RAF Attorney Fees in South Africa: What to Check Before Signing

Key takeaways

• Before signing an RAF attorney fee agreement, ask whether the proposed arrangement is an ordinary fee mandate or a contingency fee agreement under the Contingency Fees Act. Obtain every document, the practitioner’s normal fee basis, the definition of success and partial success, the success-fee calculation, disbursement responsibility, treatment of recovered legal costs, settlement deductions and the financial result if you change attorneys or the claim is unsuccessful.
• A statement that the fee is “25%” is not a complete statutory calculation. Under section 2 of the Contingency Fees Act, a higher success fee may not exceed the practitioner’s normal fee by more than 100%. For a claim sounding in money, the total success fee also may not exceed 25% of the amount awarded or obtained, excluding costs from that calculation. Both limits matter, and 25% is a ceiling rather than an automatic entitlement.
• Do not sign blank pages, an informal percentage note or a document you have not read. A statutory contingency agreement must be in writing, in the prescribed form, signed as required, contain the required disclosures and be delivered to the client when signed. “No win, no fee” does not necessarily mean no disbursements, no opponent-cost risk, no fee after early termination or no charge for essential work during the statutory withdrawal period.
• This article is current to 21 July 2026. It helps an RAF claimant compare fee documents before signing. It does not calculate a fee in a concluded matter or replace independent advice on a settlement, trust statement, minor’s claim, protected person, taxation, complaint or recovery claim.

First identify every document you are being asked to sign

An RAF instruction pack can contain more than one agreement. Ask the firm to name the purpose and legal effect of each document. Possible documents include:

1. a mandate or engagement letter defining the work;
2. an ordinary fee agreement or statutory contingency fee agreement;
3. a power of attorney authorising identified acts;
4. consent to obtain medical, employment, tax, police or other records;
5. an authority to appoint and pay experts, counsel or correspondents;
6. disbursement funding or reimbursement terms;
7. a communication and information-sharing consent;
8. instructions about payment into a trust account;
9. a settlement authority or later settlement documents; and
10. termination, file-transfer and outstanding-account terms.

These documents should not silently contradict one another. A mandate may describe hourly rates while a separate page says 25% of the award. A power of attorney may grant broad authority without explaining who may accept a settlement. A disbursement form may create repayment duties that “no win, no fee” advertising never mentioned.

Make a document-control table:

Do not rely on the file name alone. Read the body, schedules, worked examples and incorporated terms.

Ordinary fees and contingency fees are different

An RAF attorney can propose an ordinary arrangement under which professional work is billed regardless of the result. It might use hourly rates, task prices, stage fees, deposits or a combination. The client should ask who does the work, the rate or price, billing increments, included stages, excluded work, estimate assumptions, approval thresholds and account frequency.

A contingency fee agreement is result-linked and falls within the Contingency Fees Act when its requirements are met. Section 2 recognises two broad models:

• no entitlement to fees for covered services unless the client succeeds to the extent defined in the agreement; or
• normal fees, or fees higher than normal fees within statutory limits, if the defined success occurs.

The agreement must explain which model is proposed. It must not use “contingency,” “success fee” and “25%” as if they all mean the same thing.

Ask for the practitioner’s normal fee basis in writing. The Act defines normal fees by reference to reasonable fees for the work in the absence of a contingency agreement. Without the underlying normal-fee calculation, the claimant cannot test a proposed uplift against the statutory limit.

The RAF claim checklist can organise the claim stages that should appear in the mandate before the financial terms are compared.

The 25% figure is a cap, not a price list

For the higher-fee model, two controls operate together:

1. the success fee cannot exceed the practitioner’s normal fee by more than 100%; and
2. for a monetary claim, the total success fee cannot exceed 25% of the amount awarded or obtained, with costs excluded from that percentage calculation.

The recoverable fee is not automatically a quarter of the capital. A worked example should begin with a reasonable normal fee, apply the agreed uplift, and then test the result against the monetary cap. Ask how VAT is treated in every line.

The 2025 full-court decision in De Bod v Road Accident Fund applied this structure and rejected an agreement example that effectively exceeded the cap through its VAT and costs treatment. The Court explained that normal fees remain the reasonableness benchmark and the surcharge reflects contingency risk; the Act is not an alternative percentage-pricing system detached from the work.

Before signing, request examples using at least three scenarios:

An illustration is not a promise of claim value. Its purpose is to reveal the formula. The signed agreement, actual reasonable normal fees, result, disbursements, costs recovery and current legal interpretation determine the real calculation.

Define success and partial success precisely

RAF claims can involve liability, apportionment, past medical expenses, future medical treatment, loss of earnings or support, general damages, interim steps, undertakings and costs. A result can be mixed.

The Contingency Fees Act requires the agreement to say what constitutes success or partial success and what follows from partial success. Ask:

• Is success any payment, a minimum monetary amount, acceptance of liability, an undertaking or a court order?
• How does apportionment affect the calculation?
• Is success assessed per head of damages or for the claim as a whole?
• How is a non-cash statutory undertaking treated?
• What happens if liability succeeds but general damages do not?
• What happens if a settlement is reached before summons or trial?
• Does an appeal, rescission, review or enforcement stage fall within the same definition?
• Is recovered interest treated separately?

