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[1] This is an appeal against the whole judgment handed down by the Mbombela Regional
Court Magistrate, N A Khumalo, on the 14th March 2024.
BACKGROUND
[2] The appellant was appointed as attorneys of record for the Road Accident Fund (the RAF).
Acting on instructions from the RAF to appoint counsel, the appellant briefed the respondent
to represent the RAF in various matters. The brief set out the nature and scope of the
instructions, as well as the terms governing payment.
[3] The terms governing payment read as follows:
“1.1 As you are well aware, the appellant has a framework for counsel’s fees. Should you
require a copy of such framework, we shall gladly furnish you herewith on request.
1.2 Payment of your invoice will be made as soon as possible after receipt of payment thereof
from our client RAF, from our side we undertake to as soon as reasonably possible after receipt
of your tax invoice submit same to our client for consideration, approval and payment.
1.3 Should these conditions not be acceptable to you, this instruction should be returned to us.
Acceptance by you of this instruction will be regarded as acceptance of the above conditions”.
[4] The respondent duly rendered legal services in the matters for which he had been briefed
and subsequently submitted invoices for those services. Following the appellant’s failure to
settle the invoices, the respondent instituted action by issuing summons. The appellant entered
an appearance to defend the claim . The appellant raised a special plea of non -joinder of the
RAF and further pleaded that the debt was not due and payable . The appellant relied on the
abovementioned terms of payment and insisted t hat payment would only become due and
payable once the RAF has made payment. The court a quo dismissed the special plea and
granted judgment in favour of the respondent after considering the evidence . The appellant
now appeals against the entirety of that judgment.
JUDGMENT OF THE COURT A QUO
now appeals against the entirety of that judgment.
JUDGMENT OF THE COURT A QUO
[5] After noting that (a) the respondent performed in accordance with the briefs; (b) payment
was outstanding on the briefs in question , the court a quo considered the appellant’s defence
that the respondent accepted the brief s fully aware of the suspensive condition that he would
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get paid once the appellant receives payment from the RAF. The court a quo then framed the
question for determination as ‘who was responsible for payment of the respondent’s fees’.
[6] Relying on section 34(2)(a)(i) of the Legal Practice Act the court a quo stated that:
“…. This indicates a referral advocate only consults and engages with clients or
members of the community through their instructing attorney. The instructing attorney
acts as a link between the two. As a facilitator, the instructing attorney is a point of
contact between the two. It would be ludicrous to expect of council to demand payment
for services rendered from the client. Any suggestion t hat it should be the case is not
supported by any legal basis. Over and above, it is contrary to the provision of the Code
of conduct as well as the Legal Practice Act.
The bottom line remains that the plaintiff defendant, and was never paid. We all know who is
obligated to pay for such professional services. It is the defendant’s responsibility to make such
payments”.
[7] The court a quo found that the appellant was liable to pay the amount claimed by the
respondent and ordered the same.
GROUNDS OF APPEAL
[8] The judgment of the court a quo was assailed on several grounds. Essentially, the appellant
contended that the court a quo erred in concluding that the appellant was liable to pay the
amount claimed by the respondent despite the debt not being due and payable.
LEGAL FRAMEWORK
[9] Section 34(2)(a)(i) o f the Legal Practice Act provides that advocates may render legal
services for a fee upon receipt of a brief from an attorney.
ANALYSIS
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[10] It is trite that an appellate court will not lightly interfere with the factual findings of a
lower court. However, where there has been a material misdirection or where the findings of
the court a quo are clearly wrong, interference is justified. S V Hadebe 1997 (2) SACR 641
(SCA).
[11] The court a quo firstly had to deal with the special plea raised by the appellant that the
respondent failed to join the RAF , which it correctly dismissed. Regarding the merits, the
appellant’s defence to the respondent’s claim was that the debt was not due and payable. In this
regard, the appellant relied on the terms of payment contained in the briefs sent to the
respondent, which essentially stated that the payment of the respondent’s invoice would be
made as soon as possible after receipt of payment from the RAF.
