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[2023] ZAECELLC 17
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Silo v Nompozolo & Gabelana Incorporated and Others (EL785/09; 2685/09) [2023] ZAECELLC 17 (25 April 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, EAST LONDON]
CASE
NO.: EL 785/09
ECD:
2685/09
In
the matter between: -
NOKILIMUSI
CHRISTINE SILO
PLAINTIFF
and
NOMPOZOLO
& GABELANA INCORPORATED
1
ST
DEFENDANT
LINDILE
BRIAN NOMPOZOLO
2
ND
DEFENDANT
MZINGAYE
GQOMO
3
RD
DEFENDANT
ROAD
ACCIDENT FUND
4
TH
DEFENDANT
JUDGMENT
NORMAN
J:
[1]
“
Justice
delayed is justice denied
”.
This legal
maxim
was analyzed in an article penned by Professor Tania Sourdin and a
senior researcher, Naomi Burstyner
[1]
.
They stated that:
“
Historical
acknowledgements of delays in the justice system often recognize the
perspective of the accused or the disputant, and
suggest that for a
person seeking justice, the time taken for resolution of their issue
is critical to the justice experience.
In essence, these
acknowledgements are consistent with more recent research which has
shown that the time taken to deal with a
dispute is, and in many
cases, the critical factor in determining whether or not people
consider that the justice system is just
and fair.”
[2]
The consequences of delayed justice, in the context of
the Road Accident Fund( “RAF”) matters,
are that a
victim’s dignity is affected and his or her quality of life is
compromised. Where a victim is from a disadvantaged
background that
delay will keep him or her entangled in the chains of poverty for the
longest time.
Those delays are difficult to
ignore when they are caused, directly or indirectly, by the conduct
of legal practitioners, as
is the position in this case.
Background
facts
[3]
On 11 March 1996 at approximately 15h30, Siyabulela
Mananga was crossing the Old King William’s
Town road, in
Mdantsane when a Toyota Hilux with registration numbers BCZ […],
driven by one Mlungisi Mayedwa, collided
with him. He was born
on 2[…] A[…] 1984 and was 12 years old at the time of
the accident. Siyabulela
is currently 39 years old. He was
allegedly residing at No. 9[…] N[…], Mdantsane. He
sustained head injuries. A report
by a neurosurgeon Dr Makangee found
that there had been a significant impact on the patient’s
cognitive abilities and he
had severe mental, behavioural and
cognitive changes which would make him dependent on his family for
the rest of his life.
[4]
The attorneys Nompozolo & Gabelana
Incorporated, the first defendant herein, instituted an action
on his
behalf, under case number EL 295/06; ECD 1195/06. The person
who gave instructions to the first defendant was the
biological
mother of Siyabulela, Mrs Nomana Dorothy Mananga. It appears from the
record that the action was not instituted in the
name of Mrs Mananga
but in the name of one Nokilimusi Christine Silo (Ms Silo) who was
purportedly acting on behalf of Siyabulela
as a
curator-ad-litem.
[5]
It appears that on 3 April 2006, the first defendant brought an
application in the Magistrate’s
Court for the appointment of Ms
Silo as a
curator- ad- litem,
but that did not eventuate. In
that application Ms Silo made it clear that she was Siyabulela’s
aunt and guardian.
[6]
On 28 August 2006, the first defendant forwarded an
application for the appointment of Ms Silo as curator,
to the Master
of the High Court in Makhanda and requested a report. On 13 September
2006 the Master of the High Court wrote to
the first defendant and
indicated that it appeared that ‘
the person who is applying
to be appointed as curator ad litem does not comply with the
requirements set by Rule 57(5) of the Uniform
Rules of Court where it
is stated that the curator ad litem should if practicable be an
advocate or an attorney’.
The Master also posed a question
‘
Is there any reason why an advocate or an attorney cannot
be appointed?’.
[7]
On or about 14 December 2007, it appears that the
first defendant brought another application
for the appointment of an
attorney, Mr Bongani Nduli, as a curator-
ad – litem
. I
must mention that this is not the only application, there were quite
a few applications where the appointment of certain attorneys,
as
curator
ad litem
, were sought at different times. Most
of the documents relating to these applications do not bear the
Registrar’s stamp
and thus make it difficult to conclude
whether or not they were in fact delivered as envisaged in terms of
the Rules of Court.
If they were delivered it is not clear from the
record what became of those applications.
[8]
On 7 February 2008, Bate Chubb & Dickson, attorneys for
the RAF, appear to have served a
notice containing an offer of
settlement in terms of Rule 34. The offer was for an amount of
R1 018 720.80, an undertaking
in terms of
section 17
(4)
(a) of the
Road Accident Fund Act 56 of 1996
, 80 % for the costs of
the future accommodation of Siyabulela in a hospital or nursing home
and costs of the action including reasonable
and qualifying expenses
of the plaintiff’s expert witnesses. That offer was in the name
of Ms Silo. There is another offer
made in the name of “Claimant:
Mananga ND”, for the same amount dated 15 February 2008
addressed to the first defendant
by the RAF. This offer is relied on
by Ms Silo in her particulars of claim in the current action.
[9]
On 12 February 2008 the settlement was made an order of Court by
Dambuza J (as she then was).
There is a dispute whether the
amount of R1 018 720.80 paid into the trust account of the
first defendant was made in
the name of Ms Silo or Ms Mananga. That
is not an issue that I have to decide herein and is not relevant for
the purposes
of determining costs in the withdrawn action. It is
common cause that Siyabulela never received any of the monies offered
and accepted.
