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[2016] ZAWCHC 128
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du Toit obo Mafanya v Road Accident Fund (A582/2015) [2016] ZAWCHC 128 (21 September 2016)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A582/2015
Before
the Hon. Mr Justice Bozalek et Hon. Ms Justice Fortuin et Hon. Mr
Justice Dolamo
Hearing:
28 July 2016
Judgment
Delivered: 21 September 2016
In the
matter between:
ADV
A.J DU TOIT obo NTSIKELELO
MAFANYA
Appellant
and
ROAD
ACCIDENT FUND
Respondent
JUDGMENT
BOZALEK
J
[1]
The appellant, in his
capacity as
curator
ad litem,
unsuccessfully applied for the setting aside of a settlement
agreement concluded by the patient in respect of the issue of
liability
(the merits) in a damages claim for bodily injuries
instituted against the respondent, the Road Accident Fund. Leave to
appeal
was refused but on petition the Supreme Court of Appeal
granted leave to appeal to the Full Bench.
[2]
The patient, Mr
Ntsikelelo Mafanya (‘the patient’ or ‘Mr Mafanya’)
was involved in a motor vehicle collision
on 19 November 2003 as a
passenger in one of the two vehicles which collided. He sustained
serious extensive injuries, including
a head injury, which led to him
being hospitalised for some three weeks, followed by further
hospitalisation for rehabilitation
purposes.
[3]
In October 2004 Mr
Mafanya signed a power of attorney empowering a firm of attorneys,
DSC Attorneys, to act on his behalf in connection
with his claim for
damages against the respondent arising out of the collision. The
various statutorily prescribed steps for the
lodging of his claim
were taken and eventually a trial date for the determination of the
issue of liability was set. Before the
trial could commence on 15
October 2009, Mr Mafanya’s attorney engaged in settlement
negotiations with the respondent’s
attorney which led to an
agreement that the respondent would be liable for 20% of such damages
as Mr Mafanya was able to prove,
together with his taxed costs. That
agreement was incorporated in a draft order and made an order of
court on 23 October 2009.
[4]
Nearly five years
passed until, in August 2014, Mr Mafanya’s wife applied to
court for the appointment of the present appellant,
a practising
advocate, as
curator
ad litem
to assist
her husband ‘
in
the prosecution of his claim for damages against’
the respondent. The application appears to have been served upon, or
at least delivered to, the respondent’s attorneys but
in the
event was not opposed. It was supported by the affidavits of three
specialists, namely a neurologist, Dr Johan Reid, a psychiatrist,
Professor T Zabow and a neuro-clinical psychologist, Ms M Coetzee.
All recommended the appointment of a
curator
ad litem
and, in
due course, that of a
curator
bonis
. None of
these three experts directly expressed an opinion on the patient’s
mental capacity as at October 2009, the time
when the settlement
agreement was concluded, nor pertinently dealt with that question in
either their affidavits or reports.
[5]
On 26 August 2014 the
appellant was appointed as
curator
ad litem
with
inter
alia
the following
powers:
1.
to prosecute the
claim against the respondent to final determination;
2.
to withdraw,
compromise or settle the claim;
3.
to ratify any
decisions made and/or proceedings conducted by or on behalf of the
patient relating to the claim prior to the curator’s
appointment.
[6]
In November 2014 the
appellant launched the application which is the subject of this
appeal and in which the principal relief sought
was an order ‘
setting
aside the settlement of the issue of liability as recorded in the
court order dated 23 October 2009’
.
The appellant was represented in those proceedings (and remains so
represented) by DSC Attorneys, although now by a different
attorney.
