Single lie trips up lawyer

Law firm left holding N$3,8-million baby.

A WINDHOEK lawyer may be sailing into stormy waters as far as the future of his legal career goes — the High Court on Friday in effect ruled that he had fabricated a document and lied in an effort to cover up his negligent handling of a client’s multi-million-dollar claim against the Motor Vehicle Accident Fund of Namibia. Not only was lawyer Bennie Viljoen “very tardy” in the way he handled a client’s claim against the MVA Fund, but he also lied about a supposed agreement with the MVA Fund which would have given him more time to pursue his client’s claim against the fund.Furthermore, he fabricated a date on a letter that he wrote in an effort to get proof of that agreement, Acting Judge Simpson Mtambanengwe found in a judgement handed down in the High Court.The end result of Viljoen’s mishandling of his former client Burger Jacobus Harmse’s claim against the MVA Fund is that Acting Judge Mtambanengwe has now ruled that the MVA Fund no longer has any duty to deal with that claim.COMPENSATION CLAIMIn its place, the law firm Dr Weder, Kruger & Hartmann, in which Viljoen had been a partner until his handling of Harmse’s claim became an issue that led to the firm being sued by Harmse, will be liable for compensating Harmse for the damages that he claims to have suffered in the car accident that led to him lodging a N$3,8 million claim against the MBA Fund.Viljoen may also still face disciplinary steps from the Law Society of Namibia.The President of the Law Society, Elise Angula, said on enquiry on Sunday that the Law Society was aware of the case.The Society had been awaiting the High Court’s judgement on the matter before deciding what steps, if any, would be taken.She said the Law Society was studying Acting Judge Mtambanengwe’s judgement to see what findings he had made about Viljoen’s conduct.The Law Society would now continue to look into the matter to decide whether there had been misconduct on Viljoen’s side, and what steps it would take on that score, Angula said.Harmse instructed Viljoen in October 1994 to lodge a claim with the MVA Fund.Harmse wanted to be compensated for damages he suffered in a serious car accident in August 1991.His claim against the MVA Fund was later calculated to amount to N$3,82 million, which was claimed as compensation for both general damages and loss of past and future earnings as a result of the accident.’NO PARTICULAR REASON’The MVA Fund’s final response to the claim after a summons on Harmse’s behalf was finally issued in 2003, was that his claim had lapsed, since the five-year time limit in which a summons was supposed to have been issued had long since passed.Viljoen – by then no longer Harmse’s lawyer – in turn claimed that he had an agreement with MVA Fund officials that the fund would waive this prescribed time limit.He had also written a letter, dated June 19 1996, to the MVA Fund to record that he had indeed reached such an agreement with the fund, he claimed.MVA Fund officials he dealt with, however, denied any such agreement.Viljoen himself admitted when he testified during the hearing of Harmse’s case before Acting Judge Mtambanengwe that the letter actually dated from early 2000.He claimed he backdated it on a suggestion from an MVA Fund official – who in turn again denied this when she testified before Acting Judge Mtambanengwe.In the letter, reference is made to a telephone conversation with a certain MVA Fund official with whom Viljoen claimed he had reached the agreement to waive the set time limits for Harmse’s claim.In his testimony, Viljoen however admitted that he had chosen the date of June 19 1996 “for no particular reason”, and told the court that in fact such a telephone conversation had actually never taken place.He admitted that was a fabrication, Acting Judge Mtambanengwe points out in his judgement.Simply on Viljoen’s own evidence it was clear that his alleged agreement with the MVA Fund “is palpably false, a fabrication”, as argued by the MVA Fund’s lawyer, Christian Mouton, Acting Judge Mtambanengwe stated.He found that “Viljoen lied in several respects about that agreement”.The evidence before him demonstrated unmistakably “that Viljoen was very tardy in the way he handled the claim”, he also commented.Almost 15 years after Harmse’s accident and 11 and a half years after Viljoen took on Harmse’s case, Dr Weder, Kruger & Hartmann has been left carrying the can.The firm will not only be liable in respect of Harmse’s claim, but the court also ordered it to carry both Harmse’s and the MVA Fund’s legal costs in the case.At Slabber, a senior partner in the firm, said yesterday that this judgement was only a first chapter in litigation over Harmse’s accident claim.In his opinion, the judgement means that his firm will be held liable for Harmse’s claim, but what still has to be determined now is whether negligence on the part of the driver of the truck involved in the accident in which Harmse was injured, was in the first place the cause of that accident.Only after that issue has