| 54.1 | Unless otherwise stated or unless the context dictates otherwise, Part VI of this code applies to all legal practitioners and candidate legal practitioners in relation to appearances in any court in which they have the right of appearance or before any tribunal which performs a judicial, quasi-judicial or administrative function. |
| 54.2 | If Part VI of this code conflicts with any of the other provisions of this code then those other provisions will prevail and take precedence over the provisions of Part VI. |
| 55. | Interviewing of Witnesses |
General
| 55.1 | A legal practitioner shall ordinarily interview clients and witnesses in the presence of the instructing attorney or other representative of the instructing attorney (where an instructing attorney has been appointed). |
| 55.2 | A legal practitioner who is an advocate as contemplated in section 34(2)(a)(i) of the Act may interview a witness in the absence of the instructing attorney or other representative of the instructing attorney in the following instances ; |
| 55.2.1 | when the matter is undertaken on brief from Legal Aid South Africa or a law clinic; |
| 55.2.2 | when there is a need to interview a witness and the instructing attorney cannot reasonably attend; |
| 55.2.3 | when the legal practitioner is at court or before the tribunal with the client and the instructing attorney is absent; |
| 55.2.4 | when the instructing attorney gives permission. |
| 55.3 | A legal practitioner shall ordinarily interview witnesses whose credibility might be in issue separately from other witnesses. |
| 55.4 | Unless a legal practitioner intends to present evidence by way of affidavit to a court or a tribunal, the written statements made by witnesses in an interview with the legal practitioner or written statements made by witnesses that are given to the legal practitioner by the instructing attorney (where applicable) may not be obtained on affidavit. |
| 55.5 | Once a legal practitioner has called a witness to testify, the legal practitioner shall not again interview that witness until after cross examination and re-examination, if any, have been completed, unless circumstances arise that make such an interview necessary. When a proper case for such a necessary interview exists, the legal practitioner shall prior to any interview inform the opposing legal practitioner of such need and unless the opposing legal practitioner consents, no such interview shall be held unless the court or tribunal grants permission to do so. |
Interviewing of witnesses of the opposing party in civil proceedings
| 55.6 | A legal practitioner shall not be prevented from interviewing any person, at any time before or during any trial, from whom it is believed useful information may be obtained, and in particular, it shall not be a reason to prevent such an interview that the opposing party has— |
| 55.6.1 | subpoenaed or contemplates subpoenaing that person; |
| 55.6.2 | already interviewed or has arranged to interview that person. |
| 55.7 | Whenever, after the commencement of a case, a legal practitioner has reason to suspect that a person with whom an interview is then sought may have been in touch with the opposing party with a view to testifying, the legal practitioner shall, either before or at the outset of an interview, or if the suspicion arises only during the interview, once the suspicion arises, ascertain if that person has been in touch with the opposing party and whether such person has been subpoenaed or is likely to be subpoenaed by the opposing party or has already been interviewed or an interview has been arranged with the opposing party, and if informed that any of these steps have been taken by the opposing party, the legal practitioner shall at once notify the opposing party of the intention to interview that person, and shall not commence or continue with an interview until such notification has been received by the opposing party, and thereafter the interview may take place in the absence of any representative of the opposing party. |
| 55.8 | Whenever a legal practitioner arranges to interview a person who has already testified for the opposing party, before such interview may be conducted, the legal practitioner must invite the opposing party to attend the interview, on reasonable notice. However, regardless of the presence or absence of the opposing party, the interview may be conducted as arranged in the notification. |
Interviewing of prosecution witnesses by defence legal practitioner
| 55.9 | A legal practitioner shall, except as provided hereafter, when conducting criminal defences, take reasonable steps to prevent inadvertent contact with any person who is, or is likely to be, a state witness, for as long as that person is or is likely to be a state witness, and whenever the legal practitioner proposes to interview any person he or she shall ascertain whether such person is a state witness before conducting the interview. |
| 55.10 | A legal practitioner may interview a state witness if the prosecution consents, or, failing such consent, if a court grants permission to do so, and if permission is subject to conditions, in strict accordance with those conditions. |
| 55.11 | For the purposes of these rules of conduct, a state witness in relation to a particular charge includes anyone from whom a statement has been taken by the South African Police Service about a crime or alleged crime, regardless of whether the prosecution is committed to calling such person or not, and anyone who has already testified for the state. |
| 56. | The scope and limits of legitimate cross-examination |
