The law reports – October 2018

October 1st, 2018
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David Matlala BProc (University of the North) LLB (Wits) LLM (UCT) LLM (Harvard) LLD (Fort Hare)HDip Tax Law (Wits) is an adjunct professor of law at the University of Fort Hare.

August 2018 (4) South African Law Reports (pp 333 – 658); July [2018] 3 All South African Law Reports (pp 1 – 305); 2018 (7) Butterworths Constitutional Law Reports – July (pp 757 – 880)

This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African Criminal Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.

Abbreviations

CC: Constitutional Court

ECG: Eastern Cape Division, Grahamstown

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

KZD: KwaZulu-Natal Local Division, Durban

KZP: KwaZulu-Natal Division, Pietermaritzburg

LCC: Land Claims Court, Randburg

NWM: North West Division, Mahikeng

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Appeal

Proposed appeal becoming moot during pending of application in the SCA: Section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 (the Act) provides that: ‘When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on that ground alone’. The s 16(2)(a)(ii) further provides that: ‘Save under exceptional circumstances, the question whether the decision would have no practical effect or result is to be determined without reference to any consideration of costs.’

The application of the section was dealt with in John Walker Pools v Consolidated Aone Trade and Invest 6 (Pty) Ltd (in Liquidation) and Another 2018 (4) SA 433 (SCA) where the first respondent, Consolidated Aone Trade (CAT) sought and was granted an eviction order against the applicant (John Walker Pools). After granting the eviction order the KZP, per Steyn J, denied CAT leave to appeal. Thereafter, in March 2017 the first respondent CAT launched the present application in the SCA seeking leave to appeal the decision of the High Court. While the application was still pending, the lease, which the applicant relied on to occupy the premises expired in September 2017. The hearing of the application, regarding the lease, which had since expired, was held in February 2018. The application was dismissed with costs.

Rogers AJA (Shongwe ADP, Willis, Mocumie JJA and Mothle AJA concurring) held that save in relation to costs a decision on appeal would have no practical effect or result because, at best for the applicant, an appeal court could find that it was entitled to occupy the premises until the end of September 2017, a question which at the hearing of the application for leave to appeal in February 2018 had become academic.

The costs referred to in s 16(2) of the Act to which reference should not be made to determine if the issues to be decided have any practical effect or result, were those incurred in the court against whose decision the party was seeking leave to appeal and not the costs in the appellate court. The section was concerned with the decision of the court a quo and the circumstances in which an appeal against the decision of that court could be dismissed without an inquiry into the merits. If the costs incurred in the court a quo were very substantial that could constitute exceptional circumstance leading to the conclusion that a reversal of the court’s decision would have practical effect. In the present case there were no exceptional circumstances, which made it just for the appellate court to reassess the court order made by the court a quo against the applicant.

Regarding the costs incurred in the appellate court it was held that where an appeal or proposed appeal had become moot by the time leave to appeal was first sought, it would generally be appropriate to order that the appellant or would-be appellant should pay the costs since the proposed appeal would have been stillborn from the outset. However, different considerations applied where the appeal or proposed appeal became moot at a later stage. As a general rule litigants and their legal representatives were under a duty where the appeal or proposed appeal became moot during the pending appellate proceedings to contribute to efficient use of judicial resources by making sensible proposals so that an appellate court’s intervention was not needed. If a reasonable proposal by one of the parties was rejected by the other, that would play an important part in the appropriate costs order. Apart from taking a realistic view on prospects of success, litigants had to take into account, among other factors, the extent of the costs already incurred; the additional costs that would be incurred if the appellate proceedings were not promptly ended; the size of the appeal record and the likely time it would take an appellate court to form a view on the merits of the moot appeal. There had to be a proper sense of proportion when incurring costs and calling on judicial resources.

