De Bod v Road Accident Fund (A55/2025) [2025] ZAGPPHC 1157 (7 November 2025)

82 Reportability
Legal Practice

Brief Summary

Contingency Fees — Validity of contingency fee agreement — Appeal against the declaration of invalidity of a contingency fee agreement between the plaintiff and his attorney for non-compliance with the Contingency Fees Act 66 of 1997 — Legal practitioners may only recover fees within the limits set by the Act, specifically that a success fee must not exceed 25% of the total amount awarded — The court held that the agreement in question did not comply with the Act and was therefore invalid, dismissing the appeal.

Comprehensive Summary

Case Note


De Bod v The Road Accident Fund

[2025] ZAGPPHC 1071

Heard on: 9 October 2025

Delivered on: 7 November 2025


Reportability


This case is reportable as it addresses critical issues concerning the validity and interpretation of contingency fee agreements under the Contingency Fees Act 66 of 1997. The judgment clarifies the limitations imposed by the Act on the legal fees that practitioners can charge their clients when entering into such agreements. The significance of this case extends beyond the immediate parties involved; it establishes crucial legal precedents for future contingent fee agreements and the responsibilities of legal practitioners in complying with statutory requirements.


Cases Cited



  1. Price Waterhouse Coopers Inc and Others v National Potato Co-operative Ltd 2004 (6) SA 66 (SCA)

  2. De la Guerre v Ronald Bobroff & Partners 2013 JDR 0213 (GNP)

  3. Thulo v Road Accident Fund 2011 (5) SA 446 (GSJ)

  4. Masango v Road Accident Fund 2016 (6) SA 508 (GJ)

  5. Mkuyana v Road Accident Fund 2020 (6) SA 405 (ECG)

  6. Mathimba and Others v Nonxuba and Others 2019 (1) SA 550 (ECG)

  7. Van der Westhuizen v Road Accident Fund 2024 JDR 3333 (GP)

  8. Se/lo v Road Accident Fund [2025] ZAGPPHC 1077


Legislation Cited



  • Contingency Fees Act 66 of 1997


Rules of Court Cited



  • N/A


HEADNOTE


Summary


The judgment in De Bod v The Road Accident Fund addresses the validity of a contingency fee agreement that was declared invalid by a lower court due to non-compliance with the Contingency Fees Act 66 of 1997. The appeal was dismissed, emphasizing that any contingency fee agreement that deviates from the regulations established in the Act is unlawful. The correction of misinterpretations regarding the determination of success fees and their limitations was central to the court's reasoning, ensuring that legal practitioners do not exploit the provisions of the Act to the detriment of clients.


Key Issues



  1. Whether the specific terms of the contingency fee agreement fell within the requirements of the Contingency Fees Act.

  2. The legal interpretation of what constitutes a success fee and how it should be calculated in accordance with the Act.

  3. The extent to which legal practitioners can charge fees exceeding normal fees under contingency agreements.


Held


The court found that the contingency fee agreement was invalid as it did not comply with the requirements of the Contingency Fees Act. Specifically, it was held that no attorney may recover more than 25% of the total capital amount awarded, and that the interpretation of such agreements must adhere strictly to the provisions of the Act to prevent exploitation.


THE FACTS


Fred Christian Steven De Bod entered into a contingency fee agreement with his attorney regarding a claim against the Road Accident Fund. The agreement stipulated that the attorney would charge a normal fee plus a success fee. Upon challenge, the lower court found the agreement invalid due to its terms allegedly exceeding the limits prescribed by section 2(2) of the Contingency Fees Act. The plaintiff's appeal sought to reverse this finding, asserting that the agreement was compliant with the law.


THE ISSUES


The primary legal question revolved around whether the contingency fee agreement met the requirements set forth by the Contingency Fees Act, particularly whether it improperly combined fees beyond the statutory cap of 25% of the client's awarded amount. Further inquiry was made into the interpretation of terms such as "success fee" and "normal fee" and how they should be applied within the context of the Act.


