About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 70
|
|
Mkhonto v Van Der Nest and Others (25753/2010) [2019] ZAGPPHC 70 (8 February 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE
(2)
OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO: 25753/2010
8/2/2019
In
the matter between:
LALU
SHEILA MKHONTO
Applicant
and
GERRIT
VAN DER
NEST
First Respondent
FRANS
SCHUTTE & MATTHEW PHOSA
INCORPORATED
Second Respondent
CONSTANT
WILSNACH
Third Respondent
MASTER
OF THE HIGH
COURT
Fourth Respondent
IN
RE:
SENZO ZAMA PERSEVERANCE
HLATSHWAYO
Applicant
and
FRANS
SCHUTTE
First Applicant
FRANS SCHUTTE
INC
Second Applicant
CONSTANT
WILSNACH
Third Applicant
MASTER OF THE HIGH
COURT
Fourth Applicant
and
LALU
SHEILA MKHONTO
Applicant
obo
S Z P H
and
ROAD
ACCIDENT FUND
Respondent
JUDGMENT
STOOP
AJ
1.
The
Applicant who is the mother and natural guardian of the minor S Z P H
('the minor') applied on an urgent basis for the following
relief:
"1.
The appointment of Constant Wilsnach as a curator bonis (identity no:
[….])
for Senzo Mzamo Percival Hlatshwayo of identity no:
[….]) is hereby with immediate effect declared null and void
ab initio,
and the appointment thereof is terminated and withdrawn.
2.
That the First, Second and Third
Respondents are hereby with immediate effect directed and ordered to
transfer a total sum of R3,254,470
(Three Million Two Hundred and
Fifty Four Thousand Four Hundred and Seventy Rand) into the Trust
Account of Mugebe B Attorneys,
FNB Account: [….] Branch code:
255355, Pretoria North.
3.
That
the Master of the High Court Pretoria is hereby with immediate effect
authorised and directed to terminate and to re tract
the
appointment certificate of estate no: MC 347/2017 in favour of
Constant Wilsnach, identity no: [….] on behalf of Senzo
Mzamo
Percival Hlatshwayo, identity no: [….].
4.
That
the costs order dated 28 September 2018 and prayer for costs de bonis
propiis against the attorney Brian Mugebe of Mugebe B
Attorneys is
hereby recalled, and same is set aside with immediate effect.
5.
That
the First, Second and Third Respondents are hereby with immediate
effect directed and ordered to submit before this Honourable
Court
the Bank statements of Trust Account: [….] Standard Bank, from
18 August 2016 to 8 October 2018, and for Mr Constant
Wilsnach from
31 July 2017 to date of hearing of this application."
2.
For
reasons that were not altogether clear to me, the matter came before
me in the ordinary opposed motion Court. Even though the
Court file
was in an appalling state (the papers were not indexed and paginated)
and the Applicant did not file a practice note
and heads of argument
(as required in terms of this Division's Practice Directive), I
allowed the matter to proceed. This was after
counsel representing
the First, Second and Third Respondents indicated that they are ready
to argue the matter.
3.
The
following background is relevant:
3.1.
On
12 August 2016 and following a settlement reached between the
Applicant and the Road Accident Fund ('RAF'), this Court (per
Pretorius J) made the following order (I quote only the relevant
portion):
"1.
Defendant shall pay the amount of R2 375 470.97 (TWO MILLION THREE
HUNDRED AND SEVENTY FIVE
THOUSAND FOUR HUNDRED AND SEVENTY RAND AND
NINETYH SEVEN CENT) in settlement of Plaintiff's claim into the trust
account of the
Plaintiff's attorneys, FRANS SCHUTTE INC, STANDARD
BANK - WHITE RIVER, ACCOUNT NO.: [….] which amount will be
kept in an
section 78(2)A account until the appointment of a
curator
bonis."
3.2.
The
amount payable in respect of general damages was not settled and on 8
August 2017 a further agreement between the Applicant
and the RAF was
made an Order of Court in terms whereof the RAF had to pay an amount
of R650,000.00 into the Trust Account of the
Applicant (the Plaintiff
in the action).
3.3.
On
31 July 2017, it was ordered (per Motepe J) that the Third Respondent
be appointed as
curator bonis
for
the minor with the powers and duties set out in an Annexure attached
to the Court Order;
3.4.
On
25 September 2018, an application was brought in the name of the
minor's twin brother for an order removing the Third Respondent
as
curator bonis.
That
application was dismissed on 25 September 2018 and the issue of costs
postponed to Friday 28 September 2018. Attorneys, MO
Mokoana and B
Mugebe were instructed to provide reasons by way of affidavit or
personal appearance on 28 September 2018, why they
should not be held
liable for the costs of the application, jointly and severally;
3.5.
