CHAPTER 3

Consultation Process
GENERAL:

A person will only consult with an attorney when the matter becomes
a litigious matter (ie: when it becomes necessary to litigate)

Considerations an attorney must bear in mind when deciding whether

or not to represent the prospective litigant:
∙ Whether he/she may act on behalf of the client? (No conflicts of
interest etc...)
∙ Whether to proceed by action or application procedures?
∙ Whether to appoint an advocate to the matter? (Only upon
consent of client)
∙ Cost implications of the proceedings
∙ Whether he/she has the necessary knowledge and/or expertise to
deal with the matter

FIRST CONSULTATION:

Attorney must:
∙ Prepare
∙ Take proper instructions
∙ Take notes
∙ Make administrative arrangements
∙ Follow a structured 4-stage process

Stage 1:
∙ Introduction / meet and greet stage

Stage 2:
∙ Listen to client’s matter
 Stage 3:
∙ Questioning stage
∙ Checklist to be followed:
- Facts?
- Cause of action?
- Locus standi?
- Jurisdiction?
- Dates – prescription

Stage 4:
∙ Advise client
∙ Give them a basic outline of their case, what they can expect etc..
∙ Tell client that you will conduct research
∙ Give an estimation of costs to client

General guidelines:
∙ Never overstate merits of the case
∙ Be honest to client about merits of case
∙ Rather under-promise and over-deliver

ADMINISTRATIVE ARRANGEMENTS:

Administrative arrangements DURING first consult process:

∙ First step:
- Open a client file
- Names of parties should be clearly indicated on outside of file
- Should include all the necessary and relevant information of
the client as well as of the opposing party
- Columns should be drawn up on the outside and inside of the
file so that a chronological record of pleadings/notices
received/served as well as telephone calls etc may be kept
∙ Discuss and agree on fees – sometimes receive and invoice client
for a deposit
 Administrative arrangements AFTER first consultation:
∙ Attorney should address a letter to the client in which his
mandate is clearly confirmed:
- Mandate = what attorney is suppoed to do
- Contains T&C’s, fee arrangements, instructions and strategies
etc...
∙ Manage file properly:
- Proper practice management
- File notes
- Take instructions until settlement of matter by court order OR
termination of matter by client

FICA:
∙ Due to FICA these arrangements must comply with the ‘Know
your Client’ requirement
∙ Obligations of FICA:
- Verify client’s identity (ID/address etc)
- Keep a record of all transactions with client
- Report suspicious transactions

GENERAL ISSUES:

When may attorney withdraw as attorney of record in the matter:

∙ When attorney cannot get hold of client for lengthy periods of
time and is unable to take proper instructions
∙ When client does not pay for the legal services rendered by the
attorney
∙ If an unforeseen conflict of interest arises in matter
∙ If client has not paid attorney – attorney can keep client’s file in
terms of a lien – lien will fall away after client makes payment

An attorney remains responsible for the management of the case until:

∙ The matter has been finalised (settled by court order)
∙ The attorney withdraws as attorney of record
∙ Client terminates attorney’s services
 Attorney’s Retention right:
∙ If attorney is no longer the attorney of record in the matter – he
must hand over all case documents that the client furnished him
with
∙ However, based on the attorney’s retention right – attorney can
keep all the documents he drafted for the matter

Legal Representation
GENERAL:

Principle of legal representation = cornerstone of SA law of civil

procedure
∙ Right to legal representation is a right entrenched in the
Constitution - S35(2)&(3) of the Bill of Rights

Attorney-Client relationship:
∙ = Governed by the principles of the law of agency
∙ Client signs a power of attorney (general vs specific)

Power of attorney:
∙ = Authorisation to act on someone’s behalf (Ie: to act as an agent
of a person)

General power of attorney:

∙ Grants the agent (attorney) the power to conduct ALL legal acts
on behalf of the principal

Specific power of attorney:

∙ Authorises the agent (attorney) to perform SPECIFIC legal acts
and other functions incidental to that specific legal act
∙ Must contain:
- Names of the parties to the matter
- Description of the specific action/application to be instituted or
defended
- Nature of the relief claimed
- Names of the attorneys authorised to act on the clients behalf
 Legal Representation in the High Court
GENERAL:

Any party with locus standi may instruct and be represented by an

attorney and an advocate or an attorney with the right to appear in
the HC

NOT compulsory for a person to have legal representation – person

may conduct his/her own case and appear in person at the HC

However, a person CANNOT be represented by a 3rd party who is not

a legal representative

Juristic person:
∙ Cannot be represented by an official employee
∙ Must be represented by an attorney and advocate or an attorney
with the right to appear in the HC
∙ Board of directors of the company or the members of the Close
corporation must pass a resolution authorising the attorney

Municipal/other local authorities:

∙ A standing resolution usually delegates the power to institute or
defend legal proceedings to a specified official
∙ This designated official may instruct an attorney to act on behalf
of the municipality or local authority

POWER OF ATTORNEY (HC):

Previously was compulsory – now HCR 7 provides for legal

representation in the HC without a power of attorney – however,
power of attorney is essential in appeal cases

Should the authority of the attorney be disputed, the attorney must

satisfy the court of a mandate to act on behalf of the client
∙ Court may even postpone matter to allow attorney to present the
necessary proof of power of attorney
 Appeal cases:
∙ Each power of attorney must be signed by the client and must
comply with specific legal requirements
∙ If client cannot sign – 3rd party may sign on his behalf

HCR 16:

Requires the attorney acting on behalf of any party to notify the

opposing party of his/her name and address
That attorney is then placed as the ‘attorney of record’ for the client
Attorney’s address must be within 8km of the court building
All delivery and service of pleadings, notices and other processes will
be sent to attorney’s address

TERMINATION OF ATTORNEY’S MANDATE:

Withdrawal as attorney:
∙ Client does not pay / client is m.i.a and attorney cannot take
proper instructions
∙ Attorney must notify the client, opposing party and the registrar
of the HC of his withdrawal
∙ Proof of withdrawal = acknowledgement of receipt (when
delivered by hand) and the registered receipt/slip (when sent via
registered post)
∙ It is good practice to withdraw at an early stage in the case to
allow the client sufficient time and opportunity to appoint
another attorney
∙ Bad practice is when the attorney withdraws the day before the
trial and sends this notice of withdrawal to the client by
registered post (will not reach client in time)

Termination of mandate by client:

∙ A notice must be delivered to the registrar and all interested
parties’ stating that the attorney’s mandate has been terminated
∙ A newly instructed attorney must deliver a notice of entry as
attorney of record to the opposing party and the registrar
HCR 15 – SUBSTITUTION:

Provides for substitution when the litigant dies or becomes

incapacitated

Can substitute with:

∙ An executor
∙ A curator
∙ A trustee
∙ Or similar legal representative

Court, however, may vary an addition or substitution upon a notice of

application

Legal Representation in the Magistrate’s Court

GENERAL:

Any party with locus standi may instruct and be represented by an

attorney

Types of representation in the MC:

∙ Personal representation
∙ Legal representation
∙ 3rd party representation

Personal representation:
∙ NOT compulsory for a person to have legal representation –
person may conduct his/her own case and appear in person at the
HC

Legal representation:
∙ Normally an attorney
∙ Advocate is not entitled to sign any MC pleading and must be
briefed by an attorney before drafting pleadings or appearing in
court
 3rd party representation:
∙ Local authority/company may be represented by a nominated
official
∙ Partnership/groups of persons may be represented by one of its
members
∙ However, these 3rd parties CANNOT recover any legal costs from
parties – may only recover disbursements

CANDIDATE ATTORNEYS:

S8(1) Attorneys Act allows candidate attorneys to appear before a

district MC

They CANNOT appear in HC

General rule – CANNOT appear in a Regional MC or a divorce Court,

unless:
∙ Previously practiced as an advocate OR
∙ Was a prosecutor OR
∙ Served articles for at least one year

POWER OF ATTORNEY:

MCR 52(2) states that a power of attorney is not required for civil
litigation in the MC

However, the opposing party may, within 10days of becoming aware

of a person acting on behalf of the other party challenge this person’s
authority to do so
∙ Opposing party can only do this with leave of the court AND with
good cause shown
∙ Person may then not act, without leave of the court, any further
on the matter until court is satisfied on his authority to do so
∙ Court may postpone trial until they obtain proof of authorisation

State attorney’s office does not need a power of attorney

SUBSTITUTION:

Provided for in MCR 52(3)&(4)

Representation of Indigent Persons

LEGAL AID INSTITUTIONS:

In SA there is an effort to make law accessible to those who cannot

afford it – therefore there are legal aid institutions

An indigent person may approach the legal aid board and various
legal aid clinics at universities for assistance

An indigent person may also turn to the:

∙ HC for assistance in terms of HCR 40 in forma pauperis
proceedings
∙ MC for assistance in terms of MCR 53 pro deo proceedings

Demand
WHAT:

When acting on behalf of a prospective plaintiff, the attorney’s first

act is to issue a LETTER OF DEMAND to a prospective defendant
BEFORE summons is issued

Purpose of LoD:
∙ Request from the recipient payment or performance of a legal
obligation and
∙ To persuade recipient to pay the amount claimed or to settle the
dispute
∙ In order to avoid expensive, time-consuming litigation and trial

Demand can be made formally in writing or orally

CONTENTS OF A PROPER DEMAND:

Clearly state that the attorney is acting on behalf of the client

Clear explanation of the reason for demand (briefly state facts/cause
of action/dates etc...)
Clear indication of what is expected of recipient (to pay/to deliver/to
do or not to do something)
Indication of time period within which to comply with demand
Explanation of consequences of failure to comply with demand

Do not head the letter ‘Letter of Demand’ or ‘Summons’

∙ Labelling the demand as summons is an unfair business practice
under the Unfair Business Practice Act, 1988
∙ Unfair Business Practice Act has been repealed by the Consumer
Protection Act – however, CPA still contains this provision

CIRCUMSTANCES WHEN FURNISHING A LoD COMPLETES A

CAUSE OF ACTION:

Contract contains a clause stating an amount is payable on demand:

∙ Failure to pay does not amount to a cause of action
∙ LoD is necessary to found the cause of action

Cause of action is based on contract and the terms of the contract

require a letter of demand

Creditor intends to cancel and agreement

No date for performance is agreed upon, a LoD is necessary to place a

debtor in mora

LoD is necessary where a person wishes to claim in mora interest

CASES WHERE A LoD IS REQUIRED BY STATUTE:

S29 Small Claims Court Act – requires delivery of a LoD before an

action can take place
 S96 Customs and Excise Act – requires a written notice of intention to
sue to be delivered one month before legal action is instituted

Legal Proceedings against Organs of Stat Act – in all cases of damages

involving organs of state, the prospective plaintiff must give notice to
institute an action in writing within 6months from the date the debt
became due

DELIVERY OF LoD:

Can be delivered by hand or registered post

S 56 MC Act provides that the cost of the LoD may be recovered when
it is sent by registered post

See Palekar letters of demand article

Prescription
GENERAL:

Principle of extinctive prescription:

∙ = Certain obligations may prescribe and become unenforceable if
not exercised within the prescribed time limits

Attorney can be sued for professional negligence if he allows a clients

claim to prescribe thus destroying the client’s right to claim

2 prescription Acts:
∙ Prescription Act of 1943 – applies to obligations arising before 1
December 1970
∙ Prescription Act of 1969 – came into force 1 December 1970
 A number of statutes prescribe time periods in which legal
proceedings must be instituted:
∙ Prescription Act 1969
∙ Legal Proceedings Against Organs of States Act
∙ Road Accident Fund Act
∙ Apportionment of Damages Act

PRESCRIPTION ACT, 1969:

S11 provides for a 30year, 15year, 6year and 3year prescription

period:
∙ 30years:
- Debt secured by a mortgage bond
- Judgment debt
- Debt relating to a tax levied in terms of any statute
- Debt owing to State regarding prospecting or mining of
minerals or other substances
∙ 15years:
- Debt owing to the State arising from a loan or sale or lease of
land
∙ 6 years:
- Bill of exchange
- Any other negotiable instrument
- Notarial contract
∙ 3 years:
- Any other debt (unless specifically provided for in a statute)

Prescriptive time periods are based on calendar days

Prescription MUST be specifically pleaded:

∙ Court will not take any notice of prescription unless specifically
pleaded
∙ Thus, court may grant a judgment even where a claim prescribed
if the defendant did not plead prescription
∙ When a payment of a prescribed debt has been made by mistake
– payment cannot be reclaimed because debt had prescribed
 Interruption:
∙ May be interrupted by:
- The signing of an acknowledgment of debt by the debtor
- Creditor serves a summons on the debtor

