Centurion Bus Manufactures (Pty) Ltd v The Attorney Fidelity Fund (25357/2010) [2012] ZAWCHC 277 (26 July 2012)

Centurion Bus Manufactures (Pty) Ltd v The Attorney Fidelity Fund (25357/2010) [2012] ZAWCHC 277 (26 July 2012)

The court found that the plaintiffs did not have sufficient evidence or conviction of theft by their attorney until after the final order of sequestration was obtained on 8 February 2010. Prior to this, plaintiffs acted reasonably by consulting the Law Society, employing a new attorney, and seeking information about the attorney's accounts. The Law Society's failure to investigate or communicate findings contributed to the delay. Applying the test from SW Construction, the court held that mere suspicion or dishonoured cheques did not amount to awareness of theft. Plaintiffs gave notice to the defendant within three months of acquiring sufficient material facts, and the delay was not due...

Citation
[2012] ZAWCHC 277
Parties
Plaintiff: Centurion Bus Manufacturers (Pty) Ltd; Plaintiff: Dantels A CC; Defendant: The Attorneys Fidelity Fund
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
26 July 2012
Case Number
25357/2010
Procedural Posture
Civil Trial / Adjudication of Special Plea Regarding Notice Under Section 48(1) of the Attorneys Act
Outcome
Special plea dismissed with costs awarded to plaintiffs.
Judges
Allie
Legal Topics
Attorneys Fidelity Fund, Notice Requirements, Theft of Trust Funds, Condonation of Late Notice
Civil Procedure Banking and Finance Attorneys Fidelity Fund Notice Requirements Theft of Trust Funds Condonation of Late Notice

Case Brief

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Parties

Centurion Bus Manufacturers (Pty) Ltd

Plaintiff

Dantels A CC

Plaintiff

The Attorneys Fidelity Fund

Defendant

Procedural Posture

Civil Trial / Adjudication of Special Plea Regarding Notice Under Section 48(1) of the Attorneys Act

Legal Issues

  1. 1 Whether plaintiffs gave timeous written notice of their claim to the defendant as required by section 48(1) of the Attorneys Act.
  2. 2 Whether plaintiffs took reasonable steps to become aware of the theft of trust funds.
  3. 3 Whether the court should condone late notice to the Law Society.

Ratio Decidendi

The court found that the plaintiffs did not have sufficient evidence or conviction of theft by their attorney until after the final order of sequestration was obtained on 8 February 2010. Prior to this, plaintiffs acted reasonably by consulting the Law Society, employing a new attorney, and seeking information about the attorney's accounts. The Law Society's failure to investigate or communicate findings contributed to the delay. Applying the test from SW Construction, the court held that mere suspicion or dishonoured cheques did not amount to awareness of theft. Plaintiffs gave notice to the defendant within three months of acquiring sufficient material facts, and the delay was not due...

Court Disposition

Special plea dismissed with costs awarded to plaintiffs.

Orders

  • The special plea is dismissed with costs.