Net closes on medical claim swindlers
Millions claimed on behalf of victims not even aware of the claims
The net is closing in on controversial lawyers who are allegedly swindling hundreds of millions from the Eastern Cape department of health and the Road Accident Fund (RAF).
Zuko Nonxuba and Milile Mpambaniso are among the attorneys who have lodged millions of rands worth of claims on behalf of victims, some of whom are apparently not even aware of the claims. In some cases beneficiaries receive way less than what was awarded.
The Dispatch has previously reported extensively on the dealings of the two lawyers.
Late last year the Hawks confirmed they were investigating three of Nonxuba’s medico-legal claims totalling R45m.
The Western Cape department of health has taken legal action against Nonxuba and lodged a complaint against him with the provincial law society. The action concerns 33 cases flagged as possibly “vexatious and fraudulent” birth injury claims. In the application, the Western Cape government seeks an interdict preventing Nonxuba from instituting any further claims against the department until the law society has addressed the department’s complaint.
Western Cape health spokesperson Marika Champion told the Dispatch her department was concerned the claims could derail service delivery. They “could also further expose vulnerable patients, and create expectations, particularly where a minor claimant has a disability or illness that is not birth related”, she said.
“A trend was noted that this particular attorney [Nonxuba] was sending through large volumes of identical claims with many similarities. Of the total number of birth injury claims the department is dealing with, a third are seemingly fraudulent cases from Nonxuba Inc.”
Fifty seven matters had been brought to the attention of the department – and several were withdrawn after significant “legal expenses”. The total claimed from the Western Cape health department, including withdrawn cases, summons and letters of demand, is R750m.
Three police cases were opened against Nonxuba at Madeira and Engcobo police stations.
In 2016 Mpambaniso was struck off the roll after he was convicted of 28 counts of fraud in 2014. The Dispatch wrote to him asking if he had not paid, or underpaid, beneficiaries, or if some beneficiaries were unaware that he had lodged a claim on their behalf.
He said on WhatsApp that a response would be drawn up.
In an e-mail, his firm’s director, Pezisile Qata, confirmed they’d made several claims from the health department, but would not disclose the figures involved.
“It is true that the firm successfully sued the [health] department on behalf of a number of clients for damages. In most cases the plaintiffs/mothers attend court or are informed when their matters are heard or settled,” Qata said, adding that general damages, loss of income, medical expenses and other costs made up a claim, which was payable to a trust, or curator bonis [a person appointed by the court when a victim is unable to handle the payout themselves]. A claim can range from R7m to R23m.
Now the state is clamping down. The Hawks’ Special Investigative Unit confirmed it was working with the health department on the claims.
The department has paid out R254m to Nonxuba Attorneys and R20m to Mpambaniso Attorneys since 2009.
Health spokesman Lwandile Sicwetsha said they had done their own investigation and discovered that many victims did not receive the bulk of their awards. “The department has now ensured that when damages are to be paid they must be handled through curatorship,” he said.
In 2017 the department appointed a consortium of attorneys to probe the claims. They found most of them were fraudulent.
“The department is in the process of seeking punitive cost orders against them [attorneys], since we are aware that they are acting on contingency [chance] and with a number of claims that have been found to be without authority. Their antics are now known to the department,” Sicwetsha said.
The Dispatch has seen a confidential report by the department of justice and constitutional development, signed off by minister Michael Masutha in April, which recommends that the justice system does away with the trusts because of how they can be misused by lawyers to swindle money.
“The court orders, ordering the creation of inter vivos trusts [for living beneficiaries, not those who inherit] in medical negligence and RAF applications are a major challenge for various offices of the master of the high court. The judiciary may not be aware of the alternative avenues for administration of funds awarded by courts. Some attorneys are exploiting this process for own gain to the detriment of the vulnerable,” the report reads.
It recommends that Masutha approves talks between the master of the high court, the judiciary and law societies in an attempt to do away with the trust system.
The report says six law firms, which are not named, are using the same modus operandi in Mthatha, Bhisho and Pretoria. It accuses the state attorney of signing out-of-court settlements with these lawyers without the knowledge of the Eastern Cape health MEC.
Numerous attempts to get comment from Nonxuba were unsuccessful.
Many calls were made last week. On Friday he finally picked up the call and when the reporter asked if it was him, he said it was.
But as soon as the reporter introduced himself the call was dropped.
He has not yet responded to a detailed WhatsApp text...