THE Court of Appeal has praised Advocate Rethabile Setlojoane for resisting the police’s attempt to force him to violate the principle of attorney-client privilege during investigations. The Court President, Justice Kananelo Mosito, flanked by four other Justices of Appeal, last Friday ruled that it is crucial to uphold the fundamental legal principle of attorney-client privilege.
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The court said Advocate Setlojoane had sought to vindicate not only his own rights but also the rights and ethical obligations of the legal profession as a whole.
The court also criticised the High Court for declining jurisdiction when Advocate Setlojoane approached it last year complaining about the police’s conduct.
Advocate Setlojoane is representing Lehlohonolo Selate who is currently in prison facing a raft of charges.
Selate is suspected of defrauding the government of M50 million between October 2020 and September 2021.
A company called Sunny Penny (Pty) Ltd, in which Selate has some interest in, is also suspected of being involved in the fraud.
The police investigators summoned Advocate Setlojoane for questioning following the payment from Sunny Penny (Pty) Ltd.
During the questioning, the police directed him to surrender all files relating to his client and money paid as fees by Sunny Penny (Pty) Ltd.
Advocate Setlojoane refused to do so, citing the principle of lawyer-client privilege.
He was taken to the Subordinate Court in an attempt to have him joined as an accused in the case against Selate.
However, his lawyer objected to this joinder by invoking provisions of Section 128(1) of the Constitution of Lesotho, which requires that constitutional questions be referred to the High Court.
The magistrate accepted the objection and did not join Advocate Setlojoane as an accused.
Consequently, he instituted an application in the High Court and on June 12 last year a coram of three judges made up of Justices Moroke Mokhesi, Polo Banyane and, ’Maliepollo Makhetha heard the application.
On September 14, 2023, the High Court delivered its judgment and dismissed the application, declining to exercise its constitutional jurisdiction over the violation of the lawyer-client privilege and the right to legal representation.
The High Court based its reasons on the availability of other adequate means of redress.
The court said the lawyer-client privilege is a fundamental principle that is essential for effective legal representation and protecting client’s rights.
It also said by declining jurisdiction, the High Court missed an opportunity to guide the scope and application of the lawyer-client privilege within the Lesotho legal system.
The court said, however, it is important to note that section 22 of the Constitution allows the High Court to decline to exercise its powers if it is satisfied that adequate means of redress are or have been available under other laws.
The court should exercise its discretion to decline jurisdiction only in “very exceptional circumstances”.
The Court of Appeal highlighted “the right of the client to be free from disclosure of confidential communications with his or her lawyer, subject only to the limited exceptions recognised by the common law”.
The court emphasised that the lawyer-client privilege is not merely a rule of evidence but a fundamental principle that ensures the effective exercise of the right to legal representation and the fairness of criminal proceedings.
It also said the rationale of the privilege is not the protection of the individual client, but the upholding of the administration of justice itself, which depends on the free and full communication between clients and their legal advisers.
It said an accused person could challenge the admissibility of evidence obtained through the unauthorised recording of conversations with their legal counsel, as such recordings would violate the lawyer-client privilege and undermine the right to effective legal representation.
The court said while the Money Laundering and Proceeds of Crime Act 2008 does not directly mandate a legal representative or adviser to hand over client funds paid as fees, it imposes obligations to report suspicious transactions.
If subsequent investigations and legal processes determine that these funds are proceeds of crime, they may be subject to confiscation or forfeiture.
Therefore, the legal representative’s duty primarily involves reporting rather than direct transfer of funds to the authorities, unless directed by a court order following due legal processes.
The court said while the police do not have the explicit authority to directly demand the handing over of client funds paid as fees to legal advisers merely on suspicion, they are permitted to seize such funds if there is a reasonable suspicion they are proceeds of crime.
This would typically follow from a structured legal process including reporting, investigation, and potentially judicial proceedings where evidence supports the suspicion of money laundering or related criminal activities.
It said while it is imperative to dismantle the barriers that secrecy laws may create in the fight against financial crimes, it is equally crucial to uphold the fundamental legal principle of attorney-client privilege.
The preservation of this privilege ensures that while legal practitioners may be required to disclose certain information, the core elements of their advisory role remain protected, which is vital for maintaining trust between clients and their lawyers.
The attorney-client privilege is a fundamental principle that underpins the right to legal representation and the fairness of criminal proceedings, the court said.
It said the police investigators had no legal basis for requiring Advocate Setlojoane to hand over his client’s funds paid as fees.
To compel him to become an accomplice against his own client by disclosing privileged communications or assisting in the prosecution of that client would strike at the very heart of the faithful discharge of a lawyer’s ethical duties, the court found.
It said even if he were to ultimately fail on the merits before the High Court on remittal, his pursuit of the appeal has undoubtedly served the public interest by elucidating the scope and application of the lawyer-client privilege within our legal system.
Staff Reporter
