LJU4802 PROFESSIONAL ETHICS

By

CINDY-LEE VAN ZYL

(35124075)

Submitted in partial fulfilment of the requirements for the degree

BACHELOR OF LAWS

in the

DEPARTMENT OF JURISPRUDENCE
SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

EXAMINERS: PROF MM MSWELA

PROF MP FERREIRA-SNYMAN
ADV S SERUMAGA-ZAKE

LJU4802 EXAMINATION

(OCTOBER 2022)

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 ACADEMIC DECLARATION OF HONESTY

Declaration: Cindy-Lee van Zyl

1. I understand what academic dishonesty entails and am aware of UNISA’s

policies in this regard.

2. I declare that this Examination is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in this Examination from the
work or works of other people has been referenced according to this style.

3. I have not allowed, and will not allow, anyone to copy my work with the intention
of passing it off as his or her own work.

4. I did not make use of another student’s work and submitted it as my own.

NAME: Cindy-Lee van Zyl

STUDENT NUMBER: 35124075
MODULE CODE: LJU4802
SIGNATURE:
DATE: 24 October 2022

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QUESTION 1: THE LEGAL PROFESSION

QUESTION 1.1(a)

I would explain to my parents that advocates, admitted attorneys and candidate

attorneys, who have the minimum qualifications and practical vocational training as
per Section 26 of the Legal Practice Act No. 28 of 2014 (the Act), qualify as “legal
practitioners”.

This is strictly regulated by legislation. The Act defines ‘‘legal practitioner’’ as: .. ‘an
advocate or attorney admitted and enrolled as such in terms of Sections 24 and 30,
respectively’.

Section 24 of the Act states that a person must prove that they are “a fit and proper
person” to the High Court in order to be admitted as a legal practitioner. This amounts
to a character requirement that a person must have in order to be regarded as a legal
practitioner because if a legal practitioner has a bad character they could fail to uphold
their duty to the client or the court. Section 30 of the Act details the requirements for
enrolment with the Council.1

According to the provided scenario, I have recently been admitted as an attorney and
therefore I will advise my parents that I do indeed qualify as a legal practitioner.

QUESTION 1.1(b)

I would explain to my parents that the difference between a “legal practitioner” and a
“candidate legal practitioner” is that a legal practitioner means an attorney or advocate
who has completed their vocational training and has been admitted to the legal
profession while a candidate legal practitioner means a person undergoing practical
vocational training, either as a pupil or as a candidate attorney.

QUESTION 1.2(a)

Zanele’s business in retail is different to Zodwa’s legal profession because a legal

professional should be worthy of public trust and also that a person in the legal
profession must always carry the highest ethical conduct in all of their professional
duties. Some of the characteristics of Zodwa’s legal profession are:

 There is an expectation that professionals in the legal profession are expected

to have a commitment to serving the public in matters related to their particular
field.
 Professionals in the legal profession should have a readiness (willingness) to
accept personal responsibility for their actions. These professionals should also
have the willingness to maintain public confidence in their particular field.
 In the case of the legal profession, the basic good is justice. Professionals in
the legal profession have a common good and are expected to have a
commitment to promoting the basic good of society.

1 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 29.

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  Professionals in the legal profession are self-disciplined. They must abide by a
code of legal ethics based upon what the best thinkers in their particular
profession regard as proper conduct for a member of that profession.
 Professionals in the legal profession share a sense of common uniqueness
(identity) and an established moral community.2

QUESTION 1.2(b)

Zodwa who is being suspicious of professional codes that regulate her profession is
called “insider criticism”. This insider criticism has two aspects which are practical
concerns and theoretical concerns.

Practical concerns about professional codes

These codes are sometimes transgressed by professionals and not always enforced
by law societies to be dealt with in an effective way. There are some legal
professionals who fear that by upholding ethical values and complying with the rules
that they could be at a disadvantage as they might lose a client that will rather go to
another professional that is willing to ‘bend the rules’ in the client’s favour. Because
these codes are not being correctly enforced some professionals argue that the legal
profession should abandon them and replace these codes with business ethics. I am
not in favour of this view and do not believe this is valid.3

Theoretical concerns

The idea that legal ethics can be reduced to the ‘rules of professional conduct’
counters the idea that the practice of law is a profession. The legal profession relies
on self-regulation, this means that legal professionals in this field need complex
professional judgements of which the reasonableness can be judged by fellow
professionals only.

