South Africa Case Law

Sibiya and Others v Road Accident Fund (1067/2022)

Sibiya and Others v Road Accident Fund (1067/2022) [2023] ZASCA 171 (5 December 2023)

Court

Supreme Court of Appeal

Case number

1067/2022

Judges

Mbatha, Carelse, Hughes, Koen, Chetty

The Supreme Court of Appeal found that the high court acted irregularly by making orders in chambers without affording the appellants an opportunity to be heard, in breach of the audi alteram partem rule and procedural fairness. The referral under rule 70(5A)(d)(ii) was not intended for the determination of fee agreements, and there was no evidence of misbehaviour warranting such referral. The high court's orders were made without jurisdiction and in violation of fundamental principles of judicial process. As a result, the appeal was upheld, the high court's orders were set aside, and the ref…

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• Contingency Fees Act
• Procedural Fairness
• Audi Alteram Partem
• Taxation Of Costs
• Judicial Restraint

Rolls v Road Accident Fund (22243/2022)

Rolls v Road Accident Fund (22243/2022) [2023] ZAGPPHC 1218 (20 September 2023)

Court

North Gauteng High Court, Pretoria

Case number

22243/2022

Judge

Holland-Muter

The High Court held that a contingency fee agreement was invalid because it tried to apply only part of the Contingency Fees Act and ignored its limits.

• Contingency Fee Agreement
• Contingency Fees Act
• Access To Justice
• Contingency-fee-agreement
• Contingency-fees-act
• Access-to-justice

Letsoale v Road Accident Fund

Letsoale v Road Accident Fund [2023] ZAGPPHC 456; 2023 (6) SA 533 (GP) (12 June 2023)

Court

North Gauteng High Court, Pretoria

Case number

57337/2020

Judge

N Davis

The court held that contingency fee agreements are only valid where a genuine risk or contingency exists and the practitioner has properly assessed the prospects of success. In three of the four matters, the agreements were entered into when success was virtually guaranteed or no proper assessment of risk was undertaken, rendering those agreements invalid under the Contingency Fees Act. Only in the Letsoale matter was there sufficient contingency to justify the agreement. The court further found that attempts by practitioners to include specific items in costs orders to fetter the Taxing Mast…

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• Contingency Fees Act
• Road Accident Fund
• Costs Taxation
• Party And Party Costs
• Invalid Contingency Fee Agreement
• Default Judgment

Dyongo v Road Accident Fund (2465/2021)

Dyongo v Road Accident Fund (2465/2021) [2023] ZAECMKHC 56 (4 May 2023)

Court

Eastern Cape High Court, Makhanda

Case number

2465/2021

Judge

Tilana-Mabece

The court found that the contingency fee agreements in both matters failed to comply with the mandatory requirements of the Contingency Fees Act 66 of 1997. Specifically, the agreements were not entered into with the legal practitioner as required, but rather with the law firms as juristic persons. Furthermore, the agreements were not in the prescribed form and lacked proper judicial oversight prior to acceptance of settlement offers, as required by section 4 of the Act. The statutory provisions are peremptory, and any non-compliance renders the agreements invalid and unenforceable. Consequen…

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• Contingency Fees Act
• Invalid Contingency Fee Agreement
• Attorney Client Fees
• Judicial Oversight Of Settlement

Road Accident Fund v MKM obo KM and Another; Road Accident Fund v NM obo CM and Another (1102/2021)

Road Accident Fund v MKM obo KM and Another; Road Accident Fund v NM obo CM and Another (1102/2021) [2023] ZASCA 50; [2023] 2 All SA 613 (SCA); 2023 (4) SA 516 (SCA) (13 April 2023)

Court

Supreme Court of Appeal

Case number

1102/2021

Judges

Makgoka, Mothle, Hughes, Nhlangulela, Mali

The Supreme Court of Appeal held that the Road Accident Fund is not obliged by statute to ensure that legal practitioners obtain judicial approval under section 4 of the Contingency Fees Act before entering into settlement agreements. The Contingency Fees Act governs the relationship between attorney and client, not between the Road Accident Fund and claimants. Non-compliance with section 4 renders the contingency fees agreement unenforceable as between attorney and client, but does not invalidate the underlying settlement agreement with the Road Accident Fund. The High Court erred in conflat…

