Mucavele v MEC for Health Mpumalanga (Leave to Appeal)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Legodi JP
• Judgment Date: 06 May 2022
• Citation: 2023 JDR 0462 (MN)
• Docket Number: 3352/2016
• Hearing Date: 13 April 2022
• Court: Mpumalanga Division (Main Seat)

Legodi JP:

[1]

On Wednesday 13 April 2022 an application for leave to appeal against the whole of the judgment handed down by this court on 17 March 2022, was laid before me. At the heart of the application for leave to appeal was that this court erred in finding that the fee agreement concluded between the plaintiff and Mr Joubert was illegal and unenforceable. Second, it was contended that this court erred in allegedly denying the plaintiff of the costs despite the parties having agreed on payment of party and party costs. Lastly, the contention was that the court erred in dealing with the conduct of attorney Joubert despite the fact that the issue of reservation, consultation and preparation fees became moot.

Illegality or otherwise of the fee agreement in question

[2]

In this application for leave to appeal, Mr Hellens SC who appeared on behalf of the plaintiff (applicant in the present proceedings) sought to reinvent the wheel that was started by Mr Mullins SC in argument made in the proceedings before the

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main judgment was handed down. The main judgment in question is the subject of the present application for leave to appeal. In attacking the reasoning and conclusion reached by this court in the main judgment, Mr Hellens SC made a somewhat long statement as follows:

"I was an attorney for 42 years ago and nothing has changed. If a client walks into your chambers, into your office and says I want you to do this case, and nothing more is said. . .and says I want you to do this case, the attorney is entitled. . .to accept the mandate. And nothing more is said. . . the terms of the mandate would be that the attorney would be paid. . .his normal or usual normal fee. And that the attorney's usual normal fee is attorney and client fee. There is obligation on him to take a deposit. And it is entirely. . . lawful for him to say that I will charge my fee only at the end of the case. There is nothing in the mandate on these papers before you that says that the attorney would only charge if successful. . .In addition there is no requirement to ask for a deposit as is often done. . . And that the client at the conclusion of the matter. . . if the client were to be successful, the client would owe the attorney his normal usual fees. The fact that client may be indigent affects the recoverability of the fees. The fact that the attorney is willing to take that chance because he believes the plaintiff's case. . .that the merits are strong. . ., does not affect the nature of the agreement as reflected above. It is certainly not. . . turned into a contingency fee agreement. And that is the heart My Lord of where you took wrong turn on the highway with respect. . . Everything flows from the misunderstanding of the legal position".

[3]

Of course and with respect, much has changed since '42 years ago' of Mr Hellens SC's experience as an attorney. The Contingency Fees Act has brought that change relevant to facts of the present case. The long statement quoted above has introduced a somewhat new argument and I find it necessary to contextualise it and deal with the statement, something that is ordinarily not necessary in an application for leave to appeal. In my view, if the logic of the statement quoted above was to be followed, then the Contingency Fees Act which made it possible to avoid the prohibition of contingency fee agreement at common law, will not worth the paper is written on. Suggesting that the statement quoted above is the law and that there is nothing wrong with the statement previously articulated by Mr Mullins SC during the

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main hearing, would have the effect of side-stepping the prohibition at common law. It would also amount to side-stepping the imperative in the Contingency Fees Act. This Act is aimed at ensuring that those who would not ordinarily have been able to afford the costs of litigation, are not taken for a ride when time comes for accounting for the legal costs allegedly incurred by their legal practitioners, particularly where the client pays nothing or had no means of paying for legal fees except from the capital amount awarded upon successful litigation.

[4]

In terms of section 17(1) of Superior Courts Act, leave to appeal may only be given inter alia, where the judge or judges concerned are of the opinion that, (a) (i) the appeal would have reasonable prospect of success; or (ii) there is some compelling reason why the appeal should be heard. This will be the test in dealing with the present application for leave to appeal.

