Terms of Engagement
1. Introduction
1.1 We appreciate your interest in appointing Bishop Fraser Incorporated Attorneys ("Bishop Fraser") and look forward to developing and continuing our relationship with you.
1.2 These Terms of Engagement ("Terms") set out the terms and conditions that will govern Bishop Fraser's ongoing relationship with you in relation to each matter in respect of which we accept instructions from you from time to time ("your matter").
1.3 By instructing Bishop Fraser and by completing the client onboarding / FICA form, including ticking the acknowledgement box, you confirm that you have read, understood, and agreed to these Terms.
2. Scope
2.1 The scope of our engagement and the services to be rendered by us in relation to your matter will be dealt with in separate correspondence between you and us.
3. Instructions
3.1 We need comprehensive instructions and all relevant information to provide you with the highest-quality legal services. We may request you to confirm oral instructions and provide certain information in writing. Please notify us immediately of any changes to your instructions.
4. Team
4.1 One director will have ultimate responsibility for your matter. That director may involve such members of our staff (including other directors, associates and candidate attorneys), and technical consultants ("Consultants") as they deem necessary to perform the services required in relation to your matter.
5. Fees and disbursements
5.1 Fees for professional services rendered
5.1.1 Our fees for professional services rendered are based on the time spent on your matter.
5.1.2 We record our time spent in units, where one unit equals one hour. Each period of six minutes or part thereof spent working on your matter will be recorded as 0.1 unit. Our current hourly charge-out rates, excluding value-added tax ("VAT"), are available on request. The hourly rates of the specific professionals who will work on your matter will be quoted upon request. Our rates will be reviewed and increased in March of each year.
5.1.3 If we wish to charge a fee which is greater than a fee calculated on actual time spent, such fee will only be charged after discussion with you and remains subject to your agreement. In the absence of agreement, we will charge for time spent.
5.2 Disbursements
5.2.1 In addition to our fees referred to in 5.1, you will be liable for disbursements and expenses incurred by us in relation to your matter (collectively, "disbursements") including but not limited to the costs of briefing independent counsel, travel and accommodation, correspondent attorney's fees (referred to in 5.3.8), expert witness fees (referred to in 5.3.7), Sheriff's services, messenger and courier services, secretarial overtime, legal cost consultants' fees (referred to in 5.3.3), filing fees, computerised research, telephone charges, copying and printing.
5.3 Litigious matters
5.3.1 There is a tariff of fees for professional services rendered in a litigious matter ("Tariff"), which is contained in the Uniform Rules of Court. A copy of the Tariff is available on request. In many instances, the Tariff specifies a fee that is not calculable on a time basis. We draw to your attention the fact that our fees are not based on the Tariff but are instead determined in the manner described in 5.1. Furthermore, our fees are considerably greater than the fees listed in the Tariff.
5.3.2 In a civil litigation matter, the successful party is often awarded costs in terms of the Tariff. However, as the Tariff is lower than our fees, even if you are awarded costs, you may only recover a small portion of your legal costs from the unsuccessful party. If you are the unsuccessful party, you may well be liable to the successful party for its costs in terms of the Tariff. Please note that you are liable to pay our fees and disbursements in full, irrespective of whether you are successful or unsuccessful, and irrespective of whether you expect to recover any costs from another party.
5.3.3 If a costs award is made in any litigious matter in which we act for you, the amount of the costs payable pursuant to the award must be assessed before a court official in a process called "taxation". We will administer, on your behalf, any such taxation process for a fee determined in terms of 5.1, and will employ specialist legal costs consultants, whose fees will constitute a disbursement.
5.3.4 We will discuss and agree on the employment of independent counsel prior to briefing such counsel. Whilst certain matters may only require the services of one counsel, in appropriate circumstances, a matter may warrant the employment of senior and junior counsel, and occasionally several counsel. If you have a particular preference as to which counsel we should brief on your behalf, please advise us at the time that this is discussed with you. In the absence of an instruction from you in this regard, we will instruct counsel whom we believe to be the most suitably qualified and experienced for your matter.
