THE LAW SOCIETY OF THE NORTHERN PROVINCES
PROVIDED WITH NO GUARANTEES AS TO COMPLETENESS, ACCURACY OR OTHERWISE
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ATTORNEYS ACT 53 OF 1979 CHAPTER II FIDELITY FUND (Heading substituted by s.13 of Act 87 of 1989) |
| 25. | Continued existence of Fidelity Fund. — |
| The fund established by section 8 of the Attorneys' Admission Amendment and Legal Practitioners' Fidelity Fund Act, 1941 (Act 19 of 1941), shall, notwithstanding the provisions of section 86, continue to exist under the name the Attorneys Fidelity Fund. (S.25 substituted by s.13 of Act 87 of 1989) |
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| 26. | Purpose of fund. — |
| 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 candidate attorney or his/her employee, of any money or other property entrusted by or on behalf of such persons to him or her or so to his or her candidate attorney or employee in the course of his or her 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; and (b) theft of money or other property entrusted to any employee referred to in paragraph (cA) of the definition of "estate agent" in section 1 of the Estate Agents Act, 1976 (Act 112 of 1976), or an attorney or candidate attorney referred to in paragraph (d) of the said definition, and which has been committed by any such person under the circumstances contemplated in those paragraphs, respectively, and in the course of the performance — (i) in the case of such an employee, of an act contemplated in the said paragraph (cA); and (ii) in the case of such an attorney or candidate attorney, of an act contemplated, subject to the proviso thereof, in the said paragraph (d). (S.26 substituted by s.3 of Act 60 of 1982 and by s.15 of Act 87 of 1989) |
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| 27. | Fund to vest in and to be held in trust by board of control. — |
| (1). | The fund shall vest in and be administered by a board of control to be known as "The Attorneys Fidelity Fund Board of Control". (Sub-s (1) substituted by s.16 of Act 87 of 1989) |
| (2). | The fund shall be held in trust by the board of control for the purposes mentioned in this Chapter. |
| (3). | The board of control may under its name sue and be sued. |
| 28. | Constitution of board of control. — |
| (1). | The board of control shall consist of — (a) the serving presidents of all societies; and (b) three members of each society elected annually by the council of the society. (Para. (b) substituted by s.18 of Act 62 of 2000) |
| (2). | The council of a society may in respect of each member elected by it under subsection (1) appoint an alternate member from among the members of the society. |
| 29. | Period of office of members of board of control. — |
| An elected member of the board of control shall hold office until his or her successor has been elected and, unless another is elected in his or her place in any year, he or she shall be deemed to have been re-elected. | |
| 30. | Vacation of office by members of board of control. — |
| A member of the board of control shall vacate his or her office if he or she — (a) becomes mentally ill; (b) ceases to be a member of the society the council of which elected him or her; (c) becomes insolvent or makes any arrangement or composition with his creditors; (d) ceases to practice; (e) is convicted of any offence which, in the opinion of the council which elected him or her, debars him or her from serving as a member of the board of control; (f) resigns and his or her resignation is accepted by his or her society and the board of control. |
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| 31. | Chairman and vice-chairman of board of control. — |
| (1). | The board of control shall annually elect a chairman and a vice-chairman. |
| (2). | If the chairman and vice-chairman are both absent from any meeting of the board of control, the board shall from among its number elect a chairman for that meeting. |
| 32. | Meeting of board of control. — |
| The board of control shall meet at such times and places as it or its chairman may determine from time to time. (S.32 substituted by s.17 of Act 87 of 1989) |
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| 33. | Quorum. — |
| Ten members of the board of control shall constitute a quorum for any meeting thereof. (S.33 substituted by s.19 of Act 62 of 2000) |
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| 34. | Decisions and chairman's casting vote. — |
| (1). | A decision of the majority of the members of the board of control present at any meeting thereof shall, subject to the provisions of subsection (2), be the decision of the board of control. |
| (2). | In the event of an equality of votes at any meeting of the board of control, the chairman shall have a casting vote in addition to his or her deliberative vote. |
| 34A. | Committees of board of control. — |
| (1). | (a) The board of control may appoint one or more committees to assist it in the carrying out of its duties, the performance of its functions and the exercise of its powers, may at any time increase or reduce the membership of any such committee and may fill any vacancy on any such committee. (b) The board of control may designate one of the members of a committee appointed by it in terms of paragraph (a) as chairman of that committee and, if no such designation is made, the members of that committee may from among their number elect a chairman. |
