Johannesburg Office: Cape Town Office: 1st Floor, Kiepersol House, Unit 14, The Pavillion, Stonemill Office Park, Esplanade Road, 300 Acacia Road, Darrenwood 2194, Century City, Cape Town 7446, P O Box 4367, Cresta, 2118 Tel: 021 – 551-­‐4160 Tel: 011 – 476-­‐1776 Fax: 021 – 551-­‐4164 Fax: 011 – 476-­‐1813 TERMS OF ENGAGEMENT
1.
PREAMBLE
1.1
This document, together with our mandate letter, contains the terms governing the
contractual relationship between this firm and you.
1.2
WerthSchröder Inc. takes this opportunity to thank you for intending to instruct our firm.
Kindly peruse this document carefully and feel free to discuss any aspect thereof
with the Director handling your matter.
1.3
These Terms of Engagement shall not only contain the terms and conditions of the
engagement between this firm and you, but shall also explain the relationship, its
different aspects and facets. Such shall assist you in understanding the contents of
this document and allow for a better understanding of the client-attorney relationship,
which is a fundamental requirement of the successful engagement of attorneys’
services.
1.4
Finally, in case you intend granting us more than one mandate, your acceptance of
these Terms of Engagement for the purpose of the one mandate shall, mutatis
mutandis, be applicable for all other mandates as if you would have accepted these
Terms of Engagement for each single mandate.
Directors: Associates: Consultants: K.Schröder* (Co-­‐Chair) B.Proc LL.M. Dip Insol Law Rechtsanwalt (Germany), V.Werth (Co-­‐Chair) B.Proc LL.B. , W.Venter B.Proc LL.B. , J.Schweitzer LL.B. LL.M. , A.Yakovchuk LL.B. * Adv. Cert. in Alternative Dispute Resolution F.Lengert LL.B., A.Spellas LL.B. M. Eulitz** B.Com LL.B. (Property Law/Estates) , H. Braun LL.B. LL.M. Rechtsanwalt (Germany) (German and European Law), M.da Costa (Labour Law), Adv. A Wilson BA LL.B , S.S. Juggernath B.Proc , S.A. Pienaar LL.B. (Litigation and Research) ** also Notary and Conveyancer WerthSchröder Inc. | Co. Reg. Nr. 2011/011764/07 | www.werthschroeder.com Page 2
TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
2.
MANDATE AND AUTHORITY
2.1
By accepting these Terms of Engagement contained herein, together with Annexure
“A” and the mandate letter sent to you (all of the aforesaid hereinafter jointly and
severally referred to as “the Agreement”), you hereby confer upon this firm the
necessary authorisation to:2.1.1 act on the client’s behalf in the matter this firm is briefed upon (“the Mandate”);
and
2.1.2 shall include the right to prosecute or defend proceedings in any competent Court
or before any authority, as the case may be: and
2.1.3 brief Counsel as and when deemed necessary; and
2.1.4 to incur other necessary expenses such as (not exhaustive) printing, telephone
costs, travel and correspondent attorney costs; and
2.1.5 take whatever steps reasonably considered to be advantageous in advancing the
client’s matter and bringing same to conclusion.
2.2
You, the client, hereby undertake to render this firm, as and when deemed necessary
by this firm, a Special Power of Attorney setting out all or parts of the aforesaid powers
that are granted.
3.
THE LEGAL TEAM
3.1
The Director responsible for your matter will be the director mentioned in the mandate
letter sent to you with the relevant reference to these Terms.
3.2
He will be assisted by a Candidate Attorney or Associate, or any other professional of
this firm, if the director concerned deems so appropriate in the circumstances, bearing
in mind a rather time saving and cost effective attendance to your matter or simply
ensuring that the matter is dealt with on the right level of knowledge and experience.
3.3
Any complaint or question concerning the fundamentals of the client’s case should be
directed to the relevant director. Of course the relevant professional involved will also
be able to assist you directly and appropriately and will possibly be able to deal with
most of your questions and concerns.
