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[2022] ZAMPMBHC 33
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Mucavele v Health MEC Mpumalanga (3352/2016) [2022] ZAMPMBHC 33 (16 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION (MAIN SEAT)
CASE
NUMBER 3352/2016
Reportable:
NO
Interest
to other Judges: NO
16
May 2022
THOBILE
KHETHIWE MUCAVELE
PLAINTIFF
Obo
MPHO SIBONISO MUCAVELE
And
THE
MEC FOR HEALTH, MPUMALANGA
DEFENDANT
(Registration
number: 2013/214353/07)
JUDGMENT
IN RE: APPLICATION FOR LEAVE TO APPEAL
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 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 Fee
s
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
Fee
s
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 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 Fee
s
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
Fee
s
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 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
c
lient 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”.
[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
Fee
s
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 Fee
s
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 the
proceedings.
[12]
It is therefore a requirement that before entering into any fee
agreement, a full and proper assessment of the client’s
prospects of
being
successful in the
litigation
should be undertaken. This was clearly spelled out in
Tjadi v Road Accident Fund and two similar case
2013 (2) SA 632
(GSJ) at para 16.
An assessment envisaged in section 2(1), will
place the legal practitioner in a position to determine the nature of
the issues
in matter, the complexity and the expected volume of work.
Having done the assessment as indicated in the
main judgment, failure by Mr. Joubert to enter into a fee agreement
that complies
with the Contingency Fees Act, is therefore
inexplicable.
It is for this reason too
that I hold that
there are no prospects of success on appeal.
The
interest of the minor child in question and alleged denial of the
plaintiff’s costs
[13]
In paragraph 105 of the main judgment it is held that “
the
interest of the child is at stake. Whilst the fee agreement between
the plaintiff and her attorney is illegal in whatever
way
one looks at it, the agreement between the plaintiff
and defendant remains intact”.
Then, in paragraph 106.1 of
the court order, is stated:
“
106.1 The court
declines to make paragraphs 1 to 4.3 of the draft order an order of
court due to the illegality of the fee agreement
concluded between
the plaintiff and her attorneys as set out in this judgment
and
due to the fact that the request to make settlement agreement an
order of court has been pre-maturely brought for consideration
contrary to paragraph 15 of this Division’s Practice Directive
as amended”
.
[14]
Mr Hellens SC argued this ground of appeal under the discussion, as
if it was his ace card in
the application for leave to appeal. But he
did so without making reference to paragraph [105] of the main
judgment. Similarly,
Mr Hellens SC in his submission made no
reference to what is stated in paragraph 106.1 of the court order in
particular, the underlined
part thereof as indicated in paragraph 12
above. Instead, he only dealt with the first part of order in
paragraph 106.1.
[15]
Rule 41(4) of the Uniform Rules of Court provides that unless such
proceedings have been withdrawn,
any party to a settlement which has
been reduced to writing and signed by the parties or their legal
representatives
but which has not been carried out, may apply for
judgment in terms thereof on at least five days’ notice to all
interested
parties
.
[16]
As a start, no such application for judgment in terms of the
settlement on at least five days’
notice to all interested
parties was made. Secondly, paragraph 15 of this Division Practice
Directive referred to in paragraph
106.1 of the order, is very
clear. In supplementing rule 41(4), paragraph 15.6.3 of the
Directive provides that when a matter
is enrolled on the settlement
roll upon failure to carry out the terms of the settlement agreement
between the parties, only the
innocent party, his or her legal
representative shall appear and be entitled to costs of the
application and appearance provided
a consent letter from the other
party confirming the settlement agreement as draft thereof is
provided and that the defaulting
party tenders costs of the
application and appearance for judgment based on the settlement
agreement
.
[17]
On the other hand, paragraph 15.6.4 provides that should the other
party refuse to provide such
a letter or to tender costs for the
application, the defaulting party or his or her legal representative
shall be obliged to attend
court on the date of the hearing of the
application for judgment in terms of sub-rule (4) of rule 41 and
shall run the risk of
forfeiture of appearance fee and special costs
order relating to the application in question including payment out
of own pocket.
[18]
Paragraph 15.8 of the Practice Directive deals with compliance with
section 4(1) of the Contingency
Fee
s
Act.
This
matter was laid before me not as
application in terms of rule 41(4), neither was it a matter laid
before me in terms of section
4(1) of the Contingency Fee
s
Act. Paragraph 106.1 of the order which is now the subject of the
attack has to be seen in context. Paragraph 15.8 of the Practice
Directive provides that as contemplated in section 4(1) of the
Contingency Fee Act, no offer of settlement made to any party who
has
entered into a contingency fee agreement, may be accepted unless
after the legal practitioner has filed an affidavit with the
court
stating what is required in terms of subsection (1) (a) of section 4
if the matter is before the court.
