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[2021] ZAGPPHC 7
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Leysath v Legal Practitioners Fidelity Fund Board of Control (51027/19) [2021] ZAGPPHC 7 (14 January 2021)
IN THE REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED.
YES
/NO
14
January 2021
CASE NO: 51027/19
In the matter between:
ADVOCATE LINDON CLIFFORD
LEYSATH
APPLICANT
and
THE LEGAL
PRACTITIONERS FIDELITY
FUND BOARD
OF CONTROL
on behalf of
THE LEGAL
PRACTITIONERS
FIDELITY
FUND
previously known as
THE
ATTORNEYS FIDELITY FUND
BOARD OF
CONTROL AND THE ATTORNEYS
FIDELITY
FUND
RESPONDENT
JUDGMENT
VAN
NIEUWENHUIZEN AJ
:
[1]
In this application, the Applicant, a
practising advocate of the High Court, seeks a monetary order against
the Respondent in the
amount of R472 666,00, together with
ancillary relief relating to interest and costs. There is no
dispute insofar as
the Respondent’s
locus
standi
to be sued is concerned and it
does not appear to me that much turns on the difference in the
citation as asserted by the Applicant
in the founding affidavit and
what the Respondent itself contends is its correct citation. The
Applicant would in any event be
entitled to make out a case for the
relief he claimed on the Respondent’s papers (see
Administrator, Transvaal and Another v
Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA
192
(A) 195H/I). The Respondent records that its correct citation is
“
the Legal Practitioners Fidelity
Fund Board”
. The Respondent
is the successor in law of the Attorneys Fidelity Fund Board of
Control which ceased to exist on 1 November
2018 with the
commencement of the Legal Practice Act 28 of 2014 (“the
Legal
Practice Act&rdquo
;), which replaced the Attorneys Act 53 of 1979
(“the Attorneys Act”). The Respondent is a creature
of statute
created in terms of
Section 61(1)
of the
Legal Practice
Act. The
Respondent is responsible for acting on behalf of the
Fidelity Fund (see
Section 53(2)
of the
Legal Practice Act), the
latter being the already existing juristic person created under
Section 25 of the Attorneys Act, and whose existence continues
under
the
Legal Practice Act in
terms of
Section 53(1)
thereof. The
Legal
Practice Act is
not of retrospective effect and it is common cause
that the Applicant’s claim arose prior to the repeal of the
Attorneys
Act and thus falls to be considered under Section 26(a)
thereof (see Section 12(2)(b) of the Interpretation Act 33 of 1957).
[2]
The Applicant’s case is summarised in
his founding affidavit as follows:
[2.1]
at paragraph 4:
“
At
the outset, this is an application to compel the Respondent to affect
payment to me of advocate’s fees due, owing and payable
to me
by an Attorney firm M F Martins Costa Attorney (“Costa”),
a sole proprietorship of an attorney Manuel Fernando
Martins Costa,
who conducted business as an attorney at 33 Lakefield Avenue,
Lakefield, Benoni, Gauteng, pursuant to my claim that
amounts for
advocate’s fees are held by an attorney in trust in accordance
with the precepts of Section 26 of the Attorneys
Act.”
[2.2]
and at paragraph 6:
“
...
I wish to advise that the dispute that arises between the Respondent
and I is of a very limited nature and concerns the question
of
whether Advocate’s fees are entrustment funds within the ambit
of Section 26(a) of the Attorneys Act. ...”
[3]
Similarly, the Respondent came out swinging
in its answering affidavit in paragraph 2.1 recording that:
“
The
main reason that Applicant’s claim was rejected by the
Attorneys Fidelity Fund was that Applicant was unable to discharge
the onus of proving that funds had been entrusted to MF Martins Costa
Attorneys, “Attorney Costa”, to be held on Applicant’s
behalf and, in bringing this application, Applicant has again failed
to discharge that onus as is detailed below.”
(
sic
)
It was
further stated on behalf of the Respondent that the dispute between
the parties does not concern the question of whether
advocate’s
fees are entrustment funds within the ambit of Section 26(a) of the
Attorneys Act, but rather whether any monies
were held in trust by
Costa Attorney on behalf of the Applicant.
