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.