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[2022] ZAMPMBHC 3
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N.M obo A.M v Van Zyl N.O and Others (1365/2020) [2022] ZAMPMBHC 3 (18 January 2022)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE
NO: 1365/2020
REPORTABLE:NO
OF INTEREST TO OTHER
JUDGES: YES
REVISED: YES
18/01/2022
In
the matter between:
N
M[....]2 obo A[....]
M[....]
Applicant
and
JACOB
ALBERTUS VAN ZYL
N.O.
First Respondent
JEANNE
HELENE RABIE
N.O.
Second Respondent
MASTER
OF THE HIGH COURT: MBOMBELA
Third Respondent
JUDGMENT
MASHILE
J:
INTRODUCTION
[1]
T
his application traces its genesis to a court
order dated 31 May 2019 by which this Court made a capital award of
an amount of R17.8
Million, directed that the amount be protected by
the formation of a trust and appointed the Second Respondent as a
trustee. The
award was in respect of a damages claim following a
finding by this Court that the Applicant’s daughter, A[....]
M[....]
(“the minor child”), suffered cerebral palsy that
left her physically and brain challenged due to the negligent conduct
of the personnel of the hospital facility under the control of the
MEC for Health: Mpumalanga. A trust named A[....] M[....] Trust
(“the
Trust”) was subsequently formed as per the direction of the
court. The minor child is the only beneficiary of
the Trust.
[2]
The Applicant now applies to this Court to remove the Second
Respondent as a trustee
of the Trust. Additionally, the Applicant
seeks that she, her husband (“M[....]”), her attorney of
record and an accountant
and tax practitioner be appointed as
trustees of the trust. As an ancillary matter to the aforegoing, the
Applicant also pursues
relief that the trustees proposed by her be
exempted from furnishing security to the Master of the High Court.
The Second Respondent
opposes the application for her removal.
Furthermore, she also objects to the appointment of the trustees
suggested by the Applicant
and that if so appointed, they be excused
from providing security.
[3]
The Second Respondent has not only opposed the application for her
removal as a trustee
but has launched a counter application wherein
she wants this Court to authorize her to bring an application before
this Court
limiting or ending or putting in abeyance the parental
authority and rights of the Applicant and M[....]. In her application
for
the removal of the Second Respondent as a trustee, the Applicant
makes various allegations whose objective is to demonstrate that
the
Second Respondent is not acting in the best interest of the minor
child. Similar accusations meant to show that the Applicant
and
M[....] Are not acting in the best interest of the minor child are
thrown back at them.
[4]
The Second Respondent wants the court to direct that the minor child
be immediately
admitted to Butterfly Haven, a facility situated in
Johannesburg, for three months. The three-month admission period will
be utilized
to evaluate, treat and determine future treatment regime
for the minor child. The Second Applicant further applies that a
curator ad litem
be appointed for the minor child to
investigate and report to the court on the limitation or termination
or suspension of the parent’s
parental rights and authority and
the appointment of
a curator ad personae
.
FACTUAL MATRIX
[5]
It is anomalous that the parties persist to cite the First Respondent
as a party to
these proceedings whereas both of them are now aware
that as a result of his inability to provide security to the
satisfaction
of the Third Respondent, his appointment could not be
consummated. To avoid possible further confusion, where mention of
respondents
is made in the papers of both parties, I shall regard it
as reference to the Second Respondent. In this judgment the
Respondent
shall mean the Second Respondent unless the context
demands the inclusion of the Third Respondent in which case I shall
refer to
them as such.
[6]
The court order to which I have made reference in Paragraph 1
supra
was granted on 31 May 2019. The court directed that an amount of
R17.8 million be awarded to the minor child and that the Trust
whose
chief object would be the control and administration of the capital
amount on behalf of the minor child be formed. The letters
of
authority in terms of which the Respondent was authorised to act as
trustee of the Trust was issued on 25 October 2019. The
trust funds
were paid to the bank account of the trust on 6 November 2019.
[7]
It is common cause that neither the respondent, the trustee of the
Trust, nor the
case manager, with whom she works closely, are medical
experts and that as such, they are not entitled to determine the
patient's
future treatme
n
t
trajectory. For that reason, the Respondent reasoned that it was
vital that an action plan for the minor child’s future
medical
treatment be compiled by medical experts. The action plan would serve
as a basis for the following:
7.1
Preparation of a budget for the trust;
7.2
Calculation of future medical expenses in order to –
7.2.1 budget for the
rental of a house;
7.2.2 budget for the
purchase of a motor vehicle;
7.3
allocate specified amounts to determined medical expenses;
7.4 how
to invest surplus capital to allow for capital growth to occur.
[8]
On 9 September 2019 M[....] indicated that the Applicant and he agree
to the minor
child’s treatment. On 16 September 2019, a meeting
of everyone involved was held at the offices of VZLR Attorneys as a
result
of the Applicant and M[....] still having many questions. It
was at that meeting that the Applicant and M[....] agreed to have the
minor child admitted to a facility in Johannesburg. On 25 September
2019, the Applicant, grandmother of the minor child and the
minor
child were transported to the facility where the minor child was to
be place. On arrival at the facility, the Applicant refused
that the
minor child be admitted as previously arranged. On 6 November 2019,
Ms Lejara, the case manager, the Applicant and M[....]
discussed and
agreed that the minor child would be placed at a different facility,
Butterfly Haven in Johannesburg.
[9]
It was planned that the placement would occur on 1 December 2019 and
that the Applicant
would accompany the minor child. The plan foiled
because the Applicant and M[....] wanted the minor child to spend
Christmas with
them. When the placement arranged for 1 December 2019
could not be executed, the Respondent agreed with the case
manager (“Ms
Lejara”) that during the period December
2019 to January 2020 the dietician and the occupational therapist
would perform
a short term needs assessment for the minor child. It
was further arranged that the occupational therapist would
subsequently provide
the Applicant with a treatment plan to increase
the strength of the minor child during that period as well as a pain
relief programme.
