SCA bars businessman’s fresh bid to recover R10 million taken from attorney’s trust account

A decade-long legal battle over R10 million paid into an attorney’s trust account has ended with the Supreme Court of Appeal (SCA) dismissing a businessman’s latest attempt to recover the money because his claim was lodged out of time.

How the money was lost

In April 2011, the businessman, Rodney Love, paid R10 million into the trust account of Turnbull and Associates Incorporated for the proposed purchase of shares in Sword Fern Trading. The sale did not go ahead and, according to the judgment, the R10 million was stolen.

Love also lent nearly R4.3 million to Sword Fern Trading in a transaction facilitated by Alberto Pavoncelli. By August 2011 Love asked for his money back; when it was not returned he applied to liquidate Sword Fern Trading and sued Turnbull for repayment. Pavoncelli gave Love a written undertaking to repay both the loan and the R10 million in May 2012, but did not pay. Sword Fern Trading was placed into final liquidation and Love obtained judgments for repayment, but the sheriff found no attachable property to satisfy the debt.

Claim to the Fidelity Fund and procedural history

Love lodged a R10 million claim with the Attorneys Fidelity Fund in October 2013. The Fund rejected the claim in 2014 on the basis that claims must be lodged within three months of a person becoming aware, or reasonably being expected to become aware, of the theft.

Love said he only became aware of the theft on 2 September 2013 after obtaining Turnbull’s business bank statements. The dispute progressed through several courts over the following years:

• In 2017 the High Court found Love had notified the Fund within the required period.
• A full bench upheld that finding in 2019.
• In 2021 the SCA overturned those findings, ruling that Love knew by 28 November 2012 at the latest that the R10 million had been misappropriated and therefore had lodged his claim too late.
• Love approached the Constitutional Court, which declined to hear the appeal in February 2022.

Separate review proceedings and the High Court extension

Separately, Love had launched review proceedings against the Fund. Those reached the High Court in 2023, where Love argued the Fund should have exercised its discretion to extend the three-month deadline. The High Court agreed and extended the deadline to 7 October 2013, effectively bringing Love’s claim back within time under that order.

However, the High Court’s order also rested on a factual finding that Love had not known his money was stolen until September 2013 a finding at odds with the SCA’s earlier 2021 decision.

SCA ruling: lower court bound by earlier decision

The SCA overturned the High Court’s extension. Judge of Appeal Ashton Schippers emphasised that the SCA had already decided in 2021 that Love knew by November 2012 at the latest that the funds were misappropriated, and said a lower court could not revisit that factual finding by taking a different legal route.

“The findings of the SCA and the High Court are directly contradictory factual findings concerning the same claimant, the same R10 million, the same theft and the same historical events,” Judge Ashton Schippers said.

The SCA described the High Court’s order as an “unlawful exercise of judicial power” and found that Love had effectively split the single dispute into separate pieces of litigation by first arguing his claim had been submitted on time and later seeking an extension. The court said both avenues should have been pursued together.

Outcome and costs

The SCA upheld the Fidelity Fund’s appeal, set aside the High Court order extending Love’s deadline, dismissed Love’s application and ordered him to pay the Fund’s costs, including the costs of two counsel used in the appeal.