THREE lawyers who apparently played along with the Road Accident Fund’s (RAF) cost-cutting, yet unlawful strategy of settling litigation and finalising payments outside of court, have landed in hot water.
In a scathing judgment in the North Gauteng High Court in Pretoria, Judge Denise Fisher has ordered that the Legal Practice Council (LPC) should investigate the conduct of attorney Sonya Meistre, as well as advocates Jonatan Bouwer and Leizle Swart.
Furthermore, Judge Fisher ruled that the National Director of Public Prosecutions (NDPP) should be supplied with a copy of her judgment.
The trio’s troubles stemmed from two cases in which Meistre received payments from the RAF on behalf of claimants prior to obtaining court orders, in violation of the Contingency Fee Act (CFA).
Meistre sought court orders after RAF had paid, raising Judge Fisher’s suspicions that irregularities had happened.
Beneficiaries in the cases were children who lost their parents – two lost their mother and the other two lost their father.
Judge Fisher’s gripe was that Meistre’s handling of the claims and payments barely considered the children’s interests.
Bouwer was roped in by Meistre to be a curator on behalf of two children. According to Judge Fisher, he approved the payments to Meistre without seeking the consent of a court.
Swart was counsel instructed by Meistre in the order-seeking application. Judge Fisher said it was clear that Swart was “integrally involved” in the bid to get orders deceptively.
Prima facie evidence existed for Meistre, Bouwer and Swart to be investigated for misconduct by the LPC, said Judge Fisher.
“A copy of this judgment is to be placed before the LPC and the conduct of Ms Meistre, and advocates Bouwer and Swart, is referred to the LPC for investigation.
“A copy of this judgment - in relation to both cases - is to be delivered by the Registrar to the NDPP and Minister of Transport,” ruled Judge Fisher.
She pointed out that it was unlawful for lawyers to enter into out-of-court settlements with the RAF, as the CFA barred them.
In a trend that Judge Fisher described as a “sad time in our judiciary’s history”, lawyers operated as if they were entitled to enter into out-of-court settlements with the RAF.
“Such an approach would entail attorneys subverting the legislative scheme created by the CFA by seeking to suggest that the attorneys’ contractual relationship with their clients is not a contingency fee agreement, but an ordinary attorney/client relationship.
“This is a contrivance which would, to my mind, not withstand judicial scrutiny, yet both the attorney in the matter and the RAF have engaged in this subterfuge,” the judge said.
Even more distressing was the RAF’s concession that Meistre was not the only lawyer engaged in this unlawful practice, said Judge Fisher.
“The RAF concedes that it would routinely engage in concluding such settlement agreements, and acting in compliance with them.
“Ms Meistre, it has emerged, trades in this way with the RAF as a matter of course, and she is not alone in this. The RAF concedes that this is not competent, but gives no explanation for this conduct
“It is indeed a sad time in our judiciary history when attorneys engage in wholesale chicanery for the purposes of avoiding legislatively prescribed court oversight. That the RAF should acquiesce in such conduct is even more distressing.”
IOL