Attorneys

Attendance at practical training course may take place before registration of articles: Section 15(1)(b)(ivA) of the Attorneys Act 53 of 1979 (the Act) provides that the court shall admit and enrol any person as an attorney if such a person has during or after their term of service under articles or contract of service, attended a training course approved by the provincial law society in which they completed their service under the articles or contract of service. Contrary to the provisions of the section, which requires attendance of a training course during or after service under articles or contract of service, the applicant in Ex parte Mdyesha 2018 (4) SA 468 (GP) attended the training course before commencement, which started in February 2014 while her articles of clerkship started two months later in April 2014. Effectively she did the two concurrently. After completion of everything, namely the practical training course, articles of clerkship and attorneys admission board examination, the question before the court was whether notwithstanding lack of strict compliance with the requirements of the section, her non-compliance could be condoned so that she could be admitted as an attorney. The condonation was granted and Ms Mdyesha was admitted as an attorney.

Makgoka J (Molefe J concurring) held that strict compliance with the peremptory language of the section was not required. To insist on strict compliance with the provisions of the section would mean that the applicant, and many other candidate attorneys in her position, had to repeat attendance of practical training course, an absurdity that could not have been contemplated by the legislature.

The section was clearly peremptory in that a candidate attorney had to attend the legal practical training course during or after the expiry of their articles of clerkship and not before. However, a finding that a legislative provision was peremptory was not the end of the matter. Once it was established that a legislative provision was peremptory and the question arose whether exact compliance therewith was required, the answer was to be found in the purpose of the statutory requirement as ascertained from its language, read in the context of the statute as a whole.

The purpose of the section was, to ensure that candidate attorneys were adequately equipped in the practical aspects of attorneys’ work before they were admitted to the profession, which was achieved through serving articles of clerkship and the practical training course. If both were satisfactorily completed, the object of the legislation was achieved despite the fact that the sequence in which they were completed, was not in the order decreed in the section. The sequence in which the two were completed did not have a bearing on the competence of the candidate.

Consumer credit agreements

Right of debtor to pay arrears under a consumer credit agreement and have it reinstated: When the applicant (Duma) failed to meet her commitments in terms of a loan secured by a mortgage bond over her residential property in Duma v Absa Bank 2018 (4) SA 463 (GP), the respondent (Absa Bank) obtained summary judgment against her, during which the property was declared executable. In the present application the applicant sought rescission of that judgment. The application was dismissed with costs as the applicant had no basis for seeking rescission of summary judgment that had been properly obtained, there being nothing irregular about the process of service of the notice of set down and enrolment of the application.

Rautenbach AJ held obiter that in Nkata v FirstRand Bank Ltd 2016 (4) SA 257 (CC); 2016 (6) BCLR 794 (CC) the CC concluded that execution of the property meant when the proceeds of the sale were realised. Such interpretation enabled a debtor in respect of a house to pay the arrears up and until that stage. That meant that the agreement, if it was not cancelled, was reinstated by the defendant and the parties were placed in the position they were in before the arrears eventuated, which meant that the debtor could proceed to pay monthly instalments in terms of the bond. In terms of the National Credit Act 34 of 2005 and the Nkata case the defendant would be liable for the agreed or taxed costs emanating from the proceedings to obtain judgment in execution against the debtor. The owner of a primary residence not only enjoyed judicial oversight when the property was declared executable, but in fact had the further remedy available to them by paying the arrears before the property was sold in execution.

The court would be paying lip service to the Constitution if it did not in its order either make an order or some note to the effect that, should the arrears be paid before the sale in execution, the parties would be in the position they were before the debtor fell into arrears, provided that a debtor would be liable to pay all the costs incurred by the creditor in terms of the processes it followed to collect the debt. It was the duty of the court, where lay people appeared before it, to advise them of that important right they had which had serious consequences for people affected if they were not so informed.      

Contracts

Interpretation of contracts: The facts in the case of Auction Alliance (Pty) Ltd v Wade Park (Pty) Ltd 2018 (4) SA 358 (SCA) were that Mophela Project (Mophela) bought property with the financial assistance of the Department of Housing of KwaZulu-Natal and used it as an AIDS treatment centre. At a later stage, Mophela sold the property to the respondent (Wade Park) at an auction conducted by appellant (Auction Alliance), the agreement was subject to suspensive condition that the Department of Housing should give written approval and consent to the sale within 30 days. The Department duly provided the consent letter in which it indicated that it had no objection to the sale on condition that the subsidy amount was recovered on transfer. Subsequently Mophela purported to cancel the sale agreement on the ground that the respondent was in default of its financial obligations. The position of the respondent was that the sale agreement remained valid and was not capable of cancellation. Ultimately the sale agreement was cancelled and as a result the respondent sought to recover the commission and deposit, which it paid to the appellant on conclusion of the agreement.

