Rogers v Hendricks (1555/04) [2006] ZAWCHC 43; [2007] 2 All SA 386 (C) (15 September 2006)

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[2006] ZAWCHC 43
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Rogers v Hendricks (1555/04) [2006] ZAWCHC 43; [2007] 2 All SA 386 (C) (15 September 2006)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
“REPORTABLE”
CASE NO: 1555/04 & 9471/06
In the matter between:
SHAMIELA ROGERS
Plaintiff / Applicant
and
CASSIEM HENDRICKS Defendant / Respondent
REVIEW OF TAXATION JUDGMENT DELIVERED 15 SEPTEMBER 2006
Goso AJ
[1] This matter comes to me by way of review. On 19 October 2004 Mr
Van Gend of Coulters, Gend and Kotze, Claremont, Western Cape
gave
instructions to Advocate Whitehead of Huguenot Chambers, Queen
Victoria Street, Cape Town to represent his client Mrs S Rogers,
in a
High Court action set down for March 2005.
[2] Mr Whitehead and Mr Van Gend came to an agreement that Mr
Whitehead would represent Mrs Rogers without charging fees on
condition
that if she becomes successful in her action, only then
would he charge his normal rate.
[3] Mr Whitehead represented Mrs Rogers during the trial. On 15 June
2005 Allie J granted judgment in favour of Mrs Rogers and the
defendant was ordered to pay costs. Accordingly after the trial Mr
Whitehead prepared a fee list which he forwarded to Mr van Gend
who
later informed him that the defendant’s attorney was objecting to
the inclusion of his fees to the costs award on the grounds
that he
was representing plaintiff on a
pro bono
basis. On February
2006 a bill of costs was presented to the Taxing Master and the
defendant’s attorney objected again on the same
grounds.
[5] On 14 February 2006 Mr Nacerodien, defendant’s attorney wrote
to the Secretary of the Bar Council seeking a ruling on whether
Mr
Whitehead was entitled to claim fees in view of the fact that he had
not signed any contingency agreement and also in view of
the fact
that he had informed the court during the trial that he was acting on
a
pro bono
basis.
[7] After inviting representation from Mr Whitehead the Cape Bar
Council on 21 April 2006 condoned Mr Whitehead’s failure to
sign a
contingency agreement and the question whether Mr Whitehead was
entitled to claim fees was left for determination by the Taxing
Master.
[8] On 31 May 2006 the Taxing Master disallowed Mr Whitehead’s fees
on the basis that he had declared in court that he was acting
pro
bono
and he did not sign a contingency fee agreement with
plaintiff.
[9] The Taxing Master’s ruling has now been brought on review. It
has been submitted by Mr Nacerodien on behalf of the defendant
that
the Taxing Master misdirected himself in finding that acting
pro
bono
excludes the right to claim fees. It has also been submitted
that he further misdirected himself by failing to have regard to the
fact that although Mr Whitehead failed to countersign the contingency
agreement, it had always been his intention and plaintiff’s
attorney’s intention throughout the trial to act on a contingency
fee basis.
[10] The issues to be determined are whether it is permissible to
charge fees on a contingency fee basis after rendering service
on a
pro bono
basis. It must also be determined whether failure to
countersign a contingency fee agreement disqualifies counsel from
claiming fees.
[11] The Contingency Fee Act, 66 of 1997 (“the Act”) was enacted
in order to promote access to the courts by allowing citizens
who do
not have financial means, to take their disputes to court so that
they may be resolved in a peaceful manner without resorting
to self
help.
[12] In terms of section 2(1) of the Act a legal practitioner may
enter into an agreement with a client not to charge any fees for
services rendered in respect of legal proceedings unless the client
is successful in the action. Section 3 of the same Act prescribes
that a contingency fee agreement shall be in writing and shall be
published in the Government Gazette after consultation with the
relevant attorneys’ and advocates’ profession.
[13] Section 3(2) of the Act provides as follows:-
“
A contingency fee agreement shall be signed by the client
concerned ………,………………….and the attorney
representing
such client and, where applicable, shall be
countersigned by the advocate concerned, who shall thereby become
a party to the agreement”
[14] It is apparent from section 3(2) and (4) of the Act that the
meaning and purpose of a contingency fee agreement must be explained
to the client before it is entered into and a signed copy must be
delivered to the client concerned on the date on which it is signed.
