THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 702/2022

In the matter between:

LEGAL PRACTITIONERS’ FIDELITY FUND
APPELLANT

and

GUILHERME CARLA MARSHALL
RESPONDENT

Neutral Citation:
Legal Practitioners’ Fidelity Fund v Guilherme (702/2022) [2023]
ZASCA 96 (13 June 2023)
Coram:
DAMBUZA ADP, SALDULKER, MOTHLE and MATOJANE JJA
and DAFFUE AJA
Heard:
18 May 2023
Delivered:
This judgment was handed down electronically by circulation
to the parties’ representatives by email, publication on the
Supreme Court of Appeal website, and release to SAFLII. The
date for hand down is deemed to be 13 June 2023 at 11h00.

Summary:
Claim against the Legal Practitioners’ Fidelity Fund (the Fund) – money paid
into attorney’s trust account subsequently stolen – whether the money was entrusted as
provided in section 26(a) of the Attorneys Act 53 of 1979 – claim dismissed by the Fund,
but upheld by the high court – appeal by the Fund dismissed.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: The Western Cape Division of the High Court, (Savage and
Kusevitsky JJ concurring and Ndita J dissenting, sitting as the full court on appeal):
The appeal is dismissed with costs.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Daffue AJA (Dambuza ADP and Saldulker, Mothle and Matojane JJA
concurring):

Introduction
[1] At the heart of this appeal is the nature of a payment into the trust account of
an attorney who has been struck from the roll since then, but failed to account fully for
the funds deposited into his trust account. It is common cause that the attorney
misappropriated the money. Ms Carla Marshall Guilherme (Ms Guilherme), the
respondent in the appeal before us, suffered a loss. She unsuccessfully lodged a claim
with the Legal Practitioners’ Fidelity Fund (the Fund), the appellant in this appeal, for
payment of the misappropriated amount whereupon litigation ensued.

Undisputed factual background
[2] It is apposite to deal with the relevant factual background before considering
the parties’ submissions. The following facts are common cause:
(a)
Ms Guilherme was previously married to Mr Bradley Clem Bartie (the
deceased) who committed suicide on 10 May 2012; his attorney, Mr Spencer was
appointed executor of the insolvent deceased estate.
(b)
Upon the death of the deceased Ms Guilherme became the sole beneficiary of
the proceeds of a life policy in the amount of R5 000 000, of which she received an
immediate cash payment of R50 000.
(c)
The balance of the death benefit in the amount of R4 950 000 was initially paid
into Ms Guilherme’s Nedbank account. Mr Spencer advised her to pay the money into

his trust account as these funds were at risk as a result of the deceased’s liabilities
towards his creditors. Consequently, this amount was returned to the insurer and
thereafter paid into a Capitec bank account which she had opened for that purpose,
where after the full amount was transferred into Mr Spencer’s trust account on/or
about 1 June 2012.
(d)
Ms Guilherme withdrew a total amount of R1.4 million over a period of time
from Mr Spencer’s trust account. On 1 December 2016 Mr Spencer transferred
R2 750 032.76 into her Nedbank account which she believed at that stage to be the
full amount owing to her.
(e)
Ms Guilherme became concerned with the ineffective manner in which Mr
Spencer was dealing with her matter and his advice in respect of the litigation by the
bank against her. She terminated his mandate and appointed a new attorney who
investigated the matter and made a reconciliation of the money held by Mr Spencer
and paid back to her. He discovered that an amount of R799 967.24 was still due to
her.
(f)
The new attorney further discovered that Mr Spencer had already been
suspended from practice in April 2017 and eventually struck from the roll in November
2017.
(g)
On receipt of a letter of demand addressed to him, Mr Spencer denied that any
amount was still outstanding, but Ms Guilherme believed that he had stolen her
money, an aspect which is not in dispute.
(h)
A claim was submitted with the Fund on 13 September 2018 on behalf of Ms
Guilherme, but eventually rejected on 15 July 2019 on the ground that there was no
entrustment as contemplated in s 26 of the Attorneys Act.
(i)
Ms Guilherme stated in her founding affidavit:
‘I would never, under any circumstances, have paid the monies to [Mr] Spencer for any other
reason than that he as an attorney advised me to do so. I also felt comfortable because [Mr]
Spencer was the executor of my late husband’s estate and the money was paid into [Mr]
Spencer’s trust account. At no stage had I any reason, as a traumatised and grieving widow,
not to trust [Mr] Spencer’.
This aspect was not disputed by the Fund. The Fund also did not dispute that Ms
Guilherme believed that Mr Spencer was acting in her best interest.

