Finding the best lawyer (attorney or advocate) for your legal matter – Top advice for anyone with a legal problem in South Africa

It is best to stay out of trouble. However, sometimes trouble finds you. And if that happens, you must obtain the best lawyer suited for you (attorney or advocate) to assist you with your legal problems. If you do not need an attorney or advocate to assist you with your matter, it may be best to first schedule a consultation with one, at least for peace of mind. Read on further to ensure you obtain the best legal practitioner (advocate or attorney) that suits your budget and case.

Is the top or best attorney or advocate necessary in every legal matter?

The legal problems people have varied from case to case. Some are simple. For example, a traffic fine which you wish to dispute. Others can have severe consequences on your life. For example, going through a divorce or being arrested and charged for a crime you did not (or did) commit. Whatever the legal issues, obtaining the best advice is always the best. It does not mean you need to source the top lawyers in South Africa for every legal problem. That would not make sense if the issues involved were relatively minor and the consequences were not dire. For example, if you are disputing a traffic fine of R 500 – 00, it does not make sense to consult with the top criminal lawyer in Cape Town, who may charge you R 5000 – 00 for the consultation. However, if you are facing jail time, consult with an experienced attorney or advocate who charges more than others based on their experience and is worth their fee.

What is the first step to take when faced with a legal problem?

When faced with a minor legal problem, it may be a good idea to research the topic first. For example, someone owes you money and does not want to pay you. Doing some basic research will tell you that you can send that person a letter of demand, and if that does not work, approach the small claims court. If you do not want to go through all that effort, approaching an attorney or advocate may be less stressful. However, there would be legal fees involved. And in some cases, the legal costs involved would be more than the amount claimed. If, on the other hand, there are serious legal consequences, for example, losing your home, jail time, custody of minor children and so on, we advise you best to obtain legal advice and assistance from the start. Usually, serious legal matters are time sensitive, and a delay can cause more significant issues. For example, if someone is suing you for money through the court, and you receive the summons, you have two weeks to file a notice informing the court you are defending the matter. If you do not do so within two weeks, the other party, the plaintiff, may obtain a default judgment against you.

Do senior advocates and attorneys charge more than junior lawyers?

The more experience an attorney or advocate has, the better they are for your case. That experience earns the advocate or attorney the right to charge more than his competitor with less experience and who may have to learn how to handle your matter. An experienced lawyer may charge more per hour but spend less time dealing with your matter. A less experienced lawyer may charge less per hour but spend many more hours dealing with your matter with less experience and skill than the senior lawyer would have. At the same time, it would be overkill to use a senior attorney or advocate if your case does not require their skills and expertise. In many cases, a junior lawyer would have the necessary skills and expertise to assist you as a senior advocate would. It would all depend on the nature and complexity of your case and whether your budget allows it.

Posted on 11 February 2025 by Telelaw

Finding the best lawyer (attorney or advocate) for your legal matter – Top advice for anyone with a legal problem in South Africa

Is the top or best attorney or advocate necessary in every legal matter?

What is the first step to take when faced with a legal problem?

If, on the other hand, there are serious legal consequences, for example, losing your home, jail time, custody of minor children and so on, we advise you best to obtain legal advice and assistance from the start. Usually, serious legal matters are time sensitive, and a delay can cause more significant issues. For example, if someone is suing you for money through the court, and you receive the summons, you have two weeks to file a notice informing the court you are defending the matter. If you do not do so within two weeks, the other party, the plaintiff, may obtain a default judgment against you.

Do senior advocates and attorneys charge more than junior lawyers?

At the same time, it would be overkill to use a senior attorney or advocate if your case does not require their skills and expertise. In many cases, a junior lawyer would have the necessary skills and expertise to assist you as a senior advocate would. It would all depend on the nature and complexity of your case and whether your budget allows it.

The role of a facilitator in family matters regarding children – Should he or she make legally binding decisions or directives?
When parties divorce or they approached a court of law to resolve a dispute regarding a minor child, it was customary for them to appoint a facilitator should they settle the matter. Specific clauses would be inserted into consent papers and settlement agreements which the parties sign and is made an order of Court. The clauses would basically state that the parties appoint a facilitator to resolve disputes regarding the minor child and that the facilitator has certain authority and powers. Such disputes could range from one-party wanting more contact with the child or disputes regarding aspects of education, for example, which school the child goes to, or aspects regarding extramural activities. At the end of this article you would find an example of a facilitator clause. A facilitator should be a suitably qualified person. He or she does not necessarily have to be a clinical psychologist, social worker or a lawyer. He or she should be somebody that knows family law, understands the family dynamics and is skilled in resolving issues between parties. It is therefore very important that the parties appoint a facilitator that they would feel comfortable with and one that will be compatible with their family situation.

