IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: 16833/2007

In the matter between:

and

JUDGMENT : 24 MAY 2010

TRAVERSO, DJP:

1.1. that theft was committed;
1.2. by a practicing attorney;
1.3. of money entrusted by or on behalf of Rodel to the attorney;
1.4. that the money was so entrusted to the practitioner in the course of his practice.

4.1. Mr. and Mrs. Solomons were the co-owners of Erf 2603 George. They wanted to borrow R550 000,00 from a bank against the security of their property in order to carry out home improvements. Standard Bank had agreed to grant them a mortgage loan. The net bond proceeds would be R544 358,00.
4.2. Geduld was the attorney attending to the registration of the bond. Registration was expected to occur on 20 February 2007.
4.3. Pending the registration of the bond, Mr. and Mrs. Solomons wanted to raise bridging finance of R430 000,00.

4.5. The following day Mr. and Mrs. Solomons ostensibly signed Rodel's standard discounting agreement relating to bond transactions. The effect of the agreement was that Mr. and Mrs. Solomons sold their right to the net bond proceeds to Rodel. Accordingly Rodel acquired the right to claim R544 358,00 from Standard Bank pursuant to the mortgage loan agreement. By signing the agreement Mr. and Mrs. Solomons ceded and transferred to Rodel their right, title and interest in the net bond proceeds.
4.6. They nominated the trust account of Geduld as the account in which Standard Bank could deposit the bond proceeds. Rodel, by virtue of the cession notified Standard Bank that the net bond proceeds had to be deposited into Geduld's trust account on its behalf.

4.8. The practical effect of the provisions of the agreement regarding the payment of the two instalments was that Mr. and Mrs. Solomons would immediately receive R430 000,00 from Rodel (being the required bridging finance) and that on registration of the bond Rodel would recoup the said sum together with a discounting charge equal to 0.133% per day on R430 000,00 from date of payment of the initial instalment to date of registration of the bond. All other elements of the sale of the net bond proceeds would effectively be settled by set-off on registration of the bond.

R430 000,00) from date of payment (ie 16 January 2007) to date of registration of the bond.

(a)  to place a person in the possession of something;

(b)  subject to a trust in terms whereof money will be administered for the benefit of others.

"It may be accepted that by their directing that the cheque of R32 238,36 be made out in favour of his trust account, Kavin represented that he would be receiving the money on behalf of Gafin. But it has not been shown that in complying with that request, the Provident Fund impressed the payment with a trust; its intention was, presumably, to discharge what it and its then attorneys considered were the Fund's obligation under the contract of loan. They believed that it was a payment made to Kavin as the duly authorised agent of Gafin."