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TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
4.
COMMUNICATION
This firm is happy to communicate with you in your preferred way of communication. We
suggest that we communicate via email in order to shorten the time periods and safeguard
against loss of documentation.
5.
DETAILS OF WERTHSCHRÖDER INC.
5.1
Kindly note that in terms of the Mandate the relevant data for this firm are as follows:5.1.1 Physical Address:
Stonemill Office Park
1st Floor, Kiepersol House
300 Acacia Road
Darrenwood, 2194
5.1.2 Postal Address:
P.O Box 4367
Cresta; 2118
5.1.3 Telephone Number:
(011) 476-1776
5.1.4 Fax Number:
(011) 476-1813
5.1.5 VAT – Number:
422 026 0691
5.1.6 Trust Account Details:
Nedbank Limited
Business Central Gauteng Branch
Branch Code: 128 405
Account Number: 1020 452 323
5.1.7 Email Addresses of any director or any staff are set up on the basis that the first
name only appears as one letter and the name is spelled out (no dot in between).
On this basis it is easy for you to construct any email address within this firm. As
an example, the email address of Heiko Braun is: [email protected] .
In any event, the letterheads of any communication sent to you contain such
addresses.
5.2
Please be advised that in terms of the Financial Intelligence Centre Act of 2001
this firm is obliged to have all necessary data taken from you and maintain them
in its records relating to the Mandate. Please note that we are unable to execute
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TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
your Mandate unless we have satisfied the requirements of the Financial
Intelligence Centre Act.
5.3
Should you have submitted your data already as regards another mandate with this
firm, kindly indicate so hereunder so as to enable us to check the correctness and the
completeness of data already submitted. Should any of your circumstances have
changed since you last submitted data to this firm kindly refer to the relevant director’s
secretariat in order to verify the correctness and completeness of such data, which may
need to be updated from time to time.
5.4
You will be requested to complete the following short questionnaire, perhaps with the
one or other additional question:
5.4.1 DATE:
___________________________________;
5.4.2 NAME & SURNAME:
___________________________________;
5.4.3 SELF-EMPLOYED:
YES:______________ NO:_____________;
5.4.4 IDENTIFICATION NUMBER:
___________________________________;
(Registration Number for Companies, Trusts and CC’s/ID Number for
individuals/Passport
Number
for
Foreigners
/
Handelsregisteroder
Registergerichtsnummer)
5.4.5 BUSINESS ENTITY’S NAME:
___________________________________;
5.4.6 REGISTRATION OF ENTITY:
___________________________________;
(Kindly indicate where registered, if a foreign entity)
5.4.7 POSTAL ADDRESS:
___________________________________;
5.4.8 PHYSICAL ADDRESS:
___________________________________
(Principal Place of Business)
___________________________________
5.4.9 E-MAIL ADDRESS:
___________________________________
5.4.10 EMPLOYER:
___________________________________
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TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
5.4.11 EMPLOYER’S PHYSICAL ADDRESS:
___________________________________
___________________________________;
6.
5.4.12 EMPLOYER’S TELEPHONE NO:
___________________________________;
5.4.13 HOME AND CELL NUMBER:
(If individual Client)
___________________________________;
5.4.14 WORK TELEPHONE NUMBER:
___________________________________;
5.4.15 VAT REGISTRATION NUMBER:
(Kindly indicate if not registered for VAT)
___________________________________;
WRITTEN INFORMATION AND INSTRUCTIONS
6.1
This firm will only be able to render services of a high professional quality to you if you
will at all times use your very best endeavours to procure and supply information,
documents and instructions necessary for us to deal with the issues at hand and as
advised by this firm.
6.2
You, as a client, must be aware that this firm needs access to documentation in your
possession or otherwise under your control, if so required. This firm relies on the
instructions given or documentation supplied by you (whether orally or in writing) and,
within any entity, given and supplied by any person whom we may reasonably believe
to be authorised to do so.