ANALYSIS


In analyzing the contractual agreement, the court scrutinized every aspect of the fee calculation as outlined within the terms. It underscored that the Contingency Fees Act specifically limits the success fee to 25% of the client's recovery. The court clarified from previous rulings that the "success fee" cannot be construed as merely an increase over normal fees, but rather must adhere to strict adherence to defined percentage limits. The judgment referenced previous case law to demonstrate that misinterpretations of the Act could lead to abusive practices by legal practitioners.


The court showcased the importance of clarity and compliance in contingent fee arrangements, emphasizing that deviations from the statutory framework not only render agreements invalid but also undermine the legislative purpose of facilitating access to justice for clients who might not otherwise afford legal representation. The conclusion reached was firm in establishing that any additional fees beyond what is permitted by the Act cannot be charged.


REMEDY


The court dismissed the appeal brought by De Bod and upheld the original court's decision that declared the contingency fee agreement invalid. There was no order for costs due to the unopposed nature of the proceedings, ensuring neither party incurred further legal expenses beyond those already incurred.


LEGAL PRINCIPLES


The ruling underscored several key legal principles:
1. Contingency fee agreements must strictly comply with the provisions of the Contingency Fees Act 66 of 1997, particularly regarding fee caps.
2. Legal practitioners are prohibited from charging more than 25% of the total amount awarded in their agreements with clients.
3. Clarity and compliance in fee agreements are imperative to ensure fair representation and to protect the rights of clients seeking access to justice.


In summary, the decision in De Bod v The Road Accident Fund acts as a pivotal reinforcement of the regulatory framework surrounding contingency fees, aimed at protecting clients and ensuring ethical practices within the legal profession.

IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETOR IA)
D EL ETE WHICHEV ER IS NOT APP LICABLE
(1) REPORTAB LE: YEStNe
(2) OF INTEREST TO O THER JUDGES · YES /Ne
(3' REVISED
DA TE: 7 Novembe r 2025
SIGNATURE:
In the matter between:
DE BOD, FRED CHRISTIAN STEVEN
A nd
THE ROAD ACCIDENT FUND
Co ram : Mngqibisa-Thusi. Nyathi et Millar JJ
H eard on: 9 October 2025
Case No . ASS /2025
APPELLANT
RESPONDENT

Delivered:
Summary:
It is Ordered :
7 November 2025 -This judgment wa s handed down electronically
by circulation to the parties' representatives by email, by being
uploaded to the CaseLines system of the GD and by release to
SAFLII. The date and time for hand-down is deemed to be 10H00 on
7 November 2025.
Contingency Fees Act 66 of 1997-s 2(1)(b) and (2)-contingency
fees agreements must comply with Act - not permissible for a legal
practitioner to recover more than 25% of the capital amount towards
fees.
'success fee' -does not attract Value Added Tax (VAT) in the same
way as 'normal fees' - the Act was not enacted to provide legal
practitioners with an alternative preferential method of determining
their fees over and above normal fees.
'normal fees' as defined in the Act remain the standard by which the
reasonableness of the fees of a legal practitioner is determined -
surcharge which is added to normal fees to make up the success fee
bears no relation to value of services rendered but is a function of risk.
ORDER
[1] The appeal is dismissed.
[2] There is no order for costs.
JUDGMENT
2

