THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 659/2013
Reportable
In the matter between:

Grant Logan Wishart

First Appellant
Malcolm Grant Wishart                                                                 Second Appellant
Shabier Bhayat                                                                                  Third Appellant

and

The Honourable Mr Justice P Blieden NO

First Respondent
Advocate John M Suttner SC                                                   Second Respondent
Advocate Allan J Eyles                                                                 Third Respondent
Attorney Mr Wessel J J Badenhorst                                         Fourth Respondent
BHP Billiton Energy Coal South Africa Limited                          Fifth Respondent
Neil McHardy NO                                                                           Sixth Respondent
The Master of the High Court, Pietermaritzburg                   Seventh Respondent

Neutral Citation: Wishart v Justice P Blieden NO 659/13 [2014] ZASCA 120
(19  September 2014)

Coram: Lewis, Maya, Willis, Swain JJA and Mocumie AJA

Heard: 25 August 2014

Delivered: 19 September 2014

Summary:  The common law does not recognize a right of an individual to restrain a
lawyer from acting against him or her where the individual has never been a client of
the lawyer and where the lawyer does not have confidential information in respect of
that individual. The application by the appellants to restrain three of the respondents
(lawyers) from examining them in an insolvency inquiry was not supported by the
facts and this was not a case in which to develop the common law.

___________________________________________________________________

ORDER

On appeal from: KwaZulu-Natal High Court, Pietermaritzburg (Gorven J sitting as
court of first instance):
The appeal is dismissed with costs including the costs of two counsel where so
employed.
___________________________________________________________________
JUDGMENT

Lewis JA (Maya, Willis and Swain JJA and Mocumie AJA concurring)
[1] The appellants in this matter argued in the high court and in this court that we
should develop the law in relation to legal practitioners acting against former clients.
The high court (Gorven J in the Kwazulu-Natal High Court, Pietermaritzburg)
declined to do so as the facts did not support the application of the principles they
contended it should adopt. It dismissed their application for an interdict restraining
the respondents from examining them in an insolvency inquiry. The high court
nonetheless gave them leave to appeal to this court.

[2] By the time the appeal was heard the first appellant, Mr Grant Wishart
(Wishart), had been sequestrated. The trustees of his estate have elected not to
participate in the appeal and abide the decision of this court. Counsel for the
appellants argued that Wishart still had a residual interest in pursuing the appeal, a
matter to which I shall turn after dealing with the merits of the appeal.

The history
[3] The appellants, Wishart, his father Mr Malcolm Wishart (Wishart Snr), and Mr
Shabier Bhayat are directors and officers of a number of companies owned by the

Wishart family through a number of trusts. I shall refer to each of them by name, or
as „the appellants‟ collectively. They applied to the high court for an order restraining
the respondents, Mr W Badenhorst, an attorney, Mr John Suttner SC and Mr Alan
Eyles, the latter two being advocates practising at the Johannesburg Bar, from
interrogating the appellants at an inquiry into the business and affairs of Avstar
Aviation (Pty) Ltd (Avstar) in terms of ss 417 and 418 of the Companies Act 61
of  1973. I shall refer to the attorney and counsel collectively as „the lawyers‟.

[4] A retired judge, P Blieden J, was appointed to preside over the inquiry. At the
instance of BHP Billiton Energy Coal South Africa Ltd (Billiton) he issued a summons
against Wishart to appear at the inquiry and disclose specified documents.
Subpoenas were also issued against Wishart Snr and Bhayat. At the
commencement of the inquiry on 20 July 2007, an attorney representing the
appellants, Mr P J Schoerie, appeared on behalf of the Wisharts and Bhayat and
advised that they refused to be interrogated by Suttner and Eyles since they, and
Badenhorst who had instructed them, had previously acted for companies of which
they were directors or in which they had interests.

[5] After much discussion Judge Blieden ordered that the inquiry continue: he
had not been advised of the precise nature of the appellants‟ complaints; he was
appointed only to see that the inquiry was conducted fairly; privilege was not a factor
that he was required to take into account and the purpose of the inquiry under ss 417
and 418 was to obtain a full explanation about Avstar‟s activities, but not to make
any finding in that regard.

