Limpopo Law Council: Attorney’s Week

YOU AND YOUR ATTORNEY

THE ATTORNEY’S PROFESSION

It is part of the function of the Council of the Law Society of the Northern Provinces to act in the interest of members of the public. The Council reiterates its commitment to protect the public against unprofessional and irresponsible members of the attorneys’ profession and is prepared to investigate a complaint which is submitted to it in good faith and which falls within its jurisdiction.
Attorneys are proud of the high standards set by the profession and the low incidence of disciplinary action required by the various provincial Law Societies. All attorneys are bound by a strict professional code.
The following information contains guidelines relating to circumstances under which a complaint may be investigated and the correct method of lodging a complaint.

COMMUNICATION

Experience has shown us that many complaints arise from a lack of communication between the attorney and his client. Before lodging a complaint with the Law Society, it is suggested that you make an appointment with your attorney and that you raise your problems with him/her and ask him/her to inform you in regard to your enquiries. Remember however that an attorney is entitled to be remunerated for consultations.
Alternatively you may send him a letter, preferably by registered post, asking him/her for a full report if he/she has not reported to you to your satisfaction. An attorney is obliged to report to his client on progress in a matter.
If an attorney is acting on behalf of a creditor against you in a collection matter he/she must furnish you with a statement of account reflecting how the balance is made up, and incorporating the capital amount, costs, interest and payments since the instruction. It is only fair to allow the attorney a reasonable opportunity to report to you before filing a complaint.

CIRCUMSTANCES IN WHICH A COMPLAINT MAY BE FILED

Before filing a complaint please ascertain whether it is a matter upon which the Council of the Law Society of the Northern Provinces may adjudicate.
The Council of the Law Society has powers and responsibilities, in terms of an Act of Parliament, and rules of professional conduct, to ensure that all attorneys observe proper standards of professional conduct and service. The Council has no power to order an attorney to pay compensation to a client. If you wish to enforce your rights against the attorney you should consult another attorney to assist you with an action in a Court of Law.
The Council can and does investigate complaints concerning the ethical behaviour of attorneys over whom it has jurisdiction, including a persistent delay in answering letters, failure to account for money held on the client’s behalf and allegations of overcharging of attorney’s fees. Where there is a complaint of overcharging in matters which are governed by a tariff, such as
law suits or conveyancing matters, there must be evidence by way of taxation by the relevant authority that there has indeed been overcharging. The Council cannot investigate complaints alleging incompetence or negligence because these complaints can give rise to claims for compensation which the Council has no power to award – such compensation can be pursued only through legal proceedings or the threat of them, by the client concerned. Mere negligence is not improper conduct, although cases of gross negligence might be considered as improper conduct which calls for investigation. However as indicated above, these will usually be dealt with only after the legal issues between the attorney and the client have been resolved.
The Council’s own disciplinary powers are limited to reprimanding the attorney or imposing a fine of up to R100 000. When it appears to the Council that an attorney may have been guilty of unprofessional conduct of such a nature as might warrant more serious punishment, the Council will instruct an attorney to proceed against the offending attorney in the High Court, which has the power to order that the attorney be suspended from practice or struck off the roll of attorneys.

HOW TO FILE A COMPLAINT

If having studied what is set out above, you are satisfied that the Council may investigate your complaint, your complaint should be submitted in the form of an affidavit i.e. a written or typed statement sworn to before a Commissioner of Oaths, for example a police officer, a bank manager, a postmaster or another attorney.

A form is also available for completion and can be obtained from the Head:

Disciplinary Department, Law Society of the Northern Provinces, at:

P O Box 1493
Pretoria
0001
or can be downloaded from www.northernlaw.co.za.

INVESTIGATION

On receipt of your complaint the Directorate will acknowledge receipt and if necessary will initiate an enquiry.
You will be kept informed accordingly.
You may be called on to elucidate or to discuss the matter with a disciplinary committee of the Council, or to give evidence before such a committee.
You will be informed in writing of the finding of the committee after the disciplinary proceedings have been completed.
Please bear in mind that the investigation of a complaint is based on the rule that the attorney should also be afforded the opportunity to comment on your complaint, whereafter a thorough investigation will be made.
It may therefore take some time before finality is reached, but you are assured that you will be kept informed of progress in the enquiry.

LEGAL ADVICE

It may be that your problem requires the advice of an attorney.
This could only be done by an attorney in view thereof that the Council cannot give legal advice.
The Law Society administers a First Interview Scheme for the benefit of the public. In terms of this scheme you may interview certain firms of attorneys free of charge for one half hour to give you advice.
Please contact the Directorate who will furnish you with the name and address of a participating firm.

