How to Submit a Claim
Prospective claimants should note the following:
Notice of the claim should be given to the Law Society of the province in which the attorney practices and to the Fund, within a period of three (3) months after the claimant:
- became aware of the theft, or
- by the exercise of reasonable care should have become aware of the theft. Section 48(1) (a) of the Attorneys Act 53 of 1979.(the Act)
Such proof as the Fund might reasonably require should be furnished within 6 (six) months after receipt of a written demand requesting the submission of such proof. Section 48(1) (b) of the Act.
The Fund may require a claimant to exhaust all available legal remedies against the attorney concerned, and against any other persons liable in law, before having recourse to the Fund. Section 49(1). The Fund is empowered to waive compliance with this section. However, claimants are strongly advised to ensure that in the interim period, any rights of action, which they might have, do not become prescribed. Where claimants endeavour to recover directly from a defaulting attorney without having been directed by the Board of Control to do so, they will run the risk of not having any wasted costs reimbursed.
The claim should be submitted to the Fund by way of an affidavit. Such affidavit will serve a dual purpose: firstly, for the purpose of proving a claim against the Fund and, secondly, to assist the SAPS in instituting a criminal investigation and prosecution. (See below “Framework for a Sworn Affidavit”)
The defaulting attorney’s entire office fi le (cover and contents) should accompany the affidavit.
Except where the Board of Control has directed that a formal inquiry in terms of the Fund’s Regulations should be held, consideration of the claim will be confined to the affidavit submitted.
Any allegations in the affidavit in connection with amounts entrusted to the attorney must therefore be corroborated. In this regard it is usual for the affidavit to be accompanied by a copy of the claimant’s ledger account, or other relevant ledger accounts in the attorney’s accounting records. In addition, other evidence such as paid cheques, receipts or correspondence should be submitted. The Fund will require the original documents where available, particularly paid cheques.
Contribution to Cost
The Fund has a discretion to make a contribution towards the costs incurred by a claimant in establishing a claim against the Fund. As it has been found that delays and a great deal of unnecessary correspondence invariably results where a claimant who is not an attorney elects to attend to the submission of the claim, it is strongly recommended that claimants should instruct an attorney to attend to the submission of their claims. Where the amount of the capital sum that the Board has admitted as a claim against the Fund falls within the jurisdiction of the Magistrate’s Court, Regional Court or High Court, the Fund will contribute 25% of the claimant’s costs incurred in establishing a claim, having regard to the party and party tariff applicable in the Magistrate’s Court or High Court. The Fund will only contribute to a claimant’s cost if the account is submitted within a period of 3 months from the date of which the claim was paid.
The Fund’s Board of Control has, in terms of Section 45(2) of the Attorneys Act, a discretion to pay interest on the amount of any admitted claim. The discretion is exercised by paying interest on admitted claims that have not been paid out within 90 days of the Fund having been duly provided with all the evidence it may have required in terms of section 48 (1) (b) of the Act, provided that all other statutory requirements have been met. Interest will be paid based on a rate that is 1% less than what the Fund receives on its cash deposits from time to time and will be calculated pro rata from the expiry of the aforesaid 90 day period to the date of payment. The total amount of the interest due to a claimant shall not exceed the amount of the capital sum that the Board has admitted as a claim against the Fund.