IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.: 5456/2009
In the matter between:
RODEL FINANCIAL SERVICES (PTY) LTD					Applicant
and
VELILE TINTO CAPE INC						First Respondent
FATIMA FLORIS							Second Respondent
ABDURAGMAAN FLORIS						Third Respondent

		JUDGMENT DELIVERED: FRIDAY 10 DECEMBER 2010 

SALDANHA, J
[1] This application is based on an alleged discounting agreement between the applicant and the second and third respondents.

[3.] The applicant claimed that it had paid the amount of R206 659,00 on the 24 February 2008 into the trust account of the first respondent.

[5.] The application was not opposed by the second and third respondent but only by the first respondent.

2005. More particularly the first respondent claimed that in so far as the applicant had not informed the respondents that it had accepted the application (the discounting agreement signed by the second and third respondent) and as the applicant itself had not signed the agreement no contract had come into existence between the applicant and the second and third respondents. The first respondent further claimed that there was no contract between the applicant and the first respondent in which it was obliged to repay any amounts paid by the applicant into its trust account.

"Secondly, the affidavits reveal certain disputes of fact. The appellant nevertheless sought a final interdict, together with ancillary relief, on the papers and without resort to oral evidence. In such a case the general rule was stated by Van Wyk J (with whom De Villiers JP and Rosenow J concurred) in Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957(4) SA 234 (C) at 235E-G, to be:
"	where there is a dispute as to the facts a final interdict should
only be granted in notice of motion proceedings if the facts as stated by the respondent together with the admitted facts in the
applicants affidavits justify such an order	 Where it is clear
that facts, though not formally admitted cannot be denied, they must be regarded as admitted."

[9.] Ms Kusevitsky who appeared on behalf of the respondent submitted that insofar as there was no contractual relationship between the applicant and the first respondent and that the first respondent had accepted that the amount paid by the applicant was intended for its clients (second and third respondents) it had simply acted on its clients instructions in dispensing the amounts and there was no obligation on the part of the first respondent to repay the amount to the applicant.

[10.] During the course of argument there was much debate between the court and both Mr. Sievers and Ms Kusevitsky with regard to the obligations of an attorney who receives amounts paid into his trust account on behalf of clients.

[12.] Ms Kusevitsky on the other hand submitted that the first respondent has merely acted as a conduit on behalf of the second and third respondent and upon receipt of the amount from the applicant accepted that it was intended for them and upon their instructions dispensed the amounts.

[13.] Insofar as their are significant disputes of fact in this application this court is unable to resolve such disputes on the papers before it. In the circumstances this matter is to be referred to trial in the fourth division.
[14.] With regard to the question of costs the court is of the view that it is appropriate that it be determined by the trial court after having considered the versions of the respective parties in this matter.

In the circumstances the following order is made:
1	The matter is referred to trial in the fourth division.
2	The question of costs is to be determined at the trial thereof.

								

Rodel Financial Services (Pty) Ltd v Velile Tinto Cape Inc.