This site contains factual and substantiated proof how Discovery Health via its in house debt collector Jeffrey Katz has waged a five-year long vendetta against Ronald and Darren Bobroff and the practice RBP Inc as vengeance for them, in the course of defending their clients exposing Discovery's unlawful, fraudulent and immoral conduct, whereby it abuses and extorts members and their families who sustain injury in road accidents and other trauma.
You will read how Katz made specific threats on a number of occasions to RBP director Stephen Bezuidenhout, to RBP's senior advocate at a hearing not involving Discovery according to its attorney George Van Niekerk of Edward Nathan, (so why was Katz there?) and to Darren Bobroff: that "We (Discovery) will destroy you all, no matter what it takes and no matter what it costs".
CLICK HERE TO READ: AFFIDAVIT EXPOSING HOW DISCOVERY WAS BEHIND MALICIOUS SUSPENSION APPLICATION
You will also read how Discovery via its attorneys Edward Nathan effectively hijacked the Law Society Council by packing it with Discovery attorneys and others closely connected to Discovery or ENS, and how it catapulted a shady ambulance chaser, Anthony Millar of Norman Berger and Partners whose practice comprises of poor black road accident victims who they unethically tout via their employee Jabu from Natalspruit Hospital; to the office of "president" of the Law Society of the Northern Provinces.
YouTube interviews with a few of Millar's touted clients:
Millar has never previously served on any committee of the organized profession, and his rigged installation as "president' of the Law Society by Discovery / ENS, is a corrupt perversion of everything that the Law Society has always stood for and irreparably taints it. Read the powerful and truthful affidavits filed by the Law Society's former president, Mr Busani Mabunda in 2012 and 2013, in which he fearlessly exposes Discovery and its attorney George Van Niekerk of ENS as being behind the cynical use of a former RBP client to pursue its vendetta against Ronald, Darren and RBP. He accuses Van Niekerk and RBP former client Mr Graham and his wife of perjury.
You will read how 2014/5 Law Society President Strike Madiba, again expressly fingers Discovery on 30 July 2015, in an affidavit filed by him in court, of being behind the second round of litigation brought by it in the name of the same former RBP client previously used as a puppet against RBP, Ronald and Darren, after its earlier application was effectively dismissed by the court.
You will also read how Millar, with the support of ENS's huge army of lawyers, step by step paved the way for his corrupt installation as "president" of the Law Society.
Was to remove the Law Society rule which prohibits anyone canvassing support for an attorney to be elected to the council of the Law Society. Rule 45 was specifically provided to ensure that candidates for election to the Law Society council should be attorneys of WORTH, RESPECTED BY THEIR COLLEAGUES, WHO HAD SERVED FOR LENGTHY PERIODS OF TIME ON COMMITTEES OF THE LAW SOCIETY, LEADERS IN THEIR COMMUNITIES AND WERE FIT AND PROPER TO SERVE AS MEMBERS OF THE COUNCIL.
As Millar was none of the aforesaid, the only way to get him onto the council was if Discovery's attorneys, primarily ENS but also other large corporate law firms, would use their collective hundreds of partners and professional staff to lobby for, and to vote for Millar. Therefore, this rule was abolished by virtue of Millar's motion at the Law Society 2014 annual general meeting, supported by Discovery's attorneys and proxies.
Was for Millar to call for a special meeting of members of the Law Society seeking to force an "election" of members of the council. You will read Millar's letter demanding such a meeting, his attached resolution calling for an "election", and the requisition in terms of the Law Society's rule 16 which requires signature by at least 100 of its members.
You will note that the requisition is ONLY signed by Discovery's Jeff Katz and assistant Krawitz, Millar, Berger and their two assistants and EVERY OTHER SIGNATURE IS EXCLUSIVELY THAT OF DISCOVERY'S ATTORNEYS DIRECTORS AND PROFESSIONAL STAFF. This has to be the most astonishingly, brazen and arrogant manipulation of the Law Society in its entire history.
Discovery's Katz plotting with touting attorney, accomplice Millar.
Unsurprisingly the meeting called for was packed with Discovery proxies and the resolution called for was carried forcing an "election" for the council of the Law Society.
Was for Discovery via the various law firms it floods with work, to put up candidates for "election" to the council, which included directors of these firms as also Discovery panel attorneys. Again by sheer weight of numbers, Discovery was able to ensure that its chosen candidates would be elected to the council.
Was to have Millar leap-frogged from his Louis Botha office obscurity, to the office of president of the council! There are some 18 000 attorneys governed by the Law Society of the Northern Provinces. A tiny proportion of these are ever elected after years of decades in practice to the council of the Law Society, and its 125-year existence the council has only had approximately 125 presidents or less. A councillor is required to serve diligently on the council for many years, display a capacity for the enormous work load, proper and ethical service as president involves, serve and chair numerous important committees of the Law Society for many years, and only then, do a minuscule number of councillors be held in such esteem by their fellow councillors and the profession as a whole, to become eligible for election by fellow councillors as president of the council. Again Millar fails to qualify on any single one of these criteria.
