THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1024/2022

In the matter between:
HOUGH & BREMNER INC
FIRST APPELLANT
ANITA ERNESTO CHIAU
SECOND APPELLANT

and

THE ROAD ACCIDENT FUND
RESPONDENT

Neutral citation: Hough & Bremner and Another v The Road Accident Fund
(1024/2022) [2023] ZASCA 179 (18 December 2023)
Coram:
MOCUMIE and WEINER JJA and KOEN, CHETTY and
KEIGHTLEY AJJA
Heard:

Matter disposed of without oral hearing in terms of s 19(a) of the

Superior Courts Act 10 of 2013
Delivered:
This judgment was handed down electronically by circulation to
the parties’ representatives by email, published on the Supreme
Court of Appeal website, and released to SAFLII. The date and

time for hand-down is deemed to be 11h00 on 18 December
2023.
Summary:  Civil procedure and practice – Contingency Fees Agreement Act 66 of
1997 – high court finding that the fees agreement concluded between the appellants
was a contingency fee agreement, and setting it aside – refusing to make the
settlement agreement between the second appellant and the Road Accident Fund  an
order of court and amending its terms without affording the parties a right to address
it – whether the high court was empowered to grant orders not sought and against a
party not cited in the proceedings.

ORDER

On appeal from: Mpumalanga Division of the High Court, Mbombela (Legodi JP
sitting as court of first instance):
The appeal is upheld.
The order of the high court is set aside and replaced with the following:
‘The settlement agreement concluded between the parties on 7 March 2022 is
made an order of court.’

JUDGMENT

Weiner JA (Mocumie JA, Koen, Keightley and Chetty AJJA concurring)
Introduction
[1] This is an appeal against the judgment and order of the Mpumalanga Division
of the High Court per Legodi JP (the high court), concerning a claim against the
Road Accident Fund (RAF). The appeal is the fourth of the appeals 1 that have come
before this Court on the same issue (fee agreements concluded between attorneys
and their clients) since 2022 to date. All the appeals center around whether fee
agreements concluded between attorneys and their clients, which make provision,
inter alia, for fees to be paid at the conclusion of the matter, are Contingency Fee

1 Mucavele and Another v MEC for Health, Mpumalanga Province (889/2022) [2023] ZASCA 129 (11 October
2023) (Mucavele); Majope and Others v The Road Accident Fund (663/2022) [2023] ZASCA 145 (Majope); Sibiya
v Road Accident Fund: In the matter of Chiau v Road Accident Fund (557/2016 1150/20) [2022] ZAMPMBHC 40
(2 June 2022) (Sibiya) – overruled by this Court in Danny Joseph Sibiya and Others v Road Accident Fund
(1067/2022) [2023] ZASCA 171 (05 December 2023) (Sibiya SCA); three from Legodi JP and one from Roelofse J.

Agreements (CFA), which can be set aside if they do not comply with the
Contingency Fees Act 66 of 1997 (the Act). This appeal involves a claim against the
RAF, where orders were made by the high court, inter alia, against the first
appellant, Hough & Bremner (H&B) Inc, a firm of attorneys, and their client, the
second appellant, Anita Ernesto Chiau (Ms Chiau). H&B, which was not a party to
the proceedings, obtained leave from the high court to join in the proceedings and it
and Ms Chiau applied for leave to appeal the judgment and order. The high court
refused leave to appeal. As a result, the appellants petitioned this Court, which
granted leave to appeal to it. The RAF does not oppose the appeal and abides the
decision of this Court.

[2] The high court reviewed and set aside a fee agreement dated 11 September
2015 (the fee agreement) that was entered into between H&B and Ms Chiau on the
basis that it was a CFA, which did not comply with the formal requirements of the
Act. It also refused to make a settlement agreement, concluded between Ms Chiau
and the RAF, an order of court, and made orders which were not sought by any of
the parties. These included orders against H&B, which was not a party to the
proceedings at that stage.

