Non-litigious tariffs 2011 - 2012 Introduction
A. Application of guideline generally
A.1 In addition to the principles laid down in Rule 23 of the Rules of this Society as published in the Government Gazette No. 2848 dated 4 November 2002 by virtue of the Legal Practitioners Act No. 15/1995 (as amended), it is competent for the Council or any Committee appointed by the Council for that purpose, at the request of any person or member, to assess the fees payable by such person of any work, other than litigious work, by a member in his capacity as such.
A.2 The Council has concluded that ideally in no-contentious or non-litigious work members should be remunerated at a rate determined by the thirteen principles enunciated in Rule 23 applied to the time which could reasonably be expended in completing a particular mandate. For the convenience of our members the principles laid down in terms of Rule 23 are as follows:
Assessment of Fees
23 (1) The Council, or any committee appointed by the Council for that purpose, may at the request of any person or member, assess the fees and disbursements payable by such person or a member in respect of the performance of any work other than litigious work by a member in his capacity as legal practitioner: Provided that the Council or the committee shall not assess fees and disbursements in instances where a state official is empowered to do so or where fees and disbursements for the work in question are prescribed by any statutory tariff, save as in such an instance where an agreement exists between the legal practitioner and his client as far as the fee is concerned.
(2) With a view to affording the member reasonable and adequate remuneration for the services rendered by him or her, the Council or the committee, as the case may be, shall, in making an assessment, allow all such fees and disbursements as appear to it to be reasonable for the performance of the work concerned, and in so doing shall take cognisance of the following -
(a) the amount and importance of the work done;
(b) the complexity of the matter or the difficulty or novelty of the work or the questions raised;
(c) the skill, labour, specialised knowledge and responsibility involved on the part of the member;
(d) the number and importance of the documents prepared or perused without necessarily having regard to length;
(e) the place where and circumstances in which the services or any part thereof were rendered;
(f) the time expended by the member;
(g) where money or property is involved, its amount or value;
(h) the importance of the matter to the client;
(i) the quality of the work done;
(j) the experience or seniority of the member;
(k) any tariff of fees approved by the Society for the sole purpose of serving as a guide to members; and
(l) whether the fees and disbursements have been incurred or increased through overcaution, negligence or mistake on the part of the member.
(3) For the purposes of an assessment of any member’s fees and disbursements, the Council or the committee, as the case may be, may call for the production of such books, documents, papers or accounts as in its opinion are necessary to enable it properly to determine any matter arising upon such assessment.
(4) The Council or the committee, as the case may be, shall not proceed to the assessment of the fees and disbursements unless the Director has duly given written notice by prepaid registered post, facsimile or delivery by hand to both the member and the person liable to pay the fees, stating the time and place of such assessment and recording that he or she is entitled to be present and represented thereat, but such notice shall not be necessary if either the member or such person have consented to the assessment in their absence.
(5) At the assessment the member and such person may submit their representations and arguments either orally or in writing and the Council or committee, as the case may be, may reserve its decision.
6) As soon as the Council or the committee, as the case may be, has arrived at its decision, it shall deliver to both the member and such person, either by registered post, facsimile or delivery by hand, a copy of the fee list submitted for assessment, duly endorsed with the allocatur of the Council or the committee, as the case may be, under the hand of the Director of the Society.
(7) Subject to section 52 (4) of the Act, the fees and disbursements determined in terms of the allocatur shall be deemed to be the reasonable fees and disbursements payable to the member for the services rendered.
(8) The Council or the committee, as the case may be, shall be entitled in its discretion at any time, to depart from any of the provisions of subrule 23 (4) in extraordinary or exceptional cases, where strict adherence to such provisions would be inequitable.
A.3 For non-contentious or non-litigious work which is not already covered by a statutory tariff, the undermentioned tariff of fees prescribed hereunder shall act as a guideline. It must be emphasized the tariff is a “guideline” and not intended as a maximum/minimum tariff.
A.4 Fees for non-contentious or non-litigious work being taxable by the Council or by an Assessment committee or Committees appointed by the Council in terms of Rule 23 abovementioned, the Council or the Assessment Committee should be placed in a position on taxation to -
A.4.1 establish in respect of each service performed a time related “rate for the job”; and
A.4.2 assess the time which could reasonable have been devoted to each such function.
A.5 The Council recommends that under these circumstances members, notwithstanding the fact that they intend submitting a “lumpsum” account to client, keep a contemporaneous note of services rendered and, in particular of the time involved in the performance of their services.
A.6 The fees reflected hereunder exclude the costs of drawing and attending taxation of Bills submitted to the Council for taxation. The regulations pertaining to statutory taxation equally applies to taxation of non-litigious fees.
A.7 In assessing a fair and reasonable fee for the Council or the responsible Committee, while not obliged to, will invariably apply the guidelines applicable to Instruction, Appearances, Consultations, Drafting and Attendances, namely:-
B. Guidelines of fees in non-litigious and certain litigious matters (between legal practitioner and own client) subject to Correspondents’ 1/3 allowance, where applicable
All fees set out below are VAT exclusive
For clarity purposes the Committee recommends that Non-Litigious matters be divided into the categories as described in the headings as appear in this document. The Committee is further of the opinion that most Non-Litigious matters are in specialized fields of the law and requires a thorough and wide experience in order to meet the Supply and Demand Principle in most commercial fields and therefore, the Committee recommends a differentiation in years practice as to the fee that a practitioner should be entitled to charge as it is specifically in the Commercial field that work is not exclusively reserved for the legal profession and competition is therefore strong in relation to other professions for example auditors and general accountants and agents.
The Committee feels strongly that the fee charged relates strongly to the degree and magnitude of responsibility and the ultimate liability of the practitioner in accepting the client and instructions and the eventual outcome and/or result of the specific matter.
A less experienced or qualified person may regard the alienation of the interest in a close corporation as a mere completion of forms and filing and registration of a Amended Founding Statement, whilst a more experienced and qualified person will know and accept that risks may exist in the change of interest in a close corporation as a separate legal person regarding debts, contingencies, ownership in land or shares in companies and will opt for the drafting of an Agreement of Sale of such interest with all necessary warranties and precautions in any such event.
In the first instance a quite reasonable fee for an experienced legal practitioner may seem exorbitant in view of the lack of knowledge and experience in the probable risks to the client with which the less experienced/qualified person may approach the required work for the safest result for the client/member of the public exactly because it would seem a simple registration of interest to such less experienced person. This just as a gentle reminder while reading this report and recommendations.