Tragically in a farcical perversion of everything the Law Society has always stood for, Millar was "elected" by way of a rigged process whereby Discovery stooges voted for him. Millar has faithfully served his masters since then together with his fellow Discovery proxies, in causing the council to do a 360 degree about face.
Whereas it had previously, staunchly and honestly stood for principle in resisting and exposing Discovery and its attorney’s relentless efforts to manipulate the Law Society to serve its agenda; it now effectively parroted the line taken by Discovery and ENS's George Van Niekerk in attacking Ronald, Darren and RBP Inc.
The 274-page May 2015 powerful affidavit, prepared by the Law Society's attorneys, on the Law Society's instructions for signature by president Madiba, in paragraph 14 thereof exposes the collusion between Millar, Discovery's Katz, Discovery's attorney George Van Niekerk of ENS, and a rogue hired gun "journalist" Tony Kilroy Beamish, in pursuing the vendetta against Ronald, Darren and RBP Inc.
After the farcical “election" results became known on or about 23 October 2015, and given that Millar was now a "councillor”, paragraph 14 was suddenly removed from that affidavit, as you will note from the replacement page containing the new paragraph 14.
That obviously was not enough to satisfy Discovery proxies on the council, and the entire truthful and courageous 274-page affidavit was discarded and substituted, by a venomous affidavit tailor made to further Discovery's interests.
Despite paying lip service to the principles of fairness and natural justice, that affidavit had attached to it, a biased and inaccurate report, and an affidavit by a mentally disturbed former RBP employee recruited by Beamish, and which had never previously been furnished to RBP so that its directors could rebut the dishonest and concocted allegations made therein.
The obvious intention was to negatively and improperly influence the minds of any judges reading same against RBP, Ronald and Darren. Despite that contrived affidavit stating that RBP and its directors would be given an opportunity to rebut the allegations in the annexed documents at a Law Society disciplinary hearing, where the authors of those documents would face cross examination by RBP legal representatives; that of course never took place.
Instead the Law Society, now under the powerful influence of Discovery proxies on its council, made common cause with it, and with Millar at the helm trumpeting on television and elsewhere in the furtherance of his and Discovery's agenda against Ronald, Darren and RBP INC.
In a complete and utter corruption of the council's long standing policy, requiring any councillor who has any interest in a matter serving before the council to recuse themselves, and not be involved or privy to anything concerning such matters, Millar not only refused to recuse himself, but actively drives his and his master Discovery's agenda at council meetings and has shamefully been permitted by the council to front the attack on Ronald, Darren and RBP in the media and elsewhere.
RBP have been furnished with the minutes of the council meetings concerned, by a councillor who is horrified at the corruption of the council, but is afraid to speak out due to discoveries record of destroying anyone who stands up to it, and as arrogantly stated by Katz.
A letter sent to the law society by RBP's attorneys, seeking an undertaking that Millar would not be permitted to be involved or privy to any council meetings or correspondence relating to RBP, was simply ignored by the Discovery proxy packed council. THIS IS AN ABSOLUTE AND SCANDALOUS CONFLICT OF INTEREST AND AGAIN SHAMES AND TAINTS THE LAW SOCIETY'S ONCE PROUD RECORD OF INTEGRITY.
THE TRUE FACTS AND SUPPORTING DOCUMENTS DEMONSTRATING HOW THE LAW SOCIETY OF THE NORTHERN PROVINCES PERMITTED, PROMOTED AND ENCOURAGED ITS 14 000 MEMBERS TO UTILISE COMMON LAW PERCENTAGE FEE AGREEMENTS – THE AMERICAN SYSTEM OF NO-WIN NO-FEE WHERE THE ATTORNEY WOULD RECEIVED FROM 25% UPWARDS PLUS VAT OF THE DAMAGES RECOVERED FOR THE CLIENT
LATEST DEVELOPMENTS AS AT JUNE 2017
1.Discovery’s Katz and Discovery’s belligerent attorney (who was accused of perjury by the Law Society), George van Niekerk of Edward Nathan - Cape Town, Proxy Anthony Millar and media lackey Beamish, in concert with certain employees of the Road Accident Fund, the National Prosecuting Authority and the Jewish Reports Ant Katz, making wild and unsubstantiated allegations that “the Bobroffs” (never RBP second senior director Mr Stephen Bezuidenhout who was made effectively invisible) had stolen hundreds of millions of Rands – only to be swiftly overtaken by Ant Katz and Millar with allegations that the amounts stolen was now over a Billion Rand!