Background
[3] To arrive at the conclusion I have reached, a brief background is necessary.
H&B represented Ms Chiau in a delictual claim instituted against the RAF in the
high court for damages suffered as a result of injuries sustained in a motor vehicle
collision that occurred on 20 July 2015 in Mpumalanga. The fee agreement was
entered into on 11 September 2015, prior to the institution of the action.

[4] The action was settled between Ms Chiau and the RAF on 7 March 2022. In
terms of the settlement, the RAF accepted liability to pay 100% of Ms Chiau’s
proven or agreed damages that resulted from the collision and undertook to:
(a)
pay Ms Chiau an amount of R1 034 470.20, in full and final settlement, in
respect of loss of earnings and general damages suffered as a result of the collision;
(b)
provide Ms Chiau with an undertaking in terms of s 17(4)(a) of the Road
Accident Fund Act of 1996 to cover her future medical expenses suffered as a result
of the collision;
(c)
pay her taxed costs, incurred in the action, on the scale as between party and
party.

[5] The trial was set down for hearing in the high court for 14 March 2022. In
view of the settlement, H&B filed the settlement agreement, Notice of Acceptance,
and affidavits by both Ms Chiau and H&B confirming that no contingency fee
agreement had been concluded. Legodi JP, concerned as to whether no contingency
fee agreement was concluded, refused to allocate the matter to proceed on 14 March
2022.

[6] This was followed by a directive from Legodi JP removing the matter from
the roll and requesting certain information from H&B, under oath, relating to the
funding of the legal fees in the case. The questions revolved around whether the fee
agreement between H&B and Ms Chiau constituted a CFA within the ambit of the
Act. The query related to the following:
‘The suggestion that no contingency fee agreement has been concluded pre-supposes that the
plaintiff and his or her attorney agreed on a specific amount of a fee for the litigation when the
instructions were taken and that the agreed fee was so paid by the plaintiff…’

[7] In response to the list of questions, Mr Eastes of H&B, the attorney who acted
on behalf of Ms Chiau, on 8 March 2022, filed an affidavit in which he set out in
detail the background to his firm and Ms Chiau entering into the fee agreement,
which he attached to the affidavit. The fee agreement contained, inter alia, the
following provisions;
‘…
3.4.3 that the fee agreement is not a contingency fee agreement as defined in the Contingency Fee
Act, Act 66 of 1997;
3.4.4 plaintiff shall at all times be liable for payment of the attorney’s fees and disbursements,
including VAT, unless otherwise agreed in writing and signed by plaintiff;
3.4.5 that the accounts shall be delivered to plaintiff in respect of disbursements as soon as they
are incurred, and interim accounts in respect of attorney’s fees from time to time as well as
comprehensive accounts at the conclusion of the matter, unless otherwise agreed in writing and
signed by plaintiff;
3.4.6 plaintiff shall be liable upon demand by me to pay a deposit in respect of attorney’s fees and/
or disbursements…’
Mr Eastes went on to state:
‘3.11 On 15 February 2022, I consulted with the plaintiff and the plaintiff confirmed under oath
that she did not enter into a contingency fee agreement as defined in the Contingency Fee Act,
1996 with myself and I append hereto a copy of the plaintiff’s affidavit, dated 15 February 2022
marked annexure “C”;
3.12 I confirm that a copy of the affidavit by the plaintiff, mentioned in paragraph 3.11 above was
served on the State Attorney…;
3.13 I respectfully submit, that the fee agreement entered between the plaintiff and Hough Bremner
Inc, annexure “B” hereto, represents my normal fee, taking cognizance of my years of experience
and expertise, as I dealt with the matter from the outset;
3.14 I respectfully submit that the payment of the professional fees are not subject to the successful
completion of a claim against the defendant and I respectfully refer the above Honorable Court to
paragraph 2 of the agreement of fees as between attorney and own client, dated 11 September

2015, annexure “B” hereto and therefore it is not a contingency fee agreement, as contemplated in
the Contingency Fee Act, 66 of 1997.’