5.3.5 Please note that if a matter is settled, withdrawn or postponed at the instance of any party --
5.3.5.1 not more than two days prior to the date of the proceedings, counsel will charge his or her full fee for the first day of the proceedings;
5.3.5.2 not less than three days and not more than seven days prior to the date of the proceedings, counsel will charge two-thirds of his or her fee for the first day of the proceedings; and
5.3.5.3 not less than eight days and not more than twenty-one days prior to the date of the proceedings, counsel will charge half of his or her fee for the first day of the proceedings.
5.3.6 In addition, counsel's and our fees may include a "collapse fee", if agreed to by you. This fee, if agreed, will be payable if your matter does not proceed on the date allocated for the proceedings.
5.3.7 It may also be necessary to employ one or more experts and/or investigators to furnish opinions, collect or give evidence or otherwise assist on technical, accounting, forensic and other issues. We will discuss and agree on the engagement of such experts or investigators with you prior to any formal appointment. If you have any particular preference as to whom we should engage on your behalf, please advise us at the time this is discussed with you. In the absence of an indication from you in this regard, we will appoint the persons whom we believe to be the most suitably qualified and experienced for your matter.
5.3.8 Furthermore, we may engage a correspondent firm of attorneys in another city or town to assist us if the litigation is to be undertaken in a court other than the High Court of South Africa, Gauteng Division, Johannesburg.
5.3.9 If your matter is litigious, and our fees and/or disbursements in respect of your matter are required to be assessed for any reason, you agree that the assessment will be undertaken by the Council of the Law Society of the Northern Provinces ("Law Society") or any committee appointed by that Council for that purpose, in which case you and we undertake to be bound by the Law Society's rules in this regard.
5.4 Estimates
5.4.1 Any estimate of fees or disbursements given by us will be an approximation only, based on the information provided to us at the time and our experience in similar matters of the work involved. Unless we expressly agree otherwise in writing, we are not bound by any estimate given at any time before or during the progress of your matter.
5.5 Withholding Tax
5.5.1 All our invoices are submitted on the basis that we will receive the full amount billed. If you are obliged to pay withholding tax or any other tax, our bill will be grossed up to ensure that we receive the full amount of our bill, which, but for the said tax, would have been paid by you.
6. Deposits and other funds held on your behalf
6.1 We may request a deposit as cover for our fees and disbursements in respect of your matter. The amount of the deposit requested will be based on the nature and complexity of your matter and the anticipated cost of the disbursements that are likely to be incurred in such matter. Deposits may be paid to us by a direct electronic funds transfer into our trust account, the details of which will be provided to you at the time of the request for a deposit.
6.2 If you wish any funds held by us on your behalf, including any deposit referred to in 6.1, to bear interest for your account, we will require a specific written mandate to be completed by you.
6.3 All funds held on your behalf and (if applicable) interest thereon may be applied by us to settle any invoice referred to in 7.
6.4 If any part of your deposit referred to in 6.1 is applied to settle any of our invoices, we may require you to make further deposits to ensure that we are sufficiently covered at all times. At the conclusion of your matter, we will account to you in respect of the allocation of funds held on your behalf and for any balance held in our trust account.
7. Billing and payment
7.1 We will invoice you for fees on an interim basis wherever appropriate and possible, unless otherwise agreed with you. Unless the fee is agreed upon, invoices for our fees will be accompanied by a memorandum describing the nature of the services rendered.
7.2 We may send you a monthly invoice for disbursements incurred, as closely as possible, in the previous month.
7.3 All invoices, whether for fees or disbursements, are payable on presentation, without set-off or deduction of any nature whatsoever, and, if not paid within thirty days, bear interest on the outstanding amount at a rate which is equal to the sum of 2% (200 basis points) and the prime rate of the Standard Bank of South Africa Limited.