The KZD held, per Olsen J, that the sale contract between Mophela and the respondent was valid and binding and accordingly dismissed the respondent’s claim. It was held that the ‘condition’ contained in the Department’s consent letter was not a condition in the true sense but only an ‘understanding’, that is, the ‘basis’ of consent that on transfer of the property, it would get its money back. The Full Court of the KZP per Sishi, Seegobin JJ and Masipa AJ upheld the appeal against the High Court decision.

An appeal against the decision of the Full Court was upheld with costs by the SCA. Majiedt JA (Ponnan, Swain, Dambuza JJA and Mothle AJA concurring) held that an important factor in the background context against which the meaning of the words ‘on condition’ had to be considered was that the Department wanted its subsidy money back and knew very well that without its consent the sale would not go through. The Department, therefore, furnished the letter of consent to allow the sale to proceed so that it could get its money back. To interpret the words ‘on condition’ as introducing a conditional consent by the Department, which could be withdrawn should the subsidy amount not be paid once the immovable property was transferred and the purchase price paid would defeat that objective.

A thing did not become a ‘condition’ merely because it had been given that name. The commercially sensible and reasonable interpretation of the words ‘on condition’, taking into a court the objective underlying purpose of the relevant clause and having regard to all relevant background facts and circumstances was an ‘undertaking’ or ‘basis upon’. The words did not denote a condition in the true sense of the word for if they did, it would have been a condition incapable of fulfilment. The approach to interpretation of documents was firmly established in the law. It was not sufficient to merely regurgitate the relevant principles and cite the leading authorities without actually applying them. It had to be evident from the interpretive process itself that the principles had been applied. Merely paying lip service to them undermined the entire exercise.

Customary law

Duty of the Supreme Council of a traditional community to consult broadly with the community before taking a major decision: In the case of Bafokeng Land Buyers Association and Others v Royal Bafokeng Nation [2018] 3 All SA 92 (NWM) the Supreme Council of Royal Bafokeng Nation (RBN) in the North West Province instituted proceedings against the national Minister of Land Affairs in which an order was sought for a declaration that the Bafokeng community was the registered owner of land held by the Minister ‘in trust’ for the community. That was so as the land in question – consisting of some 60 farms – was registered in the name of the Minister ‘in trust for’ the RBN. The RBN was a traditional community of some 300 000 people and was recognised as such in terms of the Traditional Leadership and Governance Framework Act 41 of 2003. The Supreme Council was a joint sitting of the Executive Council (elected statutory traditional council) and the Council of Dikgosana (hereditary village leaders). The appellant Bafokeng Land Buyers Association and others represented people who claimed that some of the affected land belonged to them in terms of the common law and were accordingly opposed to its transfer to the RBN. The issue was whether the Supreme Council had the power under customary law to take the decision to institute proceedings against the Minister without consulting broadly (the Kgotha Kgothe – an all-inclusive consultation process involving all village councils, of which the RBN had 29). The appellants contended that important matters affecting the community as a whole had to go to the general meeting (Kgotha Kgothe) as sovereignty resided with the people and not the Supreme Council.

The NWM, per Landman J, held that the Supreme Council did not have the power to take the impugned decision and that the RBN failed to demonstrate that the Supreme Council had that power. That power lay with the Executive Council. As the latter was part of the Supreme Council, the decision it took was considered to be the decision of the Supreme Council duly endorsed by the Council of Dikgosana.

An appeal against the decision of the High Court to the Full Court was upheld with costs. Gutta J (Djaje and Kgoele JJ concurring) held that major decisions on fundamental matters such as changes to systems of government and the status of land could only be effected with the consent of the community. Those values were consistent with the Constitution, the rule of law, ubuntu (human kindness) and the right to fair administrative justice. The nature of litigation initiated by the RBN affected land rights of members of the community and the RBN as a whole and was not a routine litigation. When considering the evidence and importance of litigation affecting the traditional community as a whole, which had the potential to divide the nation the probability was that the power to authorise litigation of that nature did not lie with the Supreme Council, whether or not it had other decision-making powers. Accordingly, neither the Executive Council nor the Supreme Council had the power to take the impugned decision without referring the matter to a general meeting. The case concerned the rights of the community and its members to be consulted before litigation was instituted on their behalf in a case, which could have far reaching consequences for the community in respect of land ownership. It was imperative for the community to be consulted before the RBN launched the affected proceedings.