[4]
In order to succeed with his application,
the Applicant was required to show that:
[4.1]
he suffered pecuniary loss;
[4.2]
by reason of theft committed by a
practising attorney;
[4.3]
of money entrusted by or on behalf of the
Applicant to the attorney;
[4.4]
in the course of his practice as such,
(see
Industrial and Commercial Factors (Pty) Ltd v Attorneys
Fidelity Fund Board of Control
[1996] ZASCA 84
;
1997 (1) SA 136
(A) (“
ICF
”)
140C – F).
[5]
According to the evidence of the Applicant:
[5.1]
He had launched a claim against the
Respondent principally on the basis that his “
unpaid
advocate’s fees accounts rendered to Costa for the provision of
professional services by me to Costa at his instance
and request as
an Advocate of the High Court during the period of February 2018 to
June 2018 wherein I performed my functions and
duties to Costa in
accordance with instructions received and in terms of which I duly
submitted accounts to Costa in respect of
the work and which accounts
remained unpaid.”
[5.2]
Costa apparently had a policy that
advocates would only be engaged and briefed for services to be
rendered once funds were placed
in trust with the firm.
[5.3]
The Applicant had a long history with Costa
in respect of the provision of professional services, which spanned
well over a period
of 10 years and throughout such period, right
until January 2018, his accounts had been paid on a 97 day basis.
[5.4]
The aforementioned policy was implemented
by the firm [of Costa] and in his (i.e. the Applicant’s)
presence clients were often
advised that funds would be required in
advance to be used to pay advocate’s fees.
[5.5]
He had raised, in his affidavit in support
of this claim lodged directly with the Respondent, the “
fact”
that funds were “
in fact”
provided for by clients in respect of the provision of his services
directly to Costa.
[6]
It is common cause that the Applicant’s
accounts to Costa had remained unpaid. It does not appear to me to be
seriously in
dispute that Costa had fled the country and according to
the Applicant a trust deficit of R30 million was left behind. Costa
had
also been sequestrated in the meantime.
[7]
What is contentious between the parties is
that the Respondent disputes the Applicant’s contention that
Costa had dissipated
advocate’s fees and misappropriated same
which he held on behalf of counsel. In view of the approach I
propose to adopt
herein, I shall assume for the moment, in favour of
the Applicant (without making any such finding) that clients of Costa
had indeed
paid amounts at least to the equivalent of the Applicant’s
claim against the Respondent in the form of deposits to cover
counsel’s fees in pending or imminent litigation. I shall
further assume that Costa had committed theft in the course of his
practice.
[8]
In my view, the matter thus stands to be
determined as to whether or not by reason of the assumed theft
committed by Costa the Applicant
had suffered a pecuniary loss of
money entrusted by him or on his behalf to Costa. Put
differently, having assumed that money
was paid or deposited by
clients to Costa for purposes of covering advocate’s fees, and
that Costa stole same in the course
of his practice:
[8.1]
was such money “
entrusted”
to Costa;
[8.2]
if such deposits or payments made to and
received by Costa from his clients constitute money “
entrusted”
,
then was such money entrusted by the Applicant, or on his behalf;
[8.3]
if the money was “
entrusted”
to Costa by the Applicant, or on his behalf, did the theft thereof
result in a pecuniary loss to the Applicant?
[9]
I interpose that these questions have been
covered by the disputes raised by the Respondent in its answering
affidavit (see, for
example, paragraphs 23.2 and 31 thereof). I
shall turn to address these questions in turn.
Was money
“entrusted?”
[10]
In
ICF
,
F H Grosskopf JA, at 143I to 144I, set out what is meant by the word
“
entrust”
as follows:
“
Where
money is paid into the trust account of an attorney it does not
follow that such money is in fact trust money (Paramount Suppliers
(Merchandise) (Pty) Ltd v Attorneys, Notaries and Conveyancers
Fidelity Guarantee Fund Board of Control
1957 (4) SA 618
(W) at
625F-G). If money is simply handed over to an attorney by a debtor
who thereby wishes to discharge a debt, and the attorney
has a
mandate to receive it on behalf of the creditor, it may be difficult
to establish an entrustment.
