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[2011] ZAECPEHC 2
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Pillay v Nogcantsi (2310/07) [2011] ZAECPEHC 2 (1 February 2011)
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE – PORT ELIZABETH
Case No: 2310/07
Date Heard: 18/10/10
Date Delivered: 01/02/11
In the matter between
LESLEY PATRICK PILLAY
…..................................................
Plaintiff
and
LINDOOR & NOGCANTSI
…...............................................
Defendant
JUDGMENT
REVELAS J
[1] This matter concerns a disputed
application for a curator
ad litem
which fell to be determined
in a hearing held in terms of the provisions of Rule 57(a) of the
Uniform Rules of Court. The applicant
is Mrs Ellie Pillay, the mother
of the plaintiff, who instituted an action for damages against his
erstwhile attorneys firm (the
defendant) for alleged professional
negligence in dealing with a claim for damages against the Road
Accident Fund (“the Fund”).
[2] On 27 July 1994 the plaintiff,
as a pedestrian, sustained certain head injuries in a motor vehicle
accident. The defendant thereafter
issued summons against the Fund
claiming damages on the plaintiff’s behalf, and later
represented him in settlement negotiations.
On 24 April 1998, the
plaintiff signed the discharge form forwarded by the Fund, accepting
payment of the amount of R10 438.18
in full and final settlement
of the matter.
[3] The plaintiff based his claim
against the defendant in the present matter on the assertion that the
amount paid in full and
final settlement of his claim was paltry,
compared to what he was actually entitled to by virtue of the nature
of his injuries,
which included permanent frontal lobe brain damage.
The defendant pleaded prescription to the plaintiff’s claim in
a special
plea.
[4] On 10 November 2009, Mr PAW
Scott SC, a member of the Port Elizabeth Society of Advocates, was
appointed a curator
ad litem
for purposes of interviewing the
plaintiff and reporting on the plaintiff’s capacity to conduct
his own affairs and whether
the plaintiff would need a curator
ad
litem
to prosecute the present litigation. In his report filed on
13 August 2010, Mr Scott expressed the view that the plaintiff did
not require such assistance, but qualified his opinion with the
recommendation that in the event of the applicant persisting with
her
application, the court should hold a hearing in terms of Rule 57(9).
In his report Mr Scott noted that the plaintiff himself
had informed
him that he did not require such assistance.
[5] On the day of the trial hearing,
when the defendant’s special plea of prescription would have
been adjudicated, an application
was brought by the plaintiff for the
matter to be postponed
sine die
. The reason advanced for the
postponement was to enable the applicant to invoke the provisions of
Rule 57(9) of the Rules of Court
so that the oral evidence of expert
witnesses could be led with regard to the plaintiff’s mental
capacity. The plaintiff’s
attorney, who deposed to the founding
affidavit in support of the application for postponement, stated that
because the plaintiff’s
expert witnesses had expressed the
opinion that the plaintiff was incapable of making the necessary
decisions to conduct the litigation
in question, the appointment of a
curator
ad litem
was necessary. Accordingly, he could not take
instructions from the plaintiff until such time as the curatorship
application was
adjudicated. The applicant also sought a punitive
costs order against the defendant for its alleged intransigence in
not adhering
to the plaintiff’s written request (dated 29
September 2010) for a postponement.
[6] Before the hearing of the
postponement application commenced, the plaintiff’s legal
representatives made a proposal that
instead of postponing the
matter, I should rather entertain the adjudication of the curatorship
application since the application
for postponement had been
withdrawn.
[7] This proposition was opposed on
the basis that the defendant had come to court prepared for defending
a damages claim and not
to oppose the curatorship application. I made
a ruling in favour of the applicant and the plaintiff for the
following reasons:
There was no basis upon which I
could ignore the applicant’s insistence on the appointment of
a curator
ad litem
. Even though Mr Scott’s report has
strong persuasive value, his recommendations against the
appointment of a curator
are not cast in stone and besides, he
himself advised that a Rule 57(9) hearing should be held in the
event of the applicant
persisting with her application.
It would certainly be in the
interests of expediency if the remaining trial days were to be
utilized to entertain the curatorship
application which could
obviously not be entertained on the Motion Court roll, because oral
evidence had to be led. The application
was not heard at a sooner
date since the curator’s report was only filed at court two
months before the hearing. Also,
both parties were in agreement
(and it is also a matter of practical logic), that the curatorship
application be dealt with
first.
