Summary of Judgment

1. Introduction

This matter concerned an urgent interlocutory application to compel the delivery of documents and file contents relating to a Road Accident Fund claim brought on behalf of a litigant described in the judgment as “the patient”, Tshepo Tshalete. The application was brought in the High Court of South Africa, Gauteng Local Division, Johannesburg, and was determined by Makume J.

The applicant, Mr Johannes Christiaan Prinsloo N.O., acted in his capacity as the duly appointed curator ad litem to the patient. The first respondent, Mr Sydwell Mosungwa, was a legal practitioner and the former curator ad litem to the patient. The second respondent, Gqwede Attorneys, was the firm of legal practitioners that had acted as the patient’s attorneys of record on the first respondent’s instructions.

The procedural history included a prior order granted by Manoim J on 3 May 2022, which terminated the first respondent’s appointment as curator ad litem. Following the first respondent’s removal and the termination of the second respondent’s mandate, the applicant appointed Bove Attorneys as the patient’s new attorneys of record and sought to obtain the complete litigation file to continue prosecuting outstanding aspects of the patient’s Road Accident Fund claim.

The dispute’s subject matter was whether (and from whom) the applicant was entitled to compel handover of the file contents, including medico-legal reports and financial documentation, and whether the application was urgent, in circumstances where the claim for future loss of earnings remained unresolved and the applicant contended that the respondents were withholding vital documents.

2. Material Facts

It was common cause that the applicant was the appointed curator ad litem to the patient at the time of this application, and that the first respondent had previously served as curator ad litem after being appointed on 5 January 2017, with his services later terminated by court order on 3 May 2022. It was also undisputed that the second respondent had acted as attorneys of record for the patient on the instructions of the first respondent, and that their mandate had been terminated, with Bove Attorneys thereafter acting for the patient on the applicant’s instructions.

It was further not in dispute that the second respondent had lodged a claim against the Road Accident Fund and had received payment for general damages in the amount of R600 000.00 on 7 June 2017. The judgment records that the patient’s claim for future loss of earnings had not been settled, and that the applicant and the new attorneys of record contended they were unable to prosecute the claim further without access to the respondents’ documents and information.

Chronologically, the applicant instructed Bove Attorneys to collect the files from both respondents. The second respondent informed Bove Attorneys on 5 June 2022 to collect the files on 10 June 2022, but on that date an incomplete file was delivered. The second respondent indicated in writing that certain documents (including expert notices) would follow later as they were with a costs consultant preparing the second respondent’s bill of costs. The second respondent also stated in correspondence dated 10 June 2022 that “the file was settled with all heads of damages i.e. general damages, future medical treatment and loss of earnings.”

Bove Attorneys responded on 10 June 2022 noting that what had been provided appeared to be documents comprising the removal application before Manoim J, and warned that an urgent application would follow if the required documents were not handed over as agreed and as ordered by Manoim J. Later on 10 June 2022, the second respondent emailed to say that the balance of the documents was available for collection. On 13 June 2022, an incomplete set of documents was again delivered.

As to the first respondent, he initially remained silent during the exchanges between Bove Attorneys and the second respondent. On 13 June 2022, after being served with the notice of motion, the first respondent wrote to Bove Attorneys stating that he did not have the patient’s file and suggested that copies could be obtained from the instructing attorneys (the second respondent), and queried why he had been cited.

A material disputed fact concerned who was in possession of the relevant documents. The first respondent alleged that he had handed everything over to the second respondent. The applicant relied on earlier correspondence in which the first respondent had indicated (in January 2022) that the original file was with counsel; the first respondent explained that he meant the file relating to the application for his removal as curator ad litem. In his answering affidavit, the first respondent stated that after recommending acceptance of the Road Accident Fund offer, he returned the medico-legal reports (which he described as the only documents he had received) to the second respondent.

The court treated the second respondent’s stance as material: the first respondent’s allegations that he had handed the file contents to the second respondent were brought to the second respondent’s attention, yet the second respondent did not participate in the hearing and did not dispute the first respondent’s version.

3. Legal Issues

The central questions were whether the applicant had established a basis to compel the respondents to hand over the contents of their files relating to the patient’s Road Accident Fund claim, and in particular whether either or both respondents were legally obliged to deliver the documents to enable the continued prosecution of the unresolved portion of the claim.

The dispute required the court to determine, as a matter of application of law to fact, whether the first respondent was in possession of documents and therefore capable of compliance with a compulsion order, and whether the second respondent was entitled to retain the file (including on the basis of a lien) notwithstanding termination of the mandate.

There was also an evaluative component relating to the urgency of the relief sought under Rule 6(12), and whether the conduct of the second respondent warranted an adverse costs order on an attorney-and-client scale de bonis propriis.

4. Court’s Reasoning

The court approached the matter from the standpoint that a curator ad litem occupies a role akin to an ad hoc guardian and owes a fiduciary duty to act solely for the benefit of the patient. In this regard the court relied on the statement of principle in Martin N.O. v Road Accident Fund 2000 (2) SA 1023 (W) at 1036, which describes the curator ad litem’s duty as representing and protecting the minor’s interests in the pending case as a prudent parent would, with duties ending upon completion and final settlement of the case.