[7]
Relying on the
self-same affidavits and reports from Dr Reid, Professor Zabow and Ms
Coetzee, the appellant averred that the patient’s
inability to
manage his own affairs and give appropriate instructions in any legal
proceedings had also existed at the time when
the settlement
agreement was concluded. For that reason, the appellant averred
further, that the settlement was not in the best
interests of the
patient and should be set aside. He also dealt with the merits of the
claim in some detail, concluding that there
was no reason to
apportion any negligence whatsoever against the patient whom, he
stated, should have been entitled to an award
in respect of his full
damages. The appellant added that although the respondent had already
paid the patient’s attorneys
the sum of R86 000.00 odd in
respect of taxed costs pursuant to the settlement agreement, this
issue could still be dealt
with by any future trial court called upon
to deal with the issue of liability.
[8]
The application was
opposed by the respondent. An affidavit by the attorney who
represented it in the original litigation was filed
but no further
medical evidence relating to the patient’s mental capacity was
put up on behalf of the respondent.
[9]
In
dismissing the application the court a quo (Manca AJ) found that in
order to succeed, the
curator
ad litem
had to demonstrate that the patient had lacked the necessary
contractual capacity to give his attorneys a mandate to settle the
litigation in October 2004 i.e. when the order of court was taken. It
found that the medical evidence relied upon by the appellant
did not
meet this requirement, particularly in the absence of any evidence
from the patient’s attorneys as to his ability,
or lack
thereof, to give them proper instructions either when he signed the
power of attorney or when the question of liability
was settled in
2009. The Court declined to follow an approach based on the decision
in
Road
Accident Fund v Myhill NO
[1]
,
reasoning that that case was concerned with the interests of minors.
[10]
The appellant’s
grounds of appeal contend that the court a quo erred and misdirected
itself in assessing the various reports
and affidavits by the medical
experts in regard to the patient’s mental capacity. In
particular it was averred that the court
a quo had not properly
considered the reports of Dr Reid and that of Ms Coetzee and that it
had misinterpreted the affidavit containing
the opinion of Professor
Zabow. It was further contended that the court a quo had not attached
due weight to all the undisputed
medical evidence and to the fact
that the respondent itself had placed no medical evidence before the
court.
THE
ISSUE ON APPEAL
[11]
On appeal, counsel for
both parties were in agreement that the primary issue for
determination was whether the patient was capable,
in October 2009,
of providing his legal representatives with valid instructions
pertaining to the settlement. The parties made
various submissions in
argument regarding the questions of
res
judicata
and issue
estoppel. In my view, the primary question is as stated above and it
is unnecessary to deal with these further issues.
[12]
Dealing with the
primary issue requires in the first place an evaluation of the expert
medical evidence in some detail, and having
regard to its
chronological sequence. Before doing so, however, I should note that
a significant part of the appellant’s
application to set aside
the court order was devoted to his assessment of the merits of the
patient’s claim. In this regard,
reliance was placed on the
report of an accident reconstruction expert which was commissioned
prior to the settlement agreement
in October 2009. This report was
presumably taken into account by DSC Attorneys when negotiating the
settlement. Nonetheless, the
appellant expressed the opinion that the
terms of the settlement agreement were prejudicial to the patient and
not in his best
interest, and that should the question of liability
be revisited the patient would be able to claim 100% of any damages
which he
was able to prove. Not only is this opinion open to debate
but, in my view, the merits of the settlement agreement are, at best,
of very limited relevance in the application and should not be
allowed to cloud the determination of the primary issue. I turn
now
to the medical evidence.
DR
JOHAN REID
[13]
In his affidavit in
support of the application for the appointment of a
curator
ad litem
in July
2014, Dr Reid opined that Mr Mafanya was unable to manage his own
affairs as a result of ‘
his
cognitive impairment secondary to the head injury sustained in the
collision’
.
He furnished one report relating to the patient, dated 25 March 2014,
whom he first examined at that time, and to which he added
a brief
addendum on 23 June of that year. In the report he described the
patient’s head injury as ‘
that
of concussive head trauma with skull fracture, without evidence of a
significant brain injury’
.
