For an agreement to be legally enforceable, it must move beyond a simple verbal understanding and exist as a “glass box” of transparency. The primary solution for a claimant is a written contract that strictly adheres to the statutory requirements of the CFA. In the South African legal landscape, there is no such thing as a “common law” contingency fee agreement; any contract that deviates from the Act is considered a systemic failure and is null and void from its inception.
The most critical hardware of the RAF contingency fee agreement is the limitation on the success fee. The law provides a dual-cap system to protect the claimant’s capital award from excessive depletion. An attorney may only charge the lesser of the following two amounts:
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Double the Normal Fee: The success fee (the “uplift”) cannot exceed 100% of the attorney’s normal hourly rate for the work actually performed.
The 25% Cap: The total fee, including the success fee, cannot exceed 25% of the capital amount awarded to the client in damages.A landmark judicial reset occurred with the November 2025 Full Bench judgment in De Bod v Road Accident Fund. This ruling decisively confirmed that the 25% cap is inclusive of Value-Added Tax (VAT). Historically, some practitioners attempted to charge 25% plus an additional 15% for VAT, effectively taking 28.75% of the client’s award. The courts have now categorized this as a form of over-reaching. By including VAT within the 25% limit, the judiciary has created a protective shield for the claimant, ensuring that at least 75% of the awarded damages (excluding costs) reaches the person who suffered the injury.Disbursements and the “No Win, No Fee” Promise
While the attorney’s fees are contingent on success, the “hardware” of a claim also involves significant disbursements. These are out-of-pocket expenses for expert witnesses, such as orthopedic surgeons, industrial psychologists, and actuaries, which are necessary to prove the quantum of damages. In a high-fidelity contingency agreement, the attorney typically carries these costs upfront.
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