7.4 Payment of any amount may be effected by a direct electronic funds transfer into our business account, the details of which will be reflected on our invoices.
7.5 Invoices raised during a particular month will be summarised on the monthly statements.
7.6 If you have any queries or other concerns in respect of an account at any time, please do not hesitate to contact us immediately. We will do our utmost to resolve the matter in question without delay. Please direct your query to the director who is responsible for your matter.
7.7 If our fees and disbursements are not paid, we shall be entitled to retain (as a lien) all documents in our possession that relate to your matter, whether or not the documents have been prepared by us, until the outstanding amount, together with interest thereon, has been paid in full.
8. Complaints
8.1 If you require any information or need to resolve an issue relating to the quality of our professional service or our fees, please take it up with the director responsible for your matter.
8.2 We believe there should be open communication and liaison between our clients and senior members of our professional staff, and we are committed to resolving any problems you may have without delay.
9. Limitation of liability
9.1 For the purposes of this paragraph 9, Bishop Fraser's "Associates" means Bishop Fraser's affiliates and the directors, employees and Consultants of Bishop Fraser and its affiliates.
9.2 The aggregate liability of Bishop Fraser and its Associates (whether in contract, delict or otherwise) arising from or in connection with your matter is limited to twice the amount charged and received by Bishop Fraser (excluding VAT and disbursements) in respect of your matter.
9.3 Unless otherwise agreed to in writing by Bishop Fraser, Bishop Fraser and its Associates shall have no liability, arising from or in connection with your matter, to any person other than yourself ("Third Party"). If, notwithstanding what is stated in this paragraph, Bishop Fraser and/or any of its Associates are liable to any Third Party, any liability to you referred to in 9.2 shall be reduced by an amount equal to the amount for which Bishop Fraser and/or its Associates are liable to the Third Party.
9.4 Notwithstanding section 19(3) of the Companies Act, 71 of 2008, as amended or any other provision of this letter, the directors, employees and consultants of Bishop Fraser or of any of its affiliates shall not be liable in their personal capacity for any claim whatsoever arising from or in connection with your matter. Any such claim (whether arising in contract, delict or otherwise) shall be enforceable only against Bishop Fraser and may be satisfied only from the assets of Bishop Fraser (and not from the personal estates of any individual referred to above).
9.5 This paragraph 9 constitutes a stipulation for the benefit of each of Bishop Fraser's Associates, capable of acceptance by any of them at any time.
10. Conflict of Interests
10.1 In circumstances where acting, or continuing to act, for you in a matter may result in a conflict between your interests and the interests of another client, we may have to decline to act on your behalf or withdraw from the matter. Accordingly, we will not represent two clients on opposing sides of the same transaction or dispute without their consent. To avoid such conflicts, we run conflict-of-interest checks against the names and matter descriptions provided to us for all proposed new matters.
10.2 We may act for another party in any matter in which you or any of your affiliates has an interest, provided that acting for such a party does not constitute a conflict as set out in 10.1. Consequently (and without limiting the foregoing), we may represent more than one party seeking to acquire the same target or asset (whether in a bid or auction process or otherwise). In such circumstances, we will take appropriate steps to ensure that we do not breach our duty of confidentiality to each client.
11. Confidentiality and money laundering legislation
11.1 Communications between us and you, our client, and information obtained from you which has not been made public, are strictly private and confidential and will thus not be disclosed to third parties, save as is provided in 11.2, or authorised by you or required by law.
11.2 During the course of providing our legal services, we use the services of various third parties (including information technology, communication, file storage, copying, printing, transport, delivery, accounting, and auditing services). We may disclose or provide any relevant information in confidence to such third-party service providers and to those service providers engaged in relation to your matter (including counsel, experts, investigators, correspondent attorneys, translators and taxation consultants). We may also disclose any relevant information in confidence to our insurers and professional advisors in connection with any actual or threatened legal proceedings involving us.