[8] Further directives emanated from Legodi JP. The pertinent ones which formed
the basis of his judgment were:
‘2.1. When was such fee agreed upon?
2.2. When was such fee paid in total?
2.3. What is the amount of the fee agreed upon?
2.4. If no fee was paid or was paid in part, when was such a fee or remaining part thereof
supposed to be paid?
2.5. If no fee was paid, what is the basis upon which it is alleged no contingency fee agreement
was concluded?’
H&B responded that the firm was to deliver a comprehensive account at the
completion of the matter, at which time, irrespective of the outcome of the
litigation, Ms Chiau would be liable to pay the fees.

[9] Legodi JP, mero motu, determined the present matter together with that of
Danny Joseph Sibiya and Others v Road Accident Fund (Sibiya)2 in which a
settlement agreement had been concluded between the parties, and handed down one
judgment in respect of both matters. The reasons for this approach are unclear save
for the finding that the fee agreements in both matters were in breach of the Act.
Despite evidence from Mr Sibiya and his attorneys that the fee agreement entered
into was a party and party agreement, the high court found otherwise.  In Sibiya the
high court made a number of far reaching orders, none of which had been sought by
the parties. This Court, in setting aside the judgment of the high court, held that there
was no basis to interpret the fee agreement as a CFA nor was there any basis to
invoke rule 70(5A)(d)(ii) in the absence of any misconduct  on the part of Mr Sibiya

2 Fn 1 above.

or his attorney at the taxation. This Court in Sibiya SCA,3 overruled the high court
on a similar basis - lack of audi alteram partem for the parties before the court made
far reaching orders affecting attorneys who were not a party to the action.  Sibiya
was decided together with this case by Legodi JP in chambers.

[10] On 02 June 2022, the high court delivered the judgment (the subject of this
appeal) and ordered that:
‘84.1 The fee agreement concluded between [plaintiff] and [her] attorneys is hereby reviewed and
set aside for the reasons set out in this judgment;
84.2 The defendant to pay the costs of litigation to the [plaintiff] on a party and party scale as
agreed between the parties;
84.3 An amount of R1 034 470.00 awarded to the plaintiff by the defendant to shall be paid directly
to the plaintiff within 90 days from date of this order and the Road Accident Fund to take
reasonable steps to ensure that the capital amount is directly paid to the plaintiff;
84.4 The Legal Practice Council to consider the appropriateness or otherwise of the conduct of the
plaintiff’s attorneys of record;
84.5 The plaintiff’s attorneys of record to bring this judgment to the attention of the plaintiff by
explaining the contents thereof to the plaintiff and to provide an affidavit by not later than Friday
10 June 2022 confirming that the order in this paragraph has been complied with.’

[11] Thus, contrary to the averments of H&B and Ms Chiau that the fee agreement
was not a CFA within the ambit of the Act, the high court found that it was and that
it was unlawful because it did not comply with the formal requirements of the Act.
The high court thus reviewed and set it aside on that basis. There are at least three
anomalies which arise from the above orders which were not sought by any of the
parties. One, the RAF has no obligation to pay the costs to Ms Chiau as ordered.
Two, these orders were made against H&B, when it was not a party to the

3 Fn 1

proceedings and without it being given an opportunity to be heard on these issues.
Three, it is thus deprived, not only of its right to claim its fees from its client, but
also of its right to recover the costs from the RAF. The high court also refused to
make a settlement agreement, concluded between the parties, an order of court.

[12] As stated by this Court in Majope, ‘even if the fee structure agreement was an
agreement that was hit by the Contingency Fees Act, as the high court found, that in
itself was not a proper basis to deprive [the attorneys] of the right to recover their
fees for the services rendered to Ms Majope and Mr Machabe. It is particularly
concerning that these extraordinary orders were against [the attorneys] when they
were not parties to the case before the high court.’4

[13] The approach of the high court appears to be that any agreement, not
providing for payment of fees by the litigant prior to the finalisation of litigation,
constitutes a CFA within the ambit of the Act. On authority of the two precedents
referred to (Mucavele and Majope), this approach is clearly wrong. Legodi JP was
entitled to enquire whether there was a CFA and to have sight of the fee agreement,
in order to exercise judicial oversight as contemplated by s 4 of the Act.5 He was

4 Majope fn 1 para 11.
5 4. Settlement
‘(1) Any offer of settlement made to any party who has entered into a contingency fees agreement, may be accepted
after the legal practitioner has filed an affidavit with the court, if the matter is before court, or has filed an affidavit
with the professional controlling body, if the matter is not before court, stating—
(a) the full terms of the settlement;
(b) an estimate of the amount or other relief that may be obtained by taking the matter to trial;
(c) an estimate of the chances of success or failure at trial;
(d) an outline of the legal practitioner’s fees if the matter is settled as compared to taking the matter to trial;
(e) the reasons why the settlement is recommended;
(f) that the matters contemplated in paragraphs (a) to (e) were explained to the client, and the steps taken to ensure
that the client understands the explanation; and
(g) that the legal practitioner was informed by the client that he or she understands and accepts the terms of the
settlement.
(2) The affidavit referred to in subsection (1) must be accompanied by an affidavit by the client, stating—
(a) that he or she was notified in writing of the terms of the settlement;
(b) that the terms of the settlement were explained to him or her and that he or she understands and agrees to them;
and

not, however, entitled to ignore the responses he received, clearly stating that the fee
agreement was not a CFA and, without affording the parties an opportunity to be
heard, declare that the fee agreement was a CFA, and set it aside.

[14] Both merits and quantum had been settled and the matter had been removed
from the roll. Accordingly, what was before the high court? A settlement agreement
between the parties to the action to be made an order of the court. Despite this, the
high court disregarded the principle expressed in Fischer and Another v Ramahlele
and Others (Fischer),6 where this Court cautioned that it was for the parties to
‘define the nature of their dispute and it is for the court to adjudicate upon those
issues’.7 Fischer also stated that, in certain instances, a court may mero motu raise a
question of law if it arises from the evidence and is required for a decision in the
case. But as held in Mucavele:
‘The legality of the contingency fee arrangement was not such a question. Most recently, in
the Road Accident Fund v MKM obo KM and Another; Road Accident Fund v NM obo CM and
Another, this Court clarified that a contingency fee agreement ‘is a bilateral agreement between
the legal practitioner and his or her client. It has nothing to do with a party against whom the client
has a claim.’ Furthermore, an invalid or unlawful contingency fee agreement would not necessarily
invalidate the underlying settlement agreement. The high court failed to consider whether the
validity of the contingency fee agreement was severable from the rest of the settlement
agreement.’8

(c) his or her attitude to the settlement.
(3) Any settlement made where a contingency fees agreement has been entered into, shall be made an order of court,
if the matter was before court.’
6 Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395
(SCA).
7 Ibid para 13. See also Bliss Brand (Pty) Ltd v Advertising Regulatory Board NPC and Others [2023] ZACC 19;
2023 (10) BCLR 1153 (CC) and further authorities cited in that judgment; De Nysschen v Government Employees
Pension Fund and Others (864/2022) [2023] ZASCA 147 (09 November 2023).
8 Mucavele fn 1 paras 15 and 16

[15] The high court erred in the same manner in this case. For this and the other
reasons set out above, the order by the high court ought to be set aside. It is opportune
after four appeals from the same court, on more or less the same facts,9 to state that
there is at this stage sufficient authority that, first, a fee agreement that provides that
the fees and disbursements due to an attorney be paid on the finalisation of a matter
is not necessarily a CFA which stands to be set aside for non-compliance with the
Act. Second, and, as stated in Mucavele, in any event, ‘an invalid or unlawful
contingency fee agreement would not necessarily invalidate the underlying
settlement agreement’.

[16] In the result, the following order is made:
The appeal is upheld.
The order of the high court is set aside and replaced with the following:
‘The settlement agreement concluded between the parties on 7 March 2022 is
made an order of court.’

___________________

S E WEINER

JUDGE OF APPEAL

9 Cases referred to in fn 1.

Appearances

For the appellant:
Heads of Argument prepared by J G Cilliers SC

Instructed by:

Hough & Bremner Inc, Mbombela

Pieter Skein Attorneys, Bloemfontein

For the respondent:
No opposition was filed by the Respondent
Instructed by:

State Attorney, Nelspruit

State Attorney, Bloemfontein.

THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

18 December 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Hough and Bremner and Another v The Road Accident Fund (1024/2022) [2023] ZASCA 179 (18
December 2023)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding an appeal against the
decision of the Mpumalanga Division of the High Court, Mbombela (the high court) and replaced it with
the following order: ‘The settlement agreement concluded between the parties on 7 March 2022 is made
an order of court.’
This matter involved a claim against the Road Accident Fund (RAF), where orders were made by the
high court, inter alia, against the first appellant Hough & Bremner (H&B), a firm of attorneys and their
client, the second appellant, Ms Chiau. H&B represented Ms Chiau in a delictual claim instituted against
the RAF in the high court for damages suffered as a result of injuries sustained in a motor vehicle
collision that occurred on 20 July 2015. A fee agreement was entered into on 11 September 2015, prior
to the institution of the action. The action was settled between Ms Chiau and the RAF on 7 March 2022.
In view of the settlement, a notice of removal from the trial roll was filed. H&B also filed the Settlement
Agreement, Notice of Acceptance, and affidavits by both Ms Chiau and H&B confirming that no
contingency fee agreement had been concluded.  This was followed by a directive from Legodi JP in
the form of a questionnaire requesting certain information from H&B, under oath, relating to the funding
of the legal fees in the case. The questions revolved around whether the fee agreement between H&B
and Ms Chiau constituted a contingency fee agreement (CFA) within the ambit of the Contingency Fees
Act (the Act). In response to the queries, Mr Eastes of H&B set out in detail the background to his firm
and Ms Chiau entering into the fee agreement stipulating that the fee agreement was not a contingency
fee agreement as defined in the Act; that Ms Chiau would at all times be liable for payment of the
attorney’s fees and disbursements; that the accounts would be delivered to Ms Chiau in respect of
disbursements as soon as they were incurred; and interim accounts would be delivered in respect of
attorney’s fees from time to time as well as comprehensive accounts at the conclusion of the matter;
and that she would be liable upon demand by Mr Eastes to pay a deposit in respect of attorney’s fees
and/ or disbursements.
Despite the explanations given by H&B, on 02 of June 2022, the high court delivered judgment and
ordered that the fee agreement entered between H&B and Ms Chiau be reviewed and set aside. The
high court found the fee agreement to be unlawful on the basis that it was a CFA within the ambit of the
Act and it did not comply with the formal requirements of the Act. It also refused to make the settlement
agreement, concluded between the parties, an order of court and made orders which were not sought
by any of the parties, and against H&B, which was not a party to the proceedings. It ordered the RAF
to pay the agreed quantum as well as the costs directly to Ms Chiau.
Aggrieved by the high court’s order, H&B applied to be joined and it and Ms Chiau applied for leave to
appeal which was refused. As a result, the appellants jointly petitioned this Court, which granted leave
to appeal. The RAF did not oppose the appeal and abided the decision of this Court.
The SCA disagreed with the high court’s approach that any agreement, that did not provide for payment
of fees by the litigant prior to the finalisation of litigation, constituted a CFA within the ambit of the Act.
The SCA also held that the orders granted were not sought by any of the parties. The RAF had no
obligation to pay the costs to Ms Chiau as ordered by the high court. This order was made against H&B,

when it was not a party to the proceedings and without it being given an opportunity to be heard on
these issues. H&B was thus deprived, not only of their right to have claimed their fees from their client,
but also of their right to have recovered the costs from the RAF. The SCA held that ‘even if the fee
structure agreement was an agreement that was hit by the Act, as the high court found, that in itself
was not a proper basis to deprive the attorneys of the right to recover their fees for the services
rendered’.  The SCA further held that the high court disregarded the principle that it was for the parties
to ‘define the nature of their dispute and it was for the court to adjudicate upon those issues’.  Based
on those findings, the SCA upheld the appeal and ordered that the settlement agreement concluded
between the parties on 7 March 2022 be made an order of court.

~~~~ends~~~~