I enjoyed reading a recent article by the Press Ombudsman finding the Sunday Times guilty of the Code of Ethics and Conduct for South African Print and Online Media.  The Sunday Times was found to have made a serious breach of this code and ordered to print a correction article about an article they wrote about an attorney involved with Road Accident Fund cases.  They wrote about an Eastern Cape attorney, Zuko Nonxuva, on 17 January 2016 under the title “The tragic tale of a penniless SA millionaire”.  Unfortunately, from the attorney’s perspective they dealt with exactly the kind of case that one fears that it might – that of a client under curatorship.  

The client’s version was that when he questioned this attorney about the case, the attorney ran off, had a curator appointed and then delayed the payment to him.  There did appear to be other complaints about the fees charged in some matters, but that is not the focus of this article, apart from which I don’t have the details of those allegations.  The Sunday Times were criticised for failing to point out the existence of court orders that the money had to be paid to a curator, that the attorney had not rushed off to court as was suggested and that the delays in the payment of the client’s case were all as a result of various unsuccessful applications the client brought with other attorneys to try and set aside the curatorship.  I think the finding is an important one, because he is not going to be the last attorney who is going to face media criticism in a Trust or curator matter.  

The fact of the matter is when a client has been represented by a curator, it means they don’t have the capacity to litigate, and the Sunday Times did not put across in its article that the person whom they were interviewing and who was telling them the whole story had obviously, by implication, already been found by a court to lack the legal capacity to give instructions in his own case.  While that does not stop him telling his story to the media, if a finding has been made that you are legally insane, or lack the legal capacity to even determine what happens in your own court case, I really do believe that the media should be a little bit more circumspect before writing their story based on the version of somebody who has essentially been found by a court of law to not even understand the legal process.  

How do you rely on somebody who has been found to not understand the legal process to tell you a story, complaining about the legal process!  Any proper investigation, by any reporter in such a case, would obviously involve accessing the court file, which is after all open to the public, and reading the extracts relating to the client’s legal capacity.  I guess of course, and I have not seen the reports in this case, but I can imagine they say similar things to reports that we read in these cases from time to time, but that would not make a good story.  It is hard to lead another attack on attorneys when a medico legal report will contain lines such as, “Mr/Ms … struggled to grasp basic concepts, was argumentative and showed a clear lack of understanding as to the purpose of my examination as well as to the legal process in which he/she is involved.  I believe that this person is not capable of making informed decisions, meets the definition of a legally insane person and needs to be represented in litigation by a curator.”  That would pretty much ruin an article, wouldn’t it?  

What needs to happen is not just the complaint to a Press Ombudsman, but for an attorney in one of these types of matters to sue for damages.  We know that most attorneys, for a variety of different reasons, don’t want to do it, but sooner or later, the media will pick the wrong person and then they are going to pay a very heavy financial price for writing such completely misleading articles that do such a disservice to the profession and to the public by creating an impression that in a case where a curator or a Trust is involved, that the attorney has done it for some nefarious reason.  There is no mention, for example, and I don’t know what the facts of this case are, that in most of the cases where a curator is appointed the curator will also find that the fee agreement entered into with the client is also not valid, because the client did not have the capacity to enter into that agreement.  In many case it is ultimately substituted with an agreement that leads to the attorney earning less fees than he or she would have in terms of the original agreement, because the facts relating to the curatorship in some cases come up too late for example to allow a Contingency Fee Act agreement to be entered into.  It is grossly unfair to suggest that any attorney wants all the dramas, complaints and threats from clients that go along with curator appointments, not to mention the considerable difficulties of dealing either with the client, or in some sad cases money-grabbing family members, who all have a variety of reasons why they believe the money should be paid out directly to the injured person as he/she wants to buy a house for all of them to live in, etc, etc.