Additionally, Ms Lejara was to arrange delivery of
food, milk, supplements, nappies and toiletries to the minor child.
[10]
The Applicant and M[....] refused that a caregiver be appointed.
Their attitude was that the
Respondent must send the doctors to treat
the minor child in Mbombela. In a WhatsApp message the Applicant and
M[....] request
the bank statement of the Trust because they want to
see what was paid to the trust and how much was spent thus far. On 26
November
2019, the request is repeated in their attorney’s
letter addressed to the Respondent. Furthermore, the attorney adds
that
the Applicant is not willing to agree to the minor child's
placement in a Johannesburg facility.
[11]
It appears that in the letter of the attorney to the Respondent, the
Applicant and M[....], to
the extent that, they regard sending
experts from Johannesburg to treat the minor child in Mbombela as
improvident, are repudiating
their earlier decision of 25 November
2019 to do exactly the opposite. In her letter of 26 November 2019 to
the Applicant, the
Respondent threatens the Applicant and M[....]
that unless they ceased being obstructive to her discharge of her
fiduciary duties
towards the Trust by their refusal to work with her,
she would consider approaching this Court for relief. The Respondent
in that
letter also denies that she sent experts to consult or treat
the minor child in Mbombela and points out that it was in fact a
suggestion
of the Applicant to do so.
[12]
The Respondent reiterates in that letter that the minor child should
be admitted to a facility
in Johannesburg for 3 months. She states
further that the Applicant’s refusal offends her earlier
agreement to such an arrangement.
She records further that she worked
on the understanding that the Applicant and M[....] had agreed and
recognised the need that
the minor child should be admitted to a
Johannesburg based facility. In her letter to the Applicant’s
attorney, she explains
that she never intended to move the minor
child to Johannesburg on permanent basis albeit that the plan of
action would be performed
in Johannesburg.
[13]
The attorney of the Applicant in his letter to the Respondent
reiterates the stance of the Applicant
and M[....] that there are
properly qualified experts in Mbombela to treat
the minor child. This assertion is disputed
by the Respondent who points out that such claim is unsustainable in
the absence of
any facts in support of the contention. In a follow up
letter of 27 November 2019, the attorney of the Applicant states
further
that the Applicant and M[....] have informed him that it was
possible to find a care facility in Mbombela. The attorney goes on
to
enquire from the Respondent if indeed such facility was available in
Mbombela.
[14]
The difference of opinion that surfaced on 25 November 2019
notwithstanding, Ms Lejara proceeded
to arrange to have the minor
child evaluated by Mbombela based StepMed- therapists as per the
instructions of the Respondent. The
arrangement was that the
occupational therapist, the speech therapist and the physio therapist
would assess the minor child on
6 December 2019 and then compile a
report to be made available on 13 December 2019 with a treatment plan
for the patient to be
applied throughout December 2019. As backup,
the therapists had arranged for the driver of the StepMed practice to
be available
to collect the minor child in case the therapists
struggled with the minor child’s home environment.
[15]
The Applicant showed lack of interest in the treatment programme
prepared for December 2019 as
a result of which the Respondent
cancelled
the
arrangements to avoid being extravagant with the resources of the
Trust. Despite having been advised by the Respondent that
Ms Lejara
was available to meet during December 2019 with both the Applicant
and M[....] to discuss the medical needs of the minor
child, the
Applicant did not contact Ms Lejara during December
2019. Ms Lejara phoned the Applicant on 9
January 2020 to arrange for the implementation of the recommendations
made by the StepMed
therapists. She arranged consultations with the
therapists for 27 January 2020. When the Applicant complained that
she could not
afford the travelling costs, she arranged that those
costs be met by Fernandes. The Applicant then advised Ms Lejara to
stop all
plans as she and M[....] were seeking legal opinion.
[16]
On 25 January 2020, the Respondent wrote to the Applicant’s
attorney advising him that
she was planning to move the minor child's
treatment forward. On 27 January 2020, the Applicant’s attorney
discussed the
contents of her letter. On the same day, the
Applicant’s attorney replied informing the Respondent that the
Applicant and
M[....] had agreed to a three-month evaluation period
on condition that the Applicant approved the facility and any
operation.
On 30 January 2020 the attorney of the Applicant told the
Respondent that Butterfly Haven was the facility of their choice. The
Respondent then proceeded to reserve a bed for the minor child at
Butterfly Haven from February 2020.
[17]
The placement did not materialise as the Applicant and M[....]
insisted that they be afforded
opportunity to first visit the
facilities in Johannesburg. The Respondent then instructed an
attorney to approach the court for
relief. On 27 January 2020, the
attorney of the Applicant again advised that M[....] sought an
account from Mr Joubert (“Joubert”).
On the same day, the
Respondent advised the attorney of the Applicant that Joubert has
already accounted and that he had explained
the finances to the
Applicant and M[....] in detail during the meeting of 16 September
2019.
[18]
On 29 January 2020, the Applicant caused Joubert to advance to her an
amount of R12 000.00. On
30 January 2020, the Respondent reported
this conduct of the Applicant to her attorney. She also notified him
that the Applicant
had given an undertaking to Joubert to reimburse
VZLR Attorneys.
In
an e-mail of 31 January 2020, the Respondent provided all the
accounting documentation to the attorney of the Applicant. On 4
February 2020, the attorney of the Respondent wrote to the attorney
of the Applicant commencing arrangements for the Applicant
and
M[....] to view suggested facilities.
[19]
On 13 February 2020, the Applicant and M[....] inspected recommended
facilities among which were
Little Gems and Auckland Park
Rehabilitation Hospital. Following their inspection of those
facilities, they settled on the latter.
This facility turned out to
be prohibitive. Notwithstanding that it was expensive, the Applicant
and M[....] insisted that the
minor child be placed there. On 17
March 2020 and only after obtaining quotations and engaging with the
Applicant and M[....],
the Respondent instructed Lejara to make
arrangements to have the minor child admitted to the Auckland Park
Rehabilitation Hospital.