[6] The order prompted the application to the high court the following day for an
interdict (and other relief that is not now relevant) against the lawyers, restraining
them from examining any of the appellants at the inquiry. Judge Blieden was cited as
the first respondent, in his capacity as commissioner. Billiton was also cited as a
respondent as was the master of the high court. Only the lawyers have participated
in the appeal against the order of the high court that they not be so restrained. As I
have said, the high court refused the relief sought.

[7] The appellants were not ever clients of any of the lawyers. But, they argued,
they had interests in and were variously directors of companies that had instructed
Badenhorst, who had in turn instructed Suttner and later Eyles, on certain matters
pertaining to the companies. That, they argued, had made them „quasi-clients‟ or
„informal clients‟, who were entitled to object to the lawyers acting against them on
the basis that they had a conflict of interest. It is necessary to set out the facts that
underlie these claims before determining the legal principles.

The companies which had instructed the lawyers
[8] The companies in which the appellants had interests or which they directed
are, first, Avstar, into which the inquiry was instituted after its liquidation; second,
Eurocoal (Pty) Ltd (Eurocoal), which was a holding company of entities that held coal
mining rights; third, Rietspruit Crushers (Pty) Ltd (Rietspruit) which had a quarry and
stone crushing business and fourth, Colt Mining (Pty) Ltd (Colt), a mining company.

[9] Billiton, which Badenhorst had represented over a period of over seven years,
is a member of a multi-national group of companies that have mining interests and
other businesses. It had launched arbitration proceedings against Eurocoal in
February 2007 in respect of Eurocoal‟s repudiation of a long-term coal supply
agreement. The claim for damages against Eurocoal was for some R240 million, and
Billiton has not succeeded in recovering this sum despite an arbitration award
against Eurocoal and obtaining orders for the liquidation of both Eurocoal and
Avstar.

[10] The lawyers have had minimal interaction with any of the companies other
than Billiton whom they represented in the arbitration against Eurocoal. The facts are
largely common cause, and Gorven J‟s factual findings in the high court are
accepted by the appellants on appeal. The precise relationship between the
Wisharts and Bhayat, on the one hand, and the companies which they claim were
the clients of the lawyers, on the other, is not important for the purpose of the appeal.
Suffice it to say that they claim to have been intimately involved with the running of
these companies although their holding in certain instances is indirect.

The instructions to the lawyers by the various companies
The settlement meeting
[11] Badenhorst had acted as Billiton‟s attorney over a lengthy period and at all
times against Eurocoal in the arbitration. Wishart was present throughout the
arbitration proceedings. The legal manager of the various Wishart companies,
Mr  Rory Loader, suggested a meeting between Wishart and Badenhorst to discuss
a possible settlement. Loader, during a period when he was an advocate practising
at the Johannesburg Bar, had come to know Badenhorst when he was previously
serving his articles of clerkship as an attorney. Wishart, Loader and Badenhorst met
on 7 March 2008 to discuss settlement. Wishart made a settlement proposal to
Billiton. Badenhorst said that Billiton would consider the proposal but signaled to
Wishart that, if Eurocoal did not honour its commitment to deliver coal, Billiton would
pursue a substantial damages claim. And if it could not satisfy the claim, Billiton
would apply to wind-up Eurocoal and would pursue a claim under s 424 of the
Companies Act against Wishart personally. Wishart claimed subsequently that he
had no recollection of this meeting, but Loader did have, and said that he had
advised that a damages claim was unlikely to yield any commercial benefit to Billiton.
Billiton did not, in the end, accept the settlement proposal.

[12] Shortly after the meeting to discuss settlement, Badenhorst, on behalf of
Billiton, briefed Suttner to advise on the dispute with Eurocoal. They decided to
pursue an application for the winding-up of Eurocoal as a strategy to force it to
honour the arbitration award. Eyles was briefed to assist Suttner with the drafting of
the application. The application was met with a legal defence and Billiton then
claimed only the costs in the arbitration against Eurocoal.