The fact that the idea of legal ethics is no more than the compliance with the legal
code does not demand respect for the profession, in fact, it somehow makes a
mockery of it because it reflects the law and bar societies as no more than agencies
created to protect vested interests. This is indeed valid. The concept of self-regulation
assumes that the behaviour and conduct of a practitioner will be judged by those in
the same profession who exhibit those virtues and not against a code.4

QUESTION 1.3

Objectivity means the quality of being objective and is frequently identified with
fairness and impartiality. A legal professional should have keen logical sense as well

2 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 11.
3 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 10.
4 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 10.

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as good preparation in order to know what is needed.5 Objectivity (as with integrity) is
an inborn quality however it can be practised and improved.6

Emotions must be blocked out in order to achieve objectivity. A legal professional

should learn how to distinguish facts from emotions. This will assist the legal
professional to not be influenced by their emotion in interviews or cases. It has been
said that jurists are human and will have to accept the fact that the ideal of total
"mechanical" objectivity can never be attained. Legal professionals should be able to
distinguish facts from emotions.7

QUESTION 2: PHILOSOPHICAL APPROACHES TO ETHICS

QUESTION 2.1

Bentham's utilitarianism theory of ethics

Jeremy Bentham was a famous legal philosopher. This philosopher believed that the
whole legal system should be based on the utilitarian idea that all laws should be
aimed at achieving the greatest good for the greatest number.8
Utilitarianism is the purpose orientated theory of ethics. The purpose of which an
action is intended to achieve is the only thing which is relevant in determining whether
an action is right or wrong. Jeremy Bentham’s utilitarianism theory of ethics is the
moral judgement which is found by looking at whether the result is useful. It is also
then determined by looking if the useful result brings the greatest happiness to the
greatest number of people. An example of this is if someone is getting someone off
the hook who was accused of murder, only the attorney and the murderer will be happy
and the rest of the community will be unhappy. This is ethically not sound. Jeremy
Bentham believed that usefulness is part of moral judgement and not a sense of duty
and respect of legal rules in rule-based ethics.9

The difficulty of Jeremy Bentham’s utilitarianism theory of ethics is that not everything
which is useful is essentially right because there are things that are ethically wrong but
which are useful. An example of this is the abuse of science.10

Aristotle's virtue ethics

Virtue ethics is a philosophy developed by ancient Greeks including Aristotle and it a

character-based approach in the quest to live a life of moral character. It is clear that
Aristotle based his ideas on excellence of character and not on rules that had to be
obeyed. Virtue was regarded as an excellence in ancient Greek philosophy and
therefore from this perspective all ethics are virtue ethics. Virtue results from human
5 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 12.
6 L M du Plessis, ‘The ideal legal practitioner’ [1981] De Reebus, 424, 425.
7 L M du Plessis, ‘The ideal legal practitioner’ [1981] De Reebus, 424, 425.
8 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 23.
9 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 23.
10 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 23.

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actions for the view of the moral character of a person deriving from various activities
according to Aristotle’s theory.11

The kind of person one should endeavour to become including all (moral) character
traits which were regarded as virtuous was described by Aristotle. In this way, virtue
will allow the person to thrive and prosper because their ethics are entangled with the
personal success. Aristotle described this as a direct link between ethics and success.
A simple test to be put to one’s self is, when deciding what to do in a situation, put
yourself in the shoes of a person with good moral character to know what they would
do in the same situation. This, according to Aristotle, will make a person look to act
with virtue in the situation which then becomes mean between the two vices.12 In the
domain of confidence and fear there will be two vices. In fear, a way which shows a
lack of courage will be a vice of deficiency. On the other hand with confidence,
decisions made from acting with boldness or ill-considered haste will be a vice of
excess. Looking at these two vices which are both not ideal, the only vice which would
be appropriate is courage. This is why there is a demand to always act in a courageous
manner.13

By partaking in the public affairs of the state is how some virtues, which are essential
to a perfect life, can only be established according to Aristotle. It was Aristotle’s belief
that if a person devoted his life to public-political matters then that person would reach
the highest level of life.14