After considering certain definitions of the word
'entrust' - in addition to those referred to in the judgment in
British Kaffrarian
Savings Bank Society v Attorneys, Notaries and
Conveyancers Fidelity Guarantee Fund Board of Control
1978 (3) SA 242
(E) at 248B-D - Nicholas J concluded as follows at
543E-F in the Provident Fund case, supra:
'From these definitions it is
plain that "to entrust" comprises two elements: (a) to
place in the possession of something,
(b) subject to a trust. As to
the latter element, this connotes that the person entrusted is bound
to deal with the property or
money concerned for the benefit of
others (cf Estate Kemp and Others v McDonald's Trustee
1915 AD 491
at
499).
"(The trustee) is bound to hold and apply the
property for the benefit of some person or persons or for the
accomplishment
of some special purpose"
(ibid at 508).'
I do not understand these passages, and similar
remarks in the case of SVV Construction (Pty) Ltd v Attorneys,
Notaries and Conveyancers
Fidelity Guarantee Fund
1993 (2) SA 577
(C)
at 589G, to convey that the liability of the Fidelity Fund is limited
to those cases where the money or property concerned
was impressed
with a trust in the technical legal sense of the word. The Afrikaans
text of the Act, which is also the signed one,
provides as follows in
s 26(a):
'Behoudens die bepalings van
hierdie Wet, word die fonds aangewend ten einde persone te vergoed
wat geldelike verlies ly weens -
(a)
diefstal
gepleeg deur 'n praktiserende praktisyn . . . van geld of ander
goedere deur of namens sodanige persone toevertrou aan
hom . . . in
die loop van sy praktyk. . . .'
(Emphasis added.)
Die Verklarende Handwoordeboek van die Afrikaanse
Taal (HAT) 2nd ed (1992) defines 'toevertrou' as 'met vertroue opdra
aan, oorgee
aan die sorg van . . .'.
Die Verklarende Afrikaanse Woordeboek 8th ed (1992)
gives the following definition of 'toevertrou':
'1. In vertroue gee. 2. In
iemand se sorg laat; ter veilige bewaring gee. . . .'
The word 'toevertrou' does therefore not imply that
the handing over of the money or property concerned has to be subject
to a trust
in the technical legal sense of the word. Moreover, the
Legislature appreciated that the word 'trust' has a technical
meaning,
and where it intended to convey that meaning it used the
word 'trust' in the Afrikaans text. This appears from s 27(2) of the
Act
which reads as follows:
'(2)
Die fonds word deur die beheerraad in trust gehou vir die doeleindes
in hierdie hoofstuk vermeld.'
(Emphasis
added.)
Had it been the intention of the Legislature to give
'entrust' the technical legal meaning of placing money or other
property with
an attorney subject to a trust, it would have used an
expression such as 'in trust aan hom gegee' in the Afrikaans text of
s 26(a).”
[11]
At the risk of repeating myself, assuming,
for the moment, in the Applicant’s favour that all the funds
which form the subject
of his claim were deposited or paid to Costa
in advance by Costa’s clients for the purpose to cover
advocate’s fees
of pending litigation or litigation to be
instituted, in my view, such money would clearly be “
entrusted”
as explained by F H Grosskopf JA. Deposits are paid to Costa,
to be held, one would expect (although from the afore-quoted
authority of
ICF
,
not necessarily) in Costa’s trust account, to be held for the
payment of services to be rendered by counsel to Costa’s
clients in due course. In this regard, services rendered by
counsel are rendered to or on behalf of the attorney’s
client,
and not to or on behalf of the attorney (see
General
Council of the Bar of South Africa v Geach and Others
2013
(2) SA 52
(SCA) [144]).
[12]
That being said, although counsel renders
services on behalf of the attorney’s client, he does so at the
instruction of, and
by agreement with, the attorney – and not
the client.