2.So the question may be asked what facts have emerged after the court appointed curator to the Practice of RBP and teams of auditors spent over a year scouring through every page of the Practices records and files, coupled with an obviously orchestrated media campaign by Beamish, Ant Katz and van Niekerks Media Lackey and ever so obliging Laura du Preez from the Star Personal Finance designed to incite and inflame former RBP clients to make claims against the Practice.
3.Without doubt all the aforesaid must now be extremely disappointed to have noted that the report by the court appointed curator to our Practice is that the Practices trust account balanced to the cent and that there was absolutely no shortfall whatsoever, and that all the books of account especially the trust account which receives monies received on behalf of clients was perfectly kept.
4.They must have been even more disappointed to have read in the curators report that not a single claim was ever made by any of the Practices former clients of any funds having been stolen. That was again confirmed in a letter received from the Attorneys Fidelity Fund (A fund set up by the profession to reimburse any client from whom their attorney had stolen money in the course of his or her practice). A further letter from the Fidelity Fund in June 2017 confirms what the curator had reported in November 2016. i.e. not a single theft claim by any one of RBP’s thousands of former clients.
5.Copies of the relevant parts of the Curators report and the Fidelity Funds letter is attached hereto as annexure “10” and annexure “11”.
6.Having regard to the aforesaid the truth is now finally out and one can only hope that the horrific attacks by those who should know better will cease and in the event of any further litigation Judges will now have regard to the undisputed truth which has tragically been skilfully concealed by the armies of lawyers engaged by Discovery and its proxies.
CHRONOLOGY AND TIMELINE
1.28 September 1998 – Judgment by Cameron J in the Headleigh Clinic Case No.28862/97 reported in SALR 2001 (4) SA 360 dealing with an attorney’s 25% common-law contingency fee agreement in which the Court held the agreement to be valid. Significantly this judgement was delivered AFTER the promulgation of the Contingency Fees Act 66 of 1997, attached hereto as Annexure “RBA1”.
Following on widespread screening of American Trial Movies throughout South Africa featuring the American system of one third percentage contingency fees, Plaintiff Attorneys are inundated by requests from clients to contract on that basis, and enquiries thereafter directed to the LSNP which resolves to investigate South African Law on the issue.
2.30 May 2002 – The Law Society of the Northern Provinces obtains an Opinion from Advocate Labuschagne SC which expresses the view that common-law contingency fee agreements are valid and can co-exist with the Contingency Fees Act, such Act not in any way specifically prohibiting common-law agreements, attached as Annexure “RB2A”.
3.August 2002 – Law Society of the Northern Provinces regulating more than 60% of Attorneys in Practice, issues a ruling enthusiastically permitting its members to enter into common-law percentage fee agreements. The ruling authored by Councillor and Court Practice Committee Chair, C P Fourie, refers to 25% as the effective norm, and enthusiastically remarks “A step forward? For sure!”,attached as Annexure “RBA3”.
4.October 2003 – The Law Society of the Northern Provinces issues a further confirmation of its earlier ruling in which it notes that “It is now more than a year since the Law Society of the Northern Provinces gave the green light to its members to enter into common law contingency fee agreements with their clients. The feedback is that it was well received and that, by and large, it works well”. Again 25% is effectively referred to as the norm, given that such percentage is specified in the Contingency Fees Act 66 of 1997, attached as Annexure “RBA4”.
5.The ruling by the two Law Societies are adopted and supported by the Frees State Law Society.
6.The rulings by the two Law Societies is adopted and supported by the Black Lawyers Association, bringing the number of attorneys officially permitted and encourage to utilise such agreements up to some 70% of the profession.
7.Feedback by Natal members of the South African Personal Injury Lawyers (SAAPIL) was that the use of such agreements was universal amongst all Plaintiff Personal Injury attorneys.
8.1 June 2004 – Price Waterhouse Case – 448/2003)ZASCA 64; 3 All SA (SCA) (1 June 2004).
The Supreme Court of Appeal decides that the decade’s long prohibition against maintenance and champerty i.e. prohibiting litigation funders form receiving a share of the proceeds of litigation, is no longer a part of South Africa’s common-law. Therefore it is lawful and valid for lay persons to receive a percentage of the damages recovered in actions funded by them. In that case the percentage contracted was for 45% of the millions eventually recovered from Price Waterhouse. A by the way remark, referred to by Lawyers as “obiter”, was made by one Judge to the effect that Attorneys would not be permitted to do that which the Court had now said could be done by unregulated lay persons, a copy attached hereto as Annexure “RBA5”.