MILLAR J ( Mngqibisa-Thusi et Nyathi JJ concurring)
[1] This is an appeal against a judgment and order granted on 30 September 2024
in terms of which the contingency fee agreement entered into between the plaintiff
and his attorney was declared to be invalid for want of compliance with the
Contingency Fees Act1 (the Act).
(2) The crisp issue for determination in this appeal is whether, properly construed,
the agreement in question falls foul of the Act or not.
(3) Contingency fees agreements between legal practitioners and their clients are
prohibited by the common law and may only be entered into lawfully within the
parameters of the Act. Even though the Act is written in clear language and ought
to be readily understandable to legal practitioners, who are prepared to accept
instructions from their clients on this basis, there persists some confusion
regarding what is permitted and what is not permitted in terms of the Act.
1 66 Of 1997. The relevant section of the Act is section 2 which provides:
"2 Contingency fees agreements
(1) Notwithstanding anything to the contrary in any law or the common law, a legal practitioner
may , if in his or her opinion there are reasonable prospects that his or her client may be
successful in any proceedings, enter into an agreement with such client in which it is agreed
(a) that the legal practitioner shall not be entitled to any fees for services rendered in respect
of such proceedings unless such client is successful in such proceedings to the extent
set out in such agreement;
(b) that the legal practitioner shall be entitled to fees equal to or, subject to subsection (2),
higher than his or her normal fees, set out in such agreement, for any such services
rendered, if such client is successful in such proceedings to the extent set out in such
agreement.
(2) Any fees referred to in subsection 1 (b) which are higher than the normal fees of the legal
practitioner concerned (hereinafter referred to as the 'success fee'), shall not exceed such

practitioner concerned (hereinafter referred to as the 'success fee'), shall not exceed such
normal fees, by more than 100 per cent: Provided that, in the case of claims sounding in
money , the total of any such success fee payable by the client to the legal practitioner, shall
not exceed 25 per cent of the total amount awarded or any amount obtained by the client in
consequence of the proceedings concerned, which amount shall not, for purposes of
calculating such excess, include any costs."
3

[4) Before turning to the contingency fees agreement in issue in this appeal, an
overview of how our Courts have interpreted the Act and a setting out of the
present legal position is useful.
[5] In Price Waterhouse Coopers Inc. and Others v National Potato Co-operative Ltcfl
the scope of the Act was described as follows:
"[41] The Contingency Fees Act 66 of 1997 (which came into operation on
23 April 1999) provides for two forms of contingency fee agreements
which attorneys and advocates may enter into with their clients. The
first, is a 'no win, no fees' agreement (S2(1)(a) and the second is an
agreement in terms of which the legal practitioner is entitled to fees
higher than the normal fee if the client is successful (s 2(1)(b)). The
second type of agreement is subject to limitations. Higher fees may
not exceed the normal fees of the legal practitioner on more than 100%
and in the case of claims sounding in money this fee may not exceed
25% of the total amount awarded or any amount obtained by the client
in consequence of the proceedings, excluding costs (s 2(2)). The Act
has detailed requirements for the agreement (s 3), the procedure to be
followed when the matter is settled (s 4), and gives the client a right of
review (s 5). The professional controlling bodies may make rules which
they deem necessary to give effect to the Act (s 6) and the Minister of
Justice may make regulations for implementing and monitoring the
provisions of the Act (s 7). The clear intention is that Contingency Fees
be carefully controlled. The Act was enacted to legitimise Contingency
Fee Agreements between legal practitioners and their clients which
would otherwise be prohibited by the common law. Any Contingency
Fee Agreement between such parties which is not covered by the Act
is therefore illegal. What is of significance, however, is that by
permitting 'no win, no fees' agreements the Legislature has made
speculative litigation possible. And by permitting increased fee

speculative litigation possible. And by permitting increased fee
2 2004 (6) SA 66 (SCA) at para [41].
4