He added that ‘
(n)o
neurocognitive change is expected after such a degree of injury’
and that ‘
the
reported subjective impairment of memory relates to on-going past
traumatic depression as a result of his poly-trauma and residual
orthopaedic deficits’
.
Amongst Dr Reid’s recommendations were that a psychiatrist
should conduct management of Mr Mafanya’s ‘
post
traumatic depression’
.
Clearly, upon no basis could this report serve as proof of the
patient’s mental incapacity as at October 2009. Nor does
it
appear that Dr Reid was ever called upon to express an opinion on
this issue.
[14]
In his addendum Dr Reid
indicated that he had now considered the June 2014 report of Ms
Coetzee which, according to him, revealed
the presence of a ‘
moderate
cognitive impairment secondary to the head injury’
of
November 2003. This, he indicated, required an adjustment to
the patient’s whole person impairment. Finally, he noted
that a
curator ad litem
should be appointed, but without motivating this recommendation.
PROFESSOR
T ZABOW
[15]
No medico-legal report
was furnished by Professor Zabow. He stated in his affidavit that he
had consulted with Mr Mafanya on 3 July
2014 and that on discharge
from hospital (presumably in 2009) Mr Mafanya had exhibited ‘
changed
behaviours with disinhibition, irritability, moodiness and
impulsivity which behaviours, have persisted. His daily functional
memory is defective and problematic in daily personal activities’
.
Professor Zabow stated that Mr Mafanya’s affect was
‘
blunted and
his communication satisfactory’
.
He added that the patient’s memory function was defective and
that he shows ‘
poor
insight and lacks judgmental capacity’
.
Professor Zabow stated further that the patient had suffered ‘
brain
damage with cognitive and behavioural symptoms which changes were
permanent and require management with medication and psychiatric
care’
. He
concluded that the patient was not able to manage his own affairs due
to his defective functioning level, secondary to a head
injury.
Finally, he expressed the view that the patient was in need of the
appointment of a
curator
ad litem
and
curator bonis
.
[16]
Although Mr Laubscher,
for the appellant, contended that on a careful reading of this report
Professor Zabow was expressing the
opinion that the patient’s
condition and impairment dated back to his discharge from hospital,
this opinion or statement
is not expressly made by Professor Zabow.
Furthermore, there is no indication in his affidavit on which
material or information
he based his conclusion, bearing in mind that
the only occasion upon which he examined the patient was
approximately ten and a
half years after the collision.
MS
M COETZEE
[17]
Ms Coetzee, a
neuro-clinical psychologist, deposed to an affidavit in the
application for the appointment of a
curator
ad litem
and
furnished one medico-legal report dated 17 June 2014. In her
affidavit she opined that the patient was unable to manage his
own
affairs as a result of his cognitive impairment secondary to the head
injury. She explained that she had examined the patient
on two
occasions, namely 7 September 2009 and 19 September 2013. The former
date is significant since it was a little less than
two months before
the settlement agreement was concluded and made an order of court,
and nearly five years before her fellow specialists
first examined
the patient.
[18]
In her lengthy report
Ms Coetzee stated that the referring question related to the nature,
extent and severity of any neuro-psychological
sequelae suffered by
Mr Mafanya arising from the relevant accident and injuries sustained
therein. Her listing of her sources of
information indicated, inter
alia, that she had interviewed Mr Mafanya’s wife in 2009 and
2013. She noted that in the 2009
interview Mrs Mafanya had expressed
various concerns regarding her husband, one of which was that he was
very forgetful. One notes,
however, that this was the only concern
expressed by Mrs Mafanya at that time which appears to impact on the
patient’s mental
capacity.
[19]
In 2013, by contrast,
apart from reiterating the patient’s struggles with regard to
his short-term memory, Mrs Mafanya is
reported by Ms Coetzee as
expressing concern about a range of other symptoms which appear to
relate to the patient’s mental
capacity. These were: a slowness
in grasping what was communicated to him; getting confused, for
example, calling the microwave
a stove; watching television but
seeming not to understand it or to follow the plot as he had
previously; and that his ‘
mind
was slow’
.
