IN THI NOltTH GAUTINCI MIOM COURT, l'RITOlll!A
nsaYlblQ gfl 19\ITt!Ae!SIQAI

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In the matttr betweon

CAii NO: 1911912014
9/6/.;:Jo/(,

MARION LU!llll!

And
MARK filNKeLSTilN	FIRST Rl;SPONtlNT PROUD HERITAGE PROPl!IRTll!S 11ll (PTY)LTP	81!l00NO RESPONDl!NT THE STANDARD BANK OF SOUTHAFRICAN 1..IMITEO	THIRD RESPONDENT THE SHERIFF OF THE HIGH COURT,STANOTON SOUTH	FOURTH RiSPONOl!!NT THE LAW SOCIETY OF THE NORTHERN PROVINCES	FIFTH RESPONDENT ESEll!T8E TRADING & PROJECTS (f."fY)LTD	SIXTH Rl!SPONOINT
QUANTUM LEAP INVESTMENT 81(PTY)LTD		Sl!VliNTH  RESPONDENT MAICHAOO fllROJl!CT MAN/lGEMiNT (PTV) LTD	llGHTH ltl!SPONOENT

JUDGMENT

MOSE!AMO AJ

INTRODUCTION
[1]	The 1ppllcant Htka an order in the following terma:

'1. That the sum of R851, 220.00 atteehed by the Fourth Reepondent on the instructions of and pursuant to a writ of attachment iaeued by the Second respondent from the monies standing to the credit of the trust banking account conducted by the Flr&t Respondent under account number 20320892, on or
about 24 October and removed from the First Respondent's said trust banking account on or about 25 November 2014, be deelared the sole al'ld absolute property of the Applicant:
2. That the attachment by the Fourth Reapof!dent of the sum of R651,220.00 on
the instruction of end pureuaflt to 1writ of 1ttechment issued by the Second Respondents, from the monies etandiAg to the c*lt of the trust banking acount conducted by the Flret Reapondent at the G41rmiston branch of Third
I	Reapondent under account number 20320892, on or about 24 Ootober and removed fftlm the flirat Respondent'• eald trust banking eooount on or about 25 November 2014 be set aside;
'3. That the Third Respondent be hereby lnteri:llcted from paying the said sum of R651,221.00 Into the First Respondent's trust account;
4. That the Third Respondent make payment of the sum of R651,220.00 to the Appllcant'a attorneys of record, namely Rapeport Incorporated at Nadbank, account number 1916072313, Killarney Branch, Branch code 191608;
5. That the First Respondent pay to the Applicant damages in the form of Interest on the aum of R602, 500.00 at the prime rate plus 2% per annum thereon from 12 December 2014 to the date that the Third Respondent complies with the provisions of 4 above, In full;
6. That the coa1a of this Application be paid by the Flrat and the Seeoncl
Respondent (and any other Respondent that opposes this Application), on the

scale as between attorney and client, Jolntly and severally, the one paying the other to be absolved.'

[2] Only the second respondent opposea the application. Tha 1eeond respondent brought an application for the condonatlon of the late flllng of the answering affidavit which although the applicant Initially oppo1ed tho applleatlon for oondonetion In her papers, at the heiring of the application the opposition Wll abandoned.
[3] According to the aecond respondentIha delay in filing the answering affidavit waa aa a result of the application for jolnder of the 6"', "f'h and 5th respondenll as parties to this application which was necessary. There was a further delay which was
oceaasloned by an error which lee! t,he 5th reapondent being joined later than the 5th and "f'h respondents. I find that the aecond reapondent haa shown good cause for non compliance with the rulff and further that the applicant wlll not auffer any
'-	prejudice and therefore the condonatlon lll?Pllcation should suceeed.

(4] Applicant'• counsel Indicated that an out of court aettlemant was reached with the first reapondent and therefore they will only be seeking costa against the second respondent. The aettiement agreement wa• handed in.
BACKGROUND

[5]	On or about 25th September 2014 at Johanne1burg applicant entered Into 1 written agreement with Shamaln D1yal (Dayal) In respect of which eha sold her property, a sectional unit situated at section 11 Tlbldabo, aituated at 9 Link road, Corlett Gardens, Johannesburg for the sum of R1 200 000. Applicant instructed the first respondent who is her cousin, to attend to the convenyanclng In respect of the
a111ld sale. Dayal paid an amount of R1 215 844.60 and R22 000 in respect of the purchase consideration and the aIcosta for registration of the transfer on the 181 November 2014.

[5] Subsequent to the sale of her property applicant purchased a new property at 46 Oowerwlew, Johannesburg. Bennet McNaughton are the conveyancers who were appclnted to transfer the property to the applicant. The first applicant paid an amount of R500 000 to Bennet McNaughton on the 8111 Decomber 2014 which is only part of

the money held by him in trust. The first respondent failed to pay the balance required by Bennet McNaughton to effect the transfer of the property to applicant's names.

