Pretoria - A woman who lost money she paid into the trust account of an advocate for him to pay an estate agent and have a property transferred into her name, turned to court after her money disappeared.
Onolia Rabalao told the Gauteng High Court, in Pretoria, that she transferred R160 000 into the trust account of the advocate after she was instructed to do. Months later nothing happened with the transfer of the property. When she enquired about it the advocate said he had been “scammed” by the estate agent when he transferred the money.
Rabalao turned to the Legal Practice Council – the watchdog over the legal profession – but its Fidelity Fund Board refused to reimburse her.
The primary function of the fund is to protect the public against legal practitioners in cases where they paid money into legal practitioners’ trust accounts, but lost it through theft.
One of the reasons for not wanting to reimburse her was the argument that she should have known that the advocate was not a conveyancer and thus could not assist her with registering the property in her name.
But Rabalao said she was a lay member of the public and when she was told to follow this route by paying the money into the advocate’s trust account, she did so without question.
She explained that towards the end of September 2020, she saw an advertisement for a property for sale in Pretoria. The property was advertised on Facebook by an estate agency, whom she called, and they made arrangements for her to view it.
After the transfer did not happen, the applicant lodged a complaint with the Legal Practice Council and the Fidelity Fund in order to recover the money.
The fund instituted an investigation against the advocate. He in turn claimed that he transferred the R160 000 received from the applicant to the estate agent as he was also doing debt collections for the estate agency.
The fund dismissed the applicant’s claim on the basis that the money was not paid in the course of his practice as a trust account advocate.
It argued that the advocate could not have transferred the property into the applicant’s name because he was not a conveyancer and it thus absolved the fund.
Judge Elmarie van der Schyff said at the time of the commissioning of the theft of the trust funds, the advocate was in possession of a valid Legal Practitioner’s Fidelity Fund Certificate.
She said since he was regulated by the Legal Practice Council, the fund cannot escape liability by introducing further requirements of what services advocates with trust accounts can perform.
The judge commented that in pursuing the transformational objective of facilitating access to the legal profession and access to justice, the Legal Practice Council provides for a category of legal practitioners generally referred to as trust account advocates.
“No reason exists that would justify a finding that providing clients with advice, or assistance during negotiations regarding the sale of immovable property is a function that is ‘properly that of an attorney’, and thus reserved for attorneys only.
“Where a purchaser pays the purchase price and transfer and registration fees into an advocate’s trust account, it is paid in the trust account within the scope of the trust account advocate’s practice and received by him in his capacity as a legal practitioner with a trust account,” the judge said.
She set aside the fund’s decision not to entertain the applicant’s claim and she said the matter must be reconsidered by the Fidelity Fund.
Pretoria News