van der Berg NO and Another v The Attorneys Fidelity Fund and Others (A155/2012) [2013] ZAFSHC 64 (2 May 2013)

van der Berg NO and Another v The Attorneys Fidelity Fund and Others (A155/2012) [2013] ZAFSHC 64 (2 May 2013)

The court held that the findings of the ad hoc committee were not administrative actions and thus not reviewable under Rule 53. The committee's role was investigative and facilitative, not decisive. The board of control was the only body empowered to make a reviewable decision, but no record of its deliberations was before the court. The applicants had not properly targeted the board's decision for review, nor had they applied for condonation of late notice as required by section 48(1). The court declined to substitute its discretion for that of the board of control. The applicants were found to be the primary cause of the wasted costs due to premature enrolment of the matter, and were...

Citation
[2013] ZAFSHC 64
Parties
Appellant: Sunel van der Berg N.O.; Appellant: Jacobus Petrus Andries du Toit N.O.; Respondent: The Attorneys Fidelity Fund; Respondent: Etienne Horn N.O.; Respondent: Joseph J Mhlambi N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
2 May 2013
Case Number
A155/2012
Procedural Posture
Review Application / Appeal From Motion Proceedings; Review of Committee Findings Under Uniform Rule 53
Outcome
Review application dismissed; costs awarded against the applicants.
Judges
Rampai, Moloi
Legal Topics
Review of Administrative Action, Attorneys Fidelity Fund, Condonation of Late Notice, Trust Property Control Act
Administrative Law Civil Procedure Review of Administrative Action Attorneys Fidelity Fund Condonation of Late Notice Trust Property Control Act

Case Brief

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Parties

Sunel van der Berg N.O.

Appellant

Jacobus Petrus Andries du Toit N.O.

Appellant

The Attorneys Fidelity Fund

Respondent

Etienne Horn N.O.

Respondent

Joseph J Mhlambi N.O.

Respondent

Procedural Posture

Review Application / Appeal From Motion Proceedings; Review of Committee Findings Under Uniform Rule 53

Legal Issues

  1. 1 Whether the findings of the ad hoc committee appointed by the Attorneys Fidelity Fund constitute reviewable administrative action under Rule 53.
  2. 2 Whether the board of control's decision is reviewable in the absence of a record of its deliberations.
  3. 3 Whether the applicants complied with the statutory notice requirements under section 48(1) and if not, whether condonation should be granted.

Ratio Decidendi

The court held that the findings of the ad hoc committee were not administrative actions and thus not reviewable under Rule 53. The committee's role was investigative and facilitative, not decisive. The board of control was the only body empowered to make a reviewable decision, but no record of its deliberations was before the court. The applicants had not properly targeted the board's decision for review, nor had they applied for condonation of late notice as required by section 48(1). The court declined to substitute its discretion for that of the board of control. The applicants were found to be the primary cause of the wasted costs due to premature enrolment of the matter, and were...

Court Disposition

Review application dismissed; costs awarded against the applicants.

Orders

  • The review application is dismissed.
  • The applicants are directed to pay the costs.