8.1 The Law Society of the Northern Provinces obtains opinions from three senior advocates, all of whom agreed that the statement by the one Judge was “obiter”. i.e. by the way, and not to be regarded as a binding ruling by the Court. Many Lawyers interpreted the Court’s decision as developing South Africa’s common-law so as to enhance the Public’s access to the Courts. It was believed that it would be discriminatory and inconsistent, for attorneys, who are tightly regulated by the Law Societies, not to be permitted to do that which the Court had stated could be done by completely unregulated lay persons.
8.2 As the Contingency Fees Act did not anywhere state that Attorneys could not represent clients on a no win – no fee basis, otherwise than in terms of the Act, it was the opinion of Advocate Labuschagne SC on behalf of the LSNP and subsequently Advocates M Brassey SC and Hopkins, in the de la Guerre and SAAPIL matters, that common-law contingency fee agreements could validly exist side by side with the Contingency Fees Act.
9.2005 – The Law Society of the Northern Provinces informs its members that after taking opinions from senior advocates on the Price Waterhouse obiter – by the way remark of the Judge, the advocates and the Law Society remain of the opinion that common-law percentage contingency fees are permissible and valid. Again 25% is referred to as the norm.
10.On 23 September 2008, and after Millar had attacked his colleague, Attorney Deon Goldschmidt’s Law Society compliant common-law contingency fee agreement, the then President of the LSNP filed an affidavit expressing the Council’s strong support for such agreements, which was essentially the same as the 27 page one filed in the de la Guerre matter, attached hereto as Annexure “RBA6”.
11.August 2010 – Highly respected Supreme Court of Appeal Judge Malcolm Wallis, presented a paper at an international conference on legal costs. He had the following to say concerning fee litigation in South Africa:
“Contingency fee agreements have been relatively successful in South Africa in making personal injury litigation available to even the very poor in our community. Whilst we have a statute that regulates this topic it is badly drafted and generally ignored by the attorneys who act on a contingency. In practical terms these attorneys conduct litigation on a ‘no win-no fee’ basis where, at the successful conclusion of a case, they will tax a conventional bill of costs (which covers a fair proportion, but not all, of their disbursements) and charge over and above that, a proportion, usually 25% though sometimes less with small claims, of the damages recovered. The latter fee is not recoverable from the other side. Whilst there are occasional complaints of over-reaching in these arrangements by and large they appear to work well and people are willing to sacrifice part of their damages in return for making some recovery”.
“Lastly if something can be done to break the near universal reliance on charging by time, particularly by attorneys, but increasingly by counsel, that would be a good thing. Our courts have bemoaned it as a basis for charging fees; describing it as putting a premium on slowness and inefficiency”.
The Judges paper is attached with the relevant portions marked and attached hereto as “RBA7”.
12.It was stated in the de la Guerre judgment, an inexplicably the court state that as a seasoned practitioner Ronald should have been aware of what he referred to as the “numerous authorities holding common law contingency fees to be invalid, and further that Ronald should have been aware of the letter written by the Judge President to the Natal Law Society in which he expressed his disapproval.
12.1 However such comment with respect was wholly incorrect and inappropriate, and quite clearly so imminent a lawyer as Supreme Court Judge Malcolm Wallis was also clearly unaware. He was also clearly unaware of any letter from the Judge President to the Natal Law Society, as referred to, or regarded it as irrelevant almost a decade later.
12.2 Had he been aware of such authority, he would surely have mentioned this in his paper, which was thereafter published the following year in the professional journal “The Advocate”.
12.3 In an affidavit prepared in May 2015 by the LSNP attorney Mr Andre Blom (he was also the Law Society’s attorneys in the both the Goldschmidt and de la Guerre matters which dealt with common law contingency fee agreements) which affidavit was to have been filed in court as the Law Society’s affidavit opposing the second Discover/Graham Application attacking RBP/Ronald Bobroff and the Law Society of the Northern Provinces and which stated in paragraph 2.7 thereof as follows: “He severely criticises the Bobroffs for, inter alia , delaying the Law Society’s investigation and disciplinary enquiry. He nevertheless also blames the Law Society...”.
Again one presumes that had the publishers of the Advocate’s Journal or the editor thereof, been aware as at August 2011 of any South African Case Law holding common-law contingency fee agreements to be invalid or unlawful, the editor would have placed a note at the commencement of the article or at the end, indicating that since the learned Judge had presented his paper, there had been such a decision.
13. In the LSSA’s (Law Society of South Africa) annual report March 2011 at page 28 thereof, Mr Clem Druker, Chairperson of the LSSA’s Contingency Fees Committee, and also at the time a serving member of the Council of the Cape Law Society, announced on behalf of the Cape Law Society that:
“Given the fact that the Cape Law Society Council is now prepared, in principle, to side with all the other bodies which recognize common-law contingency fees...” attached hereto as Annexure “RBA8”.
