IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Appeal Case No.: CIVAPPMG33/2024
Court a quo Case No.: 38712020
In the matter between:
NILSEN STEENKAMP & INC First Appellant
A NILSEN Second Appellant
and
ME COETZEE Respondent
Coram: Wessels AJ et Maree AJ
Date of hearing: 14 November 2025
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 14h00 on 29 July 2026.
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Summary: Advocate — fees — profession of advocate a referral profession —
advocate not entitled to contract directly with member of public — advocate
renders service on instructions of, and looks for payment to, instructing attorney
and not client — absent express agreement, default position is that instructing
attorney remains liable for advocate's fees — no implied term that client is liable.
Appeal — attorney disputing liability for advocate's fees on ground that mandate
did not include a fee provision — evidence and conduct of parties, including
attorney's receipt and payment of trust funds and inclusion of advocate's fees in
its own bill for taxation, establishing agreement, expressly, tacitly and by
implication, that attorney was liable — appellants failing to discharge evidential
burden of showing deviation from customary and proper procedure for briefing
counsel. Held — appeal dismissed with costs
JUDGMENT
Maree AJ
[1]. The matter before th is Court concerns an appeal from the Magistrates'
Court for the District of Matlosana held at Klerksdorp. The appeal was launched
and prosecuted by the appellants (being the Defendants in the Court a quo) and
is noted against the whole of the judgment and orders granted by the Learned
Magistrate on 13 September 2024, whereby judgment was granted in favour of
the respondent for payment of the amount of R133,895.40, mora interest, and
costs (including costs of counsel).
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[2]. The grounds for appeal as listed in the appellant’s Notice of Appeal consist
of 21 paragraphs, however, in the appellants’ Heads of Argument the central
issue on appeal has been narrowed down to whether the Respondent’s mandate
to act as counsel included a fee provision, in terms whereof the second appellant
was liable for the respondent’s fees, how that term was agreed upon and what
the provision entail.
[3]. The Respondent’s claim in the court of first instance is premised on an
agreement of mandate entered into between the Respondent and the Appellant s
during March 2017. As pleaded, the express alternatively tacit further
alternatively implied terms of the agreement of mandate was that (a) the
Respondent would act as Counsel for and on behalf of the appellants’ client, Mr
Vermaak, rendering professional legal services in the private arbitration between
Mr Vermaak and the Greater Taung Municipality (‘the municipality’) , (b) the
respondent would act for Mr Vermaak on instructions by, and through the first
appellant and the first appellant would be responsible for payment of the
respondent’s fair and reasonable fees, (c) the respondent would charge the
appellants fair and reasonable fees on a scale as between attorney and own client
for professional services rendered, (d) payment of the invoices rendered will
become due and payable 90 days after date of rendering the same, and (e) the
appellants would ensure that sufficient funds would be available to make payment
of the r espondent’s invoices. It is the respondent’s case that the Respondent
rendered service to the Appellants to the total amount of R190,281.00. Part
thereof, R23,365.60, had been paid before the conclusion of the arbitration
proceedings. The arbitration proceedings were successfully concluded in favour
of Mr Vermaak, who was awarded a costs order in his favour. The costs of the
arbitration were taxed and an amount of R157,261.00 allocated for the
arbitration were taxed and an amount of R157,261.00 allocated for the
respondent’s fees after an amount of R36,019.00 was taxed off . After taxation,
the costs were paid by the municipality to the first appellant, who, upon receipt
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thereof, paid the taxed costs to Mr Vermaak. The respondent’s fees remained
unpaid, following which the respondent instituted action against the appellants.
For purposes of her action, the respondent limited her fee to R157,261.00 (being
the amount allowed on taxation) less the amount of R23,365.60 that was paid
before the conclusion of the arbitration proceedings, totalling the amount of
R133,895.40.
