Levelling the playing field

September 1st, 2012
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Attorneys’ fees for court appearances

By Kim Hawkey

The Right of Appearance in Courts Act 62 of 1995 conferred on attorneys the right of appearance in the Constitutional Court and the Supreme Court (now the High Court, and includes the Supreme Court of Appeal), subject to certain conditions.

Section 3 of the Act provides:

‘3(1) Any attorney shall have the right to appear on behalf of any person in any court in the Republic, except the Supreme Court and the Constitutional Court.

(2) Any attorney who wishes to acquire the right to appear on behalf of any person in the Supreme Court may apply to the registrar of a provincial division of the Supreme Court in the manner provided for in section 4(1).

(3) Any attorney who has acquired the right of appearance in the Supreme Court may also appear in the Constitutional Court.

(4) An attorney who has been granted the right of appearance in the Supreme Court shall also be entitled to discharge the other functions of an advocate in any proceedings in the Supreme Court.’

Seventeen years after its enactment, the Act has not resulted in a levelling of the playing field between advocates and attorneys who appear in court. While attorneys can appear in all South African courts, they – unlike their advocate colleagues – need to apply for such right. This requirement for attorneys will, however, be done away with if s 25(2) of the recently published Legal Practice Bill (B20 of 2012) is enacted in its current form.

In terms of s 25(2), both attorneys and advocates will have the right to automatically appear on behalf of any person in any court in South Africa. Recognising the discrimination resulting from the current situation, the drafters of the legislation state in the memorandum to the Bill: ‘This provision unconditionally abolishes the current discrimination on the right of appearance in the High Court between advocates and attorneys.’

However, only time will tell whether the passing of this legislation will have an impact on the parity of treatment of attorneys and advocates in terms of the fees they can charge for court appearances and, in particular, whether they can charge a similar day’s fee where a matter due to be heard in court is postponed or settled. The treatment of these fees by the courts in the past has resulted in conflicting decisions by various divisions of the High Court.

In Promine Agentskap en Konsultante Bk (At) v Du Plessis en ‘n Ander [1998] JOL 3912 (T), for example, Van Dijkhorst J held that the same work done by attorneys and advocates of equal seniority, experience and ability must be equally compensated.

In Road Accident Fund v Le Roux 2002 (1) SA 751 (W) the court drew a distinction between the trial fees an attorney and an advocate may respectively draw when a matter is settled prior to the trial date, based on the difference in the nature of the practice of the two branches of the profession (at 756C–D). An advocate would be prejudiced in such circumstances, whereas an attorney could do ‘other lucrative work’, the court reasoned (at 756E–F).

In disallowing a reservation fee for an attorney, Blieden J said that from the time an advocate receives a brief on trial, he must assume that the trial will proceed and must turn away other work for that day, whereas an attorney was at the ‘coalface’ and therefore knew the chances of a settlement (at 757C–D). He distinguished the current matter from the Promine Agentskap matter on the basis that the Promine Agentskap case dealt with fees for work actually done, whereas in the Le Roux matter the fees related to work not done due to settlement of the matter. Blieden J concluded that ‘the position of attorneys and advocates cannot be compared’ in this respect (at 758J).

The matter of an attorney’s day fee for work not done due to the settlement of the case was again the topic of a recent Eastern Cape High Court decision in Stevens NO v Maloyi (ECP) (unreported case no 1205/08, 26-4-2012) (Tshiki J). Here, the court, per Tshiki J, decided that an attorney should not be treated any differently to an advocate in similar circumstances. The details of this matter are set out below.

Factual background

The issue arose in the context of an application for a review of taxation in terms of r 48 of the Uniform Rules of Court. The case in question involved a claim for damages that the plaintiff had instituted against the defendant for injuries caused by a dog attack. The matter was settled on the morning of the day the case was set down for trial.