[12.1]
In
Serrurier
and Another v Korzia and Another
2010
(3) SA 166
(W) (“
Korzia
”)
at 180F – 181A, Jordaan AJ found as follows:
“
My
personal view is that the defendant is liable for the fees of the
plaintiffs in view of the following:
1.
The obligation to pay fees must flow from an agreement between
parties.
2.
This agreement can either be an express agreement or by necessary
implication.
3.
Counsel is not allowed in terms of his ethical rules to receive
instructions
or payment from a client. General Council of the Bar of
South Africa v Van der Spuy (supra); and De Freitas and Another v
Society
of Advocates of Natal and Another
2001 (3) SA 750
(SCA)
(2001 (6) BCLR 531).
These two cases illustrate that an advocate will
be suspended from practice even if he is not subject to the rules of
the General
Bar Council and even if the constitution of his own
professional body allows receiving instructions and payment from
members of
the public.
4. If
there is not an express agreement between counsel and attorney the
necessary
implication is therefore that it can never be an implied
term of the agreement that counsel look to the client to pay his
fees.
5.
Counsel will not be permitted to conclude an express agreement that
his fees
be paid by anyone else than his attorney.
6. It
therefore in my view follows logically that an attorney will always
in our
law be liable for counsel's fees, even in the event of the
client not paying him. ...”
[12.2]
In
Fluxmans
Incorporated v Lithos Corporation of South Africa Ltd and Another (No
1)
2015 (2) SA 295
(GJ) at paragraph
35, Sutherland J said that:
“
What
counsel is to charge is the subject-matter of an agreement between
counsel and attorney, not between counsel and the client.
The client
does not approve what Counsel charges; that is the function of the
attorney who is liable to pay the fees (See: Serrurier
and Another v
Korzia and Another
2010
(3) SA 166
(W) at esp 181A).
What Ndebele
[a director of Fluxmans]
sought
from Gyenfie
[a director of the client of
Fluxmans]
was an agreement that Gyenfie would
cover Fluxmans for those sums. Sensibly, Ndebele did not wish to bind
Fluxmans to pay the fees
unless he had secured cover.”
[12.3]
In
Fluxmans
Incorporated v Lithos Corporation of South Africa (Pty) Ltd and
Another (No 2)
2015 (2) SA 322
(GJ),
Victor J at paragraph 26 stated that:
“
It
is clear that counsel cannot contract with the members of the public
directly. It is a referral profession and it is a professional
practice or trade usage that the legal nexus between counsel and
their fees is the attorney and not the member of the public. See
General Council of the Bar of South Africa v Geach and Others
2013
(2) SA 52
(SCA) ([2012] ZASCA 175); Minister of Finance and Another v
Law Society, Transvaal
[1991] ZASCA 88
;
1991 (4) SA 544
(A); and Serrurier and
Another v Korzia and Another
2010 (3) SA 166
(W).”
[13]
It follows that there are two distinct
separate legal arrangements in the trinity of counsel, attorney, and
client.
[13.1]
Firstly, there is a contractual
relationship between the attorney and the attorney’s client,
which is wholly separate from
counsel. Secondly, there is a
contractual relationship between an attorney and counsel, which but
for the fact that the services
requested by the attorney are to be
rendered on the client’s behalf, has otherwise no bearing on
the client.
[13.2]
As the authorities demonstrate, the
agreement between an attorney and counsel renders the obligation for
payment of counsel’s
fees on the attorney. That position cannot
in law not be altered by passing the obligation to the attorney’s
client. Pursuant
to that contractual arrangement, counsel had a right
to claim his fees from the attorney, and the attorney was obliged to
make
payment towards counsel of counsel’s fees. Whether
or not the client had paid the attorney was irrelevant insofar as
that contractual relationship was concerned, unless their agreement
was qualified in some manner whereby counsel would not render
any
work unless satisfied that counsel’s fees were secured by the
attorney in the form of a deposit.
[13.3]
Irrespective of the agreement between
counsel and the attorney, in contrast, in the contractual
relationship between the attorney
and the attorney’s client
places an obligation on the client to pay the attorney, and thus the
attorney is vested with the
right to claim from the client payment,
in respect of services rendered by the attorney, as well as
disbursements for which the
attorney would be liable, such as
counsel’s fees.