Human activities and actions aimed at reaching distinction is a virtue in every part of life.
Aristotle’s opinion was that every pursuit aimed at attaining this way of distinction in life
was a virtue that all human beings should cherish. Greek thought was revived by
contemporary virtue ethics. This is done by way of questions such as what makes a
particular human quality a virtue? Or, what is the relation between being a virtuous
person and doing the right thing?15

The approach in contemporary virtue ethics is unique in that it minimizes the

consequences or rules and centres a person’s character in making moral judgements.
Depending on the type of person you want to become and the virtue you want to
embody, the mode of conduct to adopt will be given to the specific situation. Therefore,
according to Aristotle, virtues result from a person’s moral character which emanates
from various activities.16

11 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 24.
12 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 24.
13 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 24.
14 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 24.
15 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 25.
16 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 25.

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In Aristotle’s philosophy, a person should have consistent synchronized actions which
focus on achieving one or more objectives as ends of excellence. This is in line with the
primary virtues of legal practitioners which is simple, to sound and reflective judgements.17

The challenge with Aristotle's virtue ethics is that when critics look at the fact that
should a person’s virtue be the basis for ethics, it is very possible that the person does
not possess virtues and that it is a ‘natural gift’. The critics maintain that virtue is talent
that cannot be learnt and should you be born without the talent you will never have it.
In light of this the critics say that virtue cannot be a foundation of ethics and morality.18

QUESTION 2.2

South Africa’s traditional approach which is the current philosophical approach in the
legal profession, is rule-based. This means that legal professionals must follow their
respective codes of conduct or the rules of court in order for their actions to be ethical.
The rule-governed ethics advises what must be done in order to qualify as morally
good and the rule must be accepted as a duty. The legal professional has an obligation
to obey the rule once the rule is accepted as a duty.

QUESTION 2.3

Contemporary thinkers created postmodernism in response against the 17th century

Europe Western scientific model of rationality. The view that universal morality has
come to an end is one of the characteristics of postmodernity. Postmodernism is
characterised by the celebration of difference, the recognition of the necessity to
accept uncertainty and indeterminacy as a way of life, the demise of the belief in the
universal validity of a particular (Western) lifestyle or morality and the rejection of
absolutes as well as universals. Therefore a single universal ethical code binding on
everyone all the times is not part of postmodern ethical thinking. Consequently,
postmodern ethics denies and rejects a rule-based perspective in which law is
protected by universal principles and rules which can be practiced in all situations and
the postmodern period ends up without a practical ethical or moral code. This is
because law creates definite, sole and authoritative criterion in terms of which human
conduct must be judged. Practical norms cannot take the form of general principles or
rules in order to be amenable to others in a democratic world.19

QUESTION 3: THE SOUTH AFRICAN LEGAL PROFESSION

QUESTION 3.1(a)

A lawyer has the duty to uphold and be loyal to the law of the Republic and is bound
by the content of the law. However, in circumstances such as this matter in Thuthuka,
a lawyer may feel morally impelled to take part in acts of civil disobedience and

17 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 25.
18 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 25.
19 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 27.

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defiance of the law. Nelson Mandela and Mahatma Gandhi are examples of two
struggle lawyers who engaged in acts of civil disobedience and defiance of the law. It
is important to note that these examples are of two people who had extremely valid
reasons for doing so. Therefore a lawyer wishing to engage in civil disobedience will
need to reflect very carefully before doing so and the lawyer must be cognisant of their
duty to uphold and be loyal to the law.20

In this this matter in Thuthuka, the lawyer will need to advise the community that civil
disobedience may be justified on the following grounds (1) Positive law is unjust and
not worthy of respect (2) It is based on the individual’s religious beliefs (3) The laws
are immoral (4) Utility so dictates which mean that when disobedience of the law brings
about the greatest good for the greatest number.21

Matthews v Cape Law Society 1956 (1) SA 807 (C) brought about an important shift
in the law as it brought an end to the investigation into the character of politically
motivated legal practitioners. This case resulted from the Defiance Campaign in which
Nelson Rolihlahla Mandela took part. Because Matthews Qalisile Dayimani had two
previous convictions under the Suppression of Communism Act the Cape Law Society
refused to register his articles of clerkship. The court then reasoned that the genuine
question was not whether partaking in the Defiance Campaign revealed a lack of
integrity, honesty, and honour, but whether it could be resigned with the duty of an
attorney to uphold all the existing laws of the land.

