WDL and Others v Gundelfinger and Others

• Jurisdiction: South Africa
• Citation: 2022 (2) SA 272 (GJ)

WDL and Others v Gundelfinger and Others
2022 (2) SA 272 (GJ)

2022 (2) SA p272

Citation	2022 (2) SA 272 (GJ)
Case No	20/24681
Court	Gauteng Local Division, Johannesburg
Judge	Windell J
Heard	December 21, 2020
Judgment	December 21, 2020
Counsel	KJ van Huyssteen (attorney) for the applicants.; G Farber SC (with J Woodward SC) for the respondents.

Flynote : Sleutelwoorde

Legal practitioner — Attorney — Rights and duties — Duties — Former clients — Confidential information — What constitutes — Husband's former attorney in divorce proceedings joining firm representing wife in same pending divorce proceedings — Application by husband to interdict former attorney and/or any associates of firm she joined from acting for wife — Whether information imparted to former attorney remained confidential — Degree of specificity required iro information claimed to be confidential — Whether 'inherent jurisdiction approach' to be applied.

Headnote : Kopnota

One of the three attorneys who dealt with Mr L's divorce matter at the firm that previously represented him, Ms Steyn (the second respondent), joined the first-respondent firm of attorneys (Gundelfinger Attorneys) which represented his wife (Mrs L) in the same pending divorce proceedings. When this came to Mr L's attention, his new attorneys, citing a conflict of interest, demanded that first respondent withdraw as Mrs L's attorneys. The demand was not acceded to, and Mr L (and his new attorneys as second applicant) brought the present application for a final interdict against, inter alia, the first and second respondent and/or any of its associates representing Mrs L in the divorce proceedings. This on the basis that it was the only available remedy for protection of Mr L's unqualified right to the confidential information imparted to Ms Steyn when she represented him and that he had a well-founded apprehension of harm that the confidential information had been or would be compromised by virtue of Ms Steyn's employment with Gundelfinger Attorneys.

Mr L further submitted that if the court found that he had failed to meet the standard of proof required for such interdict, the court must, as a matter of public policy, exercise its inherent jurisdiction to control the conduct of its own officers, as the basis for such an interdict so as to ensure the due administration of justice and the integrity of the judicial process.

The respondents did not dispute that Ms Steyn received confidential information from Mr L but contended that the applicants failed to furnish particularity and specificity of the confidential information sought to be protected, and as a result failed to establish that the confidential information alleged to have been imparted, or reasonably apprehended to have been imparted, to Ms Steyn remained confidential and relevant to the issues in the divorce proceedings. (See [13].)

Held

The only duty that survived the termination of the legal representative's mandate was the duty to preserve the confidentiality of information imparted to them through their professional relationship with a former client. In order to obtain an interdict to preclude a former representative from acting against a former client, the latter must, inter alia, prove that the information remained confidential, relevant and that the interests of the present client were adverse to theirs (see [6]).

The degree of particularity required depended on the facts of a particular case. It was generally not sufficient for an applicant to make a general allegation that the attorney was in possession of relevant confidential information if

2022 (2) SA p273

this was at issue. The more general the description of the information which an applicant sought to protect, the more difficult it was for the court to satisfy itself as to the relevant confidential information that should be protected. This requirement must be insisted on, even though it may necessitate disclosing to the court the very information sought to be protected. The applicants did not make the slightest attempt to identify, with the necessary degree of specificity, the information which they contended was confidential. In the specific circumstances of this case, it was a fatal deficiency. Moreover, the applicants did not attempt to demonstrate that the information imparted to Ms Steyn remained confidential and, if so, might legitimately be said to be memorable and not forgettable. The failure to do so, in the specific circumstances of this case, was also fatal to their application. The application for a final interdict must therefore fail at the most fundamental level: the right foundational to the relief sought had not been established to have been extant at the time Ms Steyn entered the employ of Mr Gundelfinger. (See [6], [52] and [56] – [57].)

As a matter of public policy and in the interest of the administration of justice, the facts in the present matter justified the recognition of the 'inherent jurisdiction approach' in our law. The inherent jurisdiction of the court to grant such relief was discretionary and should be exercised only in exceptional circumstances and with caution. The test was whether a reasonably minded person in possession of all the relevant facts would consider the judicial process and due administration of justice to be threatened if Mr Gundelfinger continued to act for Mrs L in the divorce proceedings. This was not established, and in the circumstances it was not in the public interest to disqualify Mr Gundelfinger from continuing his services to Mrs L. Consequently, the application would be dismissed. (See [77], [84] and [89].)

