Injured boy let down by the law

2017-08-09 11:15
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Durban - A young boy who suffered a head injury after being knocked down by a car 11 years ago has been let down by the law after his attorney first accepted a paltry Road Accident Fund settlement and then apparently stole the money.

While the fund considers the matter closed, new lawyers are now attempting to make good and reopen the case to secure a  better pay-out for the child.

This week, Durban high court Judge Rashid Vahed ordered the court-appointed curator handling the matter to further investigate what had been done to recover the money from the original attorney, who is named as “Bashin Naicker”.

“It seems the attorney was paid and stole the money? Has he been questioned about this?” the judge commented.

It is believed that “Bashin Naicker” is Koobashan Naicker, an attorney who ran a busy practice  in Durban North dealing mainly with RAF claims.

He was disbarred in 2011 for stealing trust fund money.

At the time, the Attorneys Fidelity Fund said it had received more than 300 claims involving more than R5 million from his former clients and the fund had already paid out about R2.5m in compensation.

Naicker was the cause of a multiple vehicle pile-up on Durban’s Athlone Bridge in March 2011 in which three people, - a mom and her young son and a dance teacher - were killed.

He eventually pleaded guilty to charges of culpable homicide, admitting he had been drinking and taking cocaine on that day.

In 2014 he was sentenced to serve six years imprisonment.

News24 has confirmed with prison authorities that he was paroled earlier this year. He could not be reached for comment.

Naicker abandoned his practice around the time of the accident.

According to documents available at that time, the Road Accident Fund had paid out R11m to him between September 2008 and March 2011 but very little of this money was paid over to clients. Instead it had been transferred from his trust fund into his personal business account.

At one time, in spite of handling hundreds of claims, there was only R950 in his trust account.

It appears that Naicker was never charged criminally for allegedly raiding his trust account and leaving his clients high and dry.

KwaZulu-Natal law society chairman Umesh Jiven told News24:“All cases involving theft and fraud detected by the law society and which usually result in the striking off of the attorney's name from the roll of attorneys are referred to the South African police services for investigation and prosecution. 

“Unfortunately, we have found that either the police or the Department of Justice are very slow in following up with the investigation and prosecution process.”

In her affidavit, the child’s mother - who cannot be named to protect his identity - said her son had been knocked over in November 2006, when he was four year’s old.
He suffered a injuries to his  head and broke his leg.

She said she instructed “Bashin Naicker” attorneys to sue the fund and get compensation but she heard nothing back from them.

In October 2011, she then approached Errol Sibiya of Berkowitz Cohen & Wartski. Only then did she discover that the claim had been lodged by Naicker and the fund had paid out R50 000 in compensation which she had never received.

The amount was “wholly unfair” considering his medical condition.

“The trifling amount bears no realistic relationship to the measure of damages.”

Medical reports attached to the court documents show that the boy is struggling at school and has failed several grades.

“His post-traumatic complaints are significant and debilitating and may indicate a significant head injury,” a report said.

In her report, curator Michelle Moodley said from her own investigations the R50 000 accepted by Naicker “is miniscule in comparison the child’s injuries and suffering”.

Referring to case law, she said in other matters involving brain injuries, the fund had paid out between R750 000 and R100 000 in general damages.

“Given the child’s age and the fact that there is no indication that his life span has been affected, the cost of pain medication for life even at a modest amount of R100 a month, would cost more than the R50 000 agreed.

“There are good grounds to set aside the settlement agreement entered into by Naicker and the fund,” she said.

The matter was adjourned for the curator to file a further report.


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