AN ATTORNEY who stepped into a multi-million rand road accident injury case at the last minute and claimed a quarter of his client’s entire award has been reported to the law society by a high court judge who slammed the lawyer’s ‘rapacious conduct’.
Johannesburg lawyer Mthetheleli Mali unexpectedly “took over” the Eastern Cape matter just a few days before a long-standing Road Accident Fund matter was to be heard in the high court, Grahamstown. By that stage the original lawyers acting for injured nurse Thobeka Nomala had spent several years in preparation and had arranged that the fund would settle her claim by paying more than R2.5-million for the injuries she sustained in a 2011 vehicle accident.
When the case was called for trial on October 15, Judge Jeremy Pickering heard that the fund had agreed to settle. However he was also told that Nomala had signed a contingency fee agreement with another firm of attorneys: M G Mali of Florida, Johannesburg. The judge said he was ‘somewhat surprised’ by this since Nomala had been represented up to then by Matyeshana and Moodley, an East London firm that had obtained all the necessary evidence and expert witnesses for the trial due in the high court.
A copy of the contract between Nomala and Mali contained a bizarre discrepancy, reflecting two contradictory rates – 25 percent and 30 percent – at which Mali would be paid. In addition Mali was to be paid legal costs at a higher than usual rate. Judge Pickering said that ‘on the face of it’ the agreement appeared outrageously excessive and broke the law.
He postponed the trial so Mali – who was not in court – could explain his agreement with Nomala to the judge. He also gave Mali notice that he would have to argue why the agreement should not be declared invalid. In a subsequent affidavit – Mali did not attend the hearing in person – the attorney said the reference to ‘30 percent’ had been a typing error and that the intention had been to charge 25 percent.
He said he would cancel the original agreement because he had entered the matter ‘at late stages’ and agreed to charge Nomala fees that would not amount to more than 25 percent of her award from the fund.
Judge Pickering expressed shock at an agreement that would have seen an attorney, who represented a client for just one week in a matter that was already on the verge of settlement and where all the work for the settlement had been carried out by another firm of attorneys, being paid well over R600 000 plus higher than usual legal costs.
The fund has been ordered to pay Nomala the agreed settlement. But the judge also quoted past court decisions scrapping contracts where necessary to protect the public against ‘predatory fee arrangements’. On this basis he ruled Mali’s contingency fee arrangement was ‘declared null and void and set aside as unconscionable’.
Judge Pickering said it was ‘almost beyond belief’ that Mali, knowing the extent of Nomala’s devastating injuries – including an ‘extremely severe compound fracture of the right knee’ that left her leg seven centimetres shorter than before – tried to ‘extract’ 25 percent of her award.
He added it was clear that Mali took ‘undue advantage of (Nomala)’, trying to take an ‘unsconscionable, excessive and extortionate’ fee.
‘It is predatory and greedy conduct of this nature which brings the profession and the administration of justice into disrepute’.
Since Mali had not apologised for his ‘rapacious conduct’ the judge said he was not prepared to order that any money be paid into his account. Instead it would be paid to the account of the Grahamstown attorneys who had acted as representatives of both the East London firm that originally took the case, and of Mali.
Any fees charged by Mali should first be presented to the Taxing Master of the Eastern Cape high court to check, and the Taxing Master was instructed to bear in mind that Mali only began acting for Nomala a week before the start of the trial.
In another move that could see Mali come under close scrutiny from his peers, the judge ordered that a copy of his judgment with its criticism of Mali’s behaviour, will be sent to the law society of the Northern Provinces.
Mali, who had expected to get over R600 000 out of the case, has thus been given a clear warning: he bills Nomala at his own peril.