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
>>
2021
>>
[2021] ZAGPJHC 40
|

|

M.K.M and Others v Road Accident Fund (1677/2019; 1928/2019) [2021] ZAGPJHC 40; [2021] 3 All SA 544 (GJ) (7 April 2021)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBL
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES:
YES
Case
Number: 1677/2019
In the matter between:
M[....]
M[....] K[....] obo
First
Plaintiff
MK
Second
Plaintiff
MT
Third
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CENTRE FOR
CHILD LAW
Amicus Curiae
Case
Number: 1928/2019
In
the matter between:
N[....]
M[....] obo
First
Plaintiff
CM
Second
Plaintiff
LM
Third
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
CENTRE
FOR CHILD
LAW
Amicus
Curiae
Summary[....]:
In
two actions brought on behalf of children against the RAF the court
was asked to make the settlement agreements an order of court,
where
payment had already been made by the RAF to the claimants’
attorney in terms of such settlement agreements which were
concluded
inter partes
and were performed upon by the RAF in the absence
of a court order:
Held
:
The
provisions of the Contingency Fees Act (CFA )
underpin and permeate the entire settlement process and
regulate the contractual
and other relationships which operate in an
action for damages against the RAF.
Held:
By reason of the operation of s 4(3) of the CFA
- which accords mandatory statutory jurisdiction to the court over
every
settlement of an action  where a contingency
fees agreement has been entered into
-
payment by the RAF in terms of a settlement agreement in the
absence of a court order is unlawful and contrary to the functions

and powers of the RAF.
Held:
In children’s claims against the RAF, it is incumbent on the
child’s attorney to provide, at least, the following

information to the court in settlement proceedings, which information
should be supplied in the context of the attorney making
the
peremptory affidavit required in  terms of s 4(1) of the CFA in
that, without such information in cases involving
children the
requirements of s 4(1) (a) to (g) have  no efficacy:
·
The relationship between the plaintiff and the child. This would
include the duration of the relationship.
·
The circumstances that led to the plaintiff caring for the child.
·
The interests of the plaintiff.
·
The financial circumstances of the plaintiff and his or her
ability to safeguard and administer the money.
·
The personal and financial circumstances of the child including
his or her home circumstances and maintenance needs.
·
A justification for the vehicle agreed to administer the funds and
why such a vehicle is preferable to the other possibilities.
·
The views and wishes of the child concerned, where appropriate.
Held
:
The determination of who is the best person to deal with a RAF claim
on behalf of the child as parent and/or guardian and/or caregiver
is
a matter of inquiry and not assumption and courts, attorneys, and the
RAF should not be tempted to ignore the realities
of the child’s
situation in favour of an adoption of stereotypical family values and
norms or resort to biology.
Held:
A  court in settlement  proceedings where children are
claimants must,
before it makes an order,
inquire into the necessity for the protection of the funds and the
most appropriate means of achieving
such protection.
The
Guardian's Fund offers a safe, reliable, accessible and free service
and it should not be overlooked  by a court as a possible

vehicle for protecting children’s monies, based only on
apocryphal reports of inefficiency in the Master’s Office.
Where
an order for the approval of a settlement agreement is sought under
circumstances where such settlement is invalid for want
of compliance
with s4 of the CFA, the court must deal with each matter in
accordance with its own  peculiar facts; provided
that a court
should, in all instances, satisfy itself that the rights of the
children are properly taken account of by the order
which is
ultimately granted, which would of necessity involve a consideration
of the issues set out in this judgment in relation
to the contents of
the s 4(1) affidavit.
Conduct
of attorney and advocates referred to the LPC for investigation.
JUDGMENT
FISHER
J:
Introduction
[1]
These two cases came before me in the Settlement Court operating in
terms
of the Judge President’s (JP’s) Practice Directive
2.1 of 2019 which I deal with below. Both cases involve claims for

loss of support brought against the RAF on behalf of children.
[2]
It came to my attention, by chance  that the amounts which I was
being asked to order the RAF to pay, had already been paid by the RAF
pursuant to an out of court settlement concluded between the
RAF and
the plaintiff’s  attorney in both matters, Ms Sonya
Meistre. My subsequent investigations revealed that
Ms Meistre had
received the monies into her trust account and  had then
immediately paid herself  fees out of this amount
received from
the RAF. This occurred without a court order and without the fees
charged being taxed by the Taxing Master. It furthermore
occurred in
circumstances where I was deliberately being led by both the legal
representatives of the plaintiffs and by the RAF
to the impression
that the settlement agreement in each case was to occur pursuant to
the orders sought.
[3]
We are in an era in our High Courts where some plaintiff’s
attorneys
who operate in the RAF environment  seem to believe
that they can engage with the courts in a game of cat-and-mouse aimed
at avoiding court scrutiny of their settlements.
[4]
There has been an appreciable resistance to court oversight in the
RAF
environment over the past years. It must be understood that RAF
matters are, under the present RAF policy, settled rather than run.
[5]
Since May 2020, RAF cases which are currently in their various
stages
of litigation before the courts, have been relieved of
external legal representation. The new policy has been approved by

both the Board of the RAF and the Minister of Transport (the
Minister).  This has been touted as a  cost cutting and

thus money saving measure. However, it has also left the RAF even
more exposed and vulnerable to malfeasance and incompetence.
[6]
Plaintiff’s
attorneys have sought to take the stance that, once the RAF and the
plaintiff have settled the claim, the
court has no jurisdiction to
interfere in the settlement. This approach was referenced in the SCA
in
P M obo T M v Road
Accident Fund
[1]
where Weiner AJA said the following:
‘
Judges
in all divisions have expressed concern that in many RAF cases, there
is an abuse of process. Settlements are concluded where,
for example,
the substantial damages agreed to bear no relation to the injuries
sustained. In this case the judge had a legitimate
concern that
the only reason for the settlement was the lack of preparation of the
RAF’s case and that there may, in truth,
as appeared to be the
case from the evidence she heard from a passenger in the vehicle,
have been no negligence on the part of
the insured driver and thus no
liability on the part of the RAF.
Concern
has been noted that to require a Judge to scrutinize every settlement
in a RAF case would cause delays in the administration
of justice.
However, it is not every case that will require this form of judicial
scrutiny. When a Judge expresses concern over
the terms of a
settlement, the court must ensure that those concerns are addressed
by the parties to prevent an abuse of process
and the unjustified
disbursements of public funds.’
[2]
(
footnotes omitted)
[7]
On 05 July 2019, the JP of the Gauteng Division,  Mlambo
JP
issued  Practice Directive 2 of 2019 which was aimed at
regulating trial actions for damages against the State, including the

RAF (Practice Directive 2).  A new daily Case Management Court
was set up pursuant to this Directive, to provide for a process
which
required that judges manage cases more closely before certifying them
trial ready.  Practice Directive 2 was carefully
crafted to
allow for the Case Management Court to be alerted to any problems or
inconsistencies in the case, including those between
the expert
forensic reports filed and the pleaded claim.
[8]
On 02 October 2019, the JP  followed this up with
Practice
Directive 2.1 which was directed specifically at
settlement agreements. This area had been identified  as one
where practical
oversight by the courts was direly needed in that
vast amounts of public funds were at stake and no evidence was led.
Paragraphs
2 and 3 of Practice Directive 2.1 read as follows:
‘
Every
settlement/consent draft order presented [should] be interrogated by
a Judge who is requested to make the settlement/consent
draft order
to determine whether or not the circumstances upon which order is
premised are justified in relation to the law, the
facts, and the
expert reports upon which they are based.
Because
no evidence is adduced under oath, as might have been presented on
the trial, the Court may further require that the submissions
relied
upon should be confirmed by affidavit or oral evidence as more fully
stipulated hereunder
.’
[9]
In their next move to
subvert the process, some plaintiff’s attorneys then attempted
to oust the court’s jurisdiction
by claiming that they were
entitled to enter into out of court settlements with the RAF and that
the settlement court had no jurisdiction
where neither the RAF nor
the plaintiff sought that that the settlements be made an order of
court.
[3]
[10]
As I deal with  in
detail in this judgment, such an approach would entail
attorneys subverting the legislative
scheme created by the
Contingency Fee Act
[4]
(CFA) by seeking to suggest that the attorneys’ contractual
relationship with their clients is not a contingency fee agreement

(‘CF agreement’) but an ordinary attorney /client
relationship. This is a contrivance which would, to my mind, not

withstand judicial scrutiny. Yet both the attorney in the matter and
the RAF have engaged in this subterfuge.  The RAF concedes
that
it routinely engages in concluding such settlement agreements and
acting in compliance with them.
[11]
On 21 February 2021 the JP issued a further Directive  which
provides as follows
in relevant part:
‘
1.
Under no circumstances
may a Taxing Master tax costs in matters wherein the claim was
settled inter partes without a Court Order
OR a valid Discharge
Document or an equivalent document confirming settlement of the
claim(s).
2.
A settlement agreement
between parties where the Defendant is the RAF, must be enrolled in
the Settlements Court in order for the
agreement to be made an Order
of Court before the taxation may be enrolled.
3.
This Notice applies ONLY
to matters that were settled inter partes and does not affect the
ability of practitioners to enroll bills
of cost that are not related
to a settled claim; including, but not limited to: bills of cost
relating to abandoned or withdrawn
litigation; bills to be taxed for
the purpose of setting security for cost or settled bills of cost.
6.
Attorney and own client bills where the attorney-client relationship
had ceased may not be enrolled before a Taxing Master unless
the bill
of costs is the subject of litigation in the High Court.’ (
emphasis added).
[12]
It is for  this reason that attorneys such as Ms Meistre,
who have entered
into unlawful settlement agreements with the
RAF, now have no option but to seek court orders
ex post facto
the performance of the unlawful settlement agreements, in order to
tax their bills of costs. Regrettably, this has led to the subterfuge

which is found in these two cases.
[13]
It is indeed a sad time in our judicial history when attorneys
engage in wholesale
chicanery for the purpose of avoiding
legislatively prescribed court oversight. That the RAF should
acquiesce in such conduct is
even more distressing.
Background
[14]
When I expressed my concerns as to how these matters had been
conducted and asked
for submissions and explanations for such
conduct, the RAF represented by Mr
Puckrin
SC, entered into the matter for the purposes, I was told, of
assisting the Court in coming to a proper determination of the
matters
before me and giving a general sense of what is being done to
overhaul the RAF system. The RAF had previously featured only on the

