Terms of Engagement
1. Introduction
1.1 LS Mashifane Incorporated (hereinafter “LS Mashifane Inc”) renders all services on the terms and conditions as contained herein.
1.2 LS Mashifane Inc.’s policy requires that these terms and conditions be applicable to all instructions provided to LS Mashifane Inc by clients unless otherwise agreed in writing. These terms are additional to the general contractual terms governing the attorney-and-client relationship existing between the client and LS Mashifane Inc. In the event of a conflict, these terms will apply.
1.3 Should any of the terms recorded herein be unclear or unacceptable, the client must notify the attorney dealing with his matter immediately. In the absence of any such notification, LS Mashifane Inc. will assume that the terms and conditions are acceptable to him and proceed on the basis set out herein.
1.4 Unless otherwise agreed in writing, these terms will apply to all mandates accepted by LS Mashifane Inc. to act on the client’s behalf, irrespective of whether these terms have been communicated to him with the acceptance of each such mandate.
1.5 In certain instances, LS Mashifane Inc will provide the client with a form in compliance with the Protection of Personal Information (“POPI”) Act, the Financial Intelligence Centre Act (“FICA”) (“FATCA”) which form/s must be completed in full, signed by the client and returned before LS Mashifane Inc may commence any representation.
2. Fees and Costs
2.1 With the exception of fixed fee work, the fees debited by LS Mashifane Inc. are based on the prevailing hourly rates of the people dealing with the client’s matter. The hourly rates used to compute fees will be those in effect at the time that the services are rendered by the respective attorneys who work on the matter and are subject to the guidelines laid down from time to time by the Legal Practice Council: Gauteng. The client agrees that, notwithstanding any tariffs prescribed by legislation, he will be liable for payment of LS Mashifane Inc.’s fees and costs as agreed and available on request.
2.2 Time spent on the client’s matters will include all consultations and any travelling, if required, taking instructions, legal research, drafting preliminary comments, opinions, correspondence, agreements and other documentation, reviewing and commenting on documentation and legislation, drafting instructions to counsel, attending Court, serving and filing documentation and making and receiving telephone calls.
2.3 LS Mashifane Inc. reserves the right to charge a premium rate where the levels of skill, responsibility and/or urgency required to complete the engagement justify a premium in the attorney’s reasonable discretion. Also, should LS Mashifane Inc. have to work outside normal business hours, it reserves the right to increase the hourly rates applicable. These rates will, of course, not apply if LS Mashifane Inc. is compelled to work outside of normal business hours as a result of circumstances particular to itself.
2.4 On request LS Mashifane Inc will prepare a schedule setting out the major attendances which will be undertaken and estimate the costs likely to be incurred in respect of those attendances. The schedule will be prepared for information and comparative purposes only, and whilst LS Mashifane Inc. will endeavour to conserve costs as far as possible, the schedule is only a guide for the client’s assistance.
2.5 Cost estimates and quotes are for the execution of the mandate in the normal course. If the client’s instructions require LS Mashifane Inc to perform further work not specified or anticipated in the engagement or should LS Mashifane Inc. incur additional costs due to inefficiencies on the part of the client or any related entity, such work will be recovered at its prevailing rates.
2.6 LS Mashifane Inc may be able to agree with the client on an alternative charging arrangement, such as a fixed fee. Fixed fees are agreed upfront for specific projects provided that the project’s scope is capable of being assessed in time.
2.7 The hourly rates of our attorneys are adjusted from time to time and the adjusted rates will apply to any ongoing instructions as from such date, typically at the start of each calendar year.
2.8 Should the client request a cost estimate at the commencement of a particular matter, and such an estimate is given, such cost estimate should be regarded as an estimate only and does not constitute a binding quote.LS Mashifane Inc reserves the right to debit full fees and disbursements incurred in a particular matter irrespective of any lesser cost estimate given to the client in relation to the matter. Should he wish to limit his exposure to costs in any particular matter, he may instruct the attorney in charge in writing to notify him as soon as the fees and disbursements reach the limit imposed. At this point, on being so notified, he must issue your attorney with further instructions.