13.1 Significantly, Disocvery’s attorney, Mr George van Niekerk, who has consistently severely criticized RBP, and by implication of the Councils of the LSNP and Free State Law Societies, as also the Black Layers Association who had consistently promoted and supported common-law percentage contingency agreements, as also every one of the many thousands of attorneys who utilized common-law contingency fee agreements and on Cape Councillor and/or on its committee.
14. In November 2011 LSNP President, Mr Tony Thobane, an oft acting Judge of the High Court, had the following to say concerning common-law contingency fee agreements in his President’s report:
“We plan to do everything in our power to ensure that when issues around the common law fee agreements are litigated upon, the interests of our members are protected, intertwined with the interests of our members, are the interests of the public for whom the common law fee agreements provide access to justice. The cause is worth fighting for and neither effort nor resource will be spared”. Attached as Annexure “RBA9”.
15. On the 6 December 2011, Law Society of the Northern Provinces President, Mr Johannes van Rensburg, deposed to an affidavit filed in court in the de la Guerre matter, in which inter alia had the following to say concerning common-law contingency fee agreements as attached in annexure “RBA6”.
“On 21 June 2002 the Council of the Law Society made a ruling permitting its members to enter into certain common law contingency fee agreements other than in terms of the provisions of the contingency Fees Act”.
“The interest of the Law Society in the present application is to advance legal argument pertaining to the validity of common law contingency fee agreements”.
The Law Society advances the following contentions:
15.1 that the same need expressed by the public and members of the Law Society and which gave rise to the enactment of the Contingency Fees Act continued to be expressed with increasing urgency with regard to the introduction of a simple, easily understood and equitable contingency fee agreement, given the perceived unpopularity and impracticality of the agreement provided for in terms of the Contingency Fees Act;
15.2 that consequent upon decades of screening on South African televisions and cinema circuits of American programs depicting various forms of contingency fee litigation, for example Erin Brokovitch, a Civil Trial and others the South African public have become exposed to the concept of the simple, fair and workable American Percentage Contingency Fee Agreements. The Law Society has in turn been informed by many of its members, that clients request that members enter into such agreements, rather than the complicated agreement provided for in terms of the Contingency Fees Act after the details of the agreement in terms of the aforesaid Contingency Fees Act have been discussed with the clients;
15.3 that given that the majority of victims of all forms of wrongfully caused personal injuries, suffer financial loss such as to render them unable to afford legal services in the normal way, an acknowledged need has arisen for assistance via common law contingency fee agreements, so as to enable such victims to assert their rights to claim damages against the wrongdoer;
15.4 that the inequality of arms which prevails between the majority of road accident victims on the one hand and the large and powerful institutions such as the Road Accident Fund/Insurance companies on the other hand, speaks to a particular need for personal injury victims to gain access to justice through easily understandable and practical common law contingency fee agreements;
15.5 That the common law recognises circumstances under which a valid common law contingency fee agreement may be concluded;
15.6 That the aforesaid circumstances are in consonance with the constitutional right of persons to have access to the Courts as enshrined in the Constitution;
15.7 Alternatively, that if it is held that the common law referred to supra does not exist as a matter of right, it will be submitted that the common law needs to be developed in terms of Section 39 (2) of the Constitution to incorporate the right to conclude a common law contingency fee agreement in the circumstances envisaged supra;
15.8 That the Contingency Fees Act, whilst constituting an admirable attempt at providing access to justice by litigants unable to afford the normal costs of litigation, has unfortunately by virtue of its impractical and unworkable provisions not been utilised by the attorneys’ profession to any significant extent;
15.9 The wording of the Contingency Fees Act is ambiguous and problematic. A straight percentage fee is not provided for, but rather a complicated formula in which the attorney is initially required to stipulate a so-called normal fee. In terms of Rule 80 of the Law Society’s Rules an attorney’s normal fee is subject to a whole variety of parameters and this provision in itself would no doubt give rise to endless disputes in the context of a contingency fee agreement;
15.10 That the normal fee is then to be doubled upon a successful conclusion of a matter, but the total of the success fee is not to exceed 25% of the monetary result obtained. Whereas it was always understood that the 25% maximum referred only to the attorney’s fee, it was recently held in the matter of RMA van der Merwe v Mariette Geldenhuys, Case No.36216/06 (WLD) that counsel’s fees are also to be included under the 25% cap. This demonstrates the unworkability of the Contingency Fees Act as in many cases this would result in the attorney’s fee being negligible in relation, to say senior counsel’s fees;
15.11 That in terms of Section 4 of the Contingency Fees Act where summons has been served, the legal practitioner is obliged to file an onerous and extensive affidavit with regard to any offer of settlement, and which is in addition to be accompanied in terms of Section 4 (2) by an affidavit from the client. Given that a number of offers are usually made in most personal injury claims, some times during the days preceding the trial and on the day of the trial, this section results in the absurd situation of attorneys and their clients having to make repeated affidavits each time a new offer is made;
15.12 That given that;
15.12.1 the Contingency Fees Act was promulgated in 1997 and the prescribed agreement in 1999;
15.12.2 the vast majority of RAF claims are handled on a contingency basis;
15.12.3 most RAF claims are settled prior to reaching trial stage;
15.12.4 some two hundred thousand claims are lodged against the RAF annually primarily by attorneys and that from 1999 to date in excess of one million claims would have been lodged by attorneys on behalf of clients;
An irresistible inference must be drawn that attorneys and their clients in RAF matters are not utilising the agreements in terms of the Contingency Fees Act to any extent as only one (1) affidavit in terms of Section 4 of the Contingency Fees Act was filed with the Law Society during the first ten years that the Contingency Fees Act has been in force. Some attorneys have submitted copies of agreements concluded between themselves and clients to the Law Society, although it was not necessary to do so as follows: 2001-1, 2005-11, 2005-29, 2007-15,2008-8,2010-18 and 2011-21;
*(i.e. a reasonable inference is that at least 1 million RAF claims were handled by attorneys who charged at least a 25% common law contingency fee).
