How the idea was born
This is a concept that flowed from a problem that arose in a case in which I am claiming more than a million rand in damages from Pick n Pay in the High Court in Johannesburg and in which I succeeded in getting my attorney to pay costs that were occasioned by his (and the advocates’s) bolls-up. At the time I coined the name, “Attorney-Check” and has ever since intended to develop the concept. I will do so when, in due course, the particular project makes it to the top of my priority list.
During the proceedings I informed my attorney that a particular pleading that had been drawn up and signed by the advocate (Rodney Black) is seriously defective in that it is indeed excipiable in terms of the rules of the court. I pointed out that I could not go on trial with the pleading as it stood and I suggested that it be amended in terms of instructions that I gave in that regard.
But my attorney had a problem. In terms of the High Court rules he needed to co-sign the pleading with Black and in that regard he simply could not get the advocate to come to the party. A vast number of attempts by the attorney to contact Black telephonically proved to be in futile and when he finally managed to speak to the Black he encountered profound difficulties in getting him to realize that the pleading is fatally defective. When Black finally reluctantly conceded that the pleading should be amended he failed to arrive for several consultations that we scheduled with him. And on all the occasions he didn’t even bother to cancel the appointment or explain his absence.
We were running out of time with the time limit that applied in terms of the rules of court and in desperation my attorney suggested that we serve the defective document in order to comply with the time limit and that we thereafter amend the pleading. I could see no other way out but to buy time in the manner suggested and the pleading was delivered in terms of the rules.
But we could thereafter still not get Black to comply with his obligations and in due course a notice was served on my attorney by my opponents in which they gave notice of an exception to the pleading due to it being defective in terms of the rules of court. I instructed my attorney to inform Black that I am holding them (Black and my attorney) liable for the damages that I am about to sustain as a result of the defective pleading. But Black’s recalcitrance continued until a notice of exception was served on my attorney and he formally briefed Black to attend to the matter in court.
I made it clear to my attorney that I am not instructing him to brief Black since I did not cause the problem and there is no reason why I should be liable for the costs of the opponents in the matter. In that regard I said that they should resolve the problem among themselves. I made it clear that they do not have my instructions to oppose the exception since the application has a valid basis in law and that Black should not inform the court that he has been instructed by my attorney to appear on my behalf, since to do so would be to mislead the court. As regards the misleading of the Court I referred my attorney to the case of Society of Advocates of Natal and Another V Merret SALR 1997(4) 374 (N) in which Merret was removed from the roll of attorneys because he misled the court and was therefore found not to be a fit and proper person to remain on the roll of attorneys.
Black finally conceded that the pleading that he drafted is defective and came to an agreement with the opponent regarding the amendment that is necessary to cure the defect. The exception was eventually withdrawn with Black illegally consenting that I would be liable for the costs.
In due course the opponents gave notice of the taxation of their bill of costs and the amount of their bill exceeded R40000. When my attorney sent it through to me for my instructions I informed him that I have no instruction on the matter and merely expect to be indemnified. I said that it is for him and Black to resolve the issue of who pays. It was only after a warrant of execution was authorised for the attachment of my assets that my attorney finally paid the amount.
I do however need to stress, most emphatically, that the relationship that I had with my attorney was very good and I actually rendered a substantial amount of legal services to his law practice. But despite the fact that he was also a victim of Black’s scandalous unprofessional conduct, he remained accountable in this matter.
But it is not part of the culture of the legal profession that attorneys pay for their mistakes and it took some time for my attorney to respond positively to the idea. But in the end he grudgingly paid for Black’s incompetence and pigheadedness. But if I did not have the legal knowledge and the experience that I have, then I would have ended up paying a substantial amount of money for Black’s mischief.
And then it dawned on me that there is a vast need for a service aimed at holding attorneys accountable for their negligence and incompetence.
And that is how the concept, Attorney-Check, came into existence!
Some Attorney-check number crunching
I practised under the name and style, C.H. van Wyk & Co. in Durban until 1981.My Motion Court day was on Mondays and I had in the order of 50 matters per week, of which at least 40 matters were “non-section 65” matters. For the uninformed I mention that section 65 matters are debtor court matters.