The Avstar instruction
[13] On 21 March 2008, Loader and Wishart, representing Avstar, briefed
Badenhorst on a dispute between Avstar and 1Time airlines. Loader asked
Badenhorst to assist and assured him that there would be no difficulty with a conflict
of interest as the matters were unrelated. Badenhorst accepted the instruction and
briefed Suttner in the matter. Loader said, in his affidavit in a different application
brought before the South Gauteng High Court (attached to Badenhorst‟s answering
affidavit in the application before the high court in this matter), that the reason he had

approached Badenhorst was to afford Wishart access to Badenhorst, as the Billiton
attorney, in an effort to settle the matter between Billiton and Eurocoal. The other
lawyers were not briefed in this matter although Badenhorst did discuss it with
Suttner informally.

[14] Badenhorst received copies of contracts between Avstar and 1Time and met
twice with Loader and the managing director of Avstar. It was agreed that Loader
would attempt to settle the dispute with 1Time and Badenhorst had nothing further to
do in connection with this dispute.

The Colt and Rietspruit instructions
[15] Loader again contacted Badenhorst and advised that Colt and Rietspruit had
a dispute with Safair (Pty) Ltd (Safair) and that Safair was claiming more than
R37 million from each in respect of the purchase of aircraft. Letters sent to Colt and
Rietspruit by Safair on 26 March 2008 suggested that it would bring liquidation
applications against them. This dispute, like the Safair one, had nothing to do with
the Billiton and Eurocoal matter. But the Wisharts were involved in both companies.

[16] Badenhorst agreed to represent Colt and Rietspruit, having received the
assurance from Loader that there was no conflict of interest, and in turn briefed
Suttner to act. The lawyers decided to call for documents relating to the dispute with
Safair, including Colt and Rietfontein‟s most recent financial statements. They
drafted a letter to Safair pointing out that both companies were solvent, and
requesting an undertaking that no liquidation proceedings would be instituted. In the
event that the undertaking was not given, Suttner suggested that he and Badenhorst
meet Loader, which in fact happened on 7 May 2008.

[17] Badenhorst and Suttner then drafted applications for Colt and Rietspruit to
forestall liquidation proceedings. They consulted several times with Loader and on
two occasions with Wishart. Wishart advised Suttner that his father had authorized
the applications but should not be involved in the litigation. The lawyers received the
financial statements of Colt and Rietspruit, referred to them in the papers and
annexed them to the founding affidavits. Urgent applications were launched and an

interim order was obtained on 9 May 2008. Eyles was briefed to assist in the
applications subsequently.

[18] After Safair had filed its answering affidavits, Suttner and Eyles prepared
replying affidavits for Colt and Rietspruit, consulting Loader for this purpose but not
Wishart. They also prepared heads of argument. The urgent applications were set
down on 3 June 2008 but the parties agreed to submit their disputes to arbitration
instead. Suttner and Eyles started to prepare the statements of claim for Colt and
Rietspruit in June.

The lawyers’ withdrawal
[19] Once the matters were referred to arbitration it became clear to the lawyers
that in the Rietspruit dispute with Safair, Wishart would have to give evidence. They
realized that this might result in a situation of conflict, since if the liquidation of
Eurocoal was pursued by Billiton, they would have to interrogate Wishart at the
anticipated inquiry. They thus decided to withdraw from the Rietspruit and Colt
arbitrations and as the lawyers for the two companies.

[20] Suttner and Eyles completed the statements of claim on 29 September 2008
and returned all the papers they had been given for that purpose to Badenhorst. And
on 24 November 2008 Badenhorst wrote to Loader advising of his withdrawal as
attorney for Colt and Rietspruit. Loader responded that he saw no conflict in acting
for Billiton in the Eurocoal dispute, and against Safair in the Colt and Rietspruit
disputes. He was disappointed at the lawyers‟ withdrawal.

[21] At no time did any of the lawyers meet Wishart Snr or Bhayat. And the finding
of the high court that no confidential material was ever given to any of the lawyers is
not disputed on appeal.

