Although there are certain untruths in Merrets submission the point does still stand. The purpose of Rules of the court is not to impede the legal process but to assist. It was thus not proper to hide deceit behind the rules. What is pertinently strange from Merrets conduct is that he had to assume that Murray was aware of the application This assumption was taken from the belief that since his client was flying to Durban her husband knew of this and he was to inform his attorneys. Why there was a lack of lawyer-to-lawyer communication boggles the mind.
Merret should have informed or advised Murray of the court application personally and should not have gone behind his back. It is clear from this conduct that both the court and the law society view seriously the relationship that should exist between attorneys as they litigate against each other. It is untenable that an attorney should use 'backdoor' skills in order to win a case. This case also propounds the rule that although an attorney has duties towards his client these duties should not override ethical considerations.
Merret had been under pressure from client who wanted a quick divorce and decided to ignore ethics so as to satisfy the client. According to the judge, "[Merret] had sedulously refrained from giving Murray notice of the hearing and knew that if he was forced to do so at that stage there was little chance of the action proceeding on an undefended basis. " What was seen as most appalling in this case was the manner in which Merret misled the presiding officer. The question he was asked was a simple one: whether the defendant's attorneys knew that this case was being heard as unopposed motion on this day?
To this Merret answered that they did know. As has been said earlier, one can never over-emphasize the duty of honesty and good faith that an attorney owes to a presiding officer. Here Merret acted mala fide and this led to the judge saying that in future he will never be able trust or believe Merret4. This goes to show that it is unacceptable to lie to a presiding officer. Having said this the court could only rule that Merret was not a fit and proper person.
Reference was made to the case of Ex Parte Swain5, where an advocate's admission application failed because he had previously been dishonest under oath. In this case James JP held that it was important that when the court seeks assurance from an advocate that court should be able to rely on such assurance. He further held that justice would not survive if the profession were not truthful to itself and to the court. Howard J made an important addition to this by deciding that the requirement that advocates should be truthful to one another and to the court applied equally to attorneys.
All in all, we thus see that it is of paramount importance that attorneys and advocates respect each other and the court. We see that officers of the court owe a serious duty to the court and that they cannot afford to simply pay lip service to rules of ethics as they go about their duties. From the judgment given, where Merret was struck off the roll of attorneys we further realize that the court will not sit on the middle of the road when it comes to dishonest lawyers: one is either an honest attorney or not an attorney at all!