Litigation history
[3] On 17 November 2020 the Western Cape Division of the high court found in
favour of Ms Guilherme, ordering the Fund to pay to her the amount of R 799 967.24
plus interest a tempore morae and the costs of the application. It made a further order
directing Ms Guilherme’s attorneys to notify Standard Bank (the bank) upon receipt of
payment from the Fund into their trust account. The bank was a creditor of Ms
Guilherme’s deceased husband and she allegedly stood surety for the debt. At the
stage when the order was made, the litigation between the bank and Ms Guilherme
was pending. An application for leave to appeal was dismissed by the court of first
instance, but this Court granted leave to the appellant to appeal to the full court of the
Western Cape Division. The full court in a majority judgment dismissed the appeal.
Thereupon the Fund requested and obtained special leave to appeal to this Court.

Grounds of appeal
[4] Several grounds of appeal have been raised. The Fund submitted that payment
by the respondent of her money to an attorney for safekeeping to hide it from the
creditors of her late husband’s estate did not constitute an entrustment for purposes
of s 26 of the Attorneys Act 53 of 1979 (the Attorneys Act), but rather a deposit for
safekeeping. Also, Parliament could never have intended that payment of money into
the trust account of an attorney for such purpose would constitute an entrustment as
provided for in s 26. Furthermore, entrustment entails that the attorney entrusted with
the money is bound to hold it and pay it over (a) to a third person (b) upon fulfilment
of a particular condition, or the occurrence of a particular event, or (c) on the instruction
of the depositor upon conclusion of a particular matter or transaction which is already
in place or about to come into existence. Finally, the appellant alleged that it did not
seek to import a further ‘element’ into the concept of entrustment and the court a quo
erred in this regard.

Section 26 of the Attorneys Act
[5] Ms Guilherme’s claim, she being the successful plaintiff in the court of first
instance, was premised on subsec 26(a) of the Attorneys Act. It needs to be recorded
that at the stage when the action was instituted on 13 September 2018, the Legal
Practice Act 28 of 2014 which repealed the Attorneys Act was not yet applicable.

[6] The heading of s 26 is significant, it being ‘Purpose of the fund.’ The relevant
portion of the section, before its repeal stipulated as follows:
‘Subject to the provisions of this Act, the fund shall be applied for the purpose of reimbursing
persons who may suffer pecuniary loss as a result of
(a) theft committed by a practising practitioner, his clerk or employee, of any money or other
property entrusted by or on behalf of such persons to him or to his clerk or employee in the
course of his practice or while acting as executor or administrator in the estate of a deceased
person or as a trustee in an insolvent estate or in any other similar capacity.'

Evaluation of the parties’ submissions
[7] The Fund’s main submission is that the legal concepts of ‘deposit’ (depositum)
on the one hand and ‘entrustment’ as contemplated in subsec 26(a) of the Attorneys
Act on the other are clearly separate and distinct from one another. A deposit
(depositum), as alleged, is an agreement in terms whereof a thing is delivered for
gratuitous safekeeping returnable on demand.1 (I point out in the next paragraph that
this submission is based on an improper reading of the text.) By contrast, an
entrustment comprises (a) to place in the possession of something and (b) subject to
a trust, which connotes that the person entrusted is bound to deal with the property or
money concerned for the benefit of others and that the trustee is bound to hold and
apply the property for the benefit of some person or persons or for the accomplishment
of some special purpose. Counsel for the appellant also referred to the combined
effect of several judgments in support of his submission. As I shall show, his
submission must be seen in proper perspective. These judgments are fact-based and
do not entail that Ms Guilherme’s version does not amount to an entrustment.

