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[2021] ZAWCHC 211
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Carelse and Another v Standard Bank of South Africa Limited (12443/07) [2021] ZAWCHC 211 (22 October 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER: 12443/07
In
the matter between
ROLAND
HOWARD CARELSE
FIRST
APPLICANT
LYNN
AKERS
SECOND
APPLICANT
AND
STANDARD
BANK OF SOUTH AFRICA LIMITED
RESPONDENT
Heard:
12 August 2021
JUDGMENT
DELIVERED ON 22 OCTOBER 2021
THULARE
AJ
[1]
The second applicant (Akers), the eldest daughter of the first
applicant and his late wife (the couple) launched three applications
where she sought to intervene in the matter between her parents and
the respondent, rescission of a judgment granted in favour
of the
respondent against her parents, the setting aside of an order
directing that the opposed rescission application be heard
on 12
August 2021 and that instead the applicants be granted default
judgment.
INTERVENTION
[2]
The couple obtained a home loan in respect of a vacant plot,[….]
(the property) from the respondent. The couple fell
into arrears with
the bond repayments and the respondent obtained default judgment
against them on 16 March 2008 for an amount
of R330 992.18 with
ancillary relief which included a declaration that the property was
executable.
[3]
Around November 2016 to February 2017 the respondent’s
attorneys were communicating with the couple through the first
applicant. Amongst others, he was informed that the outstanding
balance on the account was R170 632.58 excluding future legal
costs and interests. He was further informed that the respondent had
given them 80%, which left the settlement amount at R34 126.52
which was valid until December 2017. On 17 February 2017 the
attorneys gave the couple 24 hours’ notice that their
furniture,
vehicles and property may be attached if judgment was
obtained against them on the home loan account and that immediate
payment
was urgently required.
[4]
The 1
st
applicant then brought the warning and threat to
the attention of Akers and asked her to intervene on their behalf.
The mother
passed on in the meantime. The 1
st
applicant
asked Akers to handle his affairs and to address the rescission of
the default judgment. He was fragile and an older
person on state
pension and was financially ruined. He then provided Akers with two
signed documents whose relevant contents read
as follows:
“
POWER
OF ATTORNEY
I
Roland Howard Carelse (ID no: [….]), hereby grant my daughter
Lynn Akers (ID no: [….]), Power of Attorney in this
legal
dispute/matter with Standard Bank.
As
per the emails attached, my daughter has been helping me with the
matter and this matter has affected our family directly.
We
have attached a certified copy of our ID’s to this document, as
well as copies of the emails reflecting communication between
parties.
Kindest
regards”
“
POWER
OF ATTORNEY
I
hereby grant permission to my daughter Lynn Akers ([….]), to
enquire on my behalf with regards to my Standard Bank Account.
ACCOUNT
NAME: Recoveries SAP Account
ACCOUNT
NUMBER: [….]
BRANCH
CODE: 000205
REFERENCE:
320832376
I
hereby also grant permission to your organization to provide her with
my any/and all documents pertaining to the above mentioned
account.
Please
feel free to contact me should you have any queries.
Yours
thankfully”.
It
is against this background that Akers prays that the court permits
her, although a layman and
prope
persona,
to address
the rescission of default judgment on behalf of the 1
st
applicant as per the couple’s wishes, as well as all other
related matters.
She
relied on the provisions of sections 4(1), 5(1)(b), 5(3)(b) and 9(1)
of the Older Persons Act, 2006 (Act No. 13 of 2006) (the
OPA) and
section 38(a) and (c) of the Constitution of the Republic of South
Africa, 1996 (Act No. 108 of 1996) (the Constitution).
[5]
The application is opposed on three main grounds. First, on the
ground that Akers had failed to show her direct and substantial
interest in the dispute and had not shown a
prima facie
case
or defence that she in her personal capacity may have and had not
indicated the nature of the dispute between her and the respondent
which required intervention. Secondly, on the ground that she cannot
use the power of attorney. The power of attorney essentially
facilitated the establishment of the authority of an attorney to act
for his or her client and her not being an attorney nor not
purporting to be one, she could not rely on it to establish her
authority to represent her father. Thirdly, Akers could not rely
on
the provisions of the OPA as the OPA applied specifically to organs
of State who render services to older persons and she did
not explain
the basis upon which she sought to rely on the Constitution.