agreements the Legislature has made it possible for legal practitioners
to receive part of the proceeds of the action. "
[6] In De la Guerre v Ronald Bobroff & Partners3, the full court held that:
"the Contingency Fees Act is exhaustive on its stated object, and any contingency
fee agreement not in compliance with it is invalid."
[7] In Thulo v Road Accident Fund ,4 which was approved by the full court in De La
Guerre, the court explained how the Act was to be interpreted. In this regard it
was held that:
"{51] The true function of a proviso is to qualify the principal matter to which it
stands as a proviso - as to which see, for example, Hira and Another v
Booysen and Another 1992 (4) SA 69 (A) at 79F-J and the cases there
cited. In other words. a proviso taketh away but it does not giveth. If there
is a principal matter (in this case the right to charge a success fee
calculated at double - 100% more than - the normal fee) it is not the
function of a proviso to increase or enlarge that which it follows, it is to
reduce, qualify and limit that which goes before it in the text. [My
underlining].
[52] As this principle of interpretation is not always applied there is a danger
of misinterpretation of this section by legal practitioners. Incorrectly
interpreted it can be used to argue that the client has to pay (i) double the
normal fee or (ii) 25% of the total amount awarded in a claim sounding in
money , whichever is the higher. That is completely wrong. The
practitioner's fee is limited, on a proper reading of the section, to (i) 25%
3 2013 JDR 0213 (GNP) at para 14.2, Approved and applied in Ronald Bob roff & Partners v De La Guerre
2014 (3) SA 134 (CC).
4 2011 (5) SA 446 (GSJ) at paras (51]-(53]. This was cited with approval in Mathimba (below n 7) at para
(104].
5

of the amount awarded in the judgment, or (ii) double the normal fee of
the practitioner, whichever is the lower. If double the normal fee results
in the client having to pay a fee higher than 25% of that which was
awarded to the client in a money judgment (costs aside) the legislature
has put a ceiling on such fee and said, in effect, 25% of the money amount
awarded is the maximum fee that can be raised. Where, however, double
the normal fee does not exceed 25% of the money amount awarded then
double the normal fee is the maximum fee that can be raised."
[8] In Masango v Road Accident Fund, 5 it was held that:
And
"{12] The attorney (legal practitioner) is authorised in terms of s 2(1)(b) read
with s 2(2) of the CFA , as an incentive, to charge a success fee which is
higher than his or her normal fee, subject to the two caps. The normal
fees of the attorney are taken as a base and the attorney is authorised to
increase the normal or base fee by up to 100%. The attorney may thus
increase the normal fee by say 10% , 20% , 30% , 40; 45% etc, but the
percentage increase may not exceed 100% . This is the first cap on
success fees. What is important is that there is a base (the normal fee)
from which a percentage increase is permissible. This is the ordinary and
only basis on which the practitioner may increase fees. The legal
practitioner first determines his normal fee, which he would have been
entitled to charge without a contingency fees agreement, and then
increases it in terms of the contingency fees agreement. The success fee
is a fee which has been increased from the normal fee. It is thus
necessary that we understand the meaning of these 'fees', 'normal fees',
and then 'success fees', as contemplated in the section".
5 2016 (6) SA 508 (GJ ) at para [12] and [16]. 'Normal fees' are defined in the Act as fees "in relation to
work performed by a legal practitioner in connection with proceedings, means the reasonable fees which

may be charged by such practitioner for such work, if such fees are taxed or assessed on an attorney
and own client basis, in the absence of a contingency fees agreement."
6

"[16) 'Normal fees' of an attorney for litigious work are fees for charges that
would ordinarily be allowed on taxation."
[9] In Mkuyana v Road Accident Funcfl in considering unregulated contingency fees
stated that:
"[16) 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 public confidence
in the legal system. The legislature was clearly conscious of the risk of
exploitation when it legitimised contingency fee agreements. What the
Act therefore sets out to do is to carefully regulate the extent to which a
legal practitioner may agreement with his client for the payment of an
increased fee."
[1 O] In Mathimba and Others v Nonxuba and Others, 7 the full court held:
"[106) For those reasons we have concluded that the proper approach to sub­
section (2) is that it refers to and qualifies a higher fee where the
contingency fee agreement is one under which the legal practitioner
charges fees higher than normal fees. It imposes limitations on the whole
of such an agreement. In other words sub-section (2) refers to the whole
of the fees chargeable under an agreement not simply to the difference of
normal fees and higher fees".
[11] What is readily apparent from the authorities quoted above, is that the Act permits
two types of contingency fee agreements -
6 2020 (6) SA 405 (ECG ) at para (16].
7 2019 (1) SA 550 (ECG) at para [106].
7

