dwp eNewsletter
Vol 1 : Ed 2 - June 2007
| nowheresville |
| advocate, not perpetrate |
Advocates act as agents to their clients and have no authority to suppress the orders given to them by their clients. To do so could bring about results to which the client did not agree, potentially fostering an environment of mistrust between client and advocate. Essentially, the advocate is a courtroom-bound / trained extension of the client and his or her wishes. Therefore it is fundamental to the integrity and efficiency of the law that these officers of the court advocate and not perpetrate. Otherwise, the advocate loses his role as agent or officer of the court and usurps that of judge when he himself decides the proper course before proceeding. Such is the finding of the South Eastern Cape court in its 2007 case Hawkes v Hawkes & Another.
The case involved a separated couple and the transfer of property. To begin with, the husband had obtained a temporary court order preventing the wife from transferring the property until after matters had been settled between them. However, the wife instructed her advocate to oppose the temporary order in court the next time the issue was to be heard. Instead, unfortunately, the advocate gave an undertaking to the court, on behalf of his client (the wife) but without instruction, not to sell the property. Given that the undertaking was unauthorised by both the client (the wife) and the supervising attorney, the wife felt as though she was not bound by the undertaking. The court agreed, ruling that “a client is not bound by the actions of his legal representative, be it attorney or counsel, where such representative has exceeded the mandate given to him and he has achieved an object that had not been intended by the client.”
The lesson then is that advocates are bound by their client’s wishes, and that once they step outside of that mandate, they are no longer advocating but instead are perpetrating, which can be costly to all parties involved. The client’s true intent and understanding would have to be sorted before the matter could proceed.
| contact us |
delport ward & pienaar
attorneys,
notaries & conveyancers
1st floor - cornerstone house
16 loop street
cape town
8001
telephone, cape town
+27-21-419.3733
telefax, general
+27-21-419.3743
telefax, collections
dept
+27-21-421.6625
telephone, london
+44-20-8133.0337
telephone, washington
dc
+1-202-657.6733
telephone, hong kong
+852-8139.7374
| info@dwp.co.za |
1st floor - cornerstone house, 16 loop street, cape town | docex 600, cpt | t, +27-21-4193733 | f, +27-21-4193743