15.13 that the Law Society’s ruling on common law contingency fee agreements has been followed by at least the Law Society of the Free State and the Black Lawyers Association;
16.During the period 1999 to date the Law Society’s records indicate that some complaints were received from clients relating to overreaching and some overcharging. Of these complaints very few related to fees in terms of common law contingency fee agreements.
16.1 In 2000 the Law Society conducted survey amongst its members. A copy of the Law Society’s letter containing the relevant questions and answers are attached hereto as Annexure “RBA10”.
16.2 The relevant questions and the average response thereto are:
16.2.1 What percentage of plaintiffs in your practice has a need for assistance by means of common-law percentage contingency agreement in order to assert their claims in court?
Answer : 94.94%
16.2.2 In what percentage of cases administered by your practice is a common law percentage contingency fee agreement utilised?
Answer : 76.4%
16.2.3 If you utilise common law percentage contingency fee agreements, do you ascertain the prospects of success before entering into such agreements with client?
Answer : Yes
17.In the North Gauteng High Court the introduction of new practice directives with effect from 25 July 2011 has had a considerable impact.
17.1 The aforesaid practice directives only provide for a fee agreement in terms of the Contingency Fees Act and not for common law contingency fee agreements. As the majority of agreements between attorneys and their clients in third party matters appear to be common law contingency fee agreements, attorneys are faced with an array of practical difficulties in dealing with the matters and finalising them speedily in the best interest of the clients.
17.2 It is submitted that in the light of the impracticality arising from the Contingency Fees Act and the need for a workable alternative, common law contingency fee agreements may validly be concluded within the stated recognised parameters”.
18.On the 20 February 2014, the Constitutional Court, delivering judgment in an appeal against the decision of the North Gauteng High Court which had held in the de la Guerre and SAAPIL matters that common-law contingency to be invalid, stated as follows and is hereto attached as Annexure “RBA11”;
18.1“uncertainty reigned in the attorneys’ profession about the correct legal position in relation to contingency fees;
18.2could these fees be charged only under the Act, or also outside its provisions?
18.3RBP was one of the firms which charged more than allowed for in the Act, as the rules of its professional association allowed”.
19.It is therefore submitted that there can be no proper basis for criticizing or penalizing any attorney for contracting with a client to act on contingency outside the provisions of the Contingency Fees Act, prior to the date on which the Constitutional Court finally ruled on the issue.
20.Certainly it could never be said that members of the LSNP were in any way acting unprofessionally by doing so, or overreaching clients by complying with their Council’s rulings, which were reaffirmed year after year for more than a decade, during which the Council expressed consistent support for common-law contingency fee agreements.
21.Even van Niekerk of ENS Cape Town, the attorney Discovery used throughout its vendetta against Ronald and RBP Inc in an article published by him in De Rebus – the South African attorneys journal – noted as follows” for many contingency fee agreements have been a matter of contention, and the questionable existence of common law contingency fee agreements after the enactment of the contingency fees act, in particular, has led to much confusion.
22.Indeed van Niekerk is entirely correct in finally acknowledging what he refers to as much confusion but in reality was a situation where the governmental regulatory bodies representing more than 70% of all attorneys practising in South Africa were of the firm opinion that common law fee agreements were valid and permissible, that as recently as February 2011 the Cape Law Society of whose Council van Niekerk was a member resolved to adopt the same approach as the Law Societies of the Northern Provinces and the Law Societies of the Northern Provinces and the Law Societies of the Free State: thereby effectively bringing the percentage of attorneys in South Africa whose governing bodies were of the view that common law contingency fee agreements were valid and permissible to over 90%.