Divorce

No forfeiture of share of accrual or deferment of payment of pension benefits: In BS v PS 2018 (4) SA 400 (SCA) the appellant BS (wife) and the respondent PS (husband) were married out of community of property subject to accrual system. After irretrievable breakdown of the marriage the High Court granted a decree of divorce, ordering that the appellant would forfeit 80% of the accrual benefits in the form of the matrimonial home (owned by the respondent), as well as his pension benefits. Furthermore, payment of the appellant’s 20% share in the respondent’s pension benefits was deferred. An appeal against the decision of the ECG, per Bloem J, was upheld by the SCA with costs.

Swain JA (Lewis, Willis, Mathopo and Mocumie JJA concurring) held that the High Court erred in concluding that the appellant caused the breakdown in the marriage and further erred in concluding that the appellant contributed to a lesser degree in the accrual of the respondent’s estate. No forfeiture order should have been granted when sufficient weight was also accorded to the duration of the marriage of approximately 28 years and the evidence that the appellant did not own a home. In addition, no evidence was led on whether the appellant possessed a pension for her old age.

The clear object of the amendment introduced by s 24A of the Government Employees Pension Law, 1996 (the GEPL) was to ensure that the non-member spouse received payment of the amount assigned from the member’s pension interest in terms of a decree of divorce without delay and within the statutorily defined periods after the grant of the order. The clear intention of the legislature in enacting s 24A of GEPL was to oust the jurisdiction of a court to grant deferment of satisfaction of an accrual claim in the form of payment of the amount assigned from the member’s pension interest in terms of a decree of divorce.

Land reform

Long-term lease versus land restitution claim: In Eastern Produce Estates SA (Pty) Ltd v Wales Communal Property Association and Others [2018] 3 All SA 123 (LCC) the lessor and lessee did not like each other and wanted the lease terminated, albeit for different reasons. That was after the applicant (Eastern Produce Estates) entered into a long-term lease with the South African Development Trust in June 1990 in respect of state-owned land in the Bushbuck Ridge area (in Mpumalanga province). The applicant exercised its right under the lease to renew it for a further period of 15 years, which was to expire in March 2020 after giving notice to all relevant State Departments, the Regional Land Claims Commissioner (the RLCC) and representatives of land claimants. Subsequently and in terms of a settlement agreement between the Minister of Rural Development and Land Reform (the minister) and the first respondent Wales Community the leased property was awarded to the first respondent. The applicant was not aware of the settlement agreement and continued to comply with its obligations in terms of lease agreement only to become aware of such agreement after receiving a letter from the first respondent threatening eviction.

As a result the applicant approached the court for a number of orders including the review and setting aside of decisions to approve transfer of the leased property to the first respondent, as well as a declaratory order that the settlement agreement entered into between the RLCC and the first respondent was null and void to the extent that it purported to settle land claims to the leased property. The first respondent in turn disputed the validity of the lease on several grounds, including one that in terms of the Formalities in Respect of Leases of Land Act 18 of 1969 the principle of huur gaat voor koop did not apply to unregistered long-term leases, such as one in the instant case.

The LCC held per Canca AJ that it was not disputed that the attorney representing the first respondent had knowledge of the existence of the lease agreement and that the deponent to the first respondent’s various affidavits was present when a representative of the RLCC confirmed that the lease agreement would be transferred to the claimant community and further that the benefits of that lease would be deposited into the first respondent’s banking account on transfer of the leased property to it. The lease was binding on the first respondent because it, through its attorney, had knowledge thereof at the time of settlement of the land restitution claim. The first respondent stepped into the shoes of the state on registration of the property into its name. From that time it became entitled to the rental due under the lease agreement which did not deprive it of any rights. The land restitution claim settlement agreement neither extinguished the applicant’s lease in respect of the leased property nor affected its legal rights.

