A full-bench of the High Court in SAAPIL (SA Association of Personal Injury Lawyers) v Minister of Justice and Constitutional Development (32894/12) [2013] ZAGPPHC 34; 2013 (2) SA 583 (GNP); [2013] 2 All SA 96 (GNP) (13 February 2013) considered the legality and enforceability of contingency fee agreements that do not comply with the Contingency Fees Act 66 of 1997 (the Act) and the constitutionality of the Act itself. Contingency fee agreement are entered into between legal practitioners and their client and no fees are charged if the client’s case is not successful. Before the Act came into force on 23 April 2009 such agreements were prohibited under the common law.
SAAPIL applied to Court to obtain certainty on whether the Act exhaustively regulates the power of legal practitioners to conclude agreements with their clients for recompense by way of contingency fees. The High Court refused to grant the application in which it was argued that :
- the Act does not override the common law.
- If the Act is exhaustive then the entire Act is unconstitutional because it breaches s 9 of the Constitution and discriminates against lawyers and their clients.
- Alternatively, sections 2 and 4 of the Act are unconstitutional because they breach various rights contained in the Bill of Rights.
Earlier today in SAAPIL (SA Association of Personal Injury Lawyers) v Minister of Justice and Constitutional Development (CCT123/13) [2014] ZACC 2 (20 February 2014) the Constitutional Court handed down judgment and disallowed the appeal.