2.9 LS Mashifane Inc will add value-added tax (VAT) to all fees at the rate that applies when the work is carried out. The client is liable to pay any amount due in respect of VAT that LS Mashifane Inc may be required to pay to SARS, even if it did not recover the VAT at the time of invoicing or at the current rate. In the event that LS Mashifane Inc contests any adverse ruling and is required to pay unrecovered VAT to SARS in the interim, the client agrees to make such payments to LS Mashifane Inc on demand and LS Mashifane Inc will reimburse him in the event that the ruling is overturned, and LS Mashifane Inc receives repayment from SARS.
2.10 LS Mashifane Inc’s accounts contain a brief description of our services, and the amount of time involved. The client is welcome to request a detailed description of the work done. A certificate by a director will serve as face-value proof of any outstanding amounts.
2.11 Should the client require accounts to be submitted for taxation to the Legal Practice Council, LS Mashifane Inc reserves the right to recover from him any higher amount at which the relevant account may be taxed.
2.12 The client grants LS Mashifane Inc a mandate to debit funds held in trust, other than funds designated for investment or as reserved, for any one matter as and when fees and disbursements are incurred on any other of the client’s matters.
3. Disbursement
3.1 The client agrees to pay all costs which LS Mashifane Inc incurs in its representation of him, including costs for items such as sheriff’s fees, correspondent attorney’s fees, counsel’s fees, expert’s fees, tracing agent’s fees, and fees to regulatory authorities.
3.2 The client is furthermore liable for all costs incurred by LS Mashifane Inc in respect of telephone calls, faxes, copying of documents and travel expenses. Substantial costs, such as air travel expenses, are subject to the client’s prior approval and LS Mashifane Inc shall request that he make payment in respect thereof in advance.
3.3 Costs charged are available on request and are subject to the guidelines laid down from time to time by the Legal Practice Council. VAT is also payable on costs where indicated.
4. Accounts
4.1 LS Mashifane Inc will bill the client for its fees and costs as and when work is performed and on a continuous basis. All invoices are payable within 30 (thirty) days of date thereof. Settlement of all invoices is to be made immediately upon presentation in immediately available funds, free of exchange and bank charges and without set-off, withholding or deduction or setoff of any nature.
4.2 LS Mashifane Inc reserves the right to determine the appropriate exchange rate for converting its fees and disbursements to the client’s currency and for converting foreign currency-denominated disbursements incurred on the client’s behalf to South African Rand to manage its exposure to exchange rate losses. Foreign currency fluctuations are beyond its control and the client agrees to bear any foreign exchange losses LS Mashifane Inc may suffer notwithstanding the conversion rate as a result of a foreign-denominated payment it needs to make on the client’s behalf. The client also agrees to pay any bank charges associated with LS Mashifane Inc’s settlement of foreign disbursements on the client’s behalf.
4.3 In instances where the client may have agreed with a contracting party that such party will be responsible for payment of LS Mashifane Inc’s fees and disbursements pertaining to a particular matter or have obtained a favourable order as to costs, the client, as the instructing client, will nevertheless remain liable for LS Mashifane Inc’s fees and disbursements. Any accommodation on LS Mashifane Inc’s part to invoice such other contracting party for the fees and disbursements will not detract from the client’s obligations to settle the relevant account with LS Mashifane Inc in the event of non-payment by the other party.
5. Deposit & Security
5.1 LS Mashifane Inc requires a deposit from all new clients prior to commencing work and in this regard the amount for the specific matter will be indicated by the attorney and includes provision for the time already spent on the matter at the time of the indication. The aforesaid amount must be paid into the following banking account before the attorney will proceed with any steps.
5.2 The client agrees that LS Mashifane Inc may hold as security for its fees and costs hereunder all papers, files, documents and records or other personal property supplied by him to it or generated by it in representing him, and all judgments, settlements and amounts due or to become due concerning matters in which it has acted as his representative, whether or not it continues representing him. The client furthermore agrees that LS Mashifane Inc may draw against any such monies held by it for fees and costs which have accrued in terms hereof.
5.3 LS Mashifane Inc will bill the client for its fees and costs as and when work is performed and on a continuous basis. All invoices are payable within 30 (thirty) days of date thereof. Settlement of all invoices is to be made immediately upon presentation in immediately available funds, free of exchange and bank charges and without set-off, withholding or deduction or setoff of any nature.
5.4 The client agrees that LS Mashifane Inc may hold as security for its fees and costs hereunder all papers, files, documents and records or other personal property supplied by him to it or generated by it in representing him, and all judgments, settlements and amounts due or to become due concerning matters in which it has acted as his representative, whether or not it continues representing him. The client furthermore agrees that LS Mashifane Inc may draw against any such monies held by it for fees and costs which have accrued in terms hereof.
6. Instructions
6.1 LS Mashifane Inc will be entitled to act upon instructions submitted to it by the client and his representatives verbally and by telephone, facsimile, letter, e-mail or other electronic communication.
6.2 Unless otherwise agreed in writing, the client accepts the risks of and authorises the use of electronic communications between the parties.
6.3 No reliance will be placed by the client upon any draft or interim advice, agreements or reports, whether written or oral, issued by LS Mashifane Inc or any of its sub-contractors.
7. Confidentiality
7.1 LS Mashifane Inc may, during, after or prior to the performance of its services, acquire information which is deemed to be of a sensitive or confidential nature, regarding the client’s business or affairs in the course of delivering the services.
7.2 LS Mashifane Inc will comply with the confidentiality requirements of the Law Society and of professional ethics rules of confidentiality generally and it will reasonably maintain the confidentiality of any such information. This duty will not apply:
- if the information was already in its possession prior to the engagement;
- where the confidential information enters the public domain (other than as a result of LS Mashifane Inc’s fault) through publication by a party other than LS Mashifane Inc;
- where LS Mashifane Inc may be required to disclose it to its insurers and legal advisers in confidence for a legitimate business reason;
- where LS Mashifane Inc is under legal obligation to do so; and/or
- by signing this document, the client expressly authorises LS Mashifane Inc to disclose such confidential information as may be required by any governmental or regulatory authority, or the disclosure of which is required in law.
7.3 LS Mashifane Inc may, during the course of its services, release sensitive or confidential information or documentation to the client and any and all such information and/or documentation will be solely for the client’s benefit and information.
7.4 Any product of the mandate released to the client in any form or medium will be supplied by LS Mashifane Inc on the basis that it is for the client’s benefit only and that it may not be copied, referenced, disclosed to or relied upon by any third party, without LS Mashifane Inc’s prior written consent.
7.5 Neither party to this agreement may disclose any information relating to the terms of any agreement concluded regarding the mandate and the amounts payable for the services without the prior written consent of the other.
7.6 The copyright in all documents compiled by LS Mashifane Inc remains reserved to it. LS Mashifane Inc licences the client to use such documents only for the purpose it was supplied.
7.7 The client agrees to indemnify and hold harmless LS Mashifane Inc and its attorneys with regard to all and any damages it may suffer due to the fact that the client has divulged any information exchanged between the client and LS Mashifane Inc or its attorneys to a third party who has suffered damages as a result thereof.
8. PERMISSION TO USE PERSONAL INFORMATION IN TERMS OF THE POPI ACT
8.1 By agreeing to the terms and conditions of this document, the client voluntarily authorises LS Mashifane Inc to process his personal information (including his name, banking details, physical address, telephone numbers & any other information he has provided to LS Mashifane Inc). Processing shall include the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation, use, dissemination by means of transmission, distribution or making available in any other form; or merging, linking, as well as blocking, degradation, erasure or destruction of information. This consent is effective immediately & will endure until the relationship between the client & LS Mashifane Inc has been terminated.
8.2 The client takes note that by supplying them with the above-mentioned information, he consents to them using the information for legal purposes pertaining to his matter and any matter that flows out of this matter.
8.3 In terms of section 11 of the Protection of Personal Information Act consent is not required for the processing of information in the following circumstances:
- If the processing is required to conclude or perform a contract or in terms of a contract;
- If LS Mashifane Inc. is required to do so by law;
- If the processing protects a legitimate interest of the consumer;
- the processing is necessary for the performance of a public law duty; or;
- If the processing is done in pursuit of the legitimate interests of LS Mashifane Inc or its Principal.
9. CLIENT’S RIGHTS IN TERMS OF POPI ACT
In terms of the POPI Act, you have the following rights:
9.1 Right to know what information is being kept, how that information is being used & when LS Mashifane Inc will disclose that information – A copy of LS Mashifane Inc’s Privacy Policy and PAIA Manual is available and can be obtained from our offices, wherein all the above information is made available.
9.2 Right to correct details – LS Mashifane Inc endeavours to keep the client’s information up to date and should any of his details change he must notify them forthwith of same so that their records are as accurate as possible.
9.3 Right to revoke consent – The client may revoke his consent given to LS Mashifane Inc in terms of this document at any time. This revocation must be in writing and addressed to the Information Officer of LS Mashifane Inc. Revoked consent is not retroactive & will not affect use of the information already made.
10. FICA REQUIREMENTS
10.1 In terms of Section 21 of the Financial Intelligence Centre Act no attorney is allowed to form a business relationship or attend to a single transaction on behalf of a client until all requirements set out in the Act have been complied with.
10.2 We are required by the Financial Intelligence Centre Act (know-your-client legislation) to identify and verify the identity of our clients. In order to do so, we will require certain information and documents from you. Please supply us with the requested documents and information as soon as possible so that we may commence work on your instructions.
10.3 As part of these obligations, LS MASHIFANE INC is specifically required by FICA to report any suspicious activities or transactions that may indicate money laundering, fraud, or any other illegal activity. Should LS MASHIFANE INC suspect any such activities, it is our duty to report them to the relevant authorities, including the FIC, in accordance with the law. By signing this document, you acknowledge and consent to the fact that if we suspect or have reasonable grounds to suspect that any activity or transaction conducted by or on behalf of you involves illicit activities, we will fulfil our legal obligation to report this to the FIC.
10.4 Furthermore, LS MASHIFANE INC reserves the right to verify all information provided by you as part of our ongoing compliance with regulatory obligations. This includes, but is not limited to, running your information through various databases, including sanctions lists, politically exposed persons (PEP) lists, and other relevant checks to ensure that all necessary due diligence procedures are followed. In addition to the initial verification, we will carry out periodic, ongoing verification of your information at regular intervals, which may occur every 12, 24, 36 months, or such other intervals as may be required by law or deemed necessary by LS MASHIFANE INC to ensure continued compliance with FICA and other regulatory requirements.
11. WARRANTIES
11.1 The Client agrees and accepts that LS Mashifane Inc has not given, nor will it give, any warranties or guarantees relating to the services or the satisfactory completion thereof.
11.2 The client agrees and accepts that LS Mashifane Inc has not given, nor will it give, any warranties or guarantees relating to the economic, financial or other results the client may experience as a result of the provision of the services.
12. Records
12.1 All documentation relating to matters handled by LS Mashifane Inc will be filed in its archives for a period of five years. At the expiry of this five-year period, the contents of the relevant file will be destroyed.
12.2 Should LS Mashifane Inc be requested to retrieve documentation relating to a finalised matter, it reserves the right to charge a reasonable fee and to recover expenses for attendances in this regard.