[12] It was not in dispute that the respondent rendered legal services and that the invoices
remain unpaid. Although the appellant argued that the RAF ought to have been joined, the gist
of the appellant’s defence was that it was not obligated to pay the debt because the suspensive
condition had not yet been fulfilled. The respondent argued that the debt was due and payable,
and that the appellant, not the RAF, was liable to pay it.
[13] The court a quo misdirected itself by focusing on who was liable to pay the respondent’s
fees rather than determining whether the debt was due and payable. The latter enquiry is central
to the dispute between the parties, as liability for payment can only arise once it is established
that the obligation has accrued and is enforceable.
[14] Instead of undertaking this analysis, the court posed the wrong question. In doing so, it
presupposed that the debt was already enforceable. Had the court properly directed itself to the
correct enquiry, it would have considered whether the agreed conditions had been fulfilled and
whether the debt had become due. This constitutes a material misdirection which led the court
whether the debt had become due. This constitutes a material misdirection which led the court
to an incorrect conclusion. Consequently, this court is at large to interfere.
MERITS
[15] The a ppellant contends that the conditions set out in the briefs constituted a valid
agreement binding on the respondent. The respondent admits he was aware of the conditions
set out in the briefs but denies they are binding on him. The respondent contends that this type
of agreement is not sanctioned by the LPC or the G eneral Council Bar (the GCB). I therefore
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deem it necessary to first deal with whether the GCB and/or the LPC prohibit advocates and
attorneys from entering into payment agreements.
Do the LPC and the GCB prohibit payment agreements by counsel and attorneys?
[16] The respondent relies on Rule 7.7 .10 of the GCB Rules, which provides that “[A]n
attorney who may be unable to pay fees due by him when the payment is due subrule 7.7.2
above, may apply to the Bar Council for an extension of time. The Bar Council will grant an
extension of time only in special circumstances. Mere inability to pay is insufficient, as it is
presumed that attorneys cover themselves before they brief counsel”. Properly construed, Rule
7.7.10 applies only once the fees are due.
[17] The respondent further relies on Rule 7.6 of the GCB Rules, which provides that counsel
may, as a condition of accepting a brief, require the instructing attorney to pay counsel’s
account either in advance, at the end of the month in which the account is rendered, or within
30 days after the end of that month. The Rule permits counsel to enter into an agreement with
an attorney regarding payment terms.
[18] Similarly, Clause 18.18 of the Code of Conduct for Legal Practitioners recognises that the
payment of counsel’s fees may be governed by an agreement between the parties. It provides
that an attorney must pay timeously, in accordance with any contractual terms or, absent such
terms, in accordance with the standard terms of payment, the reasonable charges of any legal
practitioner whom he or she has instructed to provide legal services to or on behalf of a client.
[19] The respondent’s argument is premised on the standard terms of payment applicable
between attorneys and advocates. However, the Code recognises payment agreements between
attorneys and advocates and requires timeous payment in accordance with agreed terms where
such terms exist.
[20] Clause 30.1 of the Code of Conduct provides as follows:
such terms exist.
[20] Clause 30.1 of the Code of Conduct provides as follows:
“If an attorney offers a brief to counsel which is already marked with a fee, counsel
upon acceptance of the brief tacitly agrees to that fee; if counsel chooses to refuse the
brief on those terms, counsel and the instructing attorney must expressly agree in
writing or by email to a different fee, otherwise, if counsel performs the work mandated
by the brief, the initial marked fee shall bind counsel”.
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[21] It is well established that a tacit agreement may arise from conduct that is unequivocally
consistent with an intention to be bound. Clause 30.1 of the Code of Conduct embodies this
principle in the specific context of marked fees, namely that counsel who accepts a brief tacitly
agrees to the fee endorsed thereon, unless such terms are expressly rejected and varied. While
the present matter does not concern a marked fee, the underlying principle is equally applicable.