[19]
When t
his matter was initially laid
before me, it could not have been so laid in terms of section 4(1)
read with paragraph 15.8 of the
Practice Directive because
throughout, it was the contention of the plaintiff’s attorney
that no contingency fee agreement
was
concluded. So,
in
whatever way one looks at it, approaching
this
court as the plaintiff did, was pre-mature as indicated in paragraph
106.1
of the main judgment and this is also
relevant to the alleged misdirection by the court in not making an
order of costs in favour
of the plaintiff.
[20]
In any case, rule 41 (1)(b) of the Uniform Rules of courts provides
that a consent to pay costs
referred to in paragraph (a),
shall
have the effect of an order of court for costs,
which rule, the
Taxing Master will take into account when bill of costs on a party
and party scale is submitted to him or her.
I therefore come to the
conclusion that on this ground of appeal too, there are no reasonable
prospects of success. I now
turn to the last issue.
The
conduct of the Attorney, Mr Joubert
[21]
Mr Hellens suggested that it was inappropriate to deal with the
conduct of Mr Joubert after he
has indicated in his affidavit that
the issue of reservation, qualifying and preparation fees for experts
has become moot. When
he was referred to the quotation in paragraph
[94] of the main judgment read with paragraph [91] and [84] thereof,
he concluded
by saying it was up to the court to decide whether or
not to report Mr Joubert to the Legal Practice Council. The initial
contention
by Mr Hellens SC was almost like there was nothing wrong
which Mr Joubert did. In the main judgment I dealt extensively
with
Mr Joubert’s conduct and it is not my intention to revisit
what is already held therein except where necessary seen in the
context of the affidavits now filed by the experts.
[22]
In paragraph 106.11 of the order, the 23 or 24 experts were to file
affidavits and were directed
to deal with the issues as stated in the
order. All experts complied with the order and one is thankful to
them as they have now
spoken for themselves.
The
aspects raised by all of them, are concerning
regarding the conduct of Mr Joubert; which I find it necessary
to deal with herein insofar as Mr Helens wished to criticise the
order in the main judgment regarding the conduct of Mr Joubert.
[23]
In his affidavit deposed to on 8 February 2022, Mr Joubert alleged as
quoted in paragraph [94]
of the main judgment Of importance is the
suggestion that the orders as quoted in paragraphs [92] and [94] of
the main judgment
were brought to the attention of the plaintiff’s
experts. For example, in his affidavit deposed to 1 February 2022 and
quoted
in paragraph [93] of the main judgment, he stated that ‘
due
to the time constraints and most of the experts being extremely busy
due to the ensuing effect of the Covid pandemic, I was
not able to
obtain affidavits from each experts as directed’.
This
statement under oath gives the impression that he tried or told the
experts of the order of the court but because they were
allegedly
busy, they could not
furnish the affidavits
.
What I say herein is fortified by the statement: “
What I was
able to do is to request the final accounts from each expert”,
meaning he did talk to the experts after the order or directive
for the filing of affidavits by them, was made
.
[24]
It is these two statements which gave the court the impression that
Mr Joubert in his affidavit
of 1 February 2022 wanted the court to
believe that the experts were told of the order to file affidavits by
not later than 12h00
on 2 February 2022. The court had its own doubts
whether Mr Joubert was communicating with the experts and whether the
experts
were being told of the order which was supposed to be
complied with by 2 February 2022. It was due to this that the order
in paragraph
106.11 of the main judgement was made. This was due to
what Mr Joubert deposed to in his affidavit on 8 February 2022.
[25]
In the affidavit of 8 February 2022 quoted in paragraph [94] of the
main judgment, Mr Joubert
alluded to the fact he ‘
contacted
the experts in endeavouring to obtain affidavits as requested’.
Here he was clear. He allegedly told the experts that they were
ordered or required to file affidavits. The statement: “
They
advised me that premised on the fact that they are not charging fees
for preparation, qualifying and reservation for trial,
they are not
in a position to depose to such affidavits as it would result in them
utilising their profession time to attend thereto
and as such will
have
a costs implication
to client
”, was even more worrying that professional people
can resort to ignoring an order of court.
[26]
It was this latter statement which prompted the court during the
hearing on 9 February 2022 to
enquire from Mr Mullins SC who was
acting for the plaintiff at the time whether the experts were
entitled to defy the court. It
was the unsatisfactory explanation
given by Mr Mullins which resulted in the order made in paragraph
106.11 of the main judgment
.