Their plans to place the minor child at the
facility were stymied as a result of the declaration of the national
lockdown.
[20]
On 6 April 2020, it was confirmed that the Respondent’s
attempts to have the minor child
treated by the StepMed therapists
were unsuccessful. On 14, 24 and 25 April 2020, Lejara's personnel
called the Applicant offering
to assist whenever she felt that she
needed it. This offer notwithstanding, the Applicant and M[....]
elected to approach Joubert
on the minor child’s dental needs.
At the time of their attempt to engage Joubert, he was not involved
with the minor child’s
daily care. In any event, his
involvement had come to an end. In her WhatsApp message of 21 May
2020, the Applicant requests Joubert
to convey to Lejara and her
personnel to stop calling her as they were abusing her emotionally
and mentally.
[21]
On 22 May 2020, the Respondent spoke to the Applicant following
Lejara’s complaint to her
that the Applicant would not take
their calls. From 28 May 2020 the Respondent and Joubert received
threatening messages from the
Applicant and M[....]. On 1 June 2020,
the Applicant informed Lejara that she wished to terminate
communication with her office
and turned off her phone. On 12 June
2020, the attorney of the Applicant addressed a letter of demand to
the Respondent. On 21
June 2020, this application was served.
ARGUMENT
[22]
The Applicant argues that the Respondent did and does not have the
well-being of the minor child
at heart because her conditions have
not changed since settlement of the claim. The minor child still
receives medical treatment
from public hospitals, uses the same
chair, bed and lives in the same house not suited to her condition.
Furthermore, contends
the applicant, the Respondent was preoccupied
with having the patient admitted to her "partner's"
facility.
[23]
The Respondent did not take kindly to M[....] raising financial
issues pertaining to the Trust.
Each time that M[....] did so, she
would scare him off such that he would feel apprehensive to touch on
the subject. Additionally,
it is the Applicant’s argument that
VZLR Attorneys have overreached the Applicant as they have charged
far beyond what the
Contingency Act prescribes in circumstances where
an attorney accepts instructions on contingency basis.
[24]
The position of the Respondent as a director of VZLR Attorneys and a
trustee of the Trust simultaneously
is untenable as it places her in
a conflict. The Applicant argues that the Respondent is supposed to
act in the best interest of
the Trust and its beneficiary, the minor
child. Given the two positions that the Respondent holds, how can she
discharge her fiduciary
duties towards the Trust in case VZLR
Attorneys does not measure up to standard? The Applicant concludes in
this respect that the
Respondent ought to be removed and replaced
because she is highly conflicted.
ISSUES
[25]
The Applicant has aptly identified the issues to be considered by
this Court. As such, there
is substance in reproducing them in this
judgment to avoid reinventing the wheel. These issues are:
25.1 Has a case for
the removal of the Respondent from the Trust as a trustee been made
out?
25.2 Has the
Applicant made out a case for her own appointment as a trustee
together with M[....] and Mr Maseko (“Maseko”)?
25.3 Has the
Applicant made out a case for dispensing with the furnishing of
security by the above-mentioned proposed trustees?
25.4 Should the
Trust be responsible for payment of the legal fees of the successful
party?
LEGAL FRAMEWORK
[26]
From the perusal of the parties’ papers, it is clear that they
agree on the law governing
the area of their dispute. That said, they
seem to be sharply divided on how the legal principles should be
applied. The case law
and statutory provisions that I will outline
below is intended to serve as guidance for the adjudication of this
matter. Firstly,
I shall deal with the relevant statutory provisions
contained in the Trust Property Control Act, 57 of 1988 (“the
Act”).
Secondly, I shall turn the focus to case law on the
meaning of those provisions as they affect trustees.
[27]
The removal of the Respondent as a trustee is founded on the Act. For
purposes of this judgment
the most pertinent provisions of the Act
Are Sections 9 and 20. Section 9 provides that:
“
9
Care, diligence and skill required of
trustee
(1)
A trustee shall in the performance
of his duties and the exercise of his powers act with the care,
diligence and skill which can
reasonably be expected of a person who
manages the affairs of another.
(2)
Any provision contained in a trust
instrument shall be void in so far as it would have the effect of
exempting a trustee from or
indemnifying him against liability for
breach of trust where he fails to show the degree of care, diligence
and skill as required
in subsection (1).”
[28]
Dealing with removal of trustees for their failure contemplated in
Sub-Section 2 of Section 9,
Section 20 is headed: Removal of trustee
and it stipulates:
“
(1)
A trustee may, on the application of the Master or any
person having an interest in the trust property, at any
time be
removed from his office by the court if the court is satisfied that
such removal will be in the interests of the trust
and its
beneficiaries.
(2)
A trustee may at any time be removed
from his office by the Master
(a)
if he has been convicted in the Republic or elsewhere of any offence
of which dishonesty
is an element or of any other offence for which
he has been sentenced to imprisonment without the option of a fine;
or
(b)
if he fails to give security or
additional security, as the case may be, to the satisfaction
of the
Master within two months after having been requested thereto or
within such further period as is allowed by the Master;
or
(c)
if his estate is sequestrated or liquidated or placed under judicial
management;
or
(d)
if he has been declared by a competent court to be mentally ill or
incapable of managing
his own affairs or if he is by virtue of the
Mental Health Act, 1973 (Act 18 of 1973), detained as a patient in an
institution
or as a State patient; or
(e)
if he fails to perform satisfactorily any duty imposed upon him by or
under this Act
or to comply with any lawful request of the Master.
(3)
If a trustee authorized to act under section 6 (1) is removed from
his office or resigns, he shall without
delay return his written
authority to the Master.”
[29]
In Land and Agricultural Bank of South Africa v Parker and Others
2005 (2) SA 77
(SCA) at paragraph 10,
it was stated that: “In
its strictly technical sense the trust is a legal institution sui
generis… The trustee is the
owner of the trust property for
purposes of administration of the trust but qua trustee he has no
beneficial interest therein.”
In the same vein, in
Lupacchini
NO and Another v Minister of Safety and Security
2010 (6) SA
457
(SCA) at paragraph 1
the court said the following:
“…
.is
an accumulation of assets and liabilities. These constitute the trust
estate, which is a separate entity. But though separate,
the
accumulation of rights and obligations comprising the trust estate
does not have legal personality. It vests in the trustees,
and must
be administered by them – and it is only through the trustees,
specified as in the trust instrument, that the trust
can act…”
[30]
As early as 1925, the Appellate Division, as it then was, stated the
following in
Sackville West v Norse and Another
1925 AD 516
on the fiduciary duties of trustees:
“
The
effect of this authority is that a tutor must invest the property of
his ward with diligence and safety. It is also said that
a tutor must
observe greater care in dealing with his ward's money than he does
with his own, for, while a man may act as he pleases
with his own
property, he is not at liberty to do so with that of his ward. The
standard of care to be observed is accordingly
not that which an
ordinary man generally observes in the management of his own affairs,
but that of the prudent and careful man;
or, to use the
technical expression of the Roman law, that of the bonus et diligens
paterfamilias. . .. We may accordingly conclude
that the rule of our
law is that a person in a fiduciary position, like a trustee, is
obliged, in dealing with . . . the money
of the beneficiary, to
observe due care and diligence, and not to expose it in any way to
any business risks.”
See also,
Administrators,
Estate Richards v Nichol and Another
[1998] ZASCA 82
;
1999 (1) SA 551
(SCA).
[31]
The general rule regarding the removal of trustees
is
that a trustee will be removed from office when continuance in office
will imperil the property of a trust and prevent the trust
itself
being properly administered to the welfare of the beneficiaries. The
power to remove a trustee must be exercised circumspectly
but neither
mala fides nor even misconduct is required for the removal of a
trustee. See,
Gowar and Another v Gowar
and Others
2016
(5) SA 225
(SCA
A) at paragraphs 30 –
31. Courts have over and over again stressed that the removal of
trustees must be done in line with
the provisions of Section 20(1) of
the Act - when it is in the interests of the trust and its
beneficiaries.
ANALYSIS
REMOVAL OF THE
RESPONDENT AS A TRUSTEE
[32]
The principal accusation here is that the Respondent has not acted in
the best interest of the
Trust and therefore, its beneficiary, the
minor child. In the second place, the Applicant complains that
instructing VZLR Attorneys
to act on behalf of the Respondent in
circumstances where she is a director in that firm and simultaneously
a trustee, is inimical
to the discharge of her fiduciary duties
towards the Trust. Turning to failure to act in the best interest of
the Trust as per
Section 20(1) of the Act. It appears that reliance
is placed on the fact that the living and medical treatment of the
minor child
has not changed even though her claim was settled a while
back.
[33]
It is of course disconcerting and also inexcusable that so much time
has lapsed since settlement
of the claim without deployment of the
funds towards improvement of the living conditions of the minor
child. The lack of this
enhancement of the living conditions of the
minor child is attributable to the controversy between the parties,
which is unacceptable
because the minor child cannot do anything on
her own to make life bearable. The Applicant is concerned that the
Respondent is
subjecting the minor child to examinations for which
extortionate amounts are charged. She points out that the Respondent
intends
to spend R1 500 000.00 for evaluation in a period of 3
months. At Paragraph 3 of a letter penned by the Respondent, the
expense
of the aforesaid amount is attributed to the Applicant and
M[....], which she says is incorrect. The Applicant maintains that
during
the course of the litigation, the minor child was examined by
different medical experts. As such, those evaluations should be
adequate
making it unnecessary to incur further expenses in that
regard.
[34]
The approach adopted by the Applicant cannot find favour with this
Court. While it could be true,
to some limited extent, that the
reports compiled prior to the settlement of the claim contain some
pointers into what would be
needed to make the minor child’s
life comfortable, it ought to be noted that those reports are by now
stale. Besides, the
accessories recommended are not custom-made for
the minor child. An action plan cannot therefore be dispensed with as
the Applicant
would have this Court believe. Perhaps it is important
to recall that the purpose of the action plan is the following:
34.1 Preparation of
a budget for the trust;
34.2 Calculation of
future medical expenses in order to –
34.2.1
budget for the rental of a house;
34.2.2
budget for the purchase of a motor vehicle;
34.2.3
allocate specified amounts to determined medical expenses;
34.2.4
how to invest surplus capital to allow for capital growth to occur.
[35]
The Applicant and M[....] held a meeting on 16 September 2019 with
Joubert during which they
were advised that it was pressing for the
minor child to receive medical intervention. Both the Applicant and
M[....] seem to have
understood this message because it was at that
meeting and subsequent ones on November 2019, January and February
2020 that they
agreed that the minor child could be admitted to a
facility where she would be assessed and a plan for her treatment put
together.
It is thus disingenuous to suggest that the minor child’s
continued treatment at public medical facilities is due to the
Respondent.
[36]
In any event, the Respondent explains that on the one occasion when
the minor child had her tooth
extracted at a public health facility,
the Applicant had made a request to Joubert. The Applicant asked
Joubert despite that she
had been told by both Lejara’s
personnel and the Respondent that she was at liberty to approach them
at any time on the subject
of the minor child’s treatment. The
truth is that the Applicant and M[....] have been shifting ‘goal
posts’ and
this happened on at least three occasions –
November 2019, January and February 2020. Had the minor child been
admitted to
a facility on any of the dates that were proposed, an
action plan would have been compiled and the P[....]e requirements of
the
minor child would have been determined and implemented.
[37]
It is manifest that the minor child’s continued delay for
admission to a facility and lack
of subsequent adoption of an action
plan should be laid at the door step of the Applicant and M[....]
whose co-operation was and
continues to be critical to accomplish the
objectives of the Trust. The plans made by Lejara to have the patient
treated by the
StepMed therapists in Mbombela were rebuffed by the
Applicant’s lack of co-operation maintaining that everything be
cancelled
as she and M[....] were obtaining legal advice.
