Busa has taken the department of labour to court over employment equity targets.
The Road Accident Fund (RAF) paid R1.7 million to lawyer Masakhe Tengwa, despite the fact that a forensic report it commissioned stated that the attorney was not the correct recipient of the substantial payout.
The RAF’s action has been labelled “unlawful and contemptuous” in court papers filed against the state entity.
On 19 February, the fund lost the first round in a protracted Johannesburg high court lawsuit on how it entered an agreement with Tengwa, who was not legally appointed to represent crash victim Johannes Thwala.
Tengwa confirmed this week that he was appearing before a Legal Practice Council tribunal for alleged unethical conduct. The council regulates the law profession in the country.
Thwala, who was in a car crash in March 2016, has still not received his payout almost two years after the fund said it had released the money to Tengwa in August 2022.
On 19 February, Judge Motsamai Makume ordered the RAF to release the information relating to how the funds ended up in the hands of Tengwa and not Thwala.
Makume’s ruling followed an October 2018 high court order appointing Jabulani Luvuno as the curator based on neurologist Dr Kevin Rosman’s report that, given Thwala’s “low level of education, as well as [a] severe brain injury, he is thought incapable of following the legal process”.
The payout, as per the 2016 court order, was to be made to Luvuno on Thwala’s behalf.
On 4 March, responding to the 19 February court order, the fund released a forensic investigation report on how and why it had paid Tengwa.
The report, seen by the Mail & Guardian, stated that Thwala approached Tengwa after the former had allegedly not received assistance from his representative, Sifiso Ntshangase of SS Ntshangase Attorneys, which is now suing the RAF.
“On 5 March 2021, the investigating team met with Mr Thwala. He stated that his initial attorneys on the matter were SS Ntshangase Attorneys,” reads the report.
However, the report contradicts itself by saying that the change of mandate from SS Ntshangase to Tengwa Attorneys was “irregular” but stated there was no illicit advertising by Tengwa.
“It was irregular in that the curator [Luvuno] was not notified. The reason for this according to the claimant, Mr Thwala, was that he was not aware of the appointment of the curator,” the report added.
The affidavit that Ntshangase previously submitted to the court stated that various medical reports recommended that Thwala have a curator appointed to assist him with the legal action that Ntshangase had instituted against the RAF, which included Rosman’s findings.
Those were echoed by psychiatrist Dr Gary Fine, who said Thwala required “protection for any large sum of money awarded”, adding that he needed a court-appointed curator.
Despite finding that it had paid the wrong attorney, the RAF, in its commissioned report, said there was no wrongdoing and nothing needed to be corrected in the R1.7 million payment.
In his replying affidavit filed last week, and seen by the M&G, Ntshangase submitted that the RAF’s conduct in concluding the settlement agreement and making the more than R1.7 million payment to Tengwa Attorneys was “unlawful and contemptuous” of the October 2018 court order.
“The applicant [SS Ntshangase] further submits that this unlawful conduct has the effect that the settlement agreement should be declared invalid by the above honourable court,” reads the affidavit.
Ntshangase denied that Tengwa Attorneys had a valid mandate to act on behalf of Thwala.
“In amplification thereof, the applicant records that at all material times, advocate Luvuno was the court-appointed representative of Mr Thwala and that the fund’s conduct in substituting Mr Tengwa/Tengwa Attorneys in this claim was clearly unlawful,” Ntshangase asserted in his affidavit.
Moreover, he reiterated that the conclusion reached by the RAF — that its investigation said nothing needed to be corrected — should be nullified.
Ntshangase said the fund should have been mindful of the fact that it made a settlement offer on 10 March 2022 and it was accepted on the same day by Tengwa, without the input or consent of the appointed curator.
“Both of the contracting parties [Tengwa and RAF] were aware of the existence of the court order appointing advocate Luvuno as the curator and both of the parties had his contact details, but none of them reached out to him and let him know of the settlement offer,” added the affidavit.
It stressed that the fund had defied its own forensic report and had failed to follow through on its recommendations by not contacting Luvuno on the findings and conclusion of the R1.7 million settlement. Ntshangase further stated that the fund claimed that Luvuno was “aware” of the mandate allegedly given to Tengwa by Thwala, without providing evidence for this.
Ntshangase referred to the answering affidavit that Luvuno submitted to the court and said he deemed it fit to quote averments he made.
In his affidavit, Luvuo questioned how Tengwa was able to obtain the mandate from a patient who had been medically found to be incapable of following legal processes and how Tengwa had failed to make sure that Thwala’s money was protected.
“I further joined the issue with the applicant stating that the settlement agreement between Tengwa and RAF, without the input of the curator, is invalid,” Luvuno contended.
“They [RAF and Tengwa] were aware of the court order conferring certain powers on the curator, but they proceeded nonetheless.”
He added that in the “ordinary course of events the matter would have culminated in a
report being prepared by me as a curator; I would have recommended that the patient’s money should be protected by a trust or be secured in the Guardians Fund or even that a curator be appointed whichever method that would have been approved by a judge in chambers”.
Responding to the M&G, Tengwa said his legal counsel had advised him not to comment publicly, pending the outcome of the lawsuit and the Legal Professionals Council tribunal into his alleged illegal and unethical conduct.
The lawsuit comes in the wake of the Special Investigating Unit’s inquiry into how court sheriffs and 102 law firms had received about R340 million in duplicate payments through abuse of the fund by lawyers.
Last Friday, the M&G sent detailed questions to the RAF, which repeatedly promised it would respond. It had not done so at the time of publication.