6.3
This firm will make all reasonable efforts to ensure that such information and
documentation is dealt with appropriately. Yet, this firm will not be able to verify the
correctness of documentation and information referred to us and such documentation
and information will be taken by this firm in the absence of any obvious error on its face
value.
6.4
You shall therefore not hold this firm liable (in that no responsibility is assumed) in
respect of the completeness of any information or documentation submitted, its
accuracy, its reliability or any representations made by this firm on the basis of all or
any of the aforesaid.
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TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
7.
ACCOUNTING AND RELATED MATTERS
7.1
This firm will in the normal course account to you on a monthly basis.
7.2
Kindly note that our invoices are payable on presentation. Due to the provisions of the
National Credit Act, 34 of 2005, we are not in a position to defer payment of our
accounts.
7.3
In the event of your account not being paid timeously and in the absence of an
appropriate arrangement with the Director dealing with the mandate, the amount
outstanding will, after its due date, attract interest in terms of the Prescribed Rate of
Interest Act, 55 of 1975. The interest rate which is applicable in terms of this Act is
currently 15.5% per annum. Payments will, if not otherwise instructed, be applied to
interest (if any), disbursements and thereafter to our fees. Should you for whatever
reason foresee difficulties in the payment of your accounts, kindly make the necessary
arrangements in that regard with the Director dealing with your matter.
7.4
You are obliged to pay all fees and disbursements as accounted to you (subject to
what is set out in Clause 7.3 hereunder) timeously, without any deduction or set-off.
7.5
You are requested to kindly peruse and check all and any accounts submitted to
you by this firm and your failure to object, in writing, to any such account shall
constitute a waiver by you of your right to query the account and you will be
deemed to have accepted such account as being complete and correct.
7.6
The aforesaid objection in writing should be made within 6 (six) weeks of the date
of such account and, in certain circumstances explained hereunder (see Clause 8)
(such as litigious matters) you may call upon this Firm to draw an Attorney and Own
Client Bill of Costs. Should such request not be made within 6 weeks from date of the
account/s concerned, you shall be deemed to have waived your right to call upon this
firm to so draw an Attorney and Own Client Bill of Costs.
7.7
This firm reserves the right to request payment of a deposit prior to accepting your
instructions, or, as the case may be, during the pursuance of the mandate, and at any
time during such pursuance, the amount of which shall be within this firms sole
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TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
discretion and shall be used to cover disbursements as well as fees of this firm as and
when they arise after such deposit has been paid.
7.8
By accepting these Terms of Engagement you direct and allow this firm to invest
any monies paid to this firm as a deposit or otherwise and whether in
anticipation of fees, disbursements or otherwise in its discretion (unless
expressly instructed by you otherwise) in a separate, interest bearing bank
account with a recognised South African Bank in terms of Section 78(2A) of the
Attorneys’ Act. You are hereby made aware that, since the interest accrues to
you, the client, (other than with monies invested in this firm’s normal trust
account) the amount so invested is not covered by the Fidelity Fund Insurance of
the Law Society. This firm shall be entitled to charge you 15% (fifteen per cent) of
the interest earned on such account or R500,00 (five hundred Rand), (whichever
is the greater), as an administration fee.
7.9
Our liability for theft, misappropriation or other loss of those funds shall be
limited to the amount of this firm’s insurance cover in this regard, which may
vary from time to time.
7.10 Relating to what has been set out in clause 7.6 above, any document issued by this
firm as to the balance due and owing by you, alternatively, owing by this firm to you as
regards deposits paid or monies received during the course of attending to your matter,
such document issued by this firm shall be deemed to be prima facie correct as to the
amounts stated therein. The entitlement of a person issuing such document does not
need to be proved by this firm.
7.11 Since “payment” used in this Agreement shall at all times mean the payment of monies,
you are advised that this firm will not accept cash payments in excess of R5.000,00
(five thousand Rand) and you will be obliged to pay any monies exceeding the
aforesaid amount to this firm by way of bank transfer.
8.