Suspension:
∙ In cases where there is a:
- Minor mentally
- Incapacitated person
- Person is under curatorship
∙ Suspension of prescription will cease after one year after
impediment of person ceases to exist

LEGAL PROCEEDINGS AGAINST ORGANS OF STATE ACT:

Act sets out uniform rules with regard to claims against the state and
its organs by defining and regulating extinctive and time limitation
periods

Creditor cannot institute proceedings to recover debt from the State

unless:
∙ A written notice of the intention to institute legal proceedings is
delivered to the Organ OR
∙ The organ has consented in writing to the legal proceedings

S3 provides that this written notice of intention must be delivered to

the state within 6 months from the date the cause of action arose
∙ Action is instituted by issuing and serving summons as provided
in the uniform rules of court
∙ Summons may only be served 30 days after this written notice of
intention was delivered to the State

Notice must be served on the organ by:

∙ Hand delivery
∙ Certified mail
∙ Electronic mail or fax (exceptional circumstances)
 Content of notice:
∙ Brief summary of facts
∙ Particulars known to the plaintiff

ROAD ACCIDENT FUND ACT:

S17 Act:
∙ Right to claim compensation for loss or damage resulting from a
motor vehicle collision where the identity of the driver was known
prescribes 3 years after the date the cause of action arose
∙ S24 provides for circumstances where a claim will only prescribe
after 5 years

S24(6):
∙ Litigation cannot commence within 120days after delivery of
claim to the fund

S23(2):
∙ Prescription does NOT run against minors, persons that are
mentally incapacitated or under curatorship

APPORTIONMENT OF DAMAGES ACT:

Collection of a contribution payable in terms of the Act is 12 months

calculated from the date of judgment OR final judgment on appeal

Superannuation

WHAT:

Lapsing or becoming out of date

Hampers a person’s ability to obtain relief

Superannuation of:
∙ Judgments
 ∙ Summons

SUPERANNUATION OF JUDGMENTS:

Judgment debt prescribes after 30years

However:
∙ In terms of S63 MC Act and HCR 66(1) – judgment creditor
must issue a writ of execution within 3 years from date of
judgment
∙ In MC, writ can only be executed after 3 year period upon an
application of leave from the court
∙ In HC, writ can only be executed after the 3 year period upon
consent of the debtor or leave from the court

A writ of execution, once issued, remains valid until the judgment is

satisfied in full

SUPERANNUATION OF SUMMONS:

MC:
∙ Previously, there was a rule that the summons will lapse if it is not
served within 12 months of the date of issue
∙ Now, under the new MCR a summons CANNOT lapse

HC:
∙ No provision dealing with superannuation exeists in the HC
∙ It is generally accepted that a court summons does not lose its
validity due to a lapse of time
∙ However, it has been accepted that in various divisions of the HC
– the court has discretion whether to declare that that the time
has lapsed

TIME PERIOD FOR THE DELIVERY OF PLEADINGS:

In both the MC and HC = certain fixed time limits within which legal
processes must be served/delivered
 Time periods are calculated in terms of S4 Interpretation Act

Court Days:
∙ Referred to in the MCR and the Uniform Rules of Court for HC
∙ ‘First day OUT, Last day IN’ principle applies (FOLI principle)
∙ Excludes:
- First day
- Weekends (Saturday and Sunday)
- Public holidays
- Court recess (16 Dec – 15 Jan)

Calendar Days:
∙ Referred to in the MC Act and the HC Act
∙ Excludes the first day – but includes ALL other days (even
weekends and public holidays)
∙ If last day falls on a weekend or a public holiday – that last day is
not counted and the time period ends the next day

NATIONAL CREDIT ACT:

Has an effect on civil procedure and debt-enforcement procedures

regarding credit agreements to which it applies

In cases of credit-agreements where it is alleged that the debtor is

over-indebted – the matter is referred to a debt counsellor to evaluate
matter and make recommendations to the court

A suspension of a reckless credit agreement, a declaration of over-

indebtedness or an application of debt review PREVENTS a creditor
from enforcing his rights in terms of that agreement

Also, legal proceedings are impeded by certain provisions in the NCA

requiring the debtor to furnish a notice of termination of debt review
or a notice drawing the debtor’s intention to his default as well as
advises the debtor to refer his credit agreement to a debt
counsellor/ADR agent/ombuds/consumer court