http://www.capetimes.co.za/index.php?fArticleId=5064328

Storm erupts as city axes law firm

July 03, 2009 Edition 1

Karen Breytenbach

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.

Said Mbandazayo: “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”.