[27]
Paragraph 3.1 of the Code of Conduct
for legal
practitioners
provides that ‘legal practitioners,
candidates legal practitioners and juristic entities
shall
maintain the highest standards of honesty and integrity.
’
Paragraph 3.3.4
thereof provides that
the conduct of legal practitioners shall subject always to the
maintenance of the ethical standards prescribed
by the code of
conduct and any ethical standards generally recognised by the
profession.
[28]
The synonyms of “integrity” referred to in paragraph 3.1
of Code of Conduct as I
see it, is honesty, uprightness, honour, good
character, principles, ethics, morals, righteousness, scrupulousness,
sincerity,
truthfulness etc. On the other hand, in terms of
paragraph 3.5 of the Code of Conduct, legal practitioners shall
refrain
from doing anything in a manner prohibited by law or by the
code of conduct which places or could place them in a position in
which
client’s interest conflict with their own or those of
other clients.
[29]
I now turn to deal with the affidavits deposed by the experts as per
paragraph 106.11 of the
order of 17 March 2022. The affidavits were
apparently settled and deposed to with the assistance of the
plaintiff’s attorney.
I say so because the affidavits are
similar in articulation and they were all filed by Mr Joubert
himself. All the 23 expert’s
affidavits deal with paragraph
106.11.3 of the order which requires of the experts to indicate
whether the directive quoted in
paragraph [92] of the main judgment
was ever brought to their attention by Mr Joubert and if so why they
did not comply therewith.
In so doing, they
were
also required to
have regard to
the assertions made by Mr Joubert in paragraphs [93] and [94] of the
main judgment.
[30]
As a start, all the experts for the first time spoke for themselves
under oath, and all of them
deposed to the fact that the directive
quoted in paragraph [92] of the main judgment was never brought to
their attention. The
effect of these assertions by all the 23 experts
suggest that Mr Joubert under oath was not telling the truth in his
affidavits
of 2 and 8 February 2022 as quoted in paragraphs [93] and
[94] of the main judgment. I am however not making a final
determination
in this regard. It is
for
the Legal Practice Council to do so. In addition, all the
experts who had filed the affidavits as per the order in paragraph
106.11.3
of the main judgment, stated that the questions as quoted in
paragraph [84] of the main judgment were never brought to their
attention.
[31]
Lying under oath is a criminal offence. Giving misleading information
which have now been clarified
by the experts is of a grave concern to
this court. This is not an issue that can be ignored. It is necessary
that what has now
been clarified by the experts regarding Mr
Joubert’s earlier assertions under oath should be brought to
the attention of
the Legal Practice Council to investigate and take
such professional action as the Council may deem fit. It is not for
this court
to make a final determination on the conduct of Mr
Joubert.
Further
issues of concern clarified in affidavits of some experts
[32]
There is another issue which is also of grave concern to this court
as so clarified by the experts.
As it would appear from the main
judgment, Mr Joubert initially asserted entitlement to fees of
experts for preparation, consultation
and reservation of the 23
experts. This assertion of entitlement was based on his email of 9
September 2021 which was sent to all
the experts who had previously
provided medico-legal reports. This appears in his affidavit deposed
to on 24 January 2022 in particular
paragraph 21.1 thereof. According
to Mr
Joubert
, as his practice, he
notifies all relevant parties to a matter the moment he receives a
trial date. He does not issue subpoenas
against his own experts
unless such experts refuse to attend court. According to Mr Joubert
in his affidavit of 24 January 2022
all experts were reserved and all
experts “
accepted the reservation
and
undertook
to make themselves available to testify”.
[33]
His assertions in this regard under oath has to be seen in the
context of what the experts have
now clarified in their affidavits. I
will not refer to all of them but to the affidavits of some of the
experts. Dr Juter, a clinical
psychologist in his affidavit deposed
to on 6 April 2022 alluded to the fact that he was not consulted by
the plaintiff’s
legal practitioners for trial or pertaining to
their schedule of costs. He did not prepare for trial after
completion of his report.
Dr Onselen, Ophthalmologist in his
affidavit deposed to on 10 April 2022 also says the same and so is
the same story by other experts
; a
ll of
them asserting to the fact that they were never reserved or consulted
for trial.
[34]
Ms Lourens for example, in her affidavit deposed to on 5 April 2022
alludes to the fact that
when she usually receives notification of
trial dates from Mr Joubert, he does not or they do not make specific
reference to reservation.
