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[2012] ZAECPEHC 52
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Ex parte: Futter, In re: Walter v Road Accident Fund and Another (2422/2008) [2012] ZAECPEHC 52 (17 August 2012)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
CASE NO. 2422/2008
Ex Parte:
LEONARD ARTHUR FUTTER
…...........................................................
(the
Patient)
In re:
ALISTER JAMES WALTER
…..................................................................
APPLICANT
and
ROAD ACCIDENT FUND
….....................................................
FIRST
RESPONDENT
LEONARD ARTHUR FUTTER
….......................................
SECOND
RESPONDENT
JUDGMENT
D VAN ZYL, J:
[1] This is an application
for the appointment of a
curator ad litem
to Leonard Arthur Futter
(the
second respondent)
as a preliminary step to
the appointment of a
curator bonis
to take control of his assets and affairs. The applicant
is an attorney who represented the second respondent in legal
proceedings
against the Road Accident Fund
(The
Fund)
for the recovery of damages sustained
by him as a result of injuries he sustained in a motor cycle
collision in May 2006. The action
was concluded successfully in
favour of the second respondent in December 2011 when it was settled
and an amount of 3.9 million
rand was awarded to him as compensation.
The monies were paid into the applicant’s trust account where
it still is.
[2] In February 2012 the
applicant launched the present application under the same case
number. The application is divided into
two parts. The relief sought
at the hearing of the matter is formulated as follows in the notice
of motion.
“
1.
Appointing Advocate Charl van Rooyen as
curator
ad litem
to
Leonard Arthur Futter, for the purposes of reporting to this
Honourable Court on whether a
curator
bonis
ought
to be appointed to the estate of the said Leonard Arthur Futter.
2. Postponing the
application
sine die,
to be reinstated by the Applicant for
the purpose of receiving the reports of the
curator ad litem
and
the Master of the Honourable Court, and for the granting of the
further relief set out hereunder.
3. Ordering that the
proceeds of the patient’s action against the respondent shall
be held in trust by the applicant pending
the finalisation of both
parts of this application.”
[3] The issue for
consideration at this stage is therefore limited to the question
whether a
curator ad litem
should
be appointed to the second respondent. In the application the Fund is
cited as the respondent and the second respondent is
referred to
therein as
“
the patient”
.
At the hearing of the matter the second respondent sought leave to
intervene in the application and to be joined as a party thereto.
The
application was not opposed and he was added as a respondent.
[4] It is common cause that
the second respondent sustained a severe head injury in the accident.
According to the medico-legal
reports placed before the Court in his
damages action, the injury resulted in the second respondent
suffering
orbito-frontal dementia
with associated organic mood disorder. Relying on three
of the reports placed before the Court in the damages action, and
after
having
“
briefly consulted”
with the second respondent, the applicant expresses the
view in his founding affidavit that he is
“
not
satisfied that the patient is capable of managing the funds”
awarded to him. As the second respondent was compensated
on the basis that he no longer has an income earning capacity, the
applicant
is of the view that a
curator bonis
should be appointed to manage the second
respondent’s estate, so as to protect the monies awarded to him
by the Court.
[5] The parties are, in my
view correctly,
ad idem
that
the application is regulated by the provisions of Rule 57 of the
Uniform Rules of the High Court. Subrule (1) of Rule 57 provides
that
“any person desirous of making application to the court for an
order declaring another person (referred to in the rule
as “
the
patient
”
) to be of unsound mind and as such
incapable of managing his affairs, and for appointing a curator to
the person or property of
such patient,shall in the first instance
apply to the court for the appointment of a curator
ad
litem
to such patient”. In the present
matter the applicant does not seek an order declaring the second
respondent to be of unsound
mind. The order sought in the second part
of the application is that the second respondent be declared to be
incapable of managing
his own affairs. The basis for this order is
the contention that the applicant is suffering from a mental
disability which renders
him incapable of managing his own affairs.