11.3 Communications relating to legal advice sought from us or communications relating to contemplated or actual legal proceedings may well be subject to legal professional privilege. However, please be aware that communicating with third parties or people within your organisation who are not involved in instructing us or seeking our advice may result in the loss of such legal professional privilege.
11.4 In terms of legislation relating to money laundering and other financial information, we are required to report any unusual or suspicious transactions that do not form the subject matter of your instructions to us and of which you make us aware or of which we become suspicious during the course of your instructions to us. This is a direct legal obligation that we are required to perform.
11.5 Such legislation also obliges us to obtain and verify certain information about you, our client, your representatives and agents and the transaction in which you are involved and in which we represent you. We will require certain information from you in this regard.
11.6 If your matter ceases to be confidential, we may wish to disclose our involvement in the matter (but not the confidential details of the matter) for marketing purposes. You hereby consent to our making such disclosure and, in addition, to our using your logo (if applicable) for such marketing, unless you instruct us otherwise.
12. Data protection and marketing communications
12.1 We will process personal information that you or your authorised representatives provide us in accordance with any applicable data protection laws that may be in force in South Africa from time to time.
12.1.1 You consent to --
12.1.1.1 the processing of your personal information by us, our service providers and professional advisers (who may be outside South Africa) for all purposes contemplated in this letter, on the basis set out in 11; and
12.1.1.2 the retention by us of your personal information for as long as permitted or required for legal; regulatory, governance, fraud. prevention and marketing purposes.
12.2 If you wish to confirm or correct the personal information that we have on record for you, please contact the director responsible for your matter; and
13. Copyright
13.1 We retain copyright and other intellectual property rights in all documents drafted by us and all ideas and material developed, designed or created by us.
14. Retention of documents
14.1 Files are retained by us for seven years from the date of the final invoice in respect of a matter, after which period they may be destroyed. Please advise us in writing if you would like us to retain any document in safe custody or keep any document for a period longer than seven years for any reason.
15. Termination
15.1 Either you or we may terminate our engagement in respect of your matter at any time by giving reasonable prior notice in writing. We will only terminate our engagement on good cause. Good cause includes, but is not limited to, any failure to pay timeously or at all any fees or disbursements, or where we are not in receipt of instructions to progress your matter further after having requested your instructions, or where we are of the view either that it is not in your interests or that it is not in our interests for us to continue to represent you.
15.2 If our engagement in respect of your matter is terminated for any reason whatsoever, we will be entitled to payment of our fees and disbursements incurred in respect of services rendered in respect of your matter prior to such termination.
15.3 The residue of any deposit contemplated in 6 shall be reimbursed within 5 business days of the exercise of this 15.
16. Groups of companies
16.1 If you are a holding company or subsidiary that is a member of a group of companies ("Your Group") and we accept instructions from, or are requested to open a file in the name of, or are requested to invoice, another member of Your Group (in relation to your matter or any other matter) you hereby agree, on behalf of such other member of Your Group, that the terms and conditions contained in this letter will, unless otherwise agreed in writing between us and such other member, also govern Bishop Fraser's ongoing relationship with such other member, as if such other member had signed this letter themselves.
17. Governing law
17.1 The agreement recorded in this letter will in all respects (including its existence, validity, interpretation, implementation, termination and enforcement) be governed by the law of the Republic of South Africa, which is applicable to agreements executed and wholly performed within the Republic of South Africa.
18. Acceptance of Terms
18.1 By submitting the Bishop Fraser onboarding and FICA form, and by ticking the box confirming that you have read and agreed to these Terms of Engagement, you acknowledge and accept the Terms set out herein.
18.2 Your continued instruction, provision of information, or payment of any amount to Bishop Fraser will also be deemed acceptance of these Terms.
Bishop Fraser Incorporated