Now there were 196 law practices in Durban at the time. Let’s assume that there were 200 and that they had, on average, 20 motion court matters per week. I was the only attorney in my firm but the large firms had a plethora of attorneys and article clerks who generated motion court matters. But there were a few law firms that specialised in criminal and other matters and had no motion court matters. So, a figure of 20 matters per practice per week is a very conservative estimate. Therefore, at the time there were at least 4000 (200×20) matters per week in the motion court in Durban.
Now in preparing an estimate of the amount of money concerning fees and disbursements involved in the mentioned motion court matters I have worked on tariffs that date back to the previous millennium (1999) and I have done the calculations on Scale B (Part IV-Other Matter) of the Magistrate’s Court tariffs and I have dealt with the following items:
Now the tariff that I am now going to work on dates back to the previous millennium (1999) and I have done the calculations that follow on Scale B (Part IV-Other Matter).
|Drawing up of documentsNote1 (5Fx9)||45|
|Preparing for trailNote2||231|
1. I have worked on an average of 5 folios per matter, which could be contained in as little as two A4 pages.
2. Whether allowed by the court, or not, this amount can be raised on the attorney-own client scale.
3. I have not included an item because it may be covered by “Instructions”.
4. I have worked on a minimum of 0.25 hours.
Having rounded off the amount to of R437 to R400, an estimate of the total value of the weekly bills pertaining for the Durban motion court would have calculated to approximately R3 200 000, because in defended matters each matter normally has at least two parties.
Working on Durban as a benchmark, I would say that the following are fair, and extremely realistic estimates for the major cities:
|Johannesburg||4 000 000|
|Pretoria||2 000 000|
|Bloemfontein||2 000 000|
|Cape Town||2 000 000|
|Port Elizabeth||2 000 000|
|Durban||3 200 000|
|Total||15 200 000|
I extracted the following figures from the 1981 Hortors’ Legal Diary for South Africa for smaller cities and towns in the provinces that existed in 1981:
Working on an average of 22 motion court matters for all the cities and towns, gives a figure of 4048 cases. Rounded off to 4000 and with costs calculated at R400 per case, produces a figure of R1.6 million, and R3.2 million for the two sides in the defended matters.
So the amount of money regarding legal costs pertaining to motion court matters in the magistrates’ courts of South Africa can conservatively be estimated as follows:
|Cities||15 200 000|
|Towns||3 200 000|
|Total||18 200 000|
The legal costs in motion court matters in the magistrates’ over a period of a year can therefore be estimated as being at least in the order of R964 600 000.
Now in each matter there was a party that won and who therefore has no reason to complain about the fees that his attorney had raised. But the losing parties are not only out of pocket regarding the bill of their attorney but they are also (except under exceptional circumstances) liable for the bill of their victorious opponent. Even if the costs of certain matters are reserved, or made costs in the cause, there will in due course be an order for costs regard each motion court matter.
So, as a rough rule of thumb, hapless litigants in this country’s magistrates’ motion courts have to pay approximately R1-billion a year for motion court matters that they had lost, through no fault of their own.
Now the reason why they may have lost their cases could be bum decisions made by magistrates, or bolls-ups of their attorneys. But one thing is sure and that is that the attorneys that were involved in the cases smile all the way to the bank, despite their clients’ woes.
However, an attorney that is called upon to explain why he lost a particular matter, and contends that the magistrate is at fault, obviously bears the onus to prove that the magistrate is the nigger in the woodpile. And he is professionally obliged to explain, because, until he has done so, there is the presumption that the decision is kosher.
But a client does not have to be a trained in law in order to get to the truth concerning the applications that his attorney had lost, because he can demand that his attorney reports to him on the various applications, and the fate of every application. But that is what his attorney should in any event have done all along.
Now I have told you about my attorney in the Pick ‘n Pay matter and I hasten to add that he is an extremely pleasant and likeable person. But he messed up and I was not prepared to pick up the bill for his bugger-ups.
A final word of warning.
Any person who engages the services of an attorney but does not have the legal expertise to monitor his attorneys activities, is potentially exposed to a severe risk!