ATTORNEY AND OWN CLIENT BILL OF COSTS
8.1
Your attention is directed to the fact that you may, specifically in litigious
matters, request this firm to draw an Attorney and Own Client Bill of Costs, i.e. a
Bill of Costs setting out all attendances by this Firm in your matter concerned,
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TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
inclusive of all disbursements on the basis of fees and tariffs agreed herein,
which Bill of Costs may be taxed or otherwise assessed by the relevant
authorities.
8.2
All costs incurred by this Firm in respect of the drawing, taxation and/or assessment of
such Bill of Costs, inclusive, but not limited to the costs of a Costs and Taxation
Consultant (“the Cost Consultant”), should this Firm in its sole and unfettered discretion
decide to use such services, shall be payable by you and any time spent by any
professional of this Firm shall be chargeable on the same basis as the fees and
disbursements in your matter.
8.3
By requesting the drawing of an Attorney and Own Client Bill of Costs you
hereby irrevocably consent to this Firm disclosing all and any papers,
documentation, whether private or public and other knowledge, whether
recorded or not to the Cost Consultant since that might be necessary for the
Cost Consultant to draw a complete and adequate Bill of Costs.
8.4
The costs of the Cost Consultant will be debited to your account as charged and you
hereby agree to accept such charges as set out in the Cost Consultant’s account.
9.
FEES AND DISBURSEMENTS
9.1
The Law Society of the Northern Provinces is the governing body of this firm and has
recommended certain factors to be taken into account when charging a fee for
professional services (other than disbursements) rendered by this firm to the client,
which factors are taken into account when raising a fee. They are, inter alia, as
follows:-
9.1.1 The amount and importance of the work done;
9.1.2 The complexity of the matter or the difficulty or novelty of the work or the
questions raised;
9.1.3 The skill, labour and specialised knowledge and responsibility on the part of the
Member;
9.1.4 The number and importance of the documents prepared or perused without
necessarily having regard to length;
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TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
9.1.5 The place where and circumstances which the services or part thereof were
rendered;
9.1.6 The time expended by the Members;
9.1.7 Where money or property is involved, its amount or value;
9.1.8 The importance of the matter to the clients;
9.1.9 The quality of the work done;
9.1.10 The experience or seniority of the Members;
9.1.11 The number of professional or semi-professional staff reasonably involved in
attending to the Mandate; and
9.1.12 Specific circumstances as may appear from time to time or as may be agreed.
9.2
It is one of the guidelines of this firm to apply the law, as far as reasonably possible, in
such a manner as to allow a client within the shortest possible time to reach his goal as
far as it is reasonably possible. In this context you are advised that as attorneys this
firm (or its colleagues) have not created this system which is usually referred to as “the
legal system”, but simply have to work in it (and with it).
9.3
This section of the Agreement accordingly intends to make you aware that delays
caused by third parties (such as the Master of the High Court, the Secretarial Service
Station of the High Court, the Registrar of any Court or Committee or other public
organisations, such as the Companies and Intellectual Property Commission and
specifically Municipalities) cannot be held against this firm and you shall not be entitled
to raise delays caused by such third parties or based on the nature of the matter and its
handling by necessary or legally prescribed third parties as reason for the reduction of
such fee.
9.4
Please be aware that the ultimate fee charged constitutes a merger of thoughts,
concerns, responsibility and commitments intermarried with the importance and
complexity of the matter handled on your behalf which, on the other hand, makes us
aware that circumstances might exist when for certain matters there is a need to
accommodate you as the client in regard to the charges to be raised and such
concerns (as ultimately mirrored in a reduced fee) will be discounted by this firm.
9.5
This firm is generally entitled (in terms of the relevant rules) and prepared in certain
circumstances to enter into a pre-agreed fee, specifically for determinable matters, the
attendances to which are relatively securely projectable. The aforesaid includes the
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TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
possibility of agreeing to a “base fee” chargeable as or similar to a retainer and an
additional success fee which will be payable in conjunction with or as a consequence of
the desired outcome of the matter for the client.