It is instructive that, judging by Ms Coetzee’s report, these
symptoms appear not to have been mentioned by Mrs Mafanya
in the 2009
interview.
[20]
After a full range of
tests and assessments Ms Coetzee noted that the patient was extremely
slow in terms of processing which resulted
in extremely low scores on
these tests. She reviewed the details of his head injury and his
recovery and noted that Dr Reid had
concluded that the injury was
that of a concussive head trauma with skull fracture, without
evidence of a significant brain injury.
[21]
Ms Coetzee found that
on testing, the patient had presented a wide distribution of test
scores but mostly performed in the extremely
low range, and further
that his verbal memory was an area of particular concern. In this
section of her report she concluded that
the list of deficits was in
excess of what was typically associated with a minor head injury and
also in excess of what can be
expected from someone suffering from a
moderate mood disorder. Ms Coetzee added:
‘
From
the information obtained it is clear that there has been an
unmistakeable drop in (the patient’s) level of functioning,
with immediate onset following the accident under review. In the
absence of an alternative explanation, one simply cannot rule
out the
possibility that a more significant head injury or even a secondary
brain insult associated with his multiple orthopaedic
fractures, had
occurred and has compromised his neuro-psychological function’.
[22]
Ms Coetzee also stated
in her report that the patient was ‘
suffering
from a Major Depressive Disorder of moderate degree that has
persisted for several years… presented significant
psychological distress on account of his injuries, as well as the
change in his quality of life. He highlighted his physical injuries
and the consequent functional impairment as a primary source of
frustration…once he has been optimally treated for his mood
disorder one can re-evaluate the situation and see whether there has
been a degree of improved mental control’
.
[23]
Finally, after
recommending psycho-therapy as well as pharmacotherapy to assist the
patient in coming to terms with his losses,
Ms Coetzee stated that
given ‘
his
neuro-cognitive deficits on testing, and in particular his executive
and memory difficulties, the patient required a curator
ad litem to
assist him in his current state’
.
[24]
The statement that the
drop in the patient’s level of functioning ‘
with
immediate onset following the accident’
represents
the high watermark of the appellant’s case. However, apart from
this reference, Ms Coetzee expressed no clear opinion
on Mr Mafanya’s
mental capacity as at October 2009.
[25]
On the other side of
the scale, as was pointed out in the respondent’s attorney’s
opposing affidavit, there were a number
of indications that as at the
relevant time the patient was well able to furnish clear instructions
to his legal representative.
[26]
Firstly, on 24 October
2004 Mr Mafanya signed a power of attorney in favour of DSC
Attorneys. No one from that firm has explained
the circumstances in
which it was taken or when it was regarded as no longer valid.
Secondly, on 18 November 2005 a RAF1 Form was
signed by or on behalf
of Mr Mafanya complete with all his personal particulars and
information concerning the collision. Thirdly,
on 19 April 2006 Mr
Mafanya signed an affidavit in compliance with
sec 19(f)
of the
Road
Accident Fund Act, 56 of 1996
, presumably drawn by his legal
representative, giving details of the collision. Fourthly, on 17
October 2007 Mr Mafanya furnished
an affidavit to the police giving a
coherent account of the collision in which he was involved.
[27]
Furthermore, between
June 2009 and July 2013, Mr Mafanya was apparently able to give a
coherent account of his injuries and disabilities
to a range of
experts for the purposes of the trial based on the question of
liability. These included two orthopaedic surgeons,
a plastic
surgeon, two occupational therapists and an industrial psychologist.
No head or brain injury was pleaded in the particulars
of claim on
behalf of Mr Mafanya. Finally, after the matter was enrolled for
adjudication, Mr Mafanya’s attorney negotiated
and settled the
claim (which included drawing a bill of costs and receiving payment
in respect thereof), without at any stage indicating
that she was not
competent to accept the offer on behalf of Mr Mafanya or that he
could not give proper instructions in regard
to the offer.
