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[2017] ZAWCHC 59
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Thiessen and Another v Botha and Another (A243/2016) [2017] ZAWCHC 59 (26 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: A 243/2016
In
the matter between:
AXEL
THEISSEN
First
Appellant
ADAM
VICTOR PITMAN
N.O.
Second
Appellant
and
STEPHANUS
JACOBUS
BOTHA
First
Respondent
MARIANNE
HOLSCHER
Second
Respondent
JUDGMENT
DELIVERED ON 26 MAY 2016
GAMBLE,
J:
INTRODUCTION
[1]
On 20 March 2014 the first appellant, a
Namibian businessman, approached this court as a matter of urgency
for an order aimed, primarily,
at securing the appointment of a
curator
ad litem
to investigate the prospective appointment of a curator
bonis
in respect of the estate of his wife’s grandmother, Ms
Catharina Anna Huijskamp, (hereinafter referred to as “
the
patient”
where appropriate), who
resides in a retirement village at Stellenbosch.
[2]
Additional relief was sought interdicting
the respondents herein, together with an elderly friend of the
patient’s then cited
as the third respondent (Ms
Munter-Weidner), from exercising any control in respect of the
patient’s finances. The first
appellant also sought a
mandamus
obliging the first and second respondents to deliver certain movable
items belonging to the patient to the curator
ad
litem,
and asked that they further be
ordered to deliver to the curator
ad
litem
various of her financial
documents, bank statements, cheque books and the like. The
respondents were also requested to file reports
with the curator
ad
litem
explaining certain expenditure
allegedly incurred by them on behalf of the patient. Finally, the
first appellant asked that the
respondents pay the costs of the
application
de bonis propriis
on
the scale as between attorney and client.
[3]
When the matter came before court on 29
April 2014 the parties took an order by agreement. At that stage Ms
Munter-Weidner had provided
a written undertaking to the first
appellant on terms acceptable to him and she fell out of the picture.
The agreed order made
provision for the appointment of Ms Michelle
Baartman, a senior member of the Cape Bar, as curator
ad
litem
to investigate the feasibility of
appointing a certain Mr Andrew Calmeyer (an investment adviser) as
curator
bonis
to
the patient. The order further provided for the bulk of the ancillary
relief sought.
[4]
Ms Baartman filed her report at the end of
July 2014 whereafter there was a further exchange of papers and,
after heads of argument
had been delivered, the matter came before
Schippers J on the semi-urgent roll on 22 October 2014. Judgment was
delivered on 3
June 2015 with the court appointing the second
appellant (who is the first appellant’s attorney of record),
and not Mr. Calmeyer,
as the curator
bonis.
The court
a
quo
refused certain of the ancillary
relief sought and made costs orders against the estate of the
patient.
[5]
The second appellant then sought leave to
intervene as a party in the proceedings on the basis that he was then
in control of the
patient’s estate, and together with the first
appellant, applied for leave to appeal certain of the terms of the
order of
3 June 2015. That application, which was opposed by both of
the respondents, was dismissed by Schippers J on 15 December 2015
with
costs. The first and second appellants then made application to
the Supreme Court of Appeal and both were granted leave to appeal
to
the Full Bench of this Division on 15 February 2016. The Supreme
Court of Appeal also set aside the costs order in the application
for
leave to appeal before Schippers J and directed that those costs, as
well as the costs in the application before it, be costs
in this
appeal.
[6]
During the hearing of this appeal the court
enquired from Mr. Barnard, counsel for the appellants who also
appeared in the court
below, whom he represented, given that the
notice of appeal filed by his attorney reflected himself (in his
capacity as the curator
bonis)
as
the second appellant herein, while the heads of argument reflected
the first appellant as the only party to the appeal. Counsel
informed
the court that the second appellant’s name had “
crept
into
the
record in error”
pursuant to an
order unsuccessfully sought in the application for leave to appeal
before the court
a quo
and
that he was not a party to these proceedings. I shall revert to this
explanation later but for the sake of convenience I shall
henceforth
refer to the erstwhile applicant, Mr. Axel Theissen, as “
the
appellant
” and the appointed
curator
bonis,
Mr.
Pitman, as “
the curator
bonis
“
where appropriate. Counsel further informed this court that Mr.
Pitman’s presence in court for purposes of the hearing
of the
appeal was in his capacity as the instructing attorney on behalf of
the appellant, that he did not attend court in his capacity
as
curator
bonis
and
that he would not recover any fees in respect of such attendance from
the estate of the patient.
BACKGROUND
FACTS
[7]
There is an old adage to the effect that
“
where is will, there are
relatives
.”
That situation would seem to apply here save that one is not dealing
with a deceased estate. The estate of the patient
which is under the
curatorship of the second appellant is a sizeable one, consisting of
assets held both locally and abroad. The
patient’s late husband
was a wealthy businessman who died in 2001 leaving his entire estate
to her. It would be fair to say
that this estate, and in particular
the administration and control thereof, has attracted the attention
and interest of various
of the patient’s relatives, all of them
ultimately concerned with the well-being of the patient. A little bit
of family background
is therefore necessary for a proper
understanding of this matter. For the sake of convenience, I shall
refer, where appropriate,
to the parties by their first names for the
avoidance of confusion. No disrespect is intended thereby.
[8]
The patient bore her late husband one
child: a daughter, Carla von Bergmann, who lives a peripatetic
lifestyle, residing at the
time of the hearing of the application in
Hamburg, Germany. Carla was previously married to Christoph von
Bergmann, who after their
separation moved to Namibia. Carla and
Christoph had two daughters: Carina, who does not feature in the
piece, and Alexia Theissen
who is married to the appellant. The
Theissens, who live in Windhoek, have children of their own but they
do not feature in the
matter either. Christoph, it seems, is well
disposed to his daughter Alexia and the first appellant.
[9]
At some stage after her father’s
death, Carla lived in Franschoek, a town near Stellenbosch. It is
said that, notwithstanding
the proximity of the two towns, the
relationship between mother and daughter was strained. Indeed, the
curator
ad litem
reports
that there was no contact between them for more than a year during
the period 2003 – 2005. Be that as it may, Carla
seems to have
moved to Germany to advance her career as a mature fashion model and
while there was diagnosed with cancer and incurred
substantial
medical expenses. The patient was regularly called upon to provide
financial support to Carla to enable her to pay
her rent and receive
medical treatment overseas. The evidence suggests that she did not
always do so benevolently but rather out
of a sense of maternal duty.
[10]
The patient has three brothers - Dick, Piet
and Johan Holscher, the latter having passed away. Dick has three
daughters –
Marianne Holscher (the second respondent), Dorette
Vermeulen and Marlene Pienaar - and a son, Johan. Piet Holscher, it
seems, has
no children while the late Johan Holscher had a daughter,
Cecile, who is married to Deon Dippenaar. Of all these descendants
from
the Holscher line, only the second respondent, Marianne
Holscher, resides in the Western Cape. Cecile, Dorette and Marlene
live
in Gauteng while Johan junior’s whereabouts are not
disclosed. In addition, Christoph has a sister-in-law, Ann-Mari, who
is married to his brother Prof Hubertus von Bergmann and who resides
in Somerset West. The second respondent resides in Stellenbosch
where
she conducts an interior design business.
[11]
Mr. Calmeyer was the financial adviser of
the patient’s late husband. After the latter’s demise, he
continued to advise
the patient and saw to it that the estate was
beneficially invested, predominantly through a company controlled by
him known as
Personal Trust (Pty) Ltd. At some stage a financial
consultant from Stellenbosch known as Ms. Anna Kotze also became
involved in
the management of the patient’s financial affairs.
All the while, the second respondent was an active presence in the
patient’s
life. She says that she has been close to her aunt
since childhood, that she assisted her with her move from her home in
Stellenbosch
to her current place of residence, and was latterly the
only relative close enough to the patient to be able to see her on a
regular
basis and, importantly, to attend to any emergencies which
might arise from time to time.