Summons was issued on 16 October
2007, more than nine years after the claim against the Fund was
settled. The plaintiff, in
his replication to the defendant’s
special plea of prescription, denied that his claim had prescribed
in terms of the
provisions of the Prescription Act No 68 of 1969
(‘the Act’) and pleaded that prior to August 2007, he
did not
have knowledge of the identity of the defendant “and/or
the facts from which his claim against the [d]efendant arises”
and that accordingly, prescription did not commence to run until
August 2007. In the alternative the plaintiff pleaded that,
“by
virtue of his mental incapacity at all relevant times the
completion of prescription was delayed in terms of the
provisions
of Section 13(1) of the said Act”, which provides (in
sub-section 13(1)(a)), for the delay of prescription
where
inter
alia
, the creditor is insane or is a person under curatorship.
Essentially the same issues would be canvassed in the Rule 57(9)
hearing, as during the adjudication of the special plea. Therefore,
the defendant would suffer no prejudice. The evidence of the
witnesses who would also testify in respect the necessity or
otherwise of a curator
ad litem
, would also testify in
relation to the special plea and more importantly, these witnesses
were all available to testify.
[8] Accordingly, I made a ruling
that the trial be postponed and that the hearing on the necessity of
a curator
ad litem
be proceeded with.
[9] The defendant, who vehemently
opposed the application, contended that, not only did the plaintiff
evidently not need the assistance
of a curator
ad litem
, but
the applicant’s insistence on such an appointment was primarily
motivated by an intention to foil the defendant’s
special plea
of prescription to the plaintiff’s damages claim in the amount
of R3 993 404.60.
[10] When the hearing was then
proceeded with, the applicant, through her counsel, led the evidence
of the following four witnesses:
A neurosurgeon, Dr Edeling, a
psychologist, Ms Coetzee, the applicant herself and a co-employee and
supervisor of the plaintiff,
Mr Harry. The defendant called two
witnesses: A psychologist, Mr Eaton, and a Mrs Straton, the branch
manageress in charge of the
courier business in Port Elizabeth where
the plaintiff is still employed.
[11] The primary enquiry envisaged
in Rule 57, is one into the mental capacity of a person who is
described as “the patient”.
Subrule (2)(e) requires an
applicant to set forth facts and circumstances to show that “the
patient is of unsound mind and
incapable of managing his affairs”.
Subrule 5 requires a curator
ad litem
(such as Mr Scott in
this case) to set out facts in respect of “the patients mental
condition”. Subrule 10 makes provision
for a declarator that
the “patient is of unsound mind”.
[12] A “patient” as
referred to in the rule need not be bereft of all reason. The mental
capacity of a person may vary
from time to time “but at all
times it remains a question of fact” (
Pienaar’s v
Curator
1930 OPD 171
at 174).
[13] Most of the authorities on
curatorship deal with the necessity to appoint a curator
bonis
,
and not a curator
ad litem
to assist in litigation. In
Jonathan v General Accident Insurance Co of South Africa
1992(4) SA 618, the question of the
locus standi in iudicio
of
a plaintiff who sustained brain damage in a motor vehicle collision
was considered. The plaintiff’s short term memory
was severely
impaired and a clinical examination of the plaintiff by a clinical
psychologist resulted in findings that she was
unable to control
impulsive behaviour, and that she had an IQ of only 54 and performed
at the level of an eight year old child.
The defendant in that case,
contended by way of special defence that, because of the plaintiff’s
brain damage, which resulted
in her being able to understand
proceedings only at a basic level, she lacked
locus standi
.
The defendant’s special plea was upheld.
[14] The court in held that in order
to have
locus standi in iudicio
, a party must be able to
manage his litigation in the sense of being able to understand the
proceedings at a level which is sufficient
to enable him or her to
play a useful and constructive role during the proceedings, by giving
proper instructions to his legal
representatives and to make rational
decisions.
[15] The plaintiff’s counsel
in
Jonathan
submitted that if understanding at more than a
basic and concrete level is required, many unsophisticated litigants
and even quite
a number of litigants who are not so unsophisticated,
will not have
locus standi
. The point was made that many
plaintiffs did not understand expert testimony, knew nothing of the
apportionment of damages and
often did not understand basic legal
principles. This argument was also advanced in the present matter and
featured in my own thinking
when considering the matter. Brand AJ (as
he then was) observed at 624 F-G that the answer lay in the
“distinction between
lack of
knowledge
and lack of
the
mental capacity to understand
” and he observed as follows:
“
In my
view, most litigants, sophisticated or otherwise, have the mental
capacity to understand and to give meaningful instructions
to their
legal representatives . . . when these litigants have been provided
with the necessary information by their legal and/or
other advisers.