[6]
Section 38 (a) and (c) of the Constitution provides as follows:
“
38.
Enforcement of rights. – Anyone listed in this section has the
right to approach a competent court, alleging that a right
in the
Bill of Rights has been infringed or threatened, and the court may
grant appropriate relief, including a declaration of
rights. The
persons who may approach the court are –
(a)
Anyone acting in their own interest;
(b)
…
(c)
Anyone acting as a member of, or in the
interest of, a group or class of persons.”
[7]
The purpose of these provisions was said to be clear and unequivocal
and expressly made provision for virtually unlimited
locus standi
in audicio
and that there were no limitations placed in the
manner in which persons could approach the court, the nature of the
investigation
that must occur or the relief which could be granted by
the court [
Gerber v Kommissie vir Waarheid en Versoening
1998
(2) SA 559
(TPD) at 569D-E]. In E-F it was said further that the
reason therefore was because it was of utmost importance that rights
were
protected and as a consequence the court must be in a position
to determine whether the applicant’s constitutional rights
were
infringed or threatened and to grant the appropriate relief. The
procedure, investigation and relief must advance the full
meaning of
the Constitution and the Bill of Rights.
[8]
In
Freedom
of Expression Inst v President, Ordinary Court Martial
1999 (2) SA 471
(CPD) at para 12 it was said:
“
The
section provides that anyone has the right to approach a competent
court, alleging that a right contained in the Bill of Rights
has been
infringed or threatened, and the Court may grant appropriate relief,
including a declaration of rights. The right to approach
the Court is
extended to anyone acting as a member of, or in the interest of, a
group or a class of persons, and anyone acting
in the public
interest.”
The
core question is whether the right of Akers has been infringed or
threatened to trigger her to approach the court in her own
interest
or as a member of or having an interest as a member of her family. An
answer in the affirmative would place her properly
before the Court
[
National & Overseas Modular Construction v Tender Board, FS
1999 (1) SA 701
(OPD) at 704D].
[9]
In
Maluleke v MEC, Health and Welfare, Northern Province
1999
(4) SA 367
(TPD) it was said at 373I:
“
It
is a prerequisite for the section to operate that the applicant must
allege that a right in the Bill of Rights has been infringed
or
threatened.”
In
National Coalition for Gay & Lesbian Equality v Minister of
Home Affairs
2002 (2) SA 1
(CC) at para 47 it was said:
“
[47]
It is important to emphasise that over the past decades an
accelerating process of transformation has taken place in family
relationships, as well as in societal and legal concepts regarding
the family and what it comprises.”
Akers
relied on section 38 of the Constitution in her plea to be allowed to
intervene. It did not matter whether the claim was good
or bad as
that went to the merits. The court was duty bound to enter the stage
of a jurisdictional enquiry and decide whether the
case concerned a
violation of a fundamental right and exercise its jurisdiction. The
court was duty bound to pronounce itself on
her claim [
Naptosa and
Others v Minister of Education, WC
2001 (2) SA 112
(CPD) at
120I-121A].
[10]
In
Ngxuza & Others v Permanent Secretary, Dept of Welfare, E
Cape
2001 (2) SA 609
(ECD) at 619A it was said:
“
There
is no cogent reason for a restrictive interpretation of the
provisions of the section because of the narrow content given
to
standing under the common law (compare
Ferreira
v Levin NO and Others; Vryehoek and Others v Powell NO and Others
1996 (1) SA 984
(CC)
(1996 (1) BCLR
1).
