Court confirms fate of advocates

2012-11-30 00:00

IN a majority judgment, the Supreme Court of Appeals yesterday confirmed the striking off of six Pretoria advocates who were among 13 found to have been milking the Road Accident Fund (RAF).

But the SCA set aside a court order that the six advocates in question — Thillay Pillay, Mattheus Botha, Marthinus de Klerk, Percy Leopeng, Daniel Mogagabe and Leonard Francois Bezuidenhout — should be ordered to make repayments to the RAF.

The SCA also dismissed an appeal by the General Council of the Bar, which had argued that seven other advocates who were not struck off the roll, should also have been.

They are Advocates Brenton Geach SC, John O’Donovan Williams SC, Johannes “Stef” Güldenpfennig, Mark Upton, Ephraim Seima, Cas Jordaan and Colin van Onselen.

The SCA confirmed the sanctions imposed on them, which also included making repayments of various amounts to the RAF.

The advocates concerned were found to have accepted briefs for multiple cases on the same day — known as “double briefing” — for which they charged a full trial fee [overreaching]. The practice was one that had become rife in Pretoria in 2009.

In most cases, the advocates had admitted their transgressions, but protested that their clients were not prejudiced because their true instructions had been to settle or postpone the matters.

Two of the five SCA judges were in disagreement with the majority over certain of the findings.

In the majority judgment, Judge Robert Nugent said what the advocates had overlooked was that if their true instructions were to postpone or settle cases, and not to conduct trials, then by their own admission they were not entitled to charge a fee as if they had been briefed to conduct a trial.

“Yet in every case they, abetted by their attorneys, charged a fee, as if they had been instructed to conduct a trial when, on their own versions, they knew full well that was not true.”

He said an extraordinary feature of the case was that some of them, at least initially, seemed to be unconcerned at having charged these fees, and that this was shared by senior colleagues at the bar.

Another argument raised was that the claimants for which the advocates acted were not financially prejudiced because the Fund was liable for the costs.

“Certainly, there was prejudice to the fund in paying fees to which the advocates were not entitled.

“To summarise what occurred, the manner in which the affairs of the fund were being conducted made it ripe for plundering, and the advocates concerned set about doing just that,” the judge said.

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