The fact that many litigants will be unable to understand many
aspects of litigation unless they are properly advised,
therefore,
does not in itself justify the acceptance of the principle that the
capacity to understand litigation at a basic level
is sufficient to
establish the capacity to litigate”.
[16] At 625 A-B of his judgment, the
learned judge also accepted that there was a close correlation
between the criminal law requirement
for an accused to understand
proceedings so as to be able to make a proper defence, and the test
for a capacity to litigate. Support
for this proposition he found in
Persone en Familiereg
at 334 and 378 and Joubert (ed)
The
Law of South Africa
volume 20, paragraph 194. Ultimately, the
mental ability to make rational decisions and give proper
instructions to the legal representative
concerned, were held by the
learned judge to be the primary considerations in determining the
locus standi
of a patient with a brain injury (at 626 D-E of
the judgment. See also:
Theron VAA Life Assurance Association
Limited
1993(1) SA 735(C)).
[17] In this matter it was common
cause that as a result of the accident the plaintiff had sustained
multiple cranio-facial fractures,
a primary diffuse brain injury with
a Glasgow Coma Scale of 9/15. There was a recorded impairment of
consciousness for days after
his accident and persistence of
post-traumatic amnesia for more than eight days, a multifocal brain
injury with initial cerebral
swelling and eventual cerebral atrophy
and gliosis (scarring).
[18] All of the aforesaid resulted
in permanent frontal lobe brain damage and the plaintiff consequently
suffers from epileptic
seizures, recurrent and severe headaches, and
dizziness when experiencing these headaches. The seizures and
headaches often cause
the plaintiff to be absent from work despite
treatment.
[19] Dr Edeling, the neurosurgeon
who assessed the plaintiff, testified that the plaintiff’s
situation was getting worse since
there was permanent neurological
damage, and over time gradual neurological deterioration would occur.
In addition he anticipated
that the plaintiff’s ability to
apply his retained intellectual capacity will be jeopardised by less
readily quantifiable
executive mental impairment and fatigue, as well
as by mood and personality factors. He further said that the
plaintiff was not
capable of properly instructing his legal
representatives and was not capable of giving reliable evidence in
court. Dr Edeling
recommended the appointment of a curator
ad
litem
for the plaintiff.
[20] Ms Coetzee, on neuro-cognitive
testing, found the plaintiff to have an impaired memory, fine motor
slowing, a significant drop
in verbal productivity, executive
dysfunction and mood changes commonly associated with frontal lobe
dysfunction. Persons suffering
from the latter condition was often
described as “the walking wounded”. Despite appearing to
others as though they
are functioning relatively normally, persons
with frontal lobe dysfunction, she told the court, are in reality
functioning at a
far lower level. Ms Coetzee also consulted with the
branch manager two co-workers of the plaintiff (Mrs Straton, Mr Harry
and Mr
Dlamini). They informed Ms Coetzee that the plaintiff often
suffered from headaches and epileptic seizures which caused him to be
absent from work.
[21] Ms Coetzee testified that a
stressful environment such as a Court room would render the plaintiff
unable to make rational decisions
and would cause him to drop into
passivity. Consequently she recommended that a curator
ad litem
be appointed.
[22] Mr Eaton, the clinical
psychologist who testified on behalf of the defendant, gave the
opinion that the plaintiff presented
as a “well functioning
adult”, able to manage his affairs. According to his report
there was clinical evidence which
suggested a severe underlying
reactive depression or affective mood disorder. On a form completed
by the plaintiff and his employer,
the answers suggested that the
plaintiff was able to manage his personal affairs but required
assistance when he experienced epilepsy
and severe headaches. Mr
Eaton also consulted with the plaintiff’s uncles and an aunt.
According to them he slept a lot,
was stubborn, slowed down in his
mental reactions, forgetful and he sometimes confused the days of the
week.
[23] Variability in the plaintiff’s
performances across different subtests suggested an acquired
neurophysiological functioning
deficit. Mr Eaton also agreed with the
description of persons with frontal lobe syndrome as being “the
walking wounded”
and identified a number of symptoms and
deficits usually associated with frontal lobe syndrome in respect of
the plaintiff.
[24] It was also common cause in
this case that the plaintiff could conclude contracts. He purchased a
car, albeit with the advice
and assistance of his uncle. He also got
engaged to a girl almost on impulse, but broke off the engagement
when his mother became
upset about it. He also entered into
negotiations with the jewellers in question to return the engagement
ring. He managed his
own salary and he still advances money to his
mother, the applicant, who is dependant on his financial contribution
towards the
household. The plaintiff lives with her.