9.6
As to the Rands and Cents payable we respectfully draw your attention to the
annexed Fees and Disbursements Schedule, annexed hereto marked Annexure
“A”, which Schedule forms an integral part of this Agreement.
The Schedule and its contents are to a large extent self-explanatory, but, for your
information and better understanding, you are encouraged to discuss anything unclear
to you with the director of this Firm, who is responsible for handling your matter.
10.
TERMINATION OF MANDATE OR SUSPENSION OF SERVICES
10.1 You as the client may terminate this firm’s mandate at any time. You shall not be
required to render reasons for such termination. Such termination shall not be with
prejudice to you or any rights you might have against this firm. You are being reminded,
however that upon such termination all fees and disbursements (notwithstanding
anything contained herein or otherwise) become immediately due, owing and payable
in full (whether invoiced as yet or not) and your attention is drawn to the fact that until
such time as this firm’s outstanding accounts with you are fully discharged, this firm
shall be entitled to retain all and any of your files, including original documents,
photos, electronic records, data otherwise secured or stored until such time as
all of your outstanding accounts (whether in the matter terminated or other
matters) have been paid in full.
10.2 This firm shall likewise be entitled at any time to terminate (without giving reasons) the
mandate in a specific matter or all mandates with you or to suspend its services (for
example in a case where you have not paid your account in any one matter) until such
time as such accounts are fully paid and this firm shall be entitled (but not obliged) to
give you reasons for such termination or suspension and as regards outstanding
accounts what has been set out in paragraph 10.1 hereinabove shall mutatis mutandis
apply.
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TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
11.
EXCLUSION AND LIMITATION OF LIABILITY
11.1 For any liability having been excluded elsewhere in these terms of reference, this firm,
any individual professional (director, associate or candidate attorney) any employee,
consultant or agent of this firm or any entity controlled, owned, or otherwise associated
with this firm (hereinafter jointly and severally “the Defendants”) shall only be liable,
whether in contract, delict or otherwise, arising out of or in connection with services
rendered or advice given by the Defendants to you or other beneficiaries of such
services or advices for an amount covered by this firm through its insurance
company for any such damages, currently in an amount of up to R20.000.000,(“the maximum liability”). To clarify, the maximum liability shall be an aggregate
liability for all claims aforementioned whether arising out of contract, delict or
otherwise.
11.2 Any such claim aforementioned shall be brought against this firm only (as
opposed to any individual director, associate, candidate attorney, professional,
employee or agent) within 6 (six) months of the date on which you or the
beneficiaries became aware or ought reasonably to have become aware of such
claim or any circumstances possibly giving rise to such a claim or potential
claim.
11.3 Should such claim not be brought in terms of this Agreement against this firm
within the aforesaid 6 (six) months such claim shall be deemed to have
prescribed as between the parties hereof and as defined hereinabove and you
shall be deemed to have waived your right to or in your claim and you shall have
no further claim against this firm or any of the persons aforementioned.
12.
ARBITRATION
12.1 Any dispute arising out of or in connection with any of the mandates (including the
issue whether any such mandate was validly assigned to us, or not, but excluding, at
our discretion, payment of amounts outstanding to this firm) given by you to this firm
shall be subject to mediation by a Senior Attorney of at least 25 years standing, such
attorney to be appointed by the Law Society of the Northern Provinces upon either
party requesting such appointment; and
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TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
12.2 Should such mediation be unsuccessful or you refuse to attend such mediation, any
such dispute shall be referred to arbitration before one arbitrator, in the English
language (unless the parties agree upon another language) and in terms of the
Expedited Rules of the Arbitration Foundation of South Africa (“AFSA”), unless
otherwise agreed by the parties.
12.3 Should the parties not agree upon the person of the arbitrator within 10 (ten) days of
either party having requested such arbitration, the arbitrator shall be appointed by the
Secretariat of AFSA.
12.4 The findings of the arbitrator shall be final and binding on the parties.
12.5 If the dispute between you and this firm is about the payment of an amount outstanding
to this firm, this firm in its sole and unfettered discretion may approach any competent
Court if it deems so necessary or expedient.
