- The High Court in Mahikeng turned down an appeal involving unpaid advocate’s fees of R133 895.40.
- The court confirmed attorneys remain responsible for advocates’ fees unless there is a clear agreement that says otherwise.
- The judges found the law firm’s own actions showed it had accepted responsibility for the advocate’s fees.
Attorneys who brief advocates remain liable for their fees unless there is a clear agreement stating otherwise. The High Court in Mahikeng ruled on this while dismissing an appeal by a law firm that disputed responsibility for paying outstanding counsel’s fees.
Acting Judge GV Maree, with Acting Judge M Wessels agreeing, dismissed an appeal brought by Nilsen Steenkamp & Inc and A Nilsen against Advocate ME Coetzee. The appeal challenged a magistrate’s decision ordering the appellants to pay R133 895.40, plus interest and costs, for unpaid legal fees.
Dispute arose from arbitration proceedings
The dispute started after Coetzee provided legal services during a private arbitration involving the law firm’s client, Mr Vermaak, and the Greater Taung Municipality.
Coetzee explained that the appellants asked her to act as counsel for their client and agreed the law firm would pay her reasonable fees. She received an initial payment of R23 365.60, with the balance due after arbitration concluded and costs were taxed.
After a successful outcome for Mr Vermaak, the municipality paid the taxed costs to the law firm. Even though the firm received these funds, Coetzee’s outstanding fees were never paid. She began legal proceedings, limiting her claim to R133 895.40, which was the amount allowed after tax and after subtracting the payment she had already received.
The appellants denied making any fee agreement with Coetzee. They argued they were simply a postbox to receive and transfer payments for Mr Vermaak, and said any agreement was between Coetzee, Mr Vermaak, and labour consultant Mr Dippenaar.
Appeal focused on liability for advocate's fees
Although the notice of appeal raised many points, the judges said the real issue was whether Coetzee’s mandate included a fee agreement making the appellants liable for her fees.
The court needed to decide if there was an agreement, whether express, tacit, or implied, under which the attorneys accepted responsibility for paying the advocate.
Court reaffirmed long-standing legal principle
Judge Maree explained that advocacy is a referral profession and advocates usually do not contract directly with the public. “The legal link between an advocate and their fees is the attorney, not the member of the public,” Judge Maree said.
“If there is no clear agreement between an advocate and an attorney about fees, the default is that the attorney is liable for paying the advocate’s fees.”
The judgment said attorneys are expected to make sure they can cover counsel’s fees before briefing an advocate and cannot usually shift this responsibility to the client unless there is a clear agreement.
Law firm's conduct supported advocate's case
The appeal court found the evidence strongly supported Coetzee’s version of events. Judge Maree noted that, during the trial, it was accepted that the first appellant acted as attorney of record for Mr Vermaak. The firm’s later conduct also showed it accepted responsibility for the advocate’s fees.
The judges noted that the law firm received money into its trust account, made an initial payment to Coetzee, submitted her invoices for taxation, included those fees in its own bill of costs, and allowed the advocate’s fees to be taxed.
Judge Maree concluded, “The respondent showed that an agreement was reached, expressly, tacitly, and by implication, that the first appellant acted as instructing attorney for the respondent and would be liable for payment of the respondent’s fees.”
The court also rejected the second appellant’s evidence, finding it did not line up with the professional duties of an attorney or how the matter was handled.
Additional grounds of appeal failed
The appellants also argued that Coetzee had inflated her fees, relied on a supposed contingency fee agreement, and referred to the Legal Practice Act’s Code of Conduct.
Judge Maree dismissed all those arguments. He found there was no evidence of a contingency fee agreement and explained the Code of Conduct only took effect in 2019, about two years after this mandate ended, so it did not apply retroactively.
Finding no reason to change the magistrate’s judgment, the High Court dismissed the appeal with costs, including the costs of counsel on Scale C.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
