| (1) |
Any practising practitioner shall open and keep a separate trust banking account at a banking institution in the Republic and shall deposit therein the money held or received by him on account of any person. |
| (a) |
Any practitioner may invest in a separate trust savings or other interest-bearing account opened by him with any banking institution or building society any money deposited in his trust banking account which is not immediately required for any particular purpose. |
| (b) |
Any trust savings or other interest-bearing account referred to in paragraph (a) shall contain a reference to this subsection. |
| (2A) |
Any separate trust savings or other interest-bearing account— |
| (a) |
which is opened by a practitioner for the purpose of investing therein, on the instructions of any person, any money deposited in his trust banking account; and |
| (b) |
over which the practitioner exercises exclusive control as trustee, agent or stakeholder or in any other fiduciary capacity, |
shall contain a reference to this subsection.
| (3) |
The interest, if any, on money deposited in terms of subsection (1) and the interest on money invested in terms of subsection (2) shall be paid over to the fund by the practitioner concerned at the prescribed time and in the manner prescribed. |
| (4) |
Any practising practitioner shall keep proper accounting records containing particulars and information of any money received, held or paid by him for or on account of any person, of any money invested by him in a trust savings or other interest-bearing account referred to in subsection (2) or (2A) and of any interest on money so invested which is paid over or credited to him. |
| (5) |
The council of the society which has jurisdiction in the area in which a practitioner practices may by itself or through its nominee, and at its own cost, inspect the accounting records of any practitioner in order to satisfy itself that the provisions of subsections (1), (2), (2A), (3) and (4) are being observed, and, if on such inspection it is found that such practitioner has not complied with such provisions, the council may write up the accounting records of such practitioner and recover the costs of the inspection or of such writing up, as the case may be, from that practitioner. |
[Section 78(5) amended by section 28(a) of Act No. 40 of 2014]
| (6) |
For the purposes of subsections (4) and (5), 'accounting records' includes any record or document kept by or in the custody or under the control of any practitioner which relates to— |
| (a) |
money invested in a trust savings or other interest-bearing account referred to in subsection (2) or (2A); |
| (b) |
interest on money so invested; |
| (c) |
any estate of a deceased person or any insolvent estate or any estate placed under curatorship, in respect of which such practitioner is the executor, trustee or curator or which he administers on behalf of the executor, trustee or curator; or |
| (7) |
No amount standing to the credit of any practitioners's trust account shall be regarded as forming part of the assets of the practitioner, or may be attached on behalf of any creditor of such practitioner: Provided that any excess remaining after payment of all claims of persons whose money has, or should have, been deposited or invested in such trust account, and all claims in respect of interest on money so invested, shall be deemed to form part of the assets of such practitioner. |
| (8) |
The court may on application made by the society concerned or by the board of control, in consultation with the society concerned, and on good cause shown, prohibit any practitioner from operating in any way on his or her trust account, and may appoint a curator bonis to control and administer such trust account, with such rights, duties and powers in relation thereto as the court may deem fit. |
[Section 78(8) amended by section 28(b) of Act No. 40 of 2014]
| (iii) |
in the case of a professional company, is liquidated or placed under judicial management, whether provisionally or finally; |
| (iv) |
is struck off the roll or suspended from practice; |
| (v) |
is declared by a competent court to be incapable of managing his own affairs; or |
| (vi) |
abandons his practice or ceases to practice, |
the Master of the High Court may, on application made by the society concerned or by any person having an interest in the trust account of that practitioner, appoint a curator bonis to control and administer such account, with such of the prescribed rights, duties and powers as the Master may deem fit.
[Section 78(9)(a) amended by section 28(c) of Act No. 40 of 2014]
| (b) |
Any person who is of the opinion that he has been prejudiced by a decision of a Master in terms of paragraph (a), may, within 30 days after the decision became known to him, appeal against that decision to the court, and the court may confirm or vary the said decision or give any such other decision as in its opinion the Master should have given. |
| (c) |
Nothing in this subsection or in subsection (7) or (8) contained shall be construed as preventing any practitioner who was practising in partnership with a practitioner referred to in paragraph (a) of this subsection, from operating on the trust account of the partnership. |
| (10) |
Any banking institution or building society at which a practitioner keeps his trust account or any separate account forming part of his trust account, shall not by reason only of the name or style by which the account concerned is distinguished, be deemed to have knowledge that the practitioner is not entitled to all money paid into such account or with which such account is credited: |
Provided that the provisions of this subsection shall not relieve such banking institution or building society from any liability or obligation which legally exists and to which it would be subject apart from the provisions of this Act.
| (11) |
Notwithstanding anything in subsection (10) contained, a banking institution or building society at which a practitioner keeps his trust account or any separate account forming part of his trust account, shall not, in respect of any liability of the practitioner to such banking institution or building society, not being a liability arising out of or in connection with any such account, have or obtain any recourse or right, whether by way of set-off, counter-claim, charge or otherwise, against money standing to the credit of any such account. |
| (12) |
The provisions of this section shall not be construed— |
| (a) |
as depriving any banking institution or building society of any existing right; |
| (b) |
as taking away or affecting any claim, lien, counter-claim, right of set-off, or charge of any kind which a practitioner has against or on any money held or received by him on account of any person; |
| (c) |
as relieving any practitioner who has invested any money referred to in subsection (1) in a trust savings or other interest-bearing account referred to in subsection (2) or (2A), of any liability in respect thereof. |
| (13) |
Any banking institution at which a practitioner keeps his or her trust account or any separate account forming part of his or her trust account, shall, if so directed by the council of the society having jurisdiction in the area in which such practitioner is practising, furnish the council with a signed certificate which indicates the balance of such account at the date or dates stated by the council. |
[Section 78(13) amended by section 28(d) of Act No. 40 of 2014]
| (14) |
This section shall not apply to the State Attorney or a member of his professional staff. |
[Section 78(14) amended by section 28 of Act No. 87 of 1989]
Protection of Businesses Act, 1978
