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Legal firm’s response to questions

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"We wish to reiterate that at no stage has there been any inappropriate or untoward discussions or dealings with the Northern Cape Department of Health"

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ROBERT CHARLES

ATTORNEYS & CONVEYANCERS

MEDICO-LEGAL CLAIMS

NORTHERN CAPE:

DEPARTMENT OF HEALTH

1. We note that the preamble to the questions posed states that these matters have been referred to our firm despite prior recommendations from internal reports that these matters should be settled out of court. We have no knowledge of these internal reports and as such cannot comment on this statement.

2. Does the firm specialise in the litigation of medical legal claims or only road accident claims?

Kindly note that this firm has been in existence since May 2004 and has had offices in Kimberley since September 2013. We are a wholly black owned law firm with a staff complement of twenty-six which includes eight attorneys, one candidate attorney and seventeen administrative staff. Our professional staff is made up of four black male attorneys, two black female attorneys, two white female attorneys and one black candidate attorney.

Our office in Kimberley is a fully fledged office consisting of six staff members, including two black female attorneys and four administrative staff. Both Mr Lemboe and Mr Charles are enrolled to practice in both the Western Cape and Northern Cape Division of the High Court and are intricately involved in the practice at the Kimberley offices as well as the litigation of the matters in the Northern Cape Division of the High Court. We enclose herewith the certificates of Good Standing of all eight attorneys of this firm as issued by the Cape Law Society.

We not only attend to matters on behalf of the Road Accident Fund in the Western Cape and Northern Cape but specialise in all aspects of personal injury law. The firm also specialises in all aspects of High Court litigation and have been placed on the panel of various state owned companies and parastatals including the National Home Builders Registration Council, the Independent Development Trust, Transnet, the Electoral Commissioner and the Financial Sector Conduct Authority. We have also been involved in various public interest matters, notably the matter of Gloria Kente vs Andre van Deventer, the first matter where the Equality Court made a finding that the Defendant was to pay our client an amount of R50 000.00 for damages due to hate speech. We were also instrumental in the successful litigation against Penny Sparrow in the Umzinto Equality Court where a damages award of R150 000.00 was made against her for hate speech.

We also have a conveyancing department which attends to a variety of property transfers including the registration of bonds on behalf of ABSA, Nedbank, FNB and Standard Bank as well as the registration of transfers of properties and various other transfers on behalf of Transnet. We also acted for the South African Resources Agency in respect of name changes of monuments.

We are therefore well equipped to deal with the instructions furnished to us by the Department of Health.

3. Was a tender advertised for mediation of the cases?

We are not aware of a tender for mediation. We can confirm that we were approached to assist the Northern Cape Department of Health with the defence of various claims relating to alleged medical negligence. The request was made to one of our existing clients, the Road Accident Fund (RAF), for consent to be granted to the Northern Cape Department of Health to utilize our services in terms of the current Service Level Agreement between ourselves and the RAF. This was in terms of the relevant Treasury Regulations. We accordingly consented to same. The correspondence from the RAF dated 11 September 2018 and our consent thereto is attached hereto for your urgent attention and perusal.

4. Will the cases have to be litigated from scratch where some cases are already reaching finality and quantum is being decided upon in court?

The cases will not be litigated from scratch. Where further preparation for trials have to be done in order to safeguard the interests of our client, we will attend to same. This may require the appointment of experts, consultation with witnesses and any other reasonable steps necessary to protect the interests of our client.

5. Is the Department being billed per file or the entire batch?

The Department will be billed for actual work done on the files, which requires a separate bill being drawn for each matter, as is standard practice.

6. What are the legal costs to settle these cases in court?

This is an impossible question to answer as each matter must be evaluated on the facts pertaining to that matter and whether or not it is advisable to settle same before proceeding to trial or whether the matter should be defended. As such the costs in each matter will vary depending on what is required.

7. Can these claims be settled out of court if the Department has conceded the merits of the claims?

We are unsure what is meant by this question. Is the assertion that merits have been conceded in all of these claims or just in certain matters? It is extremely difficult to answer this question, whichever meaning is ascribed to it as we have only recently been instructed to assist the Department of Health in defending these High Court actions. Furthermore, we cannot divulge any information in respect of the merits or the quantum of these specific claims as doing so may compromise our client’s rights and will amount to an infringement of attorney/client privilege.

What we can advise is that, generally speaking, in all personal injury matters, the fact that merits have been conceded does not mean that the quantum of the claim can automatically or easily be settled. This is, more often than not, the more complex part of the claim as it encompasses many facets and various heads of damages such as past hospital and medical expenses, future hospital and medical expenses, past and future loss of earnings and general damages (pain and suffering). To adequately evaluate these heads of damages invariably requires the appointment of expert witnesses, including specialist doctors, to assess the plaintiff and provide a comprehensive evaluation of how the negligent incident has impacted on that person’s life, functionality and what the overall prognosis is of any sequelae that the Plaintiff is still suffering from. This is done by both the plaintiff and the Defendant in a matter as the plaintiff is obliged to prove his/her claim whilst the Defendant is obliged to ensure that the matter is adequately defended amount is agreed upon or awarded by the court, to ensure that such compensation is reasonable in the circumstances. Considering the fact that often the future medical expenses claimed in medical negligence claims amount to millions of rands, any failure to investigate the quantum properly can result in overcompensation to Plaintiffs by substantial amounts to the detriment of the fiscus.

8. Is there any conflict of interest between an official at the Department and the law firm in question?

We can state unequivocally that there is no conflict of interest or any untoward relationship between any official at the Department of Health and this firm. Any suggestion of same is baseless and extremely prejudicial to this firm.

9. Is this firm BEE compliant?

We are a level 1 BEE rated firm and wholly black owned.

CONCLUSION

We wish to reiterate that at no stage has there been any inappropriate or untoward discussions or dealings with the Northern Cape Department of Health. We were requested to assist with defending the interests of the Northern Cape Department of Health, which includes advising our client of the correct course of action to take in these matters in the most cost-effective and legally sensible manner. This entails either investigating matters further or settling same if evidence before us and information at hand requires our client to do so. Ultimately, we are appointed to protect the best interests of our client, whether it is by properly defending claims, thereby resulting in a reduction of same, alternatively by settling these matters at an early stage, thereby resulting in a reduction of legal costs.