In an unexpected decision, a Legal Practice Council (LPC) disciplinary committee has acquitted a lawyer – who paid just R50 000 of a R15m medical negligence settlement to a severely disabled child’s trust account – of misappropriating those funds, saying it was unable to prove the misappropriation.
The money was transferred to Eastern Cape attorney Steven Kuselo Gqeba’s trust account almost four years ago. However, said his lawyer, he had not made payments to the child’s trust – which was intended to ensure the little girl was adequately cared for after she was left severely disabled by Health Department negligence – because of certain undisclosed legal costs and expenses.
The evidence against Gqeba emerged only after an Eastern Cape Department of Health investigation into the province’s R3.4bn in medico-legal negligence payouts between April 2014 and March 2021.
During the probe, officials received anecdotal evidence that poor and vulnerable plaintiffs were not getting the money that had been paid out to a number of unscrupulous lawyers, News24 reports.
Gqeba, who was also reportedly criminally charged over the alleged theft of a R3.5m Road Accident Fund (RAF) payout in 2023 (and granted R15 000 bail) and two other RAF-related cases, was one of the lawyers implicated in that investigation.
No explanation
According to the LPC disciplinary committee report, Gqeba “never gave a clear explanation” to the LPC when he was confronted by the complaints, and seemed to believe that only the LPC had a duty to provide misconduct evidence against him.
“There is no evidence before the committee where (Gqeba) clearly shows he did not misappropriate his client’s money nor, at the very least, did not breach the code of conduct governing all legal practitioners inclusive of the accounting rules.”
But while confirming “the undisputed evidence”, it was found Gqeba only had R718.12 in his trust account on 31 August 2023.
The committee agreed with Gqeba “that an investigation should have gone deep to prove the charge of misappropriation”, and “therefore, the LPC fell short of proving the misappropriation of the capital amount paid in terms of the order of the court,” said disciplinary committee chairperson Kangelani Songelwa in a decision supported by attorneys Tonya Carinus and Mzawuteti David Kalimashe.
In other words, the committee did not believe that the apparent four-year absence of the money from the child’s trust account, and Gqeba’s unwillingness to explain that absence, was enough of a basis to find that, on the balance of probabilities, the money had been misappropriated.
Instead, the committee found “on a balance of probabilities” that Gqeba “contravened various accounting rules as some of (the) trust creditors have a deficit”.
This was because of evidence that he had paid trust creditors (people who were due money from various trust accounts) with payments made to other trust creditors. An expert described this as “rolling of monies”.
While Gqeba had tried to defend himself against these charges by disputing the authenticity of his own bank statements, this defence was unsuccessful. He also promised to provide the LPC disciplinary committee with a forensic report on his firm’s finances – but has yet to do so.
“With the evidence before the committee cumulatively, (Gqeba), on the balance of probabilities, is found guilty of misconduct,” the committee stated.
It remains unclear if the LPC will apply for Gqeba to be struck from the roll of attorneys and permanently barred from practising law.
The committee’s report does not provide what steps will be taken to ensure the disabled child’s trust receives the money due to her.
She is understood to be receiving care in a facility, despite uncertainty over if and when the funds needed to pay for that care will ever be received.
See more from MedicalBrief archives:
Slow process to hold medico-legal lawyers accountable for fraud
SIU cracks down on fraudulent Eastern Cape medico-legal claims
Minister targets dodgy lawyers as SIU probes R30bn medico-legal claims
Lawyer who blew disabled children’s millions ‘should be struck off’