Society of Advocates of South Africa (Witwatersrand Division) v Fischer 1966 (1) SA

133 (T) was in regard to a practising advocate at the time, Bram Fischer. After
challenging the laws of the land, he was subsequently arrested. After applying for bail
Bram Fischer did not return back to court to stand trial. He was found in contempt of
court and intentionally misled the court. This reflected negatively on his character.
Bram Fisher was struck off the roll by the Johannesburg Bar Council and he was
sentenced to life in prison.

QUESTION 3.1(b)

Civil disobedience is the refusal to comply with certain laws which are considered
unjust and it is intended as a peaceful form of political protest. Civil disobedience is
therefore an exception to the general rule which is that a lawyer has a duty to obey
the law.22

QUESTION 3.1(c)

The circumstances under which a legal practitioner may be justified to engage in civil
disobedience are as follows:23

20 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 35.
21 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 36.
22 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 41.
23 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 40.

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  If laws are immoral – this is a matter of individual conscience on whether to
obey them or not.

 If it is based on the individual’s religious beliefs – this is the idea is that one
should obey God rather than man.

 If positive law is unjust and not worthy of respect – the appeal is made to natural
law and man’s reason. According to Locke: the function of government is to
equally protect the individuals rights and act in everyone’s interests therefore
civil disobedience would be allowed if the state failed to fulfil this function.

 If utility so dictates - non-compliance to the law is a way to bring about the

greatest happiness to the greatest numbers.

QUESTION 3.2

The definition of a ‘fit and proper’ person is not defined in any legislation therefore Mr
Jones will be subjected to character screening and will need to prove his honesty,
reliability and integrity. The burden of proof will be on the applicant, Mr Jones. It is
important to note however, that the decision to allow a person to enter or stay in the
legal profession is discretionary value-judgement by the seniors of the court. Mr Jones
must show integrity, reliability and honesty. These are important characteristics that
can affect the relationship between the lawyers and client. Facts in the character
screening are never identical, and the exercise of a discretion need not be the same
in similar cases.24

In the past, the Law Society of Natal opposed Mahatma Gandhi’s application to be
admitted as an advocate of the High Court of Natal because he was a person of Indian
origin and therefore not a "fit and proper" person to practise law. The character
screening of lawyers was tested constitutionally soon after the establishment of the
democracy in South Africa. Now the use of the ‘fit and proper’ test of a person is
constitutionally acceptable.25

Potential attorneys and advocates are interviewed by a senior person in the respective
professions in South Africa. The purpose of the interview is to determine whether the
applicant has ever been accused in a disciplinary hearing or has any previous criminal
convictions. The senior person may use this interview to see whether the applicant
has knowledge of the legal profession’s ethical rules as well as the application thereof.
This is a quick interview and is usually around no more than fifteen minutes. In this
interview the senior person will decide whether or not the applicant is a ‘fit and proper’
person and testify as such.26

24 Slabbert M “The requirement of being a “fit and proper” person for the legal profession” 2011
14(4) PER /PELJ 209, 212.
25 Slabbert M “The requirement of being a “fit and proper” person for the legal profession” 2011
14(4) PER /PELJ 209, 213.
26 Slabbert M “The requirement of being a “fit and proper” person for the legal profession” 2011
14(4) PER /PELJ 209, 217.

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In Vassen v Law Society of the Cape of Good Hope (468/96) [1998] ZA (SCA) the
attorney had stolen money by convincing an insurance company to pay the proceeds
due under a life insurance policy to himself instead of to the beneficiary. He then used
the money for personal purposes and denied doing so despite clear evidence to the
contrary. The court ruled that he was not a "fit and proper" person to practise law.
Honesty, reliability and integrity are expected of an attorney.27

In this matter, the court may find that similarly to the above case, Mr Jones is not ‘fit
and proper’ as he does not possess the qualities of honesty, reliability and integrity.

QUESTION 4: ROLE MORALITY

QUESTION 4.1

There are distinct separate roles that a judge and a legal representative in an
adversarial system play and their roles are carefully separated. In this system two
parties face each other in which the parties in a dispute have the responsibility for
finding and presenting evidence.

Judge in the adversarial system

• The role of the judge is to act as an impartial referee.