13. CONFLICT OF INTEREST
13.1 Attorneys are prohibited from representing conflicting interests, except with the informed consent of all parties concerned. As LS Mashifane Inc represents many clients, situations can arise, when least expected, in which it finds itself in a conflict of interest.
13.2 As a result of 13.1, LS Mashifane Inc may be restricted from representing the client in certain matters, where it is unable to obtain the informed consent of the other party or parties to such matters. Therefore, the client agrees that the nature of the representation necessarily includes the possibility that, in the case of conflicts of interest, LS Mashifane Inc may be compelled to decline further representation of the client. LS Mashifane Inc will, however, attempt in every case to resolve such conflicts of interest.
13.3 Not only does LS Mashifane Inc require the informed consent of the other party when a conflict arises, but it will also require the client’s informed written consent. Therefore, each time that a conflict or potential conflict arises, it will seek the client’s consent and will assume that, where it has orally disclosed a conflict to the client and he has orally requested it to proceed to represent him, he will subsequently execute a formal written consent.
14. Disclosure
14.1 The client undertakes to provide LS Mashifane Inc with all such information and supporting documentation as it may be obliged to provide in terms of legislation (i.e., the Financial Intelligence Centre Act, No 38 of 2001.)
14.2 The client consents to LS Mashifane Inc disclosing any such information provided by him in terms of clause 14.1 as may be required in terms of legislation.
14.3 Furthermore, in terms of the provisions of the said act LS Mashifane Inc is specifically required by law to report certain suspicious or unusual transactions of which it becomes aware to the Financial Intelligence Centre. This statutory requirement, which applies to both prospective clients and existing clients, overrides the professional ethics rules of confidentiality.
15. INDEMNITY, LIMITATION OF LIABILITY AND CESSION OF CLAIMS
15.1 The Client hereby agrees to indemnify and hold harmless LS Mashifane Inc and its attorneys against any loss, damage, expense, liability or any other negative inference incurred by LS Mashifane Inc, the client or any other third party as a result of:
- any breach by the Client of the terms and conditions hereof;
- any claim made by a third party connected with any such breach; and/or
- the client’s negligence, wilful misconduct or non-disclosure
15.2 It is a provision of these terms and conditions that LS Mashifane Inc’s liability towards the client will in all aspects be limited to the amount of R2 000 000.00 (Two Million Rand). It will under no circumstances exceed the amount of R2 000 000.00 (Two Million Rand) irrespective of the amount of claims instituted against LS Mashifane Inc by the client and irrespective of the amount of any punitive damages, consequential or other loss and/or other damages suffered by the client. LS Mashifane Inc also reserves the right to require the client to provide further limitation of liability undertakings, which undertakings will be provided by the client before the attorneys will be required to proceed with service delivery.
15.3 LS Mashifane Inc will have the right from time to time, as and when it deems reasonably necessary, to engage third party agents or sub-contractors to perform work on its engagements, such as advocates and tax consultants. Should any claims arise as a result to the actions or omissions of such third-party agents, LS Mashifane Inc will not be liable for such claims but undertakes to cede to the client any right it may have to claim from such third-party agents, provided that he indemnifies it from any adverse consequences of such cession, including legal costs.
15.4 In determining the liability of LS Mashifane Inc for purposes of any action in contract in terms of this paragraph, a court or arbitrator will limit such liability by having regard to the contribution to the loss or damage in question of all the parties concerned, based upon relative degrees of fault; it being agreed that the provisions of Section 1 of the Apportionment of Damages Act, 1956, will apply to all claims between the client and LS Mashifane Inc, and that reference in this document to the terms “dishonest” and “negligence” on the one hand and “damages” or “losses” on the other will fall within the meanings of “fault” and “damage” respectively as contained in Section 1 of the said act.
