"The matters have been seriously litigated and time consuming. However, that is the nature of the legal process" - Legal Practice Council chairperson
The Legal Practice Council (LPC) has denied that it adopted a "languid approach" in its handling of a rogue lawyer, said to have stolen R348-million paid out by the Department of Health in medical negligence claims of children born with cerebral palsy.
Although complaints were first received about Zuko Nonxuba ten years ago, in 2013, the LPC has blamed Covid, stalling tactics by Nonxuba, and his protracted appeals against a court order granted in April 2022 suspending him from practice and appointing a curator to investigate and handle potential claims. Nonxuba's appeals took 19 months to resolve.
"The actions that the LPC can take against any errant legal practitioner are prescribed by law. The matters have been seriously litigated and time consuming. However, that is the nature of the legal process," Janine Myburgh, Chairperson of the South African Legal Practice Council, says in an affidavit which recently came before the Johannesburg High Court.
The affidavit was filed in response to an urgent application, launched on behalf of two claimants, by a team of lawyers -- acting without charging fees for victims of the disgraced attorney -- in which they sought an order for the appointment of another curator to take control of tracing potential claimants and disbursing what is left in Nonxuba Inc's trust account.
That application was ultimately withdrawn. This was after the LPC, which opposed the application, filed a supplementary affidavit with an "implementation plan" setting out strict timelines to expedite payments to the children. (See our story on this on 14 February.)
Myburgh, in her affidavit, explained: "After filing the answering affidavit, the LPC consulted with other role players with a view to developing an implementation plan to expedite meeting the needs of the minor children and assist in the arduous task of validation and payment of claims to trust creditors."
She said the LPC "was currently implementing" the April 2022 court order. To date there were about 30 medical negligence claimants but Nonxuba Inc had also litigated against the Road Accident Fund and the council was investigating about 44 claims.
The LPC, she said, needed to be given an opportunity to establish a full and final list of trust creditors working with the Special Investigations Unit, the Hawks, the department of health and the Road Accident Fund.
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"The exercise is complex, especially in circumstances where the Special Investigating Unit (SIU) is making applications for the recession of some of the court orders, which in turn, has an effect on the balance in the trust account."
Myburgh says there is about R80.5-million available for distribution to claimants, which will undoubtedly result in a shortfall.
The implementation plan includes advertising on local radio and television stations inviting potential trust creditors to contact the LPC offices and providing documents proving their claims.
It also involves the immediate tracing of other possible victims, with assistance of the SIU.
In the event that there is not enough money to pay the full amounts of verified claims, the Fidelity Fund is to distribute the money on a pro rata basis and to consider covering the shortfall.
The Fidelity Fund, in a statement, said an allegation by the two claimants' lawyers that it was disregarding the rights of children by refusing to pay out claims was a blatant lie.
Claims had been submitted to the fund (by another firm of attorneys) but, acting in accordance with the Legal Practice Act, the fund had required certain information in order to process the claims. That information had not yet been provided.
The fund confirmed that it had now received about R80-million, the money found in Nonxuba Inc trust account, and this would be dealt with in accordance with the April 2022 court order and the Act.
The fund intended to recover its costs in opposing the application on the grounds that it was ill-conceived and without any merit, the statement said.
