Earlier this week Judge Elias Matojane, sitting in the Pretoria High Court, found Gauteng father and son personal injury lawyers, Ronald and Darren Bobroff, guilty of contempt of court.
This followed an application brought by road accident victim Matthew Graham and his wife Jennifer in December 2014. In 2006 Matthew had been a passenger in a vehicle that was involved in a head-on collision when a taxi had overtaken on a solid line. He suffered serious physical and brain injuries.
The Bobroffs charged the Grahams a contingency fee amounting to 40% of the monies recovered by their firm, Ronald Bobroff & Partners, from the Road Accident Fund (RAF).
Law Society dragged its heels
Ronald Bobroff, a former President of the Law Society of the Northern Provinces (LSNP), is a member of its Council. In 2011 the Grahams laid a complaint against the Bobroffs with the LSNP. It took a supine position and the Grahams hauled the Bobroffs and the LSNP to the Pretoria High Court in February last year.
In January 2011 the Grahams sought access to Matthew’s file at RBP – but their attorney only got access to the files in April 2011. Their attorney lodged a detailed complaint with the LSNP in June 2011 alleging that Jennifer Graham had unwittingly signed an unlawful 30% fee agreement, that the Bobroffs failed to abide by their own illegality by thereafter charging the Grahams 40% and, that the Bobroffs had fraudulently created file notes to “ramp up” the 40% fee that they had unlawfully charged.
The Contingency Fees Act states that an attorney may charge double the ordinary fee or 25% of the capital – whichever is the lesser.
Pretoria High Court
Advocate David Unterhalter SC, for the Grahams, told Judge Billy Mothle in the hearing of the matter early last year that it was, “suspected, upon credible evidence, that a body of file notes was brought into existence in the period 9 March to 12 April 2011 during which time RBP resisted access to Matthew’s file.”
Judge Mothle refused a request by the Grahams for the court to take over the role of the LSNP and ordered that the LSNP immediately resume its disciplinary inquiry.
When Judge Mothle handed down his judgment, Ronald Bobroff told Moneyweb that he welcomed it: “RBP welcomes the vindication of it, its Directors and the Law Society of the Northern Provinces, as is evident from the judgment today handed down in North Gauteng High Court.”
The Bobroffs then petitioned both the Supreme Court of Appeal and the Constitutional Court for leave to appeal against it. Both courts rejected the Bobroffs petition out of hand.
The LSNP carried out an inspection and audit late last year at RBP and prepared two audit reports. The LSNP told Moneyweb earlier this year that it was not obliged to make either of these reports public.
Contempt of court
The Bobroffs refused to allow an inspection of RBP’s computer servers by an independent IT expert saying that the court order was impossible to comprehend. This gave rise to the contempt of court application by the Grahams.
In his judgment Judge Matojane analysed the use of the English language in court orders, saying, “The inspection of the Bobroffs computer network follows from the express language of the order. If the Bobroffs intended complying with the order they would have raised an objection … or suggested someone else to the Law Society or approached the court to seek clarification on how the order might be enforced and by what means.”
The judge found that “the inspection by an independent IT expert was intended and meant to be part of the order” handed down by Judge Mothle and that the Grahams had satisfied the court that the Bobroffs were guilty as charged.
Judge Matojane ordered the Bobroffs to “comply fully” with the relevant parts of Judge Mothle’s order, including access by the IT expert.
He also said that if the Bobroffs are unable to comply with the court order that such “disability” be attested to by both the Bobroffs on affidavit.
“Ronald and Darren Bobroff are each ordered to pay a fine of R100 000, suspended on condition that they comply within 30 days of this order.”
He also ordered that the Bobroffs pay punitive costs.
The rocky road ahead
The LSNP committee that is required, in terms of Judge Matojane’s order, to appoint the IT expert was disbanded some months ago having declared themselves to be “conflicted” on the Bobroff issue.
It is therefore not clear whether the latest court order can be implemented.
George van Niekerk, attorney for the Grahams, told Moneyweb: “The court rightly found that the Bobroffs are in contempt of its prior order. They must now be held accountable to the Law Society, the court, and, ultimately, the public. Their persistent refusals to comply with court orders on the basis of spurious, self-serving interpretations strongly suggests that they are attempting to hide incriminating records. The pervasive failure by the LSNP to act upon judicial censure of the Bobroffs’ conduct does not serve the interests of the public or the legal profession. Members of the public should be able to rely on the LSNP to force attorneys to account for their conduct. In the case of the Bobroffs, the LSNP appears to be content with the deplorable situation that former clients are forced to approach courts themselves to obtain redress, without any assistance from the Law Society. This is an indictment on the regulation of the profession, and the protection of the public, by the LSNP.”
Ronald Bobroff told Moneyweb: “Our eminent legal team [comprising of Mike Hellens SC, Albert Lamey and Dawid Scholtz] will study the judgment and we will follow their advice.”
The LSNP failed to respond to Moneyweb’s request for comment having recently taken a decision not to comment on Bobroff matters.
Read the judgment here.