State attorney sidelined at a cost of millions
● Judge questions Johannesburg law firm’s role in Mthatha court case
The name of Johannesburgbased law firm Norton Rose Fulbright increasingly appears on Eastern Cape high court rolls — courtesy of a multimillion-rand contract to defend the health MEC against medico-legal claims for damages arising mainly from botched birth procedures.
NRF’s position was placed firmly in the spotlight last week when judge Richard Brooks of the Mthatha high court raised concerns about the firm’s “unfortunate” sidelining of the Mthatha state attorney without proper notice in terms of court rules.
The judge was confirming a R23.1m settlement reached between the state attorney’s office and the legal representatives for Babalwa Mbokodi, mother of a cerebral palsy child who suffered brain damage during birth as a result of the negligence of nursing staff.
He was concerned that the vague role of NRF in the case — evident only from the firm’s name on certain court documents — became fully apparent only when health superintendent-general Thobile Mbengashe claimed in a May 5 affidavit that the state attorney’s mandate in the matter had already been withdrawn on February 7.
Mbengashe provided no documentary evidence to support the statement, there was no notice to this effect filed with the registrar of the court and, as Brooks pointed out, the state attorney had continued to play an active role in the case, past this date.
By then, Mbokodi’s legal representatives and the state attorney, assisted on either side by a phalanx of medical specialists and other experts, had agreed that Mthatha General hospital staff had been negligent in their care of Mbokodi, and had settled on an appropriate amount of damages.
Most of the legal grind work for national and provincial government litigation typically is handled by the state attorney, who may brief private legal professionals to provide specialist drafting and advocacy skills.
NRF was appointed in 2017 in a joint venture with East London-based Smith Tabata Attorneys — “the only responsive” bidder, according to health department spokesperson Sizwe Kupelo — ostensibly to address shortcomings in the Mthatha state attorney office.
The Dispatch has seen a version of the contract that was signed by representatives of NRF and Smith Tabata, but unsigned by health officials.
The appointment secured R60m in fees to finalise 300 medico-legal files — an average of R200,000 per case. This case load represents a fraction of the average case load of a state attorney.
The contract provides for a further option of earning up to R24,000 a day for disposing of additional outstanding claims, and specifically excludes payments for legal counsel, experts and “other third party” suppliers.
A senior deputy state attorney can earn up to just over R1m, according to published salary scales, and can have a case load of between 300 and 800 cases at any time, a justice department source said.
Theoretically, according to the terms of the contract, the two-year appointment should have been wrapped up in 2019 but, in March this year, the firm was intervening for the first time in the case which eventually came before Brooks in the Mthatha High Court.
NRF’s Penny Biram and Smith Tabata CEO Andrew Conroy both referred questions regarding their firm’s contract to Kupelo.
Complaining in 2017 about the department’s inadequate representation by the state attorney, then MEC for health Pumza Dyantyi said the state attorney had won only four out of 155 claims against the department since 2014.
In 2019, according to the department’s financial report, negligence claims had reached R29bn, R5bn more than the total annual health budget.
Kupelo blamed the Mthatha state attorney’s “limping capacity” and “insurmountable troubles” for the outsourcing of medico-legal claims to specialised private law firms.
Procuring NRF’s services had come about through “an open, fair and consultative” process, but was met with resistance “by those benefiting from inadequacies or challenges”. He confirmed the department had seen “a slower finalisation of matters under” NRF.
Kupelo was unwell on Saturday and unable to respond to follow-up questions.
The Special Investigating Unit briefed parliament’s justice committee in February on billions potentially lost through collusion between state attorney officials across the country, private legal practitioners and third parties.
But in the Mbokodi matter, Brooks could find no fault with the lawyers, stating that both sets of legal representatives had discharged their obligations to their respective clients and to the court “with due diligence” and according to court rules.
He stated the role played by an attorney of record in litigation was an important one, generating onerous duties, especially in a situation where the court now had to decide if the actions attributed to an attorney in an agreement or outcome of the matter created a binding onus on the MEC.
“As far as this may be possible there ought to be certainty at all times about the nature and extent of legal representation that a party may or may not enjoy in a court of law.”
Finding that the agreement reached was properly secured, Brooks added that the shortcomings evident in the case on the part of MEC Sindiswa Gomba “and her attorneys, whoever they may be ... remain unexplained”. —