basis that it concluded the out of court settlement with Ms Meistry
and then approved the court order which was to be taken in
each
matter.
[15]
Given that the rights of children are at the heart of these matters,
the Centre for Child
Law (CCL) participated as amicus curiae .
I am exceedingly grateful for the very competent input of Ms Karabo
Ozah, Director
of the CLL who instructed  Mr Courtenay also of
the CCL who in turn filed helpful heads of argument and made
submissions.
[16]
Ms Meistre, it has emerged, trades in this way with the RAF as a
matter of course and that
she is not alone in this. As I have said,
the RAF concedes that it routinely pays funds to attorneys without a
court order. These
cases show that it  approved the form of the
orders sought notwithstanding that it has known that it has already
performed
under an agreement concluded
inter partes
with the
plaintiff’s attorney. It concedes that this is not competent
but gives no explanation for this misconduct.  I
have no doubt,
that were it not for JP’s Directive of 21 February 2021, these
matters would not have come to the attention
of this Court.
[17]
In the one matter the monies (minus Ms Meistre’s fees) have
already been paid directly
to the claimant, on the basis, I was told,
of her being the child’s biological mother and thus being ‘as
of right’
according to Ms Meistre, entitled to such payment.
There was  no question of inquiry into the ability or otherwise
of the
children’s mother to administer the funds. There was
furthermore no distinction made between the children’s separate

claims in the settlement that was entered into by Ms Meistre and a
globular sum has been paid by the RAF purportedly in respect
of the
claims of the children and their mother.
[18]
In the other matter the monies (again minus the  amount
taken by Ms Meistre
for her costs) remain in trust. I was told by Ms
Meistre that this was because the person who made the claim was not a
biological
parent but the aunt of the children. The plan was for
these monies to be released once the court order for payment had been
granted
by this Court.
[19]
The RAF alleges that it is entitled to settle
inter partes
with attorneys. As I deal with in detail in this judgment it is
wrong on this score. The RAF also alleges that it should
be entitled
to take comfort in the fact  that it is paying into an
attorney’s trust account. As the facts of these cases
show,
this comfort is misplaced.
[20]
A vital part of the function of the RAF is to pay out on claims made
on behalf of children.
The RAF submits that it  fulfils such
function by merely makes payment to an attorney. It argues that it
has no duty to satisfy
itself that the monies are properly spent or
protected and that this is the job of the attorney.
[21]
It appears however that the RAF stops short of entering into
settlements and paying the
monies where the claimant on behalf of the
children is not a biological parent unless a curator
ad litem
has been appointed for the child. It is apparently for  this
reason that Mr Jonatan Bouwer was appointed. As I deal with below,

the appointment of Mr Bouwer was expedient to the settlement
transaction and had little, if anything, to do with protecting the

children. In this case it was sought that the monies be paid into a
trust to be established by Ms Meistre. As I have said, Ms Meistre

had, by the date of this recommendation, already taken it upon
herself to release some of these funds to herself and the children’s

aunt. Thus her dedication to the protection of the children’s
trust monies is questionable.
[22]
The RAF concedes that the problems which emerge in these cases
represent common failings
across the board in relation to how
children’s claims are processed and administered generally.
[23]
The Chief Executive Officer of the RAF, Mr Collins Phutane Letsoalo,
(the CEO)  filed
an affidavit in which he set out changes that
were being instituted in the system. The affidavit confirmed that
part of the overhaul
entailed wholesale a drive to settle all
litigious matters with attorneys.
The
issues
[24]
This judgment considers in the context of these two cases and
generally the obligations
of the RAF and the attorneys and curators
ad litem
who act on behalf of  children in RAF cases and
more specifically the following issues:
·
whether the RAF acts lawfully when it purports to contract with
attorneys
inter partes
and performs under such settlements.
·
The nature and extent of the obligations of attorneys and curators
ad
litem
to their child clients and to the court.
·
The courts function and duty in relation to the protection of court
awarded
funds to children.
[25]
From 2017 to 2020 the RAF,
on average, registered approximately 19 000 cases per year relating
to children. These statistics represent
widespread urgent need of the
most fundamental kind for those who were supported by the deceased.
They also raise questions as
to how best to address this need in a
manner that is feasible from an administrative and utilitarian
perspective
[5]
.
[26]
It seems that Ms Meistre’s firm specialises in loss of support
cases. The fact that
she is the attorney in both cases, whilst more
than co-incidental because of the prevalence of the firm in this area
of practice,
does not detract from the fact that the problems are
endemic to the field at large.
[27]
To put the issues in context  it is important to consider the
facts of each case and
the manner in which each was conducted by Ms
Meistre and the RAF.
M[....],
M[....] Kedebone on her own behalf and  obo minor children
K and T Makhele
The
claim
[28]
Ms Keneilwe Makhele died as a result of a motor accident which
occurred on 03 August 2018
on the Golden Highway, Gauteng.  She
was allegedly the mother of the minor children K - born on 25 June
2004 and then aged
14 (and now 16) and T born on August 2011 and then
aged 7 (and now 9).
[29]
The abridged birth certificate of K which is filed of record does not
reveal who his mother
is nor the identity of a father. It also
neither bears the official stamp of the Department of Home Affairs,
the signature of the
Director of Home Affairs, nor its official
crest. It is on the face of it an irregular document and does not
constitute proof that
the deceased was the child’s mother. The
abridged birth certificate of T however seems regular on the face of
it and does
reflect that the deceased was the child’s mother.
It does not reflect the name of her father and the deceased is
reflected
as ‘never married’. Despite the deficiencies in
the evidence of maternity relating to K, I assume for the purposes of

this judgment that both children are those of the deceased.
[30]
Soon after the death, Ms M[....], who alleges she is the sister of
the deceased and thus
the maternal aunt of the children, approached
the offices of Ms Meistre for the purposes of instituting a claim on
behalf of the
children and herself. There is no independent evidence
that Ms M[....] is the sister of the deceased, but again I will
assume for
the purposes of this judgment that she is the deceased’s
sister and thus the children’s aunt.  Ms Meistre who
specialises in this work would surely have had questions as to how Ms
M[....] became the guardian or caregiver of the children.
It has
latterly come to light  that Ms M[....] is not, in fact, the
caregiver of the children but that they reside in
Soweto with their
maternal grandmother.
[31]
On 18 August 2018, Ms
Meistre lodged a claim with the RAF on Ms M[....]’s
instructions. She  lodged a third party claim
form (RAF1) as per
the regulations  and forms to the RAF Act
[6]
(as amended). In terms of the form Ms Meistre alleges that she is
acting in a ‘representative capacity’ as ‘attorney’

of the claimant on the form, being Ms M[....].
[32]
As part of the  composite claim, Ms Meistre
made a claim on behalf
Ms M[....] for funeral expenses in the amount
of R 30 000.  I will deal with this claim for funeral expenses
later. What is
of concern is that, although the children were
mentioned as dependants in the claim, a separate claim is not defined
on behalf
of each of the children.  Neither is Ms M[....]’s
alleged claim separated as that of hers. As I have said this

combining of claims is incompetent as it does not accord the children
their separate rights.
[33]
On 21 January 2019 Ms M[....], assisted by Ms Meistre,
instituted action as
first plaintiff for funeral expenses. It appears
that these funeral expenses or at least most of them were not
incurred by Ms M[....]
personally. She relies in her claim on
documents which show expenditure by a third party. It is alleged that
Ms M[....] took cession
of the claim from this third party.  The
children were second and third plaintiff’s respectively for
their loss of support.
[34]
Why Ms Meistre did not, at that stage, apply for a curator
ad
litem
for the children is inexplicable other than that it
suggests that a curator was a matter of expediency as to a settlement
of the
matter.
[35]
It was nine months later, on 28 November 2019 that a curator
ad
litem
in the form of Mr Jonatan Bouwer was finally appointed. As
is usual in these matters, his appointment was applied for
ex
parte
and there was no basis on which it needed to be delayed –
except the saving of fees which might otherwise flow to Mr Bouwer
and
not to Ms Meistre.
[36]
A trial date was allocated to the matter for 03 November 2020. Ms
Meistre prepared to take
a judgment by default on this date due to
the withdrawal of the RAF’s attorney’s in June 2020.
The
application for judgment by default
[37]
The default judgment application is instructive. It shows a profound
lack of insight into
the circumstances of the children and the duty
owed to them and the Court.
[38]
An affidavit, presumably drawn by Ms Meistre or someone at her firm,
was signed by Ms M[....]
in support of the application for judgment.
In it she says the following as to her part in the matter and as to
the children’s
parentage and their care:
‘
2.1
I am the aunt of the minor children, K  Makhele (ID *******)
whose biological mother KENEILWE JACQELINE MAKELE (ID80601
0880 080)
(hereinafter referred to as the deceased ) passed away from a motor
vehicle accident on 3 August 2018.
2.2
I am the elder sister of the deceased.
2.3
I confirm that the deceased was the breadwinner and sole provider for
the children and they were resident with the deceased.
2.4
SIPHO GIFT MAKHELE (ID 00 12 02 6803 082) [thus he would be aged 19
at the time] is the aunt (sic) of the deceased and he confirmed
that
the children are the biological children of the deceased.
2.5
PHINDULO EMMANUEL SHANDUKANI (ID 95 05 22 5348 088)  is the
sister of the deceased and he (sic) confirmed that the children
are
the biological children of the deceased
2.6
JONAS MOTUMI MBELE (ID 73 08 23 5994 982) is the uncle of the
deceased and he confirmed that the children are the biological