The Eurocoal Inquiry
[22] In June 2008 Billiton cancelled the coal supply agreement with Eurocoal. And
in February 2009 it applied to the South Gauteng High Court for the winding-up of
Eurocoal based on its claim for damages for some R240 million. Billiton was again

represented by the lawyers. Eurocoal‟s defence was that the claim was invalid. The
high court held that the defence was not bona fide and granted the winding-up order.

[23] On 10 July 2009 the master of the high court authorized an inquiry into the
affairs of Eurocoal. The lawyers continued to act for Billiton and Wishart was
summoned to give evidence, which he did without objection. He did, however, ask
his then legal representatives to advise him on the propriety of his being interrogated
by the lawyers. His advisers considered that there was nothing improper about it and
the interrogation continued.

[24] As a result of the evidence that emerged from Wishart‟s interrogation, the
lawyers, on behalf of the liquidators of Eurocoal, instituted action against Wishart
and Wishart Snr, the latter as the trustee of a family trust. Again, there was no
complaint about the lawyers‟ involvement. But when Wishart was summoned to give
evidence in the Eurocoal Inquiry, Mr Dennis Fine SC being the commissioner,
Wishart, now represented by Schoerie (for the first time), did object to being
interrogated by the lawyers on the basis that they had previously acted for Colt,
Rietspruit and Avstar.

[25] The commissioner refused to rule that the inquiry could not go ahead and that
evidence relating to any of those companies be struck from the record. He said that
he had repeatedly pointed out during the course of the inquiry that the lawyers were
not privy to any confidential information such that a conflict of interest might arise.

[26] In April 2011 Wishart, Colt and Rietspruit applied to the South Gauteng High
Court for an interdict restraining the lawyers from participating in the inquiry. That
application has yet to be determined.

The Avstar proceedings
[27] In March 2011, Wishart Snr, acting on behalf of another company in the
Wishart group, applied on an urgent basis to the KwaZulu-Natal High Court,
Pietermaritzburg, for Avstar to be placed under judicial management, although not
contending that Avstar was insolvent. Billiton and the liquidators of Eurocoal
intervened and sought orders setting aside the provisional judicial management

order and for the winding-up of Avstar. The high court granted these orders and
placed Avstar in provisional liquidation, and later final liquidation on 30 June 2011.
And as I have already said, it subsequently granted the application by Billiton for an
inquiry into Avstar‟s affairs in terms of ss 417 and 418 of the Companies Act.

[28] It was the lawyers‟ participation in this inquiry to which the appellants
objected. As I indicated earlier, Judge Blieden refused the request to excuse the
Wisharts and Bhayat from giving evidence in the inquiry when Schoerie complained
that they had previously acted for companies in the Wishart group and thus had a
conflict of interest. And thus the application presently under consideration was
launched.

The original cause of action
[29] The appellants sought a final interdict precluding the lawyers from examining
them in the Avstar inquiry on the ground that confidential information in respect of
companies in the Wishart group had been given to them when they previously
represented Avstar, Colt and Rietspruit. The high court found that the information
(primarily the financial statements of Colt and Rietspruit) was not confidential. The
appellants do not contest this finding and so no more need be said about the matter.

[30] The high court found also that none of the appellants had ever been a client of
any of the lawyers. It was the various companies in which they had interests which
had given very limited instructions to the lawyers. Badenhorst and Suttner had met
Wishart and Loader to take instructions but had encountered Wishart only briefly.
Wishart had had very limited personal contact with any of the lawyers. This too is no
longer in issue.

[31] The appellants assert, however, that they had been „quasi-clients‟ or „informal
clients‟ of the lawyers and were thus entitled to an order interdicting them from
participating in the inquiry. To this end they asked the high court to develop the
common law so as to protect former quasi-clients of legal representatives from being
faced with adversarial litigation conducted by former legal representatives.

