Royal Bafokeng Nation and Others v Absa Bank Ltd and Others (38843/12) [2013] ZAGPJHC 82 (22 February 2013)

Royal Bafokeng Nation and Others v Absa Bank Ltd and Others (38843/12) [2013] ZAGPJHC 82 (22 February 2013)

The application was dismissed because the applicants failed to establish a clear right, title and interest in the funds held under Sanlam Investment Company 5096410. The funds were not sufficiently earmarked as belonging to the applicants, and the cession by the attorneys to the first respondent was valid and...

Source-derived case information.

Citation
[2013] ZAGPJHC 82
Parties
Applicant: Royal Bafokeng Nation & Others; Respondent: Absa Bank Ltd & Others
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 February 2013
Case Number
38843/12
Procedural Posture
Civil Application / Return Day of Rule Nisi; Final Determination of Interim Relief
Outcome
Application dismissed; rule nisi discharged; costs awarded to respondents including costs of two counsel.
Judges
Willis
Legal Topics
Quasi Vindicatory Claim, Cession in Securitatem Debiti, Attorneys Trust Accounts, Earmarking of Funds, Common Law Right of Retention
Banking and Finance Civil Procedure Quasi Vindicatory Claim Cession in Securitatem Debiti Attorneys Trust Accounts Earmarking of Funds Common Law Right of Retention

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Summary, issues, holding and outcome

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Parties

Royal Bafokeng Nation & Others

Applicant

Absa Bank Ltd & Others

Respondent

Procedural Posture

Civil Application / Return Day of Rule Nisi; Final Determination of Interim Relief

Legal Issues

  1. 1 Whether the applicants have a right, title and interest in the funds held under Sanlam Investment Company 5096410.
  2. 2 Whether the funds were sufficiently earmarked as belonging to the applicants.
  3. 3 Whether the cession of rights to the first respondent was valid and effective.

Ratio Decidendi

The application was dismissed because the applicants failed to establish a clear right, title and interest in the funds held under Sanlam Investment Company 5096410. The funds were not sufficiently earmarked as belonging to the applicants, and the cession by the attorneys to the first respondent was valid and effective against the world, including the first respondent. Even if the cession was invalid, the first respondent would have a common law right to retain the funds until any prejudice was cured. The first respondent acted bona fide and was not put on enquiry regarding the legitimacy of the transaction. The applicants' claim, if any, lies against the third respondent, not the first...

Court Disposition

Application dismissed; rule nisi discharged; costs awarded to respondents including costs of two counsel.

Orders

  • The rule nisi of 6 December 2012 is discharged.
  • The application is dismissed with costs, including the costs of two counsel.