These terms and conditions (“Terms”) will apply to the relationship between you and us, in general during our engagement by you, and to each specific matter. We may vary these terms from time to time and will notify you in writing when we do so. Definitions, if not provided in the body of the terms, are in paragraph 19.
- Important paragraphs
If you are a consumer, as defined in the Consumer Protection Act 68 of 2008 (“Consumer Protection Act”) we have a duty to point out certain important terms to you. The paragraphs which contain these important terms and reasons why they are important are set out below.
1.1 Limitation of our liability. Paragraphs 5.5, 6.1, 9.4, 10 and 12.4 are important because they limit and exclude obligations, liabilities and legal responsibilities that we may otherwise have to you. They also limit and exclude your rights and remedies and place various risks, liabilities, obligations and legal responsibilities on you.
1.2 Assumption of risk. Paragraphs 9.3 and 9.4 are important because they contain assumptions of risk by you and may limit your rights and remedies against us.
1.3 Acknowledgement of fact. Paragraphs 5.1, 5.2 and 5.3 are important because they each contain an acknowledgement of fact by you. You must read each paragraph carefully because they set out how monies are held on your behalf.
1.4 Indemnity. Paragraph 10 requires you to indemnify (hold us harmless) us against claims that may be made against us in certain circumstances – this may place various risks, liabilities, obligations and legal responsibilities on you and we may claim payment from you of the amount of these claims.
- General terms of engagement
2.1 Scope of engagement. You and we will agree on the scope of our engagement for each matter when necessary.
2.2 Our advice to you. The engagement only creates rights and obligations between you and us. No other person:
• May rely on advice we give you;
• Is intended to be protected by our advice or other services and other obligations; or
• May enforce any term of your engagement with us through any applicable law.
2.3 Taking instructions and duty of care. We will treat only you as our client for professional purposes. You agree that we may take instructions from you and any other person whom we reasonably believe you have authorised to instruct us. Our duty of care is only to you, as our client. It does not extend to your holding company, subsidiaries. Affiliated companies or other third parties, unless we agree otherwise in writing.
2.4 Time frames. We will take reasonable steps to complete our mandate and give you deliverables in the timeframes agreed with you, or as soon as is reasonably possible in the circumstances.
2.5 Updating advice. We will give you advice based on our understanding of the relevant statutes, case law and practice at the time we give the advice. Subsequent changes in law and practice may affect the advice but we are not obliged to update any advice in line with these changes, unless we have specifically agreed with you to do so, in writing.
3.1 We will agree our fees for any matter with you at the appropriate time.
3.2 Fee estimate. Any fee estimate we give you for a matter is based on our knowledge of the matter and our assessment at the time we give you the estimate of the amount of work needed to fulfil our instructions. If any of these assumptions, or our assessment, proves to be incorrect or you alter our instructions, the estimate may not be accurate. An estimate is not definitive and is not an upper limit of our fees.
3.3 Reimbursements. You must reimburse us for:
• Costs and charges for printing and copying (or similar services) and of counsel, experts and accountants (or similar services), we undertake or engage on your behalf; and
• Disbursements (third party expenses, such as external search fees) and business travel (or similar) expenses which we incur.
3.4 Travel time. Our fees may include time spent travelling, on your instructions, for the purposes of the matter.
- Billing and payment terms
4.1 Billing. We will bill at times arranged with you, or otherwise at intervals we consider appropriate for the mater.
4.2 Payment and interest. You must settle your account within 14 days. We may charge interest on amounts outstanding up to the legally allowed rate or exercise a lien over any documents or monies we possess regarding bills that are not paid within that time.
4.3 Ending the engagement for a matter. If you inform us that you have decided not to proceed with the matter (at all or for the foreseeable future) we may submit our bill to you for all work undertaken.
- Your money
5.1 Funds held on your behalf. If we hold funds on deposit, or if we have collected or received funds on your behalf, we will apply them to settle any outstanding accounts you owe us.