[38]
The complaint concerning the bed, chair and suitable accommodation
for the minor child too forms
part of the medical action plan. The
medical experts who assessed the minor child prior to the settlement
of her claim might have
identified the accessories that will be
needed by the minor child but further evaluation is necessary because
such equipments that
they have recommended should be customized to
suit the minor child. It certainly would have been imprudent and
remiss for the Respondent
to have purchased any accessories without
any professional medical advice because while necessary they may not
be custom-made for
the minor child. The action plan is therefore
critical prior to touching the future medical expenses award.
[39]
The meeting of 16 September 2019 suggests that it became necessary
because the finances of the
Trust became a subject of contention by
M[....]. It was at this meeting that all the finance matters of the
Trust were laid bare
to the Applicant and M[....] by Joubert who also
invited them to feel free to take up any issues pertaining to the
finances of
the Trust directly with him. On 31 January 2020, Joubert
furnished the Respondent with all the documentation, which he had
supplied
to the attorney of the Applicant. The meeting of 16
September 2019 and the provision of documents to the attorney for the
Applicant
are not denied. The accusation that M[....] felt
intimidated every time that he raised financial matters of the Trust
with the
Respondent must therefore be bereft of any truth as he knew
that Joubert, and not the Respondent, was accountable.
[40]
The Respondent is further accused of having been totally gripped with
having the minor child
admitted to her "partner's"
facility. Prior to the meeting of 16 September 2019, Lejara had
obtained quotations from
three different facilities one of which was
Little Germs, the least prohibitive and one in which Lejara had
interest. While at
the meeting of 16 September 2019 three quotations
were presented and weighed up, when the facilities were subsequently
inspected,
Little Germs did not form part of that inspection. In
November 2019, Lejara identified Butterfly Haven as a suitable
facility.
She then recommended and arranged for the admission of the
minor child at the facility. The evidence before court is that Lejara
has interest in Little Germs and not Butterfly Haven. The accusation
is therefore misguided and is rejected.
[41]
With regard to the question of the overreaching of the minor child by
VZLR Attorneys for which
the Respondent is a director, the Applicant
asserts that the attorneys have overreached the patient because their
fee exceeds 25%
of the award. The Respondent has failed to challenge
the amount transferred to the Trust by VZLR Attorneys because of her
directorship
with them. The Respondent’s counter to this is
that her failure to challenge VZLR Attorneys’ fees is not
because of
any conflict caused by her directorship with VZLR
Attorneys. The reason for not doing so, she argues, is that the
accusation is
baseless.
[42]
Contingency fees agreements are regulated by the
Contingency Fees Act
No. 66 of 1997
whose objective is to control the conclusion of
contingency fees agreements between legal practitioner's and their
clients.
Section 1
of the
Contingency Fees Act defines
a legal
practitioner as an attorney or an advocate. Since the advent of the
Contingency Fees Act, conclusion
of contingency fees agreements is
closely regulated by the provisions of
Section 2
in the
Contingency
Fees Act, which
is headed: Contingency Fees Agreements.
[43]
Section 2(1)
provides that:
“
Notwithstanding
anything to the contrary in any law or the common law, a legal
practitioner may, if in his or her opinion there
are reasonable
prospects that his or her client may be successful in any
proceedings, enter into an agreement with such client
in which it is
agreed-
(a)
That the legal practitioner shall
not be entitled to any fees for services rendered in respect of such
proceedings unless such client
is successful in such proceedings to
the extent set out in such agreement;
(b)
That the legal practitioner shall be
entitled to fees equal to or, subject to subsection (2), higher than
his or her normal fees,
set out in such agreement, for any such
service rendered, if such client is successful in such proceedings to
the extent set out
in such agreement.
2
Any fees referred to in subsection (1)(b) which are higher than the
normal fees of the
legal practitioner concerned (hereinafter referred
to as the “success fees”) shall not exceed such normal
fees by more
than 100 per cent: Provided that, in the case of claims
sounding in money, the total of any such success fee payable by the
client
to the legal practitioner, shall not exceed 25 per cent of the
total amount awarded or any amount not, for purposes of calculating
such excess, include any costs.”
[44]
It is common cause that the Applicant entered into a funding
agreement with Astrea albeit that
the Applicant does not volunteer
this information. Evidence before court is that Astrea is a legal
structure but I am not aware
whether it is a company or a
partnership. In
Price Waterhouse Coopers Inc. and Others v
National Potato Co-Operative Ltd
2004(6) SA 66 (SCA) at para
[41],
it was found that an agreement in terms of which a person
provides a litigant with funds to prosecute an action in return for a
share of the proceeds of the action is not contrary to public policy
or void.
[45]
The Applicant therefore concluded two discrete agreements. The one is
a contingency fees agreement
concluded with VZLR Attorneys, which is
subject to the provisions of the
Contingency Fees Act. The
other is
the funding agreement, which falls outside of the provisions of the
Contingency Fees Act. The
Respondent explains that the funding
agreement was perused and approved by senior counsel who represented
the curator ad litem
and that she had no issues that it was legal as
it was validly concluded with the Applicant. The mistake that the
Applicant makes,
it would appear, is that she lumps the amount
charged by Astrea together with the fees of VZLR Attorneys.
[46]
The upshot of doing so is the loss of distinction between the amounts
charged by the two. The
position is that only the amount charged as
fees of VZLR Attorneys is subject to the Contingency Fee Act. The
fees of VZLR Attorneys,
on the face of it, falls within the
parameters of the
Contingency Fees Act as
it charged 0.076% of the
capital award. That said, whether or not the amount raised by Astrea
for funding the litigation is in
accordance with the funding
agreement between the parties is a matter that is not before this
Court for consideration. As such,
I am deliberately refraining from
traversing the subject. Accordingly, the assertion that VZLR
Attorneys has overreached the Applicant
has no foundation and is
rejected.