Cases cited

Southern Africa

Absa Bank Ltd v Chopdat2000 (2) SA 1088 (W): referred to

Absa Bank v Hammerle Group2015 (5) SA 215 (SCA): referred to

KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd2017 (6) SA 55 (SCA) ([2017] ZASCA 98): dictum in paras [19] – [29] applied

Lynn & Main Inc v Naidoo and Another2006 (1) SA 59 (N): referred to

Moyane v President Ramaphosa GP 82287/2018: referred to

Naidoo v Marine & Trade Insurance Co Ltd1978 (3) SA 666 (A): dictum at 674A – B applied

Netcare Hospitals (Pty) Ltd v KPMG Services (Pty) Ltd [2014] 4 All SA 241 (GJ): referred to

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1984 (3) SA 623 (A) ([1984] 2 All SA 366; [1984] ZASCA 51): applied

Robinson v Van Hulsteyn, Feltham and Ford1925 AD 12: dictum in paras [21] – [22] applied

Setlogelo v Setlogelo1914 AD 221: dictum at 227 applied

Wishart and Others v Blieden NO and Others2013 (6) SA 59 (KZP): dictum in para [39 ] applied

Wishart and Others v Blieden NO and Others2020 (3) SA 99 (SCA) ([2014] 4 All SA 334): applied.

Australia

Carindale Country Club Estate (Pty) Ltd v Astill and Others (1993) 115 ARL 112: dictum in para [31] applied

Cleveland Investment Global Ltd v Evans[2010] NSWSC 567: referred to

2022 (2) SA p274

Fruehauf Finance Corporation (Pty) Ltd v Feez Ruthning [1991] 1 Qd R 558: applied

Geelong School Supplies (Pty) Ltd v Dean[2006] FCA 1404: considered

Kallinicos and Another v Hunt and Others[2005] NSWSC 1181: dictum in para [76] applied

Spincode (Pty) Ltd v Look Software (Pty) Ltd and Others [2001] 4 VR 501 ([2001] VSCA 248): considered.

Canada

MacDonald Estate v Martin (1990) 77 DLR (4th) 249: referred to.

England

Halewood International v Addleshaw Booth & Co[2000] PNLR 298: applied

Koch Shipping Inc v Richards Butler (a firm) [2002] PNLR 603: dictum in para [5] applied

Prince Jefri Bolkiah v KPMG (a firm)[1999] 2 AC 222 (HL) ([1999] 1 All ER 517): applied

Rakusen v Ellis, Munday and Clarke[1912] 1 Ch 831: referred to

Re a Firm of Solicitors[1992] 1 QB 959 (CA) ([1992] 1 All ER 353): applied

Re a Firm of Solicitors[1995] 3 All ER 482 (CD): applied

Supasave Retail Ltd and Another v Coward Chance (a firm) and Others; David Lee & Co (Lincoln) Ltd v Coward Chance (a firm) and Others[1991] Ch 259 ([1991] 1 All ER 668): dictum at 672f – j applied.

Case Information

KJ van Huyssteen (attorney) for the applicants.

G Farber SC (with J Woodward SC) for the respondents.

An application for a final interdict.

Order

The application is dismissed with costs, which include the costs of two senior counsel.

Judgment

Windell J:

Introduction

[1] This is an application for a final interdict. It relates to a situation where an attorney (Ms Steyn) has done work on behalf of a client (Mr L) in divorce proceedings against his wife (Mrs L) whilst in the employ of a firm of attorneys (Clarks Attorneys). Ms Steyn then leaves Clarks Attorneys and joins another firm (Billy Gundelfinger Attorneys), whilst the divorce proceedings are still pending. Billy Gundelfinger Attorneys is representing Mrs L (Mr L's adversary) in the divorce proceedings against Mr L.

[2] Ms Steyn (the second respondent) was employed at Clarks Attorneys from at least 2016 until 2020. She was one of three attorneys at Clarks Attorneys who worked on the divorce matter. The other two attorneys at Clarks Attorneys were Beverley Clark (Clark), and Nicole Raath (Raath). From approximately May 2016 – January 2019 Clarks Attorneys

2022 (2) SA p275

Windell J

represented the first applicant, Mr L, and the second and third applicants [1] in the divorce proceedings against Mrs L. Mrs L has been represented by Mr Gundelfinger [2] (the first respondent) since 26 November 2014 and is still represented by him. On 22 January 2019 the applicants terminated the mandate of Clarks Attorneys and have been represented by Fluxmans Attorneys from that time onwards. Ms Steyn moved from Clarks Attorneys to Billy Gundelfinger Attorneys with effect from 1 July 2020. When the applicants discovered that Ms Steyn was working at the offices of Billy Gundelfinger Attorneys, Fluxmans Attorneys addressed a letter dated 13 August 2020 to Billy Gundelfinger Attorneys, pointing out...