Dow, client at loggerhead
Baboki Kayawe | Friday May 22, 2015 15:36
The Minister of Education and Skills Development Unity Dow, and her client Bogadi Ramatlapeng may soon find themselves facing each other in court over a deal gone sour.
Dow represented Ramatlapeng in a case in which the latter was suing the Ministry of Education and Skills Development (MoESD) over permanent injury sustained after a teacher assaulted her over a decade ago. The teacher was administering corporal punishment on her.
Ramatlapeng is unhappy with the manner in which her case was handled citing secrecy surrounding crucial resolutions between MoESD and her attorney. One of them, she said, is an Out of Court Settlement negotiated between her lawyer and the ministry without her consent, and she argued that her attorney was conflicted, as she later became Minister of Education.
Ramatlapeng argues that she only learnt about the settlement when it was concluded between her lawyer and MoESD last December. She alleges Dow, who by then already was an assistant minister notified her that the ministry was ready to settle out of court, as opposed to escalating the matter to the Court of Appeal as initially indicated.
“She insisted that I accept the suggested settlement of P700 thousand or else I stood to lose whatever money the CoA awarded me. She threatened that she would take the whole amount not just the 30 percent we had agreed on when our working relationship commenced,” Ramatlapeng alleged.
She further alleges the ministry had initiated a P450,000 settlement amount, which was then negotiated to P700,000 by her lawyer, without her consent.
“It is not correct that I negotiated an out of court settlement without her consent. I had a power of attorney to deal with the matter and on that basis I considered past settlements by the Court of Appeal, reached out to the AG’s chambers to find out how much they would settle for; they gave us a possible figure and I took the figure to Bogadi. I made it clear that it would be up to her to accept or refuse. I advised her that The Court of Appeal may well give her less than what was being offered,” Dow explained.
Dow adds: “I told her that if she wanted to switch lawyers at that last minute it was okay, but she would have to be prepared to pay my fee, even if that fee meant all the damages. My reasoning was very clear; she had a choice, to listen to my advice or to reject it. If she rejected it, then she had to pay full fees whether she lost or won.”
The Minister emphasised that the negotiations with the Attorney General were never concluded and no offer was ever made as Ramatlapeng had made it clear that it was not money she was after but a chance to go to the highest court to make her case.
“‘This is not about money. I will not settle out of court’, was what she said repeatedly,” Dow said.
Further, Dow said she explained that considering the AG’s offer was not a settlement out-of-court as it would be acceptance of liability by AG.
This is not true. After the payment, Dow said Ramatlapeng’s attitude changed from, “This is not about money” to “Is the Court of Appeal saying my arm is worth only P481,569”.
Dow says her client has now consistently refused to accept the amount due to her. We have billed her P160,000 because it was part of our agreement that regardless of the amount of work we did, our fees would not be more than one third of amounts received. As a matter of fact, the actual fee due is more than P250,000. At the February 18th appeals hearing, the ministry alleged that they were caught in the Out of Court Settlement, which, to her surprise was not communicated to her in writing but still those who heard the appeal accepted the excuse without question.
It was here where she was granted P350,000 plus 10 percent interest calculated yearly and backdated to when the case appeared before the courts in 2012. The CoA also pronounced that the state was illegible to settling all the legal expenses Ramatlapeng incurred from the day she started seeking justice till February 2015.
Payment
The client also argues that the Attorney General Chambers (AGs) settled on February 20th, close to two weeks after the CoA judgment on February 5 2015, but she only learnt about this development after she inquired with the AGs because the lawyers had concealed that information from her until she found it out by herself. Dow told this publication that she had a payment agreement with Ramatlapeng to take a fraction of her dues.
“Part of our agreement is that regardless of the amount of work we did, our fees would not be more than one third of amounts received,” said Dow.
Change of ownership of law firm
Ramatlapeng told Mmegi that when her lawyer was appointed to cabinet she did not notify her and the way forward on the matter was never discussed. She alleges that what she was confronted with was a hostile gang of young men she believes to be Dow’s children, and employees who were not cooperative and throwing her from pillar to post. At some point, she says they told her that they did not know the status of their agreement with minister Dow.
In a meeting held on March 15, 2015 at the Kgale Mews-based law firm, Ramatlapeng said she informed the law firm about her initial agreement with Dow when the case started.
“He and another lawyer told me they needed to understand since the firm’s ownership structure had changed,” said Ramatlapeng.
It was during this meeting where lawyers at Dow and Associates allegedly finally told her that the AGs had settled for P481,000. However, she said that when she asked for a breakdown of the fees, in order to appreciate the manner in which the damage had been settled, her request hit a snag.
The cheque
After travelling between her workplace, and the offices of Dow and Associates, setting appointments, some of which were not honoured, she was surprised one April afternoon when a messenger dropped her a P320,000 cheque with no official document to explain it, she said. Ramatlapeng, who denied accepting a single thebe from the law firm says until a breakdown of damages is availed to her, as well as a corresponding fee note and bill of costs are presented to her, she is not willing to pocket any monies from Dow & Associates. Moreover, she has had issues with P320,000 being transferred to her bank account without the law firm furnishing her bank with origins of the money, because as it is procedural, the institution is going to demand answers.
