1.1 Unless otherwise determined in writing, in respect of our engagement as the attorneys of a client, in both current and future matters, the following terms and conditions of engagement will apply.
1.2 We are entitled to change these terms from time to time without notice.
1.3 We will endeavour to notify you of changes to these terms as soon as possible.
1.4 These terms are not comprehensive in all respects as there are several legislative and other interventions relevant to an attorney-client relationship and exceptions occur due to the complexity of legal practice. For instance, these terms are modified to the extent that the Consumer Protection Act 68 of 2008 is applicable.
1.5 By instructing us to proceed with a matter it is deemed that you are agreeing to our Terms of Engagement, you agree to having concluded a mandate agreement with Barnaschone Attorneys (also referred to as the “firm”). Whether this document is signed by or not and it will be deemed further that a copy hereof has been supplied
2. DUTY OF CARE
2.1 We are committed to doing our best to ensure that your legal needs are met.
2.2 By agreeing to our Terms of Engagement, you authorise us to take all measures we believe appropriate to protect your interests, unless you instruct us specifically to the contrary.
2.3 Our duty of care is to you and not to any other person. Before any other person may rely on our advice, we must expressly agree to that in writing. In addition, our advice is to you and is not to be disclosed to any other person without our agreement in writing.
2.4 We retain all ownership rights in all intellectual property of any kind created by us for you.
3. CONFIDENTIALITY AND CONFLICTS OF INTEREST
3.1 We place the highest possible value on client confidentiality. Legislative and other legal interventions, in addition to our obligations to court, could necessitate exceptions to this provision.
3.2 We regularly provide legal services to participants in various industries. Your confidential information is safe with us.
3.3 We go out of our way to avoid conflicts of interest. If a conflict of interest does arise, we will promptly advise you of the conflict and follow the appropriate procedure to address such an issue.
4. FEES POLICY AND DISBURSEMENTS
4.1 We are flexible and are willing to consider different methods of charging fees. These methods include fees calculated by reference to hourly rates, fees determined under a tariff, fixed fees, retainer fees, and, if appropriate, percentage fees based on the value of the transaction. Unless we have specified and agreed to another fee structure, we will charge fees primarily by reference to the amount of time spent by our Professional Practitioners (“Practitioner(s)”) on your work.
4.2 Our fees will be charged on a basis that is fair and reasonable having regard to the circumstances of the matter and the nature of our work for you. Factors that may be taken into account in setting our fees include time and resources involved; the urgency with which the matter is required to be completed; the skills, specialised knowledge and responsibility required to perform the services properly; the degree of risk assumed by us in undertaking the services, including the value of any property involved; the complexity of the matter; and difficulty or novelty of the questions involved.
4.3 We require cover (a deposit) before commencing with legal work on your behalf.
4.4 In providing legal services to you, you hereby authorize us to incur disbursements and engage the services of third parties on your behalf, the costs of which are for your account. Kindly note that we usually require cover before incurring disbursements and/or engaging third parties and we may require certain costs to be paid in advance. Costs which we may require to be paid in advance include advocates fees, sheriff’s fees and tracing agent costs. If we incur disbursements on your behalf without cover, we will invoice you for the disbursements.
4.5 Unless you specify otherwise, we use our discretion to engage advocates on your behalf.
4.6 We render interim accounts for fees and disbursements incurred on your behalf on a monthly basis while work is in progress with a final account on completion unless otherwise agreed on. The account of the Practitioner is due and payable on presentation with the clear understanding that expenditures incurred by the Practitioner will be payable against the prescribed interest rate(s) in terms of the relevant legislation, calculated from the date that the expenditure(s) was incurred by the Practitioner. The Practitioner retains the right to charge interest at a rate of 9% per annum or as specifically amended from time to time on any outstanding and arrear amounts, excluding expenditures.
4.7 Time based attendances are determined in accordance with the national international for billing of legal fees per 6 minutes or part thereof.
4.8 The Practitioner is entitled to request a deposit upon the acceptance of the mandate from you and also to request additional deposits from time to time.
4.9 The Practitioner may utilise the deposit paid to him/her by you, wholly or partially, to cover any payments due by you either during or upon the termination of the period of mandate.
4.10 You hereby irrevocably authorize the Practitioner to claim back any fees and/or expenses payable, or any portion thereof, from any funds belonging to the client as held in a trust account.
4.11 In providing legal services to you, you hereby authorise us to incur disbursements on your account.
4.12 Unless otherwise specified, we may at our discretion, engage advocates on your behalf.
4.13 Our accounts are payable on presentation.
4.14 We will not advise you of any change in our firm’s banking details by way of an e-mail or other electronic communication.
4.15 Payments that are made into an incorrect bank account may not be recoverable. We strongly recommend that you verify the correctness of our firm’s bank account details by contacting one of our Practitioners telephonically before making any payments or transfers.
4.16 Barnaschone Attorneys as well as its associated companies, directors, officers, employees and agents do not accept any liability or responsibility for any payments made by you into an incorrect bank account.
You are at all times welcome to contact the Practitioner responsible for your matter and any Practitioner at our firm, even if he or she is not directly personally involved in a particular matter.