[10]
On
4 September 2008,
Mr Bernadus
Christian Gysbertus Niehaus (Mr Niehaus) of Niehaus McMahon &
Oosthuizen Attorneys was nominated and appointed by
way of a special
power of attorney by Ms Silo purportedly on behalf of Siyabulela.
[11]
On 26 September 2008 the first defendant delivered
a notice of reinstatement of the application for the
appointment of a
curator bonis
, for hearing on 15 April 2008. On that day the
matter was struck from the roll.
[12]
On 26 August 2009 Niehaus McMahon & Oosthuizen Attorneys issued
summons against the defendants under
the current case number. In the
particulars of claim attached to the summons, it is alleged that the
plaintiff, Ms Silo was suing
in her capacity as a
curator ad litem
to Siyabulela Mananga. In the action Ms Silo claimed an amount of
R4 100 000.00 (Four Million One Hundred Thousand Rand)
as
and for damages against the first defendant, alternatively the second
defendant, or the third defendant, the one paying the
other, to be
absolved. She also claimed interest on the amount of R1 018 720.80
from 20 February 2008 to date of payment.
She also sought costs
relevant to the application for the appointment of a
curator
bonis
.
[13]
In their plea, the first and second defendants admitted that an offer
made by the RAF was accepted
on behalf of Mrs Mananga, who is
identified therein as the mother of Siyabulela, in the amount of
R1 273 401.00 (including
the apportioned amount) together
with an undertaking in terms of
section 17
of the Road Accident Fund.
The value of the undertaking is recorded as R 656 288.00. They
further tendered an amount of R526 856.13
to the plaintiff.
[14]
On 16 September 2009, Mr Niehaus directed a letter to the
Attorney’s Fidelity Fund where he indicated,
inter alia
,
that the second defendant was interdicted from practice and an
application for striking him off was pending. He also indicated
that
the third defendant had been struck off the roll of attorneys.
[15]
It is common cause that the plaintiff’s erstwhile attorneys,
the second defendant herein, was interdicted
from practicing on 3
September 2009 and his name was struck from the roll of attorneys
during October 2010 for, amongst others,
allegations of
misappropriation of the plaintiff’s funds, as aforementioned.
[16]
A claim was submitted on behalf of the plaintiff to the
Attorneys Fidelity Fund in terms of section 26 of the Attorneys
Act
No. 53 of 1979. In support of this claim the plaintiff himself
deposed to an affidavit on 12 January 2010. There is some controversy
about this affidavit because Ms Silo disputed that Siyabulela was
capable of deposing to an affidavit.
[17]
On 25 March 2010 the parties held a Rule 37 Conference where it was
recorded that the plaintiff’s attorney,
Mr Niehaus had been
placed in possession of a copy of the first defendant’s client
office file, relating to the proceedings
in the action of
Silo v
Road
Accident Fund
. Mr Niehaus offered to copy the file at
the cost of the second and third defendants.
[18]
On 12 July 2012, the Attorneys Fidelity Fund made payment into the
trust account of
Niehaus McMahon Incorporated
in the amount of R 527 457.98. It further advised the
attorneys that the balance of the claim will be paid once the
plaintiff’s
attorneys had excussed against the defendants. It
is common cause that to date no funds have been paid to the plaintiff
or to Ms
Silo by Niehaus McMahon Incorporated who is now deceased.
[19]
During September 2016, an application was brought
by Ms Silo wherein the following relief was sought: that
the
action be removed from the roll of trial actions, that the action be
postponed
sine die
, that an application be brought for the
appointment of a
curator- ad- litem
and that costs of the
application
be borne by the respondents
opposing the application on an attorney and client scale. I will deal
with the issue of costs in respect
of this application later in this
judgment.
[20]
On 19 September 2016, Ms Silo deposed to an affidavit in support of
the relief mentioned above, and stated,
inter alia
, the
following:
‘
4.
I have no knowledge of the application brought in Magistrates Court
in Mdantsane for my appointment
as curator ad litem to Siyabulela
Mananga by the Third Defendant.
5.
I have for all practical purposes accepted that Application for my
appointment as the Curator-
ad- litem was approved, more so
specifically in the light thereof that I was cited as the Plaintiff
in the preceding action against
the Road Accident Fund.
6.
I respectfully submit that the Respondents have negligently, and/or
otherwise made a false
representation to the Road Accident Fund and
have persisted with same throughout the proceedings.
7.
The Respondents, have at no stage, informed me, nor my attorneys that
the Application for
my appointment as Curator- ad - litem was never
granted in the Magistrate’s Court in Mdantsane, nor for the
reasons of this
Application not having been granted.
8.
The aforementioned true status of the events with regard to the
Application for my appointment
as Curator- ad- litem only came to
light when my attorney instructed to search for this particular file
in the Archives at the
Magistrate’s Court as the presence of
this file has previously simply been reported as “missing”.
9.
I furthermore respectfully submit that the respondents herein have in
the High Court action
against the Road Accident Fund failed to
disclose the truth about the status of the Curator ad- litem and have
effectively continued
throughout the proceedings and in the
settlement of the claim with the Road Accident Fund conducted the
action and negotiations
with the Road Accident Fund
on behalf
of the non-existing person
.
10.
I respectfully submit that it is inevitable for a Curator -ad - litem
with proper status such as the
Advocate to be appointed to review the
entire process and such proceedings.
11.
It is my submission that Advocate Charles Wood of East London be
nominated to this position and to henceforth
be so appointed for
consideration of all the issues relevant and then for him to make a
recommendation with regard to the preceding
procedures in the High
Court in East London in respect of the action against the Road
Accident Fund and also the present action
against the present
Defendants.
12.
It is accordingly my submission that having regard to the recent
developments and the establishment
of
the lack of status of
Plaintiff,
that
this action is not ready for trial and
that it should be postponed.