| (2). | The board of control may assign to a committee appointed by it in terms of subsection (1), such of its powers as it may deem fit, but shall not be divested of any power which it may have assigned to a committee, and may amend or withdraw any decision of any such committee. |
| (3). | The board of control may require any committee appointed in terms of subsection (1) either generally or specially to enquire into and to advise the board of control on any matter in connection with the duties, function or powers of the board of control. (S.34A inserted by s.18 of Act 87 of 1989) |
| 35. | Validity of resolution signed by all members of board of control. — |
| A resolution of the board of control contained in a writing and signed by all members of the board shall be valid although no meeting was held to pass that resolution. | |
| 36. | Revenue of fund. — |
| The fund shall consist of — (a) the annual contributions by practitioners and interest paid to the fund in terms of this Act; (b) the revenue obtained from time to time from the investment of the fund; (c) money given or advanced to the fund by any society; (d) money recovered by the fund in terms of this Act; (e) money received on behalf of the fund from any insurance company; (f) other money lawfully paid into the fund. |
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| 37. | Banking account. — |
| Money in the fund shall, pending the investment or application thereof in terms of this Act, be paid into an account at a banking institution or building society to the credit of an account to be known as "The Attorneys Fidelity Fund Account". (S.37 substituted by s.19 of Act 87 of 1989) |
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| 38. | Certificate in respect of liabilities of fund and investment of money in fund. — |
| (1). | The board of control shall appoint an actuary to determine on or before 31 march in any year the amount which in that actuary's opinion will be required during the next ensuing year ending on 31 December, for the purposes of the fund's obligations in terms of section 45, and such actuary shall furnish the board of control, on or before the first-mentioned date, with a certificate setting out the amount so determined. |
| (2). | The board of control shall within 30 days after receipt thereof submit such certificate to the Minister, and the Minister shall, after receipt of the said certificate, determine the amount which in his or her opinion will be required during the said ensuing year for the purposes referred to in subsection (1). |
| (3). | Such money in the fund as exceeds the amount determined under subsection (2) may be invested in the manner prescribed under section 81 (2) (b). |
| (4). | So much of the amount determined in terms of subsection (2) as is not immediately required for the purposes referred to in subsection (1) in any financial year, as well as so much of the money referred to in subsection (3) as is not invested as contemplated in that subsection, shall, subject to the provisions of section 46, be invested in such Government and other securities as may be prescribed. (S.38 substituted by s.2 of Act 80 of 1985) |
| 39. | Audit. — |
| (1). | The accounts of the fund shall be audited by an accountant appointed by the board of control. |
| (2). | A person appointed under subsection (1) shall, at least once in every year and not later than a date to be determined by the board of control, draw up a balance sheet and profit and loss account of the fund and forthwith submit certified copies thereof and of his report thereon to the chairman of the board of control and to each council. |
| 40. | Insurance contracts for purpose of indemnifying fund. — |
| (1). | The board of control may in its discretion enter into a contract with any person or company carrying on fidelity insurance business in the Republic whereby the fund will be indemnified to the extent and in the manner provided in such contract against liability to pay claims under this Act. |
| (2). | A contract referred to in subsection (1) shall be entered into in respect of practitioners generally. |
| (3). | (a) A claimant against the board of control shall not have — (i) any right of action against any person or company with whom a contract of indemnity has been entered into in terms of this section, in respect of such contract; or (ii) any right to any money paid by the insurer in accordance with such contract. (c) Money paid by the insurer in accordance with such contract shall be paid into the fund for appropriation by the board of control. |
| 40A. | Acquisition, forming and administration of insurance company or scheme. — |
