ETHICS EXAMS – NOTES AND DRAFTING EXAMPLES
GENERAL
TERMINOLOGY
1. Pro amico is free representation by an attorney of a client who is in a particular relationship to the client.
No fees may be charged but disbursements may be recovered (3)
2. Party and party costs - Costs taxable and recoverable from the party who lost a case where costs have
been awarded to the successful party by the court on that basis
3. Attorney and client costs - Costs recoverable from your own client in terms of a prescribed tariff to cover
for payment of all services rendered. This does not require a special agreement between the attorney and
his client.
4. Attorney and own client fees - Costs as agreed between an attorney and his client which are not
necessarily in accordance with a prescribed tariff but which must in any event be a reasonable fee. (3)
5. Costs de Bonis Propriis. These are costs which a Court may order the attorney to pay himself either on
a party and party basis or on an attorney and client basis usually as an indication of its displeasure at the
attorney's conduct. (3)
6. Costs in the cause - This is an interim order made by a Court relating to costs incurred in a matter that is
not finalised and means that these costs will follow the final costs order in the matter. It applies to either party
and party costs or attorney and client costs.
7. On a no charge basis for employees of a respected client - This is similar to fees pro amico (1) and is
subject to the same rules (1), in particular this may not be used as a means for touting.
7. Contingency fees constitute a percentage of a client's successful claim if the claim sounds in money or
are fees that a chargeable at a rate higher than normal if the work is successfully concluded. This type of fee
was until recently not permitted but has now been legalised by legislation if certain formalities are complied
with. In terms of recent legislation in contingency fees no fee is payable if the client is not successful. (5)
AT WHAT STAGE MAY A CA WRITE THE PRACTICAL EXAMINATION PROVIDED FOR IN SECTION 14
OF THE ACT
After 6 months after registration of articles
HOW MANY CA’S MAY AN ATTORNEY HOLD UNDER ARTICLES
Three.
TRUSTS
WITH WHOM WOULD YOU A REGISTER A TRUST
The Trust will be registered with the Master of the High Court in the area in which your client
resides. (1)
WHAT DOCUMENTS MUST BE LODGED WHEN REGISTERING A TRUST
1. Two copies of the Deed of Trust.
2. Letter from an Auditor.
3. Acceptance of Trust by the trustees. (3)
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,WHAT OTHER INFORMATION WILL YOU SUBMIT TO THE RELEVANT AUTHORITIES WHEN
REGISTERING A TRUST
1. The name of the bank at which the Trust will operate its account.
2. The name and address of the person who will keep and maintain the records of the
trust.
3. Occupation of the Trustees. (3)
WHAT STAMP DUTY WILL YOU PAY WHEN REGISTERING A TRUST
R100.00. (1)
WHAT IS THE ESSENTIAL CHARACTERISTIC OF A DISCRETIONARY TRUST
The Trustees have a discretion regarding the benefits that beneficiaries will receive, if at all. (2)
STAMP DUTY
HOW IS THE LEGALITY AND ENFORCEABILITY OF AN AGREEMENT INFLUENCED BY THE FACT
THAT IT HAS NOT BEEN STAMPED
8.1 The legality of the agreement is not affected (1). However, the agreement cannot be enforced in a court
of law until it has been stamped (1). The Stamp Duties Act provides for penalty stamps to be affixed to the
document (1), in addition to the basic stamp duty, if it is not stamped within 21 days of signature (1). These
penalty stamps must be cancelled by the Receiver of Revenue (1). (5)
IN WHAT WAY AND BY WHOM SHOULD REVENUE STAMPS ON A DOCUMENT BE CANCELLED
8.2 The stamps may always be cancelled by the Receiver of Revenue (1) by way of his official rubber stamp
(1). It may also be cancelled by any of the parties to the agreement (1) by initialling and writing the date (1)
on each individual stamp (1). (5)
FIDELITY FUND CERTIFICATE
What is a FFC? A certificate issued in terms of the provisions of the attorneys act no 53 of 1979 (s42) to any
practitioner practising for his own account and remains valid until 31 December of each year. (2)
How and when is one obtained? 2 It must be applied for to the Secretary of the Law Society concerned in
the prescribed form and against payment of the prescribed fee furnishing the required information as by, an
attorney wishing to practise for his own account and before commencing to practise. Each practising
attorney must be in possession of a valid fidelity fund certificate which must be renewed annually. (5)
What are the consequences following an attorney failing to renew his fidelity fund certificate?
a) He may not continue to practise.
b) If he does he will be committing an offence under the rules of the Law Society.
c) He may be suspended or removed from the Roll of practitioners. (3)
NOTE: Clients retain their rights against the Fidelity Fund. (Aug 2003)
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,PRESCRIPTION ITO OF APPORTIONMENT OF DAMAGES ACT
Section 2(6)(b) of the Apportionment of Damages Act stipulates: “ The period of extinctive prescription of a
claim for a contribution shall be 12 months calculated from the date of the judgment in respect of which a
contribution is claimed or, where an appeal is made against such judgment, the date of the final judgment on
appeal: provided that if, in the case of any joint wrongdoer, the period of extinctive prescnption in relation to
any action which may be instituted against him by the Plaintiff, is governed by a law which prescribes a
period of less than 12 months as the period in which legal proceedings shall be instituted against him or
within which notice shall be given that proceedings will be instituted against him, the provisions of such law
shall apply mutatis mutandis in relation to any action for a contribution by a joint wrongdoer, a period or
periods concerned being calculated from the date of the judgment as aforesaid instead of from the date of
the original cause of action”.
