WDL and Others v Gundelfinger and Others

• Jurisdiction: South Africa
• Judge: Windell J
• Judgment Date: 21 December 2020
• Court: Gauteng Local Division, Johannesburg
• Hearing Date: 21 December 2020
• Citation: 2022 (2) SA 272 (GJ)
• Counsel: KJ van Huyssteen (attorney) for the applicants. G Farber SC (with J Woodward SC) for the respondents.
• Docket Number: 20/24681

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

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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 the conflict of interest and requiring Billy Gundelfinger Attorneys to withdraw as the attorney of record on behalf of Mrs L. Mr Gundelfinger did not accede to the demand to withdraw. The applicants consequently approached this court for relief.

[3] The applicants seek a final interdict. The basis of the application is the applicants' right to the protection of confidential information imparted to Clarks Attorneys (Ms Steyn) during the period when Clarks Attorneys represented the applicants. The requirements for a final interdict are trite: a clear right, an injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy. [3] The applicants seek an order interdicting —

(a)

the first and second respondent (Mr Gundelfinger and Ms Steyn) or any other employee or attorney associated with the practice, Billy Gundelfinger Attorneys, from representing the third respondent, Mrs L, in the pending divorce proceedings between the applicants and Mrs L;

(b)

the first and second respondent from interacting with, briefing, advising, and sharing information, knowledge or documents with any attorney appointed by Mrs L in the divorce proceedings.

[4] The main issue for determination, explained in more detail below, is whether the information imparted to Ms Steyn is still confidential and relevant to the issues in the subject-matter and therefore worthy of protection.

[5] A legal representative owes a fiduciary duty to his or her current client to act in their best interests. That duty precludes a legal representative from simultaneously acting for two clients with conflicting interests, because the legal representative cannot properly serve both of the clients' interests at the same time. [4] A fiduciary duty exists only while the

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relationship which gave rise to the duty remains in place. A lawyer's fiduciary duties to his client terminate when their professional relationship comes to an end. [5]

[6] The only duty that survives the termination of the legal representative's mandate is the duty to preserve the confidentiality of information imparted to him through his professional relationship with a former client. [6] There is therefore no absolute rule that precludes a legal representative from acting against a former client. [7] In order to obtain an interdict to preclude a former representative from acting against him or her, the client (the applicants) must provide evidence and show that — [8]

(a)

the applicants had a previous attorney – client contract with the respondents;

(b)

confidential information of the applicants was imparted or received in confidence as a result of that contract;

(c)

that information remains confidential;

(d)

that information is relevant to the matter at hand; and,

(e)

the interests of the present client of the respondents are adverse to those of the former clients.

[7] Only once these facts have been proved, does an evidential burden shift to the legal representative to show that there is no risk to the former client if the legal representative acts in the matter. A court will restrain a legal representative from acting against a former client where there is a significant risk of disclosure, or misuse, of information which belongs to the former client. [9] While the risk need not be substantial, it must be a real one, and not merely fanciful or theoretical. [10] A court will not likely disqualify a legal representative because the effect of doing so would be to deprive the current client of his right to freely choose his own counsel. A client whose legal representative is disqualified loses not just time and

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money, but also the benefit of the legal representative's specialised knowledge of the case. [11]

[8] The applicants submit that they have demonstrated 'beyond any doubt' that confidential information, which is also privileged, was imparted to Ms Steyn and to Clarks Attorneys whilst the applicants were represented by them in the divorce proceedings. Ms Steyn is now employed by Billy Gundelfinger Attorneys, the same attorneys who have always represented and continue to represent Mrs L in the selfsame divorce proceedings. It is submitted that the applicants have an unqualified right to the protection of such confidential and privileged information and that the applicants have a well-founded apprehension of harm that the confidential information has been or will be compromised by virtue of the employment of Ms Steyn by Billy Gundelfinger Attorneys. It is submitted that the only viable remedy available to the applicants is an interdict as prayed for in the notice of motion, and that the applicants have made out a case which justifies the granting of a final interdict.

[9] The applicants submit that, even if the court finds that the applicants failed to meet the standard of proof as set out in [6] above, [12] the court has, as a matter of public policy, an inherent jurisdiction to control the conduct of its own officers so as to ensure the due administration of justice and the integrity of the judicial process. It is submitted that the court should exercise its discretion in favour of the applicants and interdict Mr Gundelfinger from further representing Mrs L in the divorce proceedings.

[10] The questions raised in this matter are complex. I was referred to only two reported cases in South Africa that have dealt with all of the issues raised in the present matter: Wishart and Others v Blieden NO and Others, [13] a judgment penned by Gorven J; and the Supreme Court of Appeal judgment in the same matter, Wishart and Others v Blieden NO and Others.[14] It is for this reason that the applicants and respondents have not only referred the court to the principles governing these issues in South African law, but also in English law and Australian law.

Confidential information

[11] As stated, the basis of the applicants' application for an interdict is the right to protection of confidential information. In the seminal judgment of the House of Lords in Bolkiah[15] Lord Millet summarised the position as follows:

'Accordingly, it is incumbent on a Plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish

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(i)

that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or maybe relevant to the new matter in which the interest of the other client is or may be adverse to his own. Although the burden of proof is on the Plaintiff it is not a heavy one. The former may readily be inferred; the later will often be obvious. I do not think that it is necessary to introduce any presumptions, rebuttable or otherwise, in relation to these two matters. But given the basis on which the jurisdiction is exercised, there is no cause to impute or attribute the knowledge of one partner to his fellow partners. Whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case.'

[12] It is not disputed that Ms Steyn received confidential information from Mr L whilst she was employed at Clarks Attorneys. This is clear from the compilation and execution of many court documents and notices in the divorce matter, coupled with the fact that her name appears on many notices, documents, correspondence, emails and WhatsApp exchanges.

[13] The main issue and bone of contention between the parties is the following: the respondents contend that the applicants failed to furnish particularity and specificity of the confidential information sought to be protected and as a result they failed to establish that the confidential information alleged to have been imparted, or reasonably apprehended to be imparted to Mr Gundelfinger, is still confidential and relevant to the subject-matter of the issues in the divorce proceedings. The respondents say so, for the following reasons: firstly, Mrs L, on Mr L's own version, is already in possession of all the relevant information pertaining to the divorce action; secondly, Mr L 'bared his soul' to Mr Gundelfinger in a series of five meetings held directly between them...