[4]. The appellants’ pleaded case to the respondent’s claim comprises a denial
of an agreement between the appellants and the respondent, more specifically, the
appellants deny that the respondent was instructed to act as Counsel for and on
behalf of Mr Vermaak by the appellants. The appellants pleaded that the
customary and proper procedures relating to the appointment of Counsel by an
attorney were grossly neglected in that the appellants were to assist Mr Vermaak
as a so -called postbox and receive funds from Mr Vermaak for payment to the
respondent on behalf of Mr Vermaak . T he fee agreement with the respondent
was entered into between the respondent, Mr Vermaak and Mr Dippenaar (a
labour consultant and the father of the Respondent) , and the a ppellants had no
agreement with the respondent whatsoever. In addition to the aforesaid, the
appellants contend that the invoices rendered by the respondent do not reflect the
fair and reasonable fees to which the respondent was entitled in that they were
inflated for purposes of taxation. The Appellants admit receiving the taxed costs
of the arbitration proceedings and paying the same to Mr Vermaak.
[5]. The matter proceeded to trial and, on 13 September 2024 , judgment was
granted in favour of the respondent as stated above. Aggrieved by the judgment,
the appellants appealed to this Court . T he issues on appeal are limited; i.e.
whether the respondent’s mandate to act as counsel included a fee provision, in
terms whereof the second appellant was liable for the respondent’s fees, how that
terms whereof the second appellant was liable for the respondent’s fees, how that
term was agreed upon and what the provision entails. It is, therefore, convenient
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first to set out the relevant legal framework, then to consider the evidence and the
appellant’s contentions, and finally to determine whether the appeal should
succeed.
[6]. The advocacy profession is a referral profession, and an advocate cannot
contract directly with members of the public
1. An advocate accepts instructions
from an attorney on behalf of a client2. An advocate renders services on behalf of
the attorney’s client at the instructions of the attorney and not the client 3. The
legal nexus between an advocate and their fees is the attorney and not the member
of the public
4; the agreement between an attorney and counsel bestows the
obligation for payment of counsel fees on the attorney5. An advocate who accepts
a brief is accordingly required to look to the instructing attorney, rather than the
client, for payment of fees
6. It is a matter of good practice that at torneys are
sufficiently covered for costs when they instruct an advocate 7. If they are not,
they risk paying counsel fees. In general, c ounsel is not allowed to receive
instructions or payment directly from a client 8. Where no express agreement is
entered into between an advocate and an attorney concerning fees, the default
1 Fluxmans Incorporated v Lithos Corporation of South Africa (Pty) Ltd and Another (No 2) 2015(2) SA
322 (GJ) at para 26.
2 Society of Advocates of Natal v De Freitas 1997(4) SA 1134 (N); General Council of the Bar of South
Africa v Van der Spuy 1999(1) SA 577 (T); De Freitas and Another v Society of Advocates of Natal 2001(3)
SA 750 (SCA).
3 Leysath v Legal Practitioners Fidelity Fund Board of Control (51027/19) [2021] ZAGPPHC 7 (14 January
2021) at para 11; see also General Council of the Bar of South Africa v Geach and Others 2013 (2) SA
52 (SCA) 144.
4 Fluxmans Incorporated v Lithos Corporation of South Africa (Pty) Ltd and Another (No 2) 2015(2) SA
322 (GJ) at para [26]; General Counsel of Bar of South Africa v Geach and Others 2013(2) SA 52 (SCA);
Minister of Finance and Another v Law Society, Transvaal 1991(4) SA 544 (A); Serrurier and Another v
Korzia and Another 2010(3) SA 166 (W).
5 Liebel v Road Accident Fund and Others (40882/2020) [2021] ZAGPPHC 411 (17 May 2021) at para 21.
6 Ramesh Luckychund & Associates v Sewpal (AR441/2019) [2020] ZAKZPHC 37 (19 June 2020) at para
8.
