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[2020] ZAGPJHC 140
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Vallaro v Road Accident Fund (21562/18) [2020] ZAGPJHC 140; 2021 (4) SA 302 (GJ) (17 June 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 21562/18
In
the matter between
ADV
C
VALLARO Plaintiff
As
Curatrix ad litem to
B
V Claimant
and
ROAD
ACCIDENT
FUND
Defendant
Summary:
Agreements entered into by persons who lack the juristic capacity to
do so is void
ab initio
. No life can be breathed into an
agreement that is void
ab initio
by a curator through
ratification.
JUDGMENT
[1]
In this matter the claimant is an adult male with severely impaired
mental faculties. Even before the collision which
gave rise to
the claim against the defendant, the claimant had compromised mental
faculties. I need not, however, explore
the pre-existing
condition of the claimant for the purposes of this judgment.
What is clear from the expert reports filed
on behalf of the claimant
is that he has suffered a severe head injury as a result of the
collision. The claimant’s
neuropsychologist describes the
effect of the severe head injury as akin to “
the
degree of mental impairment. . .to a patient with moderate to severe
dementia
.”
[2]
The neuropsychologist goes further to state that the claimant “
is
incapable of understanding legal proceedings. His insight and
ability to comprehend and conceptualise complex information
has been
impaired to such a degree by the brain damage that he is of unsound
mind. He is unable to participate rationally
and meaningfully
in the management of his litigation, is incapable of appropriately
instructing an attorney to conduct litigation
on his behalf, and is
unable to appreciate the legal and financial implications of such
instructions. He requires a curator
ad litem to be appointed
with immediate effect
.”
[3]
I add that a curatrix
ad litem
(“the curatrix”) was appointed by this court for the
claimant. As part of the powers given to the curator, the
power
to “
ratify any steps, if any,
which have already been taken in respect of prosecuting the claim
.”
[4]
When the matter was finally called before me I was satisfied as to
the settlement of the claim with the defendant. What
concerned
me was the validity of the contingency fee agreement (“the
agreement”) presented to me. I hasten to
add that I had
no
prima facie
difficulties
with the contents of the agreement which I only cursory looked at for
the reasons dealt with in this judgment.
What struck me,
however, was that the claimant had signed the agreement and was not
represented by a curator of any sorts at the
time that he signed the
agreement. I enquired from counsel appearing on behalf of the
claimant whether the claimant could
be said to have had the necessary
contractual capacity to enter into the agreement at the time when he
entered into the agreement.
Counsel conceded, rightly in my
view, that the claimant had no such contractual capacity to enter
into the agreement.
[5]
My question which I then posed to counsel was whether the agreement,
which had been ratified by the curatrix,
[1]
was valid or whether the agreement was void. Counsel for the
claimant submitted the curatrix is, in terms of the power accorded
to
her as mentioned in paragraph 3 of this judgment, empowered to ratify
the agreement. Although I take no issue that the
curatrix may,
in appropriate circumstances, ratify any steps already taken, the
question remains whether she could ratify an agreement
which, in my
view, is void.
[6]
Counsel submitted that it often happens in these courts that
contingency fee agreements, entered into by persons who lack
contractual
capacity, are ratified by curators and accepted by the
courts. I afforded counsel the opportunity to consider the
matter
and make either oral or written submissions to me on whether
the curatrix could ratify a void agreement, thereby blowing life into
the void agreement. After affording counsel the opportunity to
consider his position and to take instructions from his attorney,
the
election was made by the legal practitioners on behalf of the
claimant to accede to the agreement being declared invalid.
I
am of the view that something needs to the be said about the practice
counsel submitted exists.
[7]
An essential element to a contract coming into force is the existence
of the so-called meeting of the minds.
[2]
A sub-genre, to call it such, of the meeting of the minds is whether
the minds seeking to meet had the legal ability to so
meet.
Otherwise stated, did either or both of the minds which were to meet
in a contractual setting have the necessary capacity
to perform
juristic acts.
[3]
[8]
Trite in law is the fact that persons under the age of 7 and severely
mentally disabled persons completely lack the capacity
to perform
juristic acts.
[4]
As
a severely mentally disabled person is unable to participate in
reaching a consensus, the latter which is the foundation
for the
forming of a contract,
[5]
it
follows that a contract entered into by a mentally disabled person is
void
ab
initio
and not merely voidable. As the agreement is void due to the
claimant’s mental disability, the question of ratification
does
not (and cannot arise).
[6]
[9]
As counsel elected not to make submissions in this regard but merely
acceded to the declaration of invalidity of the agreement,
I
conducted my own further research in this matter. During the
course of such research I came upon the judgment of
Mort
N.O. v Henry Shields-Chiat
[7]
which seems to suggest, on an initial reading, that acts done in
respect of a mentally disabled person can be ratified. On
a
closer scrutiny of the reasoning of my brother Davis J, it becomes
clear that the
Mort
-decision
is distinguishable on the facts.
[10]
In the
Mort
-decision,
the ratification that was done by the curator pertained to the
ratification of acts done by a
falsus
procurator
on behalf of the mentally
disabled person. What occurred in that matter is that the
mentally disabled person, prior to reaching
the age of majority, was
represented by his father in the litigation. The father, whilst
his mentally disabled son was still
a minor, appointed the attorney
(the respondent in that matter) to act for his son. After the
mentally disabled son reached
the age of majority, the attorney
continued to act for the mentally disabled son whilst he, in fact,
lacked a valid mandate to
do so and thereby acted
falsus
procurator
.
[11]
In this matter it is the severely mentally disabled claimant himself
who entered into the agreement. It is not someone
else, on the
principle of
falsus
procurator
,
who acted on behalf of the claimant in entering into the agreement.
As the claimant, by virtue of his severe mental disability,
could not
enter into the agreement, the agreement is void
ab
initio
.
The agreement being void
ab
initio
,
[8]
effectively never existed. As the agreement effectively never
existed, no life could be breathed into it by the curatrix.
[12]
Curators cannot ratify agreements which were entered into by severely
mentally disabled persons if the agreement was entered
into whilst
the severely mentally person harboured under such severe mental
disability as the agreement would be void
ab
initio
in such circumstances. In
so far the practice is concerned as submitted by counsel, I am of the
view the submission is being
confused with circumstances where
curators ratify contingency fee agreements that were entered into by
persons purporting to represent
the severely mentally disabled person
whilst such persons acted without being properly authorised to do so.
[12]
As a result of the aforesaid, I granted the order acceded to by the
counsel on behalf of the respondent relating to the declaration
of
invalidity pertaining to the agreement.
______________________________
C
E THOMPSON
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
On
behalf of the Applicant Adv. H. Schouten
Instructed
by: Munro Flowers and Vermaak
On
behalf of the Respondent:
Instructed
by:
Heard
on 17 June 2020
Order
granted on 17 June 2020
Reasons
relating to the striking down of the contingency fee agreement handed
down on 18 June 2020
***JUDGMENT
HANDED DOWN BY UPLOADING SAME ONTO CASELINES***
[1]
The
curatrix states in her report, at paragraph 50.1 thereof, that she
ratified the agreement on 12 June 2020 after being appointed
as
curatrix in the matter.
[2]
SAR
& H v National Bank of SA Ltd
1924 AD 704
at 715
“
The
law does not concern itself with the working of the minds of parties
to a contract, but with the external manifestation of
their minds.
Even therefore if from a philosophical standpoint the minds of the
parties do not meet, yet, if by their acts their
minds seem to have
met, the law will, where fraud is not alleged, look to their acts
and assume that their minds did meet and
that they contracted in
accordance with what the parties purport to accept as a record of
their agreement. This is the only practical
way in which Courts of
law can determine the terms of a contract.
”
[3]
Du
Bois et al
in
Wille’s
Principles of South African Law
(9
th
Ed)
at p 146
“
The
law of persons, stated briefly, is that part of private law that
comprises the rules dealing with the legal status of various
classes
of persons. A person’s status may be described as his or her
legal position or ‘standing’ in relation
to his or her
fellow-person and the wider community: “the aggregate of his
or her various rights, duties and capacities”.
The status of a
person determines to what extent he or she has the ability to
participate as a legal subject in the life of the
law. This ability
(legal capacity in the broad sense) embraces four main constituent
capacities or competencies: the capacity
to have rights and duties
(passive legal capacity or legal capacity in its narrow sense, in
Afrikaans “regsbevoegdheid”);
the capacity to perform
juristic acts, ie voluntary human acts to which the law attaches at
least some of the legal consequences
willed by the party or parties
performing the act (active legal capacity, in Afrikaans
“handelingsbevoegdheid”);
the capacity to bring and
defend an action at law (locus standi in judicio or capacity to
litigate, in Afrikaans “verskyningsbevoegdheid”);
and
the capacity to incur delictual or criminal responsibility for
wrongful acts (in Afrikaans “toerekeningsvatbaarheid”).”
[4]
Wille’s,
supra
at 146
“
The
only capacity common to all persons is legal capacity in its narrow
sense: every legal subject, irrespective of his or her
personal
attributes, has the capacity to have rights and duties, although the
extent of this capacity and the particular rights
and duties
possessed at a certain time by virtue of this capacity may vary from
one person to another. On the other hand, not
all persons have any
or all of the other capacities. So, for example, infants (children
below the age of 7 years) and insane
persons have no capacity to
perform juristic acts or to litigate, while these capacities are
subject to certain limitations in
the case of minors above the age
of 7 years.
”
[5]
Phil
Morkel Bpk v Niemand
1970 (3) SA 455
(C) at 456F
“
Indien
dit juis is dat die omvang van die handelingsbevoegdheid van 'n
verkwister in alle opsigte dieselfde is as dié van
'n
minderjarige, dan moet die appèl slaag, want 'n ooreenkoms
deur 'n minderjarige aangegaan is vir bevestiging deur sy
voog
vatbaar. Voet, 27.8.1 en 3; Van Leeuwen, Censura Forensis,
1.1.17.10; Fouche v Battenhausen & Co.,
1939 CPD 228
op bl.
235. Moet die verkwister, inteendeel, wat sy handelingsbevoegdheid
betref, in alle opsigte gelyk gestel word aan 'n kranksinnige,
dan
kan die appèl nie slaag nie, want laasgenoemde se skynbare
toetrede tot 'n ooreenkoms besit geen regswerking nie,
en daar word
selfs nie 'n gebrekkige ooreenkoms, wat vir bevestiging vatbaar is,
in die lewe geroep nie. Institutiones,
3.19.8; Dig.,
44.7.1.12; de Groot, 3.1.19; Voet, 27.101.7.
”
[6]
Christie
The
Law of Contract in South Africa
7
th
ed at page 288
[7]
2001
(1) SA 464 (C)
[8]
“
A
Thing is void which was done against Law at the very Time of the
doing it, and no Person is bound by such an Act; . .
“ 5 MATHEW BACON, A NEW ABRIDGEMENT OF THE LAW 337 (His
Majesty's Law- Printers) (1766), as quoted in
Campbell
Law Review Volume 33 Issue 1 Fall 2010 January 2010 Article 6 Beyond
a Definition: Understanding the Nature of Void and
Voidable
Contracts by Jesse A. Schaefer at page 195