children of the deceased.
2.7
The minor children are currently residing with [ no name given ] 3223
Mphamphuli Street, Chiawelo, Soweto and they are well
taken care of.’
[39]
This affidavit served also to verify the deceased’s employment
and Ms
M[....]’s personal ( ceded) claim for funeral expenses.
[40]
These garbled and incomplete statements are supported only by
rudimentary manuscript
affidavits claiming to be of the persons
purportedly referred to therein. There is no indication that any
further investigations
were conducted by either the RAF or Mr Bouwer
as at this date.
[41]
The suit of affidavits filed in support of the proposed default order
included
that of Mr Bouwer, which was filed in order to give his
curator’s report to the court.
[42]
Mr Bouwer’s affidavit contained just two sentences of hearsay
information
which he said was obtained from Ms M[....] relating to
the children’s personal circumstances. It read as follows on
this
matter:
‘
3.1
I consulted with the first
plaintiff who is the aunt of the minors.
3.2.
She informed me that the children are staying with her mother (their
grandmother).
3.3.
She informed me that the father is not taking care of the children
and was not living with the children and the deceased at
the time of
the accident.’
[43]
Mr Bouwer at this stage had had no contact with the children even
though one of them was
sixteen years old. No particulars are provided
as to the grandmother who is the priM[....] caregiver of the
children, and neither
was she interviewed at this stage. No details
of how the children have been surviving since the death of their
mother were provided.
[44]
The  apparent lack of investigation and care in reporting
to this Court as to
the needs and circumstances of vulnerable
children by an officer of this Court who purports to act  as a
curator
ad litem
is, to my mind, worthy of further
investigation by the Legal Practice Council (LPC).
[45]
One of the duties of Mr Bouwer as set out in the order which
appointed him to his position
as curator
ad litem
was
personally  to negotiate a settlement on behalf of the children.
It was specifically provided in the order that in the
context of his
negotiations, he was to obtain the approval of a judge in chambers
before accepting any offer. This is in keeping
with the practice in
this Division. The aim of this judicial oversight is obvious –
it protects the children and the public
purse.  But Mr Bouwer
never negotiated the settlement. It appears that it was never, in
truth, anticipated that he would do
anything more than lend the
appearance of  approval to a settlement which was actually
negotiated and entered into by Ms Meistre.
[46]
Had Mr Bouwer properly carried out his responsibility as to the
settlement, he would
immediately have been aware of the fact
that the settlement amount reached was a sum of the claims -
i.e. there was no separation
of the claims of each child or that of
their aunt. The duty of Mr Bouwer was to represent the interests of
each of the children
independently. Ms Meistre also paid no heed to
her separate obligations as attorney to each of the children.
[47]
Ms  Meistre’s accepted of the offer and on her direction
the money was received
into her trust account. This took place on 18
December 2020, whereupon she immediately transferred 25% of the
amount from trust
into her own account as her costs.
[48]
Ms Meistre’s receipt of the money into trust and her dealings
therewith shows that
she completely ignored the fact that it was Mr
Bouwer who, in term of an order of this Court, had the authority to
negotiate and
conclude the settlement and not her. Furthermore she
ignored the fact that Mr Bouwer had not sought the consent of a judge
before
he approved the settlement.
Settlement
Court Hearings
[49]
On 20 January 2020, which was some weeks after the payment had been
received by Ms Meistre,
the matter came before me in the Settlement
Court. I was asked to give an order in terms of a detailed  a
draft order
which had apparently been drawn by Ms Meistre and/
or Ms Leizle Swart  an advocate instructed by Ms Meistre.
[50]
The proposed order was in accordance with the out of court
settlement purportedly
entered into between the RAF and Ms
Meistre on the instructions of Ms M[....] but it  dealt also
with added issues such
as costs.  It had the following features:
·
It sought payment to each plaintiff of a specific amount.
·
It sought to hide that payment had already been received by Ms
Meistre
and indeed that she had already taken her own fees from such
payment.
·
It sought costs including those of the curator ad litem (Mr Bouwer),
senior
junior counsel (Ms Swart), and the actuary who had attended to
the quantification of the claim on Ms Meistre’s instructions.
·
It sought that this Court declare the contingency fee agreement
between
Ms M[....] and the RAF to be invalid.
[51]
At the hearing I raised that I had, in reading the documents, been
led to believe that
payment had already been made. This I had, per
chance, noted from a confirmation document which was filed of record
and which emanated
from the RAF. I sought an answer as to why an
order for payment would be asked for when payment had already been
made.
[52]
I asked also that Mr Bouwer explain why and indeed how
settlement had been reached
and payment received without judicial
approval as required by the Court order in terms of which he was
appointed.  Mr Louw
who was  then moving the matter before
me deferred to the knowledge of the matter by Ms Meistre and Ms
Swart. He asked that
the matter be postponed to 03 February 2021 so
that the issues raised by me could be dealt with. Mr Bouwer then also
undertook
to make further clarifications at the postponed hearing
before me as part of his role as curator
ad litem.
[53]
There were irregularities of a similar kind in the M[....]
matter which also led
to that matter being postponed to the same
date. I deal later with the irregularities  in the M[....]
matter.
[54]
Ms Meistre and Mr Bouwer in anticipation of the postponed hearing,
filed affidavits in
which they sought to deflect any blame from
themselves as to the irregular conduct of the matters.
[55]
To this end Ms Meistre, on 02 February 2021, filed a new draft order
in terms of which
it was no longer sought that the CF agreement be
declared invalid. She now sought  to rely on the CF agreement.
This change
in direction was latterly explained by Ms Swart on the
basis that the order initially sought in Settlement Court on 20
January
2020 was sought ‘in error’.  Ms Swart’s
name appears at the bottom of the draft as the author thereof. How

the  alleged error came about was not explained by Ms Swart and
she had every opportunity to do so. It was clear to me that
she was
integrally involved in the obtaining of the orders notwithstanding
that she was well aware that they did not reflect the
facts.
[56]
Mr Bouwer, also on 02 February 2020, filed a second  affidavit
in which he said
the following:
·
He believed that the offer was in the interests of the children.
·
He believed that Ms Meistre had acted in the best interests of the
children.
·
He had now chosen to ‘ratify’ all the decisions of
Ms
Meistre in relation to the settlement and the payments received.
·
He conceded that he had not obtained the required judicial consent
for
the settlement agreement.
[57]
But this was too little too late. By this stage, the CCL had been
admitted as amicus and
the RAF had, sensibly decided that it should
no longer opt out of the proceedings and that it was best that it
made submissions.
I thus granted a further postponement so that the
RAF could make further submissions on this matter and M[....].
I ruled
also that, Ms Meistre, Mr Bouwer and Ms Swart could also
produce further submissions in relation to the matters should they
see
fit to do so. The date for hearing was set at 12 February 2021.
[58]
Mr Bouwer at this stage filed a third affidavit purportedly as
curator ad litem
. It reads as follows in material part:
‘
I
wish to amplify and add to my previous report as the amicus curiae
raised certain points:
GRANDMOTHER:
1.1.
I consulted with the grandmother through a translator.
1.2.
She claims to only have finished school to standard 6.
1.3.
She believes the money should be paid out to her to manage on behalf
of the children.
2.
THE CHILDREN:
2.1
I consulted with the children.
2.2
On asking what their opinion was on where the money should go they
claimed not to have given the matter thought and could not
react
thereto.
2.3
Later in the presence of their grandmother they telephonically
claimed that it would not bother them if she managed the money.’
[59]
Mr Bouwer then went on in this, his third affidavit, to set out his
view in relation to
Ms Meistre’s entitlement to take her fees
out of the trust monies. Unfortunately, his opinions in this regard
bear no scrutiny.
In fact, the focal point of all of Mr Bouwer’s
affidavits have been to attempt to accommodate and vindicate the
position
of Ms Meistre rather than to protect the rights of the
children.
[60]
The third affidavit of Mr Bouwer represents the first attempt at
interviewing the children
and their grandmother. Such interviews came
about only because of the Court’s intervention. The affidavit
suggests a terse
exchange with the grandmother and the children. It
appears that this was telephonic. It is important that it shows  that
a
dispute exists between the grandmother (who is never even given the
courtesy of being named by Mr Bouwer or Ms Meistre) and Ms M[....]
as
to who should administer the substantial amount of more than R1.3
million which has been paid in respect of the joint maintenance
of
the children. As I have said, the settlement reached did not
distinguish between the children as to the amounts owing to each
of
them. This was notwithstanding that the amount due to the older child
would, on the actuarial calculation relied on by Ms Meistre
to settle
the matter, be less than half of that due to the younger child.
[61]
Ms Meistre concedes that, in addition to R15 000 which  she
says is owed
to Ms M[....] personally as per her ceded claim,
she has paid Ms M[....] an amount of R 10 000 – which she
says she
was told by Ms M[....] was for the children. Ms M[....]
could not however, on being asked, provide any proof of
expenditure
on the children.
[62]
In heads of argument filed by Ms Swart together with an affidavit
filed by Ms Meistre it
is contended that the court’s duty of
oversight ‘should not be over emphasised and overshadow’
the duty of courts
to act in the interest of minor children. The
suggestion appears to be that the courts should allow for substance
over form and
should turn a blind eye to irregularities in the
conduct of these matters if it shown that the attorney has the
children’s
interests at heart. Ms Swart, wisely, did not
persist with this argument at the hearing.
[63]
Ms Meistre’s affidavit seeks to exonerate herself for her
failings to properly represent
the children by suggesting that the
children needed the money and she only acted out of concern for their
well-being.  Unfortunately
for Ms Meistre, the facts of the
matter, including her  hasty and  unseemly misappropriation
of a large part of the children’s
capital for herself, tell a
different tale.
[64]
When her conduct was placed under scrutiny,  Ms Meistre
hastened, for the first
time, to obtain photographs of the children’s
living conditions which suggest that the children live in poverty but
that
their grandmother is doing all she can to care for them. These
photographs were used by Ms Meistre in an unseemly bid to
bolster her argument that she had made payments out of the children’s
trust funds because of her ‘concern for the children’.

The irony of the fact that it was only for her own purposes and in
defence of her failings that the living conditions of the children