In terms of section 5 of the same Act all grievances concerning
chargeable fees must be referred for review to the professional
bodies
which regulate the profession or to a person designated by the
Minister of Justice and Constitutioanl Development.
[15] It was the function of plaintiff’s attorney to explain to
plaintiff the meaning and purpose of the contingency fee agreement
including the amount payable. Such an agreement should have been
sanctioned by the Cape Bar Council. It should have also been
countersigned
by Mr Whitehead and delivered to plaintiff as soon as
it was signed. The existence of the agreement must be disclosed to
the court
and other litigants. In his representation Mr Whitehead to
the Cape Bar Council admitted his non-compliance with the
aforementioned
requirements.
[16] Rule 5.12.4.3 of the Uniform Rules of Professional Ethics in
respect of
pro bono
work at the Cape Bar permits a member who
has spent time rendering services on a
pro bono
basis to
ultimately receive payment pursuant to a contingency fee agreement
once the action is successful.
[17] I have to determine whether the Taxing Master was correct in
exercising his discretion against allowing counsel’s fees
notwithstanding
the fact that the body which regulates Mr Whitehead’s
profession condoned his failure to comply with its own rules of
ethics which
are similar to the relevant provisions in the Act.
[18] In view of the fact that the Cape Bar Council is the body which
receives complaints arising from the implementation of the
Act, its
preparedness to grant condonation of a breach of its own rules is a
significant yardstick for measuring the seriousness
of Mr Whitehead’s
transgression and potential prejudice to both litigants who have in
any event not lodged any complaints.
[19] Courts are reluctant to interfere with the exercise of a
discretion by the Taxing Master unless it is shown that he has acted
on a wrong principle or if he was clearly wrong. The court will not
interfere on this ground alone, it will only do so if it is convinced
that it is in the same position as the Taxing Master to determine the
issues or if it is in a better position to do so.
See:
Legal and General Assurance Society Ltd v Lieberam NO
1968
(1) SA 473
(A) at 478 G.
[20] The Taxing Master was wrong in disregarding the fact that Mr
Whitehead was not precluded from receiving payment on the basis
of a
contingency agreement, even if he initially acted
pro bono
if
ultimately the action is successful and there is a costs order
awarded in favour of his client
.
[21] In view of the fact that the Cape Bar Council condoned Mr
Whitehead’s failure to countersign the contingency fee agreement,
the Taxing Master ought to have adopted a more lenient view unless
there was specific reason for not doing so. In the absence of
a
grievance lodged by client, an objection by defendant’s attorney
based on a misconception of how the
pro bono
system works
alone, does not justify disallowing Mr Whitehead’s fees.
[22] Promoting easy access to the courts is consistent with the
rights enshrined in section 34 of the constitution of the Republic
of
South Africa Act 108 of 1996 (“the constitution”). It is
fundamental in a democratic society that those who do not have means
should be able to have their disputes resolved before courts. Such an
approach ensures peaceful resolution of disputes without resorting
to
self help.
[23] Rendering the full realization of such a right dependent upon
delivery of a signed written agreement upon client when there
is
clear evidence that there was a verbal agreement between the parties
which manifested itself through an understanding between
the parties
throughout the trial proceedings, trumps in an unjustifiable manner a
right which is to be promoted and protected.
[24] In any event the decision of the Taxing Master is based on a
misconceived interpretation of the meaning and purport of the context
in which the term “
rendering pro bono services”
is used in
the Act and in the Cape Bar rules. Such interpretation is clearly
wrong.
In the circumstances the ruling of the Taxing Master disallowing Mr
Whitehead’s fees should be set aside.
Therefore the following order is made:-
The application for review of the ruling of the Taxing Master is
hereby upheld, and items 214,215,216 and 217 are hereby allowed
In terms of Rule 48(7) the defendant is ordered to pay plaintiff a
sum of R 230 as costs for the review.
...……………………….
GOSO, AJ
I agree
___________________
FOURIE, J
It is so ordered