The Defendants applied for the removal of the Plaintiff’s counsel on the basis that he would likely become a witness in upcoming proceedings.

Master Prowse confirmed that there were three ways in which counsel for a party could be called as a witness: under Rule 6.8 which allows for Questioning before an Application; at Questioning; or at Trial. Master Prowse clarified that Rule 6.8 is likely to be used more often than the former Rule 266 because the examination is in the form of cross-examination as opposed to direct examination.

Master Prowse noted that Plaintiff’s counsel’s prior involvement in the disputed transactions meant he could also be questioned pursuant to Rule 5.18 which allows a person who has provided services to a corporation to be questioned if the relevant and material information can’t be obtained from an officer, employee or former employee; it would be unfair to proceed to Trial without allowing the Questioning; and, no undue hardship expense or delay would be caused to another party or to the person questioned.

Master Prowse allowed the Application and held that Plaintiff’s counsel’s involvement in the matter prior to the dispute meant he had relevant and material information and therefore could be a witness.