To this, Dow says, “This is not true…. She has now consistently refused to accept the amount due to her.”
She said while the law firm has billed Ramatlapeng for P160,000 “…the actual fee due is more than P250,000”.
How they met
Ramatlapeng says that she met Dow through a colleague at work who knew some foreign attorney who was employed by Dow and Associates at the time. The co-worker who often saw Ramatlapeng taking time off work to fight a lone legal battle wanted some legal mind to test the legality of Ramatlapeng’s case. The said colleague managed to link up with Merilu (the employ of Dow & Associates then) in 2010 and presented Ramatlapeng’s case. “She then said that she was going to take the case to a colleague to determine if I had a strong case or was just wasting my time and money. In 2011, that’s when I met Dow who assured me that we had a strong case, and that she would do it for free, and will only get a 30 percent share of the compensation,” said Ramatlapeng.But Dow does not recall how they met. “I cannot recall when I first met Ramatlapeng but she came to my office. I am sure my files would indicate, but I doubt that much arises from this.”
Conflict of interest
Ramatlapeng is adamant that her lawyer could have been compromised at the time she negotiated the out of court settlement in that she was at the time a candidate for the ministerial position.
She also says when she communicated her worries to Dow, she felt that she had come a long way with the case and did not take well to it being handed over to another attorney at mealtime.
Ramatlapeng has since explained that the out of court settlement that the now minister of education had negotiated and consented to with MoESD without her authorisation was an act done from a compromised stance owing to this conflict of interest. At the time when she first raised her fears about the issue, Ramatlapeng said Dow promised that her law firm would ably represent her.
“I never trusted that the law firm would continue to be firm since Dow was now the head of the ministry I was seeking justice against,” she said.
In her response, Dow said, “I have personally met with Bogadi Ramatlapeng on many occasions during the time of handling her matter. I made it clear that I was running for a seat in Parliament and at all times she was aware of my plans to finally leave the firm.
We discussed timelines and the consequences of my plans. And she knew that I was leaving the firm and when. But is not true that she has not received assistance from Dow and Associates.
“She meets often to raise all kinds of complains and always repeating old ones. Even this morning she met with Dow and Associates to once again complain that the costs taxed do not include the P3,500 she paid a previous lawyer,” said Dow.
Suprisingly, she alleges that the evidence that was brought forth at the time was contrary to the one presented during the High Court ruling back in 2012.
Dow explained that her client is primarily unhappy about the Court of Appeal’s reduction of the settlement from P1.2million to less than P400,000.
“She feels that everyone has colluded against her and in this she includes each and every person who ever handled or heard her case. She is bitter and angry,” said Dow.
She added that Ramatlapeng has communicated her displeasure to her directly, and the law firm has also communicated with her.
According to Dow, Ramatlapeng has stated her wishes to go to international courts to complain. “Bogadi has been fighting for justice for more than 14 years and it is hard for her to accept that after all these years the fight is over,” Dow said.
Ramatlapeng further expressed displeasure at the law firm’s lack of availing a fee breakdown to explain her damages, and that legal costs incurred prior to dealings with Dow and Associates were not included.
“She is not complaining about our fees but that the AG calculated interest incorrectly and that AG ought to pay for the P3,500 she paid to previous attorneys,” stated Dow.
Commenting on the alleged out of court settlement, Dow said there was no truth in her client’s utterances that it was negotiated without her (Ramatlapeng’s) consent.
“She is correct that I had a conflict of interest but that is a conflict she appreciated and we discussed as soon as I started running for political office.
She had a choice to terminate my engagement but she weighed all the pros and cons, including the fact that she has not paid one thebe for services, I had conducted her case with extreme diligence and I had prepared for trial at a level not often seen and I had saved the case from all sorts of pitfalls that had pre-dated my involvement,” said the minister.
Dow explained that Ramatlapeng has lost the use of her right hand and she can never get that back. “She is justifiably angry and no amount of money will be enough. You may be aware that she has kept her case on the news for 14 years. She is not prepared to accept that for better or for worse, the case is over.
When she refused to give her banking details so she could be paid a cheque was issued but even that she refused. If she accepts payment, she accepts peo dibetsa faatshe (ceasefire). As long as she can say she has not been paid the fight continues.”
When asked whether Ramatlapeng had at any point complained to her about the manner in which she (Dow) handled her case, including the leading evidence in court - from High Court to Court of Appeal, as her client alleged disparities between the evidence led at the High Court, and Court of Appeal, Dow responded thus, “ I am sure even you know there is no evidence led at the Court of Appeal. The Court of Appeal considers evidence on the record; it does not hear evidence.”
She added that Ramatlapeng says she will use the entire settlement to start an NGO to promote safety in schools. “But I have advised her to use at least a portion of it in skilling herself so she can increase her earning potential; after all, the loss of the use of her hand has significantly affected that aspect of her life”.