All what she does is to take note of the
date, but she does not reserve herself. Then in paragraph 3.3 of her
affidavit she states:
“
In light of the
fact that I had not heard from Mr Joubert again after delivery of my
report, I assumed that I could not be needed
at the trial”.
[35]
This clearly contradicts Mr Joubert’s suggestion that all
experts were reserved after having
informed them of the date of trial
and that all experts “
accepted the reservation and undertook
to make themselves available to testify”
as is his practice
in dealing with the experts. The statement was apparently made in
order to convince the court
to authorise
reservation,
consultation and preparation fees for all experts, even in
circumstances where it was not justified. As indicated
in the main
judgment, once such authorisation is made, all what would be left for
the Taxing Master is to determine the reasonableness
of fees and not
who is entitled to fees as such entitlement would have been
authorised by an order of court even in circumstances
not justified
for such an order.
[36]
I find it difficult to understand Mr Joubert in his dealing with this
court. On Tuesday, 5 April
2022 at 13:41 he caused an email to be
sent to Professor Coetzer, a plastic and reconstructive and aesthetic
surgeon. In the email
he stated as follows:
“
Kindly inform
to us if Prof Coetzee would be able to assist us with a medico-legal
report for client.
Kindly note that we
need to file reports by the 16
th
April 2021.
We hereby look forward
to your urgent response”.
[37]
I take it reference to 16
th
April 2021 was meant to be
16
th
April 2022. But why a medico-legal report should be
filed as per the email of 5 April 2022 to Prof Coetzer
,
only Mr Joubert knows. The matter was long settled and judgment was
handed down on 17 March 2022 with an order requiring the experts
to
file affidavits and not reports as per paragraph 106.11 of the order.
I suspect it is for this reason that on the same day of
the email to
Prof Coetzer an affidavit was deposed to. Of relevance, Prof Coetzer
stated in his affidavit:
“
On 9 September
2021 I was informed by VZLR Attorneys that the matter had been set
down for trial on 22 November 2021.
No formal instruction
to reserve myself for trial was accompanied
, and I merely
took note of the trial date and did not reserve myself for same in
accordance with normal protocol and arrangement
in my medical-legal
practice”.
[38]
Here gloves are off. What Mr Joubert asserted was his practice, that
is, he informs the experts
of the date of trial and by so doing they
are all reserved or they reserve themselves is clearly contradicted
by Prof Coetzer.
It was Mr Joubert’s asserted practice that
worried me from the onset and thus further enquiries as it appears in
the body
of the main judgment. In paragraph 3.4 of his affidavit,
Prof Coetzer states: “
In the light of the fact that I had
not heard from Mr Joubert to the contrary, I assumed that I would not
be needed at the trial”.
[39]
Professor Coetzer like all other experts alluded to the fact M
Joubert never drew his attention
to questions posed in paragraph [84]
of the main judgment and the directive quoted in paragraph [92] of
the judgment. He then concluded
by apologising for not having filed
the affidavit by 4 April 2022 as the main judgment only came to his
attention late. He also
stated in paragraph 6 of his affidavit that
as he understands the main judgment, VZLR Attorneys may not be able
to recover fees
and disbursements in the matter by way of the nature
of the order given and that in such an instance he was more than
willing to
write off his charges for the convenience of the parties
concerned. The point I make is that the conduct of Mr Joubert should
further
be reported to the Legal Practice Council.
Application
in terms of rule 12
[40]
The attorneys for the plaintiff applied to intervene in this
application for leave to appeal
as contemplated in rule 12 which
provides that any person entitled to join as plaintiff or liable to
be joined as a defendant in
any action may on notice to all parties,
at any stage of the proceedings apply for leave to intervene as a
plaintiff or a defendant.
The court may upon such application, make
such order, including any order as to costs and give such directions
as to further procedure
in the action as to it may deem meet.
[41]
Seen in the context of the order made by this court in the main
judgment, I have no problem in
granting the application and is
accordingly so granted. As regards to the issue of costs, in
this application for leave to
appeal, the defendant did not
participate. I therefore find no need to make a costs order regarding
the application in terms of
rule 12.
Application
in terms of section 18 (2) and (3) of the Superior Courts Act
[42]
Subsection (2) of section 18 of the Superior Courts Act provides that
subject to subsection (3)
unless the court under exceptional
circumstances order otherwise, the operation and execution of a
decision that is an interlocutory
order not having the effect of a
final judgment, which is the subject of an application for leave to
appeal or an appeal, is not
suspended pending the decision of the
application or appeal.