13.
In view of the Defendants’ opposition to agree to a
postponement, it is submitted that a
punitive Costs Order
must be awarded against them.
’
(
my
emphasis).
[21]
Mr Niehaus also deposed to an affidavit, on the same day, where he
stated,
inter alia,
“
1.
I am an attorney for the Applicant.
2. The facts material
hereto are within my personal knowledge and I am as such authorized
to make this affidavit.
3. I have read
the Affidavit by Applicant and where the references to me are
applicable, I confirm the contents thereof.”
[22]
On 5 October 2016, Mr Niehaus deposed to an
affidavit giving a time line, he stated, amongst others:
“
5.2 At the time
when Summons was issued against the Road Accident Fund, Siyabulela
was already a major, aged 22 and
Mrs Silo was then
(incorrectly) cited as the curator – ad – litem on behalf
of Siyabulela
….
9. I furthermore
respectfully submit that all proceedings in the preceding action
against the Road Accident Fund be reviewed
by a curator ad litem and
that consultations be held with SIYABULELA and family as well as all
medical and expert witnesses, to
properly assess proceedings and to
report to Court with regard to such recommendations made and
the appointment of a curator
– ad litem to attend to the
aforementioned proceedings, and for the final appointment of a
Curator Bonis
.”
( my emphasis).
[23]
In a replying affidavit deposed to by Mr Niehaus on 16 October
2016, he stated:
“
6.
Because of the
misrepresentation by the Defendants with regard to the appointment of
the curator-ad-litem, and the lack of capacity
of Siyabulela Mananga,
no person had a mandate to settle any claim against the Road Accident
Fund or for that matter subsequently
thereto against Defendants.
It therefore remains
incumbent for a curator – ad -litem to be appointed as stated
and set out in previous affidavits.
7.
If I knew at the time when receiving instructions and considering the
papers, that the claim against
RAF contained a misrepresentation to
the effect that Silo was appointed as a curator- ad – litem, I
would have myself taken
instructions for the appointment of a curator
ad – litem. “
[24]
On 17 February 2017,
an application was
brought by Ms Silo, where she sought an appointment of Advocate Wood
as a
curator ad litem
. She sought costs against the
defendants herein. In that application and at paragraph 9 she
stated:
“
9.
I am advised and submit that I have the necessary locus standi
to bring this Application on behalf
of the patient.”
[25]
The second defendant opposed the application on the basis that Ms
Silo had no
locus standi
to institute the action and he raised
a point that this court was not clothed with jurisdiction since
Siyabulela resided in Mdantsane
and the cause of action arose from
Mdantsane. He contended that the Bhisho High Court had jurisdiction
to deal with the matter.
He stated in response to paragraph 9:
“
Ad Para 9
The Applicant does not
state on what basis is she having locus standi, and as aforesaid also
for reasons advanced supra the
Applicant has no locus standi in
this application
, what she does not state though is why other
siblings of the patient are not involved in this matter.”
[26]
The third defendant also opposed the application
for the appointment of a curator
-ad-
litem
contending
that Ms Silo had conceded in an affidavit deposed to on 19 September
2016 that she lacked status of being a plaintiff
in the action.
[27]
Beshe J
dismissed with costs the application for the appointment of a
curator
ad litem
, on,
inter alia,
the basis that the applicant had
not made out a case for the relief sought.
[28]
On 30 April 2020 the defendants’ objections in relation
to jurisdiction
and
locus
standi
were dismissed by
Hartle J and she ordered them to pay costs jointly and severally.
[29]
On 15 April 2021, Dolamo J granted an Order,
inter
alia,
appointing Advocate Johan Jacobus Bester as a curator-
ad
-litem
. The Court further made, amongst others, the
following orders which are relevant for the purposes of the issue at
hand:
“
1.2
pending the finalization of a Curator Bonis, to do all things
necessary to preserve the
movable and immovable assets of the
patient, which shall include the power to institute legal proceedings
and/
or ratify
and conduct same, where same may
be considered necessary in the interests of the patient, more
particularly:
1.2.1 to
assist the patient in the conduct of legal proceedings instituted in
this Court under case number EL295/2006
ECD 1195/2006, which action
was brought to recover damages under the Road Accident Fund Act of
1995 as amended, arising out of
injuries sustained in a collision
with a motor vehicle accident which occurred on 11 March 1996 and
further to assist him in considering
and, where appropriate accepting
offers of settlement;
1.2.2 to assist
the patient in determining whether the action referred to in
paragraph 1.2.1 hereof ought to be proceeded
with or whether the
action ought to be withdrawn;
1.2.3. in
the event of it being determined that the action under case number
EL295/2006 ECD 1195/2006 be withdrawn thereafter
reinstituted to
assist him in all things necessary in instituting such action and
bringing the matter to a conclusion;
1.2.4 to investigate
and consider the terms of the attorney and client mandate in the
aforesaid action;
1.2.5
to assist the patient in determining whether the present action
ought to be proceeded with or whether the action ought to be
withdrawn
and in any event to assist him in all things necessary to
bring this matter to a conclusion;
and
1.2.6 insofar as may
be necessary, in the interests of the patient,
to ratify or
reject with retrospective effect
, all steps and actions
taken on behalf of the patient in the present action and/ or the
action referred to in paragraph 1.2.1 above.”
(my
emphasis).
[30]
Upon his appointment, the curator-
ad-litem
gave instructions on 7 July 2021 in relation to the action that was
instituted in 2006 by Nompozolo & Gabelana Attorneys on
behalf of
the plaintiff against the RAF. He also gave instructions in relation
to the relevant action herein that was instituted
against the
defendants where Ms Silo was represented by Mr Niehaus. He
directed as follows: That, the Order of Dambuza J
(as she then was)
be rescinded; that a new action be instituted;
that
the current action under Case number (EL 785/09, 2685/09)
be withdrawn.