[13.4]
Put differently, in the contractual
relationship between counsel and attorney, counsel is the creditor,
and the attorney the debtor.
In the contractual relationship
between the attorney and client, the attorney is the creditor, and
the client the debtor.
[14]
It follows then that when clients paid
deposits to Costa to ensure that there were funds available to pay
Costa’s disbursement
in the form of the Applicant’s fees
(or other counsels' fees), such money was “
entrusted”
to Costa.
Who entrusted
money to Costa, or on whose behalf was money entrusted to Costa?
[15]
If then, money was entrusted to Costa, who
so entrusted it? The money was certainly not deposited by the
Applicant and it
follows that it was entrusted by the client or
clients of Costa.
[16]
That is certainly the starting point of the
enquiry. If the money was entrusted to Costa by his clients,
was it done on the
Applicant’s behalf, or on the clients’
behalves? In my view, it can never be said that the money entrusted
as deposits
by Costa’s clients was so entrusted on the
Applicant’s behalf. It may well be that its purpose was
to ensure
that counsel’s fees were covered, but it would be
farfetched to suggest that deposits were paid with the sole purpose
only
of covering counsel’s fees as a disbursement and not other
disbursements, such as sheriff’s costs, correspondent’s
fees, messenger’s fees and the like (including at least part of
the attorney’s own initial fees).
[17]
In my view, the Applicant conflates the
purpose of the money so entrusted by Costa’s clients with the
interest (in the legal
sense) for which the money was entrusted.
[17.1]
The client had no obligation towards
counsel. The client’s sole obligation was to the attorney. The
purpose of a deposit,
on the assumed facts in favour of the
Applicant, was to ensure that the disbursements for which Costa would
be liable
vis-à-vis
counsel, would be covered and that Costa thus would not be out of
pocket. Such an arrangement is sensible if an attorney does not
wish
to run the risk of being out of pocket due to his obligation to
counsel, and his client defaulting on the obligation to pay
the
attorney.
[17.2]
If clients had entrusted money on counsel’s
behalf, then counsel would be free to direct what should be done with
such money.
It has not been suggested by the Applicant that he had
ever been so entitled to direct what might be done with money that
was so
entrusted. If money was indeed so entrusted, then the
Applicant would be liable for income tax and VAT (from the invoices
attached
to the founding affidavit, the Applicant was a registered
VAT vendor) once the money was deposited with Costa, as it would then
accrue to the Applicant if held on his behalf. Such a proposition is
merely to be stated to be rejected as untenable. If that were
not the
case, it would lead to the absurd scenario where a client, who paid a
significant deposit, but subsequently terminated
the mandate of the
attorney, would be precluded from claiming whatever money is left in
trust which had not yet been spent on disbursements
or in respect of
the attorney’s fees. The client would then have to, on the
Applicant’s contention, claim such money
from counsel based on
some
condictio
.
[18]
It follows, that at this hurdle, the
Applicant’s case already falls short.
Has the
Applicant suffered pecuniary loss due to the theft of money
entrusted?
[19]
From the conclusion in respect of the
second question above, it follows logically that the Applicant had
not suffered a pecuniary
loss. This further follows from the ratio
quoted of F H Grosskopf JA in
ICF
supra
with reference to 143J – 144A.
[20]
The money held in trust, in the sense of
being “
entrusted”
and not merely where the attorney’s trust account or the
attorney is acting as a conduit for a payment to discharge a debt
on
behalf of a client or third party, is generally entrusted on behalf
of the client as a consequence of the contractual relationship
between the attorney and a client (
cf
Roestoff v Cliffe Dekker Hofmeyr Inc
2013 (1) SA 12
(GNP) [71]). But of
course one can imagine a scenario where money is entrusted into trust
by client on behalf of someone else.
