DO NOT DELAY


On 15 April 2021 the Supreme Court of Appeal (SCA) handed down judgment upholding the

appeal against the Gauteng Division of the High Court, Johannesburg (the high court).

The SCA ordered that the special plea raised by the appellant be upheld and that the

order of the high court be set aside.


The issue before the SCA was whether the appellant, the Attorneys Fidelity Fund

Board of Control (the Fund) was liable to pay the respondent ( Mr Love) the sum of

R10 million, which was misappropriated after being deposited into Turnbull and

Associates attorney’s trust account (the trust account).


On 7 October 2013, Mr Love gave the Fund notice of his R10 million claim against the

Fund. On 4 September 2014, the Fund rejected the claim on the grounds that Mr Love

had failed to give the Fund written notice of the claim within three months of him

becoming aware of the theft of the R10 million. Section 48(1)(a) of the Attorney Act 53

of 1979 (the old Act) required a claimant to notify the fund of any claim, within three

months of the claimant becoming aware of the theft of money paid into a trust

account. Mr Love instituted proceedings in the high court, against the Fund, for

payment of the R10 million.


The Fund raised a special plea to Mr Love’s claim on the basis that Mr Love knew by no later than 28 November 2012, and probably as early as 15 May 2012, that the amount of R10 million had been misappropriated from the trust account. As a result, argued the Fund, Mr Love failed to give the Fund written notice of the claim within three months of him becoming aware of the theft, as provided by s 48(1)(a) of the Old Act. The high court dismissed the special plea and granted judgment in favour of Mr Love.


The SCA held that Mr Love knew in October 2011 or at the latest 28 November 2012

that there had a misappropriation by Turnbull and Associates of the money entrusted

to it, as it was required to keep the money in the trust account until the happening of

some known future event. This event did not occur. The SCA held that the special plea

raised by the Fund should have been upheld by the high court. The SCA therefore

upheld the appeal and ordered that the order of the high court be set aside.



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