were placed before a court at all seems to have escaped Ms Meistre.
In fact, in all affidvits filed by Ms M[....], the most that
was
offered was that the children ‘are properly taken care of.’
[65]
One must question what Ms Meistre did for the fee of 25% of the total
payout ( i.e. R 336
313 that she took from the trust monies of the
children. She completed and signed the prescribed Third Party Claim
form (RAF 1).
This was done clumsily and with no regard to the
separate claims of the children. It appears that her office, through
Ms M[....],
attended to the putting together of a rudimentary and for
the most part, unconvincing file of documents which sought to prove
that
the children were dependants of the deceased. The obtaining of
these documents requires no special skill and is easily done by
non-professional staff. She then attended to the issuing of a
summons.
[66]
At this point it is apposite to explain that a dependant’s
action is generally
relatively simple. Once the deceased’s duty
of support can be shown together with  the deceased’s
employment and
income, the matter is  worked out  by means
of  actuarial calculation and on the premise that certain
percentages
of such income are payable to dependant’s. The
claims are thus fairly rote and formulaic and, as I have said, are
almost
exclusively settled.
[67]
The RAF alleges that, when Ms Meistre accepted the offer and signed
the settlement agreement,
it believed that she was acting lawfully.
It says that it was not  informed by Ms Meistre that Mr Bouwer
did not have the
permission of the Court to accept the settlement
offer. The CEO stated on affidavit as follows in this regard:
‘
Having
now had an opportunity to go through the document, I noted that the
“Memorandum of Agreement[dated 12 January 2021]”
(which
was drafted and presented to the Defendant by the Plaintiff's
attorney) does not mention that:
21.1
The Plaintiff's attorney had already received payment from the
Defendant;
21.2
The curator ad litem still required the Honourable Court's permission
to accept the offer; and
21.3
The Plaintiff's attorney did not inform the Defendant that the
curator ad litem still required the Court's permission
.’
[68]
As I have said, the RAF, furthermore, concedes that it should not
have acquiesced in an
order which sought payment when it knew that
payment had already been made. However it gives no explanation as to
why it did so.
[69]
As is set out above, it was a full nine months after summons and more
than a year after
a claim was made against the RAF that Mr Bouwer was
appointed. The protection of the children’s funds and the
urgency in
relation to their need seems to have escaped the
practitioners involved as well as those officials acting in the
course of their
employment by the RAF. This has resulted in a flawed
process which has deprived the children of their maintenance and
their grandmother
of assistance in maintaining them for a period of
in excess of two years. This is unconscionable.
[70]
I cannot but conclude that a person who had, as a priority, the
children’s best interests
rather than the earning of fees would
have done significantly better in obtaining direly needed redress for
the children and their
anonymous grandmother.
Matuvi
on her own behalf and obo C and L Makheto v RAF
The
claim
[71]
On 20 August 2018, Ms Meistre lodged the RAF 1
claim form for loss of support of Ms M[....] and her two minor
children, C born on
25 July 2004 and L born on 15 January 2007. This
meant that at the time the claim was lodged the children were fifteen
and eleven
respectively. C is now an adult. The claim arose as a
result of the death of the children’s father and life partner
of Ms
M[....].
[72]
There was a problem which was immediately apparent
from the documents on record. The deceased was known as Ephraim
Maketo in terms
of a South African identity document which was relied
on for the claim. But it appears that this document was fraudulently
obtained.
This, at least, is according to Ms M[....] who made a
rudimentary affidavit to the following effect on 03 November 2018:
‘
My
husband was a Zimbabwean and he was using a South African I.D. South
African ID is 730414 5819 081. Zimbabwe ID Maketo Joseph

83066955-S-83.’
[73]
This discrepancy did not lead Ms Meistre to the
conclusion that this identity problem needed explanation or attention
in the pleadings
or otherwise.  The matter was made more
confusing still by the fact that the South African death certificate
relied on for
the claim recorded the cause of death as ‘natural
causes.’ Which would exclude a motor vehicle accident.
[74]
On 29 January 2019, Ms Meistre instituted action
on behalf of the three plaintiffs for separate amounts for each of
their claims.
The actuary employed by the plaintiff calculated the
total loss of support for the first plaintiff and the minor children
as follows:
Ms Matuvi: R174 141;  C :  R110 144;
and L:  R154 220-00.
[75]
However, when the inevitable settlement
negotiations ensued there was, as in Mplokeng, no attempt by Ms
Meistre to delineate the
claims and a combined amount was agreed to.
The
settlement court proceedings
[76]
As I have said, in this matter, there was no
curator
ad litem
appointed to the children as they were represented by their mother.
Ms Meistre thus made the assumption that the fact that the
claim was
made by a biological parent, meant that no investigation as to the
children’s needs and their representation in
the claims made on
their behalf was necessary. It seems that this is Ms Meistre’s
approach regardless of the facts.
[77]
When an attempt was made to have the settlement
made an order before me,  the discrepancy as to the two identity
documents
of the deceased was not brought to my attention and had to
be raised by me.
[78]
Eventually, and at my insistence, Ms M[....]
was called to give evidence.  I was thus able to ascertain
through my own questioning
that the probabilities favoured a finding
that the deceased was the common law husband of Ms M[....] and the
father of the children
and that he had been using false documents in
South Africa. It furthermore emerged from the evidence of Ms M[....]
that the children
lived in Zimbabwe and not in South Africa.
[79]
Also, at my instance, evidence was led of a police
officer who attended the accident scene in a bid to fathom the
discrepancy on
the documents as to cause of death. I was ultimately
satisfied that the person who died in the accident in question was
the same
person who was using the South African identity document and
the same person who’s  true identity was  that of

Joseph M[....], a Zimbabwean citizen.  The death certificate
reflecting the death as natural causes thus is rejected.
It
appears in any event, on the face, of it also to be a fraudulent
document.
[80]
The failure to plead and deal with the problem of
the two identities and the difficulty as to the cause of death
recorded on the
purported death certificate and generally suggests
both incompetence on the part of the legal representatives and a
cavalier view
of the obligations owed to this Court as to disclosure.
[81]
The settlement agreement that followed suffered
from similar deficiencies as those which afflicted the M[....]
settlement. Most
importantly the separate claims of the children were
not delineated and a combined amount for all three claims was made.
Again,
the payment was made to Ms Meistre’s trust account as
directed by her. Yet again, there was an immediate deduction by Ms
Meistre of part of the capital amount as costs allegedly owing to Ms
Meistre.
[82]
The draft order was, again, framed so as to
suggest that payment would be made pursuant to such order when it had
already been paid
to Ms Meistre.  As in M[....], the RAF
approved the terms of order and indicated that it would not oppose
the order being
made. That payment had already been made and that
thus the order sought was redundant as to the payment of capital was,
as in M[....],
not brought to my attention. Again it was sought that
the contingency agreement be declared invalid. An accounting which
was given
on my direction shows that an amount of R 428 503 was
paid to Ms Meistre’s trust account and that she took R
66 625.75
‘for costs’ leaving a balance of R361 877.
25. This amount  has been paid to Ms M[....]. There has been no

taxation of any bill of costs.
[83]
I am told by way of her affidavit filed as at the
date of the final hearing, that Ms M[....] has done and will continue
to do all
things necessary to preserve the funds of the children. She
has taken it upon herself to invest the monies obtained in investment

accounts and I was furnished with documentary proof of this
investment.
[84]
Whilst it is not suggested that it has been shown
that either Ms M[....] or Ms M[....] have anything but the best
interests of the
children of the deceased at heart, the potential for
prejudice and conflict of interest which arises out of the conduct
in
each of the case.
[85]
I now move to deal with the question of the
lawfulness of the RAF’s payment to Ms Meistre without a court
order.
Does
RAF act lawfully when it pays out amounts to attorney’s trust
accounts pursuant to settlements?
[86]
The entire RAF system is underpinned by the
legislative scheme in the CFA.
The purpose of CF
agreements is to enable litigants to obtain legal representation to
prosecute their claims where such litigant
is otherwise unable to do
so by reason of the prohibitive cost of litigation. CF agreements
thus provide the entire substructure
for the many thousands of
actions instituted against the RAF in our courts annually. Indeed
these matters comprise approximately
90% of all legal process in this
and many other Divisions of the High Court and thus the contingency
fee process is foundational
to our system of justice. Its importance
cannot be overemphasized.
[87]
CF
agreements are strictly controlled in terms of the CFA. Prior to the
CFA coming into force,
contingency
fee agreements were prohibited for being contra bonos mores.
The intention of the CFA is thus to encourage
speculative litigation
in order to allow for access to legal representation.  However,
due to the high risk of abuse and corruption
attendant on contingency
fee agreements, the Legislature has placed tight strictures and
requirements on such agreements
[7]
. Thus
a CF agreement that is not covered by the CFA, or which does not
comply with its requirements, is invalid.
[8]
[88]
The
object of the RAF
is the payment of compensation in accordance with the RAF Act
for loss wrongfully caused by the driving
of motor vehicles. The
powers and functions of the RAF include that it  stipulate the
terms and conditions upon which claims
for the compensation are
administered. A further function is ‘the investigation’
subject to the RAF Act of claims and
‘the settlement’ of
such claims. It is enjoined to utilise the money of the Fund  only
‘for purposes connected
with or resulting from the exercise of
its powers or the performance of its duties’
[9]
.
[89]
The RAF, as part of its administrative function, has a duty to see to
it that the provisions
of the CFA are strictly adhered to when it
comes to settling claims. As I deal with more fully later, a CF
agreement does not merely
control the relationship between the
plaintiff and his or her attorney. It’s validity or otherwise
is integral to the RAF’s
ability lawfully to enter into a
settlement agreement. The provisions of the CFA permeate the entire
settlement process for litigious
claims in the RAF environment and
the contractual and other relationships which operate in the field of
the RAF claim can only
be understood with reference to CFA.
[90]
CFA
requires that,  when a matter has been before court, any offer
of settlement made to any party who has entered into
a CF agreement,
may be accepted
after
the
legal practitioner has filed an affidavit with the court ( ‘the
section 4(1) affidavit’) setting out details of
the proposed
settlement with reference to the likely prospects of success at a
trial, why the settlement is recommended, an outline
of the fees to
be charged with reference to the difference between fees charged on
settlement as opposed to the fees charged if
the matter were to go to
trial, and details that provide satisfaction that the client fully
understands his or her position as
far as the proposed settlement is
concerned.
[10]
The CFA
requires further assurances directly from the client, by way of
affidavit, as to the client’s understanding of and
attitude to
the settlement.
[11]
[91]
The CFA
goes on to require that, if there is a CF agreement, the settlement
agreement must (shall) be made an order of court if
the matter was
before a court.
[12]
The
reason for this is clear. The Legislature regards court oversight as
essential in all settlements where an action has been brought
against
the RAF. In most, if not all instances, such a case would involve an
attorney and where there is an attorney there should,
as a matter of
course, be a CF agreement.
[92]
Thus,
the argument which is often sought to be made in our courts to the
effect that when a RAF matter that has been before court
is settled,
the court loses jurisdiction over the matter
[13]
falls down on this statutory basis alone. The Court has statutorily
imposed jurisdiction in these cases.
[93]
As I have said, some attorneys are so anxious to
avoid court scrutiny that they go to the absurd lengths of seeking to
suggest that
their agreements with their clients in RAF matters are
ordinary attorney/ client agreements and thus not regulated by the
CFA.
[94]
This contrived argument loses sight of the fact
that, in all but very exceptional cases, the plaintiff in a RAF claim
is not in
a position to enter into a contractual relationship with an
attorney but for the anticipated pay-out from the RAF. Thus, the
suggestion
that such an agreement is not, in reality, a CF agreement,
would, I would think, be treated by a court with some scepticism. It

seems to me that this attempted manipulation of the contingency fee
system would not withstand legal scrutiny and that such agreements