Take the following examples:
[20.1]
in the first scenario, where a client
entrusts money into trust for that client’s own behalf: S sells
to P, who purchases
an immovable property from S, in the amount of R1
million. In terms of the agreement, P was to pay a deposit to
the conveyancing
attorney of R100 000.00 to be held in trust
until registration of transfer, whereafter same was to be paid to S.
The
sale agreement is further subject to a suspensive condition that
P obtains a mortgage bond loan for the balance of the purchase
price.
If the suspensive condition is not met and the property never
transferred, the deposit remains entrusted on behalf of P,
and P may
direct how the attorney is to deal with such a deposit.
[20.2]
in the second scenario, where a client
entrusts money into trust on behalf of another: If, however, in the
preceding example, the
sale agreement provides that the deposit is to
be paid to the conveyancing attorney and held in trust (i.e.
entrusted) pending
registration of transfer, in favour of S, then
upon non-compliance with the suspensive condition, the money would
remain entrusted
on behalf of S, and S would be entitled to direct
what is to be done with the deposit. P would have a claim
against S for
the return of the deposit and not against the attorney.
The point in this second scenario remains that there was an
obligation
created through contract between S and P. In the present
matter, there is no contract between the Applicant and Costa’s
clients.
[21]
Thus, as is alleged to have happened in the
present circumstances, where a client pays a deposit to an attorney,
and the attorney
steals the deposit, irrespective of the fact that
the purpose thereof was to cover counsel’s fees, it was
entrusted by the
client and to be held on behalf of the client. If
the attorney stole the deposit and no services were rendered by
counsel, it is
the client that suffers that loss and the client would
have a claim against the Fidelity Fund.
[22]
If counsel had rendered any services on
behalf of the client, but in discharge of his contractual obligation
to the attorney, his
claim lies against the attorney (or possibly
subsequent insolvent estate as happened
in
casu
). It is for the trustee(s)
to, if so directed by the creditors of the insolvent estate of Costa,
including the Applicant,
if he proves a claim, to direct the
trustee(s) to collect such money as is due for the services counsel
rendered. The client would
not suffer a loss, because he received the
service (from counsel) which he paid for to the attorney.
[23]
If a deposit was paid in respect of fees of
counsel not yet incurred, and stolen, then the loss is plainly that
of the client. If,
however, services had been rendered by counsel and
duly invoiced and paid by client to the attorney and that money then
stolen,
the aforesaid dictum of
ICF
applies and the money was not entrusted by the client to the
attorney, but paid in terms of the client’s obligation to
discharge
a debt due and owing to the attorney. The loss that
counsel suffers in such a circumstance is not the theft of the money
paid by the client, but the default by the attorney of the attorney’s
obligation to make payment of a debt due to counsel.
Counsel would
have suffered damages due to the attorney failing to comply with the
payment obligation arising from the contract
between counsel and the
attorney. It is the breach of the contract that is the causal nexus
of Counsel’s loss, not the theft
of the money entrusted by the
clients for the purpose of covering counsel’s fees.
[24]
From the authorities already referred to
herein, counsel’s claim for outstanding fees lies against the
attorney. If
the attorney is sequestrated, the claim is against
his insolvent estate. It follows that the Applicant had not suffered
a pecuniary
loss due to the alleged theft of Costa of any money paid
by clients to Costa. The Applicant’s loss, as I have indicated,
arises due to Costa’s breach of his agreement with the
Applicant.
Concluding
remarks
[25]
For the reasons dealt with under the
previous two sub-headings, I need not consider the remaining
contentions of the parties.
It is, however, perhaps prudent, to
conclude this judgment in dealing with certain aspects raised by the
parties. On behalf of
the Applicant, reliance was placed on the
obiter dictum
of Jordaan AJ in
Korzia
at
176B where the learned acting judge remarked that:
“
What
falls to be decided is if counsel is briefed by an attorney, who is
responsible for the payment of his fees? There can be no
doubt that,
in the event of the client paying the attorney, but the attorney
failing to pay counsel, an action against the attorney
would be
justified. (
In
such an event the fidelity fund would in all probability pay the
counsel. See s 26 of the Attorneys Act 53 of 1979
.)
Such an event would also attract the attention of a criminal court.”
