Majope v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Roelofse AJ
• Judgment Date: 26 May 2022
• Court: Mpumalanga Division (Main Seat)
• Docket Number: 308/2021, 1309/20
• Citation: 2022 JDR 1452 (MN)

Roelofse AJ:

Introduction:

[1]

The relationship between an attorney and his or her client is one of mandate. [1] A contract of mandate is a consensual contract between one party, the mandator, and another, the mandatary, in terms of which the mandatary undertakes to perform a mandate for the mandator.

[2]

As in any other consensual contract, there must be an offer and an acceptance of the offer in order for a valid and binding contract of mandate to come into being. In the case of a contact of mandate, the mandator makes a request that the mandatory performs some act or duty which obligation the mandatory then accepts and executes.

[3]

The object of the mandate may not be illegal, wrongful or immoral. [2]

[4]

In the attorney and client relationship, the client is the mandator and the attorney is the mandatary. Unless agreed otherwise between the client and the attorney, an attorney is not entitled to payment of his or her fees (and disbursements)

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until he or she has performed his mandate or until the employment of his or her services has been terminated. [3]

[5]

In the interest of the public, the conduct of legal practitioners (attorneys and advocates) are regulated, the Legal Practice Act 28 of 2014 being the principal regulatory instrument. Under the Legal Practice Act, a Code of Conduct was published. [4] All legal practitioners are subject to the Legal Practice Act and the provisions of the Code of Conduct.

[6]

In this case, I have to decide the true mandate that was given by the plaintiffs and accepted by their attorney. More particularly, was the mandate to prosecute the plaintiffs' claims against the RAF on the basis of attorney and own client fee agreements entered into between the plaintiffs and the attorney or did the mandate provide that the attorney would represent the plaintiffs in their actions on a contingency basis. I shall refer to the first mentioned mandate as the "normal fee mandate" and the last mentioned mandate as "the contingency fee mandate".

[7]

I a normal fee mandate, the attorney must be paid whatever the outcome of the mandate is. In a contingency fee mandate, an attorney will render his or her services and incur disbursements on behalf of his or her client on the basis that the attorney's fees and disbursements will only be recovered from his or her client if the client is successful in the proceedings to which the mandate relates. The attorney therefore bears the risk of the outcome of the mandate.

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Background to the matters:

[8]

The plaintiffs in the above actions instituted actions against the RAF arising from motor vehicle collisions in which they were injured. The plaintiffs were represented by Ngomana and Associates ("Ngomana"). Ms. Fortunate Nwa-Khosa Ngomana ("Ms Ngomana") of Ngomana dealt with the actions on behalf of the plaintiffs. Adv. Phathutshedzo Tshavhungwe was briefed in the actions by Ngomana.

[9]

The RAF did not appear at the hearing on 22 March 2022. Both Ms Ngomana and Mr Tshavhungwe appeared on behalf of the plaintiffs.

[10]

I allowed the plaintiffs to proceed to prove their claims in terms of the provisions of Rule 39(1) of the Uniform Rules. The plaintiffs presented evidence where after their cases were closed. I requested the plaintiffs' attorneys to forward draft orders to me for consideration. They did so.

[11]

On 24 March 2022, I gave an ex tempore judgment in terms of which I granted judgment in favour of the plaintiffs and awarded amounts in damages to them.

The circumstances giving rise to the need for this judgement:

[12]

It was recorded in the draft orders that were forwarded to me in both matters that no contingency fees agreement was entered into between the plaintiffs and Ngomane. I doubted the veracity of these statements because: the plaintiff in the first action has been unemployed since the accident. Prior to the accident she was

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attending a learnership in building construction earning R 1870.00 per month. The plaintiff in the second action was employed as a driver earning R 3500 per month since the accident.

[13]

It is a well-known fact that litigation in RAF matters are notoriously expensive not only as a result of high legal fees but also the high costs of various experts that are usually consulted in a claim against the RAF. This is the obvious reason why, in the majority of RAF actions, attorneys represent their clients on a contingency basis. So for instance, the plaintiff in the first action relied upon the expert opinions of a neurosurgeon, clinical psychologist, occupational therapist, industrial psychologist and an actuary. The plaintiff in the second action, in addition to those experts relied upon by the first plaintiff, also relied upon the expert opinions of an orthopaedic surgeon and an ear nose and throat surgeon.

[14]

What Ngomane represented to court when it furnished the court with the draft orders was that normal fee mandates applied in the actions.

[15]

I challenged the allegation with Mr Tshavhungwe that in the draft orders it was represented that no contingency fees agreements were entered into in light of the precarious financial position the plaintiffs most likely found themselves in. It was in my mind highly improbable that the plaintiffs would have been in a position to fund the litigation themselves in terms of a normal fee mandate.

Questions posed:

[16]

Mindful of the Judgement of the Judge President of this Division in the matter of Thobile Khethiwe Mucavele obo Mpho Siboniso Mucavele v The Mec of Health,

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Case Number: 3352/2016 that was delivered 17 March 2022 ("Mucavele"), I directed Ms Ngomana to file an affidavit wherein she furnishes the court with answers to the following questions: (i) What fee was agreed upon?; (ii) When was such fee supposed to be paid?; What was the amount of fee agreed upon; (iv) If no fee was paid (or part thereof), when was the fee or remainder thereof to be paid?; (v) If no fee was paid, on what basis was it alleged that no contingency fee was agreed upon?; (vi) What was the agreement between attorney and counsel and when would counsel furnish his account, if any?.

Answers to the questions posed:

[17]

Ms Ngomana deposed to an affidavit in each matter and filed same. Both affidavits read the same. The heading of the affidavits read as follows: "AFFIDAVIT IN TERMS OF ATTORNEY AND CLIENT AGREEMENT".

[18]

Ms Ngomana's answers to the aforesaid questions were set out in the affidavits she filed. The answers were as follows: (i) An attorney and own client fee agreement was entered into; (ii) The fees would be payable when the matter was finalized; (iii) Ngomana will prepare a bill for costs that an attorney is entitled to recover from the plaintiffs for the disbursements made on behalf of the plaintiffs and for professional services rendered. The costs are payable by the plaintiffs whatever the outcome of the matter for which the attorneys' services were engaged and are not dependent upon any award of costs by the court which will be provided to client for comment; (iv) No fees has been paid by the plaintiffs as deposit for service to be rendered as disbursement fees will be paid on the finalization of the matter; and (v) Mr Tshavhungwe and Ngomana agreed on a rate of fees advocates charged per hour or per day and will normally receive payment when the costs matter has been paid

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by the RAF; and, Mr Tshavhungwe will furnish his account after when the matter is settled and/or judgement has been granted.

[19]

On 24 March 2022, Ms Ngomana and Mr Tshavhungwe appeared before me. I engaged Ms Ngomane on the affidavits she has filed. During my engagement with Ms Ngomane, she confirmed that Ngomane funded the plaintiffs' litigation. Significantly, Ms Ngomane informed the court that in the event the plaintiffs were unsuccessful in the litigation in the sense that judgment and costs were granted against them, the plaintiffs would not have had to pay Ngomane any fees or disbursements. Even more significantly, Ms Ngomana conceded that the litigation was undertaken for the plaintiffs on a contingency basis for Ngomana would only be paid if the plaintiffs had won. Ms Ngomana appeared to suggest that a "directive" issued by the Legal Practice Council allowed the conduct she has followed. The "directive" referred to by Ms Ngomana is in fact Rules made by the Legal Practice Council in terms of section 6 of the Contingency Fees Act 66 of 1997 ("the Act"). These Rules are hereinafter referred as "the contingency rules".

[20]

Mr Tshavhungwe informed the court that Clause 29 of the Code of Conduct [5] allowed an advocate a discretion to charge a fee or reduced fee or no fee at all. In this regard, Mr Tshavhungwe referred the court to clause 29.5 of the Code of Conduct [6] in order in support of his contention that he was fully entitled to agree to charge no fee for the services rendered to the plaintiffs if they had lost. Mr Tshavhungwe confirmed that he accessed the plaintiffs' claims, found them

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meritious and therefore proceeded to render his services. Mr Tshavhungwe confirmed that he would only now render an account because the plaintiffs were successful. The invoice of Mr Tshavhungwe delivered that was attached to Ms Ngomana's supplementary affidavit (to which I shall refer later in this judgment) indeed indicates that the invoice was issued after the ex tempore judgments were delivered.

[21]

However, the point is this - clause 29.5 of the Code of Conduct contemplates an agreement to charge no fee or a reduced fee irrespective of the outcome of litigation. Clearly what Mr Tshavhungwe did was to agree not to charge a fee if the plaintiffs would have been unsuccessful. Because that the...