[22] The brief in casu expressly provided that, upon acceptance, counsel would be bound by
the suspensive conditions relating to payment, and further stipulated that, should those
conditions not be acceptable, the brief was to be returned. The respondent nonetheless accepted
the brief and proceeded to perform the work mandated therein. Such conduct is unequivocally
consistent with acceptance of the terms of the brief and inconsistent with any rejection thereof.
In these circumstances, a tacit agr eement aros e, notwithstanding the absence of an express
written acceptance.
[23] Clause 18.18 supra draws a clear distinction between payment regulated by contractual
agreement and payment regulated by standard terms. Where parties have agreed on the
conditions under which payment becomes due, as in this case, those contractual terms govern
their relationship. Standard terms of payment apply only in the absence of such an agreement.
[24] The respondent’s contention that the GCB Rules and the Legal Practitioners’ Code of
Conduct prohibit fee agreements between counsel and an instructing attorney cannot be
sustained. Properly construed, the Rules and the Code recognise that parties may regul ate the
terms and timing of payment under a contract . In the present matter, the parties agreed that
payment would be made once the RAF had paid the appellant. It should be noted that there was
no application to set aside this contract or to declare i t invalid. For this reason, even if my
interpretation above is wrong, the terms of the contract remain valid and intact. Having
accepted the brief on those terms, the respondent cannot now seek to rely on the standard terms
of payment.
[25] The further contention that such an agreement is not binding because it was not sanctioned
by the LPC or the GCB is equally unpersuasive. Neither the Code of Conduct nor the GCB
Rules relied upon by the respondent prohibit counsel and an instructing attorney from agreeing
on payment terms for counsel’s fees.
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Is the debt due and payable?
[26] I now turn to the central issue for determination: whether the debt was due and payable at
the time the respondent issued the summons. As already mentioned, it is undisputed that the
respondent rendered legal services and has not been paid. The appellant’s evidence was that ,
in terms of the agreement, the respondent would receive payment once the RAF has paid, and
that payment has not yet been made.
[27] The respondent argued that the appellant had failed to provide proof thereof and submitted
that the appellant bore the onus of proving non -payment by the RAF. In my view, that
submission is misplaced. A party that asserts that a suspensive condition has been fulfilled
bears the onus of proving such fulfilment. Accordingly, it was for the respondent, who sought
to enforce the obligation to pay, to establish that the condition upon which enforceability
depended had been fulfilled.
[28] The appellant contends that the debt was not due because it had not yet been paid by the
RAF. On the other hand, the respondent argues that the debt became due upon delivery of the
invoices. The respondent’s contention cannot be sust ained since p ayment by the RAF
constituted a suspensive condition for the appellant’s obligation to pay.
[29] The terms of the brief expressly provided that payment to the respondent would arise only
once the appellant had been paid by the RAF. The appellant’s obligation to pay was contingent
upon the fulfilment of that condition. The consequence thereof is that the re spondent’s claim
was premature and he had not established a complete cause of action.
[30] In Mia v Verimark Holdings (Pty) Ltd (522/08) [2009] ZASCA 99 (18 September 2009),
Wallis AJA confirmed the legal effect of a suspensive condition as follows:
“Pending fulfilment of the suspensive condition the exigible content of the contract is
suspended. On fulfilment of the condition the contract becomes of full force and effect and
suspended. On fulfilment of the condition the contract becomes of full force and effect and
enforceable by the parties in accordance with its terms.”
CONCLUSION
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Date of hearing: 24 April 2026
Date of judgment: 20 May 2026
Counsel for the Plaintiff: Adv. J Muzimba
Instructed by: T M Chauke Incorporated
Counsel for the Respondent: Adv. S Makhanya
Instructed by: Mashiteng Speelman Inc. Attorneys