Ivor Powell
The Pretoria High Court will next week consider a case that could result in the removal of Judge Willem Heath from his embattled special investigating unit and the reversal of all the unit’s state asset retrievals.
This could mean that the state would have to return the millions of rand it has reclaimed from errant state officials since its inception in 1996.
The unprecedented application is being lodged by a group of personal injury lawyers. They are challenging the constitutionality of Judge Heath’s appointment to the special investigating unit as defined in law as both unconstitutional and invalid. The lawyers are also looking to overturn proclamations for the unit’s investigations into alleged third party fraud involving personal injury lawyers. If they succeed, it would mean that the legal door would be left open for all Judge Heath’s work to be undone.
Judge Heath’s third party lawyer probe arises out of claims that certain lawyers acting on behalf of road accident victims have illicitly pocketed state pay-outs for road accident victims – in addition to legal fees.
The unit is citing in its court papers 143 test cases, which show that only 44% of compensation awarded by the state actually reached the victims of road accidents. Many of these had lost limbs, faculties and the means to make a living.
The rest of the pay-out – 56% – was retained by personal injury lawyers supposedly acting on behalf of their clients. This was on top of legal fees already paid to the lawyers by the Road Accident Fund. In total claimants received only R7-million of the nearly R16-million pay-out recorded in the survey, the unit’s papers say. In two instances in the survey, the entire pay-out was retained by the lawyers concerned.
Legal sources, however, point out that the withholding of pay-outs is not in itself illegal, since the lawyers could be justified in charging more than the prescribed fees, and could also have incurred additional costs over and above their legal rates.
The South African Association of Personal Injury Lawyers (Saapil) charges that its members are being victimised and questions the representivity of the 143 case survey. The organisation maintains that only a very small percentage of personal accident lawyers have been guilty of corrupt practices.
The group lawyers suing Judge Heath bandied together last April to form Saapil after the dockets detailing alleged third party fraud by accident lawyers were forwarded to the special investigating unit and preliminary investigations launched.
Saapil accuses Judge Heath’s unit of overzealously using dubiously defined search and seizure powers to violate the privacy of innocent attorneys. In one case, Saapil claims 820 dockets were seized – without any prima facie evidence of corruption on the part of the attorney.
According to the court papers, Saapil’s case will be fought on fine legalistic issues rather than morality. Central to Saapil submission is an argument around the legitimacy of appointing a judge to head up a special investigating unit, such as the one led by Judge Heath.
The argument is that Judge Heath’s appointment violates the constitutional principle of the separation of powers, in terms of which the respective powers of the legislature, the executive and the judiciary are jealously kept apart.
The case is before the high court on Monday. Advocate Gilbert Marcus, SC, will appear for Judge Heath’s unit, and advocate Wim Trengove, SC, will represent Saapil.