[47]
Another issue that requires a closer consideration is whether or not
the Respondent’s instructions
to VZLR Attorneys to represent
the Trust puts her in a conflict of interest situation. The
instructions to VZLR Attorneys occur
against the background that
firstly, the firm represented the Applicant in her claim of the minor
child against the Department
of Health: Mpumalanga. Secondly the
Respondent was and remains a director of VZLR Attorneys. Thirdly, she
is a trustee whose main
objective is to protect the interest of the
minor child.
[48]
I raise this matter mindful that the Applicant has not fully taken
issue with it. The only insinuation
of a conflict of interest raised
by the Applicant seems to be that the Respondent failed to question
the amount paid over to the
Trust by VZLR Attorneys because she was
conflicted. I have already found that there is no merit in that
argument because the Applicant
combined the fees raised by the
attorneys and the funder to conclude that the attorneys have
overreached. That was incorrect for
the funder and the attorneys are
two separate entities whose charges for services rendered should be
treated separately and differently.
[49]
The instructions from the Trust, represented by the Respondent, to
VZLR attorneys where the Respondent
remains a director was
injudicious. By giving instructions to VZLR Attorneys, the Respondent
was in principle instructing herself
to represent the Trust. The
Trust has been formed specifically to protect the interest of the
minor child. The parents of the minor
child are the Applicant and
M[....], the Respondent’s erstwhile clients in the minor
child’s claim against the Department
of Health: Mpumalanga.
[50]
Understood in the context that the parents of the minor child and the
Respondent ought to co-operate
in order to ensure that the interests
of the minor are protected by the Trust the conflict of the
Respondent is apparent. While
this may not necessarily warrant the
Respondent’s removal as a trustee, it is indubitably
undesirable and is discourage.
If the Respondent is to continue as a
trustee, the instructions to VZLR Attorneys should be terminated and
a different firm of
attorneys instructed to represent the Trust.
[51]
One of the prayers in the notice of motion is that new trustees be
appointed and that if so appointed,
that they be excused from
providing security. The appointment of trustees is as per Paragraph 8
of the Trust Deed. I have already
concluded that there is no merit in
the Applicant’s prayer that the Respondent be removed as
trustee. The ineluctable corollary
of that decision is that it
renders vain to consider the appointment of new trustees and whether
or not they should provide security.
Even if I were to consider the
appointment, the Applicant’s evidence on the social and
financial backgrounds of the individual
proposed for appointment is
woefully inadequate discouraging this Court to consider such prayer
favourably.
COSTS
[52]
Both parties pray that the costs of their litigation be borne by the
Trust in the event of the
other losing. The only fathomable reason in
these circumstances is that the Trust has funds to cover the costs of
the litigation.
To discourage both of them taking each other to court
even in circumstances where it is not warranted and to make these
parties
understand that they should co-operate to maximize the
discharge of the duty of protection of the minor child’s
interest,
I shall make no cost order.
ORDER
[53]
In the result, I make the following order:
1.
The application is dismissed; and
2.
There is no order as to costs.
COUNTERCLAIM
[1]
To avoid confusion and purely to simplify matters, I shall refer to
the parties as
in convention. In this counterapplication, the
Respondent seeks relief in the following terms:
“
1.
That JEANNE HELEN RABIE ("the trustee") be authorised to
approach this court in terms of the
provisions of s28 of the
Children's Act Number 38 of 2005("the Act") to
apply to
this court for an order in
terms of
which the
parental responsibilities and rights
of N P[....] M[....]2 and M[....] M[....]3 N[....]1 be circumscribed
alternatively terminated
further alternatively suspended in terms of
s28(1) of the
Act.
2.
That L[....] A[....] L[....]2
M[....] ("the patient") be admitted to Butterfly Haven in
Johannesburg for a period of no
more than three months.
3.
That Butterfly Haven be authorised
to:
3.1
Provide such services and
therapy to the patient as they might be advised to provide to her by
the professional medico-legal therapists
and medical doctors employed
and appointed by the trustee to treat the patient;
3.2
Transport the patient to
doctors and therapists approved by the trustee to provide required
and necessary medical services to the
patient;
3.3
To compile a treatment action
plan to serve as guide for the patient's treatment in Nelspruit.
4.
Butterfly Haven shall render these
services subject
to:
4.1
Acceptance by the trustee of their
quotation rendered for those services;
4.2
The oversight of the trustee and Mr
Nick
Fernandes.
5.
Adv. PJ Nieman of the Pretoria Bar
is appointed as the patient's curator ad litem with the power to
investigate and report to this
court on the following issues:
5.1
Whether it would be in the best interests of the patient if:
5.1.1 Any
parental right and obligations of N P[....] M[....]2 and M[....]
M[....]3 N[....]1 is suspended, alternatively terminated,
further
alternatively circumscribed in terms of the provisions of s28(1) of
the Act and report to the court:
5.1.1.1
The extent to which the parental rights and obligations of the
parents should be suspended,
alternatively terminated further
alternatively circumscribed;
5.1.1.2
Which person should be
accorded the parental rights and obligations so suspended,
alternatively terminated, further alternatively
circumscribed.
5.1.2
A curator personae is appointed for
the patient and report to the court on:
5.1.2.1
The powers that must be afforded to a curator personae;
5.1.2.2
Which person should be appointed as the curator personae for the
patient.
6.
That the costs of the counter
application be paid by the trust unless the relief sought in the
counter application is opposed by
the applicant in which event the
applicant should be ordered to pay the costs of the counter
application.
7.
Alternatively to the above and in
the event of the court deciding to remove the trustee an order in
terms of
which:
7.1
The date upon which the
trustee's appointment as trustee shall terminate is determined;
7.2
The third respondent is
ordered to return the trustee's undertaking and bond of security to
her no later than the date following
the date upon which her
appointment as trustee
terminates;
7.3
The trustee is released from
her obligation to provide security to the third respondent on the
date her appointment as trustee terminates;
7.4
That the
costs of
the application and the counter
application be
borne
by the trust, alternatively that a costs order which the court
considers appropriate be issued.”
