About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2016
>>
[2016] ZAGPJHC 113
|
|
Wie obo G v MEC for Health And Social Development of the Gauteng Provincial Government (05715/2013) [2016] ZAGPJHC 113 (19 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 05715
/2013
In the
matter between:
Wie,
Nolene
Charlotte
...............................................................................................................
Applicant
(Obo
[G………], [A……..])
And
The MEC
for Health and Social Development
of the
Gauteng Provincial
Government
...............................................................................
Respondent
JUDGMENT
Van der Linde, J:
[1]
This is the second judgment in the above
application. On 3 May 2016 I gave a judgment but postponed
sine
die
the application, which was argued
on 3 May 2016, because the minor on whose behalf the applicant was
claiming relief, had died
before the applicant had accepted the
settlement offered by the respondent, and before an executor had been
appointed. In fact,
when the matter was argued on 3 May 2016, the
parties were under the impression that an executor had still not been
appointed,
and in view of that fact, I did not believe that I could
make any order but to postpone the matter.
[2]
On
the very next day, however, a notice of substitution in terms of rule
15 (3) of the uniform rules of court was served on the
attorney
representing the respondent. In terms of that notice, the applicant
now represents the estate of the minor [L……]
[A……]
[G…….], by virtue of Letters of Authority issued in
terms of s.18(3) of the Administration of
Estates Act 66 of 1965.
[3]
The
notice had attached to it as “A” the Letters of Authority
dated 3 March 2016. These reflect that an inventory was
submitted to
the Master which reflected assets of the deceased to the value of
R500. S.18 (3) of the Administration of Estates
Act provides:
“
(3)
If the value of any estate does not exceed the amount determined by
the Minister by notice in the Gazette, the Master may dispense
with
the appointment of an executor and give directions as to the manner
in which any such estate shall be liquidated and distributed.”
The
amount so determined by the Minister is R250 000.
[1]
[4] In the
view that I have taken of the matter, when the minor died
litis
contestatio
had occurred, and thus her claim was actively
transmitted to her estate. That means that the estate had assets in
the region of
R4 982 625, represented by the claim which
the responded had offered to settle, and which offer of settlement
the applicant
had contended she had validly accepted. If that is
correct, the Master did not have the power to dispense with the
appointment
of an executor as apparently occurred on 3 March 2016.
[4]
But
the parties have placed the application before me again, without
further argument, for me to give my judgment on the arguments
that
were raised before me, and I do so accordingly. The parties may have
adopted the attitude that until the Master’s decision
of 3
March 2016 is set aside, it stands; and they are probably right. It
is on that basis that I proceed. As will appear below,
portions of
this judgment are lifted from the earlier judgment in which I had set
out the background, and had made some
prima
facie
remarks.
[5]
The
substantive application is by the mother and guardian of a deceased
minor child for judgment in the amount of R4 982 625,
and
costs, against the respondent. The cause of action is contract; the
applicant had sued the respondent in her capacity as guardian
of her
daughter Ammarah Genner who was born on 4 September 2009, afflicted
with cerebral palsy. She alleged in the particulars
of her claim that
the negligence of the respondent’s staff at a public hospital
was the cause of her daughter’s condition.
[6]
On 24 July 2014 the respondent made a
written offer in terms of uniform rules 34(1) and 34(5) to settle the
claim, and on 6 August
2014 the applicant accepted the offer. It is
the contract that came into existence through that acceptance that
gives rise to the
applicant’s present claim for judgment in
terms of the settlement pursuant to the provisions of rule 34 (7).
[2]
[7]
After the acceptance of the offer, and on 8
August 2014, the applicant notified the respondent that on 3 August
2014, three days
before the offer was accepted on 6 August 2014, the
applicant’s daughter had passed away. The applicant, having
taken advice
from senior and junior counsel at the time, resolved
that the offer could nonetheless be accepted, and that “…
should the Respondent hold a different
view in this regard, its remedy would be to bring an application to
have the offer of settlement
set aside and that the Court could and
should then speak the final word on this issue.”
[3]
[8]
No
interim curator under s.12 of the Administration of Estates Act had
been appointed before acceptance of the offer, nor had an
executor
been appointed under s.18(1), or any person authorised under s.18(3)
of the Act. As appears from what has been set out
above, on 3 March
2016, some nineteen months later, the Master issued Letters of
Authority under s.18(3) of the Administration
of Estates Act, and
now, subsequently, a notice in terms of rule 15(3) has been served. I
revert below to the effect of that notice.
[9]
In
the circumstances of there not having been an executor when the offer
was accepted, the court raised with the parties in advance
of the
hearing the question whether the applicant had legal capacity to
accept the offer of 24 July 2014. As stated before, the
court is
indebted to counsel for the assistance afforded by them on short
notice, and for the supplementary heads of argument provided
by Mr
Soni, SC who represented the respondent.
[10]In the earlier judgment I
recorded that Mr Coetzer for the applicant submitted that the
applicant, in her representative capacity,
had given the attorneys a
mandate which was not immediately terminated upon the death of the
minor, but continued to afford them
the authority to accept the
offer, which they then did. He submitted that the offer was thus
validly accepted. Mr Soni submitted
that the applicant had instituted
the action as guardian of the minor, and that upon the latter’s
death, that guardianship
was terminated. Thus, according to the
submission, the acceptance of the offer was a nullity.
[11]I
expressed the view earlier that Mr Soni was with respect correct; and
I believe the same reasoning still applies, despite
the notice of
substitution. A minor cannot incur contractual liability without the
assistance of her guardian.
[4]
Since legal capacity to conclude contracts
[5]
terminates on death, the guardian has no capacity after the death of
the minor to provide the contractual capacity which the minor
lacked
in life. Since the applicant had no capacity to accept the offer, she
could not have given her attorneys any power to do
so either. The
conclusion that the acceptance of the offer was not lawfully
competent, at least not when it purported to have occurred,
is
inescapable.
[6]
[12]The
notice under rule 15 (3) has not in my view changed this conclusion.
It is merely a rule of court; it cannot change the
substantive law
relative to the lack of contractual capacity which the applicant
experienced before the issue of Letters of Authority
to her.
[7]
It follows that no binding settlement was reached, because the
applicant had no capacity to represent the deceased estate when
the
notice of acceptance was sent on 6 August 2014.
[8]
For this reason the application cannot succeed.
[13]A second point was raised why
the application could not succeed. In view of the conclusion to which
I have come on the first
issue, it is not strictly necessary that I
express my view on this second issue. Nonetheless, if I am wrong on
the first issue,
I indicate that I would in any event have dismissed
the application on the basis of the second point. This point
concerns
the application of s.4 of the Contingency Fees Act 66 of
1997 (“CFA”).
[14]That section provides as
follows:
“
4
Settlement
(1) Any offer of settlement made to any party who
has entered into a contingency fees agreement, may be accepted after
the legal
practitioner has filed an affidavit with the court, if the
matter is before court, or has filed an affidavit with the
professional
controlling body, if the matter is not before court,
stating-
(a) the full terms of the settlement;
(b) an estimate of the amount or other
relief that may be obtained by taking the matter to trial;
(c) an estimate of the chances of success or
failure at trial;
(d) an outline of the legal practitioner's
fees if the matter is settled as compared to taking the matter to
trial;
(e) the reasons why the settlement is
recommended;
(f) that the matters contemplated in
paragraphs (a) to (e) were explained to the client, and the steps
taken to ensure that the
client understands the explanation; and
(g) that the legal practitioner was informed
by the client that he or she understands and accepts the terms of the
settlement.
(2) The affidavit referred to in subsection (1)
must be accompanied by an affidavit by the client, stating-
(a) that he or she was notified in writing
of the terms of the settlement;
(b) that the terms of the settlement were
explained to him or her, and that he or she understands and agrees to
them; and
(c) his or her attitude to the settlement.
(3) Any settlement made where a contingency fees
agreement has been entered into, shall be made an order of court, if
the matter
was before court.”
[15]In
this case the attorneys representing the applicant acted on a
contingency fee basis as envisaged in the CFA.