[28]
The application for the
appointment of a curator in August 2014 was brought nearly five years
after the order of court resolving
the merits and nearly 11 years
after the date of the collision. No explanation had ever been
forthcoming, either in that application
or in the
curator
ad litem’
s
application to set aside the court order, for these delays nor
explaining why the settlement agreement was concluded before the
appointment of a
curator
ad litem
if (at the
time), as is now contended, the patient lacked the requisite legal
capacity to give instructions or to be represented
on the strength of
the power of attorney which he had signed.
[29]
Other questions
seemingly calling for an explanation were not addressed in the
application. Considerable reliance was placed by
the appellant on Ms
Coetzee’s report of 17 June 2014 and her statement that it was
clear that there had been ‘
an
unmistakeable drop’
in the patient’s level of functioning, with immediate onset
following the accident in which Mr Mafanya was involved. However,
Ms
Coetzee first examined the patient on 7 September 2009, a month and a
half
before
the settlement agreement was made an order of court. She does not
indicate whether at that stage she had already formed the view
that
the patient needed a
curator
ad litem
as a
result of his head injury and, if so, whether she communicated this
to his attorneys. In that instance one would expect, of
course, that
no settlement agreement would have been concluded without the prior
intervention of a
curator
ad litem
.
[30]
Similarly, in March
2014 Dr Reid examined the patient and furnished a report but apart
from what he described as ‘
reported
subjective impairment in memory’
relating to on-going post traumatic depression, he expressed no doubt
concerning the patient’s mental capacity or recommended
the
appointment of a
curator
ad litem
. When
regard is had to the chronology it would appear that the spur to the
application for the appointment of a
curator
ad litem
was in
fact Ms Coetzee’s report of 17 June 2014.
[31]
Professor Zabow deposed
to an affidavit but furnished no report. His only consultation with
the patient was on 3 July 2014, more
than ten years after the date of
the collision. There is no indication on what information or reports
he based his conclusion,
of which the high-water mark is that the
patient exhibited ‘
changed
behaviours with disinhibition, irritability, moodiness and
impulsivity after his discharge from hospital’
.
CRITICISMS
OF THE COURT A QUO’S JUDGMENT
[32]
The appellant contended
that the court a quo had erred in not having regard to the addendum
by Dr Reid dated 23 June 2014, in which
he referred to Ms Coetzee’s
report dated 17 June 2014 and appeared to accept her neurocognitive
assessment which ‘
revealed
the presence of moderate cognitive impairment secondary to the head
injury of 19/11/2003’
.
Dr Reid then too expressed the opinion that a
curator
ad litem
should be
appointed. However, as the court a quo observed in its judgment
refusing leave to appeal, Dr Reid’s addendum does
not indicate
that he changed his initial conclusion. Nor does it suggest that he
was now driven to the conclusion that Mr Mafanya’s
‘
moderate
cognitive impairment’
was such as to render the patient lacking in mental capacity as at
the date of the agreement. That addendum was in fact, no more
than a
brief letter of which the main purpose appears to have been for Dr
Reid to motivate for a greater ‘
whole
person impairment’
for
the patient.
[33]
A further ground of
appeal was that in the court a quo’s references to Ms Coetzee’s
affidavit and her report dated 17
June 2014, it did not refer, nor
have regard, to the collateral information provided by the patient’s
wife to her on 7 September
2009 (a few weeks before the settlement
agreement of 23 October 2009) and again on 19 September 2013.
[34]
That collateral
information, however, does not support the conclusion that as at
October 2009 the patient was incapable of giving
instructions to his
attorneys. At best for the appellant, it recorded that the patient
was forgetful and had undergone a personality
change for the worse.
