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By Getrude Makhafola

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High court judge lambasts lawyers for submitting fraudulent reports

Counsel from Kwata Attorneys claimed that the disparities were only spotted after the court raised the issue.

The Polokwane High Court, in Limpopo, has referred Kwata Attorneys to the Legal Practise Council (LPC) for investigation after it was discovered that they filed forged reports on behalf of clients.

This all happened during the Road Accident Fund (RAF) claims case which was brought to court by Mokgadi Florah Mokgaha, John George Mahladisa, Yvette Masindz Tauyatsoala and Richard Seleka.

The plaintiffs were all represented by Kwata Attorneys.

As part of the case proceedings, the lawyers filed medical reports from an industrial psychologist, named as Dr Malaka. However, upon closer scrutiny, the court realised that the doctor’s signatures were suspicious as they didn’t look the same.

On 16 May, their counsel could not confirm to the court whether all the signatures were that of Dr Malaka. The industrial psychologist was then later called in to confirm whether he compiled and signed the expert reports and the affidavits himself.

“The four matters came back before court wherein Dr Malaka testified under oath. He denied that the signatures that appears on the four affidavits were his, and further stated that he had no knowledge of the four affidavits, and that he had terminated his relationship with other employees where he previously practiced during 2018,” Judge Maake Kganyago said in his judgement this week.

Malaka further testified that his electronic signatures on the reports were used without his consent, and that three of the expert reports were not compiled by him. Only that of Makgaha was penned by him.

The four expert affidavits were also forged.

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‘Integrity, honesty and reliability concerns’

Kganyago referred to the Judiciary’s previous annual report raising concerns about corruption and fraudulent documents at the country’s courts.

In February, Judge President of the Gauteng Division of the Dunstan Mlambo also raised his concerns about the proliferation of fake court documents in the courts during his interview for chief justice position.

Kganyago said the criminal acts could affect the credibility of court orders.

“This is a serious threat to justice and undermines the very intergrity of the judicial system and the public confidence in the courts. It seems now that the problem of fraudulent activities might have escalated to expert reports, even though this court has not determined to what extent.

“To eradicate these types of conduct and behaviour, it must be dealt with harshly whenever it is discovered.”

When asked by the court to explain the forgery, the counsel conceded that things “were not done properly”.

According to counsel, the instructing attorney only picked up the discrepancies after they were raised by the court, and that they were not aware that the reports were not that of Malaka.

However, Kganyago didn’t buy the counsel’s version, saying it was the legal representative’s responsibility to ensure proper compilation of reports for their client.

“The plaintiffs on their own would not have known doctor Malaka. It will be the attorney or any person delegated by the attorney who handles those matters who will make an appointment with the expert. When the appointment is made, the attorney will be told the date, time, place and expert whom his/her client is to meet. In most cases, the attorney or any person delegated by the attorney will personally transport their client to the place of the expert.

“The attorney when he wants to file an expert affidavit, he/she will prepare it and communicate with the expert regarding the signing and commissioning of that expert affidavit,” he said.

He added that it was only fair to refer the matter to the LPC to find out who was responsible for forging the documents.

“Since Dr Malaka has disputed the expert reports and the four expert affidavits filed, it is clear that they were generated fraudulently. However, for fairness purposes, that will need to be properly investigated to determine who was responsible for generating and filing of the fraudulent expert affidavits and reports, and whether it was done deliberately, and intended to deceive the courts in obtaining the orders they were seeking. It is the duty of the Legal Practice Council to initiate such an investigation.”

Kganyago ordered that the four plaintiffs’ matters be removed from the roll.

The lawyers were allowed to source experts and file genuine reports and affidavits at a later stage in order to reinstate the case for trial.

No cost order was given.

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