Durban - Criminal defence attorney Jacques Botha has sought court protection against a “dirty tricks” attempt by the State to force him, under threat of imprisonment, to disclose information about one of his clients.
When his urgent application came before Judge Mahendra Chetty in the Durban High Court on Friday, even the advocate briefed by the National Prosecuting Authority, Ryan Naidu, submitted there were no grounds to oppose the relief sought.
“I find myself in an untenable position to defend this application,” Naidu said.
While Botha had only sought an interim order setting aside the section 205 subpoena served on him to present himself to the prosecutor for examination next week, the court granted final relief and ordered the respondents to pay the legal costs.
Botha told The Mercury afterwards: “The inference to be drawn here, and an inescapable one at that, is that this attempt represents an appalling abuse of authority, a waste of state resources, a violation of professional ethics and a serious attempt at violation of professional legal privilege, such that it is deserving of the strongest of censure. We are under instructions to take this matter further.”
The matter before court relates to Botha’s representation of financial adviser Dain Neveling who has been charged with plotting to kill his business partner Grant Jones twice last year.
During the bail application it was alleged that Jones was shot several times in the first incident and in the second incident police staged his murder in order to trap the culprits.
After a protracted bail application, Neveling was finally granted bail earlier this year. In his high court application on Friday against magistrate JA de Freitas (as the person who signed the subpoena) and the deputy director of public prosecutions, Botha said Neveling was due to stand trial on charges of attempted murder, conspiracy to commit murder, intimidation, theft and unlawful possession of a firearm.
“I have consulted extensively with him and the advice which I have given has all been furnished and received for the purpose of representing him,” said Botha.
He said the prosecutor dealing with the matter appeared to have taken an “overly personal interest and in my view has failed to maintain an independent and objective approach. His attitude towards me and my client has undoubtedly become personally hostile”.
He said the section 205 subpoena - which has a penalty of jail for non-compliance - was served on him about a week ago, summoning him to make himself available for “examination” on May 31.
The questions posed related to evidence of a firearm allegedly found in Neveling’s possession and “debt files” and information about phone calls he allegedly made to Botha while under arrest and detained in police cells.
Regarding the firearm and debt files, Botha said the information sought was “quite obviously privileged”. Regarding the calls, he said it was not an offence to make calls while in custody, especially to a lawyer, so this could not possibly be classified as an offence requiring a witness at a section 205 inquiry.
The Mercury