King and Others v The Attorneys Fidelity Fund Board of Control (137/2008) [2009] ZASCA 44; 2010 (4) SA 185 (SCA) (12 May 2009)

King and Others v The Attorneys Fidelity Fund Board of Control (137/2008) [2009] ZASCA 44; 2010 (4) SA 185 (SCA) (12 May 2009)

The Supreme Court of Appeal held that the plaintiffs' claims are excluded by section 47(1)(g) of the Attorneys Act. The evidence showed that the moneys paid into Van Schalkwyks' trust account were intended to be invested in a factoring scheme operated by a third party, with the expectation of earning a profit. The acknowledgements of debt issued by Van Schalkwyks explicitly authorised investment of the capital on behalf of the creditor in the factoring scheme. The court found that each payment into the trust account amounted to an instruction to invest the money, thereby triggering the statutory exclusion. The plaintiffs' argument that the attorneys were not instructed to invest the funds...

Citation
[2009] ZASCA 44
Parties
Appellant: Mary Patricia King & Others; Appellant: Colleen Judith Van Straaten & Others; Appellant: Namcoast (Pty) Ltd; Appellant: C M Tapson & Others; Respondent: The Attorneys Fidelity Fund Board of Control
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 May 2009
Case Number
137/2008
Procedural Posture
Civil Appeal / Appeal From Grahamstown High Court; Judgment Delivered
Outcome
Appeal dismissed with costs, including costs of three counsel, to be paid by the appellants jointly and severally, the one paying the other to be absolved.
Judges
MPATI, Brand, Cachalia, Mhlantla, Bosielo
Legal Topics
Attorneys Fidelity Fund, Entrustment of Funds, Investment in Factoring Scheme, Exclusion of Liability, Attorneys Act Section 47 1 G, Banking Act Contravention
Civil Procedure Banking and Finance Attorneys Fidelity Fund Entrustment of Funds Investment in Factoring Scheme Exclusion of Liability Attorneys Act Section 47 1 G Banking Act Contravention

Case Brief

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Parties

Mary Patricia King & Others

Appellant

Colleen Judith Van Straaten & Others

Appellant

Namcoast (Pty) Ltd

Appellant

C M Tapson & Others

Appellant

The Attorneys Fidelity Fund Board of Control

Respondent

Procedural Posture

Civil Appeal / Appeal From Grahamstown High Court; Judgment Delivered

Legal Issues

  1. 1 Whether the plaintiffs' claims against the Attorneys Fidelity Fund are excluded by section 47(1)(g) of the Attorneys Act 53 of 1979.
  2. 2 Whether the stolen moneys were entrusted to Van Schalkwyks by or on behalf of the plaintiffs.
  3. 3 Whether the entrustment occurred in the course of practice of Van Schalkwyk or Du Mont, or both.

Ratio Decidendi

The Supreme Court of Appeal held that the plaintiffs' claims are excluded by section 47(1)(g) of the Attorneys Act. The evidence showed that the moneys paid into Van Schalkwyks' trust account were intended to be invested in a factoring scheme operated by a third party, with the expectation of earning a profit. The acknowledgements of debt issued by Van Schalkwyks explicitly authorised investment of the capital on behalf of the creditor in the factoring scheme. The court found that each payment into the trust account amounted to an instruction to invest the money, thereby triggering the statutory exclusion. The plaintiffs' argument that the attorneys were not instructed to invest the funds...

Court Disposition

Appeal dismissed with costs, including costs of three counsel, to be paid by the appellants jointly and severally, the one paying the other to be absolved.

Orders

  • The appeal is dismissed with costs, including the costs of three counsel.
  • Costs to be paid by the appellants jointly and severally, the one paying the other to be absolved.