| The board of control may — (a)(i) acquire or form, and administer, a public company; or (ii) together with any other person or institution establish a scheme, underwritten by a registered insurer, so as to provide insurance cover, subject to the provisions of the Insurance Act, 1943 (Act No. 27 of 1943), to practitioners in respect of claims which may proceed from the professional conduct of such practitioners; (b) enter into deeds of suretyship to the satisfaction of the master of the Supreme Court so as to provide security on behalf of a practitioner in respect of work to be done by such practitioner as executor in the estate of a deceased person, or as trustee in an insolvent estate, or as curator to the person or property in the case of a person who is unable to manage his own affairs, or in any other similar capacity, or by any other person in such capacity where a practitioner acts as agent for the person concerned; and (c) levy premiums and fees for the provision of such insurance or security, as the case may be. (S.40A inserted by s.4 of Act 102 of 1991) |
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| 41. | Possession of fidelity fund certificates by practitioners practising on own account or in partnership. — |
| (1). | A practitioner shall not practise or act as a practitioner on his or her own account or in partnership unless he or she is in possession of a fidelity fund certificate. |
| (2). | Any practitioner who practises or acts in contravention of subsection (1) shall not be entitled to any fee, reward or disbursement in respect of anything done by him while so practising or acting. |
| (3). | The provisions of this Chapter shall not apply in respect of any person admitted and enrolled as a conveyancer under Act 23 of 1904 (Natal). |
| 42. | Application for an issue of fidelity fund certificate. — |
| (1). | A practitioner practising on his or her own account or in partnership, and any practitioner intending so to practise, shall apply in the prescribed from to the secretary of the society concerned for a fidelity fund certificate. |
| (2). | Any application referred to in subsection (1) shall be accompanied by the contribution (if any) payable in terms of section 43. Contributions to fund by practitioners — (a) Upon receipt of the application referred to in subsection (1), the secretary of the society concerned shall, if he or she is satisfied that the applicant has discharged all his or her liabilities to the society in respect of his contribution and that he or she has complied with any other lawful requirement of the society, forthwith issue to the applicant a fidelity fund certificate in the prescribed form. (b) A fidelity fund certificate shall be valid until 31 December of the year in respect of which it was issued. |
| (3). | (a) Upon receipt of the application referred to in subsection (1), the secretary of the society concerned shall, if he or she is satisfied that the applicant has discharged all his or her liabilities to the society in respect of his contribution and that he or she has complied with any other lawful requirement of the society, forthwith issue to the applicant a fidelity fund certificate in the prescribed form. (b) A fidelity fund certificate shall be valid until 31 December of the year in respect of which it was issued. |
| (4). | Any document purporting to be a fidelity fund certificate which has been issued contrary to the provisions of this Act shall be null and void and shall on demand be returned to the society concerned. |
| 43. | Contributions to fund by practitioners. — |
| (1). | (a) Subject to the provisions of this section, every practitioner, practising on his or her own account or in partnership shall, annually, when he or she applies for a fidelity fund certificate, pay the amount of R20, or such greater amount as may be fixed by the board of control from time to time, to the fund. (b) Any practitioner referred to in paragraph (2) who commences to practise on or after 1 July in any year shall in respect of that year pay half of the contribution which is payable in terms of that paragraph for that year. |
| (2). | When the board of control or a society on behalf of the board of control gives notice in writing to any practitioner who is liable to pay a contribution referred to in subsection (1), that the amount of the fund, including the investments thereof, and after deduction of the amount of all unpaid claims and other liabilities outstanding against the fund, is R1 000 000, or exceeds that amount, such practitioner shall, subject to the provisions of subsection (3), as from a date determined by the board of control and specified in such notice, no longer be required to pay the annual contribution referred to in subsection (1). |
| (3). | When the board of control or a society on behalf of the board of control gives notice in writing to a practitioner referred to in subsection (2) that the amount of the fund, including the investments thereof, and after deduction of the amount of all unpaid claims and other liabilities outstanding against the fund, is less than R1 000 000, the provisions of subsection (1) shall, as from a date determined by the board of control and specified in such notice, again apply in respect of such practitioner, and any notice referred to in subsection (2) shall lapse. |