[8] As mentioned in the previous paragraph, the Fund submitted that the payment
into the attorney’s trust account was a depositum, ie a deposit of monies into the
attorney’s trust account for safe-keeping and not an entrustment of such monies for
the purposes of the Attorneys Act. It submitted that the monies were deposited for the
purpose of hiding it from creditors of her deceased husband’s estate and could not be
regarded as an entrustment that enjoys protection of trust money in accordance with
the Attorneys Act. The Fund’s counsel elected to rely on a definition of ‘deposit’ in

1 F Du Bois et al Wille’s Principles of South African Law 9 ed (2007) at 962; 8 Lawsa 2 ed part at 300.

Wille’s Principles of South African Law, but failed to quote the definition in proper
context. The authors, relying on inter alia Grotius and Van der Linden and several
other authorities, defined deposit as follows:
‘Deposit (depositum or beaergeving [in Afrikaans: bewaargewing]) is a contract in which one
person (‘the depositor’) delivers to another (‘the depository’) a thing for safekeeping, either
gratuitously or for reward, on the understanding that the identical thing is to be returned on
demand in the same condition as received.’2
The authors also state that the subject matter of the deposit is usually movable
property, but may also be immovable property. This is far removed from money
deposited into an attorney’s trust account.

[9] As often stated a unitary exercise must be undertaken in the interpretation of
contracts and legislation, taking into account text, context and purpose.3 Recourse to
dictionaries to establish the ordinary meaning of words is often a good starting point,
but has its limitations. Different meanings are often recorded and this may give rise to
further questions and/or uncertainty. Litigants may selectively rely on a specific
meaning that suits their case the best. Having recognised the pitfalls in relying
slavishly on dictionary meanings given to words, it is worthwhile to consider what the
dictionaries tell us about the word ‘deposit’ (in Latin depositum). The Shorter Oxford
Dictionary provides three different meanings. The first two are irrelevant in casu, whilst
the third is ‘(t)o place in a repository; to commit to the charge of any one for safe
keeping or as a pledge; spec, to place in a bank at interest.’ A ‘depositarius’ is
according to the same dictionary ‘a person with whom anything is lodged in trust; a
trustee; one to whom anything is committed or confided.’ Fowler’s Modern English
Usage defines a depository as ‘a person or authority to whom something is entrusted,
a trustee.’ If these various definitions are considered, there can be little doubt that the
concepts of deposit and entrustment are not necessarily separate and distinct from
one another as submitted on behalf of the appellant. The judgments referred to in the
next paragraphs confirm that deposits of money into attorneys’ trust accounts are, in
appropriate circumstances, akin to entrustment as provided for in subsec 26(a).

2 Loc cit Wille’s Principles of South African Law at 962; 8 Lawsa 2 ed part 1 at 300; Price NO v Allied-
JBS Building Society 1979 (2) SA 262 (E) at 270B-C.
3 University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC 13,
2021 (6) SA 1 (CC) paras 65 and 66; Capitec Bank Holdings Limited & Another v Coral Lagoon
Investments 194 (Pty) Ltd & Others [2021] ZASCA 99, 2022 (1) SA 100 (SCA) par 25.

[10] In Industrial and Commercial Factors (Pty) Limited v Attorneys Fidelity Fund
Board of Control4 (ICF) the attorney attended to a transfer of property on behalf of the
seller. He arranged bridging finance in the course of his practice. The attorney devised
a fraudulent scheme and pretended to the appellant that the seller needed bridging
finance which was untrue. The appellant paid the money into the attorney’s trust
account and the court held that it was done with the intention that the attorney would
keep it for and on behalf of the seller who would instruct the attorney how to deal
therewith. Instead the attorney stole the money. The court held that the money was
entrusted to the attorney as is required by subsec 26(a) and that the Attorneys Fidelity
Fund should reimburse the appellant. Grosskopf JA, writing for the majority, dealt with
the matter in some detail. I quote:
‘After considering certain definitions of the word ‘entrust’…. Nicholas J concluded as follows:
“From these definitions it is plain that "to entrust" comprises two elements: (a) to place in the
possession of something, (b) subject to a trust. As to the latter element, this connotes that the
person entrusted is bound to deal with the property or money concerned for the benefit of
others (cf Estate Kemp and Others v McDonald's Trustee 1915 AD 491 at 499). "(The trustee)
is bound to hold and apply the property for the benefit of some person or persons or for the
accomplishment of some special purpose."
I do not understand these passages, and similar remarks in the case of SVV Construction
(Pty) Ltd v Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund 1993 (2) SA 577
(C) at 589G, to convey that the liability of the Fidelity Fund is limited to those cases where the
money or property concerned was impressed with a trust in the technical legal sense of the
word.’5 (My emphasis.)
The learned judge then dealt with the Afrikaans version of the section and the
dictionary meaning of ‘toevertrou’ (entrust) and continued:
‘Had it been the intention of the Legislature to give 'entrust' the technical legal meaning of
placing money or other property with an attorney subject to a trust, it would have used an
expression such as 'in trust aan hom gegee' in the Afrikaans text of s 26(a). In view of the
aforegoing I am satisfied that the appellant has shown a sufficient element of entrustment to
bring it within the ambit of s 26(a).’6
Later on the learned judge concluded:
‘In my judgment s 26(a) makes provision for reimbursement to either

4 Industrial and Commercial Factors (Pty) Limited v Attorneys Fidelity Fund Board of Control 1997 (1)
SA 136 (SCA).
5 Ibid at 144A-E.
6 Ibid at 144I-J.

