Some time in 2009 a Johannesburg project manager, whom we shall call “J”, got into a dispute with a woman client, who – for reasons that will soon become apparent – will here only be known as “D”. It was about commission that he believed he was owed on a property deal. Attorneys were hired, D was sued and in due course the trial date was set for late 2010.
A week or two before the trial, J’s attorney Michael Saltz briefed advocate Nigel Riley, a member of the Johannesburg Bar, to argue J’s case in court. But, just three days before the trial, things started getting complicated.
The story that follows is taken from documents filed with or generated by the Johannesburg Bar Council (JBL) – an august body made up of some of the worthier members of the advocacy profession.
J’s tale, as set out in his formal complaint sent to the chairman of the JBC in January last year :
“In November 2010 I received a call from my attorney, Michael Saltz of KMN Attorneys, who said he had received a call from the defendant, D’s counsel, advocate G D Wickens, who advised him to postpone the matter and change counsel, as there was an allegation of rape by the defendant against our counsel, being advocate Nigel Riley.
“I had been told prior to this by advocate Riley that he had had a relationship with the defendant’s daughter, but that this had ended many years prior and would have no bearing whatsoever on the case. In fact he was looking forward to the matter as D had given him “a hard time” in respect of the relationship.
“Following the telephone call from Wickens, attorney Saltz contacted advocate Riley, who said that the allegation was nonsense and he had never been notified of any charge in respect of the matter. He stated that he had taken advice from a senior advocate [Adv Epstein], a member of the Bar Council, who had advised there was “no problem” and that he was most certainly to proceed with the matter.
“At court on the morning of the trial, D’s attorney, Alex Brooks [of Attorneys Brand Brooks] served notice on my attorney containing a copy of a restraining order [issued in terms of the Domestic Violence Act] that D had obtained against Riley some time prior to these proceedings. Riley denied ever having had sight of the document, to the point of alleging that it was fraudulent.
“The case proceeded and the defence did not raise the issue – until moments before the defendant, D, was to undergo cross-examination by advocate Riley, when advocate Wickens and attorney Brooks asked Riley and Saltz to meet them outside court.
“On their return, adv Riley looked pale and subdued, as did attorney Saltz. When I asked, was there a problem, they answered ‘no, nothing’.
“During cross-examination it was evident that Riley was holding back. He was very obviously omitting to ask challenging questions central to the issues we had identified in our prior consultations. When I passed him notes, via my attorney, reminding him to ask these questions, he merely nodded and still did not deal with the issues. Judge Coppin, on more than one occasion, reprimanded Riley for meandering and not dealing with specific issues.
“Afterwards I questioned both Riley and Saltz about what had happened outside court and the reason for their holding back. Both told me that advocate Wickens had threatened advocate Riley that, should he “go too hard” on their client, he would have no alternative but to raise the rape issue.
“I find the above behaviour of advocate Wickens reprehensible and unlawful. I understand from adv Riley that he has laid a charge at Norwood police station in respect of intimidation by adv Wickens [true] and that he has reported the matter to yourselves [not true].
“I believe that my case has been compromised by this unlawful and unprofessional conduct and request that the Bar Council hold an enquiry into the matter, as certainly adv Wickens brings the profession into disrepute. I await your response.”
Advocate Wickens sent a report to the Bar Ethics committee on 16 February last year in which he gave his own version of these events. First, he informed the committee that, a week earlier, the prosecutor had refused to prosecute the charges laid by Riley at the Norwood police station.
In his report Wickens denies that he threatened Riley, but does concede: “I did not want D to break down or an adverse finding to be made with regard to her credibility, and was of the view that, by informing Riley of my intention to bring the rape history to the court’s attention should she break down as a result of strenuous cross-examination, a potentially unpleasant situation could be averted.”
(J’s response: “That certainly fitted the definition of a threat. It is evident,” he told the Bar Committee, “that he not only threatened – but both blackmailed and extorted from Riley – a ‘fair’ cross-examination in which D did not suffer a breakdown or [face] an adverse credibility finding [one of the purposes of cross-examination].” He notes elsewhere in the letter: “An allegation of rape in terms of South African law is an extremely serious one, and Riley could only have felt that his career could be on the line.”)
Wickens’ account of the background story certainly has that potential: He relates how, in the course of a pre-trial consultation with D, when she was informed who counsel for the Plaintiff was, became very upset and was trembling and crying.