may be regarded as
in fraudem legis
.
But this is not a matter which is now before me.
[95]
In short, where there is a CF agreement ( and this
would rationally be the case in all RAF matters where action is
instituted using
the services of an attorney) the RAF is not
empowered to make an out of court settlement.
[96]
The making of payment without a court order, is
incompetent and contrary to the statutory scheme which binds the RA.
Without a valid
settlement it has no basis to pay out on the claim
and such payment is technically made
ultra
vires
.
In the
Constitution, the standard of the best interests of the child
can operate as  a benchmark for review of
all proceedings in
which decisions are taken regarding children. Courts and
administrative authorities such as the RAF  are
constitutionally
bound to give consideration to the effect their decisions will have
on children’s lives.
[97]
The administrative function of the RAF is thus all
the more important where it is entering into settlement negotiations
with a person
representing a child. Before it pays, the RAF has the
duty to satisfy itself that a proper case has been presented on
behalf of
the child. It cannot do this in the context of its function
unless it is allowed a sense of the merits. This will entail a proper

case as to the claim being placed before the RAF.
[98]
I must caution that this judgment deals with
litigious matters. Claimants can however approach the RAF directly in
making their
claims. I have not been given  statistics by the
RAF as to how many of such claims are processed on average. I have
also not
been given information as to how these claims are processed
within the RAF’s systems. I am thus unable to comment on
whether
and how the children’s rights are protected and fraud
avoided in these claims.  However, if the manner that litigious

matters are dealt with is anything to go by, I shudder to think what
goes on in the non-litigious environment.
[99]
The RAF argued that it cannot afford to
offer legal assistance or protection in the case of each matter and
that, as it is, the
amounts that it pays for plaintiff’s legal
fees is prohibitive.
I was told in the affidavit of the CEO
that the RAF is in the process of streamlining its debt book and
recovering massive duplicate
payments that were made (under previous
management) to inter alia, firms of attorneys due to the antiquated
and dysfunctional systems
and large scale corruption. An example of
the scale of the fraud is that new management has recovered
approximately R 600 million
in duplicate payments and that this
recovery is expected to increase.
[100]
Whilst the fact that an overhaul of the systems is underway is
encouraging, these two cases bring into sharp
focus the immediate
systemic failures within the RAF statutory scheme and present a stark
picture of the realities of the effect
of this disfunction on the
most vulnerable of our society who rely on it for their support.
[101]
To my mind it must be squarely and urgently faced by the RAF that its
present system of settlement of children’s
claims does not
cater to the protection of children as claimants and is unlawful.
[102]
In sum, full compliance with the CFA is necessary
for a CF agreement to have force and effect.It is thus
important to examine
what compliance with the CFA actually entails
with reference to child claimants
What
does compliance with the CFA entail in relation to children’s
claims?
[103]
The CFA is carefully framed to avoid exploitation of the claimant.
It imposes stringent formalities
and provisions for the conclusion of
the CF agreement and any settlement agreement. In both of these
cases, evidence that these
formalities have been complied with is
absent from the record before me.
[104]
Section 2 of the CFA
provides that a legal practitioner may enter into a contingency fee
agreement if, in his or her opinion, there
are reasonable prospects
that his or her client may be successful in the subject
proceedings.
[14]
[105]
For the practitioner to form such opinion where he or she is in a
direct relationship with a client is relatively
simple. The matter is
more complex when the attorney is contracting with a person who acts
in a representative position for someone
who lacks capacity.
[106]
Where children are
involved, the duty of the attorney to do more than merely take the
hearsay evidence of a person who claims to
be representing the child
is patent. One would expect that the children should be interviewed
in an authentic way if they are old
enough to convey relevant
information and that meaningful inquiries should be made as to the
living conditions and state of the
care being given to the child in
the context of forming a proper opinion. The child is, after all, the
client that is being represented
by the attorney and is the other
party to the CF agreement notwithstanding being represented by a
parent or guardian. The taking
into account of the views and wishes
of the child concerned is required by law.
[15]
[107]
In order to form the required opinion that the child will be
successful in the claim it is obviously important
properly to
interrogate the relationship between the child and the deceased
breadwinner to the best of the attorney’s ability.
[108]
It is incumbent on the attorney in each instance to provide at least
the following information in the preremptory
section 4(1) affidavit
which must be filed with the court:
·
The relationship between the plaintiff and the child. This would
include
the duration of the relationship.
·
The circumstances that led to the plaintiff caring for the child.
·
The interests of the plaintiff.
·
The financial circumstances of the plaintiff and his or her ability
to
safeguard and administer the money.
·
The personal and financial circumstances of the child including his
or
her home circumstances and maintenance needs.
·
A justification for the vehicle agreed to administer the funds and
why
such a vehicle is preferable to the other possibilities.
·
The views and wishes of the child concerned, where appropriate.
[109]
This so because, on a purposive interpretation of section 4(1), it is
clear that, without such information
in cases involving children, the
requirements of s 4(1) (a) to (g) have little or no efficacy.
[110]
No doubt, attorneys will bemoan the difficulties and effort attendant
on the making such enquiries and investigations.
It is true that this
task is made more difficult if children live in remote places but in
many of these instances the need of such
children is even greater.
[111]
The putting together
of a proper case for the child is, after all, what the attorney is
being paid his or her substantial
fees for. Practice in this area is
lucrative for attorneys. From 2017 to 2020 the RAF was called upon to
pay  approximately
R 256 000 per claim for the legal costs of
plaintiffs’ attorneys and advocates. For the same period,
approximately R 777
000 per claim was paid by the RAF in minor’s
claims.
[16]
[112]
At the heart of the attorney’s function in these matters
is to gather enough admissible and
cogent evidence to build a
compelling case for the child’s claim. This cannot be done
without an in depth investigation into
the child’s
circumstances and family relationships.
[113]
The evidence is available and must be sourced. Children live in
communities where they attend schools,  and
are known by
neighbours and family friends who can give  independent accounts
of the children their relationships and their
daily lives. It is
imperative that information be sought aimed at satisfying the
attorney as to these details such as telephone
numbers of the
children or their school principals or teachers or siblings or
grandmothers and family also of absent parents. Clinics
who have
treated the children or attended to recording their development can
be contacted to verify the children’s existence
and their
health and whereabouts. Each case will require its own method  of
investigation but the obtaining of proper information
in order to
satisfy the requirements of the CFA is an imperative.
[114]
A child is entitled to the dignity of not being merely a name
on a piece of paper or the subject of
a hearsay instruction.
[115]
When the matter ultimately comes before a court there should be
enough information placed before the court
to satisfy it that the
attorney had sufficient information before him or her to satisfy him
or her that the person she was contracting
with on behalf of the
child had the necessary credentials and that the claimant (i.e. the
child) has reasonable prospects of success.
Integral to this enquiry
is the question of whether the person who seeks to act on behalf of
the child in conducting the proceedings
is an appropriate person to
do so.
[116]
As I have said, in M[....] the children were in
the care of a person referred to only as ‘the grandmother’.
The
grandmother was never named and nor were her needs in the context
of the children’s rights and requirements even addressed.
Mr
Bouwer’s report states only that
he was informed by Ms
M[....] that ‘the father is not taking care of the children and
was not living with the children and
the deceased at the time of the
accident.’ No indication is given as to the father’s
circumstances and neither is he
named. There was clearly no attempt
to speak to him, even though his duty and ability to maintain the
children is of relevance
to the claim.
[117]
In M[....] it was not initially disclosed to the
court when the settlement was sought to be made an order of court
that the children
were no longer in the jurisdiction of the court but
living in Zimbabwe. This information came to the court because of its
own inquiries
– which included insisting on hearing the
evidence of Ms M[....].
[118]
In each instance there was no apparent
investigation into whether Ms M[....] or Ms M[....] had the proper
credentials to represent
the children. It appears that the rote
approach taken by Ms Meistre in all instances is that, provided it
can be shown that the
person is the biological parent of the child,
the person is allowed, without further investigation or inquiry to
enter into the
CF agreement with the attorney on behalf of the child.
In such instances the money is paid to the parent by Ms Meistre as a
matter
of course and without any inquiry as to whether this is in the
child’s best interests.  In the case of Mplokeng it
appears
that there was no real inquiry as to who the true
de
facto
guardian of the child was. It
emerged later that Ms M[....] was not in fact looking after the
children and that the children’s
grandmother cared for them.
[119]
This raises four questions:
·
First, who can be considered a guardian of a child in the absence of
parents
or legally appointed guardian?
·
Second, even if the child has a parent/ legally appointed guardian,
does
it suffice in the context of a dependant’s claims that it
is accepted, without more, that such guardian has the right to sue
on
behalf the children in his/her care?
·
Third, when is it necessary to appoint a curator ad litem for the
child?
·
Fourth, how should funds awarded to the child pursuant to the
litigation
be treated by the court in making the settlement an order
of court and more specifically, is it sufficient that the parent,
guardian
or caregiver be allowed to take unfettered control of the
funds without consideration of the  specific circumstances of
the
child; and should the approach differ depending on whether the
guardian is a parent or not.
I
move to deal with these question in turn.
Who
is legally a guardian?
[120]
Apartheid achieved
complete geographical, spatial, and social segregation. For this the
Apartheid regime relied on displacement
policies and restrictions on
land ownership and free movement.
[17]
This had and continues to have a devastating effect on our social
fabric and the ability of some people to form and sustain the

traditional nuclear family environment or, for that matter, any
functional family environment that entails parents or responsible

caregivers living  in proximity to their children and thus being
available to understand and meet their financial, emotional,

