Probest Projects (Pty) Ltd v The Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund (20761/2014) [2015] ZASCA 192 (30 November 2015)

Probest Projects (Pty) Ltd v The Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund (20761/2014) [2015] ZASCA 192 (30 November 2015)

The Supreme Court of Appeal found that the direct evidence of Mr Annandale and Mr Minnie, which was agreed upon by the parties as the correct factual position, established that Probest only became aware of the theft at the end of November or December 2009. The trial and full courts erred by disregarding this evidence and relying on assumptions and conjecture rather than valid inferences from objective facts. The Fund failed to discharge the onus of proving that Probest had knowledge of the theft by 23 July 2009. Accordingly, Probest complied with the statutory requirements of s 48(1)(a) of the Attorneys Act, and the special plea should have been dismissed.

Citation
[2015] ZASCA 192
Parties
Appellant: Probest Projects (Pty) Ltd; Respondent: The Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2015
Case Number
20761/2014
Procedural Posture
Civil Appeal / Appeal From the Western Cape Division of the High Court, Cape Town
Outcome
Appeal upheld; special plea dismissed with costs.
Judges
Cachalia, Shongwe, Tshiqi, Swain, Baartman
Legal Topics
Attorneys Act Section 48, Theft of Trust Funds, Special Plea, Onus of Proof, Knowledge of Theft
Civil Procedure Commercial and Corporate Attorneys Act Section 48 Theft of Trust Funds Special Plea Onus of Proof Knowledge of Theft

Case Brief

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Parties

Probest Projects (Pty) Ltd

Appellant

The Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund

Respondent

Procedural Posture

Civil Appeal / Appeal From the Western Cape Division of the High Court, Cape Town

Legal Issues

  1. 1 When did the claimant become aware of the theft of trust funds by the attorney, as required by s 48(1)(a) of the Attorneys Act?
  2. 2 Did the claimant exercise reasonable care in discovering the theft?
  3. 3 Did the Fund discharge the onus of proving that the claimant had knowledge of the theft before November 2009?

Ratio Decidendi

The Supreme Court of Appeal found that the direct evidence of Mr Annandale and Mr Minnie, which was agreed upon by the parties as the correct factual position, established that Probest only became aware of the theft at the end of November or December 2009. The trial and full courts erred by disregarding this evidence and relying on assumptions and conjecture rather than valid inferences from objective facts. The Fund failed to discharge the onus of proving that Probest had knowledge of the theft by 23 July 2009. Accordingly, Probest complied with the statutory requirements of s 48(1)(a) of the Attorneys Act, and the special plea should have been dismissed.

Court Disposition

Appeal upheld; special plea dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the full court is set aside and substituted with an order dismissing the special plea with costs.