15.5 Notwithstanding any liability for the acts and omissions of LS Mashifane Inc’s directors and employees, the client accepts and agrees that no legal proceedings arising from or in connection with any mandate (or any variation or addition thereto) will be commenced against any individual director, employee, agent or shareholder of LS Mashifane Inc or of any entity controlled by or owned by or associated with the attorneys personally in respect of loss or damage suffered by the client or any other third party arising out of or in connection with the services.
15.6 The restriction in 15.5 will not operate to limit or exclude the liability of LS Mashifane Inc, as a legal entity, for the acts or omissions of its directors, employees or agents. Any claim arising from LS Mashifane Inc’s services is to be made within 1 (ONE) year of the date on which the client or other third party became aware, or reasonably should have become aware, of circumstances giving rise to a claim or potential claim against LS Mashifane Inc.
16. Communications
16.1 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.
16.2 Email communication – We will communicate with you and your advisers about the Matter (including Confidential Information) by email, unless you instruct us otherwise in writing.
16.3 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.
16.4 Cloud-based technology and Artificial Intelligence (AI).- Email and various other software and platforms (such as Microsoft 365 Co-Pilot, e-signature, virtual data room, contract management and e-discovery software, data analytics, due diligence document review tools, large language models and/or similar AI tools) use secure AI machine learning, and cloud-based technology. This technology is widely used in the legal industry and is provided by specialist third-party service providers. You may also instruct us to use such or similar technology in the delivery of your matters. This technology involves information being hosted on an external platform (such as Amazon Web Services, Microsoft Azure Web Services or Mimecast), which may be located in South Africa or internationally, and utilises a number of security processes and controls designed to ensure that confidential information is kept secure and protected from unauthorised access. Provided we comply with all applicable laws, you agree to our use of AI and cloud-based technology.
16.5 Liability for viruses or cyber-attacks – As far as the law allows, we are not liable if our cyber-security filtering software or other virus or electronic protection does not function or it malfunctions resulting in your systems being infected by any email or other form of delivery of information (such as USB flash drives, cloud storage or via the internet) from us. You are expected to take appropriate measures to protect your own systems from viruses or cyberattacks.
16.6 Monitoring. – As far as the law allows, you agree that we may monitor electronic communications to ensure compliance with our legal and regulatory obligations and internal policies.
17. TERMINATION OF MANDATE
17.1 Without prejudice to any other rights that LS Mashifane Inc may have legally, it reserves the right to suspend or terminate the performance of its services or any part thereof to the client immediately, in the event of the client’s non-payment, his non-compliance with the applicable provisions of FICA or other statutory requirement or any other valid cause.
17.2 Unless otherwise agreed, the client is at liberty to terminate this agreement in writing at any time should he so wish.
17.3 Upon termination the client will be entitled to the immediate return of all funds held in LS Mashifane Inc’s trust account on the client’s behalf, less accrued fees and disbursements as of the date of the termination.
18. General
18.1 The relationship between the parties is governed by South African Law and accordingly any dispute relating thereto, including but not limited to any dispute about any matter arising out of it, its avoidance, interpretation, rectification, breach or termination will be determined according to the laws of the Republic of South Africa and is subject to the jurisdiction of the High Court: Johannesburg, Gauteng Division.
18.2 The client nominates the addresses fully set out in any information form as his chosen address for the delivery of notices. It is the client’s responsibility to notify LS Mashifane Inc of changes in this regard.
18.3 The client further accepts that all invoices will be sent to the e-mail address provided in the information form unless the client has instructed LS Mashifane Inc otherwise.
18.4 The person(s) instructing LS Mashifane Inc warrants that they are duly authorised to do so on behalf of the client.
18.5 This agreement constitutes the entire agreement between the parties in respect of LS Mashifane Inc’s representation of the client and no waiver, amendments, modifications or additions hereto will be of any force or effect whatsoever unless reduced to writing and signed by both parties or by their duly authorised signatories.
18.6 No failure or delay on the part of either party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise thereof or the exercise of any other right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
