- Elias disputes Mashabela Attorneys’ 25 percent fee on a R1,436,325 Road Accident Fund settlement, saying the firm was entitled to lower legal fees.
- The dispute also concerns an additional R136,584.87 received from the RAF and a claim for R359,082 in general damages.
- The parties disagree about the alleged oral contingency fee agreement and whether the fees charged were justified.
A former client is disputing Mashabela Attorneys’ right to charge a 25 percent fee on a R1.4 million Road Accident Fund settlement, alleging that the firm overcharged him and did not account for an additional payment received for his claim.
Madubanya Mabotja Elias says Mashabela was entitled to legal fees of only R55,000, calculated on a High Court and party-and-party scale. Despite this, the firm deducted 25 percent from the capital amount of his settlement. He also claims the firm failed to account for a further R136,584.87 paid by the RAF in June 2013.
Elias is seeking R359,082 in general damages, saying the firm’s conduct was wrongful and unlawful. Mashabela denies liability, and the allegations will be determined at trial.
What was agreed on legal fees
Mashabela represented Elias in a third-party claim against the RAF, which was settled for R1,436,325. The firm deducted 25 percent from the capital amount and paid R1,077,243 into Elias’s bank account on 3 May 2013. It received another R136,584.87 from the RAF on 24 June 2013.
In his declaration, Elias says the parties made an oral contingency fee agreement in 2009. Under this alleged agreement, Mashabela would be entitled to a fee of 25 percent of the capital amount if it finalised his claim successfully.
The dispute is about the terms of that agreement, whether it met the requirements of the Contingency Fees Act 66 of 1997, and whether the firm was entitled to charge the disputed amount. Elias maintains that the firm overcharged him and should have charged lower legal fees.
Mashabela denies the claim and disputes the damages sought. The firm says it no longer has Elias’s file or records because these were destroyed after five years. It also challenges how Elias calculated the R359,082 in general damages.
Disputed claim and conflicting amounts
Elias brought proceedings against Mashabela in the regional court in Polokwane on 2 March 2021. His summons claimed R303,483.88, while his later declaration sought R359,082 in general damages. The difference between the amounts became an issue on appeal.
The regional court ordered Mashabela to pay Elias R359,082, with interest and costs, without either party calling witnesses. The magistrate treated some allegations in Elias’s declaration as admitted because of how Mashabela pleaded to them.
Mashabela challenged this on appeal, arguing that major factual disputes were unresolved, such as the existence and terms of the contingency fee agreement, the basis for the fees charged and the damages claimed.
Why oral evidence matters
In a judgment delivered on 13 October 2026, Judge M F Kganyago of the Limpopo High Court in Polokwane found that the dispute could not be properly decided on pleadings alone. Acting Judge E J Burnett agreed with the judgment.
Judge Kganyago said the magistrate had relied on statements by legal representatives during questioning as if they were evidence. The judge explained that submissions from the bar have no probative value because their credibility has not been tested through normal evidence.
The judge also found that Elias’s allegations about the oral agreement needed evidence to establish if the agreement was made and whether it met the Contingency Fees Act. The damages claim also needed evidence to explain the alleged loss and the amount sought.
The High Court held that pleadings define the issues between parties but cannot replace oral evidence where major factual disputes remain. If parties agree to dispense with oral evidence in action proceedings, they should file a stated case identifying the agreed facts and the issues still in dispute.
The appeal was upheld, the regional court order was set aside, and the matter was sent back for a fresh trial before another magistrate. The dispute over Mashabela’s fees, the additional RAF payment and Elias’s damages claim remains to be decided.
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