July 03, 2009 Edition 2
Karen Breytenbach – Cape Times
A HEATED debate has broken out in legal and academic circles over the City of Cape Town’s decision to axe a top law firm from its panel of attorneys for taking on a case for a group of poor litigants against the municipality.
The municipality insisted there was a conflict of interest, but others have warned that this could set a dangerous precedent by scaring off law firms that wanted to act for the poor against the government, but feared losing lucrative briefs from that source.
The city’s director of legal services, Lungelo Mbandazayo, insisted the firm, Smith Tabata Buchanan Boyes (STBB), had acted unethically by, on the one hand, representing the municipality in a number of matters and, on the other, taking on a case against the municipality by poor backyard dwellers from Macassar who had invaded municipal land and been evicted.
The municipality believed a clear conflict of interest arose, because the firm would have been able to use confidential information it was privy to in litigation against the municipality. STBB was not the only firm to receive a letter from the municipality raising such concerns.
Mbandazayo said: “There is a protocol to be followed by law firms on the city’s database when they are faced with a matter which could potentially result in a conflict of interest.
“STBB was aware of this protocol, given that this is not the first time that the city has had to address a concern about a conflict of interest with the firm. The protocol was not observed and the city determined that the best way to limit its risk in the matter was to discontinue briefing the firm.”
Fears were, however, expressed in academic circles that this situation could set a “dangerous legal precedent” by discouraging pro-poor litigation against the government.
Researchers Jackie Dugard and Kate Tissington of the Centre for Applied Legal Studies at Wits University argued in an opinion piece in Business Day yesterday that there would only be a direct conflict of interest if a law firm represented both sides in a case.
If it could not represent clients against the government in unrelated cases, “it would mean no law firm working for the state could ever take on socio-economic rights-related work on behalf of poor people and grassroots organisations”.
“If reproduced across other law firms and in other municipalities, it would be a devastating blow to pro-poor litigation and would substantially undermine the government’s objective of securing access to justice for all.”
UCT constitutional governance professor Pierre de Vos said yesterday he found this matter “disturbing”. “It seems suspiciously like the City of Cape Town has “punished” a law firm for acting on behalf of poor litigants in a case against the city. This sets a dangerous precedent.
“What would happen if the government follows the example of the DA-led city? Law firms will then have to choose between representing poor litigants against the state and receiving lucrative work from the state.
“As firms have salaries to pay and directors to keep happy, they will mostly stop representing those who wish to enforce their rights or legal entitlements against the state, and we would move even further from the ideal of a country under the rule of law than we already are.”
De Vos said this did not bode well for the DA’s values on access to justice for all citizens, rich or poor.
Darren Brander, a director with STBB, said the firm believed it was entitled to act for the client based on the merits of the case, and it did not see a conflict of interest.
Cape Law Society director Nalini Gangen said she was not familiar with the case, but in general, members were required to refrain from doing anything that could place them in a position in which clients’ interests conflicted with their own, or those of other clients.