The principle that the appellants now wish to rely upon
[32] The appellants argued on appeal that they should be treated as clients, and
thus receive the same protection that they would have been afforded had they been
direct clients of the lawyers. Their interests, they contended, closely converge with
the companies that had previously instructed the lawyers in several matters. It is trite
that our law affords protection to the former client of a legal practitioner such that he
or she will be precluded from acting against a former client where the practitioner
has confidential information about the former client that may be misused. The
principle is clearly set out by Wessels JA in Robinson v Van Hulsteyn Feltham and
Ford,1 to which I shall return.

[33] Recognizing that the lawyers had no such confidential information, as the high
court found, the appellants argued nonetheless that this court should develop the
common law so as to ensure that as a matter of public policy, and in the interests of
the administration of justice, it is improper for a legal practitioner to act against a
person who had an interest in an entity for whom the practitioner had previously
acted. They contended that this court should follow the development of the law in
other jurisdictions which have recognized the principle that a lawyer should not act
against a person who has had a close connection, or close convergence of interests,
with a former client of the lawyer.

The high court’s approach to the development of the law
[34] Gorven J pointed out that although South African courts have followed the
English approach to restraining lawyers from acting against former clients, this has
been confined to situations where the lawyer was in possession of confidential
information. (That is also the clear implication in Robinson.) While it is now accepted
that the lawyers in this matter did not have access to confidential information in
respect of the appellants, it is worth noting the English law which has been followed
in several jurisdictions. The high court cited the locus classicus in this

1 Robinson v Van Hulsteyn Feltham and Ford 1925 AD 12 at 21.

respect: Prince Jefri Bolkiah v KPMG (a firm)2 where, after discussing a lawyer‟s
duty to a current client, Lord Millett said:
„Where the court‟s intervention is sought by a former client, however, the position is
entirely different. The court‟s jurisdiction cannot be based on any conflict of interest, real or
perceived, for there is none. The fiduciary relationship which subsists between solicitor and
client comes to an end with the termination of the retainer. Thereafter the solicitor has no
obligation to defend and advance the interests of his former client. The only duty to the
former client which survives the termination of the client relationship is a continuing duty to
preserve the confidentiality of information imparted during its subsistence.

Accordingly, it is incumbent on a plaintiff who seeks to restrain his former solicitor
from acting in a matter for another client to establish (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 may be relevant to the new matter in which the interest of
the other client is or may be adverse to his own.‟

[35] The high court found, and again this is not contested on appeal, that the
appellants did not meet the Bolkiah threshold requirements. But it referred to
different approaches in other jurisdictions where a test of perception of impropriety
has been adopted in different guises.  In essence, where a lawyer acts against a
former client, in the absence of the possession of confidential information, a court
may restrain such conduct where it undermines the administration of justice.

Restraint in the interest of the administration of justice
[36] The approach adopted in the United States Court of Appeals, where a lawyer
is no longer in possession of confidential information, is different from the English
approach.3 The courts do not ask whether confidential information has actually been
revealed, but whether the subject matters of the representations (for different clients)
are substantially related. This principle has not been adopted in Canada4 but in
Australia the courts have adopted a principle that the court has an inherent
jurisdiction to restrain lawyers from acting where it is necessary for the administration

2 Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 (HL) at 235C-E. Bolkiah was referred to with
approval by the Competition Appeal Court in American Natural Soda Ash Corp & another v  Botswana
Ash (Pty) Ltd & others [2007] 1 CPLR 1 (CAC).
3 Analytica Incorporated v NPD Research Inc (Seventh Circuit) (1983) 708 F 2d 1263 (US Court of
Appeals).
4 McDonald Estate v Martin [1990] 3 SCR 1235 at 28.

of justice. The principle was expressed thus by Brereton J in Kallinicos & another v
Hunt & others:5
„The test to be applied in this inherent jurisdiction is whether a fair-minded,
reasonably informed member of the public would conclude that the proper administration of
justice requires that a legal practitioner should be prevented from acting, in the interests of
the protection of the integrity of the judicial process and the due administration of justice,
including the appearance of justice . . . .

The jurisdiction is to be regarded as exceptional and is to be exercised with
caution. . . .