Do not agree that any procedural step automatically constitutes financial success unless its fee consequence is clear and lawful. A promise that the firm “only gets paid when you get paid” should be tested against the actual partial-success, termination and disbursement clauses.

Separate compensation, legal costs and disbursements

An RAF file can contain three different money streams:

Compensation or capital

This is the amount or relief obtained for the claimant under the substantive claim. It may contain distinct components and may include non-cash relief. The agreement and later statement should show what enters the contingency calculation and why.

Recovered legal costs

A settlement or order may provide a contribution to legal costs, often subject to agreement or taxation. Section 2 excludes costs when calculating the 25% monetary cap. Recovered costs therefore require their own ledger; they should not simply be added to compensation and used to calculate another percentage.

Ask whether recovered costs:

• belong to the client subject to the firm’s account;
• are credited against normal fees already paid or deducted;
• cover specified counsel, expert or court expenses;
• remain subject to taxation or agreement; and
• are paid later than the capital and reconciled when received.

Do not assume a party-and-party costs contribution equals the client’s entire attorney-and-client account.

Disbursements

These are third-party expenses rather than the attorney’s professional fee. In an RAF claim they may include medical records, medico-legal experts, actuarial work, counsel, correspondent attorneys, court process, interpreters, travel and document production.

The statutory agreement must address how disbursements will be handled. Ask who advances them, which require approval, whether financing or administration charges apply, what happens if the claim fails, how recovered disbursements are credited and when supporting invoices can be inspected.

“No win, no fee” is not “no expense” unless the signed terms lawfully say so.

Read the prescribed agreement requirements line by line

Section 3 requires a contingency fee agreement to be written in the prescribed form and signed by the client or an authorised representative and the attorney, with an advocate countersigning where applicable. A copy must be delivered to the client when signed.

The agreement must address matters including:

• the proceedings covered;
• advice about other ways to fund the matter and their implications;
• the possible opponent party-and-party cost risk if unsuccessful;
• the success fee payable if successful;
• the client’s understanding of the agreement;
• success and partial success;
• when fees and disbursements become payable;
• the amount or calculation method;
• premature termination;
• treatment of disbursements;
• the statutory withdrawal period; and
• amendments and ancillary agreements.

The Act gives the client a 14-day withdrawal period and defines “day” as a court day. It also permits fees and disbursements for necessary or essential work performed to protect the client during that period on the basis stated in section 3. Ask how written withdrawal must be delivered and what urgent protective work could still be charged.

The Legal Practice Council publishes the relevant rules and prescribed agreement material. Compare the document you receive with the current prescribed form; do not accept a marketing brochure or a firm-designed one-page percentage authority as a substitute.

Do not rely on an uncommenced cost-estimate section

The official commencement record for the Legal Practice Act states that section 35(1), (2), (3) and (7) to (12) were excluded from the 31 October 2018 commencement and remain subject to proclamation. Those subsections contain a detailed statutory cost-estimate notice regime that is often quoted online as though already operative.

That does not make written clarity optional. The Contingency Fees Act has its own mandatory form and disclosure duties, and the Legal Practice Council’s Code governs professional conduct, reasonable fees, unnecessary expense and accounting. A client should still insist on written scope, rates, calculations, expenses, reporting and changes as contractual and professional safeguards.

The reason for this distinction is accuracy: ask for the information because it is necessary and supported by the applicable agreement and conduct framework, not because an uncommenced subsection has been presented as current law.

Settlement creates additional safeguards

Under section 4 of the Contingency Fees Act, a settlement offer engages affidavit and explanation requirements. The legal practitioner’s affidavit addresses the full terms, estimated trial result and prospects, settlement-versus-trial fees, reasons for the recommendation and steps taken to ensure the client understands. The client’s accompanying affidavit addresses written notice, explanation, understanding, agreement and attitude to the settlement. If the matter was before court, the Act says a contingency-fee settlement must be made an order of court.

The Supreme Court of Appeal in Road Accident Fund v MKM obo KM kept two issues separate: non-compliance with the contingency agreement framework and validity of the underlying RAF settlement. The Court held that an invalid contingency agreement is unenforceable as the basis for the higher fee, but the practitioner may still be entitled to reasonable attorney-and-client fees for work performed. A defective fee agreement does not automatically erase the client’s settlement.

Before accepting a settlement, request a written comparison showing:

1. every compensation component and non-cash undertaking;
2. apportionment and material exclusions;
3. the fee under settlement versus continued proceedings;
4. the normal-fee bill and proposed success uplift;
5. VAT treatment;
6. disbursements paid, outstanding and recoverable;
7. legal costs paid now or to be recovered later;
8. the exact amount expected to reach the client; and
9. unresolved tax, benefit, capacity or court-approval issues requiring separate advice.

Do not sign an affidavit whose figures are blank or whose explanation you did not receive.