6. FEE ESTIMATES
6.1 We will gladly provide fee estimates upon your request. Kindly note that fee or cost estimates serve as a guide to assist you in budgeting and we do not bind ourselves to the amounts contained therein. An estimate is not a quotation for work to be done on a matter unless this is specifically agreed in writing.
6.2 If the actual fee is less than a fee estimate, we charge the actual fee. If it transpires that a fee estimate is too low, we will advise you timeously.
7. TRUST ACCOUNT
We maintain a trust account for all funds that we receive from clients (except money received for payment of our invoices). In the event that we hold significant funds on your behalf and, upon receipt of your instruction and if you provide the required documentation, we will lodge such funds in an interest bearing deposit with a bank, the interest accruing to your account. In appropriate circumstances, we will charge an administration fee.
In providing our services we rely upon information and instructions provided by you without independent verification. It is vital that you make us aware of anything that may affect our services. We will also be relying upon the accurateness and completeness of all information that is available from public sources and information that may be furnished to us on your behalf or at your request by third parties.
9. CONSENT REGARDING THE PROCESSING OF PERSONAL INFORMATION
9.1 By signing these Terms of Engagement, you consent to –
9.1.1 the collection of your personal information by us or for us by a third party for purposes of performing our obligations in terms of this agreement, complying with the Financial Intelligence Centre Act 38 of 2001, or complying with any other legal obligation imposed on us;
9.1.2 the processing and further processing of your personal information by us, any of our subcontractors, or any third party which includes, but is not limited to, counsel, correspondents, sheriffs, court staff, Master of the High Court, banks, South African Revenue Service, tax practitioners, taxing consultants, consulting attorneys, tracing agents or Company and Intellectual Property Commission search works, as is required by law, or for performing of our obligations in terms of this agreement or as is required for the applicable legal process;
9.1.3 the collection of your information from any other source to confirm and/or supplement the personal information that you have provided to us;
9.1.4 the retention of your personal information (even after your matter has been completed) for as long as permitted, for legal, regulatory and marketing purposes;
9.1.5 authorise us to make use of the personal information provided by you for purposes of collection of debt in the case of non-payment of fees; and
9.3 Save in the event of our gross negligence, you indemnify us against any and all liability whatsoever arising from our failure to comply with any statutory obligations contained in POPIA.
10. LEGAL SYSTEM
10.1 Our relationship with you is governed by South African law.
10.2 We are only qualified to practice South African law. We are on occasion called upon to express a view on foreign law and documents governed by foreign law and/or to prepare documents to be governed by foreign law. If we do assist you in relation to a matter governed by foreign law, such assistance does not constitute legal advice and we do so on the basis that we do not accept responsibility in relation to your position under that foreign law, or otherwise. In this regard, we advise you to obtain legal advice from a legal practitioner duly admitted to practice law in the relevant jurisdiction.
11. FILES AND DOCUMENTS
You hereby authorise that we may, without further notice to you, destroy all files and documents for any matter other than documents held in safe custody as permitted under law.
12.1 You may terminate our engagement by written notice to us at any time. Please note that you will remain liable for fees and disbursements incurred prior to termination of our mandate and/or any engagement you have had with our firm.
12.2 We may terminate our mandate and/or engagement by written notice to you at any time if circumstances arise which render it unsuitable for us to continue.
12.3 We will exercise our right to retention of your files until such time as our account is paid in full.
13.1 If you have a complaint about our services or charges, you may refer your complaint to any Practitioner at our firm.
13.2 We confirm that our firm’s procedure for handling complaints by clients is designed to ensure that a complaint is dealt with both fairly and promptly.
14.1 We support alternative dispute resolution.
14.2 In the unlikely event of a dispute of whatsoever nature arising from, or in connection with, our engagement, the following will apply:
14.2.1 We will promptly engage with you in order to mediate the dispute;
14.2.2 If mediation is not suitable in the circumstances or in the event that mediation is unsuccessful, the dispute will be determined by way of arbitration and in accordance with the rules of the Arbitration Foundation of Southern Africa (“the rules”). The arbitration proceedings will be conducted by an arbitrator or arbitrators nominated in respect of the rules and such arbitration will take place in Cape Town.
15. STANDARD HOURLY RATES
15.1 In most circumstances we charge clients Value-added Tax at the standard rate (currently 15%).
15.2 In specific circumstances, we charge clients Value-added Tax at the zero rate. This usually applies in the event that a client is a non-resident of South Africa and if the client is not in South Africa at the time the services are rendered.
15.3 The column below with the heading “Hourly rate excluding Value-added Tax” is exclusive of Value-added Tax.
|HOURLY RATE IN ZAR EXCLUDING VALUE-ADDED TAX
|VALUE-ADDED TAX IN ZAR
|HOURLY RATE IN ZAR INCLUSIVE OF VALUE-ADDED TAX
|Candidate Legal Practitioner
16. OUR DETAILS
Barnaschone Incorporated trading as Barnaschone Attorneys, a personal liability company, regulated under the Attorneys Act 53 of 1979.
Registration number: 2012/052728/21
VAT number: 4160261410
Registered address: Office 203, Soho-on-Strand, 128 Strand Street, De Waterkant, Cape Town 8001