{7] Applicant obtained a loan In the sum of R602 500 after the first respondent indicated to Bennet McNaughton that he does not have the balance in his trust account as the money had been attached In a totally unrelated matter. Applicant required the amount of R602 500 to onaure tht 11lmultllntou11 trim•ftr of tho property
sht sold and the prof)flrty the bou.ght. Soth prepel'tlea were aubeequently tran1ferred
on the 12ltl December 2014.

[8]	The facts relating to the attachment of the money in the first respondent's trust account is as follows:

[8.1) There was a dispute between the second respondent repreeented by Jacobue Coenradus Scholtz (Scholtz) and Esebetse Trading & Projects (Pty) l.td (Esebetse)
and Quantum Leap Investment 8" (Pty) Ltd (Quemtum} who are f1111t respondent''-.
clients. The first respondent was required to pay over the money held In trust to Scholtz for the benefit of the second respondent in respect of a court order.
[8.2) When the f1111t respondent failed to pay over the money, secxmd respondent Issued a writ of attachment against movable goods of Esebetu for R651 220. The writ authorises attachment Of an amount Of R355 000 from the flrat reapondent'a trust banking account. The  fourth respondent attached an amouJ'lt of R851 220 from the first respondent's trust account.
[9] The second respondent raised numerous defences to the applicant's application. Among others the second respondent raised the defence that (a) the money that was attached does not belong to the applicant; (b) attachment not completed as second respondent has J'!Ot been notifl8d of the attachment by the sheriff; (c) non-joinder of Dayal.
[1OJ I firstly wish to deal with the applieant's right to bring this application. The applicant Is claiming an order that the money that was attached by the fourth respondent from the first respondent's account be declared her soleimd absolute property. An applicant for a declaratory relief must set out her contentions regarding her alleged right and the Interest she has In the right.

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[11J It is submitted on behalf of the applicant that the money that was attached by second respondent and fourth 1"9spondent belongs to the applicant as it was deposited by Dayal as consideration for the purchase of her property. It is further submitted that the money is easily identifiable as at the time Dayal deposited the money, there was no money in the first respondent's trust account. It was further contended that the trust aocount protects the applicant as the firat respondent is required to keep a record of trust credltora.
[12) It ia submitted on behalf of the rnpondent that 1"1• applicant'• Qontentlon that the money that was attached by aeoond and fourth iupondent belongs to her la fundamentally flawed. The reapondent contends that once the money is depoei ed Into a bank account It i;>ecomes property of the bank, that the account holder
•cqulres a personal right against the bank In respect of the amount deposited.

[13) Respodent relied on the case of Trustees of the Insolvent Estote of Graham
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Ernest John Whitehead v Leon Jean Alexandre Durmt1 and Absabank (323/12)
[2013) ZASCA 19 (20 Mah 2013) where It waa stated:	'\.

'Generally, where money Is deposited into a bank account of an aocountholder It mixes with other money and, by virtue of commixtio becomes property of the bank regardless of the circumstances in which the depo•it was made or by whom it was made. The account-holder has no r•al right of ownership of the montty standing to his credit but acqulf"8 a personal right to payment of that amount from the bank, arising from their bank-customel'9 relationship. This la also so where, a• In thia case, no money in Its physical form is In Issue, and the payment by one bank to another, on a client'• instruction, is no more that an entry In the receiving bank's account. The bank's obligation, as owner of the funds credited to the customer's account, is to honour the customer's payment instructions. Where the depoaltor ls not the account. holder he relinquishes any right to the money and cannot reverae the transfer without the accountholder's concurrence.'

[14) It Is a long established principle that money when deposited into a bank acoount it ceazes to be the princlpal's money; It la then the money of the banker who la bound to return an equivalent by paying a similar amount to that deposited on demand. See R v Stanbridge 1959 (3) SA 274 at 278 B H

[15) In Rosseau NO v Standard Bank of SA LTD 1976 (4) SA 104 CPD at 106 B·D
,Watermeyer J stated 'The legal relationship between a banker and a customer whose account is In credit is that of the debtor and creditor. The customer is a creditor who has a claim against the bank in the sen1e that he has a right to have it make payments to him, or to his order, on cheque• drawn by him up to th amount by which his account 11In credit (aee Ormerod v Deputy Sh9riff Durban, 1965 (4) SA 670 D at.p673; De Hart NO v Klelnl'lana and Othere, 11'170 (4) SA 383 (0) at p387; S v Katie 1985 (1) SA 118 (AO) at p124) Ownerahlp of the mon1y 1tandlng to a
cuatomtr'1 credit In his bank account, although it la losely apokon of as the
·cuatomer's money•, is however vested in the bank...'

[16]	It was contended on behalf of the applicant that the money held by an
attorney In his trust account Is different in that the mandatory record keeping makes
,,	the money ls easily identifiable. 878(1) of the Attorney• Act. 53 of 1979 compels a

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I	practising attorneito keep a separate truat account at a banking lnetlMion within the Republic and to dep01it the,..in the money held or received by him on account of any pel'ion.