Facilitator’s Power

It would often happen that the parties cannot resolve a dispute amicably through a facilitator. In such a case, a decision will have to be made. The facilitator would then have to issue a directive. In other words, make a firm and binding decision for the parties. A further clause would then usually be inserted into the consent paper stating that the facilitator’s directive would be binding upon the parties as if it was an order of the court. The directive of the facilitator would then remain binding upon the parties unless a court of competent jurisdiction orders otherwise. It is this latter aspect that this article deals with.

Introduction of the Facilitation Clause

Based on our history with family law matters, this specific facilitation clause came about in or about 2008, a short while after the Children’s Act came into operation. It was then customary for parties to insert this facilitation clause as a matter of course. In our experience, the family advocate’s office would insist that such a clause be inserted and furthermore the courts would have no issue therewith.

Limiting the power of the Facilitator

What has now happened since 2018, in the Western Cape at least, was that certain judges started having an issue with the fact that a facilitator had the authority of making binding decisions on the parties which had the effect of an order of Court. In other words, due to the clause stating, that the facilitator’s directive would be binding upon the parties as if it was an order of Court; certain judges began to question such authority.

The court’s reasoning

Basically, the court’s reasoning is how could judicial authority be delegated to a third party? Taking it one step back when, the courts in the past made an order incorporating the settlement agreement, which had a clause therein authorising the facilitator to make binding directives; it basically gave judicial authority to the facilitator. In other words, the facilitator had the authority of a Judge. What has now become a practice, should a facilitation clause be inserted into a settlement agreement, the office of the Family Advocate of Cape Town, at least, would endorse the Consent Paper or Settlement, Agreement but also direct the Court to determine whether or not the parties understand the role of the facilitator and that they would be responsible for the cost associated therewith.

The Family Advocates Reasoning

There could be many reasons why the Family Advocate is directing the parties to advise the court whether or not they understand the role of the facilitator. One such reason could be that they do not want parties to come to them to facilitate disputes and issues that might arise. And of course, the other reason could be due to the court judgments that recently stated that a court can’t delegate its authority to a facilitator. In our view, asking a party in court, whether or not they understand the role of a facilitator, and that they will be responsible for the cost thereof is unnecessary. The party would say that they understand the role and that they are responsible for the cost thereof. What value that has in the case of a dispute arising in the future is very little.

The future role of the facilitator

Going forward, we still recommend that a facilitation clause be inserted in settlement agreements and consent papers. We further agree that a Court cannot delegate its judicial authority to a third party, unless in exceptional circumstances. However, at the same time, we feel that the facilitator could play a crucial role in resolving disputes between the parties. Having said that, the parties need to discuss whether or not they would require a facilitator, and in the event they do, they should specifically outline the role of their intended facilitator in the consent paper or settlement agreement.

An example of a neutral facilitation clause

FACILITATOR
- A facilitator shall be appointed by the parties jointly to facilitate and assist in resolving disputes between the parties relating to the minor children;
- These disputes shall include contact disputes should one party feel that contact should be increased or decreased, or varied for either party;
- In the event of the facilitator being unable to continue as facilitator, then he/she shall appoint a facilitator in his/her place, alternatively, or should the parties be unable to agree on the appointment of a facilitator or replacement facilitator, such facilitator or replacement facilitator as the case may be shall be appointed by the chairperson for the time being of FAMAC (Western Cape);
- The facilitator shall be entitled in his/her sole discretion to appoint such other person as may be necessary in order to make a decision in respect of the issue in dispute, including the right to co-opt a facilitator or the assistance of an appropriate expert if he/she deems it appropriate or necessary; and
- The cost of sessions with the facilitator and the services of the expert shall be shared equally between the parties unless otherwise directed by the facilitator. Each Party shall, however, be liable for the facilitator’s costs incurred attendant upon such party’s written and telephonic communications with the facilitator.

Posted on 11 February 2025 by Telelaw