The first respondent and the minister, the second respondent, were ordered to pay costs due to their unsatisfactory conduct in the course of the proceedings.

Pension funds

Curator of a pension fund may only recover a fee that is consistent with the court order appointing them: In Mostert and Others v Nash and Another [2018] 3 All SA 1 (SCA) the first appellant (Mostert), a practising attorney, was appointed a curator of the third appellant (Sable Fund), which had been placed under curatorship in terms of the Financial Institutions (Protection of Funds) Act 28 of 2001. The court order appointing Mostert as curator provided in para 9 that the curator would be entitled to periodical remuneration in accordance with the norms of the attorneys’ profession as agreed with the Chief Executive Officer (CEO) of the Financial Services Board (FSB), the body that was in charge of financial institutions, such as the third appellant. Thereafter, Mostert and the CEO of the FSB concluded an agreement in terms of which Mostert would be paid as remuneration a percentage of the amount recovered on behalf of the Sable Fund, this being an arrangement in the nature of a contingency fee agreement. The first respondent Nash, a member of Sable Fund, together with accompany under his control, Midmacor, and whose employees were also members of the Sable Fund, approached the High Court for an order declaring the remuneration agreement between the Mostert and the FSB invalid for non-compliance with para 9 of the court order as the agreement was not in accordance with the norms of the attorney’s profession. The GP per Tuchten J granted the order sought.

On appeal to the SCA both sides achieved limited success in that the challenged remuneration agreement was held invalid but the request that Mostert be ordered to return money overpaid was dismissed. Each party was ordered to pay own costs of appeal, while the costs order in the High Court was left intact.

Wallis JA (Ponnan, Swain JJA and Pillay AJA concurring) held that an arrangement in terms of which a curator was to be remunerated on a periodical basis in accordance with the norms of the attorney’s profession was one under which the attorney was paid a fee calculated at an hourly rate, together with an amount to cover any disbursements. Remuneration of an attorney in accordance with the norms of the attorney’s profession was to be understood as a fee calculated on a time basis at an hourly rate. A declaration that the fee agreement was not in accordance with para 9 of the court order and should be set aside did not alter the position that Mostert was properly appointed as curator of the Sable Fund and was entitled to be remunerated for his services. The precise basis on which he was to be remunerated remained to be determined. If an hourly rate was not thought to be appropriate or could not be calculated because records had not been kept of the hours spent on the curatorship, a different basis for remuneration had to be determined between Mostert and the FSB. That did not exclude a fee determined as a percentage of the amounts recovered for the benefit of the Sable Fund, provided that the fee so determined was reasonable, heaving regard to the risks undertaken, the work involved, the uncompensated costs of Mostert and his firm in performing the work and the like. A percentage fee subject to an appropriate cap or sliding scale was a possibility. As a fee arrangement in the instant case would involve a departure from the terms of the court order, it required the sanction of the court.

In a dissenting judgment Willis JA held that the appeal had to be dismissed with costs as the claim for relief sought by the respondent had been lodged way outside the 180-day time limit provided for the Promotion of Administrative Justice Act 3 of 2000. In any event, agreements for contingency fees of the kind in question were not unlawful, even though unsettling questions could arise as to the rate of remuneration and the quantum of fees.

Refugees

Power of refugee reception officer to extend asylum seeker permit pending judicial review: Section 22(3) of the Refugees Act 130 of 1998 (the Act) provides that ‘A Refugee Reception Officer [RRO] may from time to time extend the period for which a permit has been issued in terms of subsection (1)’. In Saidi and Others v Minister of Home Affairs and Others 2018 (4) SA 333 (CC); 2018 (7) BCLR 856 (CC) the applicants were asylum seekers, who were denied extension of permits after they exhausted internal remedies of review and appeal against rejection of their applications for permit. They sought extension of permits during the process of judicial view of rejection of their applications. Before the High Court, the applicants sought an order compelling the Acting Manager of Cape Town Refugee Facility, acting on behalf of the RRO, to renew their permit during the period of judicial review application. The High Court held that the RRO had the power and discretion to renew permits during the period of judicial review and accordingly remitted the matter to her. The respondent minister and others appealed against the finding that the RRO had power to extend permits during the judicial review period, while the applicants cross-appealed against remittal of the matter to the Acting Manager. In the main judgment, the SCA upheld the High Court decision. As a result the applicants approached the CC for leave to appeal, while the respondents sought leave to cross-appeal. The court granted leave to appeal and cross-appeal, upheld the appeal with costs and dismissed the cross-appeal.