As previously mentioned that conclusion is, moreover, belied by the
specific collateral reports which Ms
Coetzee recorded in her report
indicating more particularly, that, it was only in 2013 that
manifestations of reduced cognitive
functioning on the part of the
patient were reported and recorded.
[35]
As a final makeweight
the appellant also relied on the report of Dr JP Driver-Jowitt, an
orthopaedic surgeon, who noted in February
2009, when referring to
the patient’s head injury, that he had lost significant
capacity for memory and now found it necessary
to write notes for
himself. He added that the opinion of a neuro-psychologist was
recommended ‘
since
this memory loss may have significant bearing on future employment’
.
This report was only filed by the appellant in the petition for leave
to appeal. However, apart from its questionable admissibility
the
report takes the matter no further since such memory loss does not
equate to an inability to give proper instructions to attorneys
and,
furthermore, was only mentioned by the expert in the context of it
possibly affecting the patient’s ability to obtain
employment.
[36]
For the sake of
completeness, I will deal with certain points raised by the appellant
in the heads of argument filed on its behalf
although not pursued in
argument.
[37]
Reliance
was placed by the appellant on the decision and approach taken in
Myhill
[2]
),
the submission being that it should be applicable to persons under
curatorship and that the court a quo had incorrectly decided
that the
decision was of no assistance in the present matter. In
Myhill,
the SCA set aside agreements concluded ten years previously between
the mother of two minor children and the RAF awarding damages
for
injuries sustained by them following a motor vehicle collision. It
held that the settlement amounts were wholly inadequate
and that the
agreements were so substantially prejudicial that the High Court had
correctly set them aside. At para [12] it was
stated:
‘
[12]
The principles relating to the rescission of a contract concluded on
behalf of a minor are well established and do not need
to be dealt
with in any detail. Suffice it to say that the parties were correctly
agreed that a contract may be set aside under
the restitutio in
integrum if it is shown that it was prejudicial to the minor at the
time it was concluded. […]
’
[38]
The
argument made on behalf of the appellant in the present matter is
that a person under curatorship is a statutory minor under
the
protection of the High Court and as such deserves the same protection
as that enjoyed by a minor. Further, it was submitted,
that if this
was not the case there was an inequality before the law between a
minor and a person under curatorship, and in terms
of the
Constitution,
[3]
the common law
should be developed to remove such inequality and provide such
protection.
[39]
The flaw in this
argument is that it begs the question of whether the patient was
under a disability at the time the settlement
agreement was concluded
which is the very question in respect of which the appellant bears
the onus of proof. The ratio in
Myhill
was not based on the fact that the minors were eventually represented
by a
curator ad
litem
when the
prejudicial settlement agreements were challenged but on the fact
that they were minors at the time when they were concluded.
I accept,
for the purposes of the present case that, if the appellant is able
to prove on a balance of probabilities that the patient
lacked legal
capacity as a result of his mental condition at the time that the
settlement agreement was concluded then, all things
being equal, he
is entitled to have the order of court rescinded.
[40]
A
further argument advanced on behalf of the appellant was that the
settlement could only be valid and binding if ratified by the
appellant who, it is common cause, has declined to do. In this regard
reliance was placed on amongst others
Mort
NO v Henry Shields-Chiat
[4]
and
Road
Accident Fund v Mdeyide
[5]
.
[41]
Mort’s
case concerned the unauthorised acts
of a legal representative of
non
compos mentis
litigant and whether these could be ratified by a
curator
ad litem
. It was
held that a curator was permitted to ratify unauthorised acts to the
same extent that the litigant would have been able
to do, had he been
compos mentis
.
But again, this is a different situation to the present matter where
the central issue is whether the ‘
litigant’
was
compos mentis
at the time of the conclusion of the settlement agreement or, put
differently, whether that settlement agreement constituted an
unauthorised act.
