No Win No Fee Lawyers in South Africa: How Contingency Agreements Work

No win no fee is a fee model, not a type of law firm: under a contingency fees agreement in South Africa, your attorney is entitled to no fees for services rendered unless you succeed, and may then charge a capped success fee on top of the normal fee. The model is regulated by the Contingency Fees Act 66 of 1997, which came into operation on 23 April 1999.

The agreement must be in writing, on a form prescribed by the Minister of Justice, and signed by both you and the attorney. You have 14 days from the date of the agreement to withdraw by written notice. Contingency agreements are not available for criminal matters or family-law matters.

This article walks through how the fee model works in sequence: what the agreement is, the two statutory caps on a success fee, what the document must contain, which matters qualify, and the protections most people never hear about. One point to hold onto early: “no win no fee” removes your liability for your own attorney’s fees if you lose. It does not automatically remove the opponent’s costs.

What a Contingency Fees Agreement Actually Is

A contingency fees agreement is a written fee contract between you and a legal practitioner, permitted by section 2 of the Contingency Fees Act 66 of 1997. The Act describes an attorney or advocate, and it allows two things to be agreed at once. First, that the practitioner receives no fees unless you are successful, to the extent the agreement defines success. Second, that on success the practitioner may charge fees equal to or higher than the normal fee.

The practitioner may only enter the agreement if, in his or her opinion, you have reasonable prospects of success. That is a professional judgement, not a guarantee, but it does mean a firm that accepts your matter on contingency has assessed the merits first. Firms that skip that assessment are a warning sign.

“Normal fees” has a fixed statutory meaning: the reasonable fees the practitioner could have charged, taxed or assessed on an attorney and own client basis, if no contingency agreement existed. Every cap in the Act measures against that baseline, so it is the number to ask about before signing.

The Two Caps on a Success Fee

Section 2(2) caps the success fee, which is the amount by which fees may exceed the normal fee, in two ways. The uplift may not exceed the normal fee by more than 100 per cent, so the total fee can be at most double what the work would otherwise have cost. Where the claim is for money, the total success fee may also not exceed 25 per cent of the amount awarded or obtained, and taxed costs are excluded when that 25 per cent is calculated. The lower of the two caps is the ceiling that applies.

Scenario (illustrative figures)	Normal fees	Cap A: double the normal fee	Cap B: 25% of the award	Maximum success fee
R600 000 awarded in a claim	R80 000	R80 000 uplift (R160 000 total)	R150 000	R150 000
R200 000 awarded in a claim	R60 000	R60 000 uplift (R120 000 total)	R50 000	R50 000
Non-money relief (for example an interdict)	R40 000	R40 000 uplift	Not applicable	R40 000

Those figures are illustrative only; they show how the formula interacts, not what any firm charges. Actual fees depend on the work the matter takes, and any quote is a conversation with the firm you instruct, not a fixed schedule.

What the Agreement Must Contain

Section 3 requires the agreement to be in writing and in the prescribed form published by the Minister of Justice, signed by you and the attorney, and countersigned by the advocate if one is briefed. You must receive a copy on the day you sign. An agreement that departs from the prescribed form risks being unenforceable.

The Act lists what the document must state, and each item exists to protect you:

• Which proceedings the agreement covers
• That you were advised of other ways of financing the matter, and their implications
• That if you lose you may still be liable for the opponent’s taxed party and party costs
• What will count as success or partial success
• When fees and disbursements become payable, and what happens on partial success or early termination
• The amounts payable, or the method used to calculate them
• Your 14-day right to withdraw by written notice, with the practitioner limited to fees for necessary work done in that period

One detail worth knowing: the Act defines a day as a court day, so the 14-day withdrawal window runs in court days rather than calendar days. Public holidays and recess days do not count against you.

Which Matters Qualify for No Win No Fee

Contingency agreements are available for civil claims, arbitrations, and proceedings before tribunals with court-like powers. They are most common where the claim is for money and the outcome is measurable: Road Accident Fund claims, personal injury and medical negligence matters, and debt or damages recovery.

The Act excludes criminal proceedings and any family-law matter, which means no lawful contingency agreement exists for a defence, a divorce, or a custody dispute regardless of what an advertisement suggests. If you cannot afford private fees for an excluded matter, Legal Aid South Africa operates a means test and a free advice line, 0800 110 110, on weekdays from 07:00 to 19:00.

Protections Beyond the Caps

Two safeguards in the Act receive little attention and both work in your favour. Before a settlement offer can be accepted, section 4 requires the practitioner to file an affidavit with the court, or with the professional controlling body if the matter is not before court, setting out the full settlement terms, an estimate of what trial might yield, the chances of success, and the fees if settled versus tried. You file a supporting affidavit confirming the terms were explained to you and stating your attitude to the settlement.

Section 5 goes further: if you feel aggrieved by any provision of the agreement or the fees charged, you may refer it to the professional controlling body, the Legal Practice Council for attorneys. The Council can set aside any provision or fee it finds unreasonable or unjust. You are not limited to negotiating alone.

Common Mistakes to Avoid

• Assuming “no fee if I lose” means no cost exposure. You may still owe the opponent’s taxed costs, and disbursements depend on the agreement’s terms
• Signing an agreement that is not on the prescribed statutory form, or accepting verbal side promises about fees
• Not asking what the agreement defines as success. A partial settlement may trigger partial fees
• Comparing firms on percentage alone without establishing the normal fee each percentage is calculated against
• Missing the 14-day withdrawal window after signing
• Expecting a contingency agreement for a criminal or family matter, where the Act forbids them

Get help with funding your claim. How a matter is billed is something to raise before you commit. Otrebski Attorneys’ Litigation Law team will explain the fee options for your matter in writing, from its Sandton office. Call 060 500 3098 or book an appointment.

Frequently Asked Questions

Do I pay anything if I lose my no win no fee case?

Under a contingency fees agreement you owe no attorney fees for services rendered if you are unsuccessful. You may still be liable for the opponent’s taxed party and party costs, and disbursements such as expert reports depend on what the agreement says. Ask about both before signing.

What is the maximum success fee in South Africa?

The Contingency Fees Act 66 of 1997 caps the success fee at no more than double the attorney’s normal fees. Where the claim is for money, the total success fee may also not exceed 25 per cent of the amount awarded or obtained, excluding costs. The lower cap applies.

Can I cancel a contingency fees agreement after signing?

Yes. Section 3 of the Contingency Fees Act gives you 14 days from the date of the agreement to withdraw by written notice to the attorney. The Act counts days as court days. On withdrawal the attorney may claim fees only for necessary work done to protect your interests.

Can I use a no win no fee lawyer for a divorce or criminal case in South Africa?

No. The Contingency Fees Act excludes criminal proceedings and all family-law matters, so no lawful contingency agreement exists for a defence, divorce, or custody matter. For those matters, ask about ordinary fee structures or contact Legal Aid South Africa’s advice line on 0800 110 110.

What happens if the other side offers to settle my contingency claim?

Your attorney may not simply accept the offer. Section 4 of the Contingency Fees Act requires an affidavit to be filed setting out the settlement terms, the estimated trial outcome, the chances of success, and the fees if settled versus tried, with a supporting affidavit from you confirming you understood the terms.

Disclaimer. This article is general information, not legal advice for a specific matter. Fee models and their tax treatment differ between matters and change over time. Confirm the current position on contingency fees with the Legal Practice Council, and consult an admitted attorney about your specific circumstances before signing any fee agreement.