7 Ramesh Luckychund & Associates v Sewpal supra.
8 Serrurier and Another v Korzia and Another supra; see also General Council of the Bar of South Africa v
Van der Spuy (supra); and De Freytas and Another v Society of Advocates of Natal and Another 2001(3)
SA 750 (SCA). In the Serrurier matter, Jordaan AJ, referring to the cases mentioned before, stated: ‘These
two cases illustrate that an Advocate will be suspended from practice even if he is not subject to rules of
the General Bar Council and even if the Constitution of his own professional body allows receiving
instructions and payments from members of the public.’
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position remains in place, being that the attorney is liable for payment of the
advocate's fees; t o put it differently, there can never be an implied term of
mandate that the client will be liable for the advocate ’s fees 9. An advocate is
therefore not permitted to agree that his fees be paid by anyone other than his
attorney10.
[7]. As set out hereinbefore, the appellants initially denied that the first
appellant acted as the instructing attorney for Mr Vermaak. During the hearing of
the matter in the court of first instance, it was p ut out of contention that the first
appellant did act as attorney of record for Mr Vermaak in the arbitration matter.
The main contention by the appellants therefore concerns the respondent’s
mandate, more specifically, as put by the appellants, that the Respondent’s
mandate to act as Counsel did not include a provision in terms whereof the
appellants and the respondent agreed that the appellants would be liable for the
respondent’s fees.
[8]. The respondent’s summarised evidence in this regard was that she agreed
with the second appellant that concerning the arbitration matter, (a) the first
appellant would pay her an initial fee of R23 365.60 (this amount comprised part
payment for the arbitration, for drafting of heads of argument and travelling
expenses), (b) the remainder of her fees would be invoiced for and paid by the
first appellant after the conclusion of the arbitration proceedings on a scale as
between attorney and own client, and (c) that the fees had to be taxed.
[9]. The evidence of the second appellant was that no agreement whatsoever
was reached between the f irst appellant and the r espondent. According to the
second appellant, Mr Vermaak was Mr Dippenaar’s client (the labour consultant),
9 Serrurier supra
10 Serrurier supra
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and Mr Dippenaar instructed the appellants. The first appellant was merely a
‘conduit for payment’ and a ‘postbox’. Mr Dippenaar would request Mr Vermaak
to make payment to the first appellant and then instruct the first appellant to make
payment of the funds received as required.
[10]. The appellants relied heavily on the respondent’s evidence that it was an
express term of the agreement between her and the second appellant that she
would be paid attorney-and-own-client fees after submitting her account and once
the arbitration had been finalised. The appellants contended that, firstly, the said
evidence contradicted the respondent’s pleadings and secondly that the fee
provision on which the respondent relied in her evidence amounted to an
“expressly oral agreement upon a certain date and place”. As to the first
contention, I find that even though the evidence of the respondent differed in that
aspect from the facts as pleaded, the matter was fully canvassed during the
hearing and warranted to be decided between the parties
11. As to the second
contention, I disagree with the appellants’ view. The respondent's evidence on the
payment terms concerned the terms of the agreement and not a new agreement
between the parties.
[11]. What is evident from a reading of the record is that from the evidence of
the respondent, the second appellant, Mr Dippenaar and Mr Vermaak, there can
be no doubt that the respondent was appointed by the first appellant to act as
counsel on behalf of Mr Vermaak.
11 British Diesels Ltd v Jeram and Sons 1958 (3) SA 605 (N) Desai v NBS Bank Ltd 1998 (3) SA
245 (N); Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A) at 433 ‘ This Court,
therefore, has before it all the materials on which it can form an opinion, and this being the
position it would be idle for it not to determine the real issue which emerged during the course
of the trial.’ Sentrachem Bpk v Wenhold 1995 (1) SA 312 (A).
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[12]. Premised on the legal position set out above, I am of the view that the
general position is that attorneys are liable for payment of advocates’ fees. Even
if I am wrong in that conclusion, the appellants failed to show that the agreement
with the respondent did not comply with the ‘customary and proper procedure ’
as pleaded. I say so because, by implicitly accepting , in the pleadings, a
‘customary and proper’ procedure to brief and advocate, the Appellants have the
evidential burden to show a deviation from that procedure. Having regard to the
conspectus of evidence before this court, I am of the view, for the reasons set out
below, that the Appellants failed to discharge that burden.
