Professional ethics of attorneys, South Africa, state attorney, litigation, legal services, defendant, state department, pre-trial procedures, rules, procedures, senior state legal advisor, legal professional
Mr. Matlou was the attorney at the state attorney who was briefed by the department of health to represent it as a defendant in the case L v MEC for Health, Gauteng. His conduct in the matter and the manner in which he dealt with it both before, during and after the trial, illustrates characteristics that fall very short of what a moral and ethical legal practitioner should be.
[...] Thereby not only wasting valuable court days but had also same been done sooner, at the appropriate time, then the defendant's advisors may have been able to see that they were in fact liable in the form of negligence and avoid further costs in litigating having so narrowed the issues. However, the failure by Mr. Matlou to act competently and to fulfil his function with the required care, duty and skill and in the prescribed and appropriate time, ultimately led to the defendant defending an action to which it had no defence and little prospects of success. Mr. [...]
[...] The traits of a ‘good' lawyer serve to protect and uphold the fundamental values enshrined in the Constitution and above all the interests of that professional's clients, subject only to their duty to the court, the interests of justice, the observation of the law and the ethical codes. Unfortunately, there are many instances in case law that do not illustrate the above-mentioned traits and values. One such case is Lushaba v MEC for Health, Gauteng. In this case the Defendant and its legal advisors (departmental legal advisors and lawyers at the state attorney who was assigned to the case) conducted themselves in an extremely negligent and indifferent manner from as soon as the summons was received. [...]
[...] It seeks to punish the people acting for a particular party personally as opposed to the defendant or plaintiff themselves be it a company, state department, individual or trust. The representatives of the parties are penalised by the court if the court is of the view that the representative conducted the matter in such a grossly negligent manner which deviates to a substantial degree from the standard expected of a legal practitioner. In such an instance the client being represented cannot be expected to pay the costs occasioned by such conduct and therefore it is the client's representative, the one responsible for the misconduct, that deserves to incur personal liability for acting in such a fashion. [...]
[...] He did not consider the merits of the case and could not have done because he, on oath, admitted that he did not have sight of the plaintiff's medical records and neither did he provide same to the expert he instructed for an opinion. This, the judge noted, was highly unusual considering the department of health should have easy access to the records of government hospitals such as the one attended by the plaintiff. He therefore instructed that the allegation of negligence made by the plaintiff is defended based on no solid medical facts or fully formed reasoning ruling such negligence out. He based his decision to defend the matter on the expert opinion of Dr. [...]
[...] Secondly, and right from the start of the case, the state attorney's representative, Mr. Matlou failed to comply with pre-trial procedures and prescribed time periods for the filing of documents. An example such as the request for particulars from the plaintiff in terms of Section 37 of the Rules relating to documents listed at the pre-trial conference. The plaintiff provided a list of documents it required pertaining to the pre- birth records in the possession of the hospital to Mr. [...]
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