Contingency Fees in South Africa: What the Act Allows

How contingency fees work in South Africa: the 25% and 100% caps, what the agreement must say, the 14-day cooling-off right and what recent court rulings mean.

A contingency fee lets you hire an attorney without paying fees up front, with the attorney's pay depending on the result. In South Africa this is lawful only under the Contingency Fees Act 66 of 1997. The agreement must be in writing in the prescribed form, the attorney must believe you have reasonable prospects of success, and the "success fee" is capped at 100% above the attorney's normal fee and, for money claims, at 25% of what you are awarded, excluding costs. Courts have recently shown they will invalidate agreements that miss the rules.

TL;DR

A contingency-fee agreement is a written contract under which your attorney gets no fee unless you succeed to an agreed extent, or gets normal or higher fees if you do.
The success fee may not exceed 100% above the attorney's normal fees. In a money claim it may also not exceed 25% of the amount awarded or obtained, excluding costs.
You can withdraw within 14 days, and you must receive a copy of the signed agreement.
Losing does not always mean paying nothing: you may still be liable for the other side's taxed party-and-party costs.
Recent High Court judgments show that an agreement that does not comply with the Act can be declared invalid.

What a contingency-fee agreement is
When an attorney may offer one
The two caps on the success fee
What a valid agreement must contain
Who pays if you lose
If you think the fee is wrong
Contingency fees compared with other ways to fund a case
Our perspective
Finding an attorney who handles contingency matters
FAQ
Sources

What a contingency-fee agreement is

Under the Contingency Fees Act, a contingency-fee agreement is a written agreement in which a legal practitioner receives no fees unless the client succeeds to the agreed extent. The alternative form is one where the practitioner receives normal fees, or higher fees, if the client succeeds to that extent.

So the Act recognises two models:

"No win, no fee". If you do not succeed to the extent agreed, the attorney is not paid fees for the work.
"No win, higher fee". If you succeed, the attorney may charge their normal fee plus an agreed success fee. If you do not, the agreement says what happens, and it is the attorney's risk that is being priced.

Marketing often says "no win, no fee" for both. Read the agreement itself to see which model you are signing, because the numbers differ.

Normal fees versus a contingency arrangement

Without a contingency agreement, you pay your attorney on an ordinary fee basis, whether or not you win. The Act defines "normal fees" as the reasonable fees that could be charged if the work were taxed or assessed on an attorney-and-own-client basis without a contingency agreement. That figure is the yardstick for the success fee, so a good agreement states it clearly or shows how it is calculated.

When an attorney may offer one

Section 2(1) of the Act allows a practitioner to enter into a contingency-fee agreement only if, in the practitioner's opinion, you have reasonable prospects of success. That is a safeguard for you: an attorney who is risking their own fee has a reason to assess the claim honestly.

It also means an attorney may decline your matter. Contingency work suits claims for money, such as road accident claims or medical negligence. It is a poor fit for matters where the outcome is not a payout, such as a divorce, where you will normally be quoted on an hourly or fixed basis. Our guide on what a divorce costs in South Africa explains why.

An attorney who works on a litigation matter regularly is often called a litigation lawyer. If you are unsure which kind of lawyer you need, read what a litigation lawyer does.

Timing matters

The Johannesburg High Court, in a judgment of 26 July 2024 (Oosthuizen), held that the agreement has to be concluded early enough for genuine litigation risk to be shared. It also held that prospects must be assessed before contracting. You can read the judgment on SAFLII. In practice, an agreement signed when the case is almost won, with little risk left for the attorney, is the kind a court may look at critically.

The idea that the representative should genuinely carry the risk of the case is the heart of contingency work everywhere, and contingency-based personal injury representation in other jurisdictions works on the same basic premise. In South Africa, the Act adds firm statutory limits on top.

The two caps on the success fee

This is the part readers search for most, and the part most often misunderstood. The Act sets two limits:

Limit	What it says
Uplift cap	The success fee may not exceed 100% above the attorney's normal fees.
Recovery cap	In a claim for money, the success fee may not exceed 25% of the amount awarded or obtained, excluding costs.

Both limits come from the Act as updated to 11 October 2024. The success fee must fit under both.

A simple illustration

The numbers below are invented to show the arithmetic. They are not a quote.

You are awarded R800 000, excluding costs.
The 25% recovery cap works out to R200 000.
The attorney's normal fee for the work is R60 000.
The 100% uplift cap means the success fee cannot exceed R60 000.

Here the uplift cap is the one that bites: R60 000 is lower than R200 000. The 25% figure is a ceiling, not a default. It is not what you should expect to pay.

Two more points follow from the wording of the Act and the recent case law:

The statutory ability to double normal fees is not automatic. The 2024 Oosthuizen judgment held that it remains subject to reasonableness, and that normal fees and success fee must both be reasonable.
Costs recovered from the other side are not part of the amount awarded when the 25% is calculated.

VAT and recent rulings

Whether VAT can be charged on top of a contingency fee has been argued in several Road Accident Fund matters. Van der Westhuizen v Road Accident Fund, decided by the Pretoria High Court on 29 July 2024, considered whether VAT may be charged above a contingency fee.

The Pretoria High Court returned to the question in De Bod v Road Accident Fund, reported as 2026 (2) SA 549 (GP) and decided on 7 November 2025. The judgment examined how normal fees, success fees and VAT relate to each other, and stressed that the Act was not passed to give practitioners an alternative, preferential way of setting fees above normal fees.