| (4). | A practitioner who applies under section 42 for the first time for a fidelity fund certificate while the provisions of subsection (1) do not apply to a practitioner referred to in subsection (2) by virtue of the provisions of the latter subsection, shall pay a single contribution of R50 to the fund: Provided that the provisions of subsection (3) shall apply mutates mutandis in respect of such practitioner. |
| (5). | Notwithstanding the provisions of subsection (2), the board of control may require a practitioner in respect of whom the fund has been applied as a result of any of the circumstances referred to in section 26, to pay the annual contributions referred to in subsection (1) to the fund for such period as the board of control may determine. |
| (6). | (a) A practitioner who is not in possession of a fidelity fund certificate and who intends to commence to practise on his or her own account or in partnership, shall, before commencing so to practise, give notice of such intention to the secretary of the society of the province in which he or she intends to practise, and he or she shall thereupon become liable to pay to the fund the amount of the contribution referred to in subsection (1) or (4), as the case may be. (b) Any practitioner who is in possession of a fidelity fund certificate but who intends to commence to practise for his or her own account or in partnership in the area of jurisdiction of any provincial division other than that in which he or she usually practises for his or her own account or in partnership, shall give notice of such intention to the secretary of the other society concerned. |
| (7). | All contributions payable under this section shall be paid to the society, and every society shall remit the contributions to the board of control within seven days of receipt thereof. |
| 44. | Board of control may refund contributions in certain cases. — |
| If any practitioner in respect of whom no claim has been made under this Act or in respect of whom such claim has not been sustained, dies or ceases to practise, the board of control may in its discretion, if it is satisfied that no claim is likely to be made, pay to him/her or his/her estate a sum not exceeding the aggregate amount of his or her contributions to the fund. | |
| 45. | Payments from fund. — |
| (1). | Subject to the provisions of this Act, the fund shall be applied for the following purposes, namely — (a) all claims, including costs, payable in terms of this Act, and interest as provided in subsection (2); (b) in the discretion of the board of control, a contribution towards expenses incurred by a claimant in establishing his or her claim; (bA) in the discretion of the board of control, the costs or any portion thereof incurred by a claimant in exhausting the legal remedies contemplated in section 49(1); (Para. (bA) inserted by s.20 (a) of Act 87 of 1989) (c) legal expenses incurred in defending any claim made against the fund or otherwise incurred in relation to the funds; (d) premiums payable in respect of contracts of insurance entered into by the board of control in terms of section 40; (e) refunds made to any member or to his or her estate in terms of section 44; (f) expenses involved in the administration of the fund, including allowances to members of the board of control in respect of their services or their reasonable travelling expenses incurred in connection with the management of the fund; (g) in the discretion of the board of control, the bank charges or any portion thereof paid by a practitioner in connection with the keeping of his or her trust account; (Para. (g) substituted by s.20 (b) of Act 87 of 1989) (h) in the discretion of the board of control, the premium of any portion thereof payable in respect of a professional indemnity group insurance policy taken out in favour of practitioners; (i) in the discretion of the board of control, the costs or any portion thereof incurred by a practitioner in connection with the obtaining of a fidelity fund certificate; (j) in the discretion of the board of control, the defraying of the whole or any portion of the expenses incurred by any society for the purposes of or in connection with any steps taken by it under section 22 (1), 78 or 83 (13); (Para. (j)substituted by s.3 of Act 80 of 1985) (k) loans and interest thereon; (l) other moneys which are payable or may be paid from the fund in accordance with this Act or the regulations made thereunder. |
| (2). | The board of control may in its discretion pay an amount out of the fund as interest on the amount of any judgment obtained or of any claim admitted against the fund: Provided that — (a) ... . (b) the rate of interest shall not exceed the prevailing rate of interest prescribed under section 1 (2) of the Prescribed Rate of Interest Act, 1975 (Act 55 of 1975). |
| 46. | Board of control may make grants from fund for education or research in law and for enhancement of professional standards of practitioners. — |
