Imagine the scenario: someone launches an application against you, so you go to an attorney for legal advice. You have a consultation and the attorney advises you of some major defects in your defence. An affidavit is prepared on your behalf in response to the allegations made against you. The affidavit also contains the following statement: “To the extent I make legal submissions herein, I rely on the advice furnished to me by my legal representatives.” You go head and sign the affidavit which is served on your opponents. So far, so good. Or is it?
The statement above is often included in affidavits drafted by legal practitioners. People signing the affidavit (the deponents) probably assume it is a standard statement to include in an affidavit. But what is the effect of such a statement?
This was considered in Venmop 275 (Pty) Ltd and Another v Cleverlad Projects (Pty) Ltd and Another 2016 (1) SA 78 (GJ). The court stated that this statement should not be included in an affidavit. The role of an affidavit is purely to allow the deponent to testify to relevant facts which he or she has in their personal knowledge - not to make legal submissions.
The court raised the following points:
1. Statements of the above nature amount to argumentative matter which has no place in affidavits. Rule 6(1) of the Uniform Rules of Court provides that an application shall be brought on notice of motion supported by an affidavit “as to the facts” upon which the applicant relies for relief.
2. Any argumentative submissions that follow a statement of this nature are hearsay and, as such, inadmissible. They also amount to legal opinions on matters upon which it is the courts duty to decide upon.
3. Most importantly, the statement could amount to a waiver of legal professional privilege. This is the privilege which protects communications between a legal adviser and his or her client. If the client were to disclose the legal advice they had received from their legal adviser in the form of statements in their affidavit, there is the danger that the client’s opponents could request the disclosure of that advice.
In the scenario used above, one can therefore see the danger of including a seemingly innocuous statement in an affidavit in that you would unintentionally waive your right to legal professional privilege and be required to disclose all the legal advice which you received from your attorney in your consultations, thereby alerting your opponents to the defects in your defence raised by your attorney. The purpose of the protection afforded to a litigant in terms of the legal professional privilege doctrine is to encourage and protect litigants to disclose all the necessary information about a matter to their attorney when obtaining legal advice, which is essential for the adversarial system of litigation to function properly.
Members of the legal fraternity should therefore not insert such a statement in their client’s affidavits, and clients should ask their legal representatives about statements of this nature before deposing to an affidavit. As the legal rule of caveat subcriptor states: “Let the signer beware.”!
Contributor: FALLON FINNEGAN (Associate) (Litigation & Commercial Departments) (Johannesburg Office)
Tel: 011 784 2634
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