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• Contingency Fees Act
• Settlement Agreements
• Judicial Approval
• Minor Children Claims
• Attorney Fees Taxation

Mbethe v Road Accident Fund (856/2020)

Mbethe v Road Accident Fund (856/2020) [2023] ZAMPMBHC 5 (26 January 2023)

Court

Mbombela High Court, Mpumalanga

Case number

856/2020

Judge

Roelofse

The court found that the affidavits submitted in support of the settlement agreements were inadequate, as they were based on templates with only variable details inserted and failed to provide substantive information required by section 4(1) and 4(2) of the Contingency Fees Act. The affidavits did not disclose the estimated amount or relief obtainable at trial, the prospects of success or failure, or a comparison of fees between settlement and trial. Without this information, the court could not properly exercise its oversight function or determine whether the settlements were in the plaintif…

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• Contingency Fees Act
• Settlement Agreements
• Judicial Oversight
• Personal Injury Claims
• Road Accident Fund
• Affidavit Requirements

Nxumalo obo Minor and Others v Road Accident Fund (3207/2020; 4751/2021; 4752/2021)

Nxumalo obo Minor and Others v Road Accident Fund (3207/2020; 4751/2021; 4752/2021) [2023] ZAMPMBHC 3 (24 January 2023)

Court

Mbombela High Court, Mpumalanga

Case number

3207/2020; 4751/2021; 4752/2021

Judge

Legodi JP

The court held that the Road Accident Fund's practice of making payments upon settlement without a court order, where contingency fee agreements are in place and the matter is pending before court, is unlawful and contravenes section 4(3) of the Contingency Fees Act. The Fund is required to ensure strict compliance with the law and cannot shift responsibility to legal practitioners. The management failures of the Fund, including lack of proper systems and policies, resulted in late settlements and unnecessary litigation costs. The Fund's failure to participate in pre-trial and judicial case m…

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• Contingency Fees Act
• Road Accident Fund Act
• Settlement Without Court Order
• Punitive Costs
• Judicial Case Management

Bekker v De Agrela and Others (A5096/2019; 42125/2018)

Bekker v De Agrela and Others (A5096/2019; 42125/2018) [2022] ZAGPJHC 939 (25 November 2022)

Court

South Gauteng High Court, Johannesburg

Case number

A5096/2019; 42125/2018

Judge

Van der Berg AJ

The court found that the arrangement between counsel and the respondents was not a contingency fee agreement as contemplated by the Contingency Fees Act, but rather an arrangement falling under section 92 of the Legal Practice Act. Under section 92, counsel's entitlement to fees is triggered only if costs are recovered from the opposing party, and the client is never liable for counsel's fees. The arrangement did not require compliance with the statutory formalities of the Contingency Fees Act. The applicant, as a third party, lacked standing to challenge the validity of the fee arrangement,…

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• Contingency Fees Act
• Legal Practice Act
• Costs Taxation
• Indemnification Principle
• Bar Rules
• Fee Agreements

Allison v Road Accident Fund (2975/2021)

Allison v Road Accident Fund (2975/2021) [2022] ZAECMKHC 52 (23 August 2022)

Court

Eastern Cape High Court, Makhanda

Case number

2975/2021

Judge

Bloem

The High Court declared a contingency fees agreement invalid because it did not set out the attorney’s normal fees as required by the Contingency Fees Act.

• Contingency Fees Act
• Attorney Client Fees
• Invalid Agreement
• Road Accident Fund Claim
• Contingency-fees-act
• Attorney-client-fees

R.S v Member of the Executive Council for Health of the Gauteng Provincial Government (65454/2018)

R.S v Member of the Executive Council for Health of the Gauteng Provincial Government (65454/2018) [2022] ZAGPPHC 356 (17 May 2022)

Court

North Gauteng High Court, Pretoria

Case number

65454/2018

Judge

N P Mali

Settlement in a medical-negligence claim was made an order of court, with directions on taxation of attorney-client costs, trust creation, and trustee composition.

• Medical Negligence
• Contingency Fees Act
• Trust Administration
• Costs Taxation
• Children's Act
• Interest On Awards