spiritual, educational, physical and psychological needs.
[121]
It is common for children in South Africa, especial those in
underprivileged circumstances to be raised
by extended family such as
grandparents or older siblings. This enable’s parents to be
close to city centres so that they
can make a living, often, in
unskilled positions such as domestic workers, security guards or
labourers. Some barely make a wage
sufficient to accommodate
themselves properly in these city environments and support themselves
and their families. This often
necessitates them having to live in
informal circumstances away from their traditional family homes and
away from their children.
[122]
In Du Toit and Another
v Minister of Welfare and Population Development and
Others
[18]
the following was said by Skweyiya AJ
[19]
:
‘
Recognition
of the fact that many children are not brought up by their biological
parents is embodied in section 28(1)(b) of our
Constitution which
guarantees a child’s right to “family or parental care”.
Family care includes care by the
extended family of a child, which is
an important feature of South African family life. It is clear from
section 28(1)(b) that
the Constitution recognises that family life is
important to the well-being of all children.’
[20]
[123]
The death of a breadwinner inevitably creates a seismic shift in the
financial affairs of most families.
This is especially so
when the dependants of the deceased are children. The financial
considerations which arise are often fraught
with complications.
Questions of succession and progenitorship in the wake of a death can
become divisive and controversial.
[124]
The prospect of a
significant claim against the RAF can be a motivating factor in
relation to who is to care for the child.
It may be seen as a way to
improve the personal circumstances of the person who steps up to be
named guardian or caregiver to the
child. Often one parent (mostly
men) will have had limited contact with his child only to be brought
into the child’s orbit
by the necessity of making the claim.
Such a person may lack appreciation for the needs of the child. A
biological father of the
child may, for instance, have acquired
parental rights and obligations  in terms of section 18 of the
Children’s Act.
[21]
This would allow for significant legal interference in the child’s
claim although he has not played any part in the child’s
life
and has no insight into the child’s  needs or, worse
still, is pursuing a financial agenda of his own.
[125]
The question of who can legitimately be regarded as guardian must be
viewed against the background of the
South African condition.
By far the majority of those who die on our roads are underprivileged
people who are forced to rely
on badly maintained roads and dangerous
public transport or walk  in poorly lit areas in the dark which
puts them at risk
as pedestrians.  One should not be tempted to
ignore the realities of the South African condition in favour of a
lazy adoption
of stereotypical family values or resort to biology.
Does
every parent/guardian have a right to sue on behalf of the children
in their care?
[126]
The complexity of this
inquiry has recently been driven home in the case of
Constant
Wilsnach N.O. v T M and others
.
[22]
In this case the biological father of a deceased child sought to
share in the child’s deceases estate which comprised a R
15
million payment from the MEC for Health arising from a claim made on
behalf of the child for damages due to the negligence of
clinicians
at the child’s birth which rendered him profoundly brain
injured due to cerebral palsy. The child’s father
sought this
inheritance purely on the basis that he was the biological ‘parent’
for the purposes of the Intestate Succession
Act
[23]
(ISA) notwithstanding that he had abandoned the child shortly after
his birth. In considering whether the father was a parent for
the
purpose of inheriting as contemplated in section 1(1)(d) of the ISA
and in that context Kollapen J said the following
[24]
:
‘
And
while biological parenthood may well be the starting point of
parenthood in all instances, the role and place of a parent beyond

birth becomes much more than simply a matter of biology. It often
happens that the biological parent ceases to play any further
role in
the life of the child as would be in the case of adoption or a child
born through an agreement of surrogacy or a child
who was abandoned
and deserted.
In
these instances the parent/s who have the biological link with the
child do not cease being biological parent/s but others may
take over
the role of being parents in situ and this may occur either on a de
facto basis or as a result of a formal legal process
generally
resulting in an issue of an order by a Court. Simply put there are
many paths to becoming a parent just as there are
many forms of
parenthood.’ He went on to conclude
[25]
:’
In all of this, the role and place of biology and blood is limited,
the priM[....] focus being the relationship that exists
between the
child and the parent (or the person who discharges that role)
.’
(Footnote omitted).
[127]
Thus, the determination of who is the best person to deal with the
claim for the maintenance of the child
is, by its very nature, a
matter of inquiry and not assumption.
[128]
When an attorney is approached so that a claim can be made for loss
of support on behalf of a child, it
is incumbent upon him or her to
determine how  the rights of the child clients can best be
represented. I would think that
it would be prudent in most instances
for a level of scrutiny to be brought to bear urgently as to how the
children’s needs
and circumstances are being accommodated given
the sudden loss of support. This would allow for applications to be
made for interim
relief pending the settlement or determination of
the claim. There should also be proper scrutiny as to the motives and
abilities
of the person in relation to the claims of the children.
[129]
This raises the question of when a curator
ad litem
should be
appointed to the child.
When
should a curator ad litem be appointed?
[130]
The following was said
In Du Toit v
Minister of Welfare and Population Development
[26]
:
‘
In
matters where the interests of children are at stake, it is important
that their interests are fully aired before the Court so
as to avoid
substantial injustice to them and possibly others. Where there is a
risk of injustice, a court is obliged to appoint
a curator to
represent the interests of children. This obligation flows from the
provisions of section 28(1)(h) of the Constitution
which provides
that:
“
Every
child has the right –
.
(h)
to have a legal practitioner assigned to the child by the state, and
at state expense, in civil proceedings affecting the child,
if
substantial injustice would otherwise result’
[131]
In every case where the
source of a child’s support has been lost and another person
has to step in to represent the child’s
most fundamental needs,
the child would to my mind be subject to an injustice if he is not
allowed a proper facility to express
his/her own needs or have them
expressed independently.
[27]
Section 10 of the Children’s Act entitles every child to
participate ‘in an appropriate way’ in any matter
‘concerning
the child’. It adds that the ‘views
expressed by the child must be given due consideration.’
[28]
[132]
Section 14 of the
Children’s Act recognises the right of every child to have
access to court for the protection and enforcement
of their rights.
It further entitles every child ‘to be assisted in bringing a
matter to a court’
[29]
. Section
15 deals with the enforcement of fundamental rights and reinforces
the broad standing provisions of s 38 of the Constitution

specifically in relation to children.
[30]
[133]
Ponnan JA
Hoërskool
Fochville
[31]
said the following in
relation to these sections of the Children’s Act:
‘
It
would thus seem that the legislature intended to create wide and
generous mechanisms for the protection and enforcement of children’s

rights beyond that available to them at common law.’
[134]
An orphaned child who has suffered a loss of support and who is
obliged to rely on others for the institution
of his claim is
vulnerable no matter the circumstances.  A failure of a State
entity such as the RAF to cater to this vulnerability
is to fall
short of constitutional imperatives relating to the rights of
children. Furthermore, if the child’s legal representatives

fail to inquire into the circumstances of the child, to
determine how best to serve the interests of the child, and to place

the fruits of such inquiry before the court they are derelict in
their duty to both to their child client and the court.
[135]
An attorney must be astute to the needs of the child and the RAF must
keep attorneys to high standards as
to the proper conduct of the
matter. This can in apposite circumstances require the assistance of
a curator
ad litem
, a social worker or a medical practitioner.
[136]
Ms Meistre relied heavily
on the judgment of Tuchten J in
Ex
Parte Molantoa
obo
TR and OM
)
[32]
to advance the proposition that the appointment of a curator
ad
litem
was
not encouraged by the court when a child was represented by a parent
or adult caregiver and that unless the person was shown
to be unfit
there was no reason to appoint a curator
ad
litem
. Tuchten J
stated as follows:
‘
To
sum up: a curator
ad
litem
will be
appointed to assist a child in an action against the Fund where the
best interests of the child require that such an appointment
should
be made.
Each case
must be determined on its own facts.
An adult care-giver who is a family member in relation to a child is
competent to assist the child in its action against the Fund.
Where a
conflict of interest or other good ground is shown, such a curator
will be appointed. Unless and until the reasonable (and
not merely
speculative) possibility of a conflict arises, no curator will
generally be required. The
fact
that
the child’s' care-giver is a family member other than a
biological parent is no ground
on
its own
for the
appointment of a curator. Nor is the fact that the care-giver is poor
or ill-educated.
[137]
Ms Meistre’s  submissions misunderstand the ratio of the
case. This passage is not authority
for the proposition that parent
or caregiver has the right to represent the child unless he or she is
shown to be unfit. What the
learned Judge actually held was that a
curator ad litem is not the panacea for all irregularities in the
process.
[138]
In
Ex
Parte Oppel & Another
[33]
the court cautioned that because of the nature of the inroads
curatorship makes into the relationship between parent and
child a
court should be loath to grant an application for the appointment of
a curator
bonis
to
a minor’s estate unless it was satisfied that a minor’s
parent was incapable to manage such an estate.
[139]
But such an approach is not in accordance with constitutional
prescripts. The protection of the child’s
rights are, to my
mind, more important than any potential encroachment being made on
parental authority.
[140]
It is trite that in all
matters concerning the child the child’s best interest are
paramount.
[34]
This imperative infuses our law.
[141]
In
Molete
v MEC for Health
[35]
the court, similarly, held  in respect of the appointment of
either a curator
ad
litem
or curator
bonis
as follows:
‘
The
respondent has badly misconstrued not only the purpose but the
applicable test. The test is not whether the parents are capable
or
not of managing the estate of the minor child. The test is whether
the appointment or non-appointment of a curator will serve
the best
interests of the minor child regard being had to the peculiar
circumstances of this matter
.’
[36]
[142]
This would obviously  include factors relating to the parent's
ability to manage the minor child's
estate.
[143]
As one sees in M[....], Mr Bouwer’s appointment did not serve
any real purpose as far as the children’s
rights were
concerned.
[144]
It is, no doubt, correct that if the attorney, does his or her job
properly and thus gathers all relevant
information and evidence and
is diligent about placing this evidence before a court, a curator
ad
litem
would probably not be necessary. However there may be
occasions where a proper consideration of the child’s
circumstances
would lead a prudent attorney to conclude that the
children’s interests will be served by the appointment of a
curator
ad litem
or, as I have, said another professional who
can testify to how the rights of the child are being accommodated and
what should
be done for the child.
[145]
The position of a curator
ad litem
is a responsible
one because the court depends on his or her report in order to put in
place protections as to the rights
of the child and see to it that
public funds are being properly and efficiently used. The curator
should be a legally trained professional
with experience in practice
and be in good standing with the Legal Practice Council (LPC) This
aims to guarantee competence and
accountability. Advocates and
attorneys owe a fiduciary duty to the court.
[146]
A curator
ad litem
should not, as was the case with Mr Bouwer
be appointed for the purpose only of lending a veneer of legitimacy
to the acceptance
of the settlement agreement which has already been
concluded by the attorney and in an illegitimate bid to ‘ratify’

a flawed process.
The
courts’ function and duty in relation to the protection of
court awarded funds to children.
[147]
The
payment by the RAF is of a lump sum. There are various approaches
which can be taken to the management of these funds. As I
have said,
the money is routinely paid into the claimant’s attorney’s
trust account. The attorney will generally be
mandated by the CF
agreement to pay the money directly to the claimant. Should this
happen as a matter of course or should there
be protections put in
place to protect the funds against mismanagement and/or fraud?
[148]
What these two cases demonstrate with reference to
the approach adopted by the RAF is that little heed is paid by the
RAF to the
protection of child claimants when attorneys are involved.
I can as I have said make no comment on the position which it adopts

