter & Visser Law of Delict 3rd ed p. 345. See also Joubert
& Ors v Venter 1985 (1) SA 654 (A).
 Freedom of speech: defamation…Cont
 In all cases, though, it is an elementary principle of common sense for a
practitioner to take every reasonably possible step to verify a defamatory
allegation before putting it to a witness in court — in the interests of the
practitioner’s professional reputation, if nothing else.
 When the profession was divided into advocates and attorneys, an advocate
who obtained defamatory information from his instructing attorney and then
put it to a witness in court was protected from a defamation action unless he
knew the statement to be untrue or had no reasonable ground for believing it
might be true.
 The basis of the rule was that the advocate was entitled to assume that the
matter had been sifted and that the allegation could be proved if necessary.
 It is submitted that the rule continues to apply in a fused profession, where a
legal practitioner receives defamatory information from another practitioner
who is instructing him or her.
 Joubert & Ors v Venter 1985 (1) SA 654 (A)