Due weight should be given to the public interest in a litigant not being deprived of
the lawyer of his or her choice without due cause . . . .‟

[37] In the leading English work on conflicts of interest, Charles Hollander QC and
Simon Salzedo Conflicts of Interest,6 the authors state that although Bolkiah is silent
on the question of the court‟s inherent jurisdiction in so far as the administration of
justice is concerned, it could not have been the intention of the court to abolish it,
and the test to be applied „is whether a fair-minded, reasonably informed member of
the public would conclude that the proper administration of justice requires that a
legal practitioner should be prevented from acting‟.

[38] That jurisdiction should be exercised with circumspection, however, as
Brereton J said in Kallinicos. And the countervailing considerations relating to a
client‟s right to choose his or her legal practitioner and the latter‟s right to choose a
client, are important factors to be taken into account. That principle is endorsed by
the Chancery Division of the Queen‟s Bench in England: in Halewood International v
Addleshaw Booth & Co7 Neuberger J, after referring to a client‟s right to impart
information confident that it shall remain confidential, and not be used against him
subsequently, said:
„It is wrong not to overlook the countervailing factors, however. There are the rights of the
professional adviser to act subsequently for whatever party chooses to instruct him, and the
right of third parties to instruct whatever professional advisers they choose.

5 Kallinicos & another v Hunt & others [2005] NSWSC 1181 para 76.
6 Fourth edition (2011) pp 103-104.
7 [2000] PNLR 788 at 791.

These  countervailing rights also have a public interest dimension, as does the right of the
former client.‟

[39] Hollander and Salzedo point out 8 that the inherent jurisdiction to restrain
lawyers from acting in the interest of the administration of justice in England has
been limited to cases „where the lawyer has had a longstanding professional
relationship with one party but then seeks to act on the other side, where the lawyer
will or may be a material witness, or where he is acting against one of two former
joint clients on a matter related to the joint retainer‟.

[40] In this matter, however, even if we were to find that our law has such an
inherent jurisdiction, we are still dealing with parties who were not themselves clients
of the lawyers. And so the appellants‟ cause of action is yet one more step removed.

Convergence of interest and quasi-clients
[41] The appellants argued that the convergence of interest between the Wisharts,
on the one hand, and Avstar, Rietspruit and Colt on the other, was such that any
protection offered to the former clients, Avstar, and Rietspruit and Colt, should be
extended to their shareholders and directors. Wishart, for example, was the sole
director of Eurocoal and Avstar. It is not necessary, in my view, to consider the
details of shareholding by family-controlled trusts for there has been no case made
out for piercing the corporate veil. That is what would need to be done in order to find
that the real client was the shareholder or director, and not the company. That much
is made clear by a case on which the appellants sought to rely: Gainers Inc v
Pocklington,9 a decision of the Court of Appeal, Alberta, Canada which considered
the rights of „near clients‟. There Justice Coté said that while a court should look at
„more than just whose name was on the law firm‟s file cover‟ as the client, it should
not ignore the existence of companies and „pretend that they are all unincorporated
associations of their shareholders, officers and directors‟. Gainers does not, in my
view, assist the appellants.

8 Page 110.
9 Gainers Inc v Pocklington 1995 ABCA 177 (CanLII).

[42] So too, Re a Firm Solicitors 10 does not support the appellants‟ request for
relief. In that case the parties had agreed that two associated companies of the client
would co-operate with the solicitors and give confidential information to the firm even
if it might be used against the client. The court held there that because of the nature
of the agreement and the confidential information imparted, the companies were „as
good as their clients‟ and should be treated accordingly. The facts in this case are
not comparable. The information in Solicitors was given in confidence to the
knowledge of all concerned.

[43] Moreover, the argument that the appellants deserved the same protection as
did the companies in which they had interests is met by the countervailing
considerations that were discussed in Kallinicos and Halewood, cited above. In the
end, what is really at issue is whether the administration of justice would be impaired
if the lawyers were not restrained from interrogating Wishart and the other
appellants.

