South Africa Case Law

Old Mutual Unit Trust Managers Limited v Living Hands (Pty) Ltd and Others (18/2023)

Old Mutual Unit Trust Managers Limited v Living Hands (Pty) Ltd and Others (18/2023) [2024] ZASCA 75; [2024] 3 All SA 407 (SCA); 2024 (6) SA 85 (SCA) (16 May 2024)

Court

Supreme Court of Appeal

Case number

18/2023

Judges

Schippers, Nicholls, Goosen

The Supreme Court of Appeal held that OMUT did not owe a legal duty to the Trust or its beneficiaries beyond its contractual obligations to the first plaintiff. OMUT acted on a duly authorised instruction and there was no evidence or reasonable possibility that it could have foreseen the misappropriation of funds by the directors of the first plaintiff. The statutory and constitutional provisions relied upon by the plaintiffs did not create a right of action against OMUT, nor did they contemplate the type of harm suffered. The loss resulted from the criminal conduct of the first plaintiff's d…

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• Pure Economic Loss
• Negligent Omission
• Collective Investment Schemes Control Act
• Trust Property Control Act
• Causation
• Wrongfulness

Living Hands (PTY) Limited N.O. and Others v Old Mutual Unit Trust Managers Ltd and Others (42728/2010)

Living Hands (PTY) Limited N.O. and Others v Old Mutual Unit Trust Managers Ltd and Others (42728/2010) [2022] ZAGPJHC 738; 2023 (1) SA 164 (GJ) (12 July 2022)

Court

South Gauteng High Court, Johannesburg

Case number

42728/2010

Judge

Siwendu

The High Court held OMUT liable in delict for pure economic loss after it hastily paid out trust assets, failed to report red flags, and enabled Fidentia’s dissipation of funds.

• Pure Economic Loss
• Fiduciary Duty
• Collective Investment Schemes Control Act
• Trust Property Control Act
• Negligence
• Statutory Liability

Rockland Group Holdings (Pty) Limited v Commissioner of the Financial Sector Conduct Authority and Another (A133/2021; 22504/2019)

Rockland Group Holdings (Pty) Limited v Commissioner of the Financial Sector Conduct Authority and Another (A133/2021; 22504/2019) [2022] ZAWCHC 7 (11 February 2022)

Court

Western Cape High Court, Cape Town

Case number

A133/2021; 22504/2019

Judges

Fortuin, Wille, Sher

The court held that the curator was appointed to protect the interests of investors in an unlawful collective investment scheme operated by RAM and the beneficiary trusts. The curator does not owe fiduciary duties to RAM or its shareholders, but to the investors whose funds were misappropriated. The appellant failed to show good cause for the removal of the curator or for the discharge of the curatorship, as there remains ongoing litigation and asset recovery that forms part of the business under curatorship. The appellant's locus standi was accepted for the purposes of the appeal, but its ar…

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• Curatorship
• Fiduciary Duty
• Collective Investment Schemes Control Act
• Conflict Of Interest
• Removal Of Curator
• Costs Order

Fourie NO and Another v Smith and Another (57474/13)

Fourie NO and Another v Smith and Another (57474/13) [2015] ZAGPPHC 388 (9 June 2015)

Court

North Gauteng High Court, Pretoria

Case number

57474/13

Judge

Dewrance

The High Court granted provisional sequestration after finding an act of insolvency, rejecting abuse-of-process arguments, and holding creditors may benefit.

• Sequestration
• Act Of Insolvency
• Advantage To Creditors
• Abuse Of Process
• Collective Investment Schemes Control Act
• Liquidation

Strydom N.o and Others v Bakkes and Others (19428/11)

Strydom N.o and Others v Bakkes and Others (19428/11) [2014] ZAGPPHC 158 (4 April 2014)

Court

North Gauteng High Court, Pretoria

Case number

19428/11

Judge

Murphy

The High Court held that several promissory-note issuers operated outside South African commercial paper exemptions and that CMM’s investments breached the mandate and GN1503.

• Promissory Notes
• Business Of A Bank
• Collective Investment Schemes Control Act
• Investment Mandate Breach
• Commercial Paper Regulation
• Securitisation Scheme Compliance

Fedbond Participation Mortgage Bond Managers (Pty) Ltd v Investec Employee Benefits Ltd and Others (211/09)

Fedbond Participation Mortgage Bond Managers (Pty) Ltd v Investec Employee Benefits Ltd and Others (211/09) [2010] ZASCA 42; [2010] 4 All SA 467 (SCA) (31 March 2010)

Court

Supreme Court of Appeal

Case number

211/09

Judges

Harms, Mthiyane, Mlambo, Cachalia, Saldulker

The Supreme Court of Appeal held that the written agreement between Fedbond and Investec governed the investment, providing for a five-year minimum period and withdrawal upon notice. The alleged common understanding was inconsistent with the written terms and inadmissible as extrinsic evidence. Fedbond's failure to respond to the withdrawal notice amounted to withholding consent without reason, which is not permitted under the scheme rules. The manager's obligations under the agreement and rules require payment to participants who have complied with the withdrawal procedures, establishing a d…

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• Collective Investment Schemes Control Act
• Contractual Interpretation
• Extrinsic Evidence
• Debtor Creditor Relationship
• Withdrawal Of Investment
• Statutory Mora Interest

Yarram Trading CC t/a Tijuana Spur v Absa Bank Ltd (625/05)

Yarram Trading CC t/a Tijuana Spur v Absa Bank Ltd (625/05) [2006] ZASCA 132; 2007 (2) SA 570 (SCA) (30 November 2006)

Court

Supreme Court of Appeal

Case number

625/05

Judges

Brand, Mpati, Mthiyane, Malan, Theron

The Supreme Court of Appeal held that the trustee had standing to evict, upheld lease cancellation, and dismissed the appeal with attorney-and-client costs.

• Collective Investment Schemes Control Act
• Locus Standi
• Lease Cancellation
• Shifren Clause
• Motion Proceedings
• Attorney And Client Costs