| The board of control may, if the amount of the fund exceeds the amount determined under section 38 (2), out of the excess in question — (a) make grants with the approval of the Minister on such conditions as the board of control may determine with such approval — (i) to any person, any university established by an Act of Parliament, any university college established under the Extension of University Education Act, 1959 (Act 45 of 1959), any university contemplated in section 2 (1) (aA) of this Act or section 3 (2) (a) (iii) of the Admission of Advocates Act, 1964 (Act 74 of 1964), or a person connected with any such university or university college or to any training centre in the Republic designated by the Minister for the purposes of — (aa) education or research in the science of law or in legal practice; (bb) education or research in any related science or practice in so far as such education is given to a student of a law faculty at any such university or university college, or to a student at any such training centre, or in so far as such research is done at any such university, university college or training centre; (cc) the furtherance of the administration or dispensation of justice; (ii) to any association or society of attorneys, notaries or conveyancers in a country which has been designated by the Minister by notice in the Gazette after consultation with the presidents of the various societies, for the purposes of enabling such association or society to establish or maintain a fund for facilitating the practice of law and may, with such approval, at any time when it deems fit revoke such grant or any part thereof; (b) pay an honorarium or compensation to any person for services rendered at the request of the board of control with the object of enhancing the professional standards of practitioners. (S.46 amended by s.3 of Act 46 of 1983 and substituted by s.4 of Act 80 of 1985) |
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| 47. | Limitation of liability of fund. — |
| (1). | The fund shall not be liable in respect of any loss suffered — (a) by any person as a result of theft committed by a practitioner while such practitioner is in the employment of any person who is not a practitioner; (b) by the wife of a practitioner as a result of any theft committed by that practitioner; (c) by any practitioner as a result of any theft committed by any partner or employee of that practitioner or by any employee of any partnership in which he or she is a partner; (d) by any practitioner as a result of any theft committed by any member or employee of a professional company of which he or she is a member; (e) as a result of any theft committed by any practitioner whose fidelity has been guaranteed by any person, either in general or in respect of the particular transaction, to the extent to which it is covered by the guarantee; (f) by any person as a result of any theft committed by any practitioner after such person has received a notification in writing from the secretary of a society or the board of control warning him or her against the employment or continued employment of such practitioner; (g) by any person as a result of theft of money which a practitioner has been instructed to invest on behalf of such person after the date of commencement of this paragraph. (Para. (g) added by s.1 (a) of Act No. 115 of 1998) |
| (2). | A claim for reimbursement as contemplated in section 26 shall be limited, in the case of money entrusted to a practitioner, to the amount actually handed over, without interest, and, in the case of securities or other property, to an amount equal to the average market value of such securities or property at the date when written demand is first made for their delivery, or, if there is no average market value, the fair market value as at that date of such securities or other property, without interest. |
| (3). | Only the balance of any loss suffered by any person after deduction from the loss of the amount or value of all money or other benefits received or receivable by him or her from any source other than the fund, may be recovered from the fund. |
| (4). | Subject to subsection (5), a practitioner must be regarded as having been instructed to invest money for the purposes of subsection (1) (g), where a person — (a) who entrusts money to the practitioner; or (b) for whom the practitioner holds money, instructs the practitioner to invest all or some of that money in a specified investment or in an investment of the practitioner's choice. (Sub-s. (4) added by s.1 (b) of Act No. 115 of 1998) |
| (5). | For the purposes of subsection (1)(g), a practitioner must be regarded as not having been instructed to invest money if he or she is instructed by a person — (a) to pay the money into an account contemplated in section 78(2A) if such payment is for the purpose of investing such money in such account on a temporary or interim basis only pending the conclusion or implementation of any particular matter or transaction which is already in existence or about to come into existence at the time that the investment is made and over which investment the practitioner exercises exclusive control as trustee, agent or stakeholder or in any fiduciary capacity; (b) to lend money on behalf of that person to give effect to a loan agreement where that person, being the lender — (i) specifies the borrower to whom the money is to be lent; (ii) has not been introduced to the borrower by the practitioner for the purpose of making that loan; and (iii) is advised by the practitioner in respect of the terms and conditions of the loan agreement; or (c) to utilise money to give effect to any term of a transaction to which that person is a party, other than a transaction which is a loan or which gives effect to a loan agreement that does not fall within the scope of paragraph (b). (Sub-s. (5) added by s.1 (b) of Act no. 115 of 1998) |