[25] The plaintiff’s current
employer attempted to have him boarded on the basis that due to his
head injuries his work performance
was impaired. The claim was
rejected by the insurance company concerned.
[26] Mrs Straton, the branch manager
of the courier firm where the plaintiff is employed as a data
capturer, testified that the
plaintiff’s work is of a routine
nature and that he works under the supervision of two immediate
supervisors. She testified
that the plaintiff is required to attend
certain tasks within time frames and that the quality and speed of
his tasks are inconsistent.
She also testified that the plaintiff was
at some stage interested in being transferred to East London and
sought her advice in
the matter. This fact must be assessed in the
light of the fact that the plaintiff used to live with his uncle in
East London (the
one who assisted him in buying a car) when he was
employed by Walton’s, a company that sells stationary. Mrs
Straton advised
him against the transfer.
[27] Mr Harry, the plaintiff’s
immediate supervisor corroborated the evidence that the plaintiff’s
work performance
was variable and that he would take a few days off
work from time to time, when he had headaches and seizures. The
plaintiff’s
regular absence was a problem in his work place and
the subject of several disciplinary measures taken against him. Mr
Harry testified
that the plaintiff was aggressive and defensive when
he was confronted with criticism of his work performance.
[28] The applicant’s testimony
of the plaintiff’s mood swings, obstinacy, excessive sleeping
and depression, was borne
out by the expert witnesses of both
parties. She disputed Mr Scott’s report insofar as he noted
that he had a consultation
with her. I do not accept her evidence in
that regard. However, her evidence insofar as her testimony
corresponds with other evidence
led, should not be rejected for that
reason alone. I also bear in mind that the applicant has a
considerable interest in the appointment
of a curator
ad litem
,
based on the plaintiff’s inability to make rational decisions.
Her evidence on his mental capacity must be evaluated in
that
context.
[29] The fact that the plaintiff is
gainfully employed and able to manage his day to day affairs and
evidently does not need a curator
bonis
renders my decision in
this matter a difficult one.
[30] In the
Jonathan
matter,
where the plaintiff had the mental capacity of an eight year old with
an IQ of below 60, the plaintiff quite understandably
required the
assistance of a curator
ad litem
. She could not take rational
decisions in prosecuting litigation. In the present matter, the
nature of the plaintiff’s brain
injury is common cause. He
suffers (as did the plaintiff in
Jonathan
) from frontal lobe
damage. The two psychologists who testified at the hearing agree that
persons such as the plaintiff are generally
referred to as “the
walking wounded”. Their clinical observations are largely the
same. Yet they could not agree on
whether the plaintiff needed the
assistance of a curator
ad litem
in prosecuting litigation.
The fact that the plaintiff is gainfully employed seemed to be the
primary consideration in the argument
against appointing a curator
ad
litem
. That factor indeed renders this matter somewhat
complicated. However, it is not unprecedented. In
Harcourt NO
v
Road Accident Fund
, reported in
The Quantum and Damages in
Bodily and Fatal Injury Cases
, Corbett and Honey, Vol V (2000)
(NC) p B 4 – 29, the plaintiff, with similar brain injuries as
in the present matter, was
employed, carrying on routine tasks under
supervision. The Court had nonetheless appointed a curator
ad
litem
for him to assist him in prosecuting his claim against the
Fund.
[31] The appointment and services of
a curator
ad litem
are costly. The appointment of one is not a
mere matter of applying to court for an appointment. An applicant
seeking such an appointment
must demonstrate the necessity therefore,
based on the “patient’s” ability to give proper
instructions to his
legal representatives and make rational
decisions.
[32] The curator
ad litem
appointed to report on this question (Mr Scott) did not unequivocally
advise against the appointment. He recommended a hearing
if the
application was persisted with. Mr Scott’s recommendation was
largely based on considerations of the plaintiff’s
management,
of his day to day life, and financial affairs.
[33] The plaintiff’s
relatively undemanding position as a data capturer at a fixed salary
with an understanding employer,
is significant in assessing his
capabilities as a litigant. In my view, the nature and content of his
work do not present great
challenges for the plaintiff in making day
to day financial decisions. Living with a protective mother who
supervises his personal
life is also significant in this assessment.
The plaintiff leads a very protected life. His mother intervened in
almost all of
his disputes with his employer and in his engagement.
Given the plaintiff’s structured work and home environment, it
is not
difficult to understand why he does not need a curator
bonis
,
notwithstanding his frontal lobe damage and its particular
consequences.
