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[2019] ZAECPEHC 57
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Sobici v Road Accident Fund (657/2016) [2019] ZAECPEHC 57 (17 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION
Case No:
657/2016
REPORTABLE/NOT
REPORTABLE
In
the matter between:
LUXOLO
ERIC
SOBICI
Applicant
and
ROAD
ACCIDENT
FUND
Respondent
In
re: Application for the appointment of a
Curator ad
Litem
and a
Curator Bonis
to LINDELWA
SOBICI
JUDGMENT
MAKAULA
J:
[1]
The applicant (husband to the plaintiff) brought an application
seeking the following
order.
“
1.
That Advocate JOHANNES DIEDERICK LE ROUX be appointed as
Curator
ad Litem
to Lindelwa Sobici for purposes of reporting to this
Honourable Court on the following issues:-
1.1
Whether a
Curator ad Litem
ought to be appointed to assist
Lindelwa Sobici in the action instituted by her against the
respondent for damages arising out of
a motor vehicle collision in
which she was involved on 28 October 2013.
1.2
Whether a
Curator Bonis
ought to be appointed to the estate of
the said Lindelwa Sobici.
2.
Postponing the application
sine die
to be re-instated by the
applicant for the purposes of receiving the Report of the
Curator
ad Litem
”
.
[2]
The application is opposed by the respondent essentially on the
grounds that the application
only arose at an advanced stage of the
proceedings and after the Health Professions Council of South Africa
(HPSCA) ruled that
the injuries sustained by the plaintiff did not
qualify as serious.
[3]
The plaintiff was involved in a car accident on 28 October 2013.
She sustained
injuries as a consequence thereof. She lodged her
claim with the respondent and summons was issued on 7 September
2015.
She is suing the respondent for an amount of
R2 664 376.18 (Two Million Six Hundred and Sixty Four
Thousand Three Hundred
and Seventy Six Rand and Eighteen Cents) for
various heads of damages. The merits of the claim were conceded
by the defendant
even before the issue of the summons and as
reflected in the Rule 37 minutes
[1]
.
Furthermore, the Past Medical Expenses have been settled and a
section 17(4)(a) undertaking was made.
[4]
The respondent filed its plea on 13 April 2016. The plaintiff
filed its expert
reports in August 2016. I shall not enumerate
the reports which are not relevant to this application. The
plaintiff
also filed reports by Mr DJ Stigant, a Clinical Phycologist
and Dr Derick van der Merwe, a Psychiatrist. Based on their
clinical
findings they opined that the plaintiff requires both a
curator ad litem
and
curator bonis.
On 14 August
2018, Advocate JD Le Roux was appointed as a
curator ad litem
for purposes of reporting to this court whether a
curator ad litem
ought to be appointed to assist the plaintiff. Advocate Le Roux
has recommended in his report that a
curator ad litem
and a
curator bonis
be appointed.
[5]
The opposition by the respondent is on two fronts. Firstly, the
respondent’s
asserts that the application has been left until
the proceedings have reached an advanced stage and after the HPCSA
had ruled that
the injuries sustained by the plaintiff did not
qualify as serious. The respondent makes the point that until
the ruling
of the HPCSA, there was no suggestion that the plaintiff
was unable to furnish sufficient instructions to her attorney and
counsel
for purposes of advancing her claim through litigation.
The respondent, correctly in my view, observes that what inexplicably
is lacking from the application is a comprehensive explanation as to
what circumstances intervened between the period from when
the
instructions were received and litigation started to date.
Secondly, the respondent argues that there is a conflict between
its
experts and those of the applicant as to whether
curator ad litem
is required.
[6]
Rule 57 of the Uniform Rules of Court deal with the appointment of
curators
in respect of persons under disability and the
release patients from
curatorship.
Rule 57(9) thereof
provides for the hearing by the court of
vive voce
evidence
from the patient and any other persons as it may deem fit for the
purpose of appointing a
curator ad litem.
Section 57(10)
empowers the court upon consideration of the application, the reports
of the
curator ad litem
and of the Master and such further
information or evidence that has been advanced
viva voce
or
otherwise to declare the patient to be of unsound mind and incapable
of managing his own affairs, appoint a suitable person
as
curator
to his person or property or both on such terms as it deems meet.
[7]
In the instant matter it is correct that the plaintiff had all along
been able to
give instructions to his legal team and to the
medico-legal experts. The applicant makes light the issue of
the plaintiff
having been able to give instructions on various stages
of the matter intimating, for example, that minimal instructions were
required
by counsel from her to draft the particulars of claim.
That cannot be so in the light of the nature of the claim itself.
Based on the same reason, the plaintiff’s attorneys must have
required instructions for purposes of the settlement of the
other
heads of damages. Dr Keely, a
curator
neurosurgeon, who
it later transpires had consulted with the plaintiff on the
instructions of her attorney, had opined that there
was no reason,
based on the sequelae of the injuries, for the appointment of the
curator ad litem.
Mr Moolman, a clinical phycologist, on
the other hand could not make any recommendations in this regard.
[8]
Contrary to the opinion expressed by Dr Keely, Mr Stigant, a clinical
psychologist
appointed by the applicant, concluded that a
curator
ad litem
ought to be appointed. Similarly, Dr Van Der
Merwe, a psychiatrist, appointed by the applicant, opined that the
appointment
of a
curator ad litem
a
curator bonis
is
required.
[9]
These factors inevitably lead to a dispute between the experts as to
whether the plaintiff
lacks the legal mind to give sound instructions
and is capable of litigating on her own unassisted. Such
factual dispute
is compounded by the fact that the proceedings are at
such an advanced stage, for this court to be able to determine that
all along
the plaintiff was incapable of giving coherent instruction
and lacked the legal capacity to do so. I do not lose sight of
the opinion that her mental condition is deteriorating.
[9]
Consequently, the following order is made.
1. The issue
of the appointment of a
curator
ad litem
for the
plaintiff is referred for the hearing of oral evidence in terms of
Rule 57(9) of the Uniform Rules of Court.
2. The costs
of this application shall be determined by the court hearing oral
evidence.
_____________________
M
MAKAULA
Judge
of the High Court
Counsel
for the
Applicant: Adv
DS Bands
Port
Elizabeth
Instructed
by: Johan
Cronjè Attorneys
c/o
Heine Ungerer Attorney
Port
Elizabeth
Counsel
for the Respondent: Adv
A Beyleveld (SC)
Port
Elizabeth
Instructed
by: Friedman
Scheckter Attorneys
Port
Elizabeth
Date
Heard: 20
June 2019
Date
Reserved: 20
June 2019
Date
Delivered:
17 September 2019
[1]
(I
shall not deal with the type of injuries the plaintiff sustained as
reflected in the founding affidavit).