[171	In terms of s78(7) of the Attorneys Act the amount etanding to the credit of an attorneys' truet account shell not form part of that attorneys a11ete end as 1uch shall not be liable to attachment at the instance of any creditor of sueh an attorney. Imuet state that the money attached was not attached at the lnatanee of the firat , respondent'• creditors and therefore it doe1not fall foul of 178(7).

(18]	The nature of the attorney's trust account was dealt with In the case of Fuhri v Geyser NO and Another 1979 (1) SA 747 (N) at 749 C.E by Hefer J as follows:

'Despite the separation of trust moneys from an attorneys assets thus affected by s33(7), It is clear that trust creditors have no control over the trust account: ownership in the money in the account vests In the bank or other Institution In which It has been deposited (S v Kotze 1966 (1) SA 118 (A) It 124), and it Is the attorney who ie entitled to operate on the account and to make withdrawals from It (De Villiers NO v Kaplan 1960 (4) SA 476 (C) ). The only right that trust creditol'1 have, is the

right to payment by the attorney of whatever la due to them, and it la to that extent that they are the attorneys creditors. The right to payment plainly arises from the relationahip between the parties and has nothing whatsoever to do with the way in which the attorney handles the money in his trust aceeunt.'

[19] In the eaae of Louw NO and Others v S J Coetzee and Others, [2003] 1ALL SA 3A (SCA) (29 November 2002) the court considered whether the deposit• In an attorney's trust form part of the bank's aesete. The respondent. in thie matter had auecesafully argued In the court a quo that the funds depoaitecl by an attorney In term• of s78(2A) of the Attorney& Act were precludld from becoming part of the bank's assets In terms of Act 28 of 2001. The court found that th• prlnclple that money once dePQ&lted Into a bank account becomes the property of the bank and that the bank had an obllgation to return not the exact money deposited, but an equivalent amount had not been altered by the expanded definition of trust property
in Act 28 of 2001.
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[20]  It Is not in diapute that: (a) the money deposited by Dayal Into fiflt
.. respondent's trust account was to be paid to the applicant upon the transfer of the
"	property; (b) the money that was attached by the second and fourth respondent In
the first respondent'• truat aceourit was deposited by Dayal. Upon transfer of the applicant's property to Dayal, the applicant became the trust creditor of the flrat respondent.

[21)	Following the appro11cll In the Duma• oaae end Fuhri'• Cliff Dayal 111 tha depositor, reMnqulshed any right to the money when ahe deposited it il'lto first responden's trust eccount.	First respondent as the trust account holder hn a personal right to payment of that amount from the bank which arises from the bank. QUstomer relationship. The money that was depoglted by Dayal becomea the property of the bank by virtue of commbctlo. Although the cases dealt with the sequestration of the account holders, the principle applicable is the aame.

, (22]	It therefore follows that although the applieal'lt became entitled to the amount
,paid in by Oayal after the transfer of her property to Dayal, she cannot claim the money that was attached as her money. Upon the tral'IHr of her property the
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applicant became entitled to the money and thus became a trust creditor of the first respondent.

[23) The applicant therefore has • olalm agalnet the flrtt reapondent and not the bank. In my view flrat reepondent a1the aceount holder Is the one who ha• the right to claim the money that w11attached by the aeoond and the fourth respondent and not the applicant. In the result Ifind that the applicant has failed to prove that she has the right to bring thl1 application and therefore on that basis alone the application stands to be dismissed. In view of the above conclusion it Is thereforv not necesaary for me to deal with the reat of the defences.

[24] I now turn to deal with the l11ue of coats. It Is common cause th•t the dispute relSUlted from the flrat respondent'• failure to comply with a court order granted in favour of the '800nd respondent and also hia failure to comply with his obligations to
,•	pay the money paid by Dayal to Bennet McNaught as in1tructed by the applicant.
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[25]  The first respondent did not oppose the application but entered Into a
Httlement agreement with the applicant. It does not appear th1t the firat respondent did anything to recover the attached money.

[28) It has frequently been emphasized that In awarding coatl , the court has a dl8cretlon to be exercised Judicially upon oonslderation of the facts of each case. Further that the law contemplates that the court will weigh the i11ues In the case. tha
.,   ,	conduct of the partlea end any other olreurnatanee which may h1111 a bearlr19 or1 the iaaue of the coata and then make auch order as to coata 11would be fair and just between the parties.

[27] In my view the second reapondent and the applicant were both victims of the first respondent's unproffeulonal conduct. Itherefore find that this ia one caHwhere the ccate should not follow the results.

In the reeult Imake the following orders:

The applicant's late filing of the answering affidavit is hereby condoned. 2.The application is dismissed.
3. Each party to pay its own costs.

P O MOSEAMO ACTING JUDGE OF THE HIGH COURT

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