been resolved, will it have to be determined what amount of money in compensation Harmse will be entitled to from Dr Weder, Kruger & Hartmann’s professional indemnity insurers, according to Slabber.Not only was lawyer Bennie Viljoen “very tardy” in the way he handled a client’s claim against the MVA Fund, but he also lied about a supposed agreement with the MVA Fund which would have given him more time to pursue his client’s claim against the fund.Furthermore, he fabricated a date on a letter that he wrote in an effort to get proof of that agreement, Acting Judge Simpson Mtambanengwe found in a judgement handed down in the High Court.The end result of Viljoen’s mishandling of his former client Burger Jacobus Harmse’s claim against the MVA Fund is that Acting Judge Mtambanengwe has now ruled that the MVA Fund no longer has any duty to deal with that claim. COMPENSATION CLAIM In its place, the law firm Dr Weder, Kruger & Hartmann, in which Viljoen had been a partner until his handling of Harmse’s claim became an issue that led to the firm being sued by Harmse, will be liable for compensating Harmse for the damages that he claims to have suffered in the car accident that led to him lodging a N$3,8 million claim against the MBA Fund.Viljoen may also still face disciplinary steps from the Law Society of Namibia.The President of the Law Society, Elise Angula, said on enquiry on Sunday that the Law Society was aware of the case. The Society had been awaiting the High Court’s judgement on the matter before deciding what steps, if any, would be taken.She said the Law Society was studying Acting Judge Mtambanengwe’s judgement to see what findings he had made about Viljoen’s conduct.The Law Society would now continue to look into the matter to decide whether there had been misconduct on Viljoen’s side, and what steps it would take on that score, Angula said.Harmse instructed Viljoen in October 1994 to lodge a claim with the MVA Fund.Harmse wanted to be compensated for damages he suffered in a serious car accident in August 1991.His claim against the MVA Fund was later calculated to amount to N$3,82 million, which was claimed as compensation for both general damages and loss of past and future earnings as a result of the accident.’NO PARTICULAR REASON’ The MVA Fund’s final response to the claim after a summons on Harmse’s behalf was finally issued in 2003, was that his claim had lapsed, since the five-year time limit in which a summons was supposed to have been issued had long since passed.Viljoen – by then no longer Harmse’s lawyer – in turn claimed that he had an agreement with MVA Fund officials that the fund would waive this prescribed time limit.He had also written a letter, dated June 19 1996, to the MVA Fund to record that he had indeed reached such an agreement with the fund, he claimed.MVA Fund officials he dealt with, however, denied any such agreement.Viljoen himself admitted when he testified during the hearing of Harmse’s case before Acting Judge Mtambanengwe that the letter actually dated from early 2000.He c
laimed he backdated it on a suggestion from an MVA Fund official – who in turn again denied this when she testified before Acting Judge Mtambanengwe.In the letter, reference is made to a telephone conversation with a certain MVA Fund official with whom Viljoen claimed he had reached the agreement to waive the set time limits for Harmse’s claim.In his testimony, Viljoen however admitted that he had chosen the date of June 19 1996 “for no particular reason”, and told the court that in fact such a telephone conversation had actually never taken place.He admitted that was a fabrication, Acting Judge Mtambanengwe points out in his judgement.Simply on Viljoen’s own evidence it was clear that his alleged agreement with the MVA Fund “is palpably false, a fabrication”, as argued by the MVA Fund’s lawyer, Christian Mouton, Acting Judge Mtambanengwe stated.He found that “Viljoen lied in several respects about that agreement”.The evidence before him demonstrated unmistakably “that Viljoen was very tardy in the way he handled the claim”, he also commented.Almost 15 years after Harmse’s accident and 11 and a half years after Viljoen took on Harmse’s case, Dr Weder, Kruger & Hartmann has been left carrying the can.The firm will not only be liable in respect of Harmse’s claim, but the court also ordered it to carry both Harmse’s and the MVA Fund’s legal costs in the case.At Slabber, a senior partner in the firm, said yesterday that this judgement was only a first chapter in litigation over Harmse’s accident claim.In his opinion, the judgement means that his firm will be held liable for Harmse’s claim, but what still has to be determined now is whether negligence on the part of the driver of the truck involved in the accident in which Harmse was injured, was in the first place the cause of that accident.Only after that issue has been resolved, will it have to be determined what amount of money in compensation Harmse will be entitled to from Dr Weder, Kruger & Hartmann’s professional indemnity insurers, according to Slabber.