when claims are made directly to it.
[149]
The RAF, as an organ of
state, is duty-bound to uphold and protect the Bill of Rights.
[37]
[150]
The ambit of these rights
in relation to the child was aptly articulated by Sachs J in
judgment of
S
v M
[38]
as follows:
‘
[T]his
court has recognised that it is precisely the contextual nature and
inherent flexibility of section 28 that constitutes the
source of its
strength. Thus, in Fitzpatrick (supra) this court held that that the
best interests principle has "never been
given exhaustive
content", but that "it is necessary that the standard
should be flexible as individual circumstances
will determine which
factors secure the best interests of a particular child".
Furthermore "'(t)he list of factors competing
for the core of
best interests (of the child) is almost endless and will depend on
each particular factual situation'".
Viewed
in this light, indeterminacy of outcome is not a weakness. A truly
principle led child-centred approach requires a close
and
individualised examination of the precise real-life situation of the
particular child involved. To apply a pre- determined
formula for the
sake of certainty irrespective of the circumstances would in fact be
contra to the best interests of the child
concerned
.’
[39]
[151]
What this means is that a court must, as a starting point in
every application to have a settlement agreement made an order, be
satisfied that the child’s rights to the funds are to be
protected.
Thus a court must, before it makes an
order, inquire into the necessity for the protection of the monies
and the best means of such
protection taking into account the costs
of such protection and the needs of the child. For this the  court
will need the
information which is required in terms of the section
4(1) affidavit as set out above, in order to provide an appropriate
order
in settlement court.
[152]
It is in the interests of all parties that a
proper case in this regard is made out as a court will be loath to
grant an order for
payment if it is not given sufficient information
as will allow it properly to discharge its duties as upper guardian
of the child.
[153]
This brings me to an examination of the various
options open to parties and the court when it comes to determining
the best method
of protecting the child’s funds.
The
methods of protection available
[154]
The options that present themselves are to direct
that the monies be paid to the child’s parent or guardian or to
direct that
a trust structure be created or a curator bonis
appointed. And then there is the Guardian’s Fund -
which has
been given something of a bad press by legal
representatives in our courts but which, to my mind, should be
revisited as an option.
The court must — when alternative
methods are suggested to administer the monies on behalf of the
children be provided with
sufficient evidence regarding the financial
sustainability of the particular method in each case. Trusts and the
appointment of
a curator
bonis
come at a cost.
Payment
directly to the parent/ guardian
[155]
I have dealt above with the inquiry
that needs to be undertaken in this regard.
A
court should always consider the rights and obligations of a parent
or guardian in terms of the Children's Act, to administer
and
safeguard the child's property. But this cannot simply be the default
position in the absence of information being given to
the court.
Curator
Bonis
[156]
A court may appoint a curator
bonis
to administer the funds on behalf of the child. The monies will
usually be invested in an interesting bearing account. The curator
bonis
will
usually be empowered to make payments to the guardian/caregiver/third
party to ensure that his or her
needs are
met on an ongoing basis. A curator
bonis
may also be ordered to report to the court on the carrying out of his
or her mandate. The court, in this manner, is able play a
supervisory
role. The downside is the cost. A curator
bonis
is  usually a legal practitioner
or other professional who, unless they agree to render the service
pro bono, will charge a
fee. This, especially over time, may deplete
the capital.
Trust
[157]
Whilst courts do derive some comfort from the fact
that monies are placed in a trust to be administered by trustees,
this approach
needs to be examined with reference to the financial
implications of such investment. One or more of the trustees will
generally
be professional or be attached to a bank or other financial
entity and this obviously comes at a cost. The CCL argues that this

is an expensive option. In this regard, there are establishment costs
and fees payable to the general administration, the trust
is also
taxed at a flat rate of 40% on all income it receives. This will
reduce the overall return on investment over time.
[158]
The RAF agrees and  argues that where
amounts awarded are relatively small, trustees have no incentive to
administer the funds
as the trustee’s fees are generally based
on a percentage of capital invested.
[159]
These drawbacks of the trust system are important
considerations in determining an appropriate vehicle.
Guardian’s
Fund
[160]
The Guardian’s Fund does not only administer
inheritances due to minors it is, in addition, competent to receive
monies paid
by the RAF. An opportunity for regulated synergy between
State entities exists in this relationship.
[161]
Once
payment has been made into the Guardian’s Fund, an account is
opened in the name of the child who then becomes a beneficiary
of the
Guardian Fund. Thereafter, the child will have access to the money
owed to him or her in the form of maintenance or allowance
through a
parent, guardian or caretaker.
[40]
In this
way the parent or guardian is allowed to be integrally involved in
the process in order to carry out his or her duties and
be accorded
his or her rights.
[162]
Accessing the funds entails a process in terms of which the parent,
guardian or caregiver of a child can
claim maintenance from the
Guardian’s Fund by lodging certain documentation with the
office of the Master of the High Court.
[163]
The Master is entitled to administer payments for the maintenance of
the child, which can include school
fees, medical feeds, boarding and
lodging and any other needs that the child may have. The services
rendered by the Fund do not
carry any administrative fees or charges
in respect of the payment of maintenance or allowances.
[164]
The manner in which the Guardian Fund operates is accessible to the
lay person. The Department of Justice,
together with the Master's
Office, provides all the information one requires to access the Fund.
A beneficiary or guardian thereof
does not require an attorney or any
form of specialised assistance in order to have access to it and the
process in which the Funds
can be accessed is standardised for
simplicity.
[165]
The Guardian Fund is accessible to people from all socio-economic
groups. It is a safe vehicle in which
a beneficiary's money can be
invested. The Guardian’s Fund employs safeguards to ensure that
the child's money is not squandered,
for example, a guardian or
caregiver is required to provide a full motivation when applying for
funds on behalf of the child. Further,
the payments can be made from
the Guardian’s Fund directly to  service providers such
as  schools or a hospitals,
school uniform providers, book
stores, and the like. These safeguards serve to ensure that the money
reaches the intended payee
thus providing protection against
misappropriation or maladministration of the funds.
[166]
It is important that that once a child reaches the age of
majority he or she is able to claim the
invested money from the
Guardian’s Fund. Further, where a court has ordered that the
child's money be paid into the Guardian's
Fund on an interest bearing
basis, upon attaining majority, the child is able to claim the
invested money as well as the interest
accrued thereon.
[167]
Mr Courtenay for the CCL submits that the Guardian's Fund
offers a safe, reliable, accessible, and
free service and that it
should not be overlooked in favour of alternative trusts or replaced
with a curator
bonis
where there is no specific need or
special circumstance that exists.
[168]
I am inclined to agree with Mr Courtenay on this point. In my
experience, legal representatives attempt
to steer courts away from
the Guardian’s Fund on the basis that they ask the court to
make the assumption that the Master’s
Offices will, as a matter
of course, always be inefficient in the administration of the monies
and thus that the Guardian’s
Fund should be avoided. The CCL
argues that the anecdotal submissions regarding the inefficiencies of
the Guardian Fund are not
supported by any objective and verifiable
facts. The RAF makes the same submission. And to the extent that the
Master is not properly
administering the fund the child or guardian
has redress through the courts.
[169]
A cynical view as to the reason for legal representatives seeking to
avoid resort to a process which curtails
release of large sums of
monies paid by the RAF to claimant, is that this does not allow for
easy access to funds for the purposes
of payment of fees and that the
adult claimant sees more success in the award of a lumpsum. There can
however be no doubt that
this unchecked flow of funds creates an
incentive for fraud, corruption, and maladministration.
[170]
From a general perspective, seems to me that the obligation to pay
significant lump sums is not only financially
devastating to the RAF
in its current state of commercial and actual insolvency but also
fails to appreciate that the purpose of
damages being to put the
claimant, as far as possible, in the position he or she would have
occupied had the delict not occurred.
[171]
Mr Puckrin on behalf of the RAF correctly submits that
but for the death of the breadwinner,
support to the child
would, at best, have been provided to a claimant over his or her life
and would not have been by
way of lump sum. The lump sum
payment requirement which follows common law principles as to the
award of damages has its limitations
in the RAF environment. There
can be no doubt that a process which allows for large sums of ready
cash to be paid out in lumpsum
amounts creates an incentive for
corruption. But this discussion goes beyond the scope of this
judgment and involves an inquiry
as to the meaning and perhaps the
constitutionality of section17 (4)(b) of the RAF Act.
Conclusion
[172]
In conclusion the RAF is acting contrary to its functions and powers
when it pays amounts to attorneys without
a court order and such
payment is unlawful.
[173]
The settlement agreements concluded by Ms Meistre and the RAF
in both cases are invalid for want of
compliance with the CFA and in
the case of M[....] for want also of compliance with the order of
court appointing Mr Bouwer as
curator
ad litem.
[174]
I will postpone the matters to allow for the parties to comply with
the provisions of the CFA.
[175]
The position in M[....] is complicated by the fact that Ms Matuvi has
already been paid most of the monies
under the invalid agreement. I
am satisfied, having heard Ms Matuvi and having been given further
information on affidavit as to
the investment of the monies, that Ms
M[....] is currently acting in the best interests of the children. It
is, however, important
that the children’s separate rights be
protected, and I intend to circumscribe such rights by way of the
order I make in
this case.
[176]
In M[....], I deem it prudent to appoint another curator
ad
litem
to the children. She will have the power to conclude a
settlement agreement with the RAF in relation to the children’s
independent
claims.  She will thus file an affidavit dealing
with the section 4(1) requirements referred to above.
[177]
In both matters, the settlement agreements ultimately concluded will
be put before this court for its approval,
as is the statutory
imperative of section 4(3).
[178]
Nothing in this Court’s order should be taken to suggest that
an attorney may be relieved of his or
her duties under the CFA. It
must, however, be recognised that, to the extent that attorney’s
such as Ms Meistre have purported
to conclude out of court
settlements with the RAF, there are inchoate legal positions as to
these settlement negotiations which
currently maintain and the Taxing
Master will not tax the bill of costs without a court order..
[179]
It seems to me that, in each instance, where an order is sought under
these circumstances, the judge called
upon to approve the settlement
must deal with each matter in accordance with its own  peculiar
facts.  In all instances,
a court should satisfy itself that the
rights of the dependants are properly taken account by the order
which is granted ultimately
granted. This would, to my mind, involve
a consideration of the issues set out in this judgment in relation to
the contents of
the section 4(1) affidavit and thus it would be
prudent in each case to insist on the filing of such an affidavit.
[180]
It must be realised that, when courts are
dealing with unopposed matters, which are legion in this court, they
do not have the resources
to undertake intensive investigations into
the minutia of every matter. As they are entitled to do, judges take
comfort in counsel’s
submissions as to whether a particular
matter is in order. They rely also on attorneys’ affidavits and
on the reports of
curators
ad litem.
If counsel and attorneys cannot, in fact, be relied on in their
service to the court and their clients, this inevitably leads to

orders being granted when they should not be granted. Unscrupulous
legal representatives sometimes seek to take advantage of the
trust
placed in them by the courts and the workload of judges in unopposed
court by asking for orders to which they are not entitled.