[43]
One can therefore accept is common cause that the nature of the court
order appealed against
is interlocutory and thus the reason for the
present application in terms of section 18(2). The plaintiff has been
caused, I want
to believe through the advice of her attorney of
record to depose to an affidavit regarding the application in terms
of section
18 (2) of the Superior Courts Act. In paragraphs 5.1, 5.2
and 5.3 of her affidavit, she states as follows referring to the
order
in the main judgment:
“
5.1
It does not award party and party costs in favour of my disabled
child’s successful
claim against the defendant.
5.2
It does not ensure the best interest of my minor child where I had
entered into
an agreement to only pay the reasonable fees of the
attorney and not a higher fee.
5.3
It prevents the timeous establishment of the trust and requires the
trust to
be established by a new attorney with costs I cannot
afford.”
[44]
Starting with the latter ground, first, it is not clear what is the
basis on which new attorney
will charge costs which the plaintiff
cannot afford. It is expected that the nature of the work to be done
by the new attorney
would be exactly within the scope of work that
would have been done by Mr Joubert in the establishment of a trust as
so proposed
in the draft order. Furthermore, the statement “costs
I cannot afford” is made as if Mr Joubert agreed on any fee
with
the plaintiff and as if the plaintiff is capable of paying any
amount of money without relying on the capital amount. The
plaintiff’s
attorneys in this application for leave to appeal
state that they are willing
to stand in for the costs for the
appeal
. This appears to display conflict and an act of
desperation to lay their hands on the plaintiff’s capital
amount awarded.
In addition, one must be mindful of the fact that the
nature of the order made is that the fee agreement is unlawful and
unenforceable.
Meaning, the plaintiff is not obliged to pay anything
to his attorneys unless the Legal Practice Council decides otherwise.
One
wonders whether this was clearly explained to her before she
deposed to her affidavit under discussion.
[45]
The alleged prevention of the timeous establishment of a trust as the
basis for the application
in terms of section 18, is also a statement
boggling one’s mind. The appeal process to the Supreme Court of
Appeal for which
the attorneys for the plaintiff are willing to foot
the bill, is likely to take much longer time than allowing the order
made by
this court to take its course. The plaintiff or her attorneys
must not forget that exceptional circumstances have to be shown
before
an order to suspend the operation of interlocutory order can
be granted as envisaged in subsection (2) of section 18.
[46]
As regards the ground that the order made does not award party and
party costs in favour of the
plaintiff’s disabled child’s
successful claim against the defendant, a finding has already been
made earlier in paragraphs
[13] to [20] of this judgment. Even
if I was to be wrong with regard to the finding I made therein, this
court would in any
event be entitled to invoke the provisions of rule
42 (b) or (c).
[47]
Sub-rule (b) of rule 42 in question provides that the court may, in
addition to any other powers
it may have,
mero motu
–
rescind or vary an order or judgment in which there is an ambiguity
or a patent error or omission, but only to the extent
of such
ambiguity, error or omission. Now seen in the context of paragraph
105 of the main judgment read with paragraph 106.1 of
the order, this
court would be seized with the powers to invoke the provisions of
paragraph (g), should it have become necessary
to do so. The
nature of the order made by this court in essence and also as it
appears to be common cause, is interlocutory.
When the matter is
again laid before me as is so envisaged in the order, such an order
with regards to costs may still be made.
I therefore find that no
exceptional circumstances have been established regarding the
application in terms of section 18 (2).
[48]
Turning to the other ground of the application in terms of section 18
(2), it is interesting
that the issues of paying reasonable fees of
the attorney and not a higher fee, is raised again in paragraph 5.2
of the plaintiff’s
affidavit referred to in paragraph [43]
above. This issue has been dealt with in the main judgment. Judging
by the statement made
by Mr Hellens SC quoted in paragraph [2] of
this judgment, it looks like the plaintiff’s attorney still
sees nothing wrong
with the structure and content of the fee
agreement they relied on. It is for this reason that I find it
necessary to deal with
other case law relevant to the issue at hand.
I do so despite the fact that I am dealing with an application in
terms of section
18(2) where the issue of reasonable fees is alleged
and is used as the basis for the suspension of the order made by this
court.
[49]
The Contingency Fee Act provides an incentive for legal practitioner
concerned by allowing him
or
her
to
charge an increased fee
[1]
.
This
Act
is not intended to be a licence to plunder up to 25% of any award
paid to a client who had entered into a contingency fee agreement,
and who is usually indigent
[2]
.