| (6). | Subsection (1)(g) does not apply to money which a practitioner is authorised to invest where the practitioner acts in his or her capacity as executor, trustee or curator or in any similar capacity. (Sub-s. (7) added by s.1 (b) of Act No. 115 of 1998) |
| (7). | A practitioner who has been instructed to invest money as contemplated in subsection (4) shall, as soon as practicable after he or she has received such instruction but prior to the receipt of the money to be invested, notify the person giving the instruction of the provisions of subsection (1) (g) in the form and manner prescribed by the board of control in terms of subsection (8). (Sub-s. (8) added by s.1 (b) of Act No. 115 of 1998) |
| (8). | For the purposes of subsection (7), the board of control shall issue directives prescribing the form and manner in which a notice referred to in that subsection shall be given and may from time to time review and, if necessary, revise such directives. (Sub-s. (8) added by s.1 (b) of Act No. 115 of 1998) |
| (9). | Pending the issuing of the directives contemplated in subsection (8), a notice referred to in subsection (7) shall — (a) be drawn up by the practitioner; (b) be signed by both the practitioner and the person giving the instruction; and (c) contain a written acknowledgement by such person to the effect that he or she — (i) has been informed by the practitioner concerned of the provisions of subsection (1)(g) and that he or she understands the effect thereof; and (ii) admits that the fund shall not be liable in respect of any loss suffered by him or her as a result of theft of such money. |
| (10). | Any practitioner who contravenes subsection (7) shall be guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding two years. (Sub-s. (10) added by s.1 (b) of Act No. 115 of 1998) |
| 47A. | Transitional provisions relating to liability of fund for investments. — |
| The fund is not liable for loss of money caused by theft committed by a practitioner, candidate attorney, employee or agent of a practitioner where the money is invested or should have been invested on instructions given before the date contemplated in section 47(1)(g) and where — (a) the money is to be repaid, at any time after that date, to the beneficiary specified in any agreement whether with the borrower or practitioner; (b) the theft is committed at any time after the expiration of 90 days after the investment matures or after the expiration of 90 days after the date contemplated in section 47(1)(g); (c) repayment is subject to the lender making a demand or is subject to the occurrence of an impossible or uncertain event; or (d) the repayment date is not fixed. (S.47A inserted by s.2 of Act no. 115 of 1998) |
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| 48. | Claims against fund: notice, proof and extension of periods for claims. — |
| (1). | No person shall have a claim against the fund in respect of any theft contemplated in section 26 unless — (a) written notice of such claim is given to the council of the society concerned and to the board of control within 3 months after the claimant became aware of the theft or by the exercise of reasonable care should have become aware of the theft; and (b) within 6 months after a written demand has been sent to him or her by the board of control, the claimant furnishes the board with such proof as the board may reasonably require. |
| (2). | If the board of control is satisfied that, having regard to all the circumstances, a claim or the proof required by the board has been lodged or furnished as soon as practicable, it may in its discretion extend any of the periods referred to in subsection (1). |
| 49. | Actions against funds. — |
| (1). | No action shall without leave of the board of control be instituted against the fund unless the claimant has exhausted all available legal remedies against the practitioner in respect of whom the claim arose or his or her estate and against all other persons liable in respect of the loss suffered by the claimant. |
| (2). | Any action against the fund in respect of any loss suffered by any person as a result of any theft committed by any practitioner, his or her candidate attorney or his or her employee, shall be instituted within one year of the date of a notification directed to such person or his or her legal representative by the board of control informing him or her that the board of control rejects the claim to which such action relates. (Sub-s. (2) substituted by s.21 of Act 87 of 1989) |
| (3). | In any action against the fund all defences which would have been available to the person against whom the claim arose, shall be available to the fund. |
| (4). | Any action against the fund may, subject to the provisions of this Act and the regulations made thereunder, be brought in any provincial or local division of the Supreme Court within the jurisdiction of which the cause of action arose. |
