Are Advocates and Attorneys on equal footing in respect of reserved and day fees?

When the Legal Practice Act 28 of 2014 (“LPA”) became fully operational on 1 November 2018, the long-standing division between advocates and attorneys dating from the time of the Union of South Africa in 1910 to a large extent fell away from a regulatory perspective as both advocates and attorneys are now referred to as legal practitioners and regulated by a single regulatory body, the Legal Practice Council (“LPC”) and single statute, the LPA.  

Prior to the LPA coming into operation, the Attorneys Act 53 of 1979 regulated Attorneys and the Admission of Advocates Act 74 of 1964 regulated advocates. 

The distinguishing factors between advocates and attorneys are not limited to the statute that regulated the two professions but also the dress code in court, right of appearance and fees chargeable by the legal practitioners amongst other things. Advocates and attorneys differ in their functions which has an impact on the fees that legal practitioners are entitled to charge. Advocates are regarded as litigation specialists whereas attorneys perform more general legal work such as advising clients on their legal matters which also includes representation in court – litigation. 

When it comes to legal costs, legal fees are always a concern. For instance, if counsel has to be briefed the client incurs more legal costs. Clients question whether like advocates, attorneys are entitled to charge reservation and day fees. In Promine Agentskap en Konsultante Bk (At) v Du Plessis en ‘n Ander [1998] JOL 3912 (T) an unreported case, the Court held that the work done by attorneys and advocates of equal seniority, experience and ability must be equally compensated.

Collapsed fees are a norm in the practice of advocates. In Pretorious v Santam Bpk 2000 (2) SA 858, the Court confirmed that according to an old age practice, advocates are entitled to reservation fees in the event that a matter is settled shortly before the trial. Reservation fees are paid for work not done and are not to be confused with a fee for the preparation of a trial.

In Road Accident Fund v Le Roux 2002 (1) SA 751 (W), an attorney who was to conduct a trial submitted a bill for taxation claiming a reservation fee on the basis that he conducted a litigation practice and reserved himself for four days. The reservation fee was disallowed by the full bench. In the appeal, the pertinent question before court was whether the attorney was entitled to a reservation fee. Blieden J stated that “with reference to the reasons advanced by Van Dijkhorst J in Pretorious v Santam Bpk , the position of attorneys and advocates cannot be compared”. Blieden J held that from the time that an advocate receives a brief for a trial, he must assume that the trial will proceed and must turn away other work for the day on which the trial is scheduled to take place, whereas an attorney was at the ‘coalface’ and therefore knew the chances of settlement contrary. It is for these reasons that the reservation fee was disallowed. 

In Stevens NO v Maloyi [2012] JDR (ECP) (“Stevens NO v Maloyi”), an attorney charged R13 000 as a day’s fees set aside for the trial of the case. The day fee was reduced to R1800 by the Taxing Master after the defendant objected to the amount on the basis that it was more or less the fee for approximately two hours that the attorney lost when he was attending to the case in the morning of that day and could go back to the office and perform other lucrative work. The issue before the court was whether an attorney who appears in court in a matter that is settled on the date of the trial is entitled to charge a day fee that an advocate is entitled to charge in the same circumstances. The court noted that it is common cause that had the plaintiff been represented by an advocate, such an advocate would be entitled to charge a day fee which would be determined based on the advocate’s experience. 

Relying on Kloot v Interplan Inc and Another 1994 (3) SA 236 SECLD, the Taxing Master’s decision was overturned by the court. The court noted that generally, a court does not interfere with the Taxing Master’s decision unless as in the current instance, the court is satisfied that the decision of the Taxing Master is evidently incorrect. 

The court further relied on Stubbs v Johnson Brothers Properties CC and Others 2004 (1) SA 22 (N) and held that an attorney with a right of appearance in the High Court who appears in court in preference to an advocate should not be treated differently from an advocate as regards his or her fees for a court appearance. When an attorney appears in the High Court, the attorney is entitled to charge as though the attorney is an advocate. The court furthermore held that if an attorney can show that they had not set aside any work on the date on which the trial did not proceed due to settlement of the case, the attorney is not hindered from being compensated for the day on which the attorney would have handled the case. The reasoning behind this is not to equate the professions of attorneys and those of advocate but to do justice in similar cases involving both advocates and attorneys.

Following the Stevens NO v Maloyi decision, in Vermaak v Road Accident Fund (16/04133) [2017] ZAGPJHC 427, the court ordered the payment of the costs of an attorney which included but not limited to the attorneys costs in preparation of the Plaintiff’s claim and trial, and the attorney’s day fee in attending the trial. 

Similar to medical doctors, a patient consulting a specialist doctor is pays more for the consultation as opposed to when the patient consults with a general practitioner. Advocates are entitled to charge reservation fees. However, advocates and attorneys are on equal footing in respect of day fees as attorneys can also charge day fees.