[My emphasis added.]
[26]
With respect to the learned acting judge,
no reasoning was given for the postulation in parenthesis as quoted.
As I have demonstrated
herein, such a proposition cannot be supported
as a matter of logic in the context of the separate debtor-creditor
relationships
at play.
[27]
The Respondent has highlighted several
facts apparent from the Applicant’s papers which, in any event,
would go a long way
to negate the assumptions that I have made in the
Applicant’s favour in this judgment. For example, of the
invoices
upon which the Applicant’s claim is based, same
appears to have been for work rendered for Costa himself.
Deposits
did not square up with invoices rendered
per
se
. And other counsel was also briefed
by Costa and deposits seemingly would have been for the purpose of
discharging disbursements,
and clearly not, to be entrusted on behalf
of the counsel whose fees would constitute such envisaged
disbursements.
[28]
In addition thereto, insofar as the
Applicant relies on the purported practice of Costa, this practice
was clearly not uniformly
employed by Costa himself, nor does that
seem to have perturbed the Applicant in that the Applicant had
rendered services, as counsel,
to Costa, despite, on the Applicant’s
own version, Costa having reneged on due fulfilment of his payment
obligations towards
the Applicant from January or February 2018.
The Applicant does not shed any light on why he continued to do work
for Costa
seemingly five months after Costa had no longer paid him on
a 97 day basis as he had done, on the Applicant’s version, for
the preceding 10 years.
[29]
I would therefore have been inclined, to
have agreed with the argument on behalf of the Respondent that, in
the context where the
Applicant seeks final relief, the denial by the
Respondent that the monies so deposited by the clients of Costa (as
contended by
the Applicant) and earmarked for the Applicant’s
fees, were in fact part of the money stolen by Costa. This is
of course
in accordance with the well-known
Plascon-Evans
rule (
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) 634E – 635C).
[30]
The Applicant conflated the Legal Practice
Council, with the Fidelity Fund. They are separate entities (compare
Sections 4
and
53
(1) of the
Legal Practice Act). It
follows
that the denial in this regard on behalf of the Respondent is not
subject to the criticism levelled against it by the Applicant
in the
context of
Wightman t/a J W Construction
v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) at paragraph 13. In my view, the disputes as
raised on behalf of the Respondent’s (which includes an attack
premised
upon inadmissible hearsay evidence) would fall neatly under
the category as set out by Murray AJP in
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1163 under point (c):
“
or
(c) he may concede that he has no knowledge of the main facts stated
by the applicant, but may deny them, putting applicant to
the proof
and himself giving or proposing to give evidence to show that the
applicant and his deponents are biased and untruthful
or otherwise
unreliable, and that certain facts upon which the applicant and his
deponents rely to prove the main facts are untrue.
The absence
of any positive evidence possessed by respondent directly
contradicting the applicant’s main allegations does
not render
such a case such as this free of a real dispute of fact.”
[31]
There is no reason why costs shouldn’t
follow the result. In the premises, the application is dismissed with
costs.
H P VAN NIEUWENHUIZEN
Acting Judge of the High Court
Gauteng Division of the High Court, Pretoria
Electronically submitted, therefore unsigned
Delivered: This judgment
was prepared and authored by the Judge whose name is reflected
on 28
December 2020 and is handed down electronically by circulation to the
parties/their legal representatives by e mail
and by uploading
it to the electronic file of this matter on CaseLines. The date
for hand-down is deemed to be 14 January
2021.
Date of hearing : Counsel for
the Respondent, and the Applicant, agreed that the matter was
capable
of being resolved on the papers as read with the heads of argument
filed and that absent the court requiring a hearing,
by way of video
conferencing or otherwise, the matter may be determined accordingly.
Accordingly, the matter was set down
for the motion court week of 9
November 2020 without a hearing and has been determined accordingly.
Date
of judgment: 14 January 2021
Appearances:
Gishen-Gilchrist
Inc.
Attorneys
for the Applicant
Counsel
for the Applicant: in person
Brendan
Müller Inc
Attorney
for the Respondent
Counsel
for the Respondent: G Oliver