5.2 Funds held in our trust account. You will not earn any interest on funds we hold in our trust account, because we must pay any interest to the Legal Practitioners’ Fidelity Fund established under the Legal Practice Act 28 of 2014 (“Fidelity Fund”).
5.3 Section 86(4) investment. If you specifically request us to invest funds that we hold on your behalf for a matter, you must complete our standard investment mandate. We will then invest those funds in an interest-bearing call account. You will then benefit from the interest earned, after deducting such percentage of the interest as accrues to the Fidelity Fund in terms of section 86(5)(b) of the Legal Practice Act.
5.4 These funds invested in terms of section 86(4) will not be covered by the Fidelity Fund if:
• The payment is not made for the purpose of investing such money on a temporary or interim basis only pending the conclusion or implementation of a matter or transaction which already exists or is about to start at the time the investment is made; and
• We do not exercise exclusive control over the account as trustee, agent, stakeholder or in any other fiduciary capacity.
5.5 Liability. As far as the law allows, we will not be liable for any loss you may suffer arising from:
• Any act or omission of the banking institution concerned regarding any account;
• Any inability, delay or failure of the banking institution to repay the funds on demand;
• The identity or choice of banking institution; or
• Any interest or exchange rate fluctuation.
- External resources
6.1 There may be times where we need to instruct advisers on your behalf (for example local counsel in another jurisdiction). We do not accept liability for the acts, errors, omissions, or the fees of these advisers or service providers.
- Information and documentation
7.1 Relevant and accurate information. We will perform our mandate based on the information you give us and you agree:
• To ensure that we receive all the information that may affect our mandate, including any information about a change in circumstances that may influence the position;
• We are not obliged to determine if the information you give us is accurate or complete; and
• Unless you ask us, and we agree in writing, we will not perform any audit, due diligence or other procedure to verify information we receive.
7.2 Draft documents. We may send you drafts of documents we produce, such as letters of advice or reports for your review, while working on a matter. You cannot rely on a draft until we finalise its contents and confirm this in writing.
7.3 Conflict between finalised documents. Multiple copies and versions of finalised documents may exist in different media. In case of any discrepancy, the signed hard copy version will prevail.
- Confidential information
8.1 Confidential information. We will respect the confidential nature of any information (“Confidential Information”) you or your advisers give us.
8.2 Disclosure. Subject to paragraph 12, we will not disclose any Confidential Information to anyone without your prior consent, except:
• Where the law, rules or a court order require us to do so. We will only do this after we have informed you and (where possible and permitted) taken action, at your cost, to contest the disclosure;
• To anyone (including any of your other advisers) who may be able to assist us with the matter and we believe it is appropriate for them to know the Confidential Information, taking into account your interests;
• To our professional indemnity insures or legal advisers, and
• To selected third parties such as suppliers of word processing, translation, waste disposal agencies, IT services and other suppliers who assist us in legal, finance, administrative and other roles, and who will or may have access to Confidential Information as part of their function.
8.3 Necessary disclosure. If we are required to disclose Confidential Information, such as in the situations above, we will take all reasonable steps to secure and ensure your Confidential Information is protected.
8.4 Other clients. We owe a similar duty of confidentiality to all of our other clients (“Other Clients”) as we do to you. We will not disclose any information Other Clients give us to you, without their consent, even if the information is material to your matter. You agree that we do not owe a duty of disclosure to you in relation to such information.
8.5 Other matters. There may be times when we act for Other Clients on matters where their interests differ from yours and your Confidential Information is material to the Other Clients’ matters. You agree our duty of confidentiality to you will be satisfied by putting in place appropriate safeguards, in line with applicable law or practice. You agree that you will not seek to prevent us from acting for Other Clients simply because we hold your Confidential Information.
8.6 Your duty of confidentiality. We may assume that you comply with all your confidentiality obligations to third parties regarding any information disclosed to us.
8.7 No instruction from you. If you contact us about a potential matter, but decide not to proceed, you agree that we may act for Other Clients whose interests may differ from yours, if we protect your Confidential Information with the appropriate safeguards.
9.1 Communicating with you. Unless you specify otherwise, we may communicate directly with your employees or your other advisers as we consider appropriate and who we reasonably believe are involved in the matter and can assist us with providing the services to you.
9.2 Email communication. We will communicate with you and your advisers about the matter (including Confidential Information) by email, unless you instruct us otherwise.
9.3 Follow up. Email communications are not totally secure or error-free. We use filtering software to reduce spam and harmful viruses entering our systems. As there is a risk of filtering out legitimate correspondence, you should not assume that we receive every email. Please follow up important communications by phone.
9.4 Liability for viruses. We are not liable if our filtering software or other virus or electronic protection does not function and your systems are infected by any email or other form of delivery of information (such as CD, DVD, memory stick or via the internet) from us.
10.1 As far as the law allows, you indemnify us against any claim made against us by:
• Any of your subsidiaries, associates, affiliates or shareholders which may not have signed an engagement letter on these terms or substantially similar terms for whom we perform a mandate; or
• Any third party to whom you disclose our advice, unless we provide our written agreement for that third party to be able to rely on our advice to you.
- Consumer Protection Act
11.1 If these terms or any goods or services provided under these terms are regulated by the Consumer Protection Act, all the provisions in these terms must be treated as being qualified, to the extent necessary, to ensure compliance with the provisions of the Consumer Protection Act.
11.2 No provision in these terms:
• Does or intends to limit or exempt us from liability (including loss that resulted directly or indirectly from our gross negligence or deliberate default), so far as the law does not allow this limitation or exemption; or
• Requires you to assume risk or liability for this king of loss referred to in paragraph 11.2 so far as the law does not allow such an assumption of risk or liability.
- Anti-money laundering and sanctions
12.1 Legal requirements. Various laws and regulations on anti-money laundering and terrorism apply to us. When we ask you to give us relevant information to perform know your client (KYC) or customer due diligence (CDD) checks (for example, verification of identity or evidence of source of funds) you must give us this information promptly.
12.2 Reporting. We may have to report any suspicious activity to the relevant authorities and obtain their prior consent before continuing to act. They may also prohibit us from informing you that we have made such a report (for example a tip-off).
12.3 Cessation of matter or termination. Where we believe that our work on the matter may involve a breach of anti-money laundering or terrorism law or regulation, or any applicable sanction, we may cease working on the matter immediately and terminate our mandate.
12.4 No liability. We will not be liable to you for any loss, damage or delay you may suffer as a result of our:
• Ceasing to act in accordance with paragraph 12.3 above; or
• Fulfilling our statutory obligations (or in acting as we may reasonably believe we are required to do so), so long as we have acted in good faith.
- Data protection and marketing
13.1 Data subjects. In providing services to you, we may process personal information about you, your owners, officers or employees. Sub-contractors, consultants, or other similar parties (each a “Data Subject”).
13.2 Processing personal information. Processing may include transfer of information to our offices, third parties who process information for us (as referred to in paragraph 8.2 above), and law enforcement agencies. In processing personal information we agree to comply with all relevant data protection laws and regulations. We agree to ensure that third parties who process personal information for us, treat personal information as confidential; implement appropriate measures to ensure the protection of personal information and that they agree to comply with all relevant data protection laws and regulations.
13.3 Contacting Data Subjects. Where we are permitted, we may contact a Data Subject (including by email) with marketing communications which we believe may be of interest, on our own or in conjunction with another firm with which we have entered into a joint venture, alliance or collaboration arrangement.
13.4 Ceasing communication. Any Data Subject who does not wish to receive marketing information can at any time request that such communications cease by emailing us at firstname.lastname@example.org. Marketing communications will not be sent to a Data Subject who has requested not to receive marketing communication.
13.5 Consent. When you give personal information to us about any Data Subject to process for purposes of a matter, you confirm that you have obtained the necessary consent from the Data Subject to share such information and for us to process, including transfer personal information. On certain occasions, in providing services to you, you may provide us with personal information of parties such as your clients or customers as necessary for purposes of the services, in such situations, you confirm that you have obtained their consent or have the authority to share their information with us and for us to process the information. You undertake to comply with all relevant data proception laws and regulations.
14.1 Termination by you. You instruct us separately in relation to each matter. You do not engage us on a permanent basis, but you may terminate our engagement in any, some or all matters at any time.
14.2 Termination by us. We will stop acting only with good reason in line with the relevant rules. We may do this for example if you do not pay an interim bill, you become insolvent, a conflict arises or our continuing to work on the matter may have an adverse effect on our reputation.
14.3 Automatic termination. Unless terminated earlier, our engagement on each matter will terminate 30 days after dispatch of our final bill. As far as the law and relevant rules allow, we will consider that the matter has not proceeded and our engagement will terminate once:
• You inform us that the matter will no longer proceed;
• Our engagement is otherwise terminated in accordance with these terms; or
• We have had no instructions from you in relation to the matter for 60 days.
14.4 In each case, you remain responsible for our fees and expenses for work done up to the point of termination.
- Document retention
15.1 Destroying documents. We may destroy our paper and (where possible) electronic files in line with our relevant policies on this, seven years or more after sending you our final bill on the matter.
15.2 Retrieving documents. If you or other advisers request us to retrieve any documents from storage, you will pay our reasonable costs, including time spent reading such documents, writing letters or other work which we, acting reasonably, deem necessary, to comply with such a request.
16.1 We retain the copyright and all other relevant intellectual property rights in our work product. You will have a licence to use and make copies of the documents we prepare for the purposes of the matter by not (unless otherwise agreed) for other matters.
- Queries and disputes
17.1 Negotiation and arbitration. As far as the law allows, if we are unable to resolve any dispute related to a matter with you by negotiation, we may refer the dispute to arbitration to be finally resolved in accordance with the Commercial Rules of the Arbitration Foundation of Southern Africa by an arbitrator appointed by the Foundation. The arbitration will be conducted in Johannesburg.
17.2 Jurisdiction of the Courts. Any dispute (including a dispute relating to any non-contractual obligation) will, subject to the arbitration procedure in 17.1, be subject to the exclusive jurisdiction of the High Court of South Africa (Gauteng Division, Johannesburg).
- General Terms
18.1 Conflict. If there is any inconsistency between these terms and any other terms and conditions agreed between you and us, in writing and signed, the written and signed terms between you and us will prevail. If there is a conflict between these terms and the investment mandate you sign with us (under paragraph 5.3), the investment mandate will prevail.
18.2 Severability. If any provision of these terms is or becomes invalid, illegal or unenforceable, the remainder shall survive unaffected.
18.3 Governing law. South African law will govern these terms.
- Definitions and interpretation
19.1 Definitions. In these terms the following words will bear the meanings given to them here:
• “Matter” means each matter in which we provide you with Services;
• “Services” means any advice, deliverable, product, information or other obligation or service we perform or provide for a matter;
• “You” or “Client” means the party who enters into an engagement with us for a Matter and to whom we provide the Services and such other persons as you and we agree shall be treated as a Client for the purposes of the Matter; and
• “we”, “our” or “us” means the Incorporated formed under South African law whose principal office is at 11 Fife Avenue, Craighall Park, Johannesburg.
19.2 Singular and plural. Words in the singular include the plural and the other way around.
19.3 Different forms of the same word. Different grammatical forms of the same word have the same meaning.
19.4 General words are not limited. Where we use general words to describe specific things that belong together, the general words can also mean other things.
19.5 References to “include” and “including”. The words ‘including’ or ‘include’ or ‘includes’ must not be interpreted as being limited to the list following after the word or excluding other items from a list following after the word.
19.6 Calculating days. Where any number of days is given, those days are counted to exclude the first day but include the last day.
19.7 Reference to laws. When there is reference to a law or to a section of a law, we mean that law or section of that law as amended, repealed or replaced from time to time.
19.8 References to persons. Any reference to a person includes natural persons and juristic persons and the other way around.