DURBAN - A LEGAL firm that litigated for the South African Government in the Bengis matter, involving over-harvesting of West Coast rock lobster, has written to Justice Minister Ronald Lamola seeking his intervention over unpaid legal fees.
The Bengis matter involved Arnold Bengis, head of the now defunct company Hout Bay Fishing, his son David Bengis, Grant Berman and Shaun Levy, together with US citizen Jeffrey Noll. Arnold Bengis and Noll pleaded guilty in the US to violating the Lacey Act – regarding the importation of fish and wildlife in violation of a foreign law.
The US District Court of the Southern District of New York issued a forfeiture order against Bengis for $37.2 million (R595m). South Africa as a victim of the crimes had registered its claim, and then became part of the proceedings.
In the letter, B Xulu and Partners Incorporated (BXI) said it was appointed to litigate the Bengis matter in both the US and the UK, and that their appointment was confirmed in writing and submitted to the US District Court for the Southern District of New York.
“BXI successfully settled the matter and repatriated over R100 million to South Africa. The money was deposited in the Criminal Asset Recovery Account (CARA), and despite the monies being received into the fiscus, the State has simply refused to make payment to BXI for services rendered,” the letter read.
On page 131 of the National Prosecuting Authority’s 2019/20 annual report, the Bengis matter is listed as one of the unit’s noteworthy cases. “With the co-operation of the US government and the New Jersey government, the monies were repatriated to South Africa. A total of R99 million was paid into CARA on July 22, 2019,” the NPA said in the report.
Clause 4 of the Order and Global Settlement Agreement on the Bengis matter, shows that other parties who litigated in the matter have already been paid a combined amount of £160 000, from the same funds deposited into the CARA.
BXI’s argument is that funds from which they were supposed to receive their legal fees, are in the CARA.
Clause 8 of the agreement reads: “This clause 8 supersedes and overrides any and all previous agreements between the parties and any court order regarding the legal costs in relation to the dispute and the proceedings and in relation to this agreement, including the implementation of all matters provided by this agreement.”
The firm also urged Lamola to urgently intervene to lift the attachment of BXI’s payments and bank accounts pending the finalisation of matters on appeal and a hearing on the amounts due and payable to BXI regarding the Bengis settlement and other cases for which payments were still outstanding.
The firm accused the State Attorney of attaching its R2.2m worth of payments which were unrelated to the Bengis matter. “BXI has a lien over the proceeds of the settlement, and the attachment process and execution are being used by the state in a dishonest, unjust and oppressive manner to avoid paying BXI the fees it is entitled to receive,” the letter read.
Lamola’s spokesperson Chrispin Phiri confirmed that the minister had received BXI’s letter.
“The ministry is of the view that this matter has been ventilated before the courts, as a result, all issues are sub judice. The State Attorney will take instructions from the line department on how to proceed.”
State Attorney Felix Mbeki directed queries to the office of the Solicitor-General. Solicitor-General Fhedzisani Pandelani said the issues in the letter could be better ventilated in a court of law. Thus, “it will be remiss to engage in a public discourse through the press”.