| 56.1 | A legal practitioner shall cross-examine a witness with due regard to the right to dignity of the witness. |
| 56.2 | A legal practitioner shall guard against being influenced by any person to become a channel for the infliction of gratuitous embarrassment, insult or annoyance of a witness, and shall retain personal control over what is asked or put in cross-examination by exercising personal judgment about the propriety of all and any imputations. |
| 56.3 | A legal practitioner shall not put to a witness an allegation of fact if the legal practitioner has no reasonable expectation that admissible evidence, whether oral or otherwise, is available to be adduced to substantiate the allegation of fact. |
| 56.4 | A legal practitioner shall not impugn the character of a witness unless he or she has good grounds to do so. In this regard, good grounds are deemed to be present if— |
| 56.4.1 | the instructing attorney (if one is appointed) informs the legal practitioner that the attorney is satisfied that the imputation is well-founded and true. However, a mere instruction to put an imputation shall be inadequate; |
| 56.4.2 | the source of the imputation is the statement of any person other than the instructing attorney, and the legal practitioner ascertains from that person, or any other source, reliable information or reasons to believe that the statement is well-founded or true. |
| 56.5 | Regardless of whether the imputations about the witness are well-founded or true, the legal practitioner shall not put such imputations to a witness unless the answers that might be given could reasonably be believed to be material to the credibility of that witness or to be material to any issue in the case. |
| 56.6 | A legal practitioner shall not, in the conduct of a criminal defence, recklessly attribute to, or accuse, a witness or other person of the crime with which the client is being tried. Such an attribution or accusation may be made only if the facts adduced, or to be adduced, in evidence, and the circumstances which the evidence suggest, afford a reasonable basis from which rational inferences may be drawn to justify at least a reasonable suspicion that the crime might have been committed by that witness or other person. |
| 57. | Disclosures and non-disclosures by legal practitioner |
| 57.1 | A legal practitioner shall take all reasonable steps to avoid, directly or indirectly, misleading a court or a tribunal on any matter of fact or question of law. In particular, a legal practitioner shall not mislead a court or a tribunal in respect of what is in papers before the court or tribunal, including any transcript of evidence. |
| 57.2 | A legal practitioner shall scrupulously preserve the personal and confidential information of a client communicated to him or her, unless the information is not privileged and disclosure is required by law. |
| 57.3 | A legal practitioner shall not waive or purport to waive privilege in respect of privileged information; the decision to waive professional privilege is that of the client, not of the legal practitioner. |
| 57.4 | A legal practitioner shall, in any ex parte proceedings, disclose to a court every fact (save those covered by professional privilege or client confidentiality) known to the legal practitioner that might reasonably have a material bearing on the decision the court is required to make. |
| 57.5 | A legal practitioner shall, in all proceedings, disclose to a court or a tribunal all relevant authorities of which the legal practitioner is aware that might reasonably have a material bearing on the decision the court or tribunal is required to make. |
| 57.6 | A legal practitioner shall, if the interests of justice require the disclosure to a court or tribunal of information covered by professional privilege, seek from the instructing attorney (where one is appointed) and the client permission to make the disclosure, and if permission is withheld, the legal practitioner shall scrupulously avoid any insinuation in any remarks made to a court or tribunal that all information that would serve the interests of justice has been disclosed. |
| 57.7 | A legal practitioner shall not, in the event of being obliged to withdraw from representing a client in any proceedings, offer an explanation that would disclose the client’s confidential or privileged information. |
| 57.8 | A legal practitioner shall, if a draft order is presented to a court that deviates in any respect from standard form orders routinely made in that court, expressly draw such deviations to the attention of the court and offer a justification for such deviations. |
| 57.9 | A legal practitioner shall not rely on any statement made in evidence which he or she knows to be incorrect or false. |
| 57.10 | A legal practitioner shall not make use of any privileged information of the opposing party that has accidentally or unlawfully come into the possession of the legal practitioner, and shall at once he or she has knowledge of such circumstances, notify the legal representatives for the opposing party. However, if such information subsequently becomes available to the legal practitioner through lawful means, he or she shall not be prohibited from making use thereof. |
| 58. | Conflicts of interests involving legal practitioners |
| 58.1 | A legal practitioner shall guard against becoming personally, as distinct from professionally, associated with the interests of the client. |
| 58.2 | A legal practitioner shall not stand bail for the client. |
| 58.3 | A legal practitioner shall not accept a brief to appear before any court, council, board or other adjudicative tribunal, and whether statutory or voluntary in nature, if the legal practitioner is contemporaneously a member of that court, council, board or adjudicative tribunal, whether by election or appointment, and whether such membership is permanent, temporary or in an acting capacity. |
| 58.4 | A legal practitioner shall not be obliged to accept a brief if he or she has previously accepted a brief to advise another interested party about the matter. The legal practitioner must refuse such a brief if any confidential information having any bearing on the matter had been received by him or her with the earlier brief or a reasonable belief might exist that the client in the earlier brief might be prejudiced by such acceptance. |
| 58.5 | A legal practitioner may accept a brief to argue a case for a party despite having earlier given an opinion on the issues to the opposing party, provided that— |
| 58.5.1 | no information had been received by the legal practitioner for the purpose of giving the opinion about which a reasonable belief might exist that the client in the earlier brief might be prejudiced by acceptance of the later brief; and |
| 58.5.2 | the attorneys for both parties (where appointed), or an unrepresented party, agree to the offer of the later brief before an acceptance. |
| 58.6 | A legal practitioner may not accept a brief on appeal if the legal practitioner has accepted a brief for the opposing party at any stage of the proceedings. |
| 58.7 | A legal practitioner who has presided at an enquiry in terms of the company laws shall not at any time accept a brief to act in any capacity for any interested party in any subsequent proceedings related in any way to the subject matter of the enquiry. |
| 58.8 | A legal practitioner who has accepted a brief from a liquidator or from a trustee of an insolvent estate shall not at any time accept a brief to act in any capacity for any interested party in subsequent proceedings in the liquidation or the insolvency. |
| 58.9 | A legal practitioner shall not accept a brief if he or she has any form of relationship, including a family relationship, with the client or an opposing party which compromises, or which might reasonably be expected to compromise, the legal practitioner’s independence. |
| 58.10 | A legal practitioner shall not accept a brief where a position or office previously occupied by him or her with a client or with an opposing party compromises, or might reasonably be expected to compromise, his or her independence. |
| 58.11 | A legal practitioner shall not accept a brief on behalf of a provincial or municipal council of which he or she is a member. |
| 58.12 | An advocate who was previously an attorney acting for the client in a matter should not accept a brief as a legal practitioner in the same matter where the advocate’s former capacity, the extent of control and direction exercised by him or her as an attorney, or his or her established relationship as attorney with the client is likely to compromise the expectation that the advocate's advice about the conduct of the matter will be independent. |
| 59. | Conflicts of interest among clients of legal practitioners |
| 59.1 | A legal practitioner shall, when acting for two or more clients, be aware of the risk of a conflict of interests existing or arising in the course of the proceedings, whether criminal or civil, and once the legal practitioner is alerted to the existence of a conflict he or she shall withdraw from acting for one or all clients in those proceedings as soon as possible, and in particular - |
| 59.1.1 | if the legal practitioner has become aware of privileged or confidential information of any one client relevant to the proceedings that could be used to the prejudice of any other client, the legal practitioner may not act in any proceedings in which the prejudiced client is a party; |
| 59.1.2 | if the legal practitioner learns of a conflict of interest among clients at a time and under circumstances where the legal practitioner is not made aware of any privileged information, the legal practitioner may continue to act for one or other client as nominated by the instructing attorney (where one is appointed). |
| 59.2 | A legal practitioner may act for two or more adversaries in drawing a settlement agreement to capture their agreement, but must advise the parties of their rights to independent legal advice. Moreover, in any matter involving a settlement of a matrimonial dispute or a matter involving the regulation of care and residence of children, the legal practitioner shall take active steps to ensure that all aspects of any contemplated settlement is equitable to all parties and in the best interests of the children. |
| 60. | Commitment of legal practitioner to an effective court process |
| 60.1 | A legal practitioner shall not abuse or permit abuse of the process of court or tribunal and shall act in a manner that shall promote and advance efficacy of the legal process. |
| 60.2 | A legal practitioner shall not deliberately protract the duration of a case before a court or tribunal. |
| 60.3 | A legal practitioner shall take all reasonable steps to arrive promptly in a court or tribunal where the legal practitioner is expected to appear, and shall in this regard take reasonable steps to allow for habitual events that might inhibit prompt arrival. |
| 60.4 | A legal practitioner who is expected to appear in a court or before a tribunal at a given time shall honour that commitment and shall organise other commitments to prevent interference with the scheduled court hearings. In particular, the legal practitioner shall not endeavour to seek or arrange a postponement of the matter or a change to a different time to suit his or her convenience, except when the instructing attorney (where appointed) and the client, having been fully and accurately informed of the reasons relied upon by the legal practitioner, have agreed, and |