[13]. The respondent showed that an agreement was reached, expressly, tacitly
and by implication, that the f irst appellant acted as instructing attorney for the
respondent and that the f irst appellant would be liable for payment of the
respondent’s fees. This agreement stems not only from the legal position referred
to above, but also from the evidence of the respondent, Mr Dippenaar, and the
conduct of the parties. I find the respondent’s evidence compelling insofar as she
testified that the express terms of the agreement were that the a ppellants would
be liable for payment of her fees. The undisputed evidence of Mr Dippenaar,
which contradicted the appellants’ pleaded case, supports the respondent’s
evidence. The conduct of the parties also supports the terms of the mandate in
that: (a) the first appellant not only received monies from Mr Vermaak on trust,
but also paid monies from its trust account to the r espondent. Evidently, the
Appellants were aware that an advocate cannot be instructed directly, or paid
directly by, a member of the public ; (b) the f irst appellant received the
respondent’s accounts and caused the m to be sent to the costs consultant for
inclusion in the first appellant’s fees and disbursements account presented for
inclusion in the first appellant’s fees and disbursements account presented for
taxation, which shows that the appellants were aware that the Respondent would
invoice the first appellant for payment; and (c) under items 10, 48, and 72 of the
taxed bill of costs, which concerns the Respondents’ invoices, fees are claimed
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on behalf of the f irst appellant for attendance, peruse and payment to, the
respondent. The first appellant also allowed the respondent’s fees to be taxed. If
the appellants had considered that the respondent should be paid directly by Mr
Vermaak, they would not have included fees for attending, perusing and paying
the respondent’s fees. As to the second appellant’s evidence, I am not impressed
by the view of his conduct as an attorney and of his duties towards Mr Vermaak
and the respondent. The appellants’ pleaded case was that the first appellant acted
as a mere postbox. During the hearing, it was conceded that the first appellant
acted as the instructing attorney for Mr Vermaak and the respondent. The second
appellant's evidence, however, portrays an attorney who, after practising for 22
years, adopted a nonchalant approach to his legal and fiduciary duties towards Mr
Vermaak and the Respondent. I find this evidence of the s econd appellant
improbable because the second appellant’s conduct, referred to above, shows that
he was aware of the duty of an attorney and the general position that an advocate
receives instructions and payment from an attorney and not directly from the
client.
[14]. This leaves this Court to consider three additional aspects relied on by the
appellants. The first being the allegation that the respondent inflated her fees. I
need say no more than that the appellants accepted the respondent’s invoices and
presented the same for taxation. The second is the alleged contingency fee
agreement. I find no evidence supporting such an agreement and the appellants’
reliance on this issue is misplaced. The third concerns the application of the Code
of Conduct published under the Legal Practice Act
12. The said Code of Conduct
came into effect on 29 March 2019, approximately two years after the conclusion
of the mandate between the f irst appellant and the respondent. The Code of
Conduct has no retrospective effect; it is irrelevant for present purposes.
Conduct has no retrospective effect; it is irrelevant for present purposes.
12 Legal Practice Act 28 of 2014.
[ 15]. In the premises, I find that the appeal stands to be dismissed.
Order
The appeal is dismissed with costs, including costs of counsel on scale C.
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISIO N, MAHIKENG
I agree
MWESSELS
ACTING JUDGE OF THE IDGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION , MAHIKENG
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APPEARANCES:
FOR THE APPELLANTS: Adv Le Grange
INSTRUCTED BY: Ferreira Attorneys
C/O Bruce Loxton Attorneys
Mahikeng
FOR RESPONDENT: Adv Grundlingh
INSTRUCTED BY: Van Antwerp Attorneys
C/O CJP Oelofse Attorneys
Mahikeng