”
The
provisions raised difficult questions. In
Independent Electoral
Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC) at
934B-D it was said:
“
For
example, and with specific reference to s 38(c), the following are by
no means easy questions to answer:
(a)
Whether a person bringing a constitutional
challenge as a member of, or in the interests of, a group or class of
persons requires
a mandate from members of the group or class.
(b)
What is it that constitutes a class or
group – what should the nature of the common thread or factor
be.
(c)
What entitles someone who is not a member
of the group or class to act on behalf of those who are:
-
Must such person demonstrate some
connection with a member or some interest in the outcome of the
litigation;
-
What should the nature of such ‘connection’
or ‘interest’ be;
-
In what way, if at all, must the ‘interest’
differ from that envisaged in s 38(a).
(d)
Whether a local government, even if it has
the capacity to act on its own behalf in regard to a particular Bill
of Rights issue,
has the power (in the sense of
vires
)
to do so in the interest of others.”
[11]
The salient issues in this matter, in my view, related to whether
Akers had the requisite ‘interest’ and whether
her
intervention was ‘competent’ and should be ‘permitted’
[
Lifestyle Amusement Centre (Pty) Ltd and Others v The Minister of
Justice and Others
1995 (1) BCLR 104
(C)].
[12]
In
Mukaddam v Pioneer Foods
2013 (5) SA 89
it was said in
paragraph 29, 30 and 38:
“
[29]
Access to courts is fundamentally important to our democratic order.
It is not only a cornerstone of the democratic architecture
but also
a vehicle through which the protection of the Constitution itself may
be achieved. It also facilitates an orderly resolution
of disputes so
as to do justice between individuals and between private parties and
the state. Our courts are mandated to review
the exercise of any
power by state functionaries, from the lowest – to the
highest-ranking officials.
[30] In
Chief Lesapo v North
West Agricultural Bank and Another,
this court inderstood the
importance of access to courts in these terms:
“
The
right of access to court is indeed foundational to the stability of
an orderly society. It ensures the peaceful, regulated and
institutionalized mechanisms to resolve disputes, without resorting
to self-help. The right of access to court is a bulwark against
vigilantism, and the chaos and anarchy which it causes. Construed in
this context of the rule of law and the principle against
self-help
in particular, access to court is indeed of cardinal importance. As a
result, very powerful considerations would be required
for its
limitation to be reasonable and justifiable,’
[Footnote
omitted.]
…
[38] Courts must embrace class
actions as one of the tools available to litigants for placing
disputes before them. However, it
is appropriate that the courts
should retain control over class actions.”
[13]
In deciding whether a group or class should be allowed, the court is
bound to apply the interests of justice standard [
Mukaddam, supra,
at paragraph 47]. The factors that will guide a court are set out in
paragraphs 15-18 of that judgment and these are:
(a) The group or
class must have identifiable members, defined with sufficient
precision that permits an objective determination
of who qualifies as
a member.
(b) An applicant
must show that the class has a cause of action which raises a triable
issue and allege facts sufficiently showing
that a new claim must be
recognized when policy issues are taken into account
(c) The various
claims by members of the group or class must raise common issues of
fact or law, with a commonality that must be
of such a nature that
the determination of the issue may be achieved by deciding a single
ground common to all claims and
(d) A representative
in whose name the class action would be brought must be identified.
The interests of the representative must
not be in conflict with
those of the members of the class and in addition the representative
must have the capacity to prosecute
the class action, including funds
necessary for litigation.
This list is not
exhaustive and a court would be free to consider any factor relevant
and material to its enquiry [para 47F].
[14]
In
Children’s Resource Centre Trust v Pioneer Food
2013
(2) SA 213
(SCA) at para 21 it was said:
“
[21]
In my judgment it would be irrational for the court to sanction a
class action in cases where a constitutional right is invoked,
but to
deny it in equally appropriate circumstances, merely because of the
claimants’ inability to point to the infringement
of a right
protected under the Bill of Rights. The procedural requirements that
will be determined in relation to the one type
of case can equally
easily be applied in the other. Class actions are a particularly
appropriate way in which to vindicate some
types of constitutional
rights, but they are equally useful in the context of mass
personal-injury cases or consumer litigation.”