[12]
When the application was launched the
patient resided independently in a dwelling unit in a retirement
village in Stellenbosch known
as “
Le
Bonheur”
. It would appear that
certain of the staff there were not well disposed to the second
respondent whom they regarded as an unnecessary
intrusion in the
patient’s day-to-day life. She, in turn, took umbrage at their
interference in her relationship with the
patient. Not much turns on
this save that it may go some way towards explaining the source of
antipathy of the appellant towards
the second respondent
[13]
Carla, it appears, did not visit her mother
regularly. The papers reflect that she saw her in July 2013, and then
again a year later
after the institution of the curatorship
application. The second respondent says that during the July 2013
visit Carla expressed
concern about her mother’s mental health
and took legal advice on the possibility of placing her under
curatorship. She says
that Carla took the patient to see her treating
psychiatrist and in a report dated 2 August 2013, Dr Chris van den
Berg of Stellenbosch
expressed concerns about the patient’s
memory but did not consider it necessary for the immediate
appointment of a curator
at that time. In a short report placed
before the court he indicated that the patient first experienced
symptoms of dementia in
about 2010. She was then treated with
medication which seemed to stabilize her condition but the
psychiatrist did indicate that
curatorship or a general power of
attorney over the patient’s property might have had be
considered in the near future. Be
that as it may, some 8 months later
two psychiatrists (Dr van den Berg himself and Prof Tuviah Zabow of
Cape Town) both recommended
the appointment of a curator in light of
their diagnosis then that the patient was suffering from dementia,
possibly of the Alzheimer’s
type.
[14]
Prior to this, those close to the patient
became progressively concerned about her mental health and her
ability to properly manage
her financial affairs. For instance, in
April 2013 the second respondent expressed concern in an email to
Anna Kotze and Ann-Mari
von Bergmann, saying that she was worried
about the integrity of patient’s memory and that there was the
potential that she
could “
sign
away a lot of her money and not knowing (sic) exactly for what
purpose!”
Mr. Dippenaar
describes how the patient visited his family in Krugersdorp in May
2013 to celebrate her birthday and how she
complained to them about
her daughter’s indifference towards her. She is also said to
have expressed concern to the Dippenaars
about her ability to control
her finances, particularly in light of the pressure that had been
placed upon her by Carla to fund
her living and medical expenses in
Germany. Mr. Dippenaar goes on to say that certain of the family
members (he, Cecile, Dorette,
Piet and the second respondent)
discussed the situation and decided that the patient needed an
independent financial adviser.
[15]
Mr. Dippenaar considered the first
respondent, Mr. Fanie Botha, to be a suitable person to fulfill that
role, having dealt with
him personally in regard to his own financial
planning, and in relation to the winding up of the estate of his late
father-in-law,
Johan Holscher. Mr. Dippenaar introduced the first
respondent to the patient and at their first meeting during July 2013
(attended
also by the second respondent) it became apparent that the
first and second respondents knew each other from university days,
although
they had not had any contact in the intervening period.
[16]
The first respondent thereafter set about
restructuring the patient’s financial affairs, which involved,
inter alia
,
the withdrawal of existing general powers of attorney in favour of
Mr. Calmeyer and Ms. Kotze and the replacement thereof with
a power
in his favour. He also arranged for the second respondent, Ann-Mari
and Ms. Muenter-Weidner to have signing powers over
the patient’s
bank account but intentionally did not secure those powers for
himself. The first respondent moved certain
of the patient’s
assets from Personal Trust into different investment instruments
controlled by local and off-shore entities
under the aegis of Sanlam
Ltd and recommended the establishment of an
inter
vivos
trust to ultimately house the
patient’s assets. This was seen by him as a viable alternative
to curatorship, it being contemplated
that various family members
would act as trustees to look after the patient’s affairs.
[17]
As these things go, the Theissens, while no
doubt acting with the interests of the patient at heart, seem to have
got the wrong
end of the stick, believing that the first and second
respondents were in cahoots and busy enriching themselves at the
expense
of the patient. That much is clear from some of the serious
but unsubstantiated allegations made in the founding papers based
largely
on supposition, inference and half-truths. For example, the
appellant said that he understood that the second respondent worked
for the first respondent and that they were, in addition, close
friends. He also alleged that Cecile was the second respondent’s
sister when in fact she was her niece. Further, reliance was placed
on extensive hearsay allegations made by the staff at the retirement
facility at which the patient resided regarding the second
respondent’s presence in the patient’s daily life.
[18]
It seems fair to infer, too, that the
Theisens took their lead from Carla, who was no doubt concerned about
any interference with
the source of her own financial well-being in
the future. In the result, the appellant took it upon himself to
visit the patient
in Stellenbosch and investigate the management of
her financial affairs. He took this step because he says it was
obvious to him
that the patient was having memory lapses from time to
time and was behaving inconsistently in relation to her financial
affairs.
[19]
The appellant had a meeting with the first
respondent on 16 October 2013 at which the patient was present. The
appellant directed
queries at the first respondent as to whether any
payments had been made from the patient’s account to the second
respondent
or any others. The first respondent indicated to the
appellant that he had knowledge of 6 cheques which had been drawn on
the patient’s
Nedbank account, being –
·
a donation to a church in the amount of R50
000;
·
a donation to the Cancer Society in the
amount of R50 000;
·
a cheque made out in favour of the second
respondent in the amount of R50 000;
·
a cheque made out in favour of Dorette in
the amount of R20 000;
·
a cheque made out in favour of Cecile also
in the amount of R20 000;
·
a cheque (the beneficiary whereof was
unknown) also in the amount of R 20 000.
[20]
The appellant said that he sought details
of these payments from the patient on that day and that she told him
that she did not
recall signing any such cheques or of having
requested anybody to draw them. The appellant described the patient’s
response
as “
perplexed”
and
he stressed that her recollection was poor. That notwithstanding he
considered it appropriate to procure a general power of
attorney from
the patient in his favour the following day, claiming that he
preferred “
to take control of her
financial affairs to safeguard her estate against any
maladministration or mismanagement.”
He was at pains to point out that he had no ulterior motive other
than safeguarding the patient’s estate. The general power
of
attorney granted the appellant very wide powers and effectively
placed him in control of the patient’s estate.
[21]
In that capacity the appellant interrogated
all and sundry regarding the patient’s financial affairs. In
particular he wanted
details of the first respondent’s conduct
in establishing various offshore investment accounts from which
payments had been
made to Carla. Early in November 2013 the first
respondent informed the appellant that the patient had revoked the
general power
of attorney in his favour and wished to entrust her
brother Piet with the management of her estate. When the appellant
made enquiries
of the patient in this regard, he was once again
alerted to her state of confusion and memory loss. The appellant says
that, in
light of what had occurred over the previous couple of
months , he –
“
..
was
constrained to conclude that each of the respondents had persistently
and on an ongoing basis sought to take control of the
financial
affairs of Ms Huijskamp, for their own personal benefit, and for
unlawful purposes.”
[22]
It
would be fair to say therefore that late in 2013 and in the first
quarter of 2014 mistrust as opposed to familial co-operation
and
joint problem-solving aimed at addressing the patient’s
predicament became the order of the day. Rather than confront
the
first and second respondents and other family members of the older
generation with his expressed concerns that they were busy
“
plundering”
[1]
her estate, the appellant decided to take the litigation route.
Importantly, those close to the patient were not advised of the
reports of Dr Van den Berg or Prof Zabow and asked to co-operate in
the appointment of a suitable curator. Rather, they were confronted,
on short notice, with an application comprising some 100 pages which
included prayers that all 3 erstwhile respondents should personally
pay the costs of the application on the punitive scale. The notice of
motion made provision for Part A and Part B relief and in
light of
the issues on appeal, it is necessary to set out that relief in some
detail.
RELIEF
SOUGHT IN THE NOTICE OF MOTION
[23]
Aside from the customary prayers for urgency and alternative relief
the appellant claimed the following relief in the notice
of motion:
“
PART
A
2. Interdicting
and restraining, with immediate effect, first, second and third
[2]
respondent from performing any action or duty in relation to the
affairs and/or estate of Catharina Anna Huijskamp
[“the
patient”]
;
3. Directing
each of the respondents to, within 14 days of the date of this order,
hand over to the applicant’s attorneys,
at the address provided
in this notice of motion, the following items and documents, pending
the appointment of the curator
bonis
contemplated by prayer 10 below,
at which stage the applicant’s attorneys shall deliver all such
items and documents to the
appointed curator:
3.1
All documents, of whatsoever nature, relating to the affairs of [the
patient], and any such other documents that may relate
to the estate
held by, under the control of or in the possession of any of the
respondents;
3.2
Without derogating from the generality of the above order, directing
that all financial statements, bank statements and all
other
documents relating to the financial investments and banking affairs
of [the patient], be so handed over to applicant;
3.3
All bank cards, credit cards, debit cards, petrocards, and pin codes
of such cards, of [the patient] held by, under the control
of or in
the position of any of the respondents;
3.4
Any movable assets, of whatsoever nature, that any of the respondents
claim to have received from [the patient], or that they
took from the
latter, for the period of 1 July 2013 to date hereof.