13.
APPLICABLE LAW
These Terms of Engagement are subject to the Law of the Republic of South Africa.
14.
UNDERTAKING OF THIS FIRM
This firm undertakes to:
14.1 Keep confidential any matters relayed to it in the course of or in connection with
attending to any mandate of the client unless such information is either trivial or in any
event in the public domain;
14.2 Whilst this firm tries everything in its power to maintain consistency as to the
professionals handling your matters, this firm will notify you if in the circumstances it is
unavoidable or advisable in the firm’s discretion that another professional takes over
any of your matters.
14.3 The director handling your matter and all the professionals assisting him will
endeavour to be at all times available to you should you have any question or
uncertainty as regards any aspect of the services or the accounting
consequences thereof, but you are required to ask such question as early as
reasonably possible in order to enable this firm to deal appropriately and quickly
with it.
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TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
14.4 You are advised that should you have any questions in respect of or wish to discuss
anything contained in this Agreement so as to receive proper advice on it, you may feel
free to contact the Law Society of the Northern Provinces under telephone number
(012) 338-5800 or another attorney of your confidence to take such advice.
14.5 Once you have accepted this Agreement, you agree and acknowledge that:
14.5.1
You are aware of the contents hereof and the legal consequences and effects
for you;
14.5.2
You acknowledge of having been advised and having had the opportunity of
referring any question you might have in connection with these Terms of
Engagement and its annexure to this firm or to the Law Society of the
Northern Provinces or any other attorney; and
14.5.3
This Agreement is correct and contains all terms of your Mandate/s with this
firm.
15.
GENERAL
15.1 Any change or alteration of/or addition to these Terms of Engagement and Annexure
“A” shall be reduced to writing and signed by both parties to be valid and binding.
15.2 Any failure by this firm to exercise or enforce any of its rights shall by no means be
interpreted to constitute a waiver thereof and this firm reserves its right to exercise any
such right available to it at any later stage.
15.3 Should any part of this Agreement found to be illegal, invalid or enforceable then such
provision shall be deemed to have been severed and shall be ineffective without
affecting any other provisions of this Agreement, all of which shall remain in full force
and effect.
15.4 This firm, as set out above, will act on receipt of any instructions given by any person
within your organisation, reasonably considered to be duly authorised to give
instructions including your employees and agents and this firm shall be entitled to rely
on the correctness of all the information provided in the mandate by you or your
employees and agents.
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TERMS OF ENGAGEMENT W ERTHSCHRÖDER INC.
15.5 Should this firm have contracted with or appointed sub-contractors to your
matter (such as Counsel, Experts, Auditors, Consultants, Travel Agents or other
advisors) in order to assist this firm and your mandate terminated or suspended
for whatever reason by either you or this firm, you shall not be able to brief and
or otherwise instruct such third party service provider aforementioned (whether
directly or indirectly) until such time as all your accounts with this firm have
been paid in full.
15.6 Should this firm have instructed any such third party sub-contractor as allowed
by the rules of this firm’s legal profession, this firm shall at all times act as your
agent for the purpose of incurring such third party expenses and such third party
shall be required by this firm (to which you agree hereto) to address their
accounts directly to you and you shall be directly liable to such third party
service providers.
16.
EXECUTION
16.1 We once more take this opportunity to thank you for entrusting your matter to
WerthSchröder Inc. and are at all times available to you for questions and comments.
If you are not in agreement with any of the above terms, kindly contact the director
handling your matter. If you do agree, please indicate your agreement with the terms
and conditions of the Mandate as set out above by initialling each page of these Terms
of Engagement (including the Schedule, Annexure “A”) and sign hereunder. Thereupon
kindly fax this letter or email it back to our offices.
If you have already signed our mandate letter, sent to you, on which reference is made to
these Terms of Engagement, it shall not be necessary to sign this letter again.
___________________________________________
READ, UNDERSTOOD AND AGREED (DULY AUTHORISED HERETO)