At para 22 the court
continued:
“
Where
necessary we must develop the common law in order to achieve this,
for example, by expanding the scope of the res judicata
principle.
But, as the international literature shows, fundamental issues of
policy may arise in determining the structure of such
actions and
their consequences. The resolution of those issues involves difficult
policy choices that have received differing answers
in different
jurisdictions. It is not for us, in laying down procedural
requirements, to make policy choices that may impinge upon,
or even
remove, existing rights.”
[15]
In
Cabinet of the Transitional Government for the Territory of
South West Africa v Eins
1988 (3) SA 369
(AD) at 388A-H the court
said:
“
A
person who claims relief from a Court in respect of any matter must,
as a general rule, establish that he has a direct interest
in that
matter in order to acquire the necessary
locus
standi
to seek relief. Reference to a
few cases, mentioned in the next paragraph, will be sufficient to
illustrate the point.
In
Dalrymple and Others v Colonial Treasurer
1910 TS 372
at 390
Wessels J stated that:
‘
The
person who sues must have an interest in the subject-matter of the
suit, and that interest must be a direct interest.’
And
that:
‘
Courts
of law … are not constituted for the discussion of academic
questions, and they require the litigant to have not only
an
interest, but also in interest that it not too remote.’
A
little later in this judgment (at 392) the learned Judge said that
since the
actio popularis
had disappeared,
‘
courts
of law have required the applicant to show some direct interest in
the subject-matter of the litigation or some grievance
special to
himself’.
In
Geldenhuys and Neethling v Beuthin
1918 AD 426
Innes CJ
referred to the function of courts of law in terms similar to those
employed in
Dalrymple
’s case
supra.
The learned
Chief Justice said: (at 441):
‘
After
all, courts of law exist for the settlement of concrete controversies
and actual infringements of rights, not to pronounce
upon abstract
questions, or to advise upon differing contentions, however
important.’
In
Ex parte Mouton and Another
1955 (4) SA 460
(A) Van den Heever
JA cited (at 463H) the passage in
Geldenhuys and Neethling v
Beuthin
which I have just quoted and said that it contained a
statement of a procedural rule of the common law (‘gemeenskaplike
prosesreel).
He indicated, too (at 464A-B), that an applicant who
asked the Court to make certain declarations as to the meaning of a
will has
to show an actual and existing interest (‘n’
aktuele en teeonwoordige belang’) in the matter. Finally, in
Roodepoort- Maraisburg Town Council v Eastern Properties (Prop)
Ltd
1933 AD 87
at 101 Wessels CJ referred to the requirement that
a plaintiff has to show a direct interest in the matter in issue in
the following
terms:
‘…
(B)y
our law any person can bring an action to vindicate a right which he
possesses (
interesse
)
whatever that right may be and whether he suffers special damage or
not, provided he can show that he has a direct interest in
the matter
and not merely the interest which all citizens have.’
[16]
A family, as a group, deals with primary relationships from which
people derive emotional and material security. In South Africa
we
need to endeavor to integrate the different systems from our diverse
concepts of family [
The Law of Marriage,
Vol 1, Sinclair
assisted by Heaton, Pluralism in South African marriage Laws, page
211]. The complexity of our families should be
simplified in our
construction of South African law. The tensions and conflict of our
different systems should find harmony.
[17]
Parents and children need not become one in law, but recognition
should be given to the love, loyalty, affection, sympathetic
care,
physical care, financial and the general mutual-support mindset in
the life of each other. The components of passion, companionship
and
self-giving [
T v T
1968 (3) SA 554
(R)] should not just be
limited to spouses and should find recognition in the broader family
[
Towards the Recognition of Filial Consortium
J Church & S
Parmanand
(1987) 20 CILSA 230
at 232-5]. The responsibilities and
rights that the parent-child relationship imposes are reciprocal and
its concentration is more
in the early days of the child and the
latter days of a parent. It is not all responsibilities and rights
that require legal sanction
to enforce or protect.
