The Wypkema decision by our SCA raises some interesting questions.

For the full decision, see the very helpful website of the University of the Free State: http://www.uovs.ac.za/apps/law/appea.../1/Wypkema.doc

The amount of the cheque was R2,200,000.00 (Two million two hundred thousand Rand) which is quite a significant amount for the attorney to have to repay! (Plus legal costs and interest, off course).

The lender was to have advanced an amount of R1,850,000.00 as bridging finance and R350,000.00 was the lender's fee! Now, if the loan agreement had been concluded after 1st June this year, would it have been a credit agreement within the ambit of the NCA? If so, would it have been an unlawful agreement thereby entitling the hapless attorney to escape liability?

There is nothing to suggest that the lender actually advanced the funds. If the lender did in fact advance the funds, who were such funds paid to and why were the funds not recovered from the recipient when the deal collapsed?

I am amazed that the attorney actually issued the cheque in the first place. He must have been under immense pressure to have the deal finalized. There seems to be no logical explanation as to why the guarantee from the bank was not made payable to the lender.

The attorney's "impropriety", as the judge says in the ultimate paragraph, appears to have been that he issued what was in effect a "post-dated" cheque on a trust banking account. Trust banking account = OPM (Other Peoples Money).

And for Dave: do insist that the attorneys pay you by EFT instead of cheque!

Sieg