Ospoort Boerdery CC and Another v Freyson Attorneys and Another (15637/2018) [2018] ZAGPJHC 696 (13 November 2018)

Ospoort Boerdery CC and Another v Freyson Attorneys and Another (15637/2018) [2018] ZAGPJHC 696 (13 November 2018)

The court found that the first respondent's retention of the applicants' deposit was unreasonable and legally unfounded. The Financial Intelligence Centre Act only authorises retention of funds upon a specific directive from the Centre, and for a maximum of 10 days. No such directive was issued, and the first respondent's reliance on FICA was misplaced, especially after the Centre clarified its position. The delay in repayment far exceeded any statutory justification, and the first respondent's conduct was not supported by law or the facts. The second respondent was not empowered to authorise payment and its silence did not justify the first respondent's actions. Accordingly, the...

Citation
[2018] ZAGPJHC 696
Parties
Applicant: Ospoort Boerdery CC; Applicant: Fertile Farm Trading (Pty) Ltd; Respondent: Freyson Attorneys; Respondent: The Financial Intelligence Centre
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 November 2018
Case Number
15637/2018
Procedural Posture
Urgent Application / Final Judgment on Costs Following Mandamus and Interdict Proceedings
Outcome
Application granted as to costs; punitive costs order against the first respondent.
Judges
E Van der Schyff
Legal Topics
Attorney and Client Costs, Trust Account Liability, Financial Intelligence Centre Act, Suspicious Transaction Reporting
Civil Procedure Banking and Finance Attorney and Client Costs Trust Account Liability Financial Intelligence Centre Act Suspicious Transaction Reporting

Case Brief

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Parties

Ospoort Boerdery CC

Applicant

Fertile Farm Trading (Pty) Ltd

Applicant

Freyson Attorneys

Respondent

The Financial Intelligence Centre

Respondent

Procedural Posture

Urgent Application / Final Judgment on Costs Following Mandamus and Interdict Proceedings

Legal Issues

  1. 1 Whether the first respondent was entitled to retain the deposit pending a directive from the Financial Intelligence Centre.
  2. 2 Whether the first respondent's reliance on the Financial Intelligence Centre Act was legally justified.
  3. 3 Whether the second respondent contributed to the delay in repayment and should bear any costs.

Ratio Decidendi

The court found that the first respondent's retention of the applicants' deposit was unreasonable and legally unfounded. The Financial Intelligence Centre Act only authorises retention of funds upon a specific directive from the Centre, and for a maximum of 10 days. No such directive was issued, and the first respondent's reliance on FICA was misplaced, especially after the Centre clarified its position. The delay in repayment far exceeded any statutory justification, and the first respondent's conduct was not supported by law or the facts. The second respondent was not empowered to authorise payment and its silence did not justify the first respondent's actions. Accordingly, the...

Court Disposition

Application granted as to costs; punitive costs order against the first respondent.

Orders

  • The first respondent is ordered to pay the applicants' and the second respondent's costs of the application on the scale as between attorney and client.