He was of the view that the first to third defendants should
be held liable for costs, however, he recognized that the issue of
costs is within the court’s discretion; he further expressed a
view that
“
I am further of the view that it was in
the best interests of the patient at the time, to institute the
current proceedings (even
though, without a valid mandate) and as far
as may be necessary, I ratify the mandate given in this regard
.”
(my emphasis). He expressed an opinion that the Road Accident
Fund should pay the costs for the appointment of the curator
ad
litem
and a subsequent
curator bonis
. He was also of the
view that the costs of any opposition should be paid by the parties
who opposed the said application.
The
costs issue
[31]
On 16 March 2023, at court, the plaintiff delivered a notice of
withdrawal of the action against the defendants.
There was no tender
of costs. Plaintiff and the first defendant reached agreement that
each party is to bear its own costs. The
second and third defendants
insisted that the attorney of record of the plaintiff, Mr Niehaus,
should bear the costs of the withdrawal
of the action due to his
allegedly reckless conduct in the manner in which he handled the
action. The respondents contended that
the plaintiff’s attorney
of record acted recklessly when he pursued an action knowing full
well that Ms Silo had no
locus standi
.
[32]
This court was called upon to determine the issue of costs only.
Plaintiff opposed the application. Ms Watt
appeared for the
plaintiff, Mr Poswa appeared for the first and second defendants and
Mr Metu for the third defendant.
Plaintiff’s
submissions
[33]
In argument, Ms Watt correctly conceded that by 19
September 2016, when the above quoted affidavit of Ms
Silo was
deposed to, it must have dawned on everyone, including the
plaintiff’s attorneys of record, that Ms Silo had no
locus
standi
to institute the action.
[34]
Ms Watt relied on the order issued by Dolamo J and
with specific reference to those orders that gave the
curator
ad
litem
the power to ratify all conduct that preceded his
appointment to the extent that such actions were in the interests of
the plaintiff.
[35]
She argued that the act of the curator, of ratifying the
actions of the plaintiff’s attorney of record actually
validated those actions, retrospectively. She argued that even where
the acts were taken on the instructions of Ms Silo who
had
no locus standi,
the ratification cured that. In this regard she relied on
Vereins-Und
West Bank AG v Veren Investments and Others
[2]
and
Smith
v Kwanonqubela Town Council
[3]
.
[36]
She further submitted that the effect of ratification is
retrospective
resulting in the same situation as if
authorization had been given beforehand. She blamed the defendants
for failing to give details
about Ms Silo and for such failure, she
argued, the court should hold them responsible for delays and costs
in the matter.
Second
defendant’s submissions
[37]
Mr Poswa on behalf of the second defendant
argued that the ratification would not extend to acts that
were
invalid. He argued that the plaintiff’s attorney of
record knew that Ms Silo lacked
locus standi
but he continued
to pursue the litigation despite such knowledge. On this basis alone,
he argued, this court should order him to
pay costs of the action
de
bonis propriis.
In his supplementary heads of argument, where he
addressed the ratification issue only, Mr Poswa submitted that in
spite of its
retrospective effect ratification does not detract from
rights acquired by other parties before ratification. In this regard
he
relied on
United Methodist Church of South Africa v
Sokufudumala
1989 (4) SA 1055
(O)
and
SA Allied
Workers Union v De Klerk
1990 (3) SA
425
(ECD).
[38]
He submitted that ratification is to correct a
procedural defect. An invalid act or an act that is
void ab initio
cannot be ratified. He relied on
Neugarten NO v Standard Bank
of South Africa 1989 (1) SA 797 (AD)
where ratification
was dealt with in the context where consent was required in
terms
of a statute,
and lack thereof before or at the time the loan
was made or the security provided was fatal to the validity of the
transaction.
[39]
He further submitted that the interpretation accorded by
the plaintiff to the Order of Dolamo J would have
an effect that the
court can bestow
locus standi
on litigation that was void from
the beginning. That interpretation, he submitted, would be contrary
to the jurisprudence of this
country that proceedings brought without
the necessary authority or authorization are
void ab initio.
He submitted that Ms Silo had no authority to act on behalf of the
plaintiff. Her actions are not only
void ab initio
but they
cannot be attributed to the curator under the guise of ratification.
To do so, he submitted, would prejudice the rights
that the
defendants had before ratification.
Third
defendant’s submissions
[40]
Mr Metu argued that there was no basis whatsoever for the plaintiff
to join the third defendant in the action because
he had no
instructions from the plaintiff whatsoever. When the third respondent
was included in the litigation which dragged on
for years, the
plaintiff’s attorney of record was on a frolic of his own and
should be held responsible for his actions.
He submitted that the
third respondent had indicated to the plaintiff’s attorneys
that the action should be withdrawn against
him but that fell on deaf
ears. He argued that there was no basis in law to have the
third defendant joined in the litigation.
The third defendant had
raised the issue of his joinder with Mr Niehaus who ignored it. On
this basis, he argued, the Court must
find that Mr Niehaus was
reckless and must accordingly order him to pay costs of the
litigation. In this regard he relied on
Sheshe
v Vereeniging Municipality
[4]
.
[41]
He submitted that Mr Niehaus acted recklessly and in this regard
relied on
South
African Liquor Traders Association and Others v Chairperson Gauteng
Liquor Board and Others
[5]
.
He submitted that the fact that the basis for the withdrawal of the
action stems from the lack of
locus
standi
on the part of Ms Silo, is reason enough to mulct the attorneys
representing the plaintiff with costs. He submitted that reliance
on
ratification was misplaced where there was lack of a valid mandate
and lack of
locus
standi
to institute the action.
Discussion
[42]
The costs that I have to decide relate only to the
action that has been withdrawn, Case No: 785/09 ECD 2685/09.
[43]
Rule 41 of the Uniform Rules of Court provides:
“
Withdrawal
,
Settlement, Discontinuance, Postponement and Abandonment
(1) (a) A person
instituting any proceedings may at any time before the matter has
been set down and thereafter by consent of the
parties or leave of
the court withdraw such proceedings, in any of which events he shall
deliver a notice of withdrawal and may
embody in such notice a
consent to pay costs, and the taxing master shall tax such costs on
the request of the other party.
(b) A consent to pay
costs referred to in paragraph (a), shall have the effect of an order
of court for such costs.
(c) If no such consent
to pay costs is embodied in the notice of withdrawal, the other party
may apply to court on notice for an
order for costs.”
[44]
Rule 41 (1) (c) finds application herein since no
costs were tendered by the plaintiff when the withdrawal
was sought.
The defendants seek a cost order against the plaintiff’s
attorneys of record. In terms of Rule 1 of the Uniform
Rules of
Court, a party is defined as: “‘
party’ or any
reference to a plaintiff or other litigant in terms, shall include
his attorney with or without an advocate,
as the context may
require”.
It appears therefore that the Rule makers were
mindful of the proximity that a legal representative has to his or
her client and
thus decided to include a representative to be a party
in the proceedings.
Did
the curator ratify lack of locus standi
[45]
In
Tulip
Diamonds FZE v Minister of Justice and Constitutional Development and
Others
[6]
,
the
Constitutional Court stated :
“
Standing is an
important element in determining whether a matter is properly before
a court. Our law accords generous rules for
standing that permit
applicants to bring lawsuits either on their own behalf or on behalf
of others. But these are not limitless.
A methodical and
thorough application of the rules of standing is necessary to ensure,
amongst other things that relief is being
sought by the appropriate
party”.
[46]
In
Four
Wheel Drive Accessory Distributors CC v Rattan NO
[7]
,
Schippers JA stated:
“
[7] The
logical starting point is locus standi – whether in the
circumstances the plaintiff had an interest in the relief
claimed,
which entitled it to bring the action. Generally, the requirements
for locus standi are these. The plaintiff must have
an adequate
interest in the subject matter of the litigation, usually described
as a direct interest in the relief sought; the
interest must not be
too remote; the interest must be actual, not abstract or academic;
and it must be a current interest and not
a hypothetical one. The
duty to allege and prove locus standi rests on the party instituting
the proceedings.
[8]
The rule that only a person who has a direct interest in the relief
sought can claim a remedy, is no more clearly expressed
than in the
judgment of Innes CJ in Dalrymple:
“
The general
rule of our law is that no man can sue in respect of a wrongful act,
unless it constitutes a breach
of a duty owed to
him by the wrongdoer, or unless it causes him some damage in law’.
(footnotes omitted).
[47]
The fact that the curator -
ad- litem
instructed that this
action be withdrawn is not consistent with the broad validation or
ratification given by the plaintiff’s
representatives to the
ratification of the conduct of the plaintiff’s attorney.
If
the action was instituted by someone who lacked standing as the
plaintiff contends, then why would it be necessary to withdraw
it
even though the curator had ratified an invalid mandate? The
curator
-ad -litem
was aware that
“r
atification” could not restore
locus standi
where there was none, hence he suggested a withdrawal of the current
action.
[48]
This is a distinguishing factor between this case and the
Smith
case
relied upon by the plaintiff. In that case Smith
raised the issue that an employee of the provincial
administration
, Watson lacked
locus standi
to institute an
application. Watson was duly appointed in terms of section 29 A
of the Black Local Authorities Act
102 of 1982 from 6 August
1993 to 30 November 1993 and then from 1 December 1993 until 31 May
1994. The second term was interrupted
by the repeal of the Black
Local Authorities Act. Any council or committee
established under the repealed act was to
continue to exist in spite
of the repeal. In the founding affidavit to an application
which claimed,
inter alia,
repayment of some of the
monies paid to Smith, Watson contended that his appointment had in
fact been extended but had not
yet been published due to the change
of government. There was also a letter that confirmed that
extension and the period
covered the date of the institution of the
application. The court found that section 28(1) of the Municipal
Ordinance 20 of 1974,
by necessary implication authorized an
appointment with retroactive effect. The objection based on
Watson’s
locus standi
was dismissed. These facts
are distinguishable because Ms Silo was never in the position that Mr
Watson was in , because
his authority was derived from
the provisions of an Ordinance.
[49]
In the Vereins
matter
at para12 page 429 the
Supreme Court of Appeal stated:
“
[12] ... Though
the general rule is that the means of payment must be determined by
agreement between the payer and payee, it is
clear that unilateral
conduct on the part of the debtor in purporting to effect payment, if
subsequently accepted by the creditor,
is effective to discharge the
debt. Thus, should the debtor unilaterally pay a stranger to the
contract, if the creditor later
ratifies and approves the action,
this constitutes a valid payment and is considered valid from the
moment of payment (and not
from the moment of ratification and
approval).”
[50]
What is apparent from the quotation, above, is that the debtor
and the creditor were both involved
in the ratification because they
each had rights that needed to be protected. In the
Smith
case
it appears that the enquiry does not end with ratification, it goes
beyond and the enquiry is what vested rights of the defendants
were
affected or prejudiced by the ratification? Harms JA in
Smith
at para [14] D-E stated:
“
A party to
litigation does not have the right to prevent the other party from
rectifying a procedural defect. Were it otherwise,
one party would
for instance not be entitled to amend a pleading, especially not
after the filing of a valid exception. The ratification
in the
present instance did not affect any substantive rights of Smith.”
[51]
The above quoted passage from the
Smith
decision, in my view,
is confined to procedural defects. The facts in the Smith’s
case show that Mr Watson had
locus standi
to institute the
action. There was a letter recording that authority had been
granted for the appointment of Mr Watson
as a commissioner of
the Town Council. Most importantly, the Transitional Council
discussed the case that had been instituted
by Mr Watson in full
and resolved to proceed with it. The facts that evince
authority and
locus standi
in the Smith’s case do not
exist at all in Ms Silo’s case.
[52]
In my view, the ratification of
the conduct of the plaintiff’s attorneys by the curator cannot
and does not extend to
lack of
locus
standi
on the part of Ms Silo.
The natural consequence of ratification is to validate an invalid
act. In the case where
locus standi
is lacking, the action is
void ab
initio
, a nullity and cannot be
validated. If it could be validated, then the
curator
ad litem
would have simply stepped
into the shoes of Ms Silo and continued with the litigation.
[53]
There are other difficulties with the plaintiff’s argument on
ratification. They are :
The curator could not be granted powers that
would affect decisions that were taken before he was even appointed
as a curator,
meaning decisions taken in 2009 ( when the action was
instituted ) when he, himself, was only appointed in 2021. That would
also
mean that Dolamo J’s order would have a retrospective
effect. Dolamo J did not record that his order would operate
retrospectively. He did not backdate the appointment of the
curator. To give his order and the powers of the curator
retrospective effect cannot be countenanced in a democratic state.
The powers given to the curator, if the plaintiff’s
interpretation
were to be correct, would be overbroad and
unconstitutional. The most crucial aspect of the purported
ratification is that it would
shield a legal practitioner from being
held responsible for his or her reckless conduct in handling
litigation to the prejudice
of, not only the patient but of the
defendants, who have been dragged to court on litigation that
continued for almost 14 years.
Such wide powers are not
envisaged in Rule 57 of the Uniform Rules of Court.
[54]
In
Blou
v
Lampert & Chipkin
[8]
,
the Appellate Division when dealing with trustees who had instituted
proceedings without
locus
standi
to do so stated :
“
This means that
they had no authority to represent. The insolvent estate in the
proceedings; and that, de jure, the insolvent estate
was not before
the Court, and did not litigate, and cannot be ordered to pay costs.
The right persons to be mulcted in costs
for the abortive application
are the trustees who purported to bring it on behalf of the insolvent
estate without right or authority
to do so. This seems to me
logically inescapable.”
[55]
There is merit in the arguments made by Mr Poswa and Mr Metu that
where a person who purported to have
locus
standi
to institute the action did not have it in the first place, that
cannot be ratified.
[56]
I need to state that the order of Dolamo
J only relates to those decisions that are capable of being ratified
in law. Any
interpretation that seeks to extend it to matters that
cannot be ratified, would be a distortion of the order. It
follows
that the curator can only ratify decisions or actions that
are consistent with that order. Ratification cannot be used as a
blanket
amnesty to validate even decisions that are not capable of
being ratified.
That is certainly not the intention conveyed
by Dolamo J’s order. I accordingly find that Ms Silo’s
lack of
locus standi
is not capable of being ratified hence
even the curator instructed a withdrawal of the action. It follows
that the plaintiff’s
submissions in this regard, must fail.
Are
the defendants to blame for Ms Silo’s lack of locus standi in
these proceedings?
[57]
It is not clear on the record the basis
upon which the
curator -ad- litem
found that where the attorneys acted “without
a
valid mandate
” by, amongst
others, instituting litigation in the name of someone who had
no
locus standi
, was in the patient’s
interests. Ms Silo, according to the affidavits deposed to by
her, never concealed her relationship
to Siyabulela. She
further disclosed who the parents of Siyabulela were, that they were
alive and what their financial position
was. A legal representative,
acting prudently, would have investigated the reasons why an aunt,
instead of the mother of Siyabulela
was giving him a mandate. During
March 2010 , Mr Niehaus had in his possession the first defendant’s
file for the plaintiff.
It is as a result of this failure to
ascertain the true facts that the void litigation continued for
almost 14 years. The
defendants have urged the court to order
Mr Niehaus to pay costs for the entire action including all reserved
costs.
[58]
It escapes me how the institution of a new action by Mr Niehaus in
2009 under the current case number, as
he did, could be attributed to
the alleged dishonest previous conduct of the second and third
defendants. It is Mr
Niehaus who had put up his
mandate from Ms
Silo. He must have interacted with Ms Silo
directly. He had an obligation to satisfy himself that
indeed Ms Silo had
been appointed as a curator
ad litem.
[59]
The fact that he discovered later that Ms Silo lacked
locus
standi
cannot be attributed to the defendants. Most importantly,
it was his responsibility to ensure that the person who was going to
act in the plaintiff’s stead had authority to do so. He assumed
responsibility for this litigation the moment he accepted
instructions from Ms Silo.
[60]
It is apparent from the record that it is the
first and second defendants who introduced Ms Silo as a plaintiff
on
behalf of Siyabulela. They attempted, together with the first
defendant, to have Ms Silo, on at least two occasions, as
aforementioned,
appointed as a
curator ad litem
. If Mr Niehaus
had carried on with that case as he found it from the defendants, the
arguments made by Ms Watt blaming the defendants
for the void
litigation would have merit.