• The judge will listen to both sides of the case.
• The judge has control of the court and must oversee the legal representative
and ensure that they adhere to the procedural rules of the court.
• The judge must establish the true version of the facts of the case.
• The judge must objectively apply the law to these facts.
• A judge is an impartial and objective party.

Legal practitioner in the adversarial system

• Lawyers must try settling disputes rather than initiating legal proceedings.
• Legal practitioners must focus on their client’s interests.
• It is not the task of legal representatives to make the decision whether or not
their client is guilty or not in the adversarial system.
• The legal representative should act as a mouthpiece for their clients.
• The legal representative will only listen to their client’s accounts of the case.
• The legal representative must promote their client’s interests valiantly without
any regard to the interests of other persons.
• Importantly, the legal representative’s duty to the court is greater than their duty
towards their clients.

The competition ensues between the plaintiff and the defendant and each party has a
person to argue, plead and present their case. Each of the legal representatives
develop and present their arguments. They have the opportunity to submit evidence
as well as to call and question witnesses. An independent judge then renders the

27 Slabbert M “The requirement of being a “fit and proper” person for the legal profession” 2011
14(4) PER /PELJ 209, 214.

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decision and the assumption is that the adversary system will result in justice. This
means that each party’s rights will have equal protection.

QUESTION 4.2

An alternative to the adversarial approach is the “responsible lawyer” approach. A

responsible lawyer is essentially an officer of the court of the legal system and a
guardian of the legal system. Importantly, the lawyer’s duty to the court is greater than
their duty towards their clients. This is because the lawyer is a guardian of the legal
system even if it goes against their client’s interest because it will be in the public’s
interest.28

A legal practitioner has a duty to not disclose the confidences of a client to the court
excepted. The legal practitioner must be subordinate to their own interests compared
to those of the client and the court. Integrity demands that legal practitioners disclose
facts, evidence and legal arguments even if it may be detrimental to their client and
they must have flawless court manners even under the most provocative
circumstances.29

The legal practitioner must always conduct themselves in a dignified fashion as well
as maintain the dignity of the court as a guardian of the legal system. They are not
allowed to conceal anything that the court would require for the administration of
justice. This includes not directly or indirectly misleading the court. This would be done
by making false statements or misrepresentations. The court must be able to rely on
the honesty and integrity of a lawyer’s statement, if a court cannot rely on this then
there can be no real administration of justice.30

As noted above, the legal representations cannot conceal anything a court would
require for the administration of justice. If this is done, then the court may find that the
lawyer is not a fit and proper person which is a requirement to practice law. In the case
of Society of Advocates of Natal and the Natal Law Society v Merret 1997 (2) All SA
273 (N) an attorney had mislead the court in the divorce proceedings and he was
removed from the roll. The reason was because he was not found to be a fit and proper
person and the court could not trust him again.31

Advocates should bring any deviations from the usual forms to the attention of the
court as well as offer an explanation for this in motion court proceedings.

Practitioners must put all relevant facts to the court and must act in good faith in order
for the court to have full knowledge of the circumstances of the case in ex parte
applications.

28 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 52.
29 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 53.
30 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 53.
31 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 53.

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Legal representatives must keep well-informed of the law. This must include the
newest authorities. Legal representatives may not abuse court procedures or use
delay tactics. A document of over 800 pages where it could have been far less was
used as a tactic of abuse in In Ex Parte Jordaan: In Re Grunow Estates (Edms) Bpk v
Jordaan 1993 (3) SA 448 (O).

Furthermore, legal representatives may not act in contempt of court, contempt of court
is both a statutory offence as well as a common-law offence. There are many ways
this could be done such as insulting a judge. 32

QUESTION 5: EXAMPLES OF SITUATIONS OPEN FOR UNETHICAL CONDUCT

QUESTION 5.1(a)

The principle of privileged information in South Africa is that confidential

communications - which are made in the view to litigate - and communication with the
purpose of receiving or giving legal advice amounts to privileged information.

