Ethical duties of legal representative

13 Apr 2021 12:00 am by Merilyn Kader

In Mzayiya v Road Accident Fund [2021] 1 All SA 517 (ECL) an application for default judgment was made by the plaintiff in a motor vehicle accident case. In his particulars of the claim, the plaintiff alleged that an unidentified motor vehicle had collided with him on 20 March 2019, when in fact the accident had happened more than 12 years earlier.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Ethical duties of legal representatives: In Mzayiya v Road Accident Fund [2021] 1 All SA 517 (ECL) an application for default judgment was made by the plaintiff in a motor vehicle accident case. In his particulars of the claim, the plaintiff alleged that an unidentified motor vehicle had collided with him on 20 March 2019. Compensation was sought from the defendant.

In an affidavit deposed to on 18 August 2020, the plaintiff’s legal practitioner (Mr Klaas) admitted that the allegation that the accident occurred on 20 March 2019 was false, and it was stated that the accident in fact occurred on 15 February 2007, more than 12 years earlier.

In Mzayiya several issues were of concern to the court. No explanation was given for the misrepresentation and no amendment was sought to correct the date. Another troubling aspect raised by the court was the possibility that someone other than the plaintiff might have signed the affidavits. The affidavit in support of the claim was commissioned by the same advocate who appeared in court for the plaintiff. The court questioned the propriety of the advocate’s subsequently appearing in a matter where he had commissioned one of the affidavits relied on in support of the application, he being at all material times under an ethical duty to maintain his independence in relation to his client and the litigation.

The court, as per Kroon J, held that the claim was a bogus one based on the incorrect premise that the accident occurred on 20 March 2019 and that future medical expenses and loss of earnings should be calculated from that erroneous date onwards. How the incorrect date came to be used in the papers was a matter of concern as the accident reports clearly showed the correct date. Moreover, a draft order presented to court reflected the correct date, suggesting an attempt to obtain relief by way of a draft order containing facts materially different to what was contained in the particulars of claim and affidavit deposed to in support of the default application, and without the knowledge of the defendant.

The issues raised led the court to explain the ethical standards required of legal practitioners. A legal practitioner has a pre-eminent duty to the court not to embark on a litigation plan that will mislead the court.

As the particulars of claim on which the application for default judgment was sought referred to a non-existent accident, the relief sought could not be granted. In any event, given the manner in which the plaintiff’s legal representatives approached the court, the matter could not be entertained, and was accordingly struck from the roll. The court questioned whether the legal representatives who were responsible for lodging and prosecuting the claim and seeking default judgment might have been guilty of unprofessional conduct. As a result of the questions about their bona fides, the matter was referred to the appropriate bodies for further investigation. Should the plaintiff wish to proceed with the claim he was required, within 21 days, to bring a substantive application for leave to amend his particulars of the claim to reflect the correct date of the accident and was required to give a full explanation as to the matters raised in the court’s judgment.

Merilyn Rowena Kader
Legal Editor at LexisNexis