The Attorneys Fidelity Fund Board of Control v Love

Mr Rodney Love deposited R10 million into the trust account of Turnbull and Associates in April 2011, pending the conclusion of a written agreement for the purchase of shares in Sword Fern Trading (Pty) Ltd. The agreement was never concluded, negotiations collapsed, and Love demanded repayment of both the R10 million and a separate loan exceeding R4 million. It later emerged that the R10 million had been stripped from the trust account during 2011. Love pursued civil proceedings against the attorneys and Mr Pavoncelli, obtained judgments, and received nulla bona returns. He only notified the Attorneys Fidelity Fund of his claim on 7 October 2013. The Fund rejected the claim, alleging non-compliance with s 48(1)(a) of the Attorneys Act 53 of 1979, which required notice within three months of becoming aware of the theft. The trial court dismissed the Fund’s special plea and found in Love’s favour. Subsequent appeals raised issues of condonation for late filing and whether Love had complied with the statutory notice requirement.

The appeal succeeded with costs. The order of the full court was set aside and replaced with an order granting condonation for the late filing of the notice of appeal and upholding the Fund’s special plea with costs, effectively dismissing Mr Love’s claim against the Fund.

The judgment clarifies the application of s 48(1)(a) of the Attorneys Act by reaffirming that actual knowledge, or a conviction based on objective facts, triggers the three-month notice period for claims against the Attorneys Fidelity Fund. It underscores that claimants cannot delay notification pending further evidentiary confirmation once misappropriation is known. The case also reinforces principles governing condonation applications, particularly where written reasons for judgment are delayed.