Media reports at the time said the attorney involved intended to seek leave to appeal. If you have a road accident claim, ask your attorney in writing how VAT is treated in your agreement and how that treatment sits with these rulings. Do not assume the question is settled.

What a valid agreement must contain

The Act is specific about form. A valid agreement must:

be in the prescribed written form;
be signed by you and the attorney, and countersigned by any advocate who is part of the arrangement;
identify the proceedings it covers;
explain the alternatives to a contingency arrangement, the risk of adverse costs, and how the success fee works;
define what "success" and "partial success" mean;
state how payment, termination and disbursements are handled;
give the amounts, or the method of calculating them;
include your right to withdraw within 14 days;
deal with amendments; and
be handed to you as a copy once signed.

All of this is in the Contingency Fees Act. Treat the list as a checklist when your attorney sends you the draft. If a point is missing, ask for it before you sign.

Why compliance is not a formality

In Oosthuizen, the court held that non-compliance invalidates an agreement and that both substantive and procedural compliance are required. It also said that court oversight is needed for settlements the Act covers. For a client, the practical lesson is that a defective agreement can put the attorney's fee in doubt, and can complicate the payout of your claim while it is sorted out.

Three safeguards for contingency fee compliance

Who pays if you lose

Many people hear "no win, no fee" and assume a loss costs nothing. The Act is more careful than the slogan. If you are unsuccessful, you may be liable for the opponent's taxed party-and-party costs. That is why the agreement must explain adverse costs before you sign.

Ask your attorney these questions before agreeing:

What is your honest view of my prospects, and why?
If we lose, what could I owe the other side, and roughly how much?
Who pays disbursements such as expert reports and court fees, and when?
What counts as "success" and "partial success" in my agreement?
What is your normal fee for this work, and how did you calculate it?

An attorney who answers these plainly is a good sign. One who avoids them is not.

If you think the fee is wrong

You have options at several stages:

Within 14 days of signing: you may withdraw under the Act.
During or after the matter: if you are aggrieved by the agreement or the fees, the Act lets you refer them to the professional controlling body, or a designated body or person, for review.

For attorneys, the professional controlling body is the Legal Practice Council. Our page on where to report lawyers in South Africa walks through the routes for a complaint.

Contingency fees compared with other ways to fund a case

A contingency arrangement is one of several options. The right one depends on the size and type of the claim.

Option	Best for	Main trade-off
Contingency fee agreement	Money claims with good prospects, such as road accident or medical claims	Success fee is capped, but you may still carry adverse costs
Ordinary hourly or fixed-fee instruction	Matters without a payout, such as divorce or contracts	You pay whether or not you succeed
Small claims court	Small disputes you can run yourself	Limited to small amounts; see how small claims court works
Free or pro bono help	Those who cannot afford fees	Limited capacity; see how to get a pro bono lawyer

If you are not sure where to start, our guide to free legal advice in South Africa lists the routes that cost nothing.

Our perspective

We built Justibly around one principle: you should be able to check who you are hiring. Every attorney we list is matched against Legal Practice Council data, and we do not sell ranking positions. For contingency work, that matters more than usual, because you are agreeing to a contract that gives the attorney a share of your money.

Our perspective — overview diagram

What we would tell a friend is simple. Do not choose on the headline promise of "no win, no fee". Choose on the agreement. Ask to see the prescribed form before you commit, ask for the normal fee in rand, and ask what you would owe if the case fails. Use the 14-day withdrawal right if anything feels rushed. And remember that a cap is a ceiling: a fair attorney will not treat the maximum as the starting point.

The recent High Court judgments point the same way. Courts expect compliance with the Act in substance, not only in paperwork. Attorneys who structure fees carefully will be comfortable with your questions, and those are the ones worth hiring.

— Nkosi

Finding an attorney who handles contingency matters

Our directory lets you search LPC-registered attorneys by practice area and province, then contact them, and our matching service can pass your enquiry to attorneys who work on the type of claim you have. It is free for the public. Start from the Justibly homepage and search for the practice area that fits your claim, for example personal injury or road accident claims.

If you are an attorney or firm who takes contingency matters and want to be found by claimants, our pricing page lists the profile plans. The Professional plan is R499 per month, Premium is R999 per month and Firm Professional is R1499 per month. Listing order still follows LPC data, not payment.

FAQ

What is the Contingency Fees Act?

It is South Africa's Contingency Fees Act 66 of 1997, which regulates agreements under which an attorney's fee depends on the client's success. It sets the form of the agreement, the disclosures, and the limits on success fees. The Act is available on SAFLII.

What is the maximum an attorney can charge on a contingency basis?

The success fee may not exceed 100% above the attorney's normal fees. In a claim for money it may also not exceed 25% of the amount awarded or obtained, excluding costs. The success fee must stay within both limits.

Can I cancel a contingency fee agreement?

Yes, the Act gives you a right to withdraw within 14 days. After that, termination is governed by what the agreement says about termination, so read that clause before signing. If you are unhappy with the fees, you can refer them for review to the professional controlling body or a designated body or person.

Do I pay anything if I lose?

You may not owe your own attorney a fee, depending on the model in your agreement. You may still be liable for the opponent's taxed party-and-party costs, and the agreement should state who bears disbursements. Ask for those answers in writing before you sign.