Furthermore, the principle of privileged information means that a lawyer cannot divulge
communications or confidences made to him by the client in the course of their
relationship. This information, whether it be in writing or oral, cannot be divulged even
if the client admits to a crime. The right to have communications protected belongs
solely to the client and only the client will be able to expressly waive this right. This
duty survives termination of the mandate between attorney and client and even the
death of the client.33

There is however, an exception to this principle, where communications by a client

which are in furtherance of a crime is not protected. As Mrs Williams is contemplating
a crime of murder, this information will not be protected under the principle of privileged
information.34

QUESTION 5.1(b)

The fee agreement that has been entered into between Mr Scott and Mrs Williams is
a no win no fee contingency fee agreement. The principles of a no win no fee
contingency fee agreement are:

• that no fees will be charged in the event that the prosecution is

unsuccessful.
• that the legal practitioner bears the risk of the losses that would incur in the
event of an unsuccessful litigation.

32 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 53.
33 Wagner K and Brett C “I heard it through the grapevine: The difference between legal or
professional privilege and confidentiality” (2016 De Rebus) <https://www.derebus.org.za/heard-
grapevine-difference-legal-professional-privilege-confidentiality/> accessed 25 October 2022.
34 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 59.

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 • that it helps in the access to justice because they enable litigants the
opportunity to obtain legal representation which they would not ordinarily
have been able to afford.
• that the legal practitioner has financial interest in the outcome of the matter
which is not usually the norm.
• that it is regulated in terms of the Contingency Fees Act and any agreement
that does not comply with this Act will be invalid.

The disadvantage of the no win no fee contingency agreement is that the there is
potential for the legal practitioner to abuse his position of power and may act
unethically because the parties are not on equal footing.

QUESTION 5.1(c)

P. M. Mojapelo, the Deputy Judge President in Masango and Another v Road Accident
Fund and Others 2016 (6) SA 508 (GJ) distinguishes between the no win no fee and
success contingency agreements by describing the no win no fee agreement as:

“that the legal practitioner shall not be entitled to any fees for services rendered in
respect of such proceedings unless such client is successful in such proceedings to
the extent set out in such agreement”.

Mojapelo further describes the success fee agreement as:

“that the legal practitioner shall be entitled to fees equal to or, subject to subsection
(2), higher than his or her normal fees, set out in such agreement, for any such services
rendered, if such client is successful in such proceedings to the extent set out in such
agreement”.

Mojapelo stated that the success agreement was applicable to the case and went
further to describe this agreement as an agreement whereby the legal practitioner may
charge fees higher than the normal fee if the client is successful. The higher fee is also
referred to as the success fee. Only the second type of agreement is subject to the
statutory caps (Contingency Fees Act) which is 25% of capital award as a fee.35

QUESTION 5.3.1

The referral rule relates to advocates (without fidelity fund certificates) who generally
do not receive briefs from a client however they may receive a direct instruction from
the legal aid board for a legal opinion. Advocates are briefed by an attorney. Advocates
are obliged to accept a brief if they are capable and available. The religious or political
beliefs of the advocate do not justify the advocate to refuse the brief.

Attorneys on the other hand, are not obligated to take a mandate from a client this is
because an attorney must assess the case to consider whether they have the
necessary skills and knowledge.36

35 Masango and Another v Road Accident Fund and Others 2016 (6) SA 508 (GJ).
36 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 57.

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QUESTION 5.3.2

Attorneys (and some advocates who do deal directly with clients) have the fiduciary
duty to keep client’s money separated from their funds and therefore they must
operate a trust account. The money held in this trust account does not form part of the
attorney or advocate’s assets. These legal professionals must hold fidelity fund
certificates in order to handle the client’s money as per Section 86(1) of the Legal
Practice Act.37

QUESTION 5.3.3

When there are conflicts of a lawyer’s role or other obligations or competing interests,
that is when a conflict of interest occurs. The conflicting interest may adversely affect
the judgement of the lawyer and they might prefer the interest of one client over the
other.

There are two circumstances under which a conflict of interest may arise:

• Conflict of simultaneously representing two or more clients.

• Conflict between the attorney’s present and past (former) clients.

Where there is conflict between the attorney’s personal interest and the client’s
interests or conflict between the interests of the public and the rights of non-client third
parties a legal practitioner should identify the conflict as soon as they can. This is
because the lawyer must not accept the mandate and not acquire financial interest in
the case. Interestingly, the lawyer must continue to represent a client, even when they
have admitted guilt as this admission is regarded as confidential communications.38

37 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 58.
38 University of South Africa, Professional Ethics: Tutorial Letter 501/3/2022 for LJU4802 (Unisa,
2022) 60.

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