[2]
The first prayer in the counter application is founded on the
provisions of Section
28 of the Children’s Act, 38 of 2005. For
that reason, it is necessary that the Section be reproduced in full.
The section
provides as follows:
“
[Termination,
extension, suspension or restriction of parental responsibilities and
rights
(1)
A person referred to in subsection
(3) may apply to the High Court, a divorce court in a divorce matter
or a children's court for
an order-
(a)
suspending for a period, or terminating, any or all of the parental
responsibilities and rights which
a specific person has in respect of
a child; or
(b)
extending or circumscribing the exercise by that person of any or all
of the parental responsibilities
and rights that person has in
respect of a child.
(2)
An application in terms of subsection (1) may be combined with an
application in terms of section 23
for the assignment of contact and
care in respect of the child to the applicant in terms of that
section.
(3)
An application for an order referred to in subsection (1) may be
brought-
(a)
by a co-holder of parental
responsibilities and rights in respect of the child;
(b)
by any other person having a
sufficient interest in the care, protection, well-being or
development of the child;
(c)
by the child, acting with leave of
the court;
(d)
in the child's interest by any other
person, acting with leave of the court; or
(e)
by a family advocate or the
representative of any interested organ of state.
(4)
When considering such application, the court must take into account-
(a)
the best interests of the child;
(b)
the relationship between the child
and the person whose parentalresponsibilities and rights are being
challenged;
(c)
the degree of commitment that the
person has shown towards the child; and
(d)
any other fact that should, in the
opinion of the court, be taken into account.”
[3]
The position of the Respondent as a trustee of a Trust whose sole
objective is to
look after the interest of the minor child makes her
eligible to launch these proceedings as she is a person contemplated
in Section
3(b) of the Children’s Act. This Court does not as
such, doubt her
locus standi
. That said, I do not think it
would be wise for this Court to grant prayer 1 of the notice of
motion without ordering that investigations
be conducted to establish
the desirability of the prayer sought. The actions of the Applicant
and M[....], somewhat unreasonable
as they seem, are not obviously
those on which this Court can readily conclude that they were
engendered by lack of what is in
the best interest of the minor
child. On the contrary, they could have been brought about by a
belief that the action of the Applicant
and M[....] were in fact
meant to protect the minor child’s best interest. In other
words, it is the opinion of this Court
that it will be in the best
interest of the minor child that such investigations be carried out
so that an informed decision is
made. Furthermore, I am acutely
mindful of the cultural differences between the trustee and the
Applicant and M[....]. This could
be the cause of lack of
co-operation manifesting itself as distrust. I will address this
subject when examining whether or not
an additional trustee should be
appointed as set out in the trust deed.
[4]
Turning then to prayers 2, 3 and 4 of the notice of motion. The
evidence before court
is that the action plan is critical. Besides,
the minor child requires ongoing medical treatment, which she has not
been receiving
because of the lack of co-operation among the people
expected to ensure that the Trust is operated in a manner that serves
her
best interest. The action plan must be drawn up because it will
contain a prepared budget for the trust and Calculation of future
medical expenses of the minor child.
[5]
The evidence relating to the drawing up of an action plan and the
minor child requiring
urgent medical attention is common cause. I
have already mentioned that the Applicant and M[....] had agreed to
allow the minor
child to be admitted to a facility on three
occasions, November 2019, January and February 2020, for that very
purpose albeit that
they later reneged from their agreement. The
report of StepMed dated 13 December 2019 accentuates the significance
of immediate
medical intervention. The report also underscores the
fact that the applicant and the grandmother are not coping with the
minor
child's treatment and that they need training.
[6]
It appears from evidence that the minor child has neither been
subjected to proper
treatment regime nor received ordinary medical
treatment since September 2019. It is not denied that the Applicant
and M[....]
refused StepMed to administer any treatment to the minor
child in January 2020 and there has not been any indication that the
minor
child has since been treated subsequent to her parents’
refusal. If the treatment of the minor child was urgent and vital
in
December 2019, the lapse of two years must mean that the minor child
is medically in bad shape and that her treatment cannot
be delayed a
day longer.
[7]
In prayer 5 of the notice of motion the Respondent seeks relief that
Adv. Niemann
be appointed as a
curator ad litem
for the minor
child. The need for this to happen cannot be overemphasized
especially having regard to the number of attempts made
to admit the
minor child to a facility and the time it has taken since. There is
indeed a dire need to determine whether or not
it would not be in the
best interest of the minor that she be cared for in a facility either
permanently or intermittently.
[8]
Additionally, it is necessary to also determine whether or not it
would be in the
best interest of the minor child that decisions
regarding her care should not be made by someone other than the
parents who is
properly qualified to take such decisions soberly and
objectively. That said and given the sensitivity of the matter
particularly
that the ultimate recommendation might be exceptionally
intrusive to powers generally enjoyed by biological parents of a
minor
child, I would suggest that the curator ad litem be proposed
and appointed by an independent party such as the family advocate.
[9]
the person to assume the duties that the curator ad litem is to
investigate will be
appointed as curator personae for the minor
child. The general powers of a
curator personae
are described
in
Ex parte Hill
as follows:
"While
the curator bonis is concerned with the patrimonial affairs of the
patient, the curator to the latter's person is concerned
with matters
relating to his person, such as where he is to live, e.g. whether he
is to be consigned to an institution or to live
at home, his health,
e.g. whether he is to have particular treatments such as an operation
and by when it is to be performed, and
generally the control over his
personal regimen. It is open to the Court to appoint a curator to the
person of a patient without
defining or restricting the general
powers referred to above. (See: Powrie's case, supra). On the other
hand, it may appoint a
curator to the person of a patient ad hoc and
for a specific purpose, e.g. to give permission for an operation to
be performed
on such patient (Ex parte Dixie,
1950(4)
SA 748 (V\1;
Ex parte Baker
(unreported CPO 26.11.1960). The appointment to a patient of a
curator with general powers clearly involves a serious
inroad upon
the personal liberty of such person and accordingly a Court would be
guarded in the exercise of its jurisdiction to
make such an
appointment and would do so only when a clear case is made out that
the circumstances relating to the patient require
it. Martinson v
Brown, 1961(4) SA 107 (C) and Ex parte Powrie, supra at p. 300."