[50]
The purpose of the Act is to enhance access to justice by enabling
litigants who would otherwise
not have been able to afford it, to
engage the services of
a
legal
practitioner
[3]
. The plaintiff
is one such litigant. Contingency fee agreements facilitate access to
justice as they enable litigants to obtain
legal representation to
prosecute their claims where
the
litigants
may
otherwise have been unable to do by reason of the prohibitive costs
of litigation. However, such agreements carry with them
the inherent
risk of abuse and the incentive to profit. The undesirable features
of contingency fee agreements were expressed in
other case law
[4]
.
[51]
The first is that they (referring to contingency fee agreements)
compromise the lawyer’s
relationship with his clients by
introducing conflicts of interest, and have a high risk of abuse.
Contingency fee agreements vest
the legal practitioner with financial
interest in the outcome of the case, which may adversely affect a
legal practitioner’s
ability to give dispassionate and unbiased
advice to clients at the different stages during the proceedings. The
second feature
is that a contingency fee agreement gives a legal
practitioner a material financial interest in the outcome of the
litigation,
and an overriding desire to secure a successful outcome,
may tempt him or her into practices which may compromise his or her
duties
to the court, such as coaching witnesses, misleading the
court, falsifying evidence, etc
.
[5]
[52]
The facts of the present case as indicated in the main judgment and
this judgment after the experts
had filed affidavits show features of
that conflict and abuse as articulated in the case law referred to
above. This fortifies
the statement that ‘unregulated
contingency fee agreements have the potential for earnings by legal
practitioners which are
excessive and disproportionate to the labour
and risk invested. This will negatively impact on the public
confidence in the legal
system. The legislature was clearly conscious
of the risk of exploitation when it legitimated contingency fee
agreements. What
the Act therefore sets out to do is to carefully
regulate the extent to which a legal practitioner may agree with his
or her
client
for
payment of fees
[6]
.
[53]
Prior to the passing of the Act, contingency fee agreements were
deemed to be
contra
bonos mores
and were prohibited at common law. They can now only be entered into
in accordance with the provisions of the Act. Due to the risk
of the
abuse attendant to contingency fee agreements, it is trite that the
intention of the legislature is that contingency fee
agreements must
be carefully and strictly controlled
[7]
.
[54]
The contingency fee agreements are accordingly subject to judicial
oversight and intervention.
This is consistent with the right vested
in the costs at common law to determine
the
propriety of any agreement entered into between an attorney and his
client with regard to fees. The authority of the court to
set
aside
a fee agreement is founded upon considerations of the court over the
conduct of its own officers and of the court’s
right and
reputation
[8]
.
(My emphasis).
[55]
The contingency fee agreement that is not covered by the
Contingency
Fees
Act,
or which does not comply with the requirements
stipulated
therein
,
is invalid
[9]
. Therefore,
whatever way one looks at facts of the present case, the fee
agreement concluded between the plaintiff and Mr Joubert
constituted
a contingency fee agreement and is invalid at common and for
non-compliance with the requirements of the Contingency
Fee
s
Act. This then brings me to deal with the suggestion that the
suspension of the order in main judgment must be granted because
the
attorney and client agreed to charge a normal or reasonable fee. This
appears in paragraph 5.3 of the plaintiff’s affidavit
quoted in
paragraph [43] of this judgment
[56]
The point of departure of any enquiry into the enforceability of an
agreed contingency fee is
therefore the base fee which the
Contingency
Fees
Act
requires
to be the attorney’s normal fee that must be set out in the
agreement
[10]
.
In the present case, no normal fee has been specified as an hourly
rate or as a global fee during 2006 when the mandate was first
accepted. Furthermore, nothing to this effect is said in any of the
affidavits filed to date by the plaintiff and her attorney.
Section 1
of the Contingency Fee
s
Act
seeks to define such “normal fees”. On the reading of
section 2 and the definition of “normal fees”
in section
1, it is clear that the base fee must be a fee that is reasonable for
the services of the practitioner. Consistent with
the common law
position, it establishes “reasonableness” of the standard
by which the base fee must be judged. A reasonable
fee is a fee that
is fair. A fee is fair if it is appropriate for the work performed by
the practitioner
and
falls within a range of fees that is usually charged for the same
work.
On a reading of the definition of “normal fees” in
section 1 of the Act, this is exactly what the legislature had in
mind
[11]
. That range of fees
despite the opportunity to do so has not been defined or spelled in
the present case and the plaintiff is effectively
in the dark
regarding what would be chargeable by her attorney once the capital
amount is paid.