[11.1] The first is an ordinary 'no win, no fee agreement' where the legal
practitioner, subject to a successful outcome, will charge his client
his ordinary fees. These are referred to in the Act as 'normal fees'
and are subject to taxation, should the practitioner's client require it.
This is an agreement in terms of s 2 (1 )(a) of the Act.
[11.2] The second is also a 'no win, no fee agreement' but in this instance,
besides the entitlement to the 'normal fee' on a successful outcome,
the legal practitioner is able to negotiate, based on his assessment
of the risk, a 'surcharge' or 'success fee' of up to 100% of the normal
fee provided however that the combination of the two does not
exceed 25% of the capital amount which is recovered by the client.
This is an agreement in terms of s 2 (1 )(b) of the Act.
[12] Practically, taking guidance from the Act, when fees are recovered in terms of
such agreements, the starting point is for the drawing of an attorney and own
client bill of costs based on the 'normal fees'. This bill may either be agreed or
may be subject to taxation by the taxing master. Insofar ass 2(1 )(a) agreements
are concerned, this is the process that applies to the calculation and assessment
of all fees in litigious matters irrespective of whether or not they are subject to the
Act.
[13] Insofar as s 2(1 )(b) agreements are concerned, the starting point is the same as
with the s 2(1 )(a) agreement. An attorney and own client bill of costs must be
agreed or taxed. It is after this has occurred, that the process by which the
'surcharge' is determined. The process is a simple one. The taxed or agreed
attorney and own client costs are doubled ie the total taxed or agreed fees are
multiplied by two.
8

[14] It is once this calculation has been done that a comparison occurs. The capital
amount recovered by the client is multiplied by 25% and that amount is compared
to the 'normal fee' plus the surcharge. The two together are the 'success fee'. If
the 'success fee' is less than the 25% then that is what the legal practitioner
recovers as a fee. If the 'success fee' is more than the 25% then only that amount
that represents the difference between the success fee and the 25% is the
additional amount that the legal practitioner may recover.
[15] It may even occur, subject to the assessment of 'normal fees' that such 'normal
fees' once taxed or agreed, will exceed the 25% even if they are not increased
by the surcharge. Whether or not this would occur, is one of the factors that is
considered by the legal practitioner in the assessment of his risk when choosing
which of the two agreements he is prepared to accept instructions on.
[16] Put simply, the 'normal fees' are earned and whether taxed or agreed, represent
the value of the work done by the legal practitioner for his client. The 'surcharge'
is not earned in the same way as the professional fees are. It bears no relation
to the value of the actual services rendered other than to provide the basis for the
calculation of the reward for taking a risk. This is distinguishable from the s 2(1 )(a)
agreement where the risk taken by the legal practitioner is borne solely by him/her
and not by the client. In the case of the s 2(1 )(b) agreement, the client agrees to
pay a premium, calculated within the parameters of the Act, for the legal
practitioner's assumption of risk of recovery of fees in the case.
[17] An additional issue arises. Does the 'success fee' attract Value Added Tax (VAT)
in the same way as the normal fee does? In other words, should s 2(1)(b) of the
Act be read to include VAT if double the 'normal fee' equals or exceeds the 25%
of the capital recovered by the client?
9