4. Directing and
ordering first, second and third respondents to submit to the Court
and the applicant, within 14 business days
of the date of this order,
a written report reflecting the following:
4.1
Full particulars of every cheque drawn on the account of [the
patient] held at Nedbank, Stellenbosch with account number
1071324969,
from 1 July 2013 to date hereof;
4.2
Full particulars of every electronic transfer made on the above
account of [the patient] to any other account, from 1 July 2013
to
date hereof;
4.3
Without derogating from the orders in paragraphs 4.1 and 4.2 above,
full particulars of the amount of such cheque/transfer,
the
beneficiary of the cheque/transfer, the
causa
for the payment of the cheque or the transfer made, and in what
manner [the patient] authorised payment thereof, or the transfer;
4.4
Full particulars of every payment, of whatsoever nature, whether in
cash or otherwise, other than the cheque payments and transfers
contemplated by paragraph 4.1 and 4.2 above, made by any of the
respondents on behalf of [the patient], from 1 July 2013 to date
hereof.
5. Directing and
ordering first respondent to, within 14 business days of the date of
this order, submit to the court and the applicant
a written report,
setting out the particulars below:
5.1
A description and identification of each and every investment and/or
financial account of [the patient] that first respondent
purportedly
managed and/or administered on her behalf, for the period of 1 July
2015 to date hereof;
5.2
A description and identification of each and every investment and/or
financial account of [the patient] in respect of which
the first
respondent, during the period from 1 July 2013 to date hereof,
recommended, and/or caused to be effected, any changes
or
modifications;
5.3
Full particulars of any payment made, or any transfer made, from any
investment account and/or other financial account of [the
patient]
under the control, management and/or supervision of the first
respondent, during the period from 1 July 2013 to date hereof;
5.4
A full account of all fees, disbursements and all/or any other
payments to the first respondent, made by [the patient] or debited
to
any of her accounts during the period from 1 July 2013 to date
hereof;
5.5
Full particulars of the registration and authorisation of the first
respondent to act as financial advisor including, where
such
particulars appear from a written document, a copy of any such
document reflecting such particulars;
5.6
Copies of any written mandate, or power of attorney, whether for ad
hoc purposes or for a specific period of time, held by the
first
respondent during the period from 1 July 2013 to date hereof, to
perform any act or service for and/or (sic) behalf of [the
patient].
6. Directing and
ordering the respondents to show cause, on the date as contemplated
by prayer 8 below, why it should not be declared
that the respondents
shall not have any right or entitlement to be in possession, or to be
the owner of the items as contemplated
by prayer 3 above;
7. Directing and
ordering that advocate Michelle Baartman, practicing as advocate in
Cape Town, be appointed on behalf of [the patient]
as curator
ad
litem
to report upon the
feasibility of the appointment of Andrew Daniel Calmeyer as curator
bonis
for [the patient], as
contemplated by rule 57 (5) and (6).
8. Directing and
ordering that, the above relief having been granted to applicant, the
matter shall be postponed to a date to be
determined by this
Honourable Court, for the purposes as contemplated under
Part
B
hereof;
PART B
BE PLEASE TO
TAKE FURTHER NOTICE THAT
the
applicant shall apply, upon the date as determined under prayer 7 in
PART A
above, for an order in the following terms:
9. Declaring
[the patient] to be of unsound mind and as such incapable of managing
her own affairs;
10. Directing
and ordering that Andrew Daniel Calmeyer be appointed as curator
bonis
for
[the patient];
11. Directing
and ordering that respondents, jointly and severally, pay the costs
of this application
de bonis
propriis
on the scale as between
attorney and client;”
THE
ORDER OF 29 APRIL 2104
[23]
The matter was postponed at the first
hearing for a fortnight and on 29 April 2014 the parties took an
order by agreement before
Weinkove AJ (hereinafter “
the
Weinkove order
”) in terms whereof
–
23.1 Ms Baartman
would be appointed curator
ad litem
and
would file her report by no later than Wednesday, 25 June 2014
;
23.2 The matter
would be postponed for hearing on the semi-urgent roll on 18 August
2014 with a timetable fixed for the filing of
further affidavits and
heads of argument;
23.3 The first and
second respondents undertook not to perform any action or duty in
relation to the affairs and/or the estate of
the patient, other than
as authorised and/or directed by such order, pending the finalisation
of the proceedings;
23.4 There would be
further orders in accordance with the terms of paragraphs 3, 4 and 5
of the notice of motion, as set out above;
23.5 The first
respondent undertook not to proceed with any steps relating to, or
aimed at giving effect to, the transfer of any
assets of the patient
to the HCH Trust;
23.6 The second respondent undertook,
in terms of the provisions of the parties’ agreed timetable
referred to in para 23.2
above,
“
to
hand over any movable assets claimed to have been received from [the
patient] during the period of 1 July 2013 to the date of
this order,
including any motor vehicle and/or keys to such motor vehicle, unless
she deposes to an affidavit setting out the grounds
upon which she
claims not to be under any obligation to retain such asset(s), which
affidavit should be filed as contemplated”
23.7 All issues of costs were reserved
for later determination.
Although
the order does not reflect a reservation of the respondents’
rights, this seems to have been intended if regard be
had to the
structure of the order read in the context of the preliminary
affidavit filed by the second respondent and the correspondence
which
was exchanged in anticipation of the agreement to the order.
[3]
FIRST
AND SECOND RESPONDENT’S COMPLIANCE WITH THE WEINKOVE ORDER
[24]
On 13 May 2014 the first respondent filed a detailed report with the
curator
ad litem
in compliance with his obligation under the
Weinkove order: the document with annexures runs to almost 100 pages.
He described
the various steps taken in re-investing the patient’s
assets and,
inter alia
, in effecting payments to Carla in
Germany. He also gave details of commissions which he earned when
placing off-shore investments
with Sanlam SPI (UK) and BNP Paribas
Wealth Management on behalf of the patient, and referred to two
invoices rendered in respect
of “
services rendered”
.
The amounts involved were R 3500 and R5750 respectively.
[25]
On 12 May 2015 the attorneys acting for the second respondent
delivered a report to Ms Baartman in compliance with paragraph
5 of
the Weinkove order. Her explanation was accompanied by various
supporting documents explaining all of the transactions made
on the
patient’s cheque account.
[26]
Thereafter the curator
ad litem
conducted her investigation,
interviewing all of the principal actors in the piece. In the result
the curator
ad litem
took longer than the parties originally
anticipated and her report was only filed on 30 July 2014. This left
insufficient time
for the respondents to respond to the report and
for the parties to prepare for the hearing on 18 August 2014.
In the circumstances
the matter was postponed until 22 October 2014
when it was heard by Schippers J.
THE
ORDERS MADE BY THE COURT
A QUO
[27]
When the matter came before Schippers J he was asked to appoint both
Messer’s Pitman and Calmeyer as joint curators
bonis.
In
addition, the court was asked to direct the first appellant to repay
to the patient’s estate the sums of R3750 and R5000
in respect
of legal services said to have been unlawfully rendered to her, as
also his commission on the off-shore investments
said to amount to
R50 000. The court was also asked to order the second respondent
to repay the sum of R50 000 (the proceeds
of the cheque drawn in
her favour in September 2013) to the estate, and to hand over a
leather-bound collection of National Geographic
magazines to the
patient. The latter were referred to by the second respondent in her
report to the curator
ad litem
as being a gift from the
patient to her adult son.
[28]
The court
a quo
was also asked to make a punitive costs order
against the respondents jointly on the basis that their conduct had
necessitated the
application for curatorship. In the founding
affidavit the appellant reasoned as follows in purporting to make
this demand on behalf
of the estate of the patient:
“
100.