It is accordingly an application as envisaged in sub-rule (13) of
Rule 57 which provides
that
“
Save to
such extent as the court may on application otherwise direct, the
provisions of subrules (1) to (11) shall,
mutatis
mutandis,
apply to every application
for the appointment of a
curator bonis
to any person on the ground that he is
by reason of some disability, mental or physical, incapable of
managing his own affairs.”
[6] Rule 57(2)
inter
alia
requires the applicant to
“
fully”
set out the following: the grounds upon which he claims
to have
locus standi
to
bring the application; The patient’s age and sex, particulars
and information of the patient’s means and his general
state of
physical health; and, in the context of the present matter, facts and
circumstances relied on to show that the patient
is of unsound mind
and is incapable of managing his affairs. (paragraphs (a), (c) and
(e) of subrule (2).) In terms of subrule
(3)(a), the application
should also as far as possible be supported by an affidavit from at
least one person to whom the patient
is well known and setting out
facts and information which are within the deponent’s own
knowledge concerning the patient’s
mental condition.Subrule (4)
provides that with the leave of the Court any of the requirements of
Rule 57may be dispensed with
“
on good
cause shown, and by reason of urgency, special circumstances or
otherwise.”
This subrule further
authorises the Court hearing an application as envisaged in subrule
(1),to appoint the person suggested,
or any other
suitable person as
curator ad litem,
or to dismiss the application or
“
make
such further or other order thereon as to it may seem meet.”
[7] Both respondents are
opposing the application for the appointment of a
curator
ad litem.
The second respondent filed an
answering affidavit to which the applicant replied. The Fund’s
opposition is essentially in
relation to the applicant’s
request that the Fund, on the basis of having issued an undertaking
in terms of
section 17
of the
Road Accident Fund Act No. 56 of
1996
(the Act)
in the
damages action, should pay the costs of the application. The second
respondent in turn denies that he is incapable of managing
his own
affairs and that there is any need to appoint a
curator
ad litem
or
bonis
to
him as contended by the applicant. His opposition to the appointment
of a
curator ad litem
is
essentially premised on the contention that the applicant in his
founding affidavit has failed to establish a case for the relief
sought. The submission is that the applicant has failed to show that
he has
locus standi
to
bring the application, and that the application does not comply with
the requirements of
rule 57.
[8] Dealing firstly with the
question of
locus standi
,
it is a well established principle of our law that a litigant who
claims relief must show that he has an interest in the subject
matter
of the litigation which is recognised at law as sufficient to give
him legal standing ( See
Gross and others v
Pentz
1996(4) SA 617(A)at 632C - D) and
Jacobs en n Ander v Waks en Andere
1992(1)
SA 521(A) at 534C-E, where it was held that the sufficiency of the
interest is
“
altyd afhanklik van die besondere feite
van elke afsonderlike geval, en geen vaste of algemeen geldende reels
kan neergelê
word vir die beantwoording van die vraag nie. .
.Vorige beslissings kan behulpsame algemene riglyne vir bepaalde
soort gevalle
aandui, maar meestal het dit weinig nut om die
besondere feite van een geval te vergelyk met dié van ʼn
ander.”
The general rule is that it is for the
party instituting proceedings to not only allege, but also to prove
that he has
locus standi
.
The
onus
of
establishing
locus standi
in
application proceedings therefor rests upon the applicant (see
Mars
Incorporated v Candy World (Pty) Ltd
1991(1)
SA 567(A) at 575H – I and
Kommissaris
van Binnelandse Inkomste v Van der Heever
1999(3)
SA 1051 (SCA) at para [10].), and it is an
onus
in the true sense. (
Mars
Incorporated vs Candy World Pty Ltd
supra at
575 I and
Gross and Others v Pentz
supra at 632 E).