[44] What the law seeks to do in these situations is to protect a former client of a
lawyer from being prejudiced by having that representative, in whom trust has been
reposed, and who is armed with information about that client, act against him or her.
That is hardly in issue in this matter. The lawyers‟ client was Billiton, not the
appellants. Billiton claims it will suffer serious prejudice if the lawyers who have been
conducting its litigation against Eurocoal for several years, and in whom it has
„invested‟ millions of rands, is denied their continued representation.

[45] It will be recalled, moreover, that when Loader approached Badenhorst to act
for Avstar, he did so precisely because Badenhorst acted for Billiton and Loader
believed that that might facilitate a settlement between Eurocoal and Billiton.
Badenhorst was at all material times Billiton‟s attorney. And he had in turn briefed
Suttner and Eyles in Billiton matters.

[46] The submission for the appellants that the lawyers had become familiar with
the Wisharts is also without merit. None of them had ever met Wishart Snr

10 Re a Firm of Solicitors [1992] 1 All ER 353.

or  Bhayat. Badenhorst met with Wishart, as did Suttner, on few occasions and in
respect of matters that had nothing to do with Billiton. They had not known him at
any personal level. Moreover, the claim that they knew what kind of witness he
would be, as argued by the appellants, was without foundation. Badenhorst and
Suttner had met him briefly to take instructions on other matters before the Eurocoal
inquiry commenced. It was from his examination there that they would have gleaned
any personal information about him, and that commenced long after they had
withdrawn as the lawyers for Colt and Rietspruit. The facts simply do not warrant the
application of the principles contended for by the appellants.

Conclusion
[47] The claim to be entitled to protection against being interrogated by Suttner
and Eyles is, as I see it, made all the more unjustified by the fact that Wishart raised
no objection to being examined by the lawyers in the Eurocoal inquiry. He accepted
his counsel‟s advice that there was nothing to object to. It was cynical to raise the
objection some two years later in the Avstar inquiry.

[48] As the lawyers argued, the heart of a client‟s right to be protected against a
former legal representative taking the other side is the possible misuse of
confidential information. In Robinson v Van Hulsteyn, Feltham and Ford11 Wessels
JA said the following:
„According to our law a solicitor is an officer of the Court; the Court exercises a jurisdiction
over him and will see that in the conduct of his professional work he displays towards the
Court and towards his clients a very high standard of conduct. In order to advise a client as
to his legal position the solicitor must know all the circumstances of his client‟s case, and
therefore a client is often compelled to reveal to his solicitor the most intimate circumstances
of his life. The solicitor may thus become the repository of the most vital secrets of the client.
These confidences reposed in him he may not divulge, and if he does the Court will punish
him for his breach of duty towards his client. If a solicitor who in the course of advising a
client has become possessed of his client‟s secrets is engaged by another person to act
against his former client, his knowledge of the latter‟s secrets may be of great advantage to
his client‟s opponent. Although the solicitor may conscientiously endeavor to do his duty to
his new client without revealing the secrets of his old client, yet he may find himself in an

11 Robinson v Van Hulsteyn, Feltham and Ford 1925 AD 12 at 21.

invidious position and his knowledge of the secrets of his former client may unconsciously
affect him in doing his duty towards the other. In order to avoid such a dilemma the Court will
restrain a solicitor in whom confidences have been reposed by a client from acting against
such a client where it is made clear to the Court in the words of Cozens-Hardy M R [in
Rakusen v Munday & Clarke (1912 1 Ch D 831, 835)], “that real mischief and real prejudice
will in all human probability result if the solicitor is allowed to act”.‟

[49] In this matter, the appellants were not clients of the lawyers and they had not
disclosed any confidential information – any secrets – to the lawyers. There was no
possibility, let alone probability, that the lawyers could use their secrets against
them.

[50] Even if the court were to recognize the principle that there should not be even
a reasonable perception that the administration of justice may be impaired, this is not
a case where such a principle would have any application. And as the high court
said, where an attorney-client relationship has come to an end, the basis for
protecting the misuse of confidential information would lie in delict.12 It is accordingly
not necessary, in this case, to find that the common law should be extended in the
manner suggested by the appellants.