[34] Mr Eaton’s opinion on the
desirability of appointing a curator
ad litem
for the
plaintiff must be evaluated against the background that he was
instructed to asses whether a curator
bonis
had to be
appointed for the plaintiff. The distinction between a curator
bonis
and a curator
ad litem
is not a negligible one. Whereas
the plaintiff evidently does not need the former, the same cannot be
said with any confidence
about the latter in this matter. Ms Coetzee
was very clear about her prediction that outside of his structured
work and home environment,
the plaintiff will not be able to cope in
a stressful court environment.
[35] On all the evidence presented
by the witnesses for both sides, I must accept that the plaintiff
will, at least from time to
time, suffer headaches, epileptic
seizures, and fall into long bouts of sleeping in the aftermath of
the seizures, during which
he would be unable to make rational
decisions. That these episodes will occur in future is a certainty.
Should they occur at very
crucial stages of the litigation embarked
upon by the plaintiff, he will be prejudiced. Dr Edeling opined that
this position will
deteriorate and this evidence was not disputed in
this regard. The fact that the plaintiff may on good days be capable
of acting
unassisted, is not an indication of automatic
locus
standi in iudico
. He might require protection for those days when
he will be afflicted by the effects of his frontal lobe injury.
[36] Even though the plaintiff
experiences more normal days than ones when he is afflicted by
headaches, seizures or their debilitating
aftermath, no expert can
predict with certainty how the plaintiff will fare during litigation
and on how many days he will be completely
unable to give meaningful
instructions to his legal representatives. If his seizures occur in
the middle of a trial or at a crucial
point in the litigation, his
ability to make a meaningful contribution to the litigation in
question would definitely be impaired
in the sense envisaged in the
Jonathan
and
Theron
cases. Even though there is
uncertainty, I would rather err on the side of caution and rule that
a curator
ad litem
be appointed to assist the plaintiff in the
current litigation.
[37] The defendant raised an
objection of a procedural nature to the appointment of a curator
ad
litem
. It was argued that the application is defective in that it
was not supported by affidavits from two practioners. Rule 57 is not
peremptory, but couched in permissible terms as the words “if
possible” clearly demonstrate. Since a full hearing was
held
any of the procedural requirements in Rule 57(4) could be dispended
with. In any event, the
sequelae
of brain injuries are very
often, if not routinely, investigated by psychologists. If the
absence of one more affidavit is indeed
a defect, in that I
misinterpreted the rule, then that defect is condoned.
Costs
[38] The application for
postponement was withdrawn and the applicant then proceeded with her
application for the appointment of
a curator
ad litem
. Even
though the court day was not wasted in the sense that the curatorship
hearing was dealt with instead of the defendant’s
special plea,
the defendant nonetheless incurred costs in opposing the application
for postponement. The drafting and filing of
an answering affidavit
and preparing to oppose the application all bear certain costs. If
the plaintiff had indicated sooner that
it was going to apply for a
postponement and then for a ruling that a curatorship hearing take
place, the defendant might have
dealt with the matter differently.
Accordingly, the defendant is entitled to its wasted costs of the
application for postponement.
Insofar as the opposed curatorship
application and hearing is concerned, costs should follow the result.
[39] Having found that a curator
ad
litem
should be appointed to assist the plaintiff in his action
for damages against the defendant, I am nonetheless not in a position
to appoint one, since no curator has been nominated. This ought to be
done soon and the nominee’s powers should be formulated
before
approaching the court for his or her appointment.
[40] In the event, I make the
following order:
A curator
ad litem
is to be
appointed to assist the plaintiff in his action against the
defendant.
The applicant shall forthwith
nominate a person to act as curator
ad litem
for the
plaintiff and formulate the powers of such a nominee in the court
application for the appointment of her nominee, who
shall indicate
his or her willingness to act as curator
ad litem
on
affidavit.
The defendant is to pay the costs
of this application for the appointment of a curator
ad litem.
Dr Edeling and Ms Coetzee are
declared necessary witnesses.
The plaintiff is to pay the
defendant’s costs of his application for the postponement
which was subsequently withdrawn.
_______________
E REVELAS
Judge of the High Court
Appearance for Plaintiff: Adv
Corbett
Instructed by: Malcolm Lyons &
Brivik Inc
c/o Kaplan Blumberg
Appearance for Defendant: Adv
Beyleveld
Instructed by: Boqwanaloon &
Connellan
Date Heard: 18 October 2010
Date Delivered: 01 February 2011