[9]
The respondent’s argument is that the settlement offer could,
in view of the word “
after”
in ss.4(1) of the CFA, only be accepted after the two affidavits
referred to s.4 had been executed. Since these affidavits only
came
much later, in the replying affidavit, and were dated 24 and 23 July
2015 respectively long after the offer was purportedly
accepted, the
offer could not have been accepted when it was, according to the
argument.
[16]The
applicant argues that the affidavits need only be handed up at court
when an order in terms of rule 34(7) was being sought,
as was the
case here.
[10]
[17]It seems that ss.4(3) really
answers the point. That subsection requires that a settlement
“
shall”
be made an order of court where a contingency fee agreement had been
entered into; there is no choice in the matter. Rule 34 (7)
on the
other hand is triggered by default; that does not apply here.
[18]The essential argument on
behalf of the applicant was however that within s.4 lay an
insurmountable conundrum. The section requires,
ostensibly,
acceptance of the settlement offer only after the affidavits will
have been produced. But if one considers the
requirements of
the contents of the affidavits, one sees that the subsection refers
to a “
settlement”
as if the “
settlement”
had already been entered into by the time the affidavits come into
existence.
[19]There is, grammatically, much
force in the argument. But I think the sense of the section is to
ensure that the client is properly
informed before the client
actually accepts the offer of settlement. Once accepted, there is no
going back; a binding agreement
will have been concluded. The section
seeks to ensure that, as it were, there is no buyer’s remorse.
[20]The mischief against which
the legislation was aimed, was no doubt the abuse that was often
manifested when ill-informed claimants
found out after the settlement
that the pay-out to them was in fact much less than they had
anticipated. In these circumstances
the sequence envisaged in ss.4(1)
must, as a matter of statutory interpretation, be honoured. The
acceptance of the offer
of settlement can only come after the
affidavits will have been filed.
[21]For these reasons the
application cannot succeed. I make the following order:
The application is dismissed with
costs, including the costs reserved on 3 May 2016.
WHG
van der Linde
Judge, High
Court
Johannesburg
For the
applicant: Adv. M Coetzer (083 409 8077)
Instructed
by Wim Krynauw Attorneys
6
th
Floor, Marble Towers
208/212
Jeppe Street
Johannesburg
Tel: 011 955
5454
Ref: W
Krynauw/MEC0011
For the
respondent: Adv V Soni, SC (083 560 0824)
Instructed
by The State Attorney
10
th
Floor, North State Building
95 Albertina
Sisulu Street, Cnr. Kruis Street
Johannesburg
Tel: 011 330
7602
Ref:
1767/13/P42/KG Lekabe
Date argued:
3 May 2016
Date
of second judgment: 19 May 2016.
[1]
Government notice no. R. 920 in Government
Gazette 38238 of 24 November 2014.
[2]
“
In the event of a failure to pay or to
perform within 10 days after delivery of the notice of acceptance of
the offer or tender,
the party entitled to pay or performance may,
on five days’ written notice to the party who has failed to
pay or perform,
apply through the registrar to a judge for judgment
in accordance with the offer or tender as well as for costs of the
application.”
[3]
Applicant’s replying affidavit, p44 par 26
ln 13 – 15.
[4]
Boberg’s Law of Persons and the Family, 2
nd
ed, Belinda van Heerden et al, p781 fn 68.
[5]
Wille & Millin’s Mercantile Law of
South Africa, 18
th
ed by JF Coaker and DT Zeffertt, p58, sub nom “
Capacity
to contract.”
[6]
It is unnecessary to consider whether the offer,
upon the death of the minor, lapsed; or whether the offer remained
open for acceptance
until after an executor will have been
appointed. None of that occurred, and those issues are better left
for when they may be
raised in the future.
[7]
I accept that the appointment of the applicant in
her representative capacity occurred
nunc
pro tunc
; Erasmus, Superior Court
Practice, 2
nd
ed., Van Loggerenberg, pD1-160. But it could not have had any effect
before the Letters of Authority were issued on 3 March 2016.
[8]
Pp 12,13.
[9]
P40, paras 14, ff.
[10]
The FA expressly makes the case on the basis of
rule 34 (7); see p5 para 4.