| 50. | Subrogation. — |
| On payment out of the fund of money in settlement in whole or in part of any claim under this Act, the fund shall be subrogated to the extent of such payment to all the rights and legal remedies of the claimant against any practitioner or any person in relation to whom the claim arose, or in the event of his or her death or insolvency or other legal disability, against any person having authority to administer his or her estate. | |
| 51. | Claims may be charged against future revenue of fund. — |
| (1). | If the fund at any time has insufficient assets to settle all claims and judgments, such claims and judgments shall, to the extent to which they are not settled, be charged against future revenue of the fund. |
| (2). | The board of control may in its discretion determine the order in which claims and judgments in terms of subsection (1) shall be settled, and may, if the revenue of the fund is not sufficient to settle all claims in full, settle any claim or judgment in whole or in part. |
| (3). | Without limiting the discretion of the board of control it shall, in applying the fund towards such settlement of claims and judgments, consider the following, namely — (a) the relative degrees of hardship suffered or likely to be suffered by the various claimants should their claims against the fund not be settled in whole or in part; (b) subject to paragraph (a), the full settlement of claims not exceeding R1 000, except in special circumstances, before claims for amounts exceeding R1 000 are settled to a greater extent than R1 000; (c) in equal circumstances, the priority of claimants according to the dates of the judgments or the dates when the claims were admitted by the board of control, as the case may be. |
| 52. | Exemption of fund from certain provisions of certain Laws. — |
| (1). | The revenue of the fund shall be exempt from the provisions of any law relating to payment of income tax or any other tax or levy by the State. |
| (2). | Any provision of any law relating to insurance (other than a law relating to the compulsory insurance of employees) or the provision of security in connection therewith, shall not apply to the fund. |
| 53. | Indemnification in respect of certain acts in good faith. — |
| No action for damages shall be instituted — (a) against the fund, the board of control or any member, official or employee of the board of control in respect of anything done in the bona fide exercise or performance of its or his or her powers or duties in terms of the provisions of this Act; or (b) against any society, any council, any member of a council or official or employee of any council, in respect of any notification issued in good faith for the purposes of section 47(1)(f). |
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| 54. | Preservation and disposal of records and documents in possession of board of control. — |
| (1). | Any record or document in possession of the board of control relating to any claim instituted against the fund shall, subject to the provisions of subsection (2), be preserved at the office of the secretary of the board of control. |
| (2). | The chairman of the board of control may, after the lapse of 5 years from the date on which any claim to which any record or document relates is settled by the board of control or adjudicated upon by the court or rendered unenforceable by lapse of time, direct that such record or document be removed to some other place of custody or be destroyed or otherwise disposed of. |
| 55. | Application of Chapter in respect of persons exercising legal professions in area of former Republic of Transkei, Bophuthatswana, Venda or Ciskei. — |
| (1). | For the purposes of this Chapter — (a) "practicing practitioner" includes any person who exercises a legal profession in — (i) the former Republic of Transkei or Ciskei; or (ii) the former Republic of Bophuthatswana or Venda, on his or her own account or in partnership, and (aa) who is required by a law of the former Republic of Transkei or Ciskei, or by section 6(1) of the Attorneys and Matters relating to Rules of Court Amendment Act, 1998, as the case may be, as a prerequisite for exercising such profession, to be in possession of a valid fidelity fund certificate issued to him or her in terms of section 42(3); (bb) who is in possession of such a certificate; and (b) a person referred to — (i) in paragraph (a)(i) must be regarded as being a practitioner who is a member of the society known as the Law Society of the Cape of Good Hope; (ii) in paragraph (a)(ii) must be regarded as being a practitioner who is a member of the society known as the Law Society of the Transvaal [Law Society of the Northern Provinces]. |
| (2). | This Chapter shall apply with the necessary changes in respect of any theft committed in the area of the former Republic of Transkei, Bophuthatswana, Venda or Ciskei, as the case may be, by a practising practitioner, his or her candidate attorney, employee or agent, of any money or other property referred to in section 26. (S.55 amended by s.22 of Act No. 87 of 1989 and substituted by s.1 of Act No 116 of 1981 and by s.3 of Act No. 115 of 1998) |