[5]

As I said, ordinarily, it would not be necessary to write a judgment in dealing with an application for leave to appeal. An order denying or granting leave to appeal should suffice because one would not want to deal with an application for leave to appeal as if one is dealing with the appeal itself or rewriting the judgment appealed against.

[6]

However, seen in the context of the long statement made by Mr Hellens SC as quoted in paragraph [2] above, also taking into account the other two applications now laid in these proceedings and the affidavits submitted by the experts as per the order in the main judgment, it will be remiss of me not to deal with the statement and these other two applications. The statement "If client walks into an attorney's office and says I want you to do this case, the attorney is entitled to accept the mandate and if nothing more is paid, the terms of that mandate will be the attorney is entitled to be paid his normal fee and the attorney normal fees is his attorney and client fees", is simplistic, but fails to take into account the rules of the profession, the prohibition at common law and the object of the Contingency Fees Act.

[7]

Mr Hellens SC misses the point. The attorneys' profession is heavily regulated. This has to be so because there is a need to protect the unsuspecting clients. Transparency in the conclusion of a fee agreement is key and protects both

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the attorney and the client. Anything short of this will expose the legal profession negatively. It would also open clients like the present indigent plaintiff to an abuse and unnecessary criticism for which the Contingency Fees Act is intended to avoid.

[8]

It has become a long standing practice in the legal profession which is also envisaged to be reinforced in section 35 of the Legal Practice Act referred to in the main judgment, as to how attorneys should deal with their clients in concluding fee agreements. To conclude a fee agreement as Mr Hellens SC proposes in his statement quoted above, undermines the long standing practice. That is, a client should know upfront especially in litigious proceedings, what would happen when a mandate is terminated, an aspect that is common in matters concerning medical negligence. A client should also upfront be informed of the scope of work to be undertaken by an attorney, fee amount and payment terms should always form part of a valid and enforceable fee agreement and in particular, hourly rate. This is a norm and practice that has become one of the ethical standards generally recognised by the legal as is contemplated in paragraph 3.3. 4 of the code of conduct. Therefore, to suggest that a valid agreement is concluded when an attorney says to a prospective client that "I will be entitled to be paid-normal fee and the attorney normal fees is attorney client fee", cannot be correct and seeks to undermine the ethical standard general recognised by the very legal profession Mr Hellens SC has been in for more than 42 years. It will be a complete departure from the form and essence of entering into a valid fee agreement, something which Mr Hellens SC in his statement seems to ignore.

[9]

The statement: "No obligation to take a deposit and is entirely lawful for him to say I will charge my fee only at the end of the case", is a statement that should worry everyone in the legal profession. This statement seen in the context of the following statement should even be more worrisome:

"There is nothing which says the attorney will or may not be able to recover his fees because he believes the merits are strong. This does not affect the nature of the agreement as reflected above. It is certainly not entering into a contingency fee agreement".

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[10]

If what is stated above is the definition which Mr Helens SC attributes not to be a contingency fee agreement, then there will never be a contingency fee agreement as contemplated in Contingency Fees Act. In the process, the shield for the indigent persons envisaged in sections 2, 3 and 4 of the Contingency Fees Act, will be off line and of no use. I accordingly find that considering the main judgment and what is stated in the preceding paragraphs, there are no reasonable prospects of success on appeal. Regard being had to the background that preceded the Contingency Fees Act as sketched out in the main judgment and the clear wording of the relevant provisions thereof, I come to the conclusion that there are no compelling reasons why the appeal should be heard.

[11]

One must not forget that in the Contingency Fees Act, it is required of the attorney to make assessment of whether the client's case carries the prospects of success before entering into a contingency fee agreement. This is what Mr Joubert did as alluded to in the main judgment and as conceded or confirmed by Mr Mullins SC who acted on behalf of the plaintiff on 9 February 2022. They conceded that Mr Joubert would not have accepted the instruction had the merits of the case not have been good. The concession is in line with section 2(1) of the Contingency Fees Act which provides that a legal practitioner may only enter into a contingency fee agreement with a client if he or she is of the opinion that the client has reasonable prospects of success in...