PLEASE NOTE THE FOLLOWING

It is permissible for a litigant to handle his/her own court case in any court. One should however bear in mind the old adage “he who acts as his own attorney has a fool for a client”.
It is generally recognised that, unless there is a forum provided by the State where disputes can be adjudicated upon by an independent legal officer, anarchy will reign.
While many disputes involve complex legal issues, many cases are decided on the facts and not necessarily on the law and the task of the legal officer is to determine who is telling the truth.
One should not simply assume that a matter is simple, as frequently the law, or the facts, are more complex than first appearances suggest.
Attorneys’ fees in respect of litigation and conveyancing are regulated by the State.
If you think that your attorney’s account is too high there are procedures whereby the amount can be taxed and assessed.
The Directorate will be able to guide you in this respect.
If the matter is of a litigious nature, the taxing master of the Court in which the matter served, will tax the account.
Attorneys regard time as a precious commodity. Many of them work 12 to 14 hours a day to enable them to deal adequately with the work on hand.
Dealing with matters in the shortest possible time rather than protracting them is more likely to be the case.
Although it cannot be denied that in some instances attorneys misappropriate trust funds, percentage-wise these represent a minute number of practicing attorneys.
When this happens the public is protected by the Attorneys’ Fidelity Fund which will compensate any person who has lost money entrusted to an attorney in his/her capacity as such, by reason of the attorney’s theft of such monies.

The Law Society of the Northern Provinces welcomes any enquiries in regard to the attorneys’ profession and you are cordially invited to contact us at:

P O Box 1493
Pretoria
0001
Telephone (012) 338 5800
Fax (012) 323 2606

WORKING WITH YOUR ATTORNEY

Attorneys are there to help you and offer you advice. You should view your attorney as a guide and adviser – providing expert help on the law and the legal system. You should approach your relationship with your attorney as a team effort, like any good working relationship.

CHOOSING THE RIGHT ATTORNEY

There are many reasons for choosing a particular attorney, e.g. you may want:

an attorney who specialises in a particularly complex area of law.
a firm that is close to where you live or offers home visits.
a firm which will take on your case on a ‘no win, no fee’ (contingency fee) basis
to talk to someone of the same sex or age as yourself.

One should remember that cost is always a factor to consider when instructing an attorney to act on your behalf.
The proverb, “you only get what you pay for” is also applicable when instructing a professional such as an attorney.
The services that you require from an attorney will most likely determine which firm of attorneys you will instruct.

There are several different ways of finding an attorneys’ firm to suit your needs. In smaller centra this can be done by word of mouth, in other words you can ask the people you deal with every day for a reference for attorneys, dependent on the kind of service that you require.

PREPARING FOR THE CONSULTATION

Once you have chosen a firm of attorneys, make an appointment for a date and time that suits you.
When making an appointment enquire whether a consultation fee is payable upfront and make sure that you make the appointment with an attorney who
will be able to deal with your legal problem.
This is especially relevant in bigger firms where more than one attorney practice.
Ensure that you have any documentation which may be relevant to the matter available during the first consultation to prevent the need for further consultations.
In most instances the original documentation will be required by the attorney.
Make copies of all documentation and keep a duplicate file.
If the matter involves witnesses, make sure that you have their full names, contact numbers and addresses available.

THE CONSULTATION

Come to the consultation prepared. See that you have all the relevant documentation available. In most instances the original documentation will be required by the attorney. In such an instance, make copies for yourself and keep a duplicate file. If the matter involves witnesses, make sure that their full particulars, contact numbers as well as addresses are available.
Make sure that the attorney that you consult understands you correctly and grasps your legal problem.

At the end of the consultation enquire about the following:

Details of the action the attorney will take and how your problem will be approached.
An anticipated time-line for solving the problem, if possible.
Expected outcome of the attorney’s actions.

ATTORNEYS’ CHARGES

The determination of an attorney’s fees can sometimes be intricate. In litigation matters it is possible, in terms of the law, that the losing party will have to pay the winning party’s costs.
Make sure that you understand the difference between party and party fees and attorney and client fees. Clarify all terms and conditions and fees applicable in relation to attorney and client fees in order to prevent a misunderstanding or surprise when the matter is concluded. You must also anticipate that an attorney will most probably require a deposit from you to ensure that his expenses are covered. Clarify the details of expenses and the costs thereof to prevent a misunderstanding.
It is advisable that a fee agreement be put in writing and signed, which would also refer to all possible expenses. If possible, enquire whether your account will be debited on a monthly basis or upon completion of the matter.

FEEDBACK

It is advisable that the frequency and form of feedback be determined during the first consultation. One should keep in mind that an attorney can only act according to instructions from his/her client. An attorney can never decide what to do without consulting his/her client.
Whilst the attorney is still under your instruction, please advise him/her of any change of address, telephone number, e-mail address or other contact
detail. Failure to do so could, at a later stage, create a misunderstanding which could lead to further costs.

PROFESSIONALISM

Attorneys are professional persons who are devoted to serving their clients, whilst acting according to a strict code of ethics.
Proper, open and honest communication between an attorney and client will most likely have the consequence that all instructions received by attorneys can be finalised and clarified without any problems.
However, should you not be satisfied with the services rendered by an attorney, the matter can be referred to the Law Society of the Northern Provinces for investigation.

The Law Society is a statutory body which regulates the attorneys’ profession in the following provinces:

Gauteng, Mpumalanga, North West and Limpopo.