[57]
The fact that the reasonableness of the base fee is assessed in the
absence of a contingency
fees agreement as the plaintiff seeks to
convey, does not make the fee agreement not to be a contingency fee
agreement governed
by the Act. What it means is that unlike in a case
of an express or implied agreement in respect of fees where the
starting point
of the court’s analysis is the agreed fee, the
determination of the practitioner’s normal fee in terms of the
Act is
an independent valuation of a reasonable fee. It is not
necessary for the normal fees in the contingency fee agreement to
reach
a degree of unreasonableness to the extent that it would amount
to overreaching and unprofessional conduct on the part of the legal
practitioner concerned before it constitutes unreasonable fee for the
purpose of the Act. In other words, a determination of the
reasonableness of the base fee is separate from the ethical basis of
the right of judicial intervention in fee agreements between
an
attorney and his client where the enquiry is focused on the extent of
the unreasonableness of the fee so as to constitute abuse,
impropriety, or overreaching and therefore unprofessional
conduct
[12]
.
[58]
So, the suggestion that the order made by this court does not ensure
the best interest of the
minor child where a fee agreement is to pay
only the reasonable fees of the attorney and not a higher fee and
nothing more, should
be seen as being subject to an abuse. I say so
because despite the opportunity at their disposal, the plaintiff’s
attorneys
to date elected not to disclose their hourly fee rate or
fixed fee rate or estimation thereof. This is where an oversight
occurred
and
intervention of the court is required.
[59]
A determination of the reasonableness of the attorney’s normal
fees for purposes of the
Contingency
Fees
Act
therefore requires an objective assessment of what is appropriate in
the circumstances of a particular case. Factors to
be
considered with regard to the nature of the work to be performed,
would amongst other things include the nature and subject
matter of
the case, its complexity and the time and effort likely to be spent
on it. Factors relevant to the practitioner who will
perform the work
may in turn include amongst others, experience, the skills level and
expertise that is required to perform the
work in question and fees
charged in jurisdictional area by practitioners with comparatively
the same level of skill and expertise.
The relevance of any of these
factors and weight to be given thereto, will be
determined
by
the facts and circumstances of any particular case and the aim of
achieving a measure of consistency and certainty in the determination
of the reasonableness of the fee charged
[13]
.
[60]
In the present case, the plaintiff and her attorney as I said,
elected to be scanty or silent
with regards to the nature, extent and
form of their fee agreement.
This is the
approach they undertook
up to the present application, the
only thing said being the agreement “
to only pay reasonable
fees of the attorney and not a higher fee
”. What may not be
a higher fee to Mr Joubert, may actually be a higher fee amounting to
unreasonableness.
[61]
The full court in
Mkuyana
had the opportunity to deal with the
question whether the plaintiff’s attorney’s hourly fee
disclosed in the fee agreement
with the plaintiff was a reasonable
fee as envisaged in the definition of a normal fee in section 1 of
the Act. In paragraph
38 of its judgment in
Mkuyana
, the
full court stated:
“
The issue is
before us and we have been placed in a position to deal therewith to
finality. The issues have been fully ventilated
on the evidence
and the court should not lightly and without good reason refuse to
exercise its supervising duties and functions
alluded to earlier when
it is placed in a position to do so. Further, as will appear
more fully hereafter, the premise on
which the attorney proceeded to
determine his normal fee, was fundamentally flawed…
Another reason for us to decide
the matter is that the contingency
fee agreement is also invalid for other reasons which fall outside
the mandate and authority
of the professional controlling body”
[62]
The conclusion was reached as quoted above, when the full court was
dealing with the request
that the matter be referred to the Legal
Practice Council to determine the reasonableness of fees as
contemplated in section 5
of the Legal Practice Act. There was
also another request by the amicus in the matter wherein the court
was asked to refer
the matter to the Taxing Master to determine the
reasonableness of the fee in accordance with the full court judgment
in
Mkuyana.
[63]
In the main judgment regarding the present case, the issue was not
referred to the Taxing Master
because the agreement was found to be
illegal and unenforceable. It was instead referred to the Legal
Practice Council after
having made a finding that the agreement was
illegal.
[64]
I am unable to understand why it is said the order does not ensure
the best interest of the minor.
Paragraph 105 of the main judgment
read together with the order made in relation thereto seeks to take
care of the interest of
the minor child. This application and pursuit
of the appeal that might follow can only serve to frustrate payment
of the capital
amount in the interest of the minor child. In fact,
what is not in the interest of justice is the appeal process,
in
particular, the manner in which it
is being pursued. The
application in terms of section 18(2) is destined to fail.