(1) the person by whom the money has been entrusted; or
(2) the person on whose behalf the money has been entrusted;
provided that such person has suffered pecuniary loss.’7 (My emphasis.)

[11] In my view both courts a quo correctly considered the case presented to it by
Ms Guilherme. The court of first instance came to the correct conclusion that there
was no merit in the submission, as allegedly contended by the Fund, that a third
element was applicable in respect of entrustment. The case law relied upon by the
Fund and quoted in the judgment serves as proof that two elements are applicable,
but that the second element may have different purposes in mind. This is confirmed
in ICF, ie the property or money entrusted is to be held and applied for the benefit of
some person or persons or for the accomplishment of some special purpose.8 The
majority of the full court relied on ICF and came to the correct conclusion, to wit:
‘In light of the decision in ICF it must follow that the concept of entrustment for purposes of s
26(a) does not connote that the person entrusted is bound to deal with the property or money
concerned for the benefit of others, in the sense that it does not include monies deposited by
a depositor such as the respondent who will provide instructions as to the application of such
funds in trust in due course.’

[12] The full court distinguished the judgment of this Court in Attorneys Fidelity Fund
v Mettle Property Finance9 (Mettle), followed in Attorneys Fidelity Fund v Injo10(Injo)
from the facts in this case. In Mettle this Court confirmed that where the attorney acted
merely as a conduit in receiving money into his trust account to be paid out to another,
no entrustment arises. I quote:11
‘It follows that Mettle — in paying the initial purchase price in each transaction to Langerak as
the representative of the mortgagor or seller from whom Mettle had purchased a loan claim
or a seller's claim — was simply discharging its debt to such mortgagor or seller. The payment
was unconditional and, the moment the initial purchase price was paid into Langerak's trust
account in terms of the Master Agreement, Mettle's debt was discharged. Langerak was no
more than a conduit for the money. . .

7 Ibid at 145E-F.
8 ICF loc cit at 144C.
9 Attorneys Fidelity Fund Board of Control v Mettle Property Finance (Pty) Ltd ZASCA 133; 2012 (3) SA
611 (SCA).
10 Attorneys Fidelity Fund Board of Control v Injo Investments CC [2015] ZAWCHC 112; 2016 (3) SA
62 (WCC) par 32.
11 Mettle loc cit paras 15-16.

This being so, there was no 'entrustment' of money by Mettle to Langerak. In the words of FH
Grosskopf JA in the Industrial and Commercial Factors case:
“Where money is paid into the trust account of an attorney it does not follow that such money
is in fact trust money . . .If money is simply handed over to an attorney by a debtor who thereby
wishes to discharge a debt, and the attorney has a mandate to receive it on behalf of the
creditor, it may be difficult to establish an entrustment.”’

[13] It is reiterated that the second element of entrustment was absent in Mettle and
Injo. The unique factual circumstances in these two cases distinguish them from the
facts in casu. Here, Ms Guilherme acted on Mr Spencer’s advice. He was her
deceased husband’s attorney and appointed as executor of the insolvent deceased
estate. He used his intimate knowledge to advise her. Her money was deposited into
his trust account in the course of his practice to be held in trust for her until she ‘was
required to withdraw monies or when the estate was finalised’.

[14] Grosskopff JA remarked in ICF, as quoted above, that the legislature did not
have ‘a trust in the legal sense of the word’ in mind when s 26 was enacted. Even if
one accepts for a moment the reliance on the principle applicable to trusts, the Fund’s
argument must also fail. ‘Trust’ is defined as follows in the Trust Property Control Act
57 of 1988:
‘'trust' means the arrangement through which the ownership in property of one person is by
virtue of a trust instrument made over or bequeathed-
(a) to another person, the trustee, in whole or in part, to be administered or disposed of
according to the provisions of the trust instrument for the benefit of the person or class of
persons designated in the trust instrument or for the achievement of the object stated in the
trust instrument; or
(b) to the beneficiaries designated in the trust instrument, which property is placed under the
control of another person, the trustee, to be administered or disposed of according to the
provisions of the trust instrument for the benefit of the person or class of persons designated
in the trust instrument or for the achievement of the object stated in the trust instrument,
but does not include the case where the property of another is to be administered by any
person as executor, tutor or curator in terms of the provisions of the Administration of Estates
Act, 1965.’12

12 Section 1 of Trust Property Control Act 57 of 1988.

[15] Mr Spencer who received the money in trust could be equated to a trustee as
the money had been placed under his control for the benefit of Ms Guilherme, the
beneficiary. Mr Spencer as trustee was subject to a fiduciary obligation. Every trust
imports the element of holding or administering property in part for a person or object
other than the trustee. Nothing prevented Ms Guilherme as the founder and depositor
from being a beneficiary, or indeed the sole beneficiary.13 Therefore, there is no legal
basis on which it can be argued that Ms Guilherme as the depositor of the money to
be kept in trust may not benefit. The submission made on behalf of the appellant to
the contrary has no legal foundation.

[16] In Bic Southern Africa (Pty) Ltd v Attorneys Fidelity Fund Board of Control14 the
attorney failed to account to the client who had instructed him to invest the money in
an interest-bearing account pending compliance with foreign exchange requirements.
The money was not invested in accordance with the client’s express instructions as
envisaged in subsec 47(1)(g) of the Attorneys Act. The attorney fled and apparently
left the country. The court held that the dealings were inextricably part of the attorney’s
practice insofar as he had held himself out as an expert in the field of foreign exchange
matters. The Fund was held liable for the client’s loss. This judgment supports Ms
Guilherme’s case and certainly not that of the Fund as submitted on its behalf. A client
would be entitled to deposit an amount into his/her attorney’s trust account before
leaving the country for an extended overseas vacation with instructions to pay a
specified amount every month into his/her bank account to ensure that debit orders
charged against the account are met. This example is in line with what Ms Guilherme
did as advised by Mr Spencer. Entrustment for the purpose of subsec 26(a) must be
seen as an attempt by the legislature to protect the person by whom or on whose
behalf money was entrusted, that being the person who stands to suffer the pecuniary
loss. The proceeds of the policy fell into Ms Guilherme’s own estate. She was the
lawful recipient thereof and at liberty to apply it in any way she wished and/or as
advised.

13 Cameron et al, Honore’s South African Law of Trusts 5 ed (2017) at 11.
14 Bic Southern Africa (Pty) Ltd v Attorneys Fidelity Fund Board of Control 2003 (6) SA 757 (W).

[17] In Du Preez and Others v Zwiegers15 this Court dealt with a delictual claim and
the duty of an attorney where the depositor was not an existing client. The attorney
was held liable in delict in circumstances where he negligently made payment without
ascertaining what the depositor wanted done with the money. The Court stated the
legal principle as follows:
‘It was also wrong, in my view, to hold, as a corollary, that it was up to the depositor to look
after its own interests. Vis-à-vis the depositor the attorney is not just another member of the
public who is entitled to expect fellow citizens to take reasonable care to protect their own
interests. An attorney into whose trust account money is paid owes a duty to the depositor
even if the depositor is not an existing client of the practice. That duty, at the risk of repetition,
is to deal with the money in such a way that harm is not negligently caused, to the depositor
among others.’16
The court of first instance referred to this dictum and concluded that money can be
deposited into an attorney’s trust account pending instructions while the depositor is
not a client of the attorney. It held that such arrangement was not barred by law. The
full court relied upon this same judgment in support of its finding that Ms Guilherme
was entitled to rely on the professional advice of Mr Spencer to deposit the funds into
his trust account. Ms Guilherme would be entitled to claim from Mr Spencer based on
delict, but this does not affect her right to be reimbursed by the Fund for the loss
suffered.

[18] The court of first instance was aware of the pending action instituted against
Ms Guilherme as surety for the debt of her deceased husband. Therefore, it made a
further order in terms whereof her attorneys were required to inform Standard Bank’s
attorneys on receipt of the amount payable by the Fund. The minority judgment held
that it would be against public policy to allow Ms Guilherme to be reimbursed, the
reason being that no entrustment occurred as the payment was made ‘to evade
liabilities and creditors of the Respondent’s deceased’s husband’. It must be
emphasised that Ms Guilherme was the beneficiary of a policy taken out on the life of
her deceased husband. She was entitled to the proceeds that became an asset in her
estate. If the facts were different, there might have been room to agree with the
minority judgment, but we are bound by the particular facts of this case. In the majority

15 Du Preez and Others v Zwiegers 2008 (4) SA 627 (SCA).
16 Ibid para 21.

judgment this aspect was considered. It held that it ‘was not unlawful or contrary to
public policy in light of the respondent’s version under oath that she would withdraw
the money when required to do so, which could patently have included to pay any
debtor in due course’. I agree. Although there might have been a questionable motive,
the Fund elected not to make proper enquiries and present sufficient facts to show
that Ms Guilherme participated in a fraudulent scheme to hide her assets from her
creditors.

Conclusion
[19] I conclude that the Fund was not entitled to reject Ms Guilherme’s claim. Her
money was entrusted to Mr Spencer in accordance with subsec 26(a). She is entitled
to be reimbursed for the loss suffered consequent upon the misappropriation of the
funds by the attorney. Therefore, the appeal should be dismissed with costs.

Order
[20] The appeal is dismissed with costs.

________________________
J P Daffue
Acting Judge of Appeal

Appearances:

For appellant:
G Oliver
Instructed by:
Brendan Muller Inc, Cape Town

Van der Merwe & Sorour, Bloemfontein

For respondent:
G Van Rhyn Fouche
Instructed by:
David Bayliss Attorneys, Johannesburg

Symington & De Kok, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

13 June 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal

Legal Practitioners’ Fidelity Fund v Guilherme (702/2022) [2023] ZASCA 96 (13 June 2023)

Today, the Supreme Court of Appeal (SCA) dismissed an appeal against the decision of the full bench
of the Western Cape Division of the High Court (high court) with costs.

The facts of the matter were as follows:
a.
the successful applicant in the high court, Ms Guilherme, was the only beneficiary of a life policy
with a death benefit of R5 million payable upon the death of her husband at the time, Mr Bartie (the
deceased) who experienced financial difficulties and committed suicide;
b.
Mr Spencer, the deceased’s attorney who was appointed as the executor of the insolvent
deceased estate, advised Ms Guilherme that the proceeds should be paid into his trust account on her
behalf as these might be in danger as a result of the liabilities of her late husband’s insolvent estate;
c.
Ms Guilherme accepted Mr Spencer’s advice as she trusted him and believed that he was
acting in her best interests, whereupon she transferred the amount of R4 950 000 (R5 million less a
cash payment of R50 000 which was paid out to her) into Mr Spencer’s trust account on 1 June 2012
in the belief that the money would be safe and maintained for her in trust until she was required to
withdraw money or when the estate was finalised;
d.
Ms Guilherme withdrew a total amount of R1.4 million from the trust account over a period of
time and on 1 December 2016 Mr Spencer transferred R2 750 032.76 into her personal account after
having advised her that he was starting to wind down his practice;

e.
Mr Spencer never finalised the deceased’s estate and Ms Guilherme became concerned about
the ineffective manner in which he handled matters whereupon she approached a new attorney who
established that Mr Spencer had been struck from the roll of attorneys in 2017, that he failed to fully
account to her and still owed her an amount of R799 967.74;
f.
Ms Guilherme claimed that Mr Spencer misappropriated her money – which was common
cause in the litigation - and filed a claim with the appellant, the Legal Practitioners’ Fidelity Fund. It
dismissed the claim, the reason being that no entrustment had taken place as contemplated in s 26 of
the Attorneys Act 53 of 1979 which Act still applied then.

The appellant submitted that the payment into the trust account was a deposit for safe-keeping which
could not be equated with an entrustment of funds for purposes of s 26. It submitted that the facts did
not justify a finding that there was compliance with the second element of entrustment in that the money
was not paid with instructions to (a) be held for the benefit of others, (b) the accomplishment of some
special purpose or (c) the happening of some known future event. The SCA did not agree with the
appellant’s definition of deposit, but also held that the concepts of deposit (depositum) and entrustment
are not necessary separate and distinct from one another and that Ms Guilherme’s payment of her
money into the attorney’s trust account, based on the facts in the case, amounted to an entrustment.
The purpose of s 26 is to inter alia protect the person by whom money was entrusted, that person being
the one that stands to suffer pecuniary loss in the case of misappropriation.

~~~~ends~~~~