The Law Society can be reached on:
Telephone: (012) 338 5800
Fax: (012) 323 0625

SMALL CLAIMS COURT: Institute a claim

WHO MAY INSTITUTE A CLAIM?

Any person except companies, corporations or
associations.
A person under the age of 18 must be assisted by
his/her guardian.

AGAINST WHOM MAY A CLAIM BE INSTITUTED?

Against any person including companies, corporations, municipalities or other entities within the area of jurisdiction of the court, except the State.

WHAT AMOUNT CAN BE CLAIMED?

An amount not exceeding R15 000.
If your claim exceeds R15 000, you can institute a claim for a lesser amount in order to pursue your case in the Small Claims Court.

WHAT MATTERS ARE EXCLUDED FROM THE SMALL CLAIMS COURT?

Claims exceeding R15 000
Divorce claims
Claims based on cession or transfer of rights
Claims concerning the status of the person in respect of his mental capacity
Claims concerning the validity of a will
Claims against the State
Claims for damages in respect of defamation, unlawful arrest, unlawful imprisonment, seduction and breach of promise to marry
Claims in which specific performance is sought without an alternative claim of payment of damages, except in the case of claims for rendering an account or transferring movable property not exceeding R15 000.

ARE YOU COMPELLED TO INSTITUTE YOUR CASE IN A SMALL CLAIMS COURT?

No, a person may choose whether he/she wants to institute a claim in the Small Claims Court or any other competent court.

LEGAL REPRESENTATION AND ASSISTANCE IN THE PREPARATION OF YOUR CLAIM

Representation by an attorney or advocate is not allowed. A person may at his/her own cost obtain prior advice from an attorney.
Legal assistants and clerks of the Small Claims Court will assist you free of charge.

INTERPRETERS

Any of the official languages of South Africa may be used in court.
Arrangements for an interpreter must be made with the clerk of the court beforehand if evidence is to be given in a language which is not Sufficiently familiar to the other party.

HOW TO INSTITUTE A CLAIM

Steps preceding the institution of a claim:

Contact the opposing party in person, by telephone or in writing and request him/her to satisfy your claim.
If the opposing party does not comply, address a written demand to him/her giving him/her 14 days from the date of the receipt of your written demand to satisfy your claim.
Deliver the demand by hand or by registered post to the opposing party.
After the lapse of a period of 14 days, report in person to the clerk of the court with proof that the demand was delivered to the opposing party.

What to take along to the clerk of the court:

Your written demand and proof of delivery.
The full names, address and telephone number of the opposing party.
Any contract or documents upon which your account is claimed.

What are the duties of the clerk of the court?

He/she and the legal assistants will examine the documents and assist you in drawing up simple summons.
He/she will inform you of the date and time of the hearing of the case.
He/she will issue the summons and hand it to you.

What do you do with the summons?

You can serve the summons on the opposing party in person.
You can hand the summons, together with the sheriff’s service fees, to the sheriff in the district the opposing party resides in. The sheriff will then serve the summons on the opposing party.

What do you do then?

Where the sheriff has undertaken service, you must obtain his/her written proof of service prior to the date of the hearing.
Keep the contract, document or proof upon which your claim is based.
Inform your witnesses of the date and time the case will be heard and arrange for them to be present in court on the appointed date.

POSSIBLE STEPS BY THE OPPOSING PARTY

He/she may comply with the plaintiff’s claim.
He/she may deliver a written statement, containing the nature of his/her defence to the clerk of the court.
If a plea or counterclaim is instituted, the court proceedings must still be attended.

WHAT DO YOU DO IF THE OPPOSING PARTY HAS SATISFIED YOUR CLAIM?

Inform the clerk of the court that the claim has been paid and that he/she must not proceed with the case.
Give your opponent a written receipt.

WHAT DO YOU DO ON THE APPOINTED DATE?

Appear in court.
Make sure that all witnesses are available and that you have proof that the opposing party was served with the summons.
Make sure that you have all the documents upon which your claim is based with you.

THE HEARING

You will be requested by the commissioner to state your case.
Answer the questions correctly and provide proof.
Parties are not allowed to cross-examine each other, unless the commissioner has permitted them to do so.
Listen to the opposing party’s clarification and make the commissioner aware of the facts that were not correctly presented.
After the commissioner has heard both sides and all the witnesses, the court can pass judgment.

APPEAL AND REVIEW

No appeal may be filed against judgment of the court, but only review of judgment.

STEPS FOLLOWING JUDGMENT

In case judgment is given against you

Accept the decision of the court as final.

If judgement is given in your favour

If the judgment debtor fails to comply with the order of the court, the matter will be transferred to the Magistrates Court where prescribed execution procedure will be followed.

IMPORTANT!

This information merely informs you of the most important steps to be taken with regards to the institution of a case in the Small Claims Court.
Should you require assistance with any matter at all, the address and the telephone number of the Clerk of the Small Claims Court can be obtained from any Magistrate’s Office.