[9] By way of introduction
to the issue of
locus standi,
the general position in our law
is that whatever moral duty any person may think or believe he has,
there is no legal duty on anyone
to prevent harm or to look after the
affairs of another. (See
Swinburne v Newbee Investments
2010(5)
SA 296 (KZD) at 302G.) Although significantly eroded over the years,
particularly by legislation, the principle of individual
freedom
which has as one of its components the duty to look after one’s
own interests and the concomitant right to insist
that others mind
their own business, is recognised in the many principles forming part
of our legal tradition. Another consideration
effecting the issue of
locus standi
in the context of the present matter is that an
order placing someone under curatorship effects the status of that
person and involves
a serious encroachment upon the personal freedom
and the rights the person concerned. Accordingly, the need to
establish and determine
the standing of the applicant is
understandably an essential feature of an application as envisaged in
Rule 57(2)(a).(
Exparte Hill
1970(3) SA 411(C) at 413A). It
matters not whether it is a
curator ad litem
or
bonis
who is to be appointed to the individual concerned. It is accordingly
incumbent upon an applicant to not only allege that he has
locus
standi
, but also to make the necessary factual allegations in
support thereof. This is clearlywhat is envisaged by
Rule 57(2)(a).
[10] The applicant does not
at all deal with the issue of
locus standi
in his founding affidavit. Atthe hearing of the matter
Counsel for the Applicant sought to place reliance on the fact that
the applicant
acted as the second respondent’s attorney in the
action against the Fund and that he may potentially be exposed to
litigation
in the future should he allow the second respondent to
squander the monies awarded to him in the damages action as a result
of
his inability to manage his financial affairs. There is in my view
no merit in this argument. Formulated in this manner, the applicant’s
interest in the relief claimed is not current but rather
hypothetical.
“
. . .
andersins
word daar ook gesê, na gelang van die samehang van die feite,
dat daar ʼn werklike belang moet wees (nie abstrak
of akademies
nie), of dat dit ʼn teenswoordige belang moet wees (nie
hipoteties nie)
”
(Per Botha JA in
Jacobs en ʼn Ander v Waks en Andere
supra at 534B.).
[11] Further, from a reading
of the case law it is evident that
locus
standi
in applications for the appointment of
a
curator
to another
is not determined by whether the applicant has a financial interest
in the ability or inability of another to manage
his own affairs. In
Judin v Wedgwood and Another
2003(5) SA 472(W) it was by way of example held that a
debtor-creditor relationship alone does not give
locus
standi
to a creditor to apply for the
appointment of a
curator ad litem
to
his debtor. It is rather the proximity of someone’s
relationship to another that is sufficient to create a direct or real
interest in the relief sought. An application of this nature is for
this reason usually brought by one of the patient’s next
of
kin, not simply because they may personally be adversely affected by
the inability of the patient to manage his own affairs,
but also
because they are sufficiently close to him so as to have a real
concern for his welfare, thereby creating a legally recognised
interest in his ability to manage his own affairs.
[12] Dependants of the
patient, like his wife and children, who have a right to maintenance,
will fall into this category. The inability,
of a breadwinner to
manage his affairs may not only impact negatively on their right to
be maintained by him, but they also, by
virtue of their close
relationship with the patient, have a real interest in his welfare.
From a practical point of view they are
also better placed to testify
with regard to issues such as the health of the patient, his mental
state and whether he is able
to look after his own affairs.
Accordingly, if the applicant in proceedings under
Rule 57
is not the
spouse or a next of kin of the patient, then the reason why the
spouse or next of kin does not bring the application
should be
stated, and if they are not available to make the application, what
steps had been taken to establish their whereabouts
before the
application was made
.
If
no relatives exist who are in a position, or willing for that matter,
to make the application to Court, it may be brought by
someone else
who, on the facts and in the circumstances of the particular case,
stands in a sufficiently close relationship to
the person concerned
to be recognised at law as someone who has on interest in his
welfare, and who is in a position to assist
the Court in arriving at
a decision. Such persons may be a friend or even a close business
associate (see Erasmus
Superior Court Practice
at B1 – 393.)
[13] An attorney –
client relationship cannot, as contended on behalf of the applicant
in argument,
per se
create
a sufficiently close relationship to confer
locus
standi
on the attorney concerned. It is
subject to the circumstances of the particular case, and factors such
as the unavailability or
unwillingness of the patient’s next of
kin to act, the nature and extent of his relationship with the
patient, and its duration,
that are determinative of the issue of
locus standi
. These
aspects must be fully dealt with in the founding affidavit,
particularly where, as in the instant matter, it is evident
from the
documentation which the applicant incorporated by reference thereto
into his application, that the second respondent is
married and has
next of kin.