Although the respondents cannot be held responsible for the
deterioration in the mental health, and for the cognitive and memory
impairment of Ms Huijskamp, and accordingly would not, under normal
circumstances, be responsible for the fact that an application
had to
be made for the appointment of a curator
bonis
on behalf of Ms Huijskamp,
the facts set out below justify a costs order against each of the
respondents, jointly and severally,
in these proceedings, including
the extent thereof that relates to the appointment of a curator
ad
litem
and curator
bonis.
101. Prior and
up to 6 July 2013 Calmeyer was managing the financial affairs of Ms
Huiskamp in an impeccable manner. But for the
intervention of the 3
respondents, he would have continued to do so uninterrupted to date
hereof, and would have been able to address
any issues arising from
the deterioration in the cognitive and memory facilities (sic) of Ms
Huijskamp.
102. Despite the
onset of the conditions (sic) as identified in the affidavits of the
two psychiatrists, Calmeyer would have discharged
his duties as if he
were a curator
bonis,
but for the interference of the three respondents in the affairs of
Ms Huijskamp.
103. As a direct
result of the intervention of the three respondents, Calmeyer’s
services were terminated. The intervention
of the three respondents
accordingly necessitated both of the urgent relief sought in this
application, and the relief seeking
the appointment of a curator
bonis
for Ms Huijskamp, who (in the curator), in the final analysis, is
likely to be Calmeyer.
104. I
accordingly contend that it is only fair and reasonable that the
respondents, jointly and severally, be held liable for the
entire
extent of the costs occasioned by this application.”
[29]
In the founding affidavit the appellant made much of the fact that
the first respondent had purported to act as an attorney
when in fact
he was precluded from doing so by virtue of the fact that he no
longer held a trust account but was registered with
the Cape Law
Society as a so-called “
non-practicing attorney
”.
It was claimed that the first respondent had wrongfully debited fees
to the estate of the patient for doing the work of
an attorney in
drawing up mandates and powers of attorney.
[30]
The first respondent explained that he had previously practiced as an
attorney but had left the profession to work in the financial
services sector. When he did so he placed his name on the
“
non-practicing roll of attorneys
”. He went on to
say that he had consulted senior colleagues and staff at the Cape Law
Society at the time, all of whom assured
him that he was entitled to
continue with the drafting of wills and setting up of trusts and the
like on behalf of his clients.
In the process of rendering services
to the patient the first respondent says he presented her with
invoices for services rendered
in respect of the drafting of her will
(R3500-October 2013) and mandates (R5750-December 2013). This was
disclosed in his report
to the curator
ad litem.
[31]
During argument before the Court
a quo
counsel for the first
respondent, Ms Liebenberg, conceded from the Bar that these amounts
were repayable to the patient’s
estate on the basis of a
potential contravention of the Attorneys Act.
[32]
In the result, Schippers J found that the patient was incapable of
managing her own affairs and directed that Mr. Pitman be
appointed as
the sole curator
bonis
to the patient on the customary terms
[4]
.
In addition the court made the following orders in para 27 of the
judgment.
“
(c) The
application for an order directing the first respondent to pay the
sum of R 50,000.00 received pursuant to his appointment
as financial
advisor to Ms Huijskamp, is refused.
(d) The
application for an order directing the first respondent to repay the
following amounts received from Ms Huijskamp, is granted:
R3500.00 in
September 2013; and R5750.00 in November 2013. The first respondent
shall pay the said amounts to the curator
bonis
within 14 days of the date of this order.
(e) The
application for an order directing the second respondent to pay the
sum of R 50,000.00 received in September 2013, and to
return a
leather-bound set of National Geographic magazines to Ms Huijskamp,
is refused.
(f) The costs of
this application, including the costs of the curator
ad
litem
, shall be paid out of the
estate of Ms Huijskamp.
(g) The costs of
the first respondent, limited to the sum of R 13,000.00, shall be
paid out of the estate of Ms Huijskamp.
(h) The second
respondent’s party-and-party costs shall be paid out of the
estate of Ms Huijskamp.”
[33]
In refusing to grant the relief in terms of para’s 27(c) and
(e) the Court
a
quo
found
that the appellant had failed to make out a case for such relief in
the founding affidavit.
[5]
The order made in terms of para 27(g) was based upon the first
respondent’s alleged customary hourly rate
[6]
.
THE
NOTICE OF APPEAL
[34]
On 14 March 2016 the appellant filed his notice of appeal pursuant to
the order of the Supreme Court of Appeal on 15 February
2016 granting
him leave to approach the Full Bench. This document, which runs to 16
pages, contains extensive narrative and argument
rather than just
stating the grounds of appeal as required by Rules 49 (1)(b) and (4).
Nine pages of the notice are devoted to
an attack on the costs orders
made by the court
a
quo: that in itself is probably a fair
indication of the true purpose of the appeal.
[35]
I would add, for the benefit of practitioners, that the notice of
appeal is unduly lengthy and verbose and seems to follow
a trend in
this Division in which the case is effectively argued in the notice,
much like heads of argument which are required
to be filed prior to
the hearing of the appeal. In
Hing
[7]
Binns-
Ward J (on behalf of the Full Bench) restated the purpose of a notice
of appeal:
“
In
deciding whether the appeal should be entertained in the current
rather different situation I consider the purpose of the notice
of
appeal must be kept in view. It is to define the ambit of the appeal
for the benefit of the appellate court and the respondent.
The court
needs to know the issues arising out of the judgment of the court
a
quo
that it is called upon to
determine and the respondent needs to be informed of what it has to
address in argument.”
That
purpose is not served by the filing of a voluminous document which is
akin to a litigant’s heads of argument: a notice
of appeal is
not the place to make submissions and assert facts which do not
appear from the judgment. Importantly, brevity and
conciseness rather
than verbosity is the preferred approach.
[36]
In addition to appealing against the costs orders made in para’s
27(f), (g) and (h), the notice of appeal attacks the
orders made in
para’s 27(c) and (e) of the judgment. There is no appeal
against the order made in para 27(b). I shall revert
later to the
appeal against the costs orders but before I do so it is necessary to
address the
locus standi
of the appellant in relation to the
attack made on appeal against para’s 27(c) and (e) as also his
locus standi
in the court below.
LOCUS
STANDI
OF THE APPELLANT –
A QUO
AND ON APPEAL
[37]
In an initial 4 page preliminary answering affidavit dated 15 April
2014, the second respondent took the point that the appellant
had no
locus standi
to seek interdictory relief against her.
“
7. I am
advised that it appears from the founding papers that the Applicant
lacks the necessary
locus standi
to bring the application for the interdictory relief sought against
me, and that no proper case has been made out for the very
broad and
drastic further relief sought. I am advised that the requirements for
a final interdict are the existence of a clear
right, an injury
actually committed or reasonably apprehended, and the absence of an
alternative remedy. The Applicant in this
matter lacks any clear or
even
prima facie
right to the relief sought against me, and my conduct has not caused
any injury or harm to Applicant or to my aunt. Applicant is
also not
entitled to delivery of any of my aunt’s documents or property
to him, or to require me to report to him. These
issues will be
addressed in legal argument at the hearing of this application, and
this Honourable Court will be requested to dismiss
Applicant’s
application against me with costs.”
[38]
In that affidavit the second respondent stressed that she wished to
avoid incurring unnecessary legal expenses (which she said
she could
not afford) and referred the court to a letter which her attorney had
written to the appellant’s attorneys on 3
April 2014 in which
her position was set out in detail and in which certain interim
undertakings were furnished on behalf of the
second respondent. In
that letter, too, the appellant’s
locus standi
was
challenged. However, the second respondent’s undertakings were
not acceptable to the appellant and in the result the
parties agreed
on the terms of the Weinkove order.
[39]
After the curator
ad litem
had filed her report, the second
respondent filed a comprehensive answering affidavit on 5
th
August 2014. In that affidavit too she challenged the appellant’s
locus standi
on a similar basis to that set out above. On 15
August 2014 the appellant filed a replying affidavit and dismissively
dealt with
the allegations of his lack of standing in the
supplementary answering affidavit as follows–
“
43.1 The
contents of the paragraphs under reply are misconceived, and to the
extent that any merit might have lurked (sic) therein,
in any event
(sic) water under the bridge.
43.2 The
application is no longer in a phase where I specifically seek any
relief against Holscher.
[8]
The opportunity for Holscher to have objected to my locus standi
would have been prior to the date upon which the court order made
by
His Lordship Mr. Justice Weinkove came into existence.
