Attorney Mandate Letter in South Africa: Scope Checklist

Key takeaways

• Before accepting an attorney mandate letter in South Africa, confirm who the client is, what outcome the attorney has been asked to pursue, which work is included, which work is excluded, who may make binding decisions, how fees and third-party costs are calculated, how changes will be approved and what happens when the mandate ends.
• A mandate is the contract under which a client requests legal work and the attorney accepts it. Its scope can arise from express, tacit or implied terms, so the absence of one signed document does not necessarily mean that no attorney-client relationship exists. A clear written mandate is nevertheless the safest working record because it reduces disputes about instructions, responsibility, fees, deadlines and authority.
• Do not read a mandate as a guarantee that the case or transaction will succeed. It should define the professional work to be performed, the assumptions on which it is priced and the decisions that remain with the client. If the letter is unclear on a material point, obtain a written answer or revised clause before work begins.

1. Understand what the mandate does

South African courts describe the attorney-client relationship as one of mandate. In Le Roux v Johannes G Coetzee and Seuns, the Constitutional Court explained that accepting instructions to provide legal services establishes a contract of mandate and that the agreement carries an implied obligation to perform with the skill, care and diligence required of the average attorney.

The exact duty still depends on what the attorney was engaged to do. In Botha v Edward Leonard Nzabandsaba Inc, the High Court stated that the scope may depend on express, tacit or implied terms. A conversation, email, conduct after instruction and the work actually accepted can therefore matter alongside a formal letter.

The written mandate should make the core terms express. It is not merely permission for the firm to “deal with the matter”. It should create a shared map of:

• the parties to the attorney-client relationship;
• the legal problem and immediate objective;
• the work included at the current stage;
• tasks and outcomes outside the instruction;
• the people authorised to give and receive instructions;
• the fee and disbursement arrangement;
• the reporting and approval points; and
• the process for variation, suspension or termination.

The attorney glossary explains the professional category. The mandate must still identify the particular firm and responsible practitioner accepting the work.

2. Identify the client and the instructing authority

The person communicating with the attorney is not always the client. A director may contact a firm for a company, a family member may seek help for another adult, an executor may act for an estate, or one member of a group may coordinate a shared instruction. The mandate should not leave the client identity to implication.

Record:

• the client's full legal name and identifying or registration details;
• the capacity in which any representative signs or instructs;
• the authority relied on, such as a resolution, appointment or power of attorney;
• whether any related person or entity is also a client;
• who may approve strategy, settlement, spending and disclosure;
• who receives invoices and whether a third-party payer becomes a client; and
• how conflicts between jointly represented clients will be handled.

Payment does not alone decide who the client is. In Walker v Schabort Potgieter Attorneys, the Supreme Court of Appeal considered a written fee and mandate agreement under which the client relationship existed even though another party paid the fees. The judgment underscores why client identity and the duty to account should be stated expressly.

For an organisation, the letter should distinguish the organisation from its shareholders, directors, employees or members. If the firm advises the company, an individual officer should not assume that the same attorney also represents them personally. Where more than one client is proposed, ask what happens if their interests later diverge.

Do not sign for another person or entity without checking the authority required. A signature block is not a substitute for the underlying appointment or resolution.

3. Define the problem, objective and current stage

A useful mandate describes the work as a controlled stage rather than an unlimited promise. “Handle my dispute” is too broad to show whether the attorney must preserve evidence, write one letter, negotiate, issue proceedings, defend a counterclaim, brief counsel, run a trial or manage an appeal.

Start with the immediate objective. Examples include:

• advise on rights and available routes after reviewing specified documents;
• send and respond to pre-litigation correspondence;
• prepare and issue a defined application or action;
• defend a named case through a stated procedural stage;
• negotiate and document a transaction subject to client approval;
• conduct due diligence against an agreed question list; or
• provide a written opinion on identified issues.

Then state the current stage. Litigation may be divided into initial advice, demand, pleadings, interim applications, discovery, expert evidence, trial, enforcement and appeal. A transaction may be divided into term sheet, due diligence, drafting, negotiation, conditions, signature, implementation and post-closing work.

The intended outcome should guide the work without becoming a warranty. An attorney can undertake to prepare, advise, negotiate or represent with professional care. The attorney cannot promise that a court, regulator, counterparty or other decision-maker will produce a particular result.

The lawyer consultation preparation guide can help organise the facts, documents and deadline before the scope is settled.

4. List included work and exclusions separately

An included-work list should be specific enough to price and supervise. It can identify the documents to review, consultations included, research question, correspondence, negotiation rounds, pleadings, applications, appearances, reporting events and file-closing step.

Exclusions are equally important. A mandate should say when it does not include:

• an appeal, review, rescission or enforcement process;
• a counterclaim or separate cause of action;
• tax, competition, employment, regulatory or foreign-law advice;
• advice to another company, family member or officer;
• expert, advocate, correspondent or foreign-lawyer work;
• urgent or after-hours applications;
• translation, interpreting, notarisation or authentication;
• investigation beyond the records supplied;
• collection after judgment; or
• work arising from new facts, parties or proceedings.

An exclusion is not a prediction that the work will never be required. It means the current fee and responsibility do not cover it unless the mandate is changed.

Do not use an exclusion to hide a task that is obviously necessary for the stated stage. Ask the attorney to reconcile the objective, included work and exclusions. If, for example, the objective says “defend the action through trial” but the exclusions omit expert evidence and interlocutory applications, ask what happens if either becomes necessary.

Incidental authority can be implied where it is necessary to carry out an accepted instruction, but that principle should not be used as a substitute for agreeing a material expansion. The letter should require written approval before the firm starts a new stage, instructs a significant third party or exceeds an agreed cost trigger, except where an identified urgent-protection rule applies.

5. Reserve client decisions and professional independence

The mandate should identify decisions that the attorney may make in conducting the file and decisions that require the client's approval. A client usually controls objectives and material commercial choices; the attorney retains the professional independence required to give lawful advice and fulfil duties to the court and justice system.

State who may authorise:

• settlement terms or rejection of an offer;
• institution, defence, withdrawal or abandonment of proceedings;
• admissions, concessions or undertakings with material consequences;
• appointment of an advocate, expert, correspondent or other provider;
• spending above a stated threshold;
• disclosure of confidential material where consent is required; and
• a material change in strategy or remedy.

An attorney is not required to carry out an illegal, dishonest or professionally improper instruction. In Shapiro & De Meyer v Schellauf, the Supreme Court of Appeal recognised the duty to act according to client instructions and report when reasonably necessary, while also explaining that an attorney is not bound to do whatever a client wishes and may need to explain proposed conduct and alternatives.

Avoid clauses that give an unidentified person unlimited authority to settle or incur costs. Equally, avoid a process so rigid that no one can take an urgent procedural step to protect the client's position. Define the emergency contact and what may be done when approval cannot reasonably be obtained.

6. Read the fee terms as a calculation, not a headline number

“Retainer”, “deposit”, “estimate” and “fixed fee” are not interchangeable. The letter should define each amount and explain when it is earned, drawn, replenished, reconciled or refunded.

For fees, check:

• whether the basis is hourly, fixed, capped, staged, recurring or contingent;
• the rate for each practitioner or staff category and whether VAT is included;
• the charging unit and treatment of short calls, messages, travel and waiting time;
• which consultations, drafts, revisions or appearances are included;
• the estimate or cap, its assumptions and the events that can change it;
• when rates may increase and how notice will be given;
• the deposit or advance-cover requirement and replenishment trigger;
• billing frequency, payment period and interest term;
• whether work can pause for non-payment and how urgent deadlines are protected; and
• the process for querying an account.

For disbursements and third-party work, check counsel, experts, sheriffs, correspondents, filing fees, travel, searches, couriers, transcription and other providers. Ask which amounts require prior approval, whether the firm adds an administration charge and what evidence will accompany the account.

The Legal Practice Council's March 2026 ethics guide records an important commencement limit: nine of the Legal Practice Act's twelve section 35 fee subsections remain unproclaimed. The written cost-estimate regime in subsections 7 to 12 should therefore not be presented as a universal commenced statutory requirement. A clear written fee and scope agreement remains strong contractual and professional risk control, and courts have treated disclosure of scope, fee amount, hourly rate, payment terms and termination consequences as longstanding mandate norms.

If the arrangement is a contingency fee agreement, separate formal law applies. Section 3 of the Contingency Fees Act requires the agreement to be in writing, in the prescribed form and signed by the specified parties. Do not convert an ordinary hourly or staged mandate into a “no win, no fee” understanding through an informal email or percentage note.

The lawyer directory provides the approved discovery route if the offered scope does not match the matter or the client wants to compare appropriately registered practitioners. A directory profile does not replace the actual fee and mandate terms offered by the firm.

7. Define communication, reporting and record control

A mandate should make ordinary file communication predictable. State the responsible attorney, day-to-day contact, approved client contacts, secure channel and response arrangement. The current Code of Conduct applies to attorneys and the LPC's 2026 ethics guide highlights the duty to answer communications requiring a response within a reasonable time unless there is good cause not to.

Agree when the firm will report, such as:

• after receiving material correspondence or an order;
• before a deadline requiring a client decision;
• when an estimate or scope assumption changes;
• before instructing a material third party;
• after an appearance, negotiation or submission;
• at a regular interval during a long inactive process; and
• when no further work is being done pending instructions or payment.

The client should also undertake to provide complete, accurate and timely information; preserve relevant evidence; disclose adverse facts; update contact details; and give instructions by the agreed deadline. The mandate should explain the consequence if essential instructions or funds are not supplied.

State who owns and retains originals, how electronic records will be exchanged, what may be destroyed under the firm's retention policy and how the client can obtain copies. Do not send sensitive records through a new address or link without verifying it.

In Walker, the Supreme Court of Appeal described the attorney-client relationship as fiduciary and emphasised truthful, open accounting for matters known and actions taken in execution of the mandate, including trust funds. A reporting clause should support that duty rather than attempt to replace it.

8. Create a written change-control process

Legal matters change. A new party, urgent application, counterclaim, expert issue, document volume or settlement process can make the original scope and estimate obsolete. The mandate should say how the firm will identify and approve that change.

A useful variation notice records:

1. the new fact or event;
2. the work it creates;
3. whether the work is included or excluded under the current mandate;
4. the effect on timing, staffing, third parties and fees;
5. any urgent step needed to preserve rights; and
6. the client's approval, rejection or alternative instruction.

Do not let repeated informal requests silently turn a limited instruction into an open-ended one. Confirm material new work in writing. If the attorney believes the work was already implied, ask which clause, instruction or conduct supports that position and request an updated scope record.

For a fixed fee, a change-control clause is especially important. “Fixed” should identify the deliverable and assumptions. It does not answer whether a second negotiation round, amended pleading, new party or appeal is included.

9. Understand termination, withdrawal and handover

The mandate should explain how the client or firm may end the relationship, the notice channel and the immediate operational consequences. Ending a mandate does not automatically cancel a court date, filing deadline, invoice or third-party commitment.

Check:

• what fees and disbursements become due on termination;
• whether unearned advance funds will be reconciled and returned;
• which pending deadline, hearing or undertaking requires urgent attention;
• whether formal withdrawal, substitution or court permission is needed;
• what work will be done to protect the file during transition;
• how originals, copies and electronic records will be transferred;
• whether the firm asserts a lien and how a dispute will be handled; and
• who must notify the court, opponent, regulator or service provider.

The Code of Conduct protects a client's freedom to choose a legal practitioner, but both sides must address procedural duties and prejudice when a mandate ends. A firm also cannot time a demand for payment or advance cover unreasonably and then refuse to continue solely on that basis without regard to the circumstances.

Do not wait until the eve of a hearing to clarify the exit terms. If the relationship is already breaking down, obtain a written status report, deadline list, itemised account and inventory of the file. The separate frozen article on a lawyer refusing to return a file remains the file-handover intent owner and should not be treated as reviewed guidance until it passes remediation.

10. Review the final letter before accepting it

Read the document as if a different attorney and client had to reconstruct the relationship six months later. Every material promise should point to a person, action, stage, price mechanism or approval event.

Before signing or confirming acceptance:

• correct the client, firm and responsible-practitioner details;
• attach or identify the instruction documents;
• state the immediate objective and included stage;
• list material exclusions and assumptions;
• name the people with settlement and spending authority;
• record the fee basis, VAT, rates, deposit and third-party costs;
• define reports, decision points and response channels;
• add a written variation and estimate-update process;
• record termination, deadline and handover consequences;
• identify any contingency-fee or other special statutory form; and
• keep the signed version and each later variation together.

Do not sign with blanks, unexplained cross-references or schedules that have not been supplied. Do not rely on a verbal assurance that contradicts the text; ask for the letter to be corrected. If an urgent deadline requires protective work before every commercial term is final, record the limited interim instruction, authority, fee basis and next confirmation point in writing.

If a fee dispute develops, preserve the mandate, variations, invoices, trust statements, correspondence, work product and deadline history. The legal fees dispute checklist can organise those records without deciding whether a particular account is reasonable or which assessment route applies.

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