Probest Projects (Pty) Ltd v The Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund

Probest Projects (Pty) Ltd entrusted R9.1 million to attorney Izak Minnie to be held in his trust account for the purchase and transfer of immovable properties. Minnie misappropriated the funds. Probest later claimed compensation from the Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund under the Attorneys Act 53 of 1979. The Fund raised a special plea that Probest failed to institute action within three months of becoming aware, or when it should reasonably have become aware, of the theft as required by s 48(1)(a) of the Act. The parties agreed to a stated case under Rule 33(1), accepting the inquiry evidence and affidavits as the correct factual position. Both Probest’s representative (Mr Annandale) and Minnie testified that Probest only became aware of the theft in late November or December 2009.

The appeal was upheld with costs. The order of the full court was set aside and replaced with an order dismissing the Fund’s special plea with costs.

The case clarifies the application of s 48(1)(a) of the Attorneys Act regarding when a claimant becomes aware, or ought reasonably to become aware, of theft of trust funds. It affirms that courts must respect agreed facts in a stated case under Rule 33(1) and may not substitute conjecture for evidence. The judgment also reinforces principles governing the drawing of inferences from circumstantial evidence and the onus on the Fidelity Fund when raising a special plea.