LEGAL PRACTITIONER – DUTY TO COURT

MOHAN v DIRECTOR OF PUBLIC PROSECUTIONS, KWAZULU-NATAL AND OTHERS 2017 (2) SACR 76 (KZD)

 

Legal practitioner — Duties of — Duty to court — Necessity to disclose all relevant facts — Applicant for temporary stay of prosecution in three separate cases not revealing at hearing of application that one case already part-heard — Such omission material — Duty of legal representative to be fully candid with the court as to the correct state of affairs.

The applicant sought confirmation of a rule nisi which had earlier been granted for a temporary stay of criminal proceedings against him in three separate cases in the regional court. The cases all involved offences in which large sums of money were paid by Sars in respect of VAT refunds to three entities in which the applicant acted as bookkeeper or tax practitioner.

In the original application, the applicant sought orders restraining the respondents from commencing with the three criminal trials pending the completion of investigations by Sars, SAPS and the Public Protector. The basis of the application was that he intended to plead not guilty to the charges against him and that he had lodged a complaint with the office of the Directorate for Priority Crime Investigation (the DPCI) judge, who had referred the matters for investigation. The criminal proceedings against him should therefore be temporarily stayed pending finalisation of said investigation. He had alleged that the kingpin of the syndicate, who produced the fraudulent invoices for tax refunds, had not been charged and that it made no sense that he alone be charged for a criminal offence when he was neither the author of the invoices nor had any knowledge as to the authenticity thereof. Despite the application having been served on the respondents and notice of opposition having been filed by the first respondent, the second respondent (the Commissioner for Sars), and the eleventh respondent (the Provincial Commissioner of SAPS), no opposing affidavits were filed by them when the matter came before court and the order was granted.

In his papers, the applicant did not mention that one of the criminal trials had already commenced and was part-heard. The respondents took the attitude that the applicant had been economical with the truth in failing to bring this to the attention of the court. The applicant responded that at the time when his founding affidavit was signed, that case had not yet commenced but that, in any event, this was not a material non-disclosure and would have had no bearing on the eventual decision by the judge to grant the temporary order.

Held, that even though the matter had been brought on notice and not ex parte, and counsel for the respondents were present at the time when the matter was called by the judge, this did not exonerate a litigant, and especially not the legal representative, from being other than fully candid with the court as to the correct state of facts at the time when the matter was argued, even if such disclosure would be adverse to one’s case (see [30]).

Held, further, that the omission to mention that criminal proceedings had commenced was material. It was unfathomable that an applicant could come to court seeking the temporary stay of criminal proceedings without informing the court that those proceedings had already commenced. This was particularly relevant in the circumstances where the relief sought in the notice of motion was that the respondents be interdicted and restrained ‘from commencing with the trials against the applicant’. The application had to be dismissed on this ground alone (see [32] – [33]).

Held, for the sake of completeness, that the applicant had not pointed to any miscarriage of justice that would befall him in the event of the three criminal trials proceeding (see [47]); and that to grant an order of the nature sought by the applicant, namely for a temporary stay of prosecution in all three criminal trials pending the finalisation of the relevant investigations, would infringe the doctrine of separation of powers (see [51].) The rule nisi was discharged.

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