Require a gross-to-net settlement statement

Money received for a client must be accounted for faithfully. Ask for a statement that begins with the authoritative payment record and reconciles every movement:

text gross cash compensation received - valid professional fee and VAT - authorised, supported disbursements + credits and cost recoveries due to the client + applicable trust interest or other credit = net amount payable to the client

The statement should identify dates, payer, trust receipt, each deduction, invoice or bill, costs recovery still outstanding and the client payment. A non-cash undertaking should not be displayed as cash already available.

Keep the signed mandate, contingency agreement, amendments, expert authorities, accounts, payment proof, trust statement, settlement affidavits, order, costs bill, taxation or agreement and final statement. Do not surrender the only copy.

The RAF accident claim document pack provides a broader source-record structure for the claim itself.

Ask about termination before there is a dispute

The Act requires the agreement to explain premature termination. The mandate should also say:

• how either party gives notice;
• which work becomes payable and on what basis;
• how disbursements and third-party commitments are reconciled;
• whether any claimed lien or file-retention right may arise;
• how the file and original records are transferred;
• who notifies the RAF, court, experts and other lawyers;
• how trust money is protected and accounted for;
• what happens to a pending settlement offer or court date; and
• which dispute, assessment, taxation or complaint routes remain available.

Changing lawyers does not reset prescription, a court timetable or evidence loss. Obtain the full file, current status, deadline list and written account before or alongside a change. Do not sign a new contingency agreement that assumes the former firm has no claim without checking both documents.

An invalid contingency agreement does not necessarily mean all work was free. MKM confirms that reasonable ordinary fees may remain available. Conversely, the existence of work does not make every deduction or percentage valid.

Verify the firm and who will handle the claim

Confirm the firm and practitioners through the Legal Practice Council’s official records. Ask:

• who is responsible for the file;
• who may take instructions or recommend settlement;
• whether an advocate, correspondent or external claims service will be used;
• how those charges enter the agreement;
• whether trust-money handling is through the law firm named in the mandate;
• how often progress and financial reports are provided; and
• who answers a calculation or account query.

The RAF’s current public FAQ says its information officers can provide assistance without charge, while a claimant may choose a lawyer who may charge professional fees. Direct assistance and represented litigation are different routes. The fact that a lawyer is optional does not mean a complex claim is simple; the decision should be based on claim needs, deadline risk, evidence and transparent scope rather than pressure.

Use the RAF legal-service route to understand the relevant service, and the RAF-claim lawyer directory only after the fee and scope questions are written down.

Warning signs before signing

Pause and obtain independent advice if:

• the fee is described only as “25% plus VAT”;
• the normal fee basis and worked cap calculation are missing;
• you are told the 25% cap is automatically the fee;
• a contingency agreement is not in the prescribed written form;
• pages, monetary fields, success definitions or signatures are blank;
• no complete signed copy is provided immediately;
• the mandate and fee agreement conflict;
• disbursements, cost recoveries or termination are not explained;
• broad settlement authority is hidden in another document;
• you are asked to sign a settlement affidavit before seeing the figures;
• the net payment cannot be reconciled to the RAF or court record;
• the firm discourages questions, verification or a second opinion; or
• urgent claim deadlines are used to pressure agreement terms unrelated to immediate protection.

Do not accuse a firm publicly based only on an unfamiliar calculation. Preserve the documents and obtain an independent written review.

Fourteen questions to ask before signing

1. Is this an ordinary fee arrangement or a Contingency Fees Act agreement?
2. Which exact proceedings, claim stages and work are included and excluded?
3. What are the practitioner’s normal fees, rates, increments and VAT treatment?
4. What counts as success and partial success for this RAF claim?
5. How is the uplift calculated and tested against both statutory limits?
6. Can I see lower, expected and higher-result worked examples?
7. How are cash compensation, undertakings, interest and legal costs separated?
8. Which disbursements may be incurred, who approves them and who bears them if unsuccessful?
9. How will recovered party-and-party costs and expense contributions be credited?
10. What will I owe if I withdraw, change firms, reject an offer or the mandate ends early?
11. Who may accept or recommend a settlement, and what authority am I granting?
12. What settlement affidavits, court order and gross-to-net statement will I receive?
13. How can I request assessment, taxation, section 5 review or regulatory assistance if a fee is disputed?
14. Which claim deadline or next procedural step needs protection while I review the agreement?

The lawyer consultation preparation guide helps turn these questions into a comparable written handoff. The Lexuno lawyer directory is the approved wider practitioner-discovery route.

Source position and review limits

This guide uses the current Contingency Fees Act and prescribed-form framework, the official Legal Practice Act commencement record, the Legal Practice Council Code and rules, the RAF’s current public FAQ, Ronald Bobroff, Road Accident Fund v MKM obo KM and the 2025 full-court decision in De Bod. The article does not rely on uncommenced Legal Practice Act section 35 cost-estimate subsections as operative law.

Independent South African legal and accounting review remains necessary for the exact mandate, prescribed form, normal-fee bill, VAT, uplift, capital, non-cash undertaking, interest, costs, disbursements, trust statement, settlement, client capacity, minor’s claim, termination, taxation, section 5 review, regulatory complaint, refund claim, prescription and case deadline. No fee, claim value, settlement, payment date or result is promised.

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