The Special Investigating Unit (SIU) has suffered a blow in its bid to recover millions of rand from ex-State attorney boss and a disbarred advocate for overcharging and being paid for services not rendered.
The matter has been brought before the Special Tribunal by the SIU against erstwhile head of the Office of the State Attorney, Johannesburg, Kgosisephuthabatho Gustav Lekabe and former advocate Hassan Ebrahim Kajee, who was struck off the roll in 2023.
The Office of the State Attorney in Johannesburg, when it was headed by Lekabe, is accused of facilitating 547 payments to Kajee amounting to just under R64.2 million, arising from representing the government against a lawsuit involving the Health Department.
The unlawful collusive action between Lekabe and Kajee took place between 2014 and October 2018, when he (Lekabe) was suspended from the Office of the State Attorney.
In the latest installment of the saga, the SIU wanted to amend its particulars of claim as the unit believes the tribunal hearing the matter in due course may come to the conclusion that Kajee and Lekabe’s conduct should be reviewed and set aside, and that they be jointly and severally liable to repay the amounts then in that event the SIU requires the assurance of having pleaded in the alternative, hence the need for the amendment.
Last Thursday, retired Special Tribunal President Judge Margaret Victor refused the SIU’s application for amendment.
In her judgment, the alleged conduct as pleaded is a positive fraudulent act on the part of Kajee and an omission or participation by Lekabe where a duty to act existed.
She said the alleged conduct of both Kajee and Lekabe, if proven, would be wrongful, intentional, or, in the case of the former State attorney, negligent, alternatively, intentional.
Several claims have arisen from the direct relationship between the Health and Justice ministries, and Lekabe and Kajee are pleaded, including that the State attorney briefed Kajee in at least 200 matters at the rate of R1,450 and R2,250 per hour and R14,500 and R22,500 daily.
He was paid R45.4m for the 200 matters and overcharged by over R18.1m, and he overreached, double-charged for legal services he did not render, rendered double invoices, and made false and fraudulent misrepresentations.
The SIU alleges that Kajee’s conduct also amounted to intentional or negligent misstatements or misrepresentations.
In one case involving the Police Ministry in February 2018, Kajee charged R889,500 for the period between December 2017 and February the following year, and submitted invoices for alleged professional legal services despite the fact that he did not render any services.
During the same year, 2018, Kajee charged R2,500 and R25,000 hourly and daily, respectively, and was paid over R15.4m and overcharged in excess of R7.87m, and the State Attorney was impoverished.
At the tribunal hearing, Lekabe objected to the proposed amendment because he argued it was belated and out of time, defective as it was not accompanied by an affidavit addressing the issues he raised, and introduced a new claim unsupported by the allegations filed in the original particulars of claim.
The SIU, he stated, should have brought the amendment through a substantive application, which the unit subsequently did, but claimed that the new claim had prescribed and was made in bad faith, as they had known about it for more than four years.
Kajee did not object to the amendment but refused to attend the trial, allegedly on medical grounds.
However, a medical specialist from the Helen Joseph Hospital testified that Kajee was perfectly capable of attending the trial before the tribunal.
Judge Victor found the SIU’s delay to be unreasonable.
“A litigant must grasp the nettle from the outset and plead its cause of action. There is no sound factual basis in this case to justify the delay in pleading a legality review. In my view, the plaintiffs’ (SIU and ministries’) explanation does not pass muster and is therefore unsatisfactory. There is no basis to overlook the delay,” reads the judgment.
SIU spokesperson Kaizer Kganyago had not responded to questions by Wednesday afternoon.
