- An advocate’s claim for unpaid RAF-related fees failed because the attorneys had not yet been paid by the RAF.
- The dispute exposed how delayed RAF payments are creating growing financial pressure inside the legal profession.
- The judgment confirmed that attorneys and advocates can legally agree to payment terms linked to RAF payouts.
An advocate who completed work on Road Accident Fund matters walked away without payment after a legal battle with the attorneys who briefed him. This case exposed how deeply RAF payment delays are starting to impact the legal profession itself.
The dispute began when Sandile Sunday Lubisi sued T M Chauke Inc. for unpaid counsel fees linked to RAF litigation. The firm argued that it could not be forced to pay because the Road Accident Fund had not paid the attorneys yet.
Lubisi had been briefed by the firm to appear in several RAF matters. The written instructions included a key condition that counsel would only be paid after the attorneys themselves received payment from the RAF. The instructions also stated that if those terms were not acceptable, the brief should be returned.
Lubisi accepted the work, completed the legal services, and later submitted invoices for payment. When payment was not made, the matter escalated into litigation.
RAF payment delays spill into the legal profession
At the heart of the case was whether the advocate’s fees were already legally payable. The attorneys argued that they were not refusing to pay but that the debt was not yet enforceable because the RAF had not paid them. According to the firm, payment by the RAF acted as a suspensive condition, meaning their obligation to pay counsel would only arise once the RAF released the money.
The advocate argued that the attorneys were still responsible for paying his fees, regardless of whether they had received payment from the RAF.
Acting Judge A Kekana ultimately found that the advocate had accepted the payment arrangement by taking the briefs and continuing with the work despite knowing the terms. Kekana said the advocate’s conduct was consistent with accepting the terms of the brief and inconsistent with any rejection.
The court also found that the regional court had focused on the wrong issue by concentrating on who was responsible for payment instead of first deciding whether the debt had become enforceable. The judge said liability for payment can only arise once it is established that the obligation has accrued and is enforceable.
Attorneys and advocates are allowed to regulate payment terms
Another important issue was whether legal practitioners are even allowed to enter into these types of payment arrangements. Lubisi argued that the rules governing attorneys and advocates did not permit agreements delaying payment until the RAF paid the attorneys, but that argument failed.
Judge Kekana found that both the Legal Practitioners’ Code of Conduct and the rules of the General Council of the Bar recognise contractual agreements regulating payment terms between attorneys and advocates. The judge said that where parties have agreed on the conditions under which payment becomes due, as in this case, those contractual terms govern their relationship.
The court found there was no evidence showing that the RAF had already paid the attorneys. Because the agreed condition remained unfulfilled, the advocate’s claim was found to be premature.
Kekana concluded that the debt is not due and payable. The advocate’s claim was dismissed with costs.
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