South Africa Case Law

South African Police Service Medical Scheme (Polmed) v Registrar of the Council for Medical Schemes and Others (24261/2020)

South African Police Service Medical Scheme (Polmed) v Registrar of the Council for Medical Schemes and Others (24261/2020) [2022] ZAGPPHC 969 (2 December 2022)

Court

North Gauteng High Court, Pretoria

Case number

24261/2020

Judge

E M Kubushi

The court found that the applicant failed to demonstrate reasonable prospects of success on appeal. There was no actual dispute between the parties, as the curatorship application had been withdrawn and both parties agreed on the necessity of factual justification for ex parte applications. The court held that section 5(1) of the Financial Institutions (Protection of Funds) Act is valid and that there was no evidence of any future or contingent right requiring declaratory relief. The matter was deemed hypothetical, abstract, and academic, and the application for leave to appeal was dismissed…

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• Declaratory Relief
• Leave To Appeal
• Financial Institutions Protection Of Funds Act
• Contingent Rights
• Ex Parte Applications

Kriel N.O v Rockland Group Holdings (Pty) Ltd and Another; Born Free Investments 247 (Pty) Ltd v Kriel N.O (5417/2014; 9609/2014; 12862/2019)

Kriel N.O v Rockland Group Holdings (Pty) Ltd and Another; Born Free Investments 247 (Pty) Ltd v Kriel N.O (5417/2014; 9609/2014; 12862/2019) [2021] ZAWCHC 243 (24 November 2021)

Court

Western Cape High Court, Cape Town

Case number

5417/2014; 9609/2014; 12862/2019

Judge

Binns-Ward

The court held that Born Free Investments 247 (Pty) Ltd failed to demonstrate sufficient grounds for lifting the suspension of proceedings imposed by the curatorship order under section 5(5)(a) of the Financial Institutions (Protection of Funds) Act. The primary consideration is the effective conduct of the curatorship and the protection of investor interests. RAM's only asset is its loan claim against RGH, and the outcome of that action will determine whether RAM has any assets to satisfy Born Free's claim. Proceeding with the rental claim action now would risk unnecessary legal costs and co…

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• Curatorship Stay Of Proceedings
• Leave To Proceed Against Curatorship
• Consolidation Of Actions
• Financial Institutions Protection Of Funds Act
• Creditor Priority
• Bill Of Rights Limitation

Kriel NO v Born Free Investments 247 (Pty) Ltd (A41/2017)

Kriel NO v Born Free Investments 247 (Pty) Ltd (A41/2017) [2017] ZAWCHC 122 (13 October 2017)

Court

Western Cape High Court, Cape Town

Case number

A41/2017

Judges

Hlophe JP, Le Grange J, Dolamo J

The court held that the phrase 'subject to the terms of this order' in the final order meant the interim order's provisions continued unless inconsistent with the final order. There was no express exclusion of the moratorium on legal proceedings, and the reporting requirement in paragraph 7.4 did not imply that actions could be instituted without leave. The purpose of the moratorium was to protect the entity under curatorship from disruptive litigation. The omission of certain provisions from the final order did not mean they had fallen away; a sensible interpretation required that essential…

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• Interpretation Of Court Orders
• Curatorship
• Financial Institutions Protection Of Funds Act
• Stay Of Proceedings
• Leave Of Court Requirement

Registrar of Medical Schemes and Another v Genesis Medical Scheme (238/2015)

Registrar of Medical Schemes and Another v Genesis Medical Scheme (238/2015) [2016] ZASCA 75; [2016] 3 All SA 449 (SCA); 2016 (6) SA 472 (SCA) (27 May 2016)

Court

Supreme Court of Appeal

Case number

238/2015

Judges

Cachalia, Seriti, Willis, Dambuza, Tsoka

The majority held that funds allocated to members' personal medical savings accounts (PMSAs) by medical schemes are 'trust property' as defined in the Financial Institutions (Protection of Funds) Act and must be accounted for separately from the scheme's assets. The majority reasoned that the statutory framework, including the Medical Schemes Act and the FI Act, requires PMSA funds to be ring-fenced and protected from claims by the general body of creditors in the event of insolvency. The Registrar was correct to reject Genesis Medical Scheme's annual financial statements for failing to refle…

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• Medical Schemes Act
• Financial Institutions Protection Of Funds Act
• Trust Property
• Annual Financial Statements
• Members Savings Accounts

Peterson NO and Another v ABSA Bank Limited (2011 (5) SA 484 (GNP))

Peterson NO and Another v ABSA Bank Limited (2011 (5) SA 484 (GNP)) [2011] ZAGPPHC 127; 24067/2010 (27 July 2011)

Court

North Gauteng High Court, Pretoria

Case number

24067/2010

Judge

E.M. Makgoba

The court held that the amended particulars of claim, as pleaded by the applicants, do prima facie disclose a cause of action for pure economic loss based on omission by the bank. The facts alleged establish the element of wrongfulness, as the bank may owe a legal duty in relation to the opening and monitoring of accounts, especially in light of statutory obligations under FICA and internal protocols. The determination of whether such a duty exists in this novel context is fact-bound and should be evaluated at trial with the benefit of evidence. The particulars of claim are sufficiently clear…

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• Pure Economic Loss
• Bank Duty Of Care
• Exception Procedure
• Financial Institutions Protection Of Funds Act
• Fiduciary Duties
• Wrongfulness

Executive Officer, Financial Services Board v Ovation Global Investment Services (Pty) Ltd and Others (2197/2007)

Executive Officer, Financial Services Board v Ovation Global Investment Services (Pty) Ltd and Others (2197/2007) [2007] ZAWCHC 33; 2008 (3) SA 69 (C); [2007] 4 All SA 741 (C) (14 June 2007)

Court

Western Cape High Court, Cape Town

Case number

2197/2007

Judge

Dlodlo

The High Court confirmed curatorship over Ovation companies, approving wide curatorial powers and allowing costs and remuneration to be paid from investor assets if company assets were insufficient.

• Financial Institutions Protection Of Funds Act
• Curatorship Powers
• Trust Property
• Remuneration Of Curators
• Costs Of Curatorship
• Judicial Management Distinction

Louw NO and Others v Coetzee and Others (342/02)

Louw NO and Others v Coetzee and Others (342/02) [2002] ZASCA 156; [2003] 1 All SA 34 (SCA); 2003 (3) SA 329 (SCA) (29 November 2002)

Court

Supreme Court of Appeal

Case number

342/02

Judges

Howie, Streicher, Mpati, Jones, Lewis

The Supreme Court of Appeal held that attorneys’ trust deposits at a bank did not become protected trust property under the 2001 Act.

• Attorneys Trust Accounts
• Financial Institutions Protection Of Funds Act
• Meaning Of Trust Property
• Bank Liquidation
• Commixtio
• Statutory Interpretation