[18]
The enquiry into the interest included a determination whether the
relationship between Akers and her parents by its nature
created
certain obligations for her towards them and/or their estate, such
that the conduct of the Bank caused her as their child
and them as a
family to suffer, and because of such injury, to entitle her to the
remedy of joinder, variation and/or substitution.
Akers relied on her
familial relationship with her parents. The remaining parent not only
deposed to an affidavit but he also signed
a ‘Power of
Attorney”.
[19
] In
Beukes v Krugersdorp Transitional Local Council and Another
1996 (3) SA 467
(WLD) it was said at 474B-E:
“
It
is difficult to see what more can or should be required of the
applicant and the class in whose interest he asserts that he is
litigating. Chaskalson P observed in
Ferreira
v Levin NO and Others
above at 1082G-H
that, while it was important that the Constitutional Court should not
be required to deal with abstract hypothetical
issues, and that it
should devote its scarce resources to issues that are properly before
it, he could ‘see no good reason
for adopting a narrow approach
to the issue of standing in constitutional cases’.
“
On
the contrary, it is my view that we should rather adopt a broad
approach to standing. This would be consistent with the mandate
given
to this Court to uphold the Constitution and would serve that
constitutional rights enjoy the full measure of the protection
to
which they are entitled. Such an approach would also be consistent in
my view with the provisions of s 7 (4) of the Constitution
….”
(Paragraph [165].)
This approach seems to me to be
appropriate not only to the Constitutional Court, but to all Courts
that are called upon to adjudicate
constitutional claims. It seems to
me further that a broad approach should be taken not only to who
qualifies as having standing
under s 7(4)(b), but to how that
standing may be evidenced.”
[20]
In my view, the interest of Akers is not direct. The relief claimed
by the Bank, at best, related to the estate of her parents.
Her
interest, which was primarily in the proper administration of the
estate, was merely contingent [
Gross and Others v Pentz
[1996] ZASCA 78
;
1996
(4) SA 617
(AD) at 626C-J]. The general rule is that she lacked
locus
standi in judicio.
It seems to me that Akers is beneficially
interested in the just outcome of the litigation between her parents
and the Bank. This
is not a case where her parents are defaulting or
delinquent as a result of which they are impeached, in which case the
Beningfield exception
would be triggered.
[21]
In
Beningfield v Baxter
(1866) 12 AC 167
(PC) at 178-9 it was
said:
“
This
first question which arises is, whether the plaintiff, not being
executrix, and not having any specific interest in the Equeefa
estate, could sue to set aside that purchase. Their Lordships have no
doubt that she could. When an executor cannot sue, because
his own
acts and conduct, with reference to the testator’s estate, are
impeached, relief, which (as against a stranger) could
be sought by
the executor alone, may be obtained at the suit of a party
beneficially interested in the proper performance of his
duty:
Travis
v Milne (1).”
[22]
The purpose of OPA was set out as:
“
To
deal effectively with the plight of older persons by establishing a
framework aimed at the empowerment and protection of older
persons
and at the promotion and maintenance of their status, rights,
well-being, safety and security; and to provide for matters
connected
therewith.”
Part
of the preamble to OPA reads:
“
AND
Whereas it is necessary to effect changes to existing laws relating
to older persons in order to facilitate accessible, equitable
and
affordable services to older persons and to empower older persons to
continue to live meaningfully and constructively in a
society that
recognizes them as important sources of knowledge, wisdom and
expertise,”
[23]
The first applicant is a male 66 years of age and as such is an older
person as defined in OPA. There is no evidence to suggest
that he is
a frail older person, who is defined as one who needed 24-hour care
due to a physical or mental condition which rendered
him incapable of
caring for himself or herself. The objects of OPA include to maintain
and protect his rights and to combat his
abuse, including economic
abuse. A court of law is not an organ of state [section 239(b) in the
definition of “organ of state”].
However, in my view,
that does not mean that the general principles set out in sections 5
and 9 of OPA are guidelines of no consequence
to our courts.
[24]
In my judgment, in particular my approach to the family as a group,
in my view, I have recognized the social and cultural contribution
of
the first applicant as a Black elder. This judgment will also assert
promotion of his participation, as an older person, in
decision-making processes, especially with regard to decisions that
directly affect him or his interest. Section 9(b) of OPA provides
that:
“
9
Guiding principles for provision of services
Any
service must be provided in an environment that –
(b)
promotes participation of older persons in decision-making processes
at all levels.”
Service
is defined as
“ ‘
service’
means any activity or programme designed to meet the needs of an
older person.”
[25]
Nothing suggested that the first applicant did not have the capacity
to litigate at all. There is also no evidence that sought
to indicate
that the first applicant was suspected to be incapable of managing
his affairs for any reason. [
Road Accident Fund v Mdeyide
[2007] ZACC 7
;
2008
(1) SA 535
(CC) at para 38]. There was no reason on the facts to even
suggest a need for an enquiry as envisaged or in the style of Rule 57
of the Uniform Rules of Court
[26]
In my view, it has not been shown that Akers’ father could no
longer intelligibly engage with the litigation because
of advanced
age. There is no reason for the direct substitution or variation, as
a party, as regards him. At best, Akers had shown
that she was
willing and available to her father to help him by doing some share
of the work and by providing information, perhaps
even money. This
provision of money, resources or information to help someone
qualifies as a meaning of assistance [
The Concise Oxford English
Dictionary,
tenth edition, revised, Edited by Judy Pearsall,
Oxford University Press, 2002]. Assistance to a party in court
proceedings, primarily
informed by that party’s age and level
of understanding, is a recognized concept in our law and has now
found legislative
confirmation in other areas of our law [section 65
of the Child Justice Act, 2008 (Act No. 75 of 2008). Courts have
generally immensely
benefitted from blood relations of parties who
attended court, generally out of volition based on the filial
relationship earlier
referred to in this judgment, to assist the
parties. Most initial enquiries by courts related to the mental
illness or intellectual
ability or otherwise of parties have been
based on assistance to parties, from filial relationships.
[27]
Representing another in High Court litigation is a serious exercise.
South Africa requires that those who have a right to appear
on behalf
of another person in any court in the Republic [section 25(2) of the
Legal Practice Act, 2014 (Act No. 28 of 2014) (the
LPA)] should meet
certain requirements. These include that that the person be duly
qualified [section 26 of LPA], be a South African
citizen or be
permanently resident in the Republic, be a fit and proper person to
be admitted and having served his credentials
with the South African
Legal Practice Council established by the LPA.
[28]
There are in-built assessment [section 28 of LPA] and other
strategies including vocational training in that Act to ensure
successful attainment and maintenance of competence. There are codes
setting out rules and standards relating to ethics, conduct
and
practice for those authorized to act on behalf of others. Nothing in
the papers suggest, outside the clear capacity to read,
write and
debate, that Akers qualifies to appear on behalf of another in any
court of law. The functional literacy to search the
internet and
argue the options is simply not enough.
[29]
In the light of my findings and order, I deem it not necessary to
engage with the rescission application and the application
for
judgment against the respondent for the simple reason that Akers
cannot, in law, represent the first applicant in the rescission
application, and has no
locus standi
to intervene as a member
of the family. It is unfortunate that notwithstanding the advice to
the applicants to seek legal advice,
the applicants persisted with
the application under the circumstances. I am alive to the reality
that should the first applicant
get proper legal representation, and
there is cause for the application for rescission and the order by
default to be pursued,
the first applicant may need to pursue that
and I hold the view that if it is so, he should be allowed to work on
the same papers,
duly supplemented
[30]
For these reasons I make the following order:
(a)
The application by second applicant for intervention as a party is
dismissed.
(b)
The application for rescission of judgment and the application for
judgment against the respondent are dismissed on the papers.
(c)
No cost order is made.
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT