Insulting, inappropriate, vulgar, and disparaging language have no place in litigation
An ugly trend has recently emerged in our courts, whereby some legal practitioners have taken to making veiled and sometimes direct threats of violence should a certain outcome not be given in a particular case. The murder trial of the late soccer player, Senzo Meyiwa, and the corruption trial of Jacob Zuma are but two examples where this extraordinary type of behaviour has been displayed by legal representatives.
A year ago, a colleague and I penned an appeal judgment in a defamation matter which emanated from a trial that took place in the Magistrates’ Court in Pietermaritzburg. Neither the facts nor the outcome of the case are relevant here. What is relevant are the concerns we raised in the judgment about the way the trial was conducted before the learned magistrate by the legal practitioners.
While neither practitioner had conducted themselves in a manner that they could be proud of, it was the conduct of the defendant’s counsel that came under particular scrutiny. The appeal record was replete with instances where he was openly hostile and discourteous to the court, to his opponent, and to the plaintiff, who herself is an admitted attorney and officer of the court. This behaviour resulted in an atmosphere that was unduly tense and completely unnecessary. Despite being warned by the court on a few occasions to desist from such conduct, it continued unabatedly, forcing the learned Magistrate at one stage to simply adjourn her court.
This type of behaviour is symptomatic of a general lack of respect on the part of certain legal practitioners towards the bench. The extreme lengths to which some of them will go in order to undermine the legitimacy and functioning of our courts should be a matter of grave concern to us all.
As officers of the court there is a paramount duty on all legal practitioners to conduct themselves with the highest degree of integrity and honesty at all times, to ensure that the dignity and decorum of the court is maintained and to remember at all times, that their first duty is to the court and to no one else. The effective functioning of our courts and the proper administration of justice are highly dependent on how legal practitioners go about discharging this duty. Sadly, the paramountcy of the duty to the court appears to be lost on many legal practitioners of late.
This article focuses on this duty and the need to ensure that it is adhered to at all times. It is informed by my own observations regarding the manner in which some legal practitioners conduct themselves in court, the poor quality of work they produce, and their lack of knowledge of basic legal principles and procedure.
Over time our courts have commented on the role of legal practitioners in the administration of justice. Here are some examples.
More than a 100 years ago in the winter of 1908, Chief Justice Innes, in the matter of Incorporated Law Society v Bevan 1908 TS 724, emphasised that legal practitioners in the conduct of court cases, play a very important part in the administration of justice. The learned Chief Justice cautioned that any practitioner who deliberately places before the court, or relies upon a contention or a statement, which he knows to be false, would not be fit to be a member of the legal profession.
In 2007, the Supreme Court of Appeal in the matter of Van der Berg v General Council of the Bar of SA  2 All SA 499 (SCA), crystallised the role of an advocate in the proper administration of justice. The court wrote:
“Advocacy fulfils a necessary role in the proper administration of justice … It is through the availability of the knowledge and skills of an advocate that a litigant is able to realise the right of every person to have a dispute resolved by a court of law. Its function in the administration of justice at the same time defines the duties of those who practise it. The right of every person to have a dispute resolved by a court of law would be seriously compromised if an advocate were to be required to believe the evidence of his client before being permitted to present it. That would mean that the rights of the litigant would be determined by the advocate rather than by the court … “
In S v Khathutshelo and Another 2019 (1) SACR 480 (LT), the Thohoyandou High Court in Limpopo, after highlighting the exchange between counsel and the learned magistrate, noted:
“[t]he words used by counsel were both unnecessary and unfortunate. They demonstrated acute lack of respect for the court and its role in the administration of justice. Judges and magistrates alike have been entrusted with the most difficult job: to find the truth and administer justice between man and man. They are fallible like all others and, in recognition of this weakness, there is a hierarchy of courts so that mistakes can be corrected on appeal or review … As an officer of the court he is required to assist the court in the administration of justice. Inasmuch as counsel has a duty to advance his/her client’s case with zeal, vigour and determination, he should always remember that his primary duty is to the court … He should always maintain the decorum of the court and protect its legitimacy in the eyes of the public, so that its confidence is not eroded in their eyes … “
All legal practitioners in our country are bound by a Code of Conduct as well as all other duties imposed upon them through judgments handed down by our courts from time to time. Legal practitioners are required to be fully aware of what these duties require. The Code of Conduct confirms that although a client’s interest is always paramount, such interest must yield to a legal practitioner’s duty to the court, adherence to the law, the interests of justice, and the upholding of ethical standards required by legal practitioners.
The various divisions of the High Court, the Supreme Court of Appeal, and the Constitutional Court all have practice directives which regulate the daily functioning of these courts, and to which legal practitioners are required to adhere.
