Exam (elaborations)
LJU4802 - Professional Ethics Exam Pack
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- University Of South Africa (Unisa)
LJU4802 - Professional Ethics Exam Pack
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TUT 2020 S2 A1 - AThandiwe, a healthy 6-year-old girl resides with her aunt Mary in Arcadia,
Pretoria. She has been residing with her aunt ever since her mother
passed on. Thandiwe‘s father John is remarried to a women with two
sons. John has access to Thandiwe every second weekend of the month.
Lately Thandiwe has been objecting to the weekend visits but her aunt
Mary thinks it is in her best interest to see her father. Thandiwe has also
complained about a burning sensation when she urinates and is refusing
to do her homework. The burning sensation has become chronic and Mary
decides to take Thandiwe to the doctor. After a detailed physical
examination the doctor realised that Thandiwe had been sexually abused
and after questioning her, she informs the doctor in the presence of her
aunt that her step brother had touched her private parts on several
occasions and warned her not to tell anyone to avoid being in trouble. Her
aunt is not sure whether to report the sexual abuse or not.
Later on, that very same day, Thandiwe’s aunt, Mary, was scheduled for
a consultation with the attorney working on the administration of
Thandiwe’ s mother’s estate. As the legal guardian, Mary had started the
process of claiming for Thandiwe’s maintenance. During the consultation,
the attorney notices that Mary looks more disengaged than usual. Mindful
of his client, the attorney asks Mary if she is well. With the view of receiving
advice or assistance, Mary discloses that Thandiwe’s stepbrother raped
her. Out of concern, the attorney is keen to assist Mary by carrying out an
investigation, which could lead to a possible prosecution, but Mary
decides that the Attorney should keep the sexual abuse incident to himself
in order to avoid ruining their family relationships.
,In view of the facts above, discuss the attorney’s duty of
confidentiality. In your answer, refer to the Code of Conduct for all
Legal Practitioners in as far as it relates to the duty of confidentiality.
Also, discuss the relevant sections of the Children’s Act 38 of 2005
and the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007, which compel legal practitioners to
disclose any knowledge of child related sexual abuse. Lastly,
provide your viewpoint from the factual evidence above on whether
the attorney in question should disclose his knowledge of
Thandiwe’s sexual abuse.
The contract between attorney and client brings about the duty of confidentiality. The
practitioner may not divulge confidences or communications made to them by the
client in the course of their professional relationship. This applies irrespective of the
method of communication used, being in writing, orally, or admission of a crime to the
practitioner made by the client. The duty of confidentiality and the client’s
corresponding right to confidentiality continues even after the attorney-client
relationship has come to an end, and only the client may waive this right. In terms of
the Code of Conduct for All Legal Practitioners 1, Part 2(3)(3.5) reads as follows,
“maintain legal professional privilege and confidentiality regarding the affairs of
present or former clients or employers, according to law.”
It is evident in the scenario given above that this is not part of the current matter that
the legal practitioner is engaged with the client. It was due to the observation from the
practitioner that something is troubling the client and the subsequent disclosure in
confidence by the client. Mary’s response to keep the incident under wraps since she
is more concerned about the family reputation being ruined than the well-being of
Thandiwe put an obligation on him to act.
The practitioner tried to assist Mary to start proceedings against the culprit. There are,
however, some exceptions in attorney-client privilege relationships, namely where the
1 South Africa (2019) Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and
Juristic Entities. Government Gazette 42337:685
,legislature expressly excludes this privilege or where the client gave their consent. The
practitioner would be guilty of an offence if he does not report this matter since it is
legislated explicitly in the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 2. Section 54(1)(a) of the Act 3, reads as follows, “A person
who has knowledge that a sexual offence has been committed against a child must
report such knowledge immediately to a police official.” Mary is guilty of this offence
since she fails to report this. The attorney is bound to report the matter to the police
since Mary’s testimony clearly indicates that she puts her family above the well-being
of the child. Section 54(1)(b) of the Act 4, reads as follows, “A person who fails to report
such knowledge as contemplated in paragraph (a), is guilty of an offence and is liable
on conviction to a fine or to imprisonment for a period not exceeding five years or to
both a fine and such imprisonment.” The attorney would be bound to report this matter
without fear of criminal proceedings against him, since Section 54(2)(c) of the Act 5
reads as follows, “A person who in good faith reports such reasonable belief or
suspicion shall not be liable to any civil or criminal proceedings by reason of making
such report.
The attorney will be reporting the matter in good faith and in the best interest of the
child, which is also stipulated in the Children’s Act 38 of 2005. Section 9 of the Act 6,
explicitly mentions the following, “In all matters concerning the care, protection and
well-being of a child the standard that the child’s best interest is of paramount
importance, must be applied.
The medical examination serves as conclusive evidence that Thandiwe was sexually
assaulted as well as Thandiwe’s statement to Mary and the Doctor who examined her.
The common law principle that the High Court is the upper guardian of children will be
enforced since both the medical and legal practitioner can be summoned to provide
2 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
3 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
4 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
5 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
6 Children's Act 38 of 2005
, evidence with regards to Thandiwe, even if both fields have the component of patient-
doctor or attorney-client privilege.
The attorney should provide full disclosure to ensure that Thandiwe gets the proper
attention and care to deal with her trauma. His action to report the matter is both a
legislative requirement and part of his code of conduct which emphasises and
promotes the interests of justice. In terms of the Code of Conduct 7, Section 57.2 reads
as follows, “A legal practitioner shall scrupulously preserve the personal and
confidential information of a client communicated to him or her, unless the information
is not privileged and disclosure is required by law”. The practioner is therefore bound
by both the legislature and his code of conduct to disclose the matter to the relevant
authorities without any approval from his client.
TUT 2019 S2 A1 - A
Read the following case and then answer the questions.
Ex parte: Mdyogolo (55/15) [2016] ZAECGHC 118 (28 October 2016)
What does section 15(1)(a) of the Attorneys Act 53 of 1979 provides?
Who bears the onus of proof? (4)
[1] “…section 15(1)(a) provides that a person may only be admitted and enrolled if he
or she, ‘in the discretion of the court, is a fit and proper person to be so admitted and
enrolled’. An onus rests on an applicant to satisfy the court that he or she is, indeed,
a fit and proper person.”
Name and briefly discuss the 3 criminal offences committed by the
applicant (6)
[3] The first was a conviction of theft, the applicant stole a cassette tape
from a shop. He was sentenced to two months imprisonment.
7 South Africa (2019) Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and
Juristic Entities. Government Gazette 42337:685
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