The Supreme Court of Appeal (SCA) has ordered that an East London attorney be struck from the roll following misconduct involving dishonesty.
The recent appeal case order issued on 1 December followed that of the Eastern Cape Division of the High Court in August 2022. The latter ruled that Bulelani Rubushe should be suspended from practising as an attorney for two years after his attempt “to recover an extortionate fee” from his client.
Rubushe’s misconduct was exposed during a court hearing in 2016 when a settlement agreement related to a motor vehicle accident claim, representing Zama Mfengwana, was presented before Judge Clive Plasket. Rubushe wanted the settlement agreement to be made an order of court.
The agreement, signed in 2014, purportedly allowed Rubushe a fee of 25% of the R904 889.17 settlement paid by the Road Accident Fund (RAF).
The Contingency Fees Act permits legal practitioners to conclude contingency fee agreements with their clients on a no-win no-fee basis. Practitioners are entitled to stipulate a success fee in such agreements.
The statute limits the extent of the success fee to double the normal fee that the practitioner would charge for the work concerned, provided that “in the case of claims sounding in money, the total of any such success fee payable by the client to the legal practitioner shall not exceed 25% of the total amount awarded or any amount obtained by the client in consequence of the proceedings concerned, which amount shall not, for purposes of calculating such excess, include any costs”.
The salient provisions of the agreement between Rubushe and his client read:
- The Attorneys hereby warrants (sic) that the normal fees on an attorney and own client basis perform work (sic) in connection with the aforementioned proceedings are calculated on the following basis: 25% of the total of damages awarded, (Set out hourly, daily, and or applicable rates) (sic)
- The Parties agrees (sic) that if the Clients is (sic) successful in the aforementioned proceedings; An amount shall be payable to the Attorney, calculated according to the following method; see paragraph 5 For purpose of calculating the higher fee, costs are not included,’
Judge Plasket found that the agreement not only violated the Contingency Fees Act but also allowed Rubushe to claim a fee that was disproportionately high considering the limited work involved and the poor-quality service. The judge declared Rubushe “guilty of an attempt to grossly overreach his client, of rapacious and unconscionable conduct”.
He set aside the agreement and ruled that BR Rubushe Attorneys could recover only attorney-and-client costs on the High Court scale, subject to taxation by the Taxing Master. Additionally, Judge Plasket requested the court registrar to send a copy of the judgment to the Cape Law Society and to inform Mfengwana about the judgment and the rights it granted him.
The plot thickens
Over the following months, under pressure from the Law Society, Rubushe faced scrutiny for presenting four conflicting bills of costs related to his work on Mfengwana’s case, which were prepared for taxation.
A costs consultant hired by the Law Society discovered that Rubushe had charged excessive fees for tasks for which he was not entitled to charge, such as billing for drafting the summons and particulars of claim and for perusing those documents after the summons had been issued.
The review also revealed charges for services that were never performed, including consultations, on-site inspections, and phone calls.
Additionally, it emerged that on 10 March 2017 (four months after Judge Plasket’s judgment) Rubushe paid only R700 000 of the R904 889.17 settlement to Mfengwana, withholding about 25% – a direct contradiction of the court’s findings.
Adding insult to injury, Rubushe collected the settlement payment at his offices after notifying Mfengwana of his withdrawal as attorney. This means he lacked the authority to receive payment on Mfengwana’s behalf from the RAF at that time.
In July 2017, Mfengwana filed a claim against Rubushe for the withheld funds, which went uncontested.
Judgment in favour of Mfengwana was granted in September 2017, with Rubushe ordered to pay punitive costs. The attorney only complied with the court-ordered payment after the judgment.
Dishonesty vs rehabilitation
Deciding to take further legal action, the appellant sought to remove Rubushe’s name from the attorneys’ roll.
In the subsequent High Court judgment issued in August 2022, the court reviewed the evidence against Rubushe, dismissing his explanations as an “attempt at explaining the inexplicable” and criticising his failure to take responsibility.
Despite this, the High Court – after referring to Jasat v Natal Law Society and Malan and Another v Law Society of the Northern Provinces – decided against striking Rubushe’s name from the roll, noting that his attempt to extract R204 889.17 from his client was thwarted by Mfengwana and his new attorneys.
The Court emphasised the distinction between attempting an offence and committing it. While acknowledging Rubushe’s unsuitability to practise law, the Court deemed the most severe punishment inappropriate.
Instead, the High Court ordered a two-year suspension from practising as an attorney (paragraph 1). The order specified that, after the suspension period, Rubushe must submit a formal application to the High Court to resume practising, serving the application on the Legal Practice Council (paragraph 11).
In the SCA judgment delivered earlier this month, Acting Judge of Appeal Ashley Binns-Ward ruled that the High Court’s order of suspension was misconceived, arguing that the Court’s reasoning was “materially misdirected”.
He emphasised that the key issue was whether Rubushe was fit to remain on the roll, given his dishonesty. Binns-Ward AJA stated that exceptional circumstances would be required for a suspension instead of removal, citing the judgment in Malan.
The Court in Malan had highlighted that a suspension alone rarely transforms an unfit individual into a fit practitioner. If the Court doubts rehabilitation during suspension, it should strike the attorney from the roll.
Binns-Ward AJA explained that in Rubushe’s case, no conditions were set for suspension, and the order indicated a lack of confidence in his fitness to resume practising. Binns-Ward AJA asserted that, according to the principles in Malan, the only appropriate decision should have been to strike Rubushe’s name.
The judge said that the attorney’s unsuccessful attempt to overcharge his client did not lessen the gravity of his dishonesty. He said the High Court’s judgment should have focused on the nature of his conduct, not only its success. Moreover, the evidence in the High Court’s judgment revealed Rubushe’s ongoing dishonesty and lack of remorse, making him unsuitable for rehabilitation.
Binns-Ward AJA said, from the evidence summarised in the High Court’s judgment, it was clear that Rubushe’s dishonesty was not confined to attempting to overreach his client.
“It also manifested in his further conduct after his initial misconduct was exposed. Far from showing any insight into his wrongdoings, the respondent sought to make little of them, blame others for them, and, by his failure to pay Mr Mfengwana the full amount of his award and reliance on fraudulent bills of costs, he perpetuated and exacerbated them. He showed no amenability to rehabilitation; quite the opposite.”
The judge ordered that paragraph 1 and paragraph 11 of the High Court order be set aside and that paragraph 1 be substituted with an order directing that the attorney’s name be struck off the roll of legal practitioners.
