ATTORNEY’S PRACTICE (PAPER 3)

MEMORANDUM / ANSWERS

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NOTE:
Exam Date: 14 March 2024
Memo Published: 16 March 2024
© NKANYISO NGCOBO

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CONTENTS:
Question 1 ..................................................................................................................................2
Question 2 ..................................................................................................................................2
Question 3 ..................................................................................................................................2
Question 4 ..................................................................................................................................2
Question 5 ..................................................................................................................................2
Question 6 ..................................................................................................................................2
Question 7 ..................................................................................................................................3
Question 8 ..................................................................................................................................3
Question 9 ..................................................................................................................................3
Question 10 ................................................................................................................................3
Question 11 ................................................................................................................................3
Question 12 ................................................................................................................................4
Question 13 ................................................................................................................................4
Question 14 ................................................................................................................................4
Question 15 ................................................................................................................................5
Question 16 ................................................................................................................................5
Question 17 ................................................................................................................................5
Study Material ............................................................................................................................ 6
Question 1

Honesty and integrity

Question 2

a) their duty to the court

b) the interests of justice
c) observance of the law
d) the maintenance of the ethical standards prescribed by this code, and any ethical
standards generally recognised by the profession

Question 3

a) plead guilty or plead guilty to a lesser charge

b) accept a settlement of a matter

Question 4

“conduct” may take the form of non-verbal conduct, verbal conduct, and/or physical conduct.
Conduct qualifying as sexual harassment may occur in a single instance or may include
conduct that occurs on a repeated basis where the effect is to sexually harass the person.

Question 5

5.1. An attorney who accepts pro bono instructions shall not, after acceptance, seek to
charge a fee except as may be permissible under section 92 of the Legal Practice Act.
5.2. Attorneys who appear in court proceedings pro bono shall disclose that fact to all
interested parties and to the court.

Question 6

Legal practitioner may accept a brief to argue a case for a party despite having earlier given
an opinion on the issues to the opposing party, provided that:
a) no information had been received by the legal practitioner for the purpose of giving
the opinion about which a reasonable belief might exist that the client in the earlier
brief might be prejudiced by acceptance of the later brief; and

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 b) the attorneys for both parties (where appointed), or an unrepresented party, agree to
the offer of the later brief before an acceptance.

Question 7

7.1. True
7.2. False

Question 8

8.1. No.
8.2. An attorney may accept the offer because the lender is a financial institution. However,
advise the client to obtain independent legal advice.
8.3. No. The attorney has an interest in the matter since he works for the same law firm.

Question 9

The court is likely to suspend the legal practitioner than to struck him off the roll of attorneys.
Driving under the influence of liquor is an offence that is penalised by either a fine or
imprisonment. Further, the offence did not amount to dishonesty by the practitioner, and so it
doesn’t compromise his character as a fit and proper person. Costs my be awarded against
the practitioner.

Question 10

10.1. Legal practitioners (who run legal practices) are provided with insurance to cover for
misappropriation of trust funds.
10.2. The LPFF encourages the public to use services provided by legal practitioners with
confidence.

Question 11

11.1. In terms of the Contingency Fee Agreement Act, the fee may either be double the
attorney’s fees up to 100% or the 25% of the total award, whichever is lesser. Double
the fees in this instance will mean charging R400 000. Whereas, the 25% of the award
would be R200 000. Therefore, the fee will be R200 000, since it’s the lesser amount.

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11.2.
a) Parties: in the contingency fee agreement, the parties are the attorney and the
litigant, whereas in the champerty contract, the parties are the funder and the litigant.
b) Reward: in the contingency fee agreement, the fee charged is limited to the lessor of
the amounts between double the attorneys’ fees up to 100% or 25% of the total
award, whereas in the champerty contract, there are no limitations as to how much
the funder may elicit from the litigant.
c) Regulation: the contingency fee agreement is regulated by legislation in terms of the
Contingency Fee Agreement Act, whereas the champerty contract is a normal
contract that is not regulated by a specific piece of legislation.
d) Cost order: in the contingency fee agreement, the litigant may have to pay costs to
the opposing party if it was not successful, whereas in the champerty contract, the
funder may be cited as one of the parties and the cost order may granted against it.

Question 12

12.1 ABC SOC Ltd

12.2 ABC (RF)
12.3 12123/2012 (South Africa)
12.4 ABC NPC

Question 13

13.1. Voetstoots clause, since XYZ would be a supplier in the ordinary course of its
business.
13.2. The appointment will remain in force for a period of two (2) months from the date of
signature by the owner. The agent is appointed as the sole agent to find a buyer of the
property. This appointment will not prevent the owner from selling to a buyer who has
negotiated directly with the owner, without being introduced either directly or indirectly
by any agent, and no remuneration will be paid in the event of the conclusion of such a
direct sale.

Question 14

The company will not lose the security afforded by its builder’s lien by delivering the building
site to the liquidation at the liquidator’s request, provided that, when it does so, it notifies the
liquidator in writing of its rights (i.e. secured claim) and in due course proves its secured
claim against the estate.

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Question 15

In terms of Section 35 of the Act, Hansen’s trustee has an election whether to enforce or
abandon the contract. If he elects to enforce it, the estate will have to pay the purchase price
agreed upon as a prerequisite for transfer. Roberto may call upon Hansen’s trustee by notice
in writing to elect whether he will enforce or abandon the contract. If the trustee fails to make
his election within six weeks of the receipt of the said notice, Roberto may apply to court on
motion for cancellation of the contract and an order directing the trustee to restore
possession of the property to Roberto. In so far as the occupational rental is concerned,
Roberto may prove a concurrent claim against the estate for all unpaid occupational rental.
In addition, if Roberto suffers any other damages as a result of any breach of the sale
contract, he may establish a concurrent claim against the estate for such damages.

Question 16

16.1. Since parties were married three years ago, Mrs Fancy will not lose her house
provided the antenuptial contract in terms of which it was donated to her was duly
registered, the gift made in good faith by her husband, and the house transferred to her
within 3 months of the marriage. If, however, the parties had only been married eighteen
months ago, the disposition could be set aside if the disposition was not made for value
and Mrs Fancy could not prove that, immediately after the disposition, her husband’s
assets exceeded his liabilities.
16.2. It is required that the protection afforded to donations under an ANC only exists if the
estate of the donour is not sequestrated within two years of the registration of the ANC.

Question 17

17.1. “premises” means that portion of the property described as such on the sketch plan
of the property annexed hereto marked as Annexure “A” together with all buildings and
improvements presently, and in the future, erected on it.
17.2. If the rates on the premises are increased at any time during the subsistence of this
agreement, the tenant will be liable for a share of the increase bearing the ratio to the
increase that the rent bears to the total rent payable in respect of the property.
17.3. The principle that a non-variation clause in a contract is entrenched. That is that it
may not be varied other than by complying with the non-variation clause.
17.4. No alteration, variation or cancellation of any of the terms or conditions of this LEASE
shall be of any force or effect unless it is recorded in writing and signed by the parties
thereto.

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Study Material

1. Drafting of Contracts 2023 (L.E.A.D)

2. Insolvency Law 2023 (L.E.A.D)
3. Professional Legal Ethics 2023 (L.E.A.D)
4. LPC Code of Conduct

5. Attorney’s Practice (Paper 3) － 16 March 2022

6. Brisley v Drotsky (432/2000) [2002] ZASCA 35 (28 March 2002)

7. Khoza MJ “Formal Regulation of Third Party Litigation Funding Agreements? A South
African Perspective” PER / PELJ 2018 (21) - DOI: https://doi.org/10.17159/1727-
3781/2018/v21i0a3426
8. Legal Practitioners Fidelity Fund: https://www.fidfund.co.za/about-lpff/

© NKANYISO NGCOBO