[42]
In essence, the
appellant’s argument in this regard is that since he was
granted the power to ratify certain decisions taken
previously by or
on behalf of the patient it follows that he has the converse power,
namely, to decline to ratify. This approach
also begs the question as
to whether the patient had the requisite legal capacity to conclude
the settlement agreement in October
2009, either by way of furnishing
a valid power of attorney or by giving direct instructions to his
attorney.
[43]
It
is to be noted that the power of attorney executed by the patient on
24 October 2004, in favour of his attorneys expressly empowered
them
to ‘
take
part in settlement negotiations, to settle the matter and to make any
payments or receive any compensation on my behalf’
.
The attorney settled the matter, if not on the basis of the patient’s
direct instructions, then at least on the basis of
the authority
contained in the power of attorney which prima facie is binding on
the patient. If there was any abuse of this authority
or negligence
on the part of the attorneys then recourse lies against them
[6]
.
On this subject, it is of some concern that the appellant’s
attorneys of record are the self-same attorneys who represented
the
patient from the inception of his claim. At the least, this raises a
potential conflict of interest given the dilemma facing
the attorneys
as to which I referred to earlier and it would have been preferable
had independent legal representatives been appointed
for the present
application.
[44]
In
Mdeyide’s
case it was held that if a plaintiff in a claim against the RAF had
been of unsound mind and had been without the assistance of
a
curator
ad litem
, he would
have lacked locus standi in the litigation, with the possible
consequences that the entire trial court proceedings might
be
rendered void, and the plaintiff’s instructions to his
attorneys would be called into question. In that case, however,
the
fundamental problem was the lack of proper inquiry into the
plaintiff’s capacity before and during the trial. It was
held
that the plaintiff’s conduct in court and the documentary
evidence ought to have suggested to all involved that something
was
badly amiss and it was clear that what was called for in the court
below was an inquiry in terms of Uniform Rule 57, at the
very least.
The above findings reinforce, indirectly, the importance of a full
inquiry, where appropriate, into a litigant’s
mental capacity
and certainly before a settlement agreement is concluded. The
judgment in
Mdeyide
thus takes the appellant’s case no further.
[45]
What
is relevant are the considerations relating to the status of an order
of court. In this regard the practice of, and requirements
for,
making a settlement an order of court are long standing as was set
out in
PL
v YL
[7]
:
‘
[15]
An overview of the
reported decisions on the subject shows that there are two basic
requirements that are to be met when the court considers a request to
grant a judgment in accordance with the terms of a settlement
agreement. The first is that the court must be satisfied that the
parties to the agreement have freely and voluntarily concluded
the
agreement and that they are ad idem with regard to the terms thereof
[…] To the first requirement must accordingly be
added that
the court must satisfy itself that the parties are in agreement that
the terms of their settlement be made part
of the order of the court.
The second requirement is that the order sought must be a competent
and proper one to make in the circumstances.[…]
[17]
The practice of making an agreement between the parties to litigation
in civil
matters an order of the court has a long history and has its
origins in our common law. A similar practice exists in the
English law
on which our own rules of civil procedure are
primarily based […]’
[46]
There are sound policy
reasons why orders of court made by agreement are, all things being
equal, not lightly overturned. It is
common practice for parties in
RAF matters (and other types of action for personal damages) to reach
an agreement on the issue
of liability and to proceed later with the
determination or settlement of the quantum of damages suffered. Where
there is any doubt
concerning the mental capacity of a litigant to
give proper instructions to his/her attorneys it is obviously
necessary to be alert
to this issue and to investigate the need to
appoint a
curator ad
litem
at the
earliest possible stage. Clearly, if agreements are reached or court
orders taken on liability, only for these to be repudiated
or
challenged later on the basis that the litigant did not have full
legal capacity to settle his/her claim or to give proper
instructions, the expeditious resolution of such claims is
compromised.