[18] This question was answered in the negative in Masango v Road Accident Fund8
and in Van der Westhuizen v Road Accident Fund.9 In Se/lo v Road Accident
Fund10 this question was answered in the affirmative.
[19] Central to the question of whether VAT is to be included over and above the 25%
referred to in s 2(2) of the Act, is whether the 25% limit imposed by the section
represents a fee. It clearly does not. The only fees recoverable in terms of the
Act are 'normal fees' which may be increased, subject to the amount of the
'surcharge'. S 2(2) provides the method for the calculation of both the normal fee
together with the success fee and imposes a limit being 25% of the total amount
recovered by the client. In entering into an agreement in terms of s 2(1)(b), the
legal practitioner is aware that whatever percentage 'surcharge' is agreed, in the
event of success, this is limited by the provisions of s 2(2).
[20] In other words, the total fee which includes both the 'normal fee' and the
'surcharge' - referred to in s 2(2) as the "success fee" is limited, how so ever it is
calculated to be in total, no more than 25% of the amount recovered by the client.
If the 25% is to be regarded as a fee upon which VAT is to be charged, this would
mean that the effective rate being charged to the client is 28. 75% based on the
present VAT rate of 15% .
[21] This patently offends against the Act. Since VAT is charged on 'normal fees', the
legal practitioner in the assessment of his risk and in the decision to enter into a
s 2(1 )(b) agreement with his client is aware that subject to the capital amount that
is recovered, in the event that the double normal fee does not fall within the 25%,
he may in respect of his 'surcharge' recover something less than double the
'normal fee' and that the lesser surcharge that is recovered because it is capped
8 Above n 5 at para [35].
9 2024 JDR 3333 (GP ).
10 [2025] ZAGPPHC 1077 (29 Septembe r 2025). See in particular paragraph [61] - [63] from wh ich it is

clear that the interpretation preferred by the Court was one in favour of the commercial interests of legal
practitioners.
10

by the 25% is limited to necessarily include VAT. This is a function of the risk
assessment of the legal practitioner. The legal practitioner is perfectly entitled to
enter into as 2(1 )(a) agreement where this is not an issue 11 .
[22] The dictum in De La Guerre v Ronald Bobroff, a decision of the Full Court of this
Division, which was approved and applied by the Constitutional Court, is
dispositive of the matter insofar as any application of the calculation of the
'success fee' is concerned. It is not permissible in terms of as 2(1 )(b) agreement
for a legal practitioner to recover anything more than 25% of what is recovered
by the client for his fees. To find otherwise would be inimical to the provisions of
the Act.
[23] For these reasons, I agree with the dicta in Masango and Van Der Westhuizen
and that the cap on fees set out in s 2(2) of the Act insofar as it may be applicable
in a particular case, is absolute. If the interpretation preferred in Se/lo were to be
followed, the consequence would be entirely self-serving in favour of the legal
practitioner and to the detriment of the client. This is in direct contrast to the very
purpose for which the Act was enacted. It was not enacted to provide legal
practitioners with a financially preferential method of determining their fees over
and above normal fees but rather to facilitate access to court for those who would
otherwise not have been able to do so.
[24] Turning now to the appeal in the present matter.
11 See Rex v Canestra 1951 (2) SA 317 (A) at 324H , it was held: ''The only necessity compelling the
appellant to risk contravening the regulation is economic and that is not a form of necessity that the law
recognises. If he cannot avoid infringing the law without abandoning his occupation then he and his
fellow fishermen must seek some other means of livelihood." This was a case dealing with fishing
rights but which finds application in the present case. Legal practitioners have a choice which of the

two agreements they wish to enter in terms of the Act and are obliged to ensure that they comply with
the Act in doing so. Their choice should they be unable to comply in any respect w ith the requirements
for a particular agreement is to choose another agreement with which they are able to comply.
11

[25] The Court a quo had regard to the following paragraphs in the contingency fee
agreement in question:
"6. 1 Die partye kom ooreen dat indien die klient suksesvol of gedeeltelik suksesvol
is soos bedoel in die ooreenkoms, sal die regspraktisyn, benewens " sy
normale fooi ook geregtig wees op 'n suksesfooi (hoer fooi) onderhewig aan
die bepalings dat:
6. 1. 1 Enige sodanige fooie wat hoer is as die regspraktisyn se normale fooi
(synde "suksesfooi"), sat nie die normale fooie met meer as 100%
oorskry nie, en in eise van "klinkende munt'', sat sodanige suksesfooi
nie 25% van die klient se kapitale skikking wat uit die aksie voorspruit
oorskry, welke bedrag nie koste of uitgawes insluit nie.
6. 2 Die partye tot die ooreenkoms kom ooreen dat, indien die klient gedeeltelik
suksesvol is soos bedoel in die ooreenkoms, sat die regspraktisyn, benewens
sy normale fooi, ook geregtig wees op 'n suksesfooi (hoer fooi) onderhewig
aan die volgende:
6. 2. 1 Enige sodanige fooie wat hoer is as die regspraktisyn se normale fooi
(synde "suksesfooi"), sat nie die normale fooie met meer as 100%
oorskry nie, en in eise van "klinkende munt", sat sodanige suksesfooi
nie 25% van die klient se kapitale skikking wat uit die aksie voorspruit
oorskry, welke bedrag nie koste of uitgawes insluit nie."
[26] It then went on to find:
{20] The important word in the above paragraphs is the word "benewens " which I
have highlighted, which means that, save for the normal fee, a further success
fee is charged in addition to the normal fee. The agreement explains the
method of calculation, which is the following: Firstly, the attorney's fees are
calculated on the attorney/client scale. Then the "success fee" is calculated
as double the attorney/client fee, or 25% of the claim, whichever is the least.
Finally, the attorney client fee and the "success fee" are added together to
12

determine the total fee payable to the attorney. Finally, VAT is added to the
total amount. The example used in the agreement explains that out of a
hypothetical settlement of R 500 000, the client would be entitled to payment
of R 272 000.00, slightly more than 50% of the claim, instead of 75% as the
CF Act provides."
[27] The appeal was argued on the basis that the quoted clauses in their terms did
not fall foul of the provisions of the Act. It was further argued that regarding the
word "benewens", this also did not render the agreement invalid because "the word
benewens does not fall foul of the definition of 'a success fee' and is in line with the words
"is in addition to" and 'together with the additional amount' as contained in the definition
of 'a success fee."' In this regard the Court was referred to the translation of
"benewens " as set out in a bilingual dictionary.12
[28] The argument went on to refer to the rules published by the Legal Practice
Council in terms of s 6 of the Act13 and the definition of a 'success fee'. The
definition is:
"1.12 A success fee means a fee contemplated in Section 2(1)(b) read together
with Section 2(2) of the Act which is in addition to the normal fee. To be
clear: the entire higher fee to be charged, comprising the normal fee
together with the additional amount will constitute the success fee. The
success fee is not iust the additional amount, but the total of those two
amounts, being the normal fee plus the additional amount." [My
underlining]
[29] The Court was also referred to rule 6.7 which provides:
12 Tweetalige Woordeboek/Bilingual Dictionary by Professor DB Bosman , Professor IW van der Merwe
and Doctor LW Hiemstra, published by Phares 8th Edition at page 57.
13 General Notice 525 in Government Gazette 42739 of 4 October 2019.
13

