Judicial Reminder: The Ethical Obligation and Fiduciary Duty of Plaintiff Attorneys to Discourage Baseless Legal Actions

Attorneys representing plaintiffs should take note of a judgement recently handed down in the High Court of South Africa, Gauteng Division, Johannesburg.

Two unemployed plaintiffs instituted action against the Minister of Police, Minister of Justice and Correctional Services, and the National Director of Public Prosecutions, each claiming R5,000,000.00 for their alleged unlawful arrest and malicious prosecution.

During the trial, it became evident that the plaintiffs’ version regarding the events surrounding their arrests and especially the circumstances under which they were arrested, differed materially from the defendants’ version.

In view of the differing accounts, the presiding judge was required to assess the credibility, deciding to either accept the plaintiffs’ version of the arrests and surrounding evidence, or reject it in favour of the defendants’ witnesses’ version.

The judge found that both plaintiffs were “evasive during cross-examination, failed to make reasonable concessions when it was patently obvious that they should have done so, and generally did not impress as honest and credible witnesses”.

Counsel for the defendants argued that the plaintiffs’ legal team breached their fiduciary duty by presenting a case that was not only unfounded but also deliberately fabricated, characterised by evidence full of inconsistencies and improbabilities intended to deceive the court. In support of this argument, it was submitted that the plaintiffs’ legal team had access to the case docket—which included statements from witnesses for the defendants—four weeks prior to the trial. This meant that the defendants’ version of events was fully known to the plaintiffs and their legal team well in advance of trial. Despite this knowledge, the plaintiffs presented their case without attempting to deal with the defendants’ version of events.

Agreeing with the defendants, the judge ruled that the institution of the action was opportunistic, leading to a significant drain on court time, public funds, and police resources. With this in mind, the judge dismissed the case, with a punitive cost order levied against the plaintiffs.

The judgment serves as a timely reminder to plaintiff attorneys of their ethical obligations and fiduciary duties, which include dissuading clients from instituting and/or persisting with baseless cases.

Article written by:

Jean-Paul Rudd

Partner, Adams and Adams

09/04/2024