By Dickson Jere
A lawyer was acting for a client who had been arrested and charged with a number of offences including that of fraud. The client had transferred part of the money allegedly stolen into his lawyers account. The lawyer took the money as part of his outstanding legal fees for the work done.
The Police believed the money that was transferred into the lawyers account was tainted and ought to have been forfeited to the State. However, the lawyer refused to handover the money and the files as requested by the Police prompting his arrest. He was then charged with a criminal offence together with his client.
He then lodged an appeal, contending that the Police seizure of his account and files was an infringement of the Constitutional right of lawyer/client privilege, which is sacrosanct.
Five Judges of the Court of Appeal heard the case and opined thus;
“While police investigators do not have explicit authority to directly demand the handing over of client funds paid as fees to legal advisors merely on suspicion, they are permitted to seize funds if there is reasonable suspicion they are proceeds of crime,” the Judges opined in a 28-page Judgement.
However, the Court explained that such a seizure would typically follow from a structured legal process including investigations and judicial proceedings where evidence supporting money laundering will be presented.
“While combating financial crimes is crucial, it cannot come at the expense of eroding fundamental legal principles that govern professional legal conduct,” the Court stated.
The Judges explained that legal/client privilege is so sacrosanct and therefore cannot be waived nilly-willy without due process of the law.
“It is declared that the conduct of the police in demanding access to the appellant client files and/or funds paid as legal fees constitute an unlawful infringement of the lawyer/client privilege and right to legal representation,” the Judges stated.
This is a very important case given the ongoing investigations and seizures of properties and funds by the State in many countries and how they should relate to lawyers.
Case citation – Rethabile Setlojaone v Commissioner of Police and Others – CIV/APN/11/23.
It is Lesotho Case Law but the Zambia Judge Prof Philip Musonda (emeritus) was on the panel of the Judges.