The plaintiff’s attorney had claimed R 13 000 as a day’s fee for the day set aside for the trial of the case. The defendant objected to this amount and the taxing master awarded a reduced amount of R 1 800 on the basis that this was ‘more or less the fee for about two hours which the attorney had lost when he was attending to the case during the morning period of that day’ and that he ‘would be able to go back to his office and do other lucrative work’ (at para 2).

The taxing master took the view that, although the plaintiff’s attorney had confirmed that the matter was the only one he had in his diary for that day (and had presented his diary as confirmation of this), he ‘cannot say he did not do any other work on that day’ (at para 3).

Dissatisfied with the taxing master’s decision, the plaintiff’s attorney filed a notice for review of the decision with the Eastern Cape High Court in Port Elizabeth.

Issues

The crisp question for the court to decide was whether an attorney who appears in court in a case that is settled on the date of trial is entitled to charge a day’s fee, which an advocate is entitled to charge in the same circumstances. In this regard, the court noted that it was common cause that had the plaintiff been represented by an advocate, such advocate would have been entitled to charge a day’s fee, which would be determined by his experience.

The defendant argued that there was a difference in the opportunities that attorneys and advocates had in terms of generating fees and that an attorney should not, therefore, be treated similarly to counsel. The day’s fee, he argued, was thus correctly reduced on taxation.

The plaintiff, on the other hand, argued that there was no reason to differentiate between attorneys and advocates in this matter as, here, the attorney was acting as counsel. In support of this, the plaintiff submitted that:

  • Had the plaintiff made use of the services of an advocate, such advocate would have earned a trial fee regardless of whether the matter proceeded on the date set down for trial and, further, would have attended to additional work in his chambers on the date of settling the matter. The same principle must apply to attorneys in similar circumstances.
  • R 13 000 was a reasonable amount for the attorney to charge, taking into consideration his seniority and experience. This amount would equate to that of a junior counsel with more than 15 years’ experience, who would be in the ‘attorney’s echelon’ (at para 10).

Decision

The court overturned the taxing master’s decision, noting that a court does not lightly interfere with a taxing master’s discretion unless, as in the current instance, the court is satisfied that the decision is clearly incorrect (relying on Kloot v Interplan Inc and Another 1994 (3) SA 236 (SE)).

Referring to existing case law, the court distinguished the current matter from previous cases. Here, the attorney had set aside the day for the trial of the case, which was in fact in court for that purpose. The court noted that there could be no distinction between the conduct of attorneys and advocates in preparing for a trial in such circumstances: ‘They have to prepare fully for the case and could not take on any other work on the day set aside for trial in the High Court’ (at para 17).

The court noted that it would be by ‘sheer luck’ that an attorney in such circumstances would be able to consult with a client who had not made a prior arrangement with him on that day (at para 17). The court added that, ‘for argument’s sake’, an advocate in similar circumstances would, for example, be able to do pending work in his chambers after a matter is settled and would also be able to deal with an urgent application.

At para 19, the court held:

‘An attorney with the right of appearance in the [High] Court who appears in court in preference to an advocate cannot be expected to be treated any differently from an advocate as regards his or her fees for an appearance. When an attorney appears in the High Court, he is entitled to charge as though he were an advocate’ (relying on Stubbs v Johnson Brothers Properties CC and Others 2004 (1) SA 22 (N)).

The court added, at para 19, that this was not to equate the two branches of the profession, but was motivated by a sense of justice:

‘If an attorney can prove that he has not set aside any other work on the date of the trial which did not proceed due to the settlement of the case, there is no reason why he cannot be compensated for the day on which he should have dealt with the settled case. The reasoning behind [this] is not to equate the professions of attorneys and those of advocates but to do justice in similar cases involving both the advocates and attorneys. In my view, the only justifiable compensation in such circumstances is for the taxing master to allow a day’s fee for the attorney which would be equivalent to what the advocate of the same experience would have justifiably charged.’

Kim Hawkey, kim.hawkey@derebus.org.za

This article was first published in De Rebus in 2012 (Sept) DR 20.

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