Wishart v Justice P Blieden NO

The appellants, Grant Wishart, Malcolm Wishart and Shabier Bhayat, were directors and officers of various companies in the Wishart group. Certain companies in which they had interests (Avstar Aviation (Pty) Ltd, Colt Mining (Pty) Ltd and Rietspruit Crushers (Pty) Ltd) had, at different times, instructed attorney Badenhorst and advocates Suttner SC and Eyles in limited and unrelated matters. The appellants themselves were never personal clients of these lawyers, and it was common cause that no confidential information relating to the appellants was imparted to the lawyers. After Avstar and Eurocoal were placed in liquidation at the instance of BHP Billiton Energy Coal South Africa Ltd, an inquiry under ss 417 and 418 of the Companies Act 61 of 1973 was convened. The lawyers, acting for Billiton and the liquidators, sought to interrogate the appellants at the Avstar inquiry. The appellants applied for an interdict restraining the lawyers from examining them, arguing that they were ‘quasi-clients’ due to a convergence of interests with the companies previously represented, and that the common law should be developed to prevent the lawyers from acting against them.

The appeal was dismissed with costs, including the costs of two counsel where employed.

The case confirms that South African law does not recognise a right of non-clients or ‘quasi-clients’ to restrain legal practitioners from acting against them absent confidential information. It reinforces corporate separateness and limits the circumstances in which courts will intervene to prevent lawyers from acting, thereby providing certainty in the law of legal ethics and conflicts of interest.