King and Others v Attorneys Fidelity Fund Board of Control and Another

The appellants, numbering over 100 individuals, companies and trustees, suffered financial losses after depositing money into the trust account of a firm of attorneys for purposes of an investment (factoring) scheme. The attorneys misappropriated the funds. The appellants claimed compensation from the Attorneys Fidelity Fund under the Attorneys Act 53 of 1979. However, Parliament had amended the Act in 1998 to exclude compensation for monies deposited with attorneys for investment purposes outside the ordinary course of practice. Most deposits occurred after the amendment. The Fund relied on the amendment as a defence. The appellants challenged the constitutional validity of the amendment, alleging that Parliament failed to comply with its constitutional obligation under section 59 of the Constitution to facilitate adequate public involvement in the legislative process.

The appeal was struck from the roll for lack of jurisdiction, with costs awarded against the appellants, including the costs of two counsel.

The case is significant for clarifying the division of constitutional jurisdiction between the Constitutional Court and other courts, particularly regarding challenges alleging failure by Parliament to fulfil constitutional obligations. It draws an important distinction between different sources of statutory invalidity and confirms that only the Constitutional Court may decide whether Parliament or the President has failed to fulfil a constitutional obligation under section 167(4)(e).