“When she regained her composure she told Brooks and me that Riley had raped her daughter when she was 17. Her daughter having consequently fallen pregnant, had undergone a ‘backstreet’ abortion, which had been arranged by Riley, had attempted suicide and had been hospitalised for psychological treatment. D told us in no uncertain terms she’d be unable to face Riley in the witness box.”
Wickens then relates how he sought advice from colleagues as to what to do next.
Having told this story to Johan Wasserman SC and Philip Daniels SC, they were of the view that D would not get a fair hearing; that Riley should never have accepted the brief; and that he should, in any event, now withdraw on the basis that he was conflicted. Should he refuse to do so, application should be made for a postponement of the case. Back in Wickens' chambers, D agreed with the suggestion.
Later that day Wickens contacted Craig Watt-Pringle SC (who sits on the professional committee of the Bar Council), not to ask his advice but merely to keep him informed because of the “sensitive nature” of the case.
At this stage he received a call from Riley, who, in turn, claimed he had consulted another senior colleague, Epstein SC, and that on the strength of his advice had decided to proceed with the case. If Wickens wanted a postponement, he would have to apply to court for it.
Wickens says he then took advice from Altus Joubert SC, a former chairman of the Johannesburg Bar, who told him he would have to explain to the court why he wanted a postponement and what steps he intended to take to have Riley removed. Subsequent to that, he would have to apply to court or to the Bar Council to have Riley removed.
Wickens said he reckoned the process could take a further 18 months and in any event would be traumatic for D and her family. After further consultation with D and her daughter, they decided to proceed to trial.
In the course of that consultation, D explained that she and her daughter did not report the rape to the police because Riley had stalked them and threatened them with violence, including one occasion when he dragged her daughter into a motor vehicle, then beat the car seat with a pickaxe handle saying to her that if she laid charges, “this will be your head”.
They had subsequently sought and been granted a restraining order in terms of the Domestic Violence Act on the basis of these threats and his violent behaviour. This had successfully kept him at bay, so they had not pursued the matter further.
(It was a copy of this restraining order that Wickens then served on Riley that morning in court.
He confirmed having summoned Riley to a meeting outside court shortly before D was to be cross-examined and that, in the presence of both attorneys, he had informed Riley that if his cross-examination was not “fair” and if his client broke down, he would produce the restraining order to court and ask D to explain the background to the court. Riley had then assured him that his cross-examination would be fair.
Wickens denied having theatened or blackmailed Riley; he had sought only to protect his client’s interests.
J’s response: “What better way to safeguard [his client’s] interests than to present Riley with a copy of the restraining order, to intimidate Riley and move his focus from the matter at hand to one of his personal survival as an advocate?”
To which he adds: “I [do also] question why Riley did not recuse himself from the matter in this regard.” He also adds that while Riley had always contended that he had a consensual sexual relationship with D’s daughter, “at no stage did he deny that she fell pregnant and had undergone a backstreet abortion”.
J addressed his complaint to the chairman of the Bar Council in January 2011. Nine months later, on September 29, the secretary of its professional sub-committee wrote to advise him: “The sub-committee duly considered the complaint brought by you. It has decided to refer the complaint to an enquiry. The purpose of the enquiry is to establish disputed facts, make a finding on the alleged unprofessional conduct and, if applicable, make a recommendation on an appropriate punishment.
“The professional sub-committee will keep you informed of material developments.”
On November 9 last year he received an encouraging note from the secretary: “We are waiting for the outcome of the hearing which was held last week.”
Two months later he again enquired what the outcome had been. On January 16 this year – a full year after he’d lodged his complaint – she reported to J: “The inquiry into the conduct of Adv Riley was separated from the inquiry into the conduct of Adv Wickens as Adv Riley was not in a position to proceed on the agreed date for the hearing.
“The recommendation of the panel [with regard to Adv Wickens] to the Bar Council, is presently private and confidential and you will be advised of the Bar Council’s decision in due course. The Bar Council will, in all probability, only consider the recommendation after conclusion of the inquiry into the conduct of Adv Riley, for which no date has yet been set.”
More candidly, on the telephone, Irvine told him: “The file quite conceivably now finds itself at the bottom of the ‘too hard’ pile.”
Six months later, still no word. Which explains why Noseweek is telling the story – so that the reader may be the judge: would you wish to make use of the services of the professionals who feature in it?
Readers should send their emails to firstname.lastname@example.org to stand the chance of winning a Noseweek T-shirt. (Naturally, members of the Johannesburg Bar Council are also free to enter, and have an equal chance of winning.)
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