Bouwer v Attorneys Fidelity Fund and Another (88030/2018) [2020] ZAGPPHC 79 (29 January 2020)

Bouwer v Attorneys Fidelity Fund and Another (88030/2018) [2020] ZAGPPHC 79 (29 January 2020)

The court held that the substantive right to payment accrued to the applicant under the Attorneys Act when the Fund admitted liability and undertook to pay the claim prior to the commencement of the Legal Practice Act. The procedural requirements of the Legal Practice Act apply to the institution of proceedings, but do not impair the applicant's vested right to payment. The Fund's unconditional undertaking to pay was not denied and stands as an admission of liability. The applicant was not required to excuss the insolvent estate further, as the Fund had already admitted liability and undertaken to pay. Accordingly, the applicant is entitled to payment of the claimed amount, together with...

Citation
[2020] ZAGPPHC 79
Parties
Applicant: Louis Adriaan Bouwer; Respondent: Attorneys Fidelity Fund; Respondent: Legal Practice Council
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 January 2020
Case Number
88030/2018
Procedural Posture
Urgent Application / Judgment
Outcome
Application granted in favour of the applicant.
Judges
Kubushi
Legal Topics
Attorneys Fidelity Fund Claim, Excussion Requirement, Retrospective Application of Statutes, Interpretation Act, Legal Practice Act Procedure
Civil Procedure Banking and Finance Attorneys Fidelity Fund Claim Excussion Requirement Retrospective Application of Statutes Interpretation Act Legal Practice Act Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Louis Adriaan Bouwer

Applicant

Attorneys Fidelity Fund

Respondent

Legal Practice Council

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to payment from the Attorneys Fidelity Fund for trust money stolen by an attorney.
  2. 2 Which statutory regime applies to the claim: the Attorneys Act or the Legal Practice Act.
  3. 3 Whether the applicant was required to excuss the insolvent estate of the practitioner before claiming from the Fund.

Ratio Decidendi

The court held that the substantive right to payment accrued to the applicant under the Attorneys Act when the Fund admitted liability and undertook to pay the claim prior to the commencement of the Legal Practice Act. The procedural requirements of the Legal Practice Act apply to the institution of proceedings, but do not impair the applicant's vested right to payment. The Fund's unconditional undertaking to pay was not denied and stands as an admission of liability. The applicant was not required to excuss the insolvent estate further, as the Fund had already admitted liability and undertaken to pay. Accordingly, the applicant is entitled to payment of the claimed amount, together with...

Court Disposition

Application granted in favour of the applicant.

Orders

  • The first respondent is ordered to pay the applicant R1,000,000 (one million rand) together with costs of the application.
  • The first respondent is ordered to pay interest on the amount of R1,000,000 from the date of this order to date of payment at the rate of 10.25% per annum.