On
28 September 2018, the Court then made the following order:
"That Mr Brian Mugebe from
the firm Mugebe Attorneys, situated at Gerrit Maritz Street, 507
Zelda Park, Suite 203, Office 8
& 9, is directed to pay the costs
of the application heard on 25 September 2018, on an attorney and
client scale
de bonis propriis."
3.6.
The
Notice of Motion in the present application was issued on 12 November
2018. Service was effected on the Third Respondent on
12 November
2018 and on the Master on 13 November 2018.
3.7.
Mr Mugebe is the Applicant's current
attorney of record.
4.
Counsel
for the Applicant submitted that the application is brought in terms
of Rule 57(14). Rule 57(14) provides as follows:
"(14) Every
person who has been declared by a court to be of unsound mind and
incapable of managing his affairs,
and to whose person or property a
curator has been appointed, and who intends applying to court for a
declaration that he is no
longer of unsound mind and incapable of
managing his affairs or for release from such curatorship, as the
case may be, shall give
15 days' notice of such application to such
curator and
to
the master."
5.
The
Notice of Motion was served on the Master on 13 November 2018 and the
15-daysperiod contemplated in Rule 57(14) expired (as
far as notice
to the Master is concerned) on 4 December 2018. The matter was
enrolled for hearing on 3 December 2018 prior to expiry
of the 15-day
period, as a result.
6.
The
Third Respondent did not object to the short notice and the Master
filed a report which was handed up from the bar. The Master
also did
not object to the short notice. As a result and, to the extent that
it may be necessary to do so, the Applicant's failure
to comply with
the time period in Rule 57(14) is condoned.
7.
The
Applicant appears to have proceeded from assumption that. because a
curator bonis
was
appointed, the minor was declared to be of unsound mind and as such
incapable of managing his own affairs. That this need not
necessarily
be the case, appears from
Ex parte
van der Linde
1970 (2) SA 718
(0)
where it was stated that in terms of the common law, a
curator
bonis
may be appointed to a person
who, though not of unsound mind, is incapable of managing his own
affairs (also see
Ex parte Comins
1951 (2) SA 249
(W) at 251H-253A).
8.
Rule
57(13) give recognition to the common law position in that it
provides for the appointment of a
curator
bonis
to a person on the ground that
he is by reason of some disability incapable of managing his own
affairs. In an application for the
appointment of a
curator
bonis
in terms of Rule 57(13), the
patient need not be of unsound mind and the Court is not required to
issue a declarator to that effect.
9.
Rule
57(14) also allows a person who has not been declared of unsound mind
but to whose property a curator has been appointed, to
apply for
release from such curatorship.
10.
The
Applicant's main complaint (as it appears from the Founding
Affidavit) is that she did not authorise the application that led
to
the appointment of the Third Respondent as
curator
bonis
on 31 July 2017 and that her
signature on the affidavit filed in support thereof, was forged.
According to the Applicant, she became
aware of the Third
Respondent’s appointment on or about 25 September 2018.
11.
These
are startling allegations which, if true, would not only justify the
setting aside of the Order made on 31 July 2017, but
would also
require investigation and serious consideration by the prosecuting
authorities and the relevant professional bodies.
Clearly for these
reasons, the First Respondent in his answering affidavit dealt at
length with the circumstances under which the
application was brought
and the founding affidavit filed in support thereof. was
commissioned.
12.
According
to the First Respondent, the terms of the settlement and the contents
of the Court Order of 12 August 2016 (which provided
for the payment
of the settlement amount into the attorney's trust account pending
the appointment of a
curator bonis)
were discussed with the Applicant
and she instructed the Second Respondent to settle the matter on
those terms.
13.
The
First Respondent then also states that the Applicant attended the
Second Respondent's offices on 16 March 2017 for the purpose
of
finalising the application for the appointment of the
curator
bonis.
During that consultation, the
Third Respondent's appointment was discussed and it was explained to
the Applicant that she would
have to depose to an affidavit in
support of the necessary application. The Second Respondent confirmed
the contents of the consultation
and in a letter to the Applicant. A
copy of the application for the appointment of the
curator
bonis
was attached to the letter and
the Applicant obtained a copy and she signed a copy of the letter to
acknowledge receipt thereof.
14.
In
addition, the First Respondent attached an affidavit by commissioner
of oaths who stated that the Applicant signed the founding
affidavit
in her presence on 16 March 2017. The First Respondent also attached
a report by a handwriting expert who confirms that
he examined the
signature of the deponent to the founding affidavit and that in his
opinion, that signature belonged to the Applicant
and was not a
forgery.
15.
The
Applicant did not file a replying affidavit and the above allegations
by the First Respondent stand uncontested. It follows
that, on the
application of the principles laid down in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-I,that the Applicant did in fact
authorise the application that led to the appointment of the Third
Respondent as
curator
bonis
and that
she did in fact sign the affidavit filed in support thereof.
16.
In my view, the Applicant failed to make
out a case for the setting aside of the Court Order granted on 31
July 2017 (for the appointment
of the Third Respondent as
curator
bonis).
What at now remains, is to
consider whether the Applicant made out a case for the release of the
minor from curatorship as contemplated
in Rule 57(14).
17.
The
Applicant alleges that the minor is capable to manage his own affairs
and in support of that contention, referred the Court
to the report
of a Dr FN Karuki, a psychologist specialist and the report of a
clinical psychologist, Dr Murerewe. According to
the Applicant, both
experts are in agreement that the minor is capable to manage his own
affairs.
18.
The
Applicant has failed to attach the above reports to the Founding
Affidavit and none of the experts have deposed to confirmatory
affidavits.
19.
The
Application's current version is in stark contrast with what she
stated in the affidavit filed by her in support of the application
for the appointment of the Third Respondent. In that affidavit (the
affidavit was commissioned on 16 March 2017), the Applicant
motivated
the appointment of a
curator bonis
as
follows:
"6.
In considering the best manner in
which these funds are to be administered and safeguarded, I have been
advised, and agree, that
it would be appropriate for a
curator
bonis
to be appointed to assist [the minor]although he is at
present still a minor. The reasons for this are as follows:
6.1
[The minor] will attain majority
on 30 June 2020, thus approximately three and a half years from now;
6.2
It is evident from the
medico-legal reports used in the main action that [the minor's] brain
injury is of such a nature that he
will probably, upon attaining
majority, be incapable of managing his affairs as an adult and would
require the assistance of a
curator
bonis
from then on;
6.3
It was the broad consensus
amongst the experts on both sides of the litigation that [the minor]
would require remedial schooling
and that he would in all likelihood
not obtain sufficient academic qualifications to ultimately have a
significant future earning
capacity. It is further the consensus of
the experts that the award made to [the minor] should be protected."
20.
The Applicant also
referred to a joint report compiled by Educational Psychologists
wherein the experts concluded that the minor's
funds should be
protected and that some form of curatorship was strongly suggested.
21.
The
Applicant's present version directly contradicts the general
consensus of the experts on the strength whereof she on 31 July
2017
sought an order for the appointment of the Third Respondent as
curator bonis
to
the property of the minor. No explanation is tendered for the
remarkable about-turn.
22.
Also,
as I have indicated, the Applicant's present version (that the minor
is capable of managing his own affairs) is not supported
by any
evidence and is in my view nothing more than speculation or
conjecture. In my view the Applicant has failed to make out
a
prima
facie
case for the release of the
Third Respondent.
23
In terms of Rule 57(17) the Court has the power, upon the hearing of
any application referred
to in Rule 57(14), to declare the applicant
as being no longer of unsound mind and as being capable of managing
his affairs; to
order his or her release from such curatorship; or
dismiss the application; or
mero motu
appoint a curator
ad
litem
to make such enquiries as it considers desirable and to
report to it. I may add that, had the Applicant made out a
prima
facie
case for the release of the Third Respondent, I would have
had no hesitation to order that a curator
ad litem
be
appointed to make such enquiries as it considers desirable and to
report back to the Court thereafter.
24.
It is trite that, in matters where the interests of children are at
stake, that their interests
be fully aired before the Court so as to
avoid substantial injustice to them and possibly others
(Du Toit v
Minister of Welfare and Population Development
[2002] ZACC 20
;
2003 (2) SA 198
(CC) at 201).
25.
I should also add that the Master urges the Court to maintain the
appointment of the Third Respondent
as it is in the best interest of
the minor child. The Master also considered it advisable that a case
worker / social worker be
appointed to assess the special needs of
the minor child and whether he will be receiving the care at home or
needs to be admitted
to a home for special needs.
26.
I share the Master's concern as far as
the care of the minor child is concerned. I am unable to find on the
papers before me, that
the minor child is not properly cared for or
that he needs to be admitted to a home for special needs, however.
27.
I do agree that it is in the best
interests of the minor that the funds he obtained from the litigation
against the RAF be protected
as contemplated in the Court Order of 12
August 2016.
28.
The Applicant also seeks an order for
the setting aside of the costs order granted against her attorney.
During argument, Counsel
for the Applicant did not seriously argue
that this relief should be granted. This is hardly surprising since
the Applicant has
completely failed to put forward any facts in the
Founding Affidavit that could justify the setting aside of the costs
order. The
highwatermark in the founding affidavit is that Mr Mugebe
has deposed to a lengthy affidavit explaining as to why he should not
be liable for the costs of the application that was enrolled for 25
September 2018. The contents of this affidavit is not disclosed
and
no facts were placed before me that could support a conclusion that
the costs order ought to be set aside.
29.
Also, Mr Mugebe is not a party to the
present application and in my view the Applicant has no
locus
standi
to seek the setting aside of
the costