THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 179/2025
In the matter between:
LEGAL PRACTITIONERS’ FIDELITY APPELLANT
FUND BOARD
as successor-in-law to the
ATTORNEYS FIDELITY FUND BOARD OF
CONTROL
and
RODNEY ADRIAN LOVE FIRST RESPONDENT
THE MINISTER OF JUSTICE OF THE SECOND RESPONDENT
REPUBLIC OF SOUTH AFRICA
Neutral citation: Legal Practitioners ' Fidelity Fund Board v Rodney Adrian
Love and Another (Case no 179/2025) [2026] ZASCA 120
(17 September 2026)
Coram: SCHIPPERS, KOEN and VALLY JJA and REINDERS and
MOOKI AJJA
Heard: 1 September 2026
Delivered: 17 September 2026
Summary: Constitutional Law – principle of legality – High Court
issuing order contradicting finding of appellate court that claim against fidelity
2
fund filed out of time – unlawful exercise of judicial power – no observance of
stare decisis – high court’s order extending time to file claim against fund set
aside.
Civil Procedure – litigant not claiming relief in single cause of action – non-
compliance with once-and-for-all-rule – abuse of process.
3
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg (Van
Nieuwenhuizen AJ, sitting as court of first instance):
1 The appeal is upheld with costs, including the costs of two counsel where
so employed.
2 The order of the High Court is set aside and replaced with the following:
‘The application is dismissed with costs, calculated in accordance with
Scale C in rule 69(7) of the Uniform Rules of Court.’
________________________________________________________________
JUDGMENT
________________________________________________________________
Schippers JA ( Koen and Vally JJA and Reinders and Mooki AJJA
concurring)
[1] In 2013 the appellant, the Legal Practitioners ’ Fidelity Fund Board (the
Fund), in terms of s 26 of the former Attorneys Act 53 of 1979 (the Act),1 received
a claim for repay ment of R10 million by the respondent, Mr Rodney Love (the
claim). The claim was submitted by Mr Love’s former attorneys , together with
his affidavit made on 28 November 2012, in terms of rule 8(5) of the Uniform
Rules of Court (the rule 8(5) affidavit ). I n April 2011 Mr Love deposited
R10 million into the trust account of a firm of attorneys, Turnbull and Associates
1 Section 26 of the Act provided:
‘Subject to the provisions of this Act, the fund shall be applied for the purpose of reimbursing persons who may
suffer pecuniary loss as a result of-
(a) theft committed by a practising practitioner, his clerk or employee, of any money or other property
entrusted by or on behalf of such persons to him or to his clerk or employee in the course of his practice
or while acting as executor or administrator in the estate of a deceased person or as a trustee in an
insolvent estate or in another similar capacity.’
4
Incorporated (Turnbull), held with Nedbank, at the instance of Mr Alberto
Pavoncelli. That amount had to be utilised for the purchase of shares in Sword
Fern Trading (Pty) Ltd (Sword Fern Trading), of which Mr Pavoncelli was a
director. The sale did not materialise. The R10 million was stolen.
[2] In 2014 the Fund rejected the claim on the basis that the requirements of
s 48(1)(a) of the Act had not been met: Mr Love failed to give the Fund written
notice within three months af ter becoming aware of the theft. The main reason
for rejecting the claim was that in the rule 8 (5) affidavit, filed in provisional
sentence proceedings instituted against Mr Pavoncelli in the Gauteng Division of
the High Court, Johannesburg (the High Court), Mr Love states that the
R10 million had been tr ansferred out of Turnbull’s trust account ‘into the
[business] account of Turnbull’; and that Mr Pavoncelli had misappropriated that
amount.
[3] On 3 March 2015 Mr Love launched a review application in the High Court
against the Fund ’s decision to reject the claim; seeking an order that the Fund
reconsider the claim on the basis that ‘sufficient notice was given thereof’ ; and
alternatively, that the Fund’s ‘decision not to extend the period referred to in
s 48(1)(a) of the Act ’, be reviewed and set aside (the impugned decision s).
Further alternatively, Mr Love sought an order that s 48(1) (a) of the Act be
declared unconstitutional, because it infringes the fundamental rights to equality,
property and a fair trial. Mr Love has not, in his written submissions nor oral
argument, persisted with his constitutional challenge.
[4] The High Court (Van Nieuwenhuizen AJ) made an order in terms of which
the period within which Mr Love had to lodge the claim , was extended to
7 October 2013. The central issue on this appeal is whether that decision is
correct. The appeal is with the leave of this Court, the Supreme Court of Appeal
(SCA).
5
The facts and litigation history
[5] Although t he basic facts are uncontroversial, this case has a complex
history. In February 2011, following discussions with Mr Pavoncelli and others
relating to the purchase of shares in Sword Fern Trading , Mr Love was given a
memorandum of understanding regarding that transaction.
[6] In April 2011 , before a written agreement for the purchase of the shares
was signed, Mr Love paid the purchase price (R10 million) into the trust account
of Turnbull. The founding affidavit states that subsequently, Mr Love ascertained
that Mr Pavoncelli was allowed to use Turnbull’s trust account as if it w ere his
own, which was irregular and unlawful. Mr Love also lent the sum of nearly
R4.3 million to Sword Fern Trading. This loan was facilitated by Mr Pavoncelli.
[7] By August 2011 Mr Love became concerned about finalisation of the share
agreement and his dealings with Mr Pavoncelli; and asked for repayment of his
money. When it was not repaid, in October 2011 he applied for the liquidation of
Sword Fern Trading and instituted an action against Turnbull for repayment of
the R10 million in the High Court.
[8] On 15 May 2012 , and to avert the liquidation of Sword Fern Trading,
Mr Pavoncelli gave Mr Love a written undertaking to repay the loan made to that
company as well as the R10 million paid into Turnbull’s trust account, by 17 May
2012. In the rule 8(5) affidavit Mr Love states that Mr Pavoncelli furnished the
undertaking ‘because he . . . personally misappropriated the R10 million’.
[9] Mr Pavoncelli did not comply with the undertaking . In June 2012 Sword
Fern Trading was placed under final liquidation. Based on the undertaking,
Mr Love obtained provisional sentence against Mr Pavoncelli for payment of the
R10 million and the loan to Sword Fern Trading . He also obtained judgment
6
against Turnbull for payment of R10 million. Writs of execution were issued but,
in both instances, the sheriff found no property to attach to pay off the debt.
The action for repayment of R10 million
[10] On 13 August 2015 , and without withdrawing the review application,
Mr Love instituted an action in the High Court against the Fund, for payment of
the R10 million, interest and costs, on the basis that he had submitted the claim,
which the Fund unjustifiably rejected (the action) . The allegations in the
particulars of claim are the same as those in the review application, specifically
that the Fund should not have rejected the claim because Mr Love became aware
of the theft of the R10 million only on 2 September 2013, when he obtained copies
of Turnbull’s business account statements. The only difference between the
review application and the action is that in the review Mr Love alleges that the
Fund ought to have exercised its discretion under s 48(2) of the Act and extended
the period of three months envisaged in s 48(1).
[11] The Fund raised a special plea that the claim had rightly been rejected ,
because it had not been submitted within three months after Mr Love became
aware of the theft , as contemplated in s 48(1)(a) of the Act. The claim was
submitted on 7 October 2013. The Fund contended that as early as 15 May 2012
and no later than 28 November 2012, Mr Love knew that Mr Pavoncelli had
stolen his money.
[12] The trial came before Mokose AJ who dismissed the special plea . On
19 June 2017 the High Court made an order , inter alia, declaring that Mr Love
had complied with s 48(1) (a) of the Act , since he had notified the Fund of the
claim within three months of becoming aware of the theft . Leave to appeal was
refused.
7
[13] On 7 March 2018 and on petition, the SCA granted the Fund leave to appeal
to a full court of the High Court. The leave to appeal was limited to the order
dismissing the special plea.
[14] On 25 October 2019 the Full Court (Francis J, Grant AJ and Strijdom AJ)
dismissed the appeal with costs. The Fund then applied to th e SCA for special
leave to appeal against the order of the Full Court , which was granted on
5 February 2020.
[15] On 14 April 2021 the SCA, in a unanimous judgment, upheld the appeal
with costs. It held that the claim had not been submitted within three months after
Mr Love became aware of the theft as envisaged in s 48(1) (a) of the Act.
Consequently, the SCA set aside the Full Court’s order and replaced it with an
order in terms of which (i) the appeal to the Full Court was upheld with costs;
and (ii) the special plea was upheld with costs (the SCA order).
The appeal to the Constitutional Court and subsequent events
[16] On 6 May 2021 Mr Love applied to the Constitutional Court for leave to
appeal the SCA order. That Court issued directions concerning the review
application, which had not been heard by the High Court.
[17] On 11 February 2022 the Constitutional Court dismissed the application
for leave to appeal. It stated that it was not in the interests of justice to hear the
matter at that stage.
[18] On 18 May 2022 Mr Love proceeded with the review by applying for
condonation of the late filing of his heads of argument in that application . The
review application was heard on 7 August 2023 by the High Court ( Van
Nieuwenhuizen AJ) and judgment was delivered on 18 January 2024.
8
The High Court’s judgment
[19] The High Court ’s judgment may be summari sed as follows. In terms of
s 48(2) of the Act, Mr Love had requested the Fund to extend the period of three
months referred to in s 48(1) (a) and provided substantive reasons in support of
that request. However, the Fund failed to exercise its discretion in terms of s 48(2)
of the Act to extend the period within which written notice of the claim had to be
given.
[20] The court held that ‘[i]t is clear on the facts that Mr Love’s claim was
submitted as soon as practicable’; and that he could only submit his claim ‘once
he subjectively believed that the funds had been stolen, which occurred on
2 September 2013 ’. The indisputable facts , namely that Mr Love had in the
rule 8(5) affidavit stated that Mr Pavoncelli had personally misappropriated the
R10 million; that bank statements attached to th at affidavit showed that the
money had been transferred from Turnbull’s trust account to its business account;
and that Mr Pavoncelli had undertaken to repay the R10 million which had been
misappropriated, the court said , did not demonstrate that it was practicable to
submit the claim within the prescribed period. The court stated that it was
essential to ‘contextualise’ those facts.
[21] After the so-called contextualisation, the High Court held that the Fund’s
failure to exercise the discretion conferred by s 48(2) of the Act was materially
influenced by an error of law . The Fund failed to consider the reasons for the
extension properly or at all and its decision was unconstitutional and unlawful, as
envisaged in the Promotion of Administrative Justice Act 2 of 2000 (PAJA).
[22] The court accepted the submission by Mr Love’s counsel that the SCA
judgment deals with (i) the requirements for compliance with s 48(1)(a) of the
Act; (ii) the factual errors in the findings of the trial court and the Full Court on
9
the special plea; and (iii) whether that plea ought to have been upheld. The issue
before it, the court said, was ‘the failure of the Fund to consider the extension
application’.
[23] The High Court was correct in principle that s 48(2) constitutes a distinct
statutory inquiry. But that does not mean that the court could revisit a factual
question which the SCA had already finally determined. And this, when there
were no facts before it – other than the fact that it was not practicable for Mr Love
to submit the claim before obtaining Turnbull’s business accounts – to support an
extension of the three-month period. I revert to these aspects below.
[24] The High Court concluded that it was in as good a position as the Fund to
decide, in accordance with s 48(2) of the Act, whether to extend the period
contemplated in s 48(1)(a). Consequently, it made an order of su bstitution in
terms of s 8 of the PAJA and extended the period within which Mr Love had to
lodge the claim, to 7 October 2013 (the substitution order).
Was the High Court correct to grant the substitution order?
[25] The Fund contends that the High Court was mistaken in granting the
substitution order because that order directly contradicts the SCA order. Mr Love
disputes this. He submits that the High Court decided an entirely different
question, namely whether the Fund had complied with s 48(2) of the Act. Section
48(1)(a) concerns the point in time when a claimant became aware of the theft of
trust funds or should have become aware of the theft by exercising reasonable
care. Section 48(2) on the other hand, grants the Fund discretion to extend the
period within which a claim may be lodged. The Fund’s contention, so it is
submitted, elides the distinction between the two.
10
[26] Section 48 of the Act provided:
‘Claims against fund: notice, proof and extension of periods for claims.
(1) No person shall have a claim against the fund in respect of any theft contemplated in section
26 unless–
(a) written notice of such claim is given to the council of the society concerned and to
the board of control within 3 months after the claimant became aware of the theft or by
the exercise of reasonable care should have become aware of the theft; and
(b) within 6 months after a written demand has been sent to him by the board of control,
the claimant furnishes the board with such proof as the board may reasonably require.
(2) If the board of control is satisfied that, havi ng regard to all the circumstances , a claim or
the proof required by the board has been lodged or furnished as soon as practicable, it may in
its discretion extend any of the periods referred to in subsection (1).’
[27] When the claim was submitted to the Fund, Mr Love did not in the covering
letter by his attorneys request an extension of the period within which it had to be
lodged. However, after the Fund had conducted its inquiry at which Mr Love was
present, in a subsequent letter dated 31 July 2014, his attorneys expressed the
following opinion:
‘[W]e can see no reason why our client ’s claim can be rejected in terms of the provisions of
section 48 nor, in the event that factually our client’s claim was submitted outside of the three-
month period (which is denied), that there exists good reason not to extend the applicable time
limits, having regard to the merits of our client’s case.’
[28] In the review application, it was argued that this was a request to the Fund,
in terms of s 48(2) of the Act, to extend the period referred to in s 48(1)(a). But
that is not the issue. Rather, it is whether the High Court could, in deciding the
s 48(2) question, make a factual finding directly at odds with a factual finding
s 48(2) question, make a factual finding directly at odds with a factual finding
that was essential to the SCA’s final judgment, concerning the same parties and
the same R10 million.
11
[29] In this regard, Mr Love faces two insurmountable hurdles. The first is that
the High Court had no power to issue the substitution order; and the second, that
the substitution order is precluded by the once-and-for-all rule.
The High Court had no power to issue the substitution order
[30] The Fund’s reasons for rejecting the claim, based on the rule 8(5) affidavit,
are quoted in the High Court’s judgment. In sum, the reasons are the following.
Mr Pavoncelli had personally misappropriated the R10 million. He had signing
powers on Turnbull’s trust account (copies were attached to the claim). On 4 April
2011 the balance in the trust account was R10 060 322.30. No further noteworthy
deposits were made into that account. Between 4 April 2011 and 28 July 2011
large amounts had been transferred periodically to Turnbull’s business account .
By the end of July 2011, the entire R10 million deposited by Mr Love had been
stripped out of the trust account. On 15 May 2012 , and because he had
misappropriated the R10 million, Mr Pavoncelli offered to pay that amount to
Mr Love. Thus, b y no later than 28 November 2012 and probably as early as
15 May 2012, Mr Love knew that Mr Pavoncelli had stolen the R10 million .
Accordingly, the claim was submitted well outside the three -month period
prescribed in s 48(1)(a) of the Act. It was therefore rejected.
[31] These facts are recorded in the SCA’s judgment, to which the High Court
referred extensively. The High Court also quoted the following findings by the
SCA:
‘On 15 May 2012 Mr Pavoncelli undertook to pay the R10 million to Mr Love. The only
reasonable inference to be drawn from this undertaking is that Mr Pavoncelli had
misappropriated the R10 million from the trust account. At his meeting with the Fund, Mr Love
said that when he got the undertaking it was clear that the R10 m illion was not in the trust
account. On 22 November 2012 Mr Love was given copies of the trust account which
account. On 22 November 2012 Mr Love was given copies of the trust account which
confirmed that the R10 million had been paid out of the trust account in 2011. On 28 November
2012 and in the affidavit Mr Love signed in the provi sional sentence proceedings he said that
Mr Pavoncelli gave him the undertaking to pay the R10 million “because he has personally
12
misappropriated the R10 million as will appear from what is said hereunder ”. At the trial
Mr Love said that he gave no mandate to release the R10 million from the trust account, yet
the money had been withdrawn in 2011. He also admitted that the R10 million was withdrawn
from the trust account within a space of two months. This he knew from the trust account bank
statements.
There was no need for Mr Love to wait until September 2013 when he got the copies of the
bank statements of Turnbull and Associates’ business account before notifying the Fund of his
claim. How the Trust money was spent is irrelevant to his claim. From what is set out above it
is apparent that Mr Love knew in October 2011 or at the latest 28 November 2012 that there
had been a wrongful dealing or appropriation by Turnbull and Associates, alternatively
Mr Pavoncelli, of the money entrusted to them in the sen se of them having been required by
Mr Love to keep the money in the trust account until the happening of some known future
event. This event did not occur.’2
[32] Despite these findings and the SCA order, the High Court held:
‘Before 2 September 2013 which is the date upon which Mr Love was provided the business
statements, he did not know that his funds had been transferred out of Turnbull’s business
accounts, and therefore that they had been stolen in the common law sense of the term.’
And further:
‘It would not have been practicable for Love to submit a claim until the date on which he
learned, subjectively that the funds had been stolen, which occurred on 2 September 2013.’
[33] It follows that the findings of the SCA and the High Court are directly
contradictory factual findings concerning the same claimant, the same
R10 million, the same theft and the same historical events. They are not merely
different interpretations of law. The SCA finally determined the factual issue as
to when Mr Love became aware of the theft of the R10 million, which is binding
on the High Court.
on the High Court.
[34] The High Court’s finding that before 2 September 2013 Mr Love did not
know that the funds had been stolen , is essential to its conclusion that the claim
2 Attorneys Fidelity Fund Board of Control v Love [2021] ZASCA 44 paras 32-33.
13
was lodged as soon as practicable under s 48(2) of the Act. The court therefore
purportedly exercised the s 48(2) discretion on a factual premise it was not legally
entitled to revisit. The High Court had no power to reopen and reverse the SCA’s
findings, by simply characterising the review application as a s 48(2) matter. On
this point, counsel for Mr Love submitted that the court merely ‘viewed the same
facts through a different lens’.
[35] But that cannot be. The SCA found, as a proven fact, that by 28 November
2012 at the latest, Mr Love knew that the R10 million had been misappropriated;
and that he did not need to wait until September 2013 when he obtained
Turnbull’s business account statements, to lodge the claim. The High Court,
however, found that before 2 September 2013, Mr Love did not know that the
R10 million had been stolen ; and that it was not practicable to lodge the claim
before that date. This is not a consideration of proven facts ‘through a different
lens’. It is a contrary finding about what Mr Love knew and when he knew it. The
High Court did not merely apply s 48(2) of the Act; it rejected the SCA’s factual
finding. It was not entitled to treat that finding as if it had never been made. And
the court’s departure from that finding was neither collateral nor immaterial: it
formed the basis of the substitution order.
[36] For this reason alone, the issuance of the substitution order, purportedly in
terms of s 8 of the PAJA, was an unlawful exercise of judicial power. It is settled
law that judges are bound by the principle of legality. The judicial function is not
an unrestricted licence for a court to do what it considers just; judicial power must
have a legal foundation. In this regard, the observation by Harms DP in NDPP v
Zuma,3 is specifically apposite to this case:
3 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (4) BCLR
393 (SCA) (NDPP v Zuma).
14
‘[F]or reasons that are impossible to fathom, the court below failed to adhere to some basic
tenets, in particular that, in exercising the judicial function, judges are themselves constrained
by the law.’
[37] Aside from non-compliance with the principle of legality, a further basic
tenet which the High Court disregarded, is the doctrine of stare decisis
(precedent) – in this case the rule that a lower court is bound by the decision of
an appellate court . In Camps Bay Ratepayers ’ Association4 the Constitutional
Court affirmed that the doctrine of precedent requires courts to follow decisions
of higher courts. The reason is not simply a matter of respect for courts of higher
authority: precedent is intrinsically linked to the rule of law, a founding value of
the Constitution , because without it, certainty, predictability , reliability and
uniformity would dissipate.
[38] The rule of law thus requires legal certainty and institutional coherence.
The SCA held that Mr Love knew at the latest by 28 November 2012 , that the
R10 million had been stolen and that there was no need for him to wait until
September 2013 before lodging the claim. These findings were part of the
reasoning essential to the SCA order. The High Court’s contrary finding that
Mr Love did not know of the theft until 2 September 2013, effectively means that
a litigant who has lost in the SCA can return to the High Court by a different
procedural route, and obtain a result based on a factual proposition which the
SCA has rejected. The autho rity of an appellate court and the finality of its
judgments cannot be allowed to be undermined in this way. The High Court’s
disregard of the doctrine of precedent is a further reason why the substitution
order is incompetent.
4 Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison and Another [2010] ZACC 19; 2011
(2) BCLR 121 (CC); 2011 (4) SA 42 (CC) (Camps Bay Ratepayers’ Association) para 28.
15
[39] What is clear is that if it found that the Fund had committed a reviewable
irregularity, the High Court had a discretion under s 8 of the PAJA as to the
appropriate remedy . This is a discretion in the true sense. An appellate court
ordinarily may not interfere unless the discretion was not exercised judicially ;
was influenced by wrong principles or a misdirection on the facts ; or could not
reasonably have been reached by a court properly directing itself to all the
relevant facts and principles.5
[40] But a remedial discretion did not grant the High Court the power to decide
the case afresh on whatever factual basis it considered appropriate. This is not a
case where there were any other circumstances which made it impracticable for
Mr Love to lodge the claim. In deed, save for the allegation that the claim could
be lodged only when he obtained Turnbull’s business account statements,
Mr Love placed no facts before the Fund to support an extension of the period for
the submission of the claim. Despite this, the High Court found that Mr Love did
not know of the theft before 2 September 2013. This finding, contrary to SCA’s
findings, was then used to establish the critical foundation that Mr L ove had
lodged his claim as soon as practicable, which justified the extension of the period
for the submission of the claim.
[41] It follows that the High Court could not use its remedial discretion under
s 8 of the PAJA to contradict and overrule a binding SCA determination . The
purported exercise of that discretion in making the substitution order was both
unlawful and materially misdirected.
5 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another [2015]
ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) para 88.
16
The review application is precluded by the once-and-for-all rule
[42] The common law once-and-for-all-rule, described by Van Winsen AJA in
Custom Credit Corporation6 as ‘part of the very foundation of our law’, is this:
‘The law requires a party with a single cause of action to claim in one and the same action
whatever remedies the law accords him upon such cause. This is the ratio underlying the rule
that, if a cause of action has previously been finally litigated between parties, then a subsequent
attempt by the one to proceed against the other on the same cause for the same relief can be
met by an exceptio rei judicatae vel litis finitae. The reason for this rule is given by Voet, 44.2.1,
(Gane’s translation, vol 6, p. 553) as being
“to prevent inextricable difficulties arising from discordant or perhaps mutually
contradictory decisions due to the same suit being aired more than once in different judicial
proceedings”.’
[43] Most recently, this Court has affirmed an essential component of the rule:
all damages, present and future, must be claimed in a single action .7 Where a
party has a single cause of action, the law requires him to claim in one and the
same action, whatever remedies it gives him on that cause of action.
[44] In Evins,8 Corbett JA explained that the purpose of the once -and-for-all
rule is to prevent a multiplicity of actions based on a single cause of action and
to ensure finality in litigation: a party should not be twice vexed in the same
matter. Importantly, Evins applied the rule even to damages that had not yet
manifested themselves or become capable of assessment at the time of the first
litigation. The litigant must, where the cause of action permits it, claim both
present and prospective loss in the same action. This is consistent with the objects
of the rule: it is in the interests of the parties and the public that there should be
efficiency and economy in the conduct of litigation ; judgments should be final
efficiency and economy in the conduct of litigation ; judgments should be final
and certain; and courts must be protected from an abuse of process.
6 Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) (Custom Credit Corporation) at 472A-B.
7 TN obo BN v MEC For Health, Eastern Cape, and Others [2026] ZASCA 14; [2026] 1 All SA 500 (SCA); 2026
(3) SA 507 (SCA) paras 1-2.
8 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) (Evins) at 835E.
17
[45] The rule has two closely related aspects: (i) a litigant cannot split a single
cause of action into successive claims for different relief; and (ii) once the cause
of action has been finally adjudicated, the later proceeding may be met by a
defence res judicata (a matter already judged).9 The critical question is whether
the later remedy – the review of the impugned decisions, more specifically,
whether the Fund should have exercised its discretion under s 48(2) of the Act,
arises from the same cause of action, namely the liability of the Fund to repay the
R10 million to Mr Love.
[46] Applied to the present case, Mr Love’s claim comprises a single cause of
action – a claim under the Act against the Fund, for the loss of R10 million on
account of theft. In accordance with the requirements of s 48 of the Act, he was
required to show (i) that the claim was submitted within the period prescribed in
s 48(1)(a); and (ii) if it was not, that there were circumstances which rendered it
impracticable to submit the claim timeously, and that the Fund should exercise
its discretion to extend that period under s 48(2). In the action, Mr Love claimed
that R10 million had been entrusted to Turnbull; that the money was stolen; that
the Act entitled him to reimbursement from the Fund; and that the claim was
lodged within the period prescribed in s 48(1)(a). In the action t he SCA found
that the s 48(1) (a) requirement had not been met . Mr Love subsequently
proceeded with the review application , alleging that the Fund had not exercised
its discretion under s 48(2) . This is nothing more than splitting a single dispute
into successive litigation.
[47] When Mr Love instituted the action, the Fund had already rejected it for
non-compliance with s 48(1) (a) of the Act. On 31 July 2014, before th e action
was instituted, Mr Love’s attorney wrote to the Fund requesting that the
applicable time limit be extended. So, Mr Love knew that the claim had been
applicable time limit be extended. So, Mr Love knew that the claim had been
9 Mmabasotho Christinah Olesitse N.O. v Minister of Police [2023] ZACC 35; 2024 (2) BCLR 238 (CC) paras
51-52.
18
rejected; that there was a dispute as to when he acquired knowledge of the theft;
and that alternatively, he required the Fund to extend the period for the lodgment
of the claim in terms of s 48(2) of the Act . Indeed, in the relief sought in the
review application, he asked for an order that the date contemplated in s 48(1)(a)
of the Act, be extended to 7 October 2013, in terms of s 48(2).
[48] This is not a case which required Mr Love, by the e xercise of reasonable
diligence, to raise the s 48(2) relief: he was aware of it throughout, and certainly
when he instituted the action. Both the action and the review were based on the
same facts. Therefore, in the action he should have pleaded and sought an order
compelling the Fund to exercise the discretion under s 48(2) of the Act. In these
circumstances, the inescapable inference to be drawn from the facts, is that
Mr Love chose not to pursue the s 48(2) relief in the action.
[49] On the facts, an extension under s 48(2) was not only an issue that ought
to have been raised in the action; it could have been decided by the trial court .
The issue properly belonged to the subject of that litigation and was essential to
the validity or otherwise of the claim. It was not decided, simply because it was
not raised, when Mr Love could and should have done so. What Mr Love could
not do, was to claim a different remedy in successive proceedings, relating to a
single cause of action – whether the Fund was liable for repayment of the
R10 million. For this reason, too, the appeal must succeed.
Order
[50] The following order is issued:
1 The appeal is upheld with costs, including the costs of two counsel where
so employed.
2 The order of the High Court is set aside and replaced with the following:
19
‘The application is dismissed with costs, calculated in accordance with
Scale C in rule 69(7) of the Uniform Rules of Court.’
__________________
A SCHIPPERS
JUDGE OF APPEAL
20
Appearances:
For appellant: P Hodes SC and G Oliver
Instructed by: Brendan Müller Inc, Wynberg
Van der Merwe & Sorour, Bloemfontein
For first respondent: G Marcus SC and N Ferreira
Instructed by: Malherbe Rigg & Ranwell, Boksburg
Symington & De Kok Inc, Bloemfontein.