“A” therefore has 12 months as from the 2nd July 1998 (date of judgment) to sue “B” for a contribution.
INADMISSIBILTY IN EVIDENCE OF A LETTER WRITTEN WITHOUT PREJUDICE BY ONE ATTORNEY
TO ANOTHER IN LITIGAITON. WOULD A DEFAMATORY STATEMENT IN SUCH A LETTER BE A
CAUSE OF ACTION FOR DEFAMATION
Statements which are made expressly (1) or impliedly (1) without prejudice in the course of bone fide
negotiations for the settlement of a dispute cannot (1) be disclosed in evidence without the consent (I) of
both parties. A letter written by one attorney to another with the object of settling a dispute is not admissible
(1) in evidence. It is considered public policy (1) to allow people to try to settle their disputes without the fear
that what they may have said will be held against them if the negotiations should break down. A statement to
be privileged must form part of the negotiations, and is not privileged merely by having been written in a
letter containing the words “without prejudice” at the top.
The reply to such a letter is likewise not admissible in evidence (1). If, however, statements are made in such
a letter which are not relevant to the dispute, such statements may well be admissible in evidence (1). Thus,
if a letter contains a defamatory statement which is irrelevant with regard to the dispute, such statement will
be actionable (1) and an acknowledgement of inability to pay debts is an act of insolvency even if it is made
without prejudice. When the settlement offer contained in a letter written without prejudice is in fact accepted
by the other side and the dispute is then settled on that basis both letters will become admissible in evidence
(1).
PROCEDURE TO BE FOLLOWED BY COMISSIONER OF OATHS WHO ATTESTS AN AFFIDAVIT
A deponent may either swear to an affidavit or attest to it.
2. Before administering the oath or affirmation the commissioner must ask the deponent:
2.1 Whether he knows and understands the contents of the affidavit (declaration).
2.2 Whether he has any objection to taking the oath or making the affirmation.
2.3 Whether he considers the oath or affirmation binding on his conscience.
3. Once the deponent has acknowledged the aforegoing the Commissioner of Oaths must ask the deponent
to say in the case of swearing "I swear that the contents of this affidavit are
true so help me G-D" and in the case of an affirmation “I truly affirm the contents of this
declaration".
4. Thereafter the deponent must sign the affidavit in the presence of the commissioner.
5. The commissioner must certify below the deponents signature that the latter has acknowledged that he
knows and understands the contents of the affidavit, and shall in addition in writing indicate the manner, date
and place of taking the oath/affirmation.
6. The COO must also sign the affidavit and print his full names, and business address below his signature.
7. The COO must also state his designation and the area for which he holds his appointment or the office
held by him if he holds the appointment ex officio.
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, LETTER TO DEFAULTING TENANT, WHO HAS BEEN GIVEN NOTICE TO REMEDY IN TERMS OF THE
AGREEMENT
Address)
(Date)
To: Shirley Naidoo (Address)
Madam,
RE: AGREEMENT OF LEASE DATED (DAY, MONTH, YEAR) (1)
By reason of your failure to remedy your breach of the abovementioned agreement (1), being, your failure to
pay rent for the months of July, August, September and October 2003 (1), notwithstanding written notice to
do so having been served on you on the (day, month, year), (1) you are hereby informed that the said
agreement is hereby cancelled in terms of clause (specify) thereof (1).
You are hereby required forthwith to vacate the premises occupied by you in terms of the said agreement
(1).
In terms of the said agreement you are liable for rent for the months of (specify), (year) at the rate of R. . . (. .
. rands) per month and in the sum of R... (rands), being rent for the current month until today’s date. Kindly
remit the total rent due, i.e. the sum of R. . .(rands), within X days of the date hereof (1).
If you do not vacate the said premises by noon on the (day, month, year), or if you fail to pay the said sum of
R... (rands) within (specify period) from date hereof (1), action will be instituted against you for confirmation
of this cancellation, ejectment from the premises and for payment of such sum (1); should action for
ejectment be instituted, damages for holding over will also be claimed from you (1).
Yours faithfully,
(Signature of lessor’s attorney)
LETTER TO TENANT TERMINATING LEASE, DEMANDING PAYMENT OF ARREAR RENTAL, AND
INDICATING ACTION: LEASE CONTAINS FORFEITURE CLAUSE
1. On day of 192 you entered into an agreement with our client in
terms whereof you hired the abovementioned premises from him. The monthly rental being R300.00.
2. The abovementioned lease agreement contains a forfeiture clause in terms whereof our client has the
election to terminate the lease agreement and demand your ejectment should you fail and/or refuse to pay
the rental for a period of more than one month.
3. You have failed and/or refused to pay the rental for the abovementioned premises for the months of June,
July, August and September 1992.
4. You have been given notice in terms of clause X of the lease agreement, in writing
on or about then day of by Messrs X to remedy
your aforementioned breach.
5. Notwithstanding their letter dated 21 you have failed to pay your arrear rental
for the months of June, July, August and September 1992.
Accordingly, we have been instructed to demand, as we hereby do, that you make payment of the arrear
rental to these offices by not later than day of 1992 and vacate the premises by day of 1992, failing which,
our client will have a Rent Interdict Summons issued against you through the Magistrate’s Court. In terms of
the Summons an inventory will be made of your possessions, and you will then be automatically interdicted
from removing them.
In the circumstances, our client hereby terminates your lease.
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