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South Africa decisions
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Smith v Legal Practitioners' Fidelity Fund Board (541/2023) [2024] ZASCA 170; 2025 (3) SA 476 (SCA) (11 December 2024)
The court held that only one payment of R900,000 was entrusted to the firm and recoverable from the Fidelity Fund; three other claims failed.
Seal A Deal CC t/a Makhafola Khaflind Transport and Another v Attorney Fidelity Fund Board and Another (30326/2018) [2024] ZAGPPHC 594 (10 June 2024)
The High Court dismissed a claim for repayment of alleged trust monies, finding lack of locus standi, prescription, and insufficient proof of entrustment.
Leysath v Legal Practitioners Fidelity Fund Board of Control (51027/19) [2021] ZAGPPHC 7 (14 January 2021)
The court held that although clients may pay deposits to attorneys to cover counsel's fees, such funds are entrusted to the attorney on behalf of the client, not the counsel. The contractual obligation for payment of counsel's fees exists between the attorney and counsel, and not between counsel and the client. Therefore, any loss suffered by counsel due to non-payment of fees by the attorney arises from breach of contract, not from theft of money entrusted by or on behalf of counsel. The applicant failed to establish that the funds were entrusted to Costa on his behalf, and thus did not suff…
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Howden Africa (Proprietary) Limited v Legal Practitioners Fidelity Fund Board (19/1250) [2019] ZAGPJHC 271 (8 August 2019)
The court found that the payment of R7.5 million by the applicant into the trust account of Hooyberg Attorneys did not constitute an entrustment for the benefit of the applicant. The terms of the loan agreements indicated that the funds were paid in discharge of the applicant's obligations as lender and were held in trust for the borrowers, not the applicant. The court held that any loss suffered was that of the borrowers, who were deprived of the benefits of the loan due to the theft, and not the applicant. Consequently, the applicant did not meet the requirements for reimbursement under Sec…
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Attorneys Fidelity Fund Board of Control v Mettle Property Finance (Pty) Ltd (499/2010) [2011] ZASCA 133; 2012 (3) SA 611 (SCA) (16 September 2011)
The SCA held that Mettle did not entrust money to an attorney under section 26(a) of the Attorneys Act, so the Fidelity Fund was not liable.
Attorneys Notaries and Conveyancers Fidelity Guarantee Fund v Tony Allem (Pty) Ltd. and Another (274/87) [1990] ZASCA 5; 1990 (2) SA 665 (AD); (2 March 1990)
The court held that money entrusted to an attorney for client loans fell within section 26 of the Attorneys Act and upheld Fidelity Fund liability.
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