Reading the main judgment Madlanga J held that the word ‘may’ as used in s 22(3) of the Act did not grant the RRO any discretion over issuing permits. There was an obligation to extend the permit pending the outcome of a judicial application for refugee status. That interpretation better afforded an asylum seeker constitutional protection while awaiting the outcome of the application. The asylum seeker was in that way not exposed to the possibility of undue disruption of a life of human dignity. The respondents’ interpretation of the section exposed asylum seekers to the real risk of refoulement (return to the country of origin) in the interim while the outcome of judicial review was pending. Without a temporary permit there was no protection and the asylum seeker was exposed to the risk of return to the country of origin. The principle of non-refoulement had an overarching effect that, at the very least, endured until judicial review proceedings had been finalised or it had become plain that none would be instituted.

In a dissenting judgment Jafta J (Kollapen AJ concurring) held that s 22(3) granted the RRO a discretionary power to do two things, namely to extend permits and amend conditions attached to them. As a result the declaration that the RRO had no discretion and, was therefore, obliged to automatically extend every permit on launching of judicial review application could not be supported.

Road Accident Fund claims

Benevolent pay not to be taken into account in calculation of future loss of income: In Bee v Road Accident Fund 2018 (4) SA 366 (SCA) the appellant (Bee) was injured in a motor vehicle collision in which he suffered severe injuries, including brain damage which was characterised as severe traumatic brain injury. As a result of the injuries suffered, he instituted a claim for compensation against the respondent Road Accident Fund (RAF). At the trial the merits were conceded, the trial proceeding to determine the amount of compensation, against the background that the appellant and his brother were 50% joint owners of a close corporation, the BPW, of which the appellant was the Chief Executive Officer (CEO) and driving force. After the collision the effectiveness of the appellant as a driving force behind BPW was seriously compromised. However, as a family member he retained his title and salary, effectively as a gratuity. The issue was whether that benevolent pay excluded the appellant’s claim for loss of future earnings. The High Court awarded an amount in respect of general damages, medical expenses, past and future loss of earnings. The respondent appealed to the Full Court against the amount awarded in respect of past and future loss of earnings where the WCC per Nuku J (Hlophe JP and Steyn J concurring) upheld the appeal. The present matter before the SCA was an appeal against the decision of the Full Court. The appeal was upheld with costs.

Rogers AJA (Mathopo JA, Hughes and Schippers AJJA concurring) held that there was ample evidence, quite apart from the forensic accountants’ joint minute, that the appellant’s reduced abilities had negatively affected BPW’s operations. Because he held a 50% membership of BPW, and because he and his brother shared BPW’s nett profits, a decrease in BPW’s nett profits would translate into a loss of income for the appellant. If, out of benevolence, an employer allowed an injured employee to return to work and to perform such limited tasks as he was able to do, and continued to pay him a salary, the injured employee was not obliged to deduct such salary when quantifying his loss of earnings. The fact that a ‘salary’ of the foregoing kind, paid to an injured employee out of benevolence, was recorded in a company’s financial records as a salary rather than a donation did not change the position.

On the question of the significance of a joint minute it was held that where, as was the case in the instant matter, the court had directed experts to meet and file a joint minute and where the experts had done so, the joint minute would correctly be understood as limiting the issues on which evidence was needed. If a litigant for any reason did not wish to be bound by the limitation, fair warning had to be given. In the absence of repudiation, that is fair warning, the other litigant was entitled to run the case on the basis that the matters agreed between the experts were not in issue.

In a dissenting judgment Seriti JA held that there was no evidence to show that BPW actually suffered loss of turnover due to the appellant’s injuries. The performance of BPW remained almost constant before and post the injuries sustained by the appellant. The sales generated by the appellant both before and after the collision were consistent and he received almost constant payments throughout the relevant period. Therefore, the appellant failed to prove that BPW actually suffered a loss of income due to his injuries and that his patrimony was, as a result, diminished. The appeal could not, therefore, succeed.

 

Civil procedure – appointment of curator ad litem to represent a person in legal proceedings: Rule 57 of the Uniform Rules of Court, which governs appointment of curators ad litem provides in r 57(3) that the application shall, as far as possible, be supported by an affidavit by at least one person to whom the patient is well known and containing such facts and information as are within the deponent’s own knowledge concerning the patient’s mental condition. Furthermore, there shall also be affidavits by at least two medical practitioners, one of whom shall, where practicable, be an alienist, who had conducted recent examinations of the patient with a view to ascertaining and reporting on his mental condition.

In Ex parte Stoffberg; In re: Xaba v Road Accident Fund and two related matters [2018] 3 All SA 145 (GP) three applications for appointment of a curator ad litem were heard together as they raised similar issues. In two of them, the patients, Xaba and Matshidi, sustained serious mental conditions, which arose out of a motor vehicle collision, in respect of which, they were claiming compensation from the Road Accident Fund (RAF). In the third case, namely Miambo, a curator ad litem was sought to represent a minor whose parents were still alive, without explanation as to how they were not able to act for her as her natural guardians. Although it appeared from the onset that due to serious head injuries suffered the patients’ cases called for appointment of curator ad litem, such was not done until an offer of settlement was made conditionally on appointment of a curator. That raised a number of questions regarding, among others, the ability of the patients to give instructions, the validity of contingency fee agreements, the patients’ ability to understand the offer of settlement made and giving instruction to accept same.

In the case of Miambo the court dismissed the application. The attorneys of record were prohibited from charging a fee and ordered to refund any fee they might have received. The attorneys were ordered to pay counsel’s costs de bonis propriis. In the other two cases, namely Xaba and Matshidi, the court ordered the chairperson of the Bar Council of Pretoria Society of Advocates to nominate counsel of sufficient expertise and who had no connection with the patients’ attorneys of record, to be appointed as curator ad litem.

Haupt AJ held that the manner in which the applicants approached the court gave the impression that the court was expected to act as a rubber stamp and ignore the applicable judgment, r 57 and the practice directives. In the case of Modiba obo Ruca; In Re Ruca v Road Accident Fund (unreported case no 12610/2013; 27-1-2014) (Bertelsmann J) the court meticulously evaluated the provisions of r 57, the importance of the independence of curators ad litem, the importance of timeously approaching the court in terms of the rule to appoint a curator to investigate and report back to court, the important function of the office of the Master of the High Court, as well as misgivings regarding certain proposed trusts and policies, which sought to circumvent the role of the curator bonis and involvement of the office of the Master.

Whether a client had the legal capacity to litigate was a basic and fundamental procedural question an attorney had to consider before continuing with the judicial process. None of the matters in the instant case provided an explanation whether there were indications already at the early stages of the action that the plaintiff could be significantly mentally impaired due to the seriousness of their head and/or brain injuries, an application for appointment of a curator ad litem had not been made earlier. It was important that the court be placed in a position to ascertain whether the plaintiffs were able to make rational decisions regarding the litigation that was about to be embarked on and that they understood the issues at the time of instructing the attorney, including considering and accepting settlements. It was trite that an application for appointment of a curator ad litem should be sought at the earliest moment after it had become clear that a party might be unable to manage their own affairs.

 

Evidence – joint minutes of overlapping experts: In Ntombela v Road Accident Fund 2018 (4) SA 486 (GJ) the plaintiff (Ntombela) was involved in a motor vehicle collision in which he suffered a mild head injury, a bruised sternum and broken left clavicle. As a result he claimed compensation from the defendant Road Accident Fund (RAF), which conceded liability and provided an undertaking for future medical expenses. The questions of general damages and past medical expenses were deferred. The trial proceeded on the issues of past loss of earnings and loss of future earning capacity in respect of both of which the court awarded an amount of R 33 500. The plaintiff was awarded costs of the first day of trial, while the defendant was awarded those of the other three days. The attorneys for both sides were barred from charging their clients any fees relating to industrial psychologist reports and in respect of any joint minute, save that of neurosurgeons. That was so because of the ‘scandal of unprofessionalism’ by expert professionals.

Sutherland J held that the medico-legal expert witnesses uniformly did not present their joint minutes in accordance with the Gauteng Local Division Practice Manual prescripts. The directive was plain, namely the experts had to tabulate what was agreed, tabulate what was disputed, stating whether the difference of opinion rested on factual findings or opinion and explain why the difference existed. The purpose of the joint minutes was to serve as a tool to clarify the issues for a court by capturing the intellectual input of two experts who interrogated each other’s views and laid out for a court what the issue was that had to be decided. To fudge, hedge and generally obfuscate was counter-productive.

The Practice Manual required opposing expert witnesses to meet and reduce their agreements and disagreements to writing and, thereafter, have the minutes signed. In the instant case the preparation of joint minutes was treated as a clerical chore. All the experts communicated by e-mail while one claimed to have had a telephone conversation. Save for the neurosurgeons, every other pair of experts was in default of compliance. Variously, the joint minutes were padded with quotations and other waffle, failed to engage on critical issues while merely stating in circumlocutory terms a difference of view and ignored the counterpart’s view without interrogating it.

Wills – fiduciary ownership

Right of ownership of fiduciary terminates automatically on their death: The facts in Douglasdale Dairy (Pty) Ltd and Others v Bragge and Another 2018 (4) SA 425 (SCA) were that in terms of a will the testator, bequeathed his farm to his wife, the first respondent Bragge, who was not allowed to dispose of it. The will further provided that on the death of the first respondent ownership would pass to the testator’s sons, the second appellant and the second respondent. In terms of a lease agreement the first appellant company, Douglasdale Dairy, carried on its dairy business on the farm. The shareholders of the company were the testator’s two sons. Because of a family feud the second respondent was granted a High Court order evicting the first appellant from the farm while the application by the second appellant and the second respondent for intervention in the eviction application was dismissed. While the appeal against the High Court order was pending before the SCA the first respondent died. The issue before the SCA was the effect of the death of the first respondent (the fiduciary) on the appeal. The court dismissed the appeal with no order as to costs.

Davis AJA (Shongwe ADP, Willis, Swain JJA and Hughes AJA concurring) held that once the first respondent (fiduciary) died, ownership passed in undivided shares to the second appellant and the second respondent (fideicommissaries) and hence no obligations were left for the executor to fulfil in this regard. That had the consequence that the order obtained in the court a quo by the first respondent was unenforceable and could not have any practical effect. The evictee had become an owner of the property. The executor, being the representative of the estate of the first respondent, no longer had any entitlement to the property. There was not even a lease in existence which the executor could enforce.

The case fell within the scope of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013, namely the issue before the SCA, being an order granting the first respondent the right to evict the first appellant from the property, would have no practical effect or result, nor were there any exceptional circumstances, which would justify an appeal. Accordingly, the appeal could and had to be dismissed.

Other cases

Apart from the cases and material dealt with or referred to above the material under review also contained cases dealing with: Appeal to the High Court against adjudicator’s order made in terms of Community Schemes Ombud Service Act 9 of 2011, application for leave to sell arrested vessel, application to set aside resolution placing company under business rescue, appointment by court of facilitator to help resolve disputes concerning children, compensation for pain and suffering, competing claims for restitution of land rights, damages for unlawful arrest and detention, decisions of private associations such as sporting bodies being reviewable administrative actions, determination of methodology to establish price in terms of Gas Act 48 of 2001, legal effect of charters made in terms of Mineral and Petroleum Resources Development Act 28 of 2002, notice by supplier to consumer before termination of consumer agreement, payment in terms of consumer credit agreement to be made by or on behalf of consumer, removal of claim and counter-claim from magistrates’ court to High Court, subpoena of witness during winding-up of company, use of identical affidavits in different cases making applications defective, validity of regulation prohibiting person holding visitor’s or medical treatment visa from changing status while in the country and whether creditor or minority shareholder can intervene to oppose winding-up application.

 This article was first published in De Rebus in 2018 (Oct) DR 38.

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