| 60.4.1 | when an opposing party is affected, the opposition legal representatives, if any, having been fully and accurately informed, have agreed, and |
| 60.4.2 | the business of the court or tribunal is not materially compromised. |
| 61. | Public comment by legal practitioner |
| 61.1 | A legal practitioner shall not comment publicly nor publish any opinions about matters which are before a court or other tribunal in which the litigation process is incomplete, except for the purposes of guiding public understanding of the issues that have arisen or may arise in the course of such proceedings. |
| 61.2 | A legal practitioner may publicly express opinions about any question of law or prospective law provided that the opinion is not likely to be construed as prejudging an actual case before the courts or any tribunal at that time. |
| 61.3 | Professional etiquette |
| 61.4 | Legal practitioners shall, upon a first appearance before a judicial officer, approach the registrar of the judicial officer (if the judicial officer is a judge), or the equivalent official in any other court, before the hearing in order to present themselves to the judicial officer; the rule is applicable to acting judges as well, and any prior professional or personal acquaintance with the acting judge is irrelevant. |
| 61.5 | At the trial court roll call, in the motion courts and in the divorce courts, legal practitioners shall seat themselves from the front row with regard to seniority. |
| 61.6 | Legal practitioners shall deal with the judicial officer, court staff and all other persons in court with civility and respect. |
| 61.7 | A legal practitioner shall, on the completion of his or her matter, remain in the courtroom until the legal practitioner in the next matter has risen, or if the legal practitioner is the last legal practitioner in court, until the court has risen. |
| 61.8 | A legal practitioner shall not, when briefed in an opposed matter, approach a judicial officer in the absence of the opposing legal practitioner, unless the opposing legal practitioner has expressly agreed thereto. |
| 61.9 | Legal practitioners shall not allow any ill-feeling between litigants or legal practitioners to interfere with the civil and professional conduct of the matter. |
| 61.10 | Legal practitioners shall not indulge in personal remarks about opposing legal practitioners or witnesses, whether in court or out of court, and shall not allow any antipathy that might exist between the legal practitioner and the opposing legal practitioners personally to intrude upon the conduct of the matter. |
| 61.11 | After a hearing when judgment is awaited, a legal practitioner shall not place before, or try to send to, a judicial officer any further material of whatever nature, except by agreement among representatives of all parties; provided that, if consent is unreasonably withheld, the placing of such further material may, in an appropriate case, be the subject matter of an application to re-open the hearing to receive it or, if the further material consists only of references to authorities which might offer assistance to deciding a question, a legal practitioner may address a request in writing to the judge’s registrar or equivalent court official to approach the judicial officer with an invitation to receive the references. |
| 61.12 | A legal practitioner shall not deliberately seek to catch an opposing legal practitioner off-guard. Accordingly— |
| 61.12.1 | whenever a legal practitioner has prepared heads of argument, other than when compelled to do so in terms of the rules of conduct of court, he or she shall not later than the time when the heads are presented to a court also give the opposing legal practitioner an identical set of such heads; |
| 61.12.2 | whenever a legal practitioner gives a bundle of authorities to the court, he or she shall also give at least a list containing the authorities to the opposing legal practitioner; |
| 61.12.3 | whenever a legal practitioner makes use of a transcript of proceedings, he or she shall give the opposing legal practitioner a copy no later than the first time that reference is made to the transcript; |
| 61.12.4 | whenever a legal practitioner is intent on taking a point of law not evident from the papers, independently of any rule of court that might apply, he or she shall notify the opposing legal practitioner in good time to avoid that opposing legal practitioner being taken unawares; |
| 61.12.5 | whenever a legal practitioner intends presenting the court with an unreported judgment, he or she shall, in advance of the hearing, notify and give a copy of the judgment to the opposing legal practitioner in good time to avoid the latter being taken unawares. |
| 61.13 | Legal practitioners who have cause to lodge formal complaints about the conduct of other legal practitioners shall compose a full account of the circumstances giving rise to the complaint and shall submit the complaint to the authorised substructure of the Council. |
| 61.14 | Complaints shall be dealt with in accordance with prescribed procedures for the regulation of professional conduct. |
| 62. | Additional provisions relating to legal practitioners |
The provisions of paragraph 26 shall apply to legal practitioners, with the necessary changes required in the context, as if they were included specifically in this Part.
