King and Others v Attorneys Fidelity Fund Board of Control (878/2002) [2007] ZAECHC 72 (18 October 2007)

King and Others v Attorneys Fidelity Fund Board of Control (878/2002) [2007] ZAECHC 72 (18 October 2007)

The court found that the plaintiffs' funds were placed with Van Schalkwyks for investment purposes, as evidenced by the plaintiffs' own witnesses and documentation. The funds were intended to earn a return and were described as investments. Therefore, section 47(1)(g) of the Attorneys Act applied, excluding Fidelity Fund protection. The plaintiffs failed to plead or prove that the exception in section 47(5)(c) applied, as they were not parties to the discounting transactions. As there was no reasonable prospect of success on appeal regarding the investment exclusion, leave to appeal was refused. The costs of three counsel were justified due to the substance and importance of the matter.

Citation
[2007] ZAECHC 72
Parties
Applicant: Mary Patricia King and 92 Others; Respondent: Attorneys Fidelity Fund Board of Control
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
18 October 2007
Case Number
878/2002
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Compensation Claim at Trial
Outcome
Application for leave to appeal dismissed with costs, including costs of three counsel.
Judges
Plasket
Legal Topics
Attorneys Act Section 26, Attorneys Act Section 47, Standing, Costs of Counsel
Civil Procedure Banking and Finance Attorneys Act Section 26 Attorneys Act Section 47 Standing Costs of Counsel

Case Brief

Summary, issues, holding and outcome

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Parties

Mary Patricia King and 92 Others

Applicant

Attorneys Fidelity Fund Board of Control

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Compensation Claim at Trial

Legal Issues

  1. 1 Whether the money stolen by Van Schalkwyks was entrusted to the firm as envisaged by section 26(a) of the Attorneys Act.
  2. 2 Whether the stolen money was entrusted in the course of the practice of Van Schalkwyks as envisaged by section 26(a).
  3. 3 Whether the defendant escapes liability because the money was invested as envisaged by section 47(1)(g) of the Attorneys Act and thus not protected.

Ratio Decidendi

The court found that the plaintiffs' funds were placed with Van Schalkwyks for investment purposes, as evidenced by the plaintiffs' own witnesses and documentation. The funds were intended to earn a return and were described as investments. Therefore, section 47(1)(g) of the Attorneys Act applied, excluding Fidelity Fund protection. The plaintiffs failed to plead or prove that the exception in section 47(5)(c) applied, as they were not parties to the discounting transactions. As there was no reasonable prospect of success on appeal regarding the investment exclusion, leave to appeal was refused. The costs of three counsel were justified due to the substance and importance of the matter.

Court Disposition

Application for leave to appeal dismissed with costs, including costs of three counsel.

Orders

  • The application for leave to appeal is dismissed with costs, such costs to include the costs of three counsel.