The South African of Personal Injury Lawyers which at the time comprised most attorneys throughout South Africa representing victims of all forms of trauma and medical negligence was made aware from its members throughout South Africa that all forms of personal injury and medical negligence litigation was conducted exclusively by way of common law percentage fee agreements.
23.For anyone to seriously suggest that any attorney who contracted with a client, could in any way be guilty of theft or fraud simply because a civil court held – more than a decade after such fee agreements were permitted, promoted and encouraged by the Law Societies, is absurd, malicious, and wholly at odds with the long established principle mens rea being an essential element of any common law crime.
It would also have the bizarre result of many thousands of attorneys suddenly becoming thieves and the Councillors of the three law societies which had adopted the view that common law fee agreements were valid, also suddenly becoming accessories to theft.
24.Perhaps the most enlightening of all the Law Society’s actions in support of common-law percentage contingency fee agreements, is the content of its letter to the then Deputy Judge President of the North Gauteng High Court on 12 October 2011, attached hereto as Annexure “RBA12”.
24.1 The letter in question attached a proposed model common-law contingency fee agreement, and also noted the following:
24.2 that attorneys could properly charge more than 25% of monies recovered subject to the guidelines set out in such letter, specifically, “For example although no minimum or maximum percentage is prescribed and given that attorneys and their clients are free to negotiate a contract in the same way as any other contract between competent parties, we indicated to our members that should the 25% cape referred to in the Act, be exceeded, it will have to be justified, having regard to the various aspects which will have to be considered. This will inter alia include the complexity of the matter, the overhead cost structure of the firm, the extent of the disbursements to be covered by the attorney, the anticipated period that the attorney would have to carry such disbursements to be covered by the attorney, the anticipated period that the attorney would have to carry such disbursements and wait for payment of fees, as well as other criteria such as those referred to in Rule 80 of the Law Society’s rules”.
A copy of the letter referred to above is attached in the above annexure “RBA12”.
25. With regard to the Price Waterhouse Case, all three Counsel from the Law Society secured opinions were ad idem that Southwood J’s remarks were obiter. The Law Society chose to rely on the opinion of Labuschagne SC. Further it appears that Southwood J may have had second thoughts if one has regard to his statements in the Mnisi case as commented on in a paper by Professor Magda Slabbert – “The Judicial Approach to Contingency Fee Agreements” published in 2013 (78)(THRHR). The author considers and refers to the obiter by Southwood AJA in the Price Waterhouse Coopers Case, where the learned judge adopted a very firm approach in stating inter alia that:
“Any Contingency Fee agreement between such parties which is not covered by the Act is therefore illegal” Attached as Annexure “RBA13”.
She however notes that when the learned Judge had occasion to consider an agreement between Attorney Mnisi and his client, which was clearly not in compliance with the Contingency Fees Act and was essentially a common law contingency fee agreement, the honourable judge did not hold the agreement invalid, but as stated by the Author “ Regarding the terms of the contingency fees agreement, it is respectfully submitted that Southwood J appeared somewhat ambivalent in his finding that the agreement was “clearly not covered” by the (Contingency Fees ) Act and the Agreement appears to be illegal” This stands in stark contrast to the learned judges earlier dictum, to which he made reference, in the Price Waterhouse that (a)ny contingency fee agreement between such parties which is not covered by the Act is therefore illegal” This dictum suggests that invalidity is an unavoidable consequence of a finding that a contingency fee agreement does not comply with the Act. Yet, almost six years later, in Mnisi, Southwood J was only prepared to for a prima facie view that the contingency fee agreement was invalid, despite stating that it was “clearly not covered by the Act”. Instead of making an order declaring the agreement invalid, the Judge directed the Registrar to refer the matter to the President of the Law Society of the Northern Provinces (LSNP) to investigate, inter alia the validity of the contingency fee agreement and Mnisi’s failure to file the affidavit prescribed by section 4 of the Act”.
THE HISTORY OF THE LAW SOCIETY'S APPROVAL OF COMMON LAW CONTINGENCY PERCENTAGE FEE HISTORY
You will read how the Law Society in 2002 came to permit and promote its 18 000 members use of these agreements for more than a decade, and how the Law Society staunchly defended its decision to do so by filing affidavits in court in both matters where Millar (who himself hypocritically utilizes common law contingency fee agreements), attacked attorney Deon Goldschmidt's agreements and more recently RBP's agreement in the De La Guerre matter.
You will read how highly respected Supreme Court of Appeal Judge Malcom Wallis in 2010 and as published in 2011, spoke approvingly of these agreements as being the norm in South Africa, and how attorneys ignored the Contingency Fees Act because of it being unintelligible and impractical.