By way of example, an important practice directive that seems to be applicable in all divisions is that which relates to the filing of heads of argument, and a practice note in both civil and criminal appeals as well as opposed motions.
Heads of arguments perform a vital function in ensuring that a party’s case is properly presented, that the evidence is properly dealt with, and that relevant case law is referred to. It informs the judicial officer of the nature of the dispute and enables them to read relevant case authorities beforehand so as to assist in a proper understanding of the matter at hand. Unfortunately, it is becoming more and more commonplace for legal practitioners to file heads of arguments late, if at all. More often than not such heads are of such a poor quality that they are of no assistance to the court. Legal practitioners fail to realise that these heads of argument are directly connected to their duty to act in the interests of a client and forms part of their duty to the court. More importantly, from a criminal law perspective, it could negatively impact an accused person’s right to a fair trial in appeal matters.
Closely related to this duty, is the duty of a legal practitioner to draw the court’s attention to any decided cases which might have relevance to the matter at hand, even if such cases would be detrimental to his or her client’s case. A judicial officer should at all times be able to rely on the correctness of any case provided by a legal practitioner.
A growing tendency in recent times is for legal practitioners to use insulting, inappropriate, vulgar, and disparaging language towards judicial officers, court staff and even towards their fellow practitioners.
It is becoming more commonplace for such language to find its way into affidavits and other court documents, with legal practitioners embarking on emotive and unacceptable language rather than stating the facts to advance their case. This ends up setting the tone for the rest of the proceedings.
The Code of Conduct is clear in this regard, and requires legal practitioners to refrain from including such material and unsubstantiated allegations in affidavits and other court documents. Legal practitioners are also expressly required to treat judicial officers, court personnel, and all other people at court with respect and to refrain from uttering personal remarks about their colleagues.
Part of a legal practitioner’s duty to the court is not to abuse the court process and to not deliberately cause cases to be delayed. The excessive delays in court proceedings caused by legal practitioners requesting numerous postponements have become a daily occurrence in courts throughout the country. Its prevalence is so widespread that retired Constitutional Court Judge Edwin Cameron, in an article published in De Rebus in 2020, cautioned that such delays serve only to weaken the legal system and impact negatively on the rule of law.
A legal practitioner’s duty to the court is not a uniquely South African duty. In 1969, Lord Reid in the UK House of Lords, in the matter of Rondel v Worsley  1 AC 191 affirmed that a legal practitioner has an overriding duty to the court, to the standards of the profession and to the public, which may and will often lead to a conflict with his client’s wishes or with what the client thinks are their personal interests.
Interestingly, in a speech titled ‘The Duty Owed to the Court – Sometimes Forgotten’ delivered by the Honourable Marilyn Warren AC at the Judicial Conference of Australia Colloquium, in Melbourne in 2009, the learned Justice spoke of the duties of counsel and their role in the proper administration of justice. She highlighted a practitioner’s duty to the court as follows:
“The lawyer’s duty to the court is an incident of the lawyer’s duty to the proper administration of justice. This duty arises as a result of the position of the legal practitioner as an officer of the court and an integral participant in the administration of justice. The practitioner’s role is not merely to push his or her client’s interests in the adversarial process, rather the practitioner has a duty to assist the court in the doing of justice according to law.The duty requires that lawyers act with honesty, candour and competence, exercise independent judgment in the conduct of the case, and not engage in conduct that is an abuse of process. Importantly, lawyers must not mislead the court and must be frank in their responses and disclosures to it. In short, lawyers must do what they can to ensure that the law is applied correctly to the case.The lawyer’s duty to the administration of justice goes to ensuring the integrity of the rule of law. It is incumbent upon lawyers to bear in mind their role in the legal process and how the role might further the ultimate public interest in that process, that is, the proper administration of justice. As Brennan J states, ‘[t]he purpose of court proceedings is to do justice according to the law. That is the foundation of a civilised society.’When lawyers fail to ensure their duty to the court is at the forefront of their minds, they do a disservice to their client, the profession and the public as a whole.”
Legal practitioners are encouraged to take heed of the duties imposed on them by the Code of Conduct, judgments, and relevant court rules and directives, and to ensure that they conduct themselves in a manner that is befitting of the profession. They are required at all times to act with integrity, honesty and respect.
Legal practitioners need to play their part in restoring dignity and decorum to our courtrooms. Ultimately, they are required to comply with their overriding duties to the court, adherence to the law, the interest of justice, and the upholding of the ethical standards, as failure to do so would only serve to bring the entire administration of justice into disrepute.
The writer is a judge of the KwaZulu-Natal High Court.