The perception, and sometimes, the reality

People are often afraid of going to lawyers. The sad reality is that the profession often has negative connotations, and sometimes for good reason. I’ve personally inherited clients that have been through the wash with other lawyers; being charged astronomical rates for very little value in return, being provided with terrible advice, poor service and left with nothing other than a hefty bill to attend to.

This is certainly not always the case, and very often, especially in South Africa, you need to get a lawyer involved to assist you as there are so many, for lack of a better word, ‘chancers’ out there that sometimes the only way to make headway with a particular problem you are having is to involve a lawyer. We see it every day, and after the lockdown that we are in and that we will have just gone through, we are already seeing it more and more; people or companies not willing to honour agreements, employers and employees disregarding the labour laws, tenants not willing to pay their rent, companies or individuals refusing to pay what they owe. This has become commonplace and in the foreseeable time ahead, you may well find yourself in need of a good lawyer as we see a trend that this kind of unethical business practice is on the rise.

How does the law help me?

I thought it helpful to provide you with two personal incidents where the law, properly applied, sorted out problems for myself that would otherwise never have been resolved.

The Friday Car

My fiancé had just purchased a brand-new German vehicle. I won’t mention any names, however the logo closely resembles the Olympic games emblem. This car was an absolute dud from the start. The seats flew back whilst driving, unannounced. The electric windows decided on their own when they would or would not open. There was always some or other fault light coming on and when accelerating (although the car was an automatic SUV) it sounded as if a bicycle was changing gears. Clearly, there was a problem with this car. Despite contacting the dealership (who was less than helpful and who in fact immediately secured the services of an attorney) they refused to acknowledge the problem and refused to assist. I then contacted the manufacturer’s head office (a company which has more than one brand of German car under its belt) and they similarly offered little to no assistance.

Having warned them more than once about their breaches of the Consumer Protection Act (especially being a foreign company) and with no meaningful response, I did what us lawyers do, and issued court papers citing their breach of the Consumer Protection Act and requesting either a replacement or a refund and legal costs too, of course.

It was only when this High Court application was served on them, that I received proper engagement from their head office, who, unsurprisingly after the way they had behaved, immediately offered a brand-new replacement vehicle. Furthermore, this company had wasted my time and treated us with disdain (not a smart thing to do when dealing with an already annoyed lawyer). Naturally, I explained to them that our application was, for all intents and purposes, successful (they had given us what we had asked for in court papers) and it is a trite principle of law that costs must follow the successful litigant. We settled on a figure of R50, 000.00 that they had to pay on top of replacing the car and I remember sitting in Mauritius (having spent that money wisely) and thinking that if I was not an attorney, or if people were afraid to approach attorneys, myself, or those people, would still be fighting this manufacturer, and would still have a dud vehicle and would not be sitting in Mauritius.

The Water Bill

I have heard from so many people that their electricity bill is incorrect, or their water bill is incorrect, and the attitude of the service providers is ‘pay first and argue later’. We had just moved houses and after months of not receiving a municipal account (despite attending at the municipality offices numerous times), I was honoured instead with a letter of demand, placed neatly under our front door. Apparently sending an invoice to me was out of the question but managing to send a letter of demand for the unpaid (and not yet received) invoice, was a very achievable task by the municipality.

I don’t need to mention that this irritated me somewhat and, now that I had received confirmation that someone at the municipality is actually working, I set about to visit them and find out what could be done about receiving my monthly account, so that I could pay the same company that is now demanding I pay them. Bit of a circular argument, really.

Despite a few more fruitless visits, and still not receiving an account (I was just guessing each month what to pay) I received a pre-termination notice (ironically, this was also neatly placed under our front door). Back to the municipality I went and again, no chance of convincing them to provide me with my account (I even asked nicely). Shortly thereafter, our water was cut off. I can assure you it wasn’t as if I was not paying, I just had no idea what to pay and was paying a ridiculous sum of between R5, 000.00 and R7, 000.00 per month (after having paid many lumpsum payments too). We managed to convince the municipality to reconnect the water, and for months it seemed as if everything was fine. I had now been going to fetch my account each month, and I noticed with surprise that in November my account was suddenly at R29, 000.00 in arrears. Again, this could not be correct, and with year end and all the madness that ensues, I just did not bother to deal with this immediately, naively thinking I could deal with this issue in the new year.

We had booked to go to an island destination and had family looking after our 7 animals at home. A few days into the holiday (mid-December or so) I received panicked communication from home that our water had again been cut off. Now, this was just not going to do. I had breakfast and decided that we needed to teach the municipality a lesson, not to mention that they were endangering the lives of my animals who now had no easy access to water. I spent the morning voice noting my article clerk, who drafted an urgent application to reconnect us and although I could not personally attest to the affidavit (being 4000km from home) we had it issued and served on the municipality and the state attorney, to be heard in 24 hours’ time.

The municipality managed in this time to instruct attorneys, and oppose the application, but failed to file their answering affidavit on time. The hearing arrived, and although the opposing attorneys arrived with an affidavit, the Judge expressed his displeasure at their late filing and would not accept the affidavit. Their excuse was that they had to investigate the matter, and the judge, correctly so, pointed out that if you have terminated someone’s water (which is an essential service) you had better have done your investigations already and to now only do so is wrongful and negligent.

We were granted the order, and the municipality was ordered to reconnect our water within 48 hours. Unsurprisingly, they did not do so, and so off I voice noted again, bringing an urgent contempt application from the little island, which was served on the municipality. Almost immediately the water was reconnected. We have not had a days’ issue since then.

The problem

The problem is that the public is afraid to approach attorneys, as they fear the costs and they fear the outcome. The truth is that a good attorney will be able to quite accurately provide you with a guideline of costs, and your prospects of success. We are a service-based industry, and like all service businesses, you should feel free and comfortable to ask whatever questions you have. I always tell my clients “I will be honest with you whether you like it or not, and if you don’t like it, feel free to get a second opinion, I won’t be offended”. This is how your relationship with your attorney should be. If it isn’t, you may want to consider a change.

Richard Wands is the co-founder and a managing partner at HJW Attorneys, a boutique law firm based in Fourways, Johannesburg.