[9]
From the date of such court order, the obligations of the second
respondent arose from such court order, and not from any relief
that
I sought in the notice of motion.
43.3 To
illustrate my above contention, I point out that the obligations of
Holscher arise from the provisions of paragraph 5 and
6 of such
order. In brief, for purposes of complying with such order Holscher
bore the obligation to hand over to the appointed
curator ad litem
the documents stipulated by paragraphs 5.1 to 5.3 of the order, and
to compile the report contemplated by paragraph
6 of such order.
43.4 In addition
to the above, the obligation was imposed upon Holscher to, in terms
of the provisions of paragraph 5.4 of the order,
hand over to the
curator ad litem any movable assets of whatsoever nature ‘that
any of the respondents claimed to have received
from [the patient],
or that they took from the latter’ subject to the provisions of
paragraph 8 of the order.
43.5 There is
accordingly no separate relief other than the enforcement of the
court order and payment of the costs of the proceedings
jointly and
severally with Botha, that I currently seek against Holscher. The
obligations that caused Holscher to file papers in
this matter arose
from the provisions of a court order to which she had agreed to be
bound. The only substantive ‘relief’
at all, is the
enforcement of the court order against Holscher.
43.6 For the
above reason the exposition (sic) by Holscher of what is required for
purposes of obtaining an interdict against her
amounts to irrelevant
verbiage. The interdict has (sic) already been granted on 17 April
2014.
43.7 To the
extent necessary, my counsel will however demonstrate in argument
that I have locus standi to have launched the application
in the
first place, upon the basis of the provisions of rule 57 (4) of the
rules of court.
43.8 I
furthermore note that Holscher is of the intention(sic) to request
the Court ‘to dismiss applicant’s application
against me
with costs on the punitive scale’, and that ‘it would be
argued that applicant’s conduct of the matter
with regard to me
constitutes an abuse of the process of this Honourable Court.’
43.9 I shall not
dignify the above misconceived contentions with any comment, other
than stating (sic) that the recording of such
intentions, gauged
(sic) against the background of the findings and conclusions of the
curator ad litem, is (sic) remarkable, if
not dumbfounding.”
[40]
This court has not seen the heads of argument filed when the matter
came before Schippers J but a reading of his judgment does
not
suggest that the court was requested to determine the
locus standi
point. Nevertheless, Ms Venter, counsel for the second
respondent, persisted in argument before this court that from the
outset
the appellant lacked the necessary standing for the relief
sought against her client, and in any event, that the appellant had
no
locus standi
to prosecute the appeal.
[41]
Counsel’s argument challenges the standing of the appellant in
this matter in relation to three discrete issues:
·
Firstly, did he have the
locus
standi
to apply for the appointment of
the curators
ad litem
and
bonis?
·
Secondly, did he have the
locus
standi
to apply for an anti-dissipatory
interdict or a
mandamus
against the second respondent?
·
Thirdly, did the appellant have the
requisite
locus standi
before this court?
[42]
The various affidavits filed by the first and second respondents make
it clear that there was never any objection on their
part to the
appointment of either a curator
ad litem
or curator
bonis
.
Accordingly, the relief sought in this regard was not an issue before
Schippers J. There was no attack before this court in regard
to the
decision of the court
a quo
to appoint only Mr. Pitman as
curator
bonis
and the non-appointment of Mr. Calmeyer
accordingly does not afford any basis for an appeal. However, in
light of the remaining
issues of
locus standi
referred to
above, and in particular because of the punitive costs orders
persistently sought by the appellant, it is necessary
to consider the
legal position in relation to the his standing before the court
a
quo
and in this court.
[43]
A thorough discussion of the law relating to the requisite
locus
standi
in
curatorship applications brought in terms of rule 57 is to be found
in the judgment of van Zyl J in
Futter
[10]
,
a judgment with which I associate myself. The matter concerned an
application for the appointment of a curator
ad
litem
in
order to bring a damages claim for personal injury against the Road
Accident Fund on behalf of Mr. Futter. The following remarks
of the
learned judge are relevant to this matter:
“
[8]
Dealing firstly with the question of
locus
standi
, it is a well established
principle of our law that a litigant who claims relief must show that
he has an interest in the subject
matter of the litigation which is
recognised at law as sufficient to give him legal standing (See
Gross and others v Pentz
1996(4) SA 617 (A) at 632C-D and
Jacobs
en ‘n Ander v Waks en Andere
1992(1)
SA 521 (A) at534C-E)…. The general rule is that it is for the
party instituting proceedings to not only allege, but
also to prove
that he has
locus standi
.
The onus of establishing
locus
standi
in application
proceedings therefore rests on the applicant…. and it is an
onus in the true sense….
[9] By way of
introduction to the issue of
locus
standi
, the general position in
our law is that whatever moral duty any person may think or believe
he has, there is no legal duty on
anyone to prevent harm or to look
after the affairs of another (See
Swinburne
v Newbee Investments
2010 (5) SA
296
(KZD) at 302G.) Although significantly eroded over the years,
particularly by legislation, the principle of individual freedom
which has as one of its components the duty to look after one’s
own interests and the concomitant right to insist that others
mind
their own business, is recognized in the many principles forming part
of our legal tradition. Another consideration affecting
the issue of
locus standi
in the context of the present matter is that an order placing someone
under curatorship affects the status of the person and involves
a
serious encroachment upon the personal freedom and the rights [of]
the person concerned. Accordingly, the need to establish and
determine the standing of the applicant is understandably an
essential feature of an application as envisaged in Rule 57(2)(a).(
Ex
parte Hill
1970 (3) SA 411
(C)
at 413A). It matters not whether it is a
curator
ad litem
or
bonis
who is to be appointed to the individual concerned. It is accordingly
incumbent upon an applicant not only to allege that he has
locus
standi
but also to make the
necessary factual allegations in support thereof. This is clearly
what is envisaged by Rule 57 (2) (a).
[10] The
applicant does not at all deal with the issue of
locus
standi
in his founding
affidavit……
[11] Further,
from a reading of the case it is evident that
locus
standi
in applications for the
appointment of a
curator
to another is not determined by whether the applicant has a financial
interest in the ability or inability of another to manage
his own
affairs. In
Judin v Wedgwood and
Another
2003(5) SA 472 (W) it
was by way of example held that a debtor-creditor relationship alone
does not give
locus standi
to a creditor to apply for the appointment of a
curator
ad litem
to his debtor. It is
rather the proximity of someone’s relationship to another that
is sufficient to create a direct or real
interest in the relief
sought. An application of this nature is for this reason usually
brought by one of the patient’s next
of kin, not simply because
they may personally be adversely affected by the inability of the
patient to manage his own affairs,
but also because they are
sufficiently close to him so as to have a real concern for his
welfare, thereby creating a legally recognised
interest in his
ability to manage his own affairs.
[12] Dependants
of the patient, like his wife and children, who have a right to
maintenance, will fall into this category. The inability
of a
breadwinner to manage his affairs may not only impact negatively on
the right to be maintained by him, but they also, by virtue
of their
close relationship with the patient, have a real interest in his
welfare. From a practical point of view they are also
better placed
to testify with regard to issues such as the health of the patient,
his mental state and whether he is able to look
after his own
affairs. Accordingly, if the applicant in proceedings under Rule 57
is not the spouse or a next of kin of the patient,
then the reason
why the spouse or next of kin does not bring the application should
be stated, and if they are not available to
make the application,
what steps had been taken to establish their whereabouts before the
application was made. If no relatives
exist who are in a position, or
willing for that matter, to make the application to Court, it may be
brought by someone else who,
on the facts and in the circumstances of
the particular case, stands in a sufficiently close relationship to
the person concerned
to be recognised at law as someone who has an
interest in his welfare, and who is in a position to assist the Court
in arriving
at a decision. Such persons may be a friend or even a
close business associate…”
[44]
From perusal of the founding affidavit of the appellant in this
matter it appears that no factual or legal allegations were
made in
relation to his
locus standi
to bring the application and to
that extent the application does not meet the procedural requirements
of Rule 57(2)(a). In addition,
the affidavit contains no allegations
suggesting why, for instance, the patient’s daughter (as her
next-of-kin) could not
depose to the founding affidavit. This is all
the more strange since it was Carla herself who had first mooted a
curatorship application
during her 2013 visit.