You will read how the Constitutional Court in De La Guerre appeal in February 2014 ,recognized that the Law Society of the Northern Provinces and Free State comprising more than 70% of practicing attorneys, had issued directives permitting their members to utilize common law contingency percentage fee agreements, and that there was widespread confusion within the profession as to whether or not the Contingency Fees Act was the only way in which an attorney could represent a client on a no win no fee basis.
RBP in common with tens of thousands of attorneys nationally, in good faith, and at the request of clients rendered professional services of the highest level and achieved exceptional results for its clients, not one of whom has ever spontaneously complained concerning RBP's common law percentage fees.
The ONLY complaints ever made against the firm in respect of its contingency fees have been a handful of clients unlawfully solicited by Discovery to Millar, or by Millar himself as deposed to by RBP clients Clint Coleman and Martha Kok where Beamish, in the course of his engagement to serve Discovery's interests attempted to solicit her to Millar.
Ironically one of such clients, Glen Vivian after insisting that his claim be settled for the paltry R45 000 offered by the road accident fund, eventually received R4.4 million after Darren and Ronald managed to persuade him to persist in the claim. His email expressing his gratitude to Darren will be noted on this site, but after he was incited by Millar and others, he suddenly "complained" about Darren Bobroff’s 25% contingency fee. Perhaps it would have been better if Darren had simply not done his duty as an attorney and had permitted Vivian to accept the R45 000.00 offer.
Despite Discovery attorneys Millar and Van Niekerk maliciously and dishonestly stating that RBP charged percentage contingency fees of 40% or more, RBP have never charged more than the usual 25 - 30% fee in terms of such an agreement. Where an attorney charges on a time basis such as Millar professes to do, there is no cap on the time fee charged, and which is not limited to any percentage of the damages recovered for the client.
Those at Carte Blanche who have furthered Discovery's interests, every one of whom involved in the attack is in some way financially beholden to Discovery, have scrupulously refused to mention or make reference to the numerous other well-known plaintiff attorneys who quite properly and ethically utilized Law Society compliant common law percentage fee agreements, copies of which were given to them.
This includes De Broglio, Josephs, Levin Van Zyl, Hirshowitz Flionis, Munro Flowers Vermaak and others. Similarly they have deliberately failed to mention that Fluxmans partner ,Selwyn Perlman ,who conducted an extensive personal injury practice, ethically and properly also utilized the identical percentage fee agreements utilized by RBP and tens of thousands of other attorneys, and who likewise find themselves victims of an attack by Millar for personal financial gain, where Millar has sued them on behalf of their former client Levensohn on an identical basis to the multiple attacks by Millar on Ronald, Darren and RBP.
RBP'S BOOKS OF ACCOUNT
Despite an intensive Law Society audit extending over 3 weeks, RBP's books of account did not reflect a cent trust shortage, but an excess of R27 million. Not a single client has ever complained to date, notwithstanding the relentless and corrupt campaign waged by Discovery, of not having been paid.
RBP' books are audited annually and no concerns have ever been expressed by its auditors during its 42-year existence. The firm regularly received certificates from the attorney’s fidelity fund in recognition of the enormous amounts of interest the firm has paid to the fidelity fund.
DISCOVERY'S MEDIA LACKEY, TONY KILROY BEAMISH
Beamish admitted to all three RBP directors in January 2014, that he had been "brought back" from the south of France where he lives, to South Africa by Discovery. He has since then, and despite professing to be a journalist, written about nothing else than attacks on Ronald, Darren, RBP, and anyone associated with them, or the firm. To date he has written in excess of 45 malicious attacks, primarily in fringe publications such as Moneyweb and Noseweek.
Money web which continues to lose money and seems set to disappear into insolvency, obviously welcomes Beamish's hysterical drivel, as a means to boost its flagging fortunes.
During a recent court hearing March 10 2016, where Beamish's vicious and puerile tweets and other social media attacks on Ronald and Darren were canvassed, including Beamish sending his filth to the parents of the children in Darren Bobroff’s children school class, and having regard to the shocking levels to which Beamish stooped in these communications, the presiding judge Neil Tuchten was sufficiently disgusted to describe Beamish as:
"THROUGHLY MEANSPIRITED "
"HIS WRITING AS "DOGGEREL” and
"I DONT THINK I WOULD LIKE A PERSON LIKE THAT TO HAVE A MEAL IN MY HOUSE "
ONE CAN ONLY BUT TOTALLY AGREE, WITH THE JUDGES OPINION OF BEAMISHES CHARACTER!
LAW SOCIETY EXPOSES DISCOVERY, AND EDWARD NATHAN'S GEORGE VAN NIEKERK, AS BEING BEHIND THE ATTACK ON RONALD, DARREN AND RBP INC