[65]
The suggestion that ‘
the capital funds be paid to different
attorneys and be administered by different trustees, especially when
these fees can only
be recouped from the funds earned for the minor
child’
in my view, makes no sense. As indicated earlier in
this judgment, the fact that the funds would be paid to attorneys
proposed
by the professional body, would make no different in terms
of costs implications. What her preferred attorney could have done
with
the funds would be the same scope of work to be done by
different attorneys as may be appointed by this court on the advice
of
the Legal Practice Council.
[66]
Similarly, the
new trustees
envisaged to be appointed wold do
the same scope of work as it would have been performed by those
recommended in the draft, unless
there is something about those
recommended by the plaintiff’s attorneys which not been
disclosed to this court. They too
will have to consider the same
voluminous papers. In any event it is expected that the trustees will
have to read every document
in the litigation. They will be confined
to administering the funds in the interest of the minor child.
Clearly, the issues relating
to different or new attorneys and or
trustees having negative effect in assisting the minor child, is
speculative with no facts
to substantiate the perceived prejudice to
the minor child.
[67]
Consequently an order is made as follows:
67.1
The plaintiff’s attorneys are hereby allowed to intervene in
these proceedings as contemplated
in rule 12 of the Uniform Rules of
Court.
67.2
Application for leave to appeal regarding the alleged legality of the
fee agreement and an alleged
refusal to make an order for costs as in
paragraph 106.1 of the court order, is hereby dismissed as there are
no reasonable prospects
of success and there are no some other
compelling reasons why the appeal should be heard.
67.3
The application in terms of section 18(2) read with subsection (3)
thereof is hereby dismissed as neither
the plaintiff nor her
attorneys succeeded in showing exceptional circumstances and failure
to show that the plaintiff will suffer
irreparable harm if the court
order granted on 17 March 2022 is not suspended.
67.4
The order of 17 March 2022 remains operative and valid and must
therefore be complied with as is not
suspended and any petition to
the Supreme Court of Appeal shall not affect
its
operation and effectiveness.
67.5
The
Registrar of this court is hereby directed to bring a copy of
this judgment to the attention of the Legal Practice Council both
National and Provincial to consider further investigating Mr Joubert
seen in the context of the affidavits provided by the experts
in line
with paragraph 106.11 of the order in the main judgment and also seen
in the context of the order in paragraph 67.4 above.
67.6 No order as to
costs is made as the defendant did not participate in this
application for leave to appeal.
LEGODI
JP
DATE
OF HEARING: :
13 April 2022
DATE
OF JUDGMENT : 16 May 2022
FOR
THE APPLICANT
ADV HELLENS SC / ADV VENTER
INSTRUCTED
BY VZLR
INC
THE PINNACLE BUILDING
TEL: 012 435 9444
3
RD
FLOOR, 1
PARKIN STREET
MBOMBELA
REF:
W LOUW
Email:
willeml@vzlr.co.za
FOR
THE DEFENDANT :
NO APPEARANCE
ADENDORFF THERON INC
MBOMBELA
REF: DCU RAATH /
ES/C00539
TEL: 013 752 3902
Email:
dricus@adendorffs.com
[1]
Nowetu
Mkuyana v Road Accident Fund (case number 4000/2017) ZAECGHC 4/2016
[2]
Erasmus
v Williams 2016 JDR (ECG 3364/2016, 8 December 2016 at para [13];
see also Mathimba v Nontuba
2019 (5) SA 530
(ECG) at para [101]
[3]
See
Mkuyana
supra
at para 14
[4]
See
Mkuyana at para 15
[5]
2013(2)
SA 583 (GNP)
[6]
See
para 16 in Mkuyana supra
[7]
See
para 20 in Nkuyana and the case law cited therein
[8]
Cambridge
Plan AG v Cambridge Diet (Pty) Ltd
1990 (2) SA 574
T 600- A-E and
Muller v The Master and others
1992 (4) SA 277
(T) at 284 B-C, see
also para 21 in Mkuyana supra
[9]
Ronald
Boshoff & Partners Inc v De Le Guerre
2014 (3) SA 134
(CC);
Masango v RAF 2016(6) 508 (GT) at para (1); Fluxmans Inc v Levenson
2017 (2) SA 520
(SCA); Mostert and Others v Nash and Another 2018(5)
SA 409 (SCA) at para (54); Mfengwana v RAF 2017 (5) SA Nash (ECG) at
para
[12]; and Mathimba and others v Nonxuba and others
2019 (1) SA
591
(ECG) at para and also see para 22 in Mkuyana supra.
[10]
See
para 30 in Nkuyana
supra
[11]
See
para 31 in Mkuyana
supra
[12]
See para 34 in Mkuyana
supra
[13]
See
para 35 in Mkuyana
supra