This approach is prevalent in the RAF arena.
[181]
This drives home the necessity of the RAF
insisting on court orders before it pays out pursuant to any
settlement in litigious matter
where there is a contingency agreement
and/or where minor children are involved.
[182]
To my mind, prima facie the record and the
affidavits and heads of arguments filed, the conduct of Ms Meistre,
Mr Bouwer, and Ms
Swart seems to fall below the standards demanded of
them as practitioners in this Court.
Orders
[183]
I thus make the following orders:
In
M[....]
M K[....] obo K M  and TM v RAF ( case number
1677/2019)
The
application is postponed
sine die.
The
settlement agreement is declared to be invalid.
Adv
Nomvula C Nhlapho
is appointed as curator
ad litem
for the purposes of investigating the circumstances of the minor
children and providing a report which deals with the section
4(1)
provisions of the CFA as set out in this judgment.
Adv
Nhlapho shall have the power to:
Conclude
a settlement agreement with the RAF on behalf of the children;
Place
such settlement agreement before this court for approval;
Seek
the court’s directive in relation to what is to happen to the
funds currently held in trust by Ms Meistre;
Approach
this court for interim relief as far as the needs and requirements
of the children are concerned, should she see fit
to do so.
The
RAF shall pay the fees of Adv Nhlapho directly to her within 30 days
of receipt of an invoice from her.
Mr
Bouwer’s curatorship is suspended pending the final
determination of this matter and/or this Court’s further

directives.
Until
such further directives of this Court in relation to Mr Bouwer’s
curatorship, he is not entitled to charge or collect
any fees for
his services in this matter.
The
monies paid to Ms Meistre by the RAF pursuant to the putative
settlement concluded between Ms Meistre and the RAF are to remain
in
trust with Ms Meistre pending this Court’s further direction.
Ms
Meistre is to produce to this Court a draft bill of costs as to her
fees in this matter within 15 days of this order.
A
copy of this judgement is to be placed before the LPC and the
conduct of Ms Meistre, Adv Bouwer and Adv Swart is referred to
the
LPC for investigation.
The
costs of the matter are reserved before me.
In
N[....]
M[....] obo C M and LM
v
RAF
(
Case
Number: 1928/2019)
1.
The matter is postponed
sine
die.
2.
It is directed that the amount of R 428 503
paid by the RAF under the putative settlement agreement in this
matter is allocated
as follow as follows:
a.
R 164 141 is the amount due to Ms M[....]
(first plaintiff) personally.
b.
R 110 142  is the amount due to C
( second plaintiff)
c.
R 154 220  is the amount due to
L  ( third plaintiff)
3.
Ms Maistry is to produce to this court a
draft bill of costs as to her fees in this matter within 15 days of
this order.
4.
The conduct of Ms Meistre and Adv
Swart is referred to the LPC for investigation.
5.
The costs of the matter are reserved before
me.
A
copy of this judgment in relation to both cases  is to be
delivered by the Registrar to the NDPP and the Minister of Transport.
FISHER
J
HIGH COURT JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of Hearing:
12 March 2021.
Judgment
Delivered Electronically on :
07 April 2021.
APPEARANCES:
In
M[....]
For the plaintiffs
:
Adv L Swart.
Instructed by
:
Sonya Meistre Attorneys.
For
Defendant        :
Adv C
Puckrin SC, with him Adv R Schoeman & Adv N Makopo.
Instructed
by          :
Malatji
JI & CO Attorneys.
Amicus
Curiae       :
Adv
R M Courtenay.
Instructed
:
Centre For Child Law.
In
M[....]
For the plaintiffs
:
Adv L Swart.
Instructed by
:
Sonya Meistre Attorneys.
For the Defendant
: Adv C
Puckrin SC, with him Adv R Schoeman & Adv N Makopo.
Amicus
Curiae       :
Adv
R M Courtenay.
Instructed
:
Centre For Child Law.
[1]
(1175/2017)
[2019] ZASCA 97
;
[2019] 3 All SA 409
(SCA);
2019 (5) SA
407
(SCA) (18 June 2019)
[2]
Ibid at para 35 and 36.
[3]
This
approach was taken in
In
the matters of Taylor v RAF ( case
37986/2018
)
;
Mathonsi v RAF (case 13753/2019)  GLD 16 November 2020.
[4]
66 of
1997.
[5]
Statistics
taken from the submissions under oath of the CEO.
[6]
At 56 of 1996
[7]
De La Guerre v Ronald
Bobroff & Partners Inc and Others
(22645/2011) [2013] ZA GPPHC 33 (13 February 2013) and Masongo v
RAF
2016
(6) SA.
[8]
Ronald Bobroff &
Partners Inc v De La Guerre
2014
(3) SA 134
(CC);
Fluxmans Inc v
Levenson
2017
(2) SA 520
(SCA);
Mostert and
Others v Nash and Another
2018
(5) SA 409
(SCA).
Price Waterhouse
Coopers Inc and Others v National Potato Co-operative Ltd
(448/2003)
[2004] ZASCA 64
;
[2004] 3 All SA 20
(SCA) (1 June 2004)
[9]
See sections 3 and 4 of the RAF Act.
[10]
Section
4(1) of the CFA. The full text reads as follows:
Settlement
4
(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 maybe 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.
[11]
Section
4(2)
reads as follows:
‘
The
affdavit 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.
[12]
Section 4(3) of the CFA reads as follows:
(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.
[13]
See
for example
P M
obo T M v Road Accident Fund
n
1 above
[14]
Section 2 of the CFA reads as follows
‘
Contingency
fees agreements
:
2.
(1) Notwithstanding anything to the contrary in any law or the
common law, a legal practitioner may. if in his or her opinion
there
are reasonable prospects that his or her client may be successful in
any proceedings, enter into an agreement with such
client in which
it is agreed—
(a)
that the legal practitioner shall not be entitled to any fees for
services rendered in respect of such proceedings unless
such client
is successful in such proceedings to the extent set out in such
agreement;
(b)
that the legal practitioner shall be entitled to fees equal to or,
subject to subsection (2), higher than his or her normal
fees, set
out in such agreement, for any such services rendered, if such
client is successful in such proceedings to the extent
set out in
such agreement.
(2)
Any fees referred to in subsection (1 )(b) which are higher than the
normal fees of the legal practitioner concerned (hereinafter

referred to as the ‘success fee’), shall not exceed such
normal fees by more than 100 per cent: Provided that, in
the case of
claims sounding in money, the total of any such success fee payable
by the client to the legal practitioner, shall
not exceed 25 per
cent of the total amount awarded or any amount obtained by the
client in consequence of the proceedings concerned,
which amount
shall  not, for purposes of calculating such excess, include
any costs.
[15]
Sec. 10 and 14 of the Children's Act 38 of 2005 ("
Children's
Act&quot
;).
[16]
from
the affidavit filed by the CEO.
[17]
Main measures were the Group Areas Act (1950), the Pass Laws Act
(1952) and the Population Registration Act (1950). These and
other
Apartheid  laws and policies led to a systemised population
development along urban lines in terms of population densities
but
not in terms of public service delivery or industrial development.
[18]
(CCT40/01)
[2002] ZACC 20
;
2002 (10) BCLR 1006
;
2003 (2) SA 198
(CC) (10 September 2002).
[20]
Ibid
para 18.
[21]
38 of 2005. Section 18 reads as follows:
‘
18.Parental
responsibilities and rights
(1)
A person may have either full or specific parental responsibilities
and rights in respect of a child.
(2)
The parental responsibilities and rights that a person may have in
respect of a child, include the responsibility and the
right—
(a)
to care for the child;
(b)
to maintain contact with the child;
(c)
to act as guardian of the child; and
(d)
to contribute to the maintenance of the child.
(3)
Subject to subsections (4) and (5), a parent or other person who
acts as guardian of a child must—
(a)
administer and safeguard the child’s property and property
interests;
(b)
assist or represent the child in administrative, contractual and
other legal matters; or
(c)
give or refuse any consent required by law in respect of the child,
including—
(i)
consent to the child’s marriage;
(ii)
consent to the child’s adoption;
(iii)
consent to the child’s departure or removal from the Republic;
(iv)
consent to the child’s application for a passport; and
(v)
consent to the alienation or encumbrance of any immovable property
of the child.
(4)
Whenever more than one person has guardianship of a child, each one
of them is competent, subject to subsection (5), any other
law or
any order of a competent court to the contrary, to exercise
independently and without the consent of the other any right
or
responsibility arising from such guardianship.
(5)
Unless a competent court orders otherwise, the consent of all the
persons that have guardianship of a child is necessary in
respect of
matters set out in subsection (3)(c).’
[22]
Case
number
22553/ 2019
Gauteng Division (16 November 2020).
[23]
Act 81
of 1997
[24]
Ibid at para 40 and 41.
[25]
Ibid
at para
42.
[26]
n 18 above at para 3.
[27]
Sec. 10
and
14
of the
Children's Act
. See also
Centre
for Child Law v The Governing Body of Hoerskoel
Fochville
[2015]
ZASCA 155
(8
October 2015)
[28]
Section of the Children’s Act 10 provides:
‘
Every
child that is of such an age, maturity and stage of development as
to be able to participate in any matter concerning that
child has
the right to participate in an appropriate way and views expressed
by the child must be given due consideration.’
[29]
Section 14
provides:
‘
Every
child has the right to bring, and to be assisted in bringing a
matter to a court, provided that matter falls within the

jurisdiction of that court.’
[30]
Section 15
provides:
‘
(1)
Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights or
this Act has
been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights.
(2)
The persons who may approach a court, are:
(a)
A
child who is affected by or involved in the matter to be
adjudicated;
(b)
Anyone
acting in the interest of the child or on behalf of another person
who cannot act in their own name;
(c)
Anyone
acting as a member of, or in the interest of, a group or class of
persons; and
(d)
Anyone
acting in the public interest.’
[31]
n 27 above at para 23.
[32]
(3198/18) [2018] ZAGPPHC 953 (26 September 2018).
[33]
2002
(5) SA 125
(C) at 129G – H
[34]
28(2) of the Constitution reads:
“
A
child’s best interests are of paramount importance in every
matter concerning the child.”
[35]
2012 JDR 1174 (FB) ( unreported).
[36]
Ibid at para 58.
[37]
This is made plain by both sections 7(2) and 8(1) of the
Constitution that explain, respectively: "7(2) The state must
respect, protect, promote and fulfil the rights in the Bill of
Rights. and 8(1) The Bill of Rights applies to all law, and binds

the legislature, the executive, the judiciary and all organs of
state’.
[38]
S v M
(Centre for Child Law Amicus Curiae) 2007 (12) BCLR 1312 (CC).
[39]
Ibid
para 24.
[40]
https://www.justice.gov.za/master/guardian.html.