"The 'success fee' is referred to in Section 2(2) of the Act, is the total of the 'normal' fee and the
'higher than normal' fee. The limitation and cap referred to in Section 2(2) applies to the total fee
charged by a legal practitioner or practitioners in any one claim."
[30] It was argued that properly construed, having regard to paragraphs 2.1.414 and
7.1.3 15 of the contingency fee agreement, there was only ever going to be a
single fee charged which is a composite fee and for that reason, the fee
agreement ought to be held valid.
[31] If the agreement were to be construed in terms of the operative provisions of it,
the meaning of "benewens" argued by the appellant, could reasonably be ascribed
to it. This is however not the end of the matter.
[32] In the case of written agreements, regard must be had to the contents of the
agreement. From these contents, given their ordinary meaning, the intention of
the parties is ascertained. It is trite that this is to be done contextually and in a
businesslike manner.16
[33] Despite prima facie compliance with the terms of the Act insofar as sections
2(1)(b) and 2(2) are concerned, the contingency agreement contains the following
example of how the agreement would be implemented:
''7. 3 Voorbeeld van berekening:
Kapitale bedrag R500 000.00 (aksie sukesevol interme van
paragraaf 4. 1. 1)
14 "lngelig is dat die suksesfooi die normale fooi is wat met a spesifieke persentasie aangepas word en
tussen die partye ooreengekom word soos per par 4 en 6 hiervan."
15 "Die normale fooi word dan vermeerder met die bedrag van die suksesfooi ten einde die regspraktisyn
se fooi uit die ooreenkoms te bepaal."
16 Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others 2022
(1) SA 100 (SCA) at para [25); South African Nursing Council v Khanyisa Nursing School (Pty) Ltd and
Another2024 (1) SA 103 (SCA).
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25% daarvan R125 000.00 (perk van suksesfooi)
Normale fooi R100 000.00 (soos getakseer op 'n prokereur-en-
klient skaal)
Suksesfooi R100 000.00 (maar word beperk op 25% of dubbel
normale fooie welke die minste is)
Regpraktisyn se fooi R228 000.00 (plus 14% BTvY,l
Kapitaal na fooie R272 000.00
Plus koste bydrae R96 000.00 (betaalbaar aan klient)
Totaal aan klient R388 000.00"
[34] It is readily apparent from the above example that the contingency fee agreement
in question in this case is not going to be implemented by the legal practitioner in
accordance with the provisions of the Act.
[35] Firstly, the normal fee of R100 000.00, if VAT was to be charged, would be
R114 000.00. This figure is then multiplied by two and amounts to R228 000.00.
It is against this R228 000.00 that the 25% limit provided for in section 2(2) is to
be applied. In other words, the maximum fee that can be recovered by the legal
practitioner if the case were settled for R500 000.00 is R125 000.00.
[36] The difference between the normal fees of R114 000.00 and the R125 000 (25%
limit) is the applicable surcharge. This difference is, in the present example,
R 11 000.00 which means that the client is to obtain the sum of R375 000.00 from
a capital settlement of R500 000.00.
[37] Insofar as the costs recovery is concerned, the R96 000.00 in the examp le is to
be paid to the client, having regard to the proviso in s 2(2) of the Act, wh ich
excludes the costs recovery from the calculation completely. On the example
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given, were the Act to have been correctly applied, the client would have received
R471 000.00 {being R375 000.00 plus R96 000.00) and not the R388 000.00.
[38] The example makes it plain that the legal practitioner, the author of the
agreement, did not enter into it on the basis that it wou ld be implemented in terms
of the Act but rather on a basis, as set out in the example, that serves his interest
and not that of the client.
[39] Since the only way in which a valid contingency fee agreement can be entered
into is in terms of the Act, any such agreement which does not comply either in
its terms or in its application, is unlawful. It is for this reason that the Court a quo
was correct in setting aside the contingency fee agreement and that this appeal
must fail.
[40] Insofar as costs are concerned, since the appeal was unopposed, there will be
no order for costs.
(41] In the circumstances, I propose the following order:
[41 1] The appeal is dismissed.
[41.2] There is no order for costs.
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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I AGREE AND IT IS SO ORDERED
I AGREE,
HEARD ON :
JUDGMENT DELIVERED ON:
COUNSEL FOR THE APPELLANT:
INSTRUCTED BY:
REFERENCE:
N MNGQIBISA-THUSI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
S NYATHI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
9 OCTOBER 2025
7 NOVEMBER 2025
ADV. MCC DE KLERK
GERT NEL INCORPORA TED
MR. D OELOFSE
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NO APPEARANCE FOR THE RESPONDENT
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