[10]
In the circumstances of this matter, it is fitting that The curator
ad litem should investigate
whether or not a
curator personae
with general or limited or adhoc powers should be appointed for the
minor child. Reasons for the appointment of a curator ad litem
to
investigate the relevance of a curator personae have been advanced
above. The most prominent is of course that the Applicant
and M[....]
have refused to co- operate in circumstances where doing so
prejudices the interest of the minor child. It is obvious
that the
minor child, being physically and mentally challenged, cannot fend
for herself.
[11]
The court directed that a trust whose broad objective would be the
safeguard of the best interest
of the minor child by controlling and
administering the capital amount awarded to the minor child be
created. The order also prescribes
that the Respondent and Jacobus
Albertus van Zyl be appointed as professional trustees of the Trust.
The proposed trustees were
required to provide security prior to
assuming their positions of trusteeship. The Master of the High Court
could not effect the
appointment of Mr Van Zyl as he failed to
furnish security.
[12]
Clause 5.2 of the trust instrument provides as follows:
"In
the event where it is not possible for the Trustee to take the
appointment or to continue with her duties for whatever
reason, her
successor will be her successor in practice, or failing him/her a co
director nominated by the managing director
of VZLR Inc., or failing
this a person nominated by the Master of the High Court, for the
purpose of this Deed of Trust."
[13]
So, the court envisaged a trust run by two trustees. As such, it
would have thought that a trust
run by two trustees would be in the
best interest of the minor child. I agree that the Master of the High
Court’s refusal
to ratify the appointment of Mr Van Zyl did not
paralyse the Trust. The Trust still came into existence and has and
continues to
be run and operates with the Respondent alone as its
trustee. This situation attracted the invocation of Clause 5.2 of the
trust
deed described above.
[14]
The facts of this matter, it would seem, suggest that the attitudes
of the Applicant and M[....]
are characterized by cynicism and
resentment toward the Respondent. The appointment of a second trustee
in such a situation becomes
idyllic and vital. Such a trustee might
in fact assist to bridge the schism that has developed between the
Respondent and the parents.
The suggestion of this Court is that such
a trustee be a person who, to some degree, shares cultural heritage
and traditions with
them to avoid their feeling of resentment and
alienation.
[15]
Insofar as costs are concerned, I am not willing to order the Trust
to pay the costs of the successful
party, the Respondent. This is
merely to discourage litigation by either party against the other
with the hope that the Trust’
whose main objective is to
control and administer the funds of the minor child becomes a source
of income for them. It is not the
minor child who is litigating here.
Given that situation, why should the funds of the Trust finance the
litigation?
[16]
Against that background, I make the following order.
1.
The Applicant, M[....] and the Respondent
must, within 30 days of the date on which the Master of the High
Court appoints the second
trustee of the Trust, present the minor
child, L[....] A[....] L[....]2 M[....], to Butterfly Haven in
Johannesburg for admission;
2.
Butterfly Haven shall admit the minor child
for a period of not more than 3 months during which it is authorised
and directed to:
2.1
provide such services and therapy to the
minor child as they may be advised to administer to her by
professional medico-legal therapists
and medical doctors employed and
appointed by the trustee to treat the minor child;
2.2
transport the minor child to doctors and
therapists approved by the trustees to provide required and necessary
medical services
to the minor child;
2.3
to compile a treatment action plan to serve
as guide for the minor child’s treatment in Mbombela.
3.
Butterfly Haven shall render these services
subject to:
3.1
acceptance by the trustees of their
quotation rendered for those services;
3.2
the oversight of the trustees and Mr Nick
Fernandes.
4.
Should the Applicant, M[....] and the
Respondent, for any reason, not present the minor child to Butterfly
Haven, the family advocate
or a person designated by the family
advocate is authorised to present the minor child to Butterfly Haven
which shall admit her
for a period of not more than 30 days for the
purpose identified above;
5.
The family advocate is directed to appoint
an advocate who has been practicing for not less than 10 years to act
as
curator ad litem
with power to investigate and report to this court on the following
issues:
5.1
whether it will be in the best interest of
the minor child that:
5.1.1 any parental
rights and obligations of the Applicant and M[....]3 N[....]1 M[....]
should be suspended, alternatively
terminated, further alternatively,
circumscribed in terms of the provisions of
Section 28(1)
of the
Childrens Act, 38 of 2005
and report to this Court:
5.1.1.1
the extent to which the parental rights and obligations of the
Applicant and M[....] should
be suspended alternatively terminated,
further alternatively circumscribed;
5.1.1.2
which person should be accorded the
parental rights and obligations so suspended, alternatively
terminated, further alternatively
circumscribed.
5.2.1
a
curator
personae
is appointed for the minor
child and report to this Court on:
5.2.1.1
the powers that must be afforded to a
curator personae;
5.2.1.2
which person should be appointed as the
curator personae
for
the minor child.
6.
Utilising the criteria described at
Paragraph 14 of the counterclaim, the Master of the High Court is
directed to appoint a trustee
within 15 days of the date of this
order;
7.
The trustee so appointed shall act as the
second trustee of the Trust;
8.
VZLR Attorneys are directed to withdraw as
the attorneys of record of the Trust and/or the Respondent in this
matter;
9.
Each party is to pay its own costs.
______________________________
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 18 January 2022 at 10:00.
APPEARANCES:
Counsel for the
Applicant:
Adv. LP Zwane
Instructed
by:
Nkosi Attorneys
Counsel for the
Respondents:
Adv. EP Van Rensburg
Instructed
by:
VZLR Attorneys Inc.
Date of
Judgment:
18 January 2022