Advocate, state lawyer suspended
The two allegedly colluded by settling a R34-million claim that the South African Police Service had ordered them to defend
The head of the Johannesburg state attorney’s office and an advocate from the Johannesburg Bar have been suspended and are being investigated for collusion, involving the settling of a case for millions when they were instructed not to do so.
This follows a scathing judgment, which described their conduct as “apparently fraudulent, disgraceful and deceitful”.
In July, the minister of police approached the high court in Johannesburg to halt the execution of a judgment that ordered the ministry to pay more than R34-million for the alleged wrongful arrest, detention and shooting of a citizen.
The judgment was delivered in February when the Johannesburg state attorney, Kgosi Lekabe, and advocate Hassan Kajee conceded the liability of the South African Police Service (SAPS) in a R34-million claim, although the police said it had given express instructions to defend the claim.
In August, Judge Thifhelimbilu Mudau found in favour of the SAPS’s application to stop the payment. He lambasted Lekabe and Kajee for not responding to the allegations.
“The allegations made by the applicant [SAPS] … are not only serious but are made against officers of the court. The deafening silence of the second [Lekabe] and fourth [Kajee] respondents in the face of these damning allegations to my mind speaks volumes. Importantly, this involved allegations of apparent collusion or fraudulent conduct involving millions of public monies,” said Mudau.
Mudau also found that Kajee had charged astronomical fees, which Lekabe paid. Kajee billed the state for “60 days in succession from 18 December 2017, for his perusal and opinion at rate of R2 500 per hour under circumstances where he clearly did not consult the members of SAPS”. But he was only given instructions two weeks before trial, said the judge.
In his answering affidavit, Lekabe said Kajee would be the best person to deal with the allegations levelled against him about whether he had any authority to concede liability on February 6.
“I have no idea as to what informed the concession of liability in respect of damages arising out of the unlawful arrest and detention [of the complainant].”
After Mudau’s judgment the Johannesburg Society of Advocates applied to the high court in Johannesburg to have Kajee suspended pending an investigation into his conduct. The order suspending Kajee from practising as an advocate included an order directing him to hand over his fee book and other financial documents. These have not yet been delivered.
Kajee did not respond to phone calls or text messages from the Mail & Guardian.
Kameshni Pillay SC, chairperson of the Johannesburg Society of Advocates, confirmed that Kajee has been suspended and that the society had launched an application to strike him from the roll of advocates.
The judgment against Kajee, suspending him, delivered by Judge Lebogang Modiba last month, states that Kajee charged the state R938 000 for the case against the SAPS, which was R14 000 a day for 67 days, including weekends. Lekabe allowed him to claim the amount and made payment within three days of Kajee submitting the invoice.
“The only inference is that the state attorney and the respondent [Kajee] are intent on perpetrating further fraud on the state and fiscus in pursuance of their fraudulent modus operandi, which would result in the public and the advocate’s profession suffering irreparable prejudice,” said Modiba.
But Lekabe, in his affidavit, said Kajee was instructed in December and that it was one of his deputies who signed the fee notes. “I am unable to surmise as to the nature of the complaint mounted against Kajee’s accounts,” the affidavit stated.
Kajee told the court he was not given enough time to file instead so had resigned from the Bar. But the application to strike him off will go ahead.
These were not the only matters in which the two had been cited as allegedly colluding in, the judge said. Modiba said in his judgment that a Brigadier Buekes from SAPS found that there are five other matters in which the two had worked together. The cases amounted to more than R10-million against the SAPS.
“In all these matters, the modus operandi is the same … where a memorandum motivating a proposed settlement is handed in shortly before the trial, or on the day of the trial, thus not affording the minister of police sufficient time to consider the settlement proposal, which would be made an order of court despite the chief litigation officer’s instructions to the contrary,” said Modiba.
Steve Mahlangu, the spokesperson for the department of justice, said Lekabe was on suspension and under investigation.
Lekabe said he had lodged an application with the high court in Pretoria to set the suspension aside.
It seems that Lekabe and Kajee have been working together since 2014.
In March 2016, the Gauteng department of health asked the high court in Johannesburg to set aside a judgment compelling it to pay more than R22-million for damages suffered by a child at a government hospital. “At this stage, the defendant was represented by the attorney of record and advocate Kajee, who it appears was appointed by the state attorney without the knowledge or consent of the defendant,” the department’s affidavit stated.
The department said Lekabe settled the damages claim, which started in 2012, contrary to an instruction to defend it. Judge Phillip Boruchowitz dismissed the department’s application even though he said it “was unclear whether the second [Lekabe] and the third respondents acted contrary to the express instructions of the applicant [department] in settling the matter”.
Lekabe said that judgment showed he had not done anything wrong in the case against the SAPS. “I followed the same process in this case, so how come the outcome is different [?] I will fight the suspension and my case is set out in my answering affidavit.”