[45]
Furthermore, no allegation is made in the founding affidavit to
indicate any proprietary (or other) interest which the appellant
had
in the estate of the patient, nor was there any other legal basis
[11]
claimed for the interdictory relief sought specifically against the
first and second respondents. Simply put, there was no allegation
made to sustain an application for an interdict of any kind in
relation to the affairs of the patient’s estate.
[46]
Recently, the Supreme Court of Appeal restated the necessity to fully
traverse the relevant issues in an application the founding
papers in
Mashamaite
[12]
:
“
[21] It
is trite that an applicant in motion proceedings must, in the
founding `papers, disclose facts that would make out a case
for the
relief sought, and sufficiently inform the other party of the case it
was required to meet.”
In
the absence of any factual allegations in the founding affidavit
which would have established the appellant’s right to
seek
interdictory relief against the respondents, I am driven to the
inescapable conclusion that the appellant lacked the necessary
locus
standi
to approach the court for that relief.
[47]
That having been said, it cannot be disputed that the appellant, as a
family member two generations removed from the patient,
might have
had the necessary standing to bring the original application for the
appointment of a curator
ad
litem
in
the absence of the patient’s next-of-kin
[13]
,
if that absence had been properly explained in the founding
affidavit
.
Be
that as it may, the court
a
quo
appears
to have been satisfied with the appellant’s degree of affinity
to the patient to warrant the order for curatorship
under rule 57
[14]
and nothing more need be said in that regard given that it is not an
issue in this appeal.
[48]
Pursuant to and since his appointment as such, it is Mr. Pitman, the
curator
bonis,
who is (and has been) the person responsible
for the management of the patient’s estate, and it is he, and
he alone, who
has the legal standing,
inter alia,
to recover
any assets unlawfully removed or transferred from the estate of the
patient, or to make decisions in relation to the
disposal or
acquisition of any assets of the estate. He has literally stepped in
to the shoes of the patient and is now required
to manage all aspects
of her estate in terms of the powers conferred upon him under the
order of the court
a quo,
subject only to the directions of
the Master.
[49]
In the result, if there is any aspect of the court order of Schippers
J which negatively impacts on the patient’s estate
and which
the curator
bonis
considers to be capable of being challenged
in law, it is he who has the statutory duty to raise that issue by
way of an appeal.
So, if there is a complaint that the estate of the
patient was wrongly ordered by the court
a quo
to bear any
party’s costs in this matter, it is the curator
bonis
who has the
locus standi
to attack that finding in an appeal.
And, if it is said that the court erred in ordering neither of the
respondents to repay the
capital sums of referred to in para’s
27(c) and (e) of its order, or in directing return of the National
Geographic magazines,
it is the curator
bonis
who has the duty
and the
locus standi
to attack those findings on appeal.
[50]
The only standing which the appellant might have before this court is
in relation to any order which the court
a
quo
made which directly affected his
own proprietary interests. Against the background of the present
factual matrix that would have
included an order, for example, that
the appellant was liable to bear the costs of one (or both) of the
respondents. To assess
whether the appellant has any such standing it
is necessary to briefly have regard to the notice of appeal filed
pursuant to the
order of the Supreme Court of Appeal granting leave
to this court.
THE
GROUNDS OF APPEAL
[51]
A party’s argument on appeal is bound by the grounds set out in
the notice of appeal.
[15]
In this matter, as I have said, that notice is a cumbersome document
with extensive narrative and limited focus. Nevertheless,
what it
seeks to assert is that the respondents should indeed have been
ordered to repay the capital sums and, in the case of the
second
respondent, that she should have been directed to return the National
Geographic magazines. As I have found, the prerogative
to advance
that argument on appeal vests in the curator
bonis:
the appellant does not have the requisite
locus
standi
to do so.
[52]
Further, the appellant seeks to appeal the order of the court
a
quo
in para 27(g) that the costs recoverable by the first
respondent are to be limited to R13 000. This order is attacked
on 2
grounds: firstly, that there was no factual basis therefor and,
secondly, that the limitation of the amount recoverable by the first
respondent to R13 000 usurped the powers of the Taxing Master to fix
the amount. However, there is no allegation in the notice
of appeal
that any of the appellant’s proprietary interests were affected
by the judgment of Schippers J.
CONSIDERATION
OF THE COSTS ORDERS MADE BY THE COURT
A QUO
[53]
In my view there certainly are problems with the order made in para
27(g). Insofar as the first respondent was initially before
the court
a
quo
,
not as an attorney but as a financial consultant – effectively
then a lay-litigant - he could not have incurred legal expenses
other
than out-of-pocket disbursements
[16]
.
However, later in the proceedings the first appellant was represented
by attorneys at various stages, and incurred costs which
were capable
of taxation according to the Taxing Master’s guidelines.
[54]
In my respectful view the court
a quo
misdirected itself in
failing to have regard to the fact that the first respondent, while
acting as a lay-litigant, could not (and
did not) incur any legal
expenses. It further erred in not providing for the costs properly
incurred by the first respondent, after
he had appointed legal
representatives, to be taxed by the Taxing Master. The order in para
27(g) is accordingly an improper exercise
by the court
a quo
of
its discretion in relation to the fixing of the first respondent’s
entitlement to recover his costs incurred in opposing
the application
brought against him. However, I am of the view that, in light of the
fact that the costs declared to be recoverable
by the first
respondent are a liability in the estate of the patient, it is only
the curator
bonis
who has the
locus standi
to attack
that ruling on appeal. I shall revert to this aspect shortly.
[55]
There is a further complaint by the appellant that costs orders were
made by the court
a quo
that none of the parties had asked it
to make
viz.
that the entire costs of the application
(including the costs of opposition incurred by the second respondent)
should effectively
be borne by the estate of the patient. That issue
is addressed in the notice of appeal as follows:
“
THE
ORDER MULCTING THE ESTATE OF MS HUIJSKAMP WITH THE COSTS OF THE FIRST
AND SECOND RESPONDENT
46. It is a
trite principle that where a court intends making a costs order not
prayed for by any of the parties, the parties to
the proceedings
should receive notice of such intention, and should be given an
opportunity to address such issues in argument.
47. Neither [the
appellant], nor any of the respondents prayed for the costs of the
proceedings to be paid from the estate of Ms
Huijskamp. [The
appellant] prayed that such costs be paid jointly and severally by
the first and second respondents, and the latter
prayed that the cost
(sic) of the application be paid by [the appellant], who they claimed
was in cahoots with his attorney and
the proposed curator with the
improper object of securing the availability of funds, in an ongoing
manner, for ‘Carla’.
That the estate of Ms Huijskamp
should pay for the costs of the application was not a prayer pursued
by any of the parties nor
put to them as an issue to be addressed in
argument.
48. The court
failed to give any notice to any party that it considered making a
costs order against Ms Huijskamp, or her estate.
49. The award of
costs against the estate of Ms Huijskamp penalised her estate for
having sought the right to be protected against
the actions of
parties such as the first and second respondent, by a curator. Such
award is therefore so fundamentally erroneous,
flawed, and
constitutionally unfair, that it falls to be set aside.
50. The award
was furthermore made against a person and/or estate who was not
properly before the court as (sic) party to the litigation
between
[the
appellant] and the two
respondents. The functions of the curator
ad
litem
representing the estate of
Ms Huijskamp was (sic) to report back to the court and provide the
court with information as contemplated
by rule 57 of the rules of
court, and not to defend the estate of Ms Huijskamp against adverse
costs orders.
51. The costs
order of the court
a quo
,
in particular the manner in which it was arrived at, accordingly
offended the constitutional right and the entitlement of Ms Huijskamp
to a fair trial.”
[56]
While it is trite that a court exercises a wide, general and
equitable discretion when making a costs order
[17]
when doing so it may, no doubt, have regard to the parties’
submissions as to success in the litigation and, generally,
considerations of fairness. The respective arguments advanced in the
court below in regard to costs are summarized by Schippers
J as
follows in his judgment:
“
[25] What
remains is the question of costs. The applicant asks for an order
that the respondents pay the costs of the application
de
boniis propriis.
