It is trite to say that both attorneys and advocates are officers of the court and as such owe a duty of honesty towards it. A presiding officer needs not cross-examine an officer of the court in order to extract truthfulness as if he/she were a witness. The relationship between the two insists on a bona fide behaviour that is based on truthfulness and honesty. The importance of this can never be over-emphasized.
The case of Society of Advocates of Natal and the Natal Law Society v Merret1 brings to our attention the need for honesty and ethical behaviour in the practice of attorneys. This case also advances the interpretation of a "fit and proper person" as envisaged by the Attorneys Admission Act. Various principles are further introduced shedding light on those duties expected from an attorney towards the court and to his\her law society. The respondent in this case was one Mr.
Merret, an experienced attorney of at least 20 years. The two applicants were (i) The Society of Advocates of Natal which was making an application in terms s5 (1) of the Right of Appearance Act2 so as to disallow the respondent from appearing in the High Court and (ii) The Natal Law Society which was making its application in terms of s of the Attorneys Admission Act3 so as to get the respondent struck off from the roll of attorneys, conveyancers and notaries. Mr. Merret had being representing a Mrs.
Jennifer Horsley in a divorce hearing against her husband, Dr Hilton Horsley. Merret had informed the husband through summons that a divorce action would be instituted against him; as such he had 28 days to file an appearance to defend. Within this period Dr Horsley's attorneys provided a settlement offer to Mr. Merret. This offer, which seemed to be reasonable, was rejected by Mrs. Horsley who then provided a counter offer that was much inflated as compared to the original offer.
This offer was thus obviously rejected by Dr Horsley. Merret informed his client of this development who then gave instructions for him to pursue an interim maintenance order in terms of Rule 43 of the uniform High Court Rules pending the outcome of the hearing. Mrs. Horsley who was now residing in Cape Town had to fly to Durban where this hearing was taking place. Two weeks had passed since Dr Horsley's attorney; Murray had rejected the counter offer by Mrs.
Horsley up to the date where the court application was to be heard. Within this period there had been no communication whatsoever between Merret and Murray. The Rule 43 application had been served on Dr Horsley 3 days before the hearing was to take place. Merret filed this application on the unopposed roll and the application was heard as such. At the hearing Niles-Duner AJ asked Merret whether Murray was aware that the hearing was taking place today and on an unopposed basis. To this Merret answered in the affirmative.
Merret went further and produced a letter that was about 6 weeks old which was meant to be evidence of the breakdown of settlement negotiations. This letter was in fact Merret's first letter to Dr Horsley. The court accepted Merret's submissions and granted the divorce order. As a matter of fact, neither Dr Horsley nor his attorney, Mr. Murray were aware that the hearing had been set down on that date and that it would be on an unopposed basis. These two parties must thus have been shocked to receive a fax of the divorce and maintenance order.
This fax was followed by a liquidator who arrived at Dr Horsley's consulting rooms to take charge of the estate pursuant to the order of the court. The latter thus immediately applied and was granted a rule nisi calling upon Mrs. Horsley to show cause against an order rescinding the decree of divorce. Merret initially opposed the rescission order on the ground that Dr Horsley knew the action was proceeding since he knew Mrs. Horsley was flying to Durban for it.
Merret attached a supporting affidavit justifying his actions in which he mentioned that he was at no fault, but were it not for the negligent failure of Murray to file an appearance to defend this fracas would not have occurred. Nonetheless, Merret eventually consented to a rescission of the divorce order and he further agreed to pay the costs of the application. Merret's actions summarized above led to the applications by the Society of Advocates of Natal and the Natal Law Society. Both applications were based on the duty that an attorney owes to the presiding officer and to his\her fellow colleagues.