[51] The high court correctly found that the application for the interdict against the
lawyers had to fail. The appellants, then applicants, had shown no clear right nor
proved any injury committed or reasonably apprehended.

Wishart’s present standing
[52] As I said at the outset, Wishart has been sequestrated and the trustees of his
estate have elected not to participate in the appeal. Counsel for the appellants
nonetheless contended that Wishart has a residual interest in the appeal and
remains a party. Section 23 of the Insolvency Act 24 of 1936 deals with the rights
and obligations of an insolvent during sequestration. Subsection 6 reads: „The
insolvent may sue or be sued in his own name without reference to the trustee of his

12 The court relied in this regard on Meter Systems Holdings Ltd v Venter & another 1993 (1) SA 409
(W) which dealt with unlawful competition.

estate in any matter relating to status or any right in so far as it does not affect his
estate . . . .‟ (My emphasis.)
The appellants argued that Wishart‟s application for an interdict against the lawyers
was one that related to his status: it affected his rights to dignity, freedom of speech
and freedom and security of person. His objection to the lawyers examining him was
based on the proposition that the compulsive examination would be invasive and
might result in him being criminally charged or held liable under s 424 of the
Companies Act.

[53] However, as the lawyers argued, any examination would relate only to the
assets and liabilities of Avstar. It would have nothing to do with Wishart‟s status or
his personality rights. Accordingly, given the view of the trustees of his estate,
Wishart is no longer a party to this appeal. The order that is made will be in respect
of the remaining two appellants.

The conduct of the appellants
[54] I think it necessary to say something about the conduct of the appellants.
They have alleged impropriety on the part of members of the legal profession and
cast a shadow on their professional conduct. They have done so without any
foundation. The lawyers, Badenhorst, Suttner SC and Eyles, did nothing improper.
When they anticipated a possible conflict of interest they very properly withdrew from
acting for Colt and Rietspruit. They did not act against former clients and they did not
have, let alone use, confidential information. The appellants‟ objection to their
interrogation under ss 418 and 418 of the Companies Act was made some two years
after Eurocoal was liquidated. Their strategy was to delay the ascertainment of the
truth about Avstar and the other companies. The litigation has been vexatious. Had
they succeeded in the application for the interdict they would have undermined the
administration of justice.

[55] Accordingly the appeal is dismissed with costs including the costs of two
counsel where so employed.

__________________________
C H Lewis
Judge of Appeal

APPEARANCES
For Appellants:

C J Hartzenberg SC and L E Combrinck
Instructed by:

Venns Attorneys, Pietermaritzburg

Phatsoane Henney Inc, Bloemfontein

For Second to Fifth Respondents:
W Trengove SC

Instructed by:

Norton Rose Fulbright, Sandton

Webbers, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY
19 September 2014
STATUS: Immediate
Wishart v Justice P Blieden NO (659/13) [2014] ZASCA 120
Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal
Today the SCA dismissed an appeal against a decision of the KwaZulu-Natal High
Court (Pietermaritzberg) which held that the appellants were not entitled to restrain
an attorney and two counsel at the Johannesburg Bar from examining them in a
liquidation inquiry under ss 417 and 418 of the former Companies Act  61 of 1973.
The basis for the application to the high court by the appellants was that the lawyers
had formerly acted for companies in which they had interests or of which they were
directors. They asked the high court to interdict the lawyers from acting against them.
The high court held that since the appellants had not ever been clients of the lawyers
themselves, and had not obtained any confidential information about them, there was
no basis on which to restrain them from examining the appellants in the inquiry.
The SCA confirmed the finding that the facts did not warrant the development of the
common law so as to recognize that where there is a perception of impropriety, in the
absence of the misuse of confidential information, there is a right to restrain a lawyer
from acting against a litigant. This court found that the administration of justice would
be undermined if the actual client of the lawyers was not entitled to retain the
services of lawyers who had advised it and chosen them as its legal representatives.
The SCA held that the lawyers had done nothing improper and that the litigation
against them was without foundation and was vexatious.