The court further accepted as “trite law and common practice” that where an attorney’s mandate is terminated, the attorney has a legal duty to hand over the client’s file to new attorneys, provided there is an undertaking that the former attorney’s fees up to that stage will be paid. The judgment contrasted this with other matters where an attorney may retain a file by asserting a lien until fees are paid, but the court noted that in Road Accident Fund claims it is usual for the file to be released upon an undertaking. In the present matter, the applicant had tendered that the costs of both respondents would be taxed and paid upon receipt of payment from the Road Accident Fund.

When evaluating whether relief should be granted against the first respondent, the court considered the inconsistency that the first respondent had earlier indicated (around January 2022) that the file was with counsel, but later stated he had handed everything to the second respondent. The court also noted the distinction between the functions of the first respondent as curator ad litem and the second respondent as attorneys of record, and considered the first respondent’s answering affidavit, where he described having received only medico-legal reports and returning those to the second respondent.

A significant factor in the court’s assessment was that the first respondent’s version (that he had handed the contents of his file to the second respondent) was brought to the second respondent’s attention and was not disputed, with the second respondent electing not to appear. The court regarded this as lending credibility to the first respondent’s account. Although the court expressed a view that the first respondent may have acted negligently in carrying out obligations as curator ad litem, it nonetheless concluded that the first respondent should be given the benefit of the doubt on possession and that, on the evidence before it, the first respondent was not in possession of documents such that a compulsion order against him would be appropriate. The application against the first respondent therefore failed.

In relation to the second respondent, the court found the position materially different. The correspondence between Bove Attorneys and the second respondent indicated that the second respondent was in possession of the file and that, despite undertakings and arrangements, the second respondent delivered incomplete documents on multiple occasions. The court held that because the second respondent’s mandate had been terminated and an undertaking to pay fees had been made, the second respondent had no right to retain the file. The court further found that withholding the documents was not in the patient’s best interests. On that basis, the court found both that the matter was urgent and that the applicant had made out a case for the relief sought against the second respondent.

The court’s reasoning also informed its costs discretion. In light of the second respondent’s conduct and failure to act in the patient’s interests, the court made an attorney-and-client costs order against the second respondent de bonis propriis.

5. Outcome and Relief

The court held that the application was urgent and compliant with Rule 6(12) read with the applicable Practice Directive of the division. The application against the first respondent was dismissed, with costs on a party-and-party scale.

The application against the second respondent was granted. The second respondent was ordered to hand over to the Sheriff, upon production of the order, the contents of the files relating to the patient’s Road Accident Fund claim, together with specific categories of documents including medico-legal reports, medical reports relating to pre-accident condition, school reports, the fees agreement, proof of payments received from the Road Accident Fund, invoices rendered to the patient’s mother, invoices from service providers relating to disbursements, proof of payment to the patient’s mother in relation to general damages, and copies of any reports submitted by the first respondent to the second respondent and to the court (if any) regarding the curatorship.

The second respondent was ordered to pay the applicant’s costs of and incidental to the application on the scale as between attorney and client de bonis propriis.

Cases Cited

Martin N.O. v Road Accident Fund 2000 (2) SA 1023 (W).

Legislation Cited

No legislation was expressly cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 6(12).

Uniform Rules of Court, Rule 57.

Held

The court held that the applicant, as newly appointed curator ad litem, required access to the patient’s litigation documents to prosecute the outstanding Road Accident Fund claim and that, where a former attorney’s mandate has been terminated and an undertaking to pay fees has been provided, the former attorney has no basis to withhold the client file.

On the evidence, the court accepted that the first respondent was not shown to be in possession of documents capable of delivery and accordingly dismissed the application against him with party-and-party costs. In contrast, the court found that the second respondent was in possession of the relevant file, had no right to retain it given the undertaking to pay costs, and was not acting in the patient’s best interests. The court therefore compelled the second respondent to deliver the file contents and ancillary documentation to the Sheriff and granted a punitive costs order against the second respondent on an attorney-and-client scale de bonis propriis.

LEGAL PRINCIPLES

A curator ad litem occupies a protective role toward the patient and bears a fiduciary obligation to act solely for the patient’s benefit in relation to the litigation for which the curator is appointed, as described in Martin N.O. v Road Accident Fund 2000 (2) SA 1023 (W) at 1036.

Where an attorney’s mandate has been terminated, it is accepted in practice (and treated in the judgment as trite) that the attorney must hand over the client’s file to successor attorneys once an undertaking is provided to have outstanding fees taxed and paid, particularly in the context of Road Accident Fund claims. While an attorney may in some contexts assert a lien over documents until payment, the court applied the principle that an undertaking to pay removes any justification for withholding the file in circumstances such as those before it.

Urgent relief under Rule 6(12) may be granted where the withholding of litigation documents prevents the proper continuation of pending proceedings and thereby prejudices a vulnerable litigant represented through a curator ad litem, particularly where the conduct impedes the prosecution of an unresolved head of damages.

A punitive costs order on an attorney-and-client scale de bonis propriis may be warranted where a legal practitioner or firm, after termination of mandate and in the face of an undertaking to pay fees, persists in withholding a client’s file and thereby fails to act in a manner consistent with the client’s interests in ongoing litigation.