CONCLUSION
[47]
In the present matter
the onus of proving that the patient lacked the necessary mental
capacity to either give instructions on the
acceptance of the
settlement agreement or to furnish a valid power of attorney to his
legal representatives at the relevant time
clearly lies on the
appellant. In summary, however, although a
curator
ad litem
has been
appointed to the patient by reason of his lack of mental capacity
none of the expert reports focussed on the patient’s
mental
(and hence legal) capacity as at the crucial date, namely, when the
settlement agreement was concluded.
[48]
At best this issue can
only be addressed using these medical reports by way of inferential
reasoning. Even on this basis there is
no room to conclude that the
most probable inference to be drawn from them and from the affidavits
of the experts is that at the
relevant time the patient lacked legal
capacity by reason of the sequelae to his head injury. There are a
range of factors which
indicate that the appellant did in fact have
the necessary capacity at the relevant time, ranging from his signing
of a power of
attorney to his ability to furnish instructions to his
legal representatives and to communicate without difficulty with
various
specialists. No explanation has been forthcoming from DSC
Attorneys as to why, if the patient in fact lacked legal capacity,
they
nonetheless concluded the settlement agreement, had it made an
order of court and proceeded to act upon that agreement. Finally,
there is the question of the elapse of time and the lack of any
explanation for the delay of five years between conclusion of the
agreement and the application for the appointment of a
curator
ad litem
.
[49]
Notwithstanding that Mr
Mafanya’s attorneys held a power of attorney to settle the
matter, it is very probable that they conveyed
the terms of the
proposed settlement to him and obtained his instructions to settle on
that basis. It seems equally probable that
the attorney experienced
no difficulties in obtaining instructions from Mr Mafanya and had no
reservations about his mental state
since no other explanation has
been forthcoming. If that was not the case it is difficult to
understand how the attorneys could
have concluded the settlement
without at least making it subject to approval by a
curator
ad litem
on his
appointment.
[50]
It is possible that the
failure by DSC Attorneys to file an explanatory affidavit in this
application may well have been due to
the fact that they found
themselves on the horns of a dilemma: namely, either admitting that
they settled a claim on behalf of
a client without disclosing that he
lacked legal capacity or that they negligently failed to realise that
he lacked such capacity.
Whatever the true position may be, the
failure by the attorneys to depose to an affidavit inevitably has
adverse implications for
the appellant’s case.
[51]
Having regard to the
grounds of appeal, I consider that the court a quo properly evaluated
the evidence before it and did not err
in any regard. For all these
reasons, I am driven to the conclusion that the appellant has failed
to prove, on a balance of probabilities,
that the patient lacked the
necessary mental capacity at the relevant time.
COSTS
[52]
Counsel for the
respondent conceded that an order for costs against the appellant
himself would be inappropriate and that in the
circumstances of this
matter any order against the patient would be nugatory. Accordingly,
he did not press for a costs order but
left it in the hands of the
Court. In my view, nothing will be served by granting the respondent
its costs on appeal and it would
be equitable to make no order as to
costs.
[53]
In the result the
appeal is dismissed but with no order as to costs.
_____________________
BOZALEK
J
I
agree
_____________________
FORTUIN
J
I
agree
_____________________
DOLAMO
J
APPEARANCES
For the
Appellants:
Mr A Laubscher
Mr S
Dzakwa
Instructed
by: DSC Attorneys
For the
Respondent:
Mr D Potgieter (SC)
Instructed
by: Z Abdurahman Attorneys
[1]
2013 (5) SA
426 (SCA).
[2]
Ibid
n
1 above.
[3]
The
Constitution of the Republic of South Africa, 108 of 1996.
[4]
2001 (1) SA
464
(C) at 469B-471D.
[5]
[2007] ZACC 7
;
2008 (1) SA
535
(CC) at 548-549.
[6]
See in this
regard
MEC
for Economic Affairs, Environment and Tourism, Eastern Cape v
Kruizenga and Another
2010 (4) SA
122
(SCA).
[7]
2013 (6) SA
28
(ECG) at paras [15] and [17].