[14] The applicant failed to
address any of these matters in his founding affidavit. He attempted
to deal therewith in his replying
affidavit only after it was raised
by the second respondent in his answering affidavit. According to the
applicant in reply the
second respondent instructed him, prior to the
finalisation of the action, to invest any monies he may receive from
the Fund until
such time as a
curator bonis
is
appointed to
“
administer and protect”
the award. He states that the second respondent’s
wife agreed to bring the application. However, after the action was
finalised,
she advised the applicant that she was no longer willing
to do so. As he does not know anyone else who is close to the second
respondent,
the applicant says that he had no choice but to bring the
application himself.
[15] This does not assist
the applicant. Not only does he fail to give any particulars of the
duration and intimacy of his relationship
with the second respondent,
he does not state what steps, if any, he took to find any other
person who may be related to the second
respondent and / or who is
sufficiently close to him and willing to bring the application. To
simply state that he does not know
of such a person is not enough.
Further, as correctly pointed out by Counsel for the second
respondent, an applicant in motion
proceedings is bound to justify
his claims and to make out his case in his founding affidavit. (See
inter alia Shakot Investments (Pty) Ltd v Town Council of the
Borough of Stanger
1976(2) SA 701(D) at 704F – G). He may
therefore not introduce new matter or make out a case in his replying
affidavit. (
Director of Hospital Services v Mistry
1979(1) SA
626(A) at 635G – 636B and
Bowman NO v De Souza Roldao
1988(4) SA 326(T) at 327D – H.). Where he does so, the Court
may either ignore it or strike it out. (
Titty’s Bar and
Bottle Store (Pty) Ltd and others v ABC Garage (Pty) Ltd
1974(4)
SA 362 (T) at 368H). While the Court has an overriding discretion to
allow an applicant to introduce new matter in his
replying affidavit,
the applicant must provide an adequate and acceptable explanation for
its omission from the founding affidavit.
Such an explanation is
absent in the present matter.
[16] Counsel for the second
respondent further submitted that the application is defective in
that it fails to comply with most
of the remainder of the
requirements laid down in subrules (2) and (3) of
Rule 57.
It does
not contain any information relating to the applicant’s
financial position as required by subrule (2)(c), other than
that he
was awarded an amount of money by the Court as compensation in the
action. It was further submitted that the applicant
has failed to
fully deal with the physical health of the applicant in his founding
affidavit and did not set out the facts and
circumstances relied upon
to show that the second respondent is by reason of a mental defect
incapable of managing his own affairs.
Counsel for the applicant
responded by submitting that although the applicant may not have set
the required information out in
his founding affidavit in any detail,
he has sufficiently complied with
Rule 57
by making reference in his
founding affidavit to, and relying on three of the medico-legal
reports placed before the Court in the
damages action. The required
information, so it was argued, appear from these reports. In
addition, the persons who compiled the
said reports deposed to
affidavits in which they support the appointment of a
curator
bonis
to the applicant.
[17] The difficulty with
this submission is that although an applicant in motion proceeding is
not debarred from incorporating the
contents of documentation into
his affidavit, he is required to do so by identifying the portions
thereof on which reliance is
placed, and indicating the case which is
sought to be made out on the strength thereof. As stated by Joffe J
in
Swissborough Diamond Mines v Government of
the Republic of South Africa
1999(2) SA
279(T) at 323G to 324G, affidavits in motion proceedings serve not
only to place evidence before the Court, but also
to define the
issues. The parties must know the case they are called upon to meet
and in respect of which they must adduce evidence
in their
affidavits.
“
Regard being had to the
function of affidavits, it is not open to an applicant or a
respondent to merely annexe to its affidavit
documentation and to
request the Court to have regard to it.”
(
Swissborough
supra
at 324F.) These comments are of particular relevance to an
application in terms of
Rule 57
where the applicant is required by
the Rule itself to give full particularity of the facts and
circumstances on which reliance
is placed.
[18] The more fundamental
question which however in my view arises on the facts of the present
matter is whether the applicant has,
on the evidence on which he
places reliance, established a case for the appointment of a
curator
ad litem
. The procedure in
Rule 57
of appointing a
curator ad
litem
as a preliminary step to the appointment of a
curator
bonis
, has its origin in the practice which developed and was
followed in the different High Courts (See for example
Ex Parte
Hartzenberg
1928 CPD 385
; Ex Parte Stewart – Wynne: In
re Mason
1944 EDL 176
and
Ex Parte Estate van Rensburg
1948(2) SA 753(O).) An overview of the cases on the subject however
shows that the appointment of a
curator ad litem
is not to be
regarded as an inflexible rule, or simply as a procedural step in the
process of appointing a
curator bonis
to someone’s
estate. In Ex Parte Klopper: In Re Klopper 1961(3) SA 803(T) at page
805H the Court held that the
onus
is on the applicant in
proceedings in terms of
Rule 57
to satisfy the Court on a balance of
probabilities that the appointment of a
curator ad litem
to
the patient is a necessary step. (Also
Delius v Delius
1960(1)
SA 270(N) at 272E.)
[19] This is in my view the
correct approach. The person appointed as
curator
ad litem
as envisaged in
Rule 57
, is not
appointed to simply act as
amicus curiae
to assist the Court in determining whether the patient
is capable or incapable of managing his own affairs, and whether the
proposed
curator bonis
is
a fit and proper person to administer the estate of the patient. He
is appointed as
curator ad litem
to
the patient, to act on his behalf and to represent his interests in
the litigation pertaining to the appointment of a
curator
bonis
to manage his estate. The appointment
itself reflects negatively on the status of the patient and his legal
capacity, not only to
manage his own affairs, but also to litigate on
his own. In
Ex Parte Kotze
1955(1)
SA 665(C), Herbstein J quite correctly said at page 666 G - H that
the appointment of a
curator ad litem
constitutes an interference with the right of
an adult person to control his affairs, and that before such an
appointment is made,
the Court
“
. . .
must be satisfied, on proper enquiry; that the mental condition of
that person is such as to justify interference of this
kind.”
(See
also du Bois at al
Wille’s Principles of
South African Law
9
th
ed at page 380.) In
Delius v
Deliussupra
, where the issue was whether a
curator ad litem
should
first be appointed in an application to declare someone a prodigal
and for a
curator bonis
to
be appointed to her estate, the Court declared that
“
Generally
speaking a
curator ad litem
should
not be appointed unless there is reason to think that the person
concerned does not understand the nature and effect of the
proceedings.”
(At page 273D). These
remarks are equally apposite in proceedings for the appointment of a
curator bonis
in terms
of
Rule 57.
[20] Whether or not it is
necessary to appoint a
curator ad litem
as envisaged in
subrule (1)must accordingly be determined on the facts and
circumstances of each individual case. There are in my
view at least
two considerations relevant to this enquiry. The first relates to the
sufficiency of the evidence on which the applicant
places reliance in
support of the application for the appointment of a
curator bonis
.
The second consideration, which is pertinently raised by the facts of
the present matter, relates to the ability of the patient
to
understand the nature and consequences of the
Rule 57
proceedings.
The relevance of the first consideration is the following: Having
regard to the duties of the
curator ad litem
(for which see
Joffe et al
High Court Motion Procedure: A Practical Guide
at
page 1–97 to 1-98), the aim of appointing a
curator ad litem
to the patient is to facilitate the second part of the proceedings,
namely the appointment of a
curator bonis
to the estate of the
patient. If there is therefore insufficient evidence at the first
stage of the proceedings to support a finding
that the patient is
suffering, as the allegation is in this matter, from a mental defect
which renders him incapable of managing
his own affairs, no purpose
would be served by the appointment of a
curator ad litem
,
thereby rendering it unnecessary. Applied to the facts of the present
matter, this accordingly requires an examination of the
evidence on
which the applicant relies in support of his contention that a
curator bonis
should be appointed to manage the second
respondent’s estate.
[21] As stated earlier, in
his founding affidavit the applicant placed reliance on three
medico-legal reports filed in the damages
action in support of his
contention that the second respondent is incapable of managing his
own affairs. In his report dated June
2011, the psychiatrist Crafford
does not state that the second respondent is incapable of managing
his own affairs. He simply states,
without providing any factual
basis therefor, that the second respondent would benefit from the
appointment of a
curator bonis
and
ad litem.
In an
affidavit annexed to the present application the said psychiatrist
simply added that he is of the opinion that a
curator
bonis
be appointed to assist the second
respondent in the management of the funds awarded to him. It quite
clearly amounts to nothing
more than an opinion without disclosing
the factual basis for it as required by sub-rule (2)(e).
[22] The medico-legal report
provided by Eaton, the clinical psychologist in October 2008 equally
does not assist the applicant.
In fact the opposite of what the
applicant contends. It is said in the report that
“
The
examiner would not feel it appropriate to take away his
(the
second respondent’s)
right to make his
own financial decisions, because he is regarded to have the insight
and wisdom to recognise the extent of his
difficulties . . .”
and
“
Therefore
the examiner would not support the appointment of a
curator
bonis
in this case.”
The
said clinical psychologist subsequently in April 2011 had a change of
heart and in a letter to the applicant recommended that
a
curator
bonis
be appointed to the second respondent.
This recommendation is stated to have been made on the basis of him
having read
“
. . . additional
medico-legal reports that were recently provided . . .”
Which reports these are, is not stated. As in the case
of
Crafford
, Eaton’s
affidavit filed in support of the application does not provide any
assistance. He simply states, without any factual
basis,
that
in his opinion a
curator
should
be appointed to assist the second respondent.
[23] The psychologist Holmes
in turn in his report dated June 2009 simply deferred to the
psychiatrist and the clinical psychologist
regarding the placing of
the second respondent under curatorship. At the time when this report
was made, the psychiatrist stated
that the appointment of a
curator
bonis
was not called for, while the clinical
psychologist merely postulated that the second respondent could
benefit from such an appointment.
The statement of Holmes in his
report that
“
there is reason to believe
that he
(the second respondent)
would
be at significant risk . . .”
with
regard to managing his own financial affairs, is not motivated and
can not assist the applicant.
[24] Not only can the
reports relied upon hardly be said to be based on
“
recent”
examinations of the second respondent as required by
subrule (3), they do not in my view support a finding that the second
respondent
is by reason of a mental disability incapable of managing
his own affairs as envisaged in subrule (13). The applicant himself
simply
states in his founding affidavit that he
“
briefly
consulted with the plaintiff in respect of the proposed utilization
of the funds, and bearing in mind the opinion of the
expert witnesses
referred to above, I cannot be satisfied that the patient is capable
of managing the funds.”
When this
“
brief”
consultation
took place and what it was about is not stated. This statement
similarly amounts to nothing more than an opinion without
stating the
factual basis therefor.
[25] To make matters worse,
in his answering affidavit the second respondent directed the Court’s
attention to a report which
was prepared by a neurosurgeon, Dr Keeley
who examined him in January 2009 wherein the following is stated:
“
He
(the second
respondent)
is not an invalid. He is carrying
on a successful business albeit with significant restrictions and he
may always be in a position
to care for himself and for his family.
He is quite capable of understanding the nuances of litigation and of
critically and judiciously
dealing with his financial situation.”
Keeley was clearly of the view at the time he compiled
his report that there was no need for the second respondent to be
assisted,
either in the pending litigation in the damages action, or
insofar as his financial affairs are concerned. I agree with Counsel
for the second respondent that there was a duty on the applicant to
pertinently draw the attention of the Court in his founding
affidavit
to the opinion expressed in this report. An application in terms of
Rule 57
is brought
ex parte
(subrule
21) and the utmost good faith is consequently required. The
applicant’s explanation for his failure to do so, namely
that
the said report forms part of the bundle of documents before the
Court, is simply unacceptable.
[25]
[26] Counsel for the
applicant in argument dealt with the shortcomings in the evidence
relating to the second respondent’s
ability to manage his own
affairs by making the submission that it is not necessary in an
application for the preliminary appointment
of a
curator
ad litem
in
Rule 57
proceedings for the
applicant to provide the same particularity as would be required at
the second stage, when the Court would
be asked to conclude and find
that the second respondent is incapable of managing his own affairs
and to appoint a
curator bonis
to
manage his estate. Relying on the decision in
Ex
Parte Klopper
: In re
Kloppersupra
Counsel for the second respondent argued on the other
hand that it is not open to an applicant during the first stage of
proceedings
in terms of
Rule 57
to merely produce, what is no more
than a skeleton case,
with the aim of
supplementing it with what may be unearthed by the
curator
ad litem
after his appointment. At page 805C
to D of that judgment Galgut J rejected the argument that with the
appointment of a
curator ad litem
a
judicial enquiry is envisaged into the state of the patient’s
capacity to take care of himself or his property with a view
of
protecting him against loss, and that it is therefore only necessary
to produce enough evidence at the preliminary stage to
cause the
Court
“
to believe that it might be
necessary for the protection of the respondent to appoint a
curator
. . .”
[27] For two reasons I agree
with this finding: The first is that it is clearly not what is
envisaged by
Rule 57
if one has regard to the requirements thereof.
As stated earlier, the applicant is required to set forth
“
fully
”
the facts and circumstances relied on to show that the
patient is by reason of a mental defect incapable of managing his
affairs
(subrule (2)(e)). It must be supported by the affidavit of at
least two medical practitioners
“
stating
all such facts
as
were observed by them at such examinations in regard to such
condition, the opinions found by them in regard to the nature, extent
and probable duration of any mental disorder or defect observed and
their reasons for the same and whether the patient is in their
opinion incapable of managing his affairs.”
(subrule
(3)(b)) (emphasis mine). Secondly, as stated in paragraph [19] above,
the appointment of a
curator
constitutes an interference with the right of the person
concerned to manage his own affairs. That right should not lightly be
interfered
with, especially not on the basis of what amounts to no
more than vague and unsubstantiated allegations.
[28] The question then is
how the evidence relating to the patient’s ability to manage
his own affairs is to be approached
during the first stage of
proceeding in terms of
Rule 57?As
the sufficiency of the evidence
placed before the Court in relation to the capacity of the patient is
considered in the context
of, and for the limited purpose of deciding
whether it has been shown that the appointment of a
curator ad
litem
to the patient is a necessary step, it is in my view to the
dealt with on the same basis as an in
limine
objection raised
in application proceedings that the applicant has failed to establish
a
prima facie
case for the relief claimed. Applied to the
present matter, and whether the applicant’s founding affidavit
alone falls to
be considered in the same manner as in exception
proceedings (
Eagles Landing Body Corporate v Molewa NO
2003
(1) SA 412(T)
at 437I – 438A), or as it seems to be suggested
in
Valentinto Globe B v Phillips and another
1998(3) SA 775
(SCA) at 779G – 780A, similar to an application for absolution
from the instance in a trial action, I am satisfied
that the
applicant’s evidence does not meet with the required standard.
[29] The second
consideration which arises on the facts of the present matter,
and in deciding whether there exists a need for the
preliminary appointment of a
curator ad litem
to the second respondent, is the latter’s ability
to appreciate the nature and consequences of the present proceedings
for
the appointment of a
curator bonis
.
It is common cause that the second respondent was able to litigate on
his own and to properly instruct the applicant in his damages
action
against the Fund. In his replying affidavit the applicant admitted
this to have been the position. That there has not been
any change
insofar as the second respondent’s ability to litigate on his
own without the assistance of a
curator
is concerned, is not in dispute. Counsel for the
applicant properly acknowledged this to be the case and for this
reason did not
oppose the second respondent’s application to be
joined as a party to the present proceedings.
[30] While each case must
depend on its own facts and circumstances, I agree with the view that
the Court should generally be reluctant
to appoint a
curator
ad litem
to a person who not only opposes the
application for the appointment of a
curator
,
but who has the ability to understand the proceedings at
a level which is sufficient to enable him to give meaningful
instructions
to his legal adviser. Authority for this view is to be
found in
Ex Parte Van der Linde
1970(2) SA 718(O) at 720C-D where Erasmus J in the
context of dealing with an application in terms of
Rule 57
said the
following:
“
Algemeen gesproke dink ek
dit is korrek om te sê dat ʼn
curator
ad litem
nie aangestel behoort te word
nie waaneer daar nie rede is om te aanvaar dat die pasiënt nie
die geaardheid en effek van die
procedure verstaan nie.
Ex
parte Papendorp,
1932 CPD 167
;
Ex
Parte McLinden and Another,
1945 OPD
96
;
Ex Parte Estate van Rensburg,
1948(2) SA 753(O) op bl. 754;
Delius v Delius,
1960(1)
SA 270(N).”
In
Ex
Parte Wilson
: In
Re
Morison
1991(4) SA 774(T) it is said that
while
“
. . .each case must be decided on
its own set of facts, . . . as a general proposition it can be
accepted that the Court does not
usually interfere to appoint a
curator
where
the person concerned is
compos mentis
and furthermore actively opposes any such appointment
. . .”
(at page 779J to 780A) (See also
Van Heerden et al
Boberg’s
Law of Persons and the Family
2
nd
ed at page 135, particularly footnote 134 on page 137).
It may be more appropriate in a case such as the present for the
Court,
acting in terms of subrule (4), to appoint a suitable person
to act as
amicus curiae,
should
itbe of the view that there exists a need in the circumstances of the
particular matter for a third person to perform any
of the functions
envisaged in subrule (5) of
Rule 57.
The appointment of a
curator
ad litem
would otherwise unnecessarily
reflect adversely on the legal capacity of the patient and interfere
with his right to control his
own affairs (see
Ex
Parte Kotzesupra
at 666G –H.)
[31] I accordingly conclude
that the applicant has failed to show that he has
locus
standi
and that the appointment of a
curator
ad litem
is necessary.
It
follows that the application must be dismissed. In so far as costs
are concerned, the respondents’ opposition to the application
was in my view fully justified and there is no reason why the
ordinary rule should not be observed, namely that the costs must
follow the result. Although it may be open to argument, as Counsel
for the applicant has submitted with reliance on the decision
in
Reyneke NO v Mutual and Federal Insurance Co
Ltd
1992(2) 417(T), that the costs of the
appointment of a
curator
may
constitute the
“
rendering of a service”
as envisaged in the undertaking issued by the Fund in
terms of
sections 17(4)
of the Act, the applicant has failed to
establish that a need exists for the appointment of a
curator
ad litem
to the second respondent. I can
accordingly see no basis on which the Fund should be held liable for
any of the legal costs incurred
by these unsuccessful proceedings.
Counsel for the second respondent in turn submitted that in the
circumstances of the matter
a punitive costs order is called for.
Although the application is defective,
and was
clearly launched without proper consideration having been given
thereto, I have no reason to believe that the applicant,
an officer
of this Court, was not
bona fide
in
his actions.
[32] In the result the
application for the appointment of a
curator ad litem
is
dismissed with costs.
________________________________
D VAN ZYL
JUDGE OF THE HIGH COURT
Counsel for the Applicant:
Adv D Niekerk and Adv N Barnard
Instructed by: Jock Walter
Inc.
38 – 3
rd
Avenue
Newton Park
PORT ELIZABETH
Counsel for the 1
st
Respondent: Adv A Frost
Instructed by: Joubert
Galpin & Searle Inc.
173 Cape Road
PORT ELIZABETH
Counsel for the 2
nd
Respondent: Adv. Scott (SC)
Instructed by: G P Van Rhyn
& Minnaar & Co Inc.
Rhymin Building
Republic Square
UITENHAGE
Date heard: 07 June 2012
Date delivered: 17 August
2012