There is simply
no basis for such an order. The applicant has been justified in
instituting these proceedings in the interests
of Ms Huijskamp for
the appointment of a curator. For this reason, and because it cannot
be said that the claim for repayment of
the monies received by the
respondents was unjustified, an order directing the applicant to pay
the second respondent’s costs
on an attorney-and-client scale,
as sought, is inappropriate. The costs of this application will
therefore be paid out of Ms Huijskamp’s
estate (
Ex
parte De Jager
1950(4) SA 334
(O) at 338B)
[26] The first
respondent has asked that the applicant pays costs in the sum of R 13
000.00 which he incurred in preparing his answering
affidavit. I
think that this is a reasonable request. The first respondent was
compelled to come to court to oppose the applicant’s
claim for
an interdict and costs against him. On the other hand, he has
conceded that he was not entitled to receive the amounts
of R3500.00
and R5750.00 from Ms Huijskamp. In the circumstances I consider that
it would be fair to limit the first respondent’s
costs to R13
000.00. The second respondent has successfully opposed the
application and there is no reason why the ordinary rule
that costs
should follow the result, should not apply.”
[57]
From these remarks I conclude that:
57.1. The appellant
asked for an order that the respondents jointly bear the entire costs
of the application (including the costs
relating to the appointment
of the curators
ad litem
and
bonis
) on
the punitive scale;
57.2 The first
respondent asked for his costs to be paid by the appellant, such
costs to be limited to the sum of R13 000;
and
57.3 The second
respondent asked that her costs before the court
a
quo
be borne by the appellant on the
punitive scale.
Clearly
then, no party asked for the estate of the patient to carry any
costs, whether in respect of costs incurred on behalf of
the patient
herself or the costs incurred by the respondents in resisting the
claims brought against them by the appellant.
[58]
To the extent that it may have been the intention to argue on appeal
that the estate was wrongly ordered to bear the entire
costs of the
application, it was the duty of the curator
bonis
to represent
the estate and attempt to persuade this court that different orders
should have been made. Had he chosen to do so,
there were a number of
arguments which the curator
bonis
could have advanced.
[59]
Firstly, it could have been contended that the usual order should
apply – that the patient’s estate would only
be liable
for the costs strictly necessary in relation to the bringing of the
application under rule 57 to procure the appointment
of the curators
ad
litem
and
bonis
[18]
,
and that the costs of opposition incurred by the respondents should
not have burdened the estate but should have been borne by
them.
Similarly, it was open to suggestion by the curator
bonis
that the respondents should have been ordered to bear the costs
incurred by the appellant occasioned by their opposition of the
application.
[60]
Further, on the basis that the
locus standi
of the appellant
was limited to the entitlement to bring the rule 57 application, it
could have been argued by the curator
bonis
(as did the second
respondent before the court
a
quo
) that the costs of
opposition by the respondents (on the basis that they were entitled
to come to court to meet the serious allegations
made against them
and to resist the claims against them for punitive costs) should be
borne by the appellant (as the party responsible
therefor). All of
these arguments had the potential to limit the financial exposure of
the patient’s estate.
[61]
But the curator
bonis
did not seek to make any submissions
before this court. Rather, as I have indicated, he adopted a
non
possumus
attitude and stood by while his client, the appellant,
persisted with his claims for punitive costs against the respondents
and
sought to attack the short-comings in the order of Schippers J in
relation thereto. In so doing the curator
bonis
took no steps
on appeal designed to limit the exposure of the estate to the costs
orders made by the court
a quo.
[62]
In her heads of argument before this court, Ms Liebenberg indicated
that when the application for leave to appeal served before
Schippers
J the first respondent informed the court through counsel that he had
abandoned the costs award of R13 000 in his
favour. I did not
understand Mr. Barnard to contest this erstwhile concession on the
part of the first respondent. In the result,
the costs order against
the estate made in favour of the first respondent was no longer an
issue and he asked for the appeal against
him to be dismissed with
costs.
[63]
On behalf of the second respondent, as I have said, Ms Venter
persisted with her argument in relation to the appellant’s
lack
of
locus standi
and asked that the appeal against her client
be dismissed with costs. In so doing, the second respondent did not
attack the obvious
dissonance between Schippers J’s finding at
the end of para 26 of the judgment “
that costs should follow
the result”
(which implied that the appellant should bear
the second respondent’s costs) and his order in para 27(h) that
her costs on
the party-and-party scale should be borne by the estate
of the patient. Nor did the second respondent seek to argue on appeal
that
the costs awarded against her were awarded on the incorrect
scale or that the order should have been made against the appellant
and not the patient’s estate. To do so, the second respondent
would have been required to file a cross appeal to the notice
of
appeal, and she did not do so.
[64]
In light of the fact that the appellant lacks the
locus standi
on
appeal and that the curator
bonis
has not entered the fray to
defend the interests of the patient’s estate and, importantly,
not sought to attack the order
that the estate should bear the second
respondent’s costs, this court is not in a position to consider
the order made by
Schippers J in para 27(h). In the result, the
appeal must fail. The effect of an order dismissing the appeal is
that the second
respondent’s party and party costs will indeed
be paid out of the estate.
THE
ROLE OF THE CURATOR
BONIS
[65]
In
de
Bie
[19]
,
King J stressed the importance of the role of the curator
bonis
in proceedings such as these.
“
It
is well established that generally a person in the position of the
applicant, administering an estate on behalf of someone who
is
incapacitated from doing so herself, must act with prudence and
caution and only after full and careful consideration, invest
the
assets of the estate with diligence and safety, avoiding exposure to
commercial risk. This rule was enunciated in
Sackville
West v Nourse and Another
1925
AD 516.
”
[66]
In
Modiba
Bertelsmann J, commenting on the need for
impartiality on the part of a curator
ad litem,
observed that
–
“
35…..One
non-negotiable quality of an advocate (or attorney) acting as curator
must be indisputable independence to ensure
the integrity of the
professional service that must be rendered to the patient: see Harms,
Civil Procedure in the Supreme
Court
at para
B57.9
…
36. The need for an independent
approach to the litigation is especially significant in cases such as
the present, in which the
attorney acting for the claimant accepted
instructions from an individual whose capacity to understand the
processes of litigation
and the implications of the mandate given to
the attorney may subsequently be found to have been compromised.
Vigorous vigilance
and pronounced independence are essential when
issues such as the enforceability of a contingency fee agreement and
the validity
of instructions allegedly given by the patient in
respect of the conduct of the litigation must be examined to protect
the patient’s
interests… (T)he curator’s
independence must not only exist, it must manifestly be free of any
semblance of bias or
association with any party having an interest in
the outcome of the matter.”
It
is beyond debate that the same principles apply to the curator
bonis.
[67]
In the context of these considerations, the attitude adopted by the
curator
bonis
in
relation to the appeal is cause for concern. He did not take adequate
steps to ensure that the estate of the patient is not unnecessarily
burdened with costs for which it is not liable: in light of the court
a
quo’s
remarks
at the end of para [26] of the judgment that the appellant should
bear the costs of the second respondent
[20]
and the failure to reflect that intention in para 27[h] of the order,
the curator
bonis
was duty bound to attack that order on appeal. Similarly, if there
was a suggestion that the orders in para’s 27 (c) and
(e)
regarding repayment of the capital sums was wrong, it was the
obligation of the curator
bonis
to
attack those on appeal too, and not just leave it up to the
appellant.
[68]
The curator
bonis’
failure to take these steps on appeal
brings him,
prima facie,
within the proscribed conduct
referred to in
de Bie
and
Modiba
and may
be a basis for reconsideration of his continued appointment as
curator, particularly given his professional association
with the
appellant, the client whom he represented as attorney of record in
court before us. The curator
bonis
has, however, not had an
opportunity to address these concerns. In the circumstances I intend
referring the matter to the Master
for consideration of his continued
appointment after hearing the curator
bonis
and any other
interested parties in that regard.
CONCLUSIONS
ON APPEAL
[69]
In light of the finding that the appellant has no
locus standi
before this court, the arguments advanced by Mr. Barnard on his
behalf in relation to the orders for repayment of the capital sums,
return of the movables and costs which were not made by Schippers J
cannot succeed. And, in light of the failure of the curator
bonis
to participate in these proceedings to defend the interests of
the estate of the patient and to attack the orders made against it,
this court can similarly not reconsider those orders. The overall
result, accordingly, is that the appeal must fail and the orders
of
Schippers J must stand, subject to the subsequent concession made by
the first respondent.
COSTS
ON APPEAL
[70]
There is no reason not to follow the customary rule that costs should
follow the result. Both the first and second respondents
have been
substantially successful in the appeal advanced by the appellant and
they are therefore each entitled to their costs
on appeal.
[71]
We were asked by Ms Venter to consider awarding the second respondent
the costs of appeal on the attorney and client scale.
That request
falls to be considered, not only in the light of the repeated
allegations made by the appellant in the court
a quo
(and
persisted with on appeal) that the two respondents were guilty of
unconscionable conduct bordering on theft (e.g. “
plundering
the estate”
), but also with regard to the supplementary
heads of argument filed by Mr. Barnard on the eve of the appeal.
[72]
In those supplementary heads of argument Mr. Barnard launched a
stinging, personal attack on Ms Venter in relation to submissions
advanced by her on behalf of her client and sought to justify the
argument that the second respondent should bear the costs of
the
appeal on the punitive scale. The attack was made on two fronts.
Firstly, counsel was castigated by her colleague for making
submissions against the appellant, both in the trial court and on
appeal, which “
evolved around a clichéd and hackneyed
rendition of the old David versus Goliath argument”
in
light of the fact that she “
did not shun any opportunity to
whip up emotion by referring to the unlimited wealth of the
appellant, juxtaposed against the relative
poverty of the second
respondent.”
This was said to amount to “
improper
and bad advocacy, that seeks to achieve success by (sic) emotion, as
opposed to success based upon proper facts and legal
principles.”
[73]
The second basis for the attack against Ms Venter was a complaint
regarding a suggestion in argument that Messrs. Pitman and
Calmayer
“
were improperly in cahoots with one another and that they
were mendaciously contriving a scheme through the appointment of the
latter”
since, it was said, they had been “
jointly
acting improperly for purposes of unduly benefiting the mother of the
applicant’s wife.”
[74]
The supplementary heads of argument sought to rely on a plethora of
American decisions which deal with the acceptable bounds
of conduct
of trial advocates in various states in that country.
Regrettably, counsel did not refer the court to any decisions
closer
to home, no doubt, for good reason. Considering the matter as a
whole, I am unable to find anything “
improper”
in
the way in which Ms Venter presented her client’s case.
Further, I am reluctant to import into our constitutional
jurisdiction
considerations of probity of professional conduct in
jurisdictions in which jury trials and the concomitant
“
grandstanding”
are the order of the day. I would
prefer to believe that judicial officers in this country are
possessed of sufficient skill and
experience to enable them to
separate the wheat from the chaff and determine matters on their
merits.
[75]
In my view counsel was entitled to complain about the bullying and
intimidatory tactics employed towards the second respondent
by the
appellant, who boasted of his immense wealth in excess of R100m in
the founding papers so as to assure the court of his
lack of
financial interest in the proceedings. As I have shown, the appellant
also applied double-standards towards the second
respondent in
seeking to recover only the proceeds of the cheque paid to her while
ignoring the payments made to the other beneficiaries
of the
patient’s benevolence (including Carla) in September to
November 2013. And while he did so on the basis that the patient
was
being manipulated by those close to her, the appellant had no
hesitation in taking a power of attorney from an elderly woman
whose
memory, to his knowledge, was failing her.
[76]
Lastly, the concern expressed by the second respondent and her
counsel about collusion between the appellant and his attorney
in
these proceedings may have been well-founded: why did an experienced
litigation attorney of this court fail at his first opportunity
to
defend the interests of the patient’s estate by not taking an
active part in this appeal?
[77]
In the circumstances, I consider that the personal attack made by Mr.
Barnard against his colleague consitutes abuse by a practitioner
of
the kind which is not tolerated in our legal system
[21]
.
The matter will accordingly be referred to the Cape Bar Council for
consideration of appropriate steps, if any, against Mr. Barnard.
[78]
In the result, I am of the considered view that the overall conduct
of the appellant in this matter, and in particular his
instruction to
counsel to launch a personal attack on a colleague in this court as
justifying the basis for a punitive costs order
againt the second
respondent, warrants us expressing our displeasure by making a
punitive costs order against him.
ORDER
OF COURT
In
the circumstances I would make the following order:
1.
The appeal is dismissed.
2.
The appellant is ordered to pay the costs
of the first and second respondents in the appeal on the scale as
between attorney and
client.
3.
The Registrar of this Court is directed to
forward a copy of this judgment to:
3.1
The Master of the High Court, Cape Town;
3.2
The President of the Cape Bar Council.
____________________
GAMBLE
J
I agree. It is so ordered.
_____________________
DESAI
J
I
agree.
___________________
WAGLAY
J
JUDGES
:
Desai
J, Waglay J
et
Gamble J
JUGDMENT
DELIVERED BY
:
Gamble J
FOR
FIRST APPELLANT
:
Adv.
T.A Barnard
INSTRUCTED
BY
:
Spencer Pitman Inc. -Rondebosch
FOR
SECOND APPELLANT
:
Mr A V Pitman
FOR
RESPONDENTS
:
Adv. L Venter
INSTRUCTED
BY
:
Nilands
Attorneys - Cape Town & Marieka Van Rooyen Attorneys -
Stellenbosch
DATE
OF HEARING
:
1
February
2017
DATE
OF JUDGMENT (Reasons)
:
26
May 2017
[1]
This was the term employed by counsel for the appellant in argument.
[2]
At that stage Ms Munter-Weidner was cited as the third respondent.
[3]
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd
[2014]
1 All SA 375
(SCA) at [10] – [17];
Betterbridge
(Pty) Ltd v Masilo and others NNO
2015
(2) SA 396
(GNP) at [8].
[4]
For so long
as he remained an attorney in possession of a valid fidelity
certificate he was exempted from furnishing security
to the Master,
and he was further granted the powers set out in Annexure A to the
Master's report to the Court.
[5]
Director of Hospital
Services v Mistry
1979(1)
SA 626 (A) at 635H.
[6]
He said that he usually charged R1000/hour for his time and had
spent 13 hours answering the appellant’s allegations against
him.
[7]
Hing and Others v Road
Accident Fund
2014 (3) SA
350
(WCC) at p354E [5]. See too
Songono
v Minister of Law and Order
1996(4)
SA 384 (E) and
Xayimpi v
Chairman Judge White Commission (formerly known as Browde
Commission) and others
[2006] 2 All SA 442 (E).
[8]
This is to be understood as a reference to ‘
substantial
relief’
given that
the appellant persisted throughout (including on appeal) with a
prayer for punitive costs against the second respondent.
[9]
The appellant had either not read para 7 of the affidavit of the
second respondent of 15 April 2014, or chose to conveniently
ignore
it.
[10]
Ex parte
Futter, in re Walter v Road Accident Fund and Another
[2012] ZAECPEHC 52 (17 August 2012). See also
Modiba
obo Ruca: in re Ruca v Road Accident Fund
[2014]
ZAGPPHC 1071 (27 January 2014).
[11]
Such as
perhaps
negotiorum
gestio.
[12]
Mashamaite
and Others v Mogalakwena Local municipality and Others
[2017] ZASCA 43
(30 March 2017)
[13]
The term is defined in the Concise Oxford English Dictionary as “
a
person’s closest living relative or relatives”.
[14]
In explaining the reason for procuring the patient’s general
power of attorney in October 2013 the appellant informed the
court
in the founding affidavit that he decided to take control of her
affairs “
in view of
the extended family relationship between Ms Huijskamp and me, and
the direct blood relationship between her and my
wife”
[15]
Sentrale Kunsmis Korporasie
(Edms) Bpk v N.K.P.Kunsmisverspreiders (Edms) Bpk
1970
(3) SA 367
(A) at 395 F-H.
[16]
AC Cilliers
Law of Costs, p1-7 para 1.03C
[17]
AC Cilliers
op
cit
2-6 para 2.03.
[18]
A.C.Cilliers
op cit
10-14
para 10.15;
Ex parte
de Jager
1950(4) SA 334
(O) at 338 A-D (the decision relied upon by Schippers J);
Ex
parte Hulett
, 1968(4) SA
172 (D&C) at 176.
[19]
Ex parte Wagner N.O: in re
de Bie
1988(1) SA 790 (C)
at 791 F-G
[20]
See [55] above
[21]
LAWSA
2
nd
edition Vol 14 Part 2 p135 para132, relying in footnote 25 on Van
der Linden
Jud Pract 1.8.6