At the outset I would like to clarify that I am not an attorney but have extensive experiences in medico-legal matters, with post-graduate studies in medical law and medical jurisprudence. I have completed hundreds of medico-legal assessments for both attorneys and the Road Accident Fund.
I have studied the Contingency Fees Act (CFA), and the matter is a simple one. There is no ambiguity possible from a plain reading of the act.
The big dispute that is being pursued in the media today seems to be a fight between, some now well-known law firms, and various claimants who, in some cases are supported by Discovery Health. There has been shifting of focus from the essential legal facts and this has been conveniently shifted to smear campaigns.
The smear campaigns against the claimants seem to be directed at creating the perception that the claimants and Discovery, by providing information to its members and pursing claims, are creating unnecessary disturbance of a working system. I disagree. The medical schemes are entitled to recovery their incurred costs for the treatment of their members, in terms of the Road Accident Fund Act, as amended.
If larger amounts of money are deducted from the claims by the attorneys, the medical schemes get less that they rightfully should.
The legislation that governs the contingency fees is the Contingency Fees Act (CFA). The act has been well known and the prescripts of the act have always been clear. The Act is not open to deviation by specific parties only because someone from has provided an opinion, that deviated from the Act.
The reliance on opinions served merely as guidelines, and not explicit permission to deviate from the law. Clarity could have been sought from the courts, on what the courts finds as allowable ‘interpretation’ of the act. This however, conveniently, was never done, until recently.
The High court, Supreme Court and the Constitutional Court have all clarified that any agreements made outside of the prescripts of the act are illegal. Since the highest courts of the country have clarified this matter, it is now case law, and hence is not open to challenge. With the Act and case law
There are many respectable law firms in South Africa, some of who I do medico-legal assessments for, who clearly work in accordance with the prescripts of the Act. I know that there is large sum of money involved in these claims, and 25% of such settlements seem a more than fair compensation for the legal work done.
Dr Terrence Kommal CIME, AHMP(Yale), MBChB (Pret), DA (SA), Cert. Med Law (UNISA+UP) Cert Intel. Property (WIPO, Geneva), MRSSAf