[61]
However, when Mr Niehaus was appointed as an
attorney of record he instituted a fresh or new action in the
name of
Ms Silo with a different case number, namely,
Case
No: EL 785/09, ECD 2685/09 against the defendants.
One
would have expected that when he was given the mandate he would have
satisfied himself that Ms Silo had authority to act on
behalf of
Siyabulela. He ought to have satisfied himself that the person
giving him a mandate had authority to do so. That
is what is expected
of every legal practitioner. If he, for some reason, believed
that she had authority, when Ms Silo stated
under oath in her
affidavit on 19 September 2016, that she lacked authority, ( to which
Mr Niehaus filed a confirmatory affidavit)
then at that point, Mr
Niehaus ought to have taken steps to withdraw the action against the
defendants. He failed to do so
but continued to keep them as
parties to an action that he knew was void, for lack of legal
standing .
[62]
As soon as an attorney has accepted a mandate the relationship of
attorney and client is established
[9]
.
The attorney is then bound to give the client the benefit of his
skill and judgment and should continue to act in the matter until
its
conclusion unless there is good cause for termination of the
relationship
[10]
.
Why
should the attorney pay costs de bonis propriis?
[63]
In
determining the issue at hand it is crucial to look at the conduct of
the plaintiff and his attorneys of record before the withdrawal
of
the action and assess whether it played any material part in adding
to the defendants’
costs
[11]
.
[64]
Professor Digby Koyana, once wrote, in an article entitled:
“
Costs de
bonis propriis :
Attorneys
and Advocates beware
!
[12]
:
“
Turning
specifically to legal practitioners, the rule is that costs are
awarded against erring attorneys in reasonably serious cases,
such as
those involving dishonesty, willfulness or negligence to a serious
degree. This rule was stated by the Appellate Division
in Machumela v
Santam Insurance Company Ltd
1977 (1) SA 660
(A). This case was
applied in Waar v Louw
1977 (3) SA 297
(O) where Steyn J warned that
mistakes that an attorney makes in litigation, which result in
unnecessary costs, should not lightly
be overlooked.”
[65]
In
Khan
v Mzovuyo Investments ( Pty) v Ltd
[13]
,
the Court referred to the principle of awarding costs de
bonis
propriis
as
summed up by Innes CJ in
Vermaak’s
Executor v Vermaak’s Heirs
[14]
as
follows:
‘
The whole question
was very carefully considered by this Court in Potgieter’s case
(1908 TS 982)
, and a general rule was formulated to the effect that
in order to justify a personal order for costs against a litigant
occupying
a fiduciary capacity his conduct in connection with the
litigation in question must have been
mala fide
,
negligent
or
unreasonable
.”
[66]
The plaintiff argued that the defendants
protracted the litigation by opposing the applications for a
curator
-
ad-litem.
The truth of the matter is that the plaintiff sought costs against
the defendants whether they opposed the applications or not.
For example, in the Notice of Motion dated 17 September 2016, the
plaintiff sought the following order:
“
4.
That costs of this Application be borne by the relevant Respondents
opposing this application on an attorney / client scale.”
However,
in the affidavit annexed thereto at paragraph 14.3, the following
orders are sought:
“
14.3
That an Application be brought for the appointment of a Curator-
ad–Litem;
14.4
That costs of this Application be borne by the Respondents on an
attorney/ client scale.”
[67]
This application related to the appointment of Mr
Wood as a
curator-ad-litem
. Any defendant who did not
react to the application ran the risk of being mulcted in
costs. To the extent that
the applications for the appointment
of the curator were brought by Ms Silo, the defendants were justified
in raising lack of locus
standi
, as they did. As it
turned out even, Ms Silo and Mr Niehaus, as demonstrated above,
acknowledged the fact that she had no
locus standi
to
institute the action against the defendants.
[68]
The second and third defendants had raised the
issue of Ms Silo’s lack of
locus standi,
clearly and
unambiguously
.
They have been vindicated by the withdrawal of
the action due to lack of
locus standi.
Of importance is that
Ms Silo herself acknowledged that fact but Mr Niehaus persisted with
the action against the defendants. Such
conduct warrants censure from
this Court. It was reckless, inconsiderate and unreasonable and did
not advance any of Siyabulela’s
interests.
[69]
Mr Niehaus was advised by the curator as early as 7
July 2021 that he should withdraw the action. There is
no explanation
why he did not heed counsel from the curator
ad litem
much
earlier and withdraw the action. Ms Watt submitted that, the
defendants had, throughout the proceedings against the RAF
cited
Ms Silo as the plaintiff and have settled and finalized the
claim in her name. That may be so but that does not
detract from the
fact that Mr Niehaus intended to have Ms Silo appointed as a curator
ad
litem in circumstances when, he, together with Ms Silo,
knew that she lacked standing in this action
.
[70]
In a letter he addressed to the representatives of the
Defendants on 6 June 2022, at para 4.1, Mr Niehaus stated:
“
4.1 It must
also furthermore be accepted that the late Ms Silo was never
representing the injured in her personal capacity and can
never as
such be held liable for any costs.
5.3 This Honourable
Court is respectfully reminded that Ms Silo (now late) was never
properly and correctly appointed as Curator
– ad litem and
therefore never had any status in the action.”
(
my
underlining).
[71]
Again, this statement indicates that by 6 June 2022, Mr Niehaus still
acknowledged that Ms Silo had no standing
in the action. That would
have been an opportune time to withdraw the action. Surely, he was
not expecting to proceed with the
litigation if Ms Silo had no legal
standing in the action, as he stated. He was also alive to the fact
that Ms Silo would not be
liable for costs. The question is who must
be liable for costs in circumstances where he had pursued litigation
against the defendants
in the name of someone “
who never had
any status in the action”?
I find that his actions in
this regard were reckless and did not advance the interests of the
plaintiff.
[72]
These statements are recorded in circumstances
where Ms Silo was a plaintiff in the action that was instituted
by
him and not by the defendants. The delay in taking and
implementing the advice of the
curator-ad-litem
was long and
any inconvenience to the defendants could have been avoided. These
defendants were legally represented and those
costs could have been
avoided. They had paid the ultimate price for their alleged wrongs in
relation to the action against the
RAF. Their names were removed from
the roll of attorneys and thus barred from practising. The plaintiff
in this case has brought
to the fore all the wrongs committed by the
defendants in the RAF action. Their wrongs, in my view, do not
justify the conduct
of Mr Niehaus in this action. The defence
based on
locus standi
which was raised by the defendants had
merit. The defendants should be entitled to costs from the time
Mr Niehaus knew of
lack of standing on the part of Ms Silo.
[73]
The question that needs consideration is whether Mr Niehaus should be
held liable for all the defendants’
costs of the litigation,
particularly, from 19 September 2016 to 16 March 2023? That will be a
period of some seven years.
[74]
In the exercise of its discretion this court takes cognizance of the
fact that it is in the nature of litigation
that parties get carried
away in protecting their respective positions in the litigation. That
is apparent from this record. The
tensions between the parties are
palpable. This court is in a different position because it works from
a cold record. In my view,
mulcting Mr Niehaus with costs from 19
September 2016 (the date of acknowledgement of lack of locus standi
by Ms Silo) up to and
including 16 March 2023 , would be onerous. It
would entail a detailed analysis of all events in the action to which
this court
is not privy since only a few bundles were placed, by
agreement, before it for the purposes of the hearing on costs. It
would be
unfair to simply look at the period and impose it, without
the necessary context.
[75]
The time when the
curator
ad litem
intervened by issuing the
instructions that this action be withdrawn, is a useful guide to this
court in terms of determination
of a reasonable period, for the
payment of the second and third defendants’ costs by Mr
Niehaus,
de bonis propriis.
I
shall allow a reasonable period of five (5) days after the 7 July
2021 as a period within which Mr Niehaus would have reasonably
carried out that instruction. By 15 July 2021, he ought to have
complied with that instruction especially after he had held a meeting
with the parties who indicated that they were not able to entertain
the issue of costs before the withdrawal of the action.
A
reasonable period for which he should be held liable for costs de
bonis propriis
is from 15 July 2021 up to and including 16 March 2023, being the
date when the action was withdrawn and the date of the opposed
hearing on costs.
Such
costs shall include all reserved costs within that period, if any.
I
accordingly make the following Order:
[76]
1. The attorney, Mr Niehaus, is
directed to pay,
de bonis propriis
, costs of the second and
third defendants in relation to the action under Case No:
. EL 785/
09 ECD 2685/09:
which has since been withdrawn, from the period
15 July 2021 up to and including 16 March 2023, together with costs
occasioned by
the opposed hearing of 16 March 2023. Such costs shall
include all reserved costs within that period, if any.
T.V
NORMAN
JUDGE
OF THE HIGH COURT
Matter
heard on:
16 March 2023
Judgment
Delivered on:
25 April 2023
APPEARANCES:
For
the PLAINTIFF:
ADV
WATT
Instructed
by:
NIEHAUS
McMAHON INC.
43
Union Avenue
Selborne
EAST
LONDON
TEL:
043 721 3322
FAX:
043 721 3331
EMAIL:
nm@niehausmcmahon.co.za
For
the 1
ST
DEFENDANT :
MR
MEYERS
Instructed
by:
ENZO
MEYERS ATTORNEYS
121
Devereux Avenue
Vincent
EAST
LONDON
For
the 2
ND
DEFENDANT:
ADV
POSWA
Instructed
by:ENZO MEYERS ATTORNEYS
121
Devereux Avenue
Vincent
EAST
LONDON
For
the 3
RD
DEFENDANT:
MR
METU
MP
NCAME ATTORNEYS INC.
No.
7 Linden Road
Cambridge
EAST
LONDON
TEL:
043 050 4088
EMAIL:
mncame@mpna.co.za
REF:
MNcame/Civ/MG-1906-9
No
Appearance for the
4
th
DEFENDANT:
THE
REGIONAL MANAGER
ROAD
ACCIDENT FUND
4
TH
Floor, Metropolitan Building
cnr
Druly Lane & caxton Street
EAST
LONDON
REF:
92/111116/09/0
[1]
Article:
Justice delayed is justice denied”. Both authors are from
the Australian Centre for Justice Innovation, Monash University,
article published in
October
2014: Victoria University Law and Justice Journal 4(1)
DOI:10.15209/vulj. v4i1.61.
[2]
2002 (4) SA 421 (SCA).
[3]
1999(4)
SA 947 (SCA) at para10.
[4]
1951(3) SA 661 (A)
[5]
2009 (1) SA 565 (CC).
[6]
2013[10] BCLR 1180 CC para 1.
[7]
2019 (3) SA 451
(SCA) (26 September 2018) para 7&8.
[8]
1973(1) SA I (AD) at page 14 para D-E.
[9]
Herbstein & Van Winsen: The Civil Practice of the High Court of
South Africa, 5
th
Edition, Volume 1 page 284
[10]
Hills
v Taxing Master
1975 (1) SA 856
(D) at 859 E-F.
[11]
Nkosi
v Caledonian Insurance Co
1961 (4) SA 649
NPD at 658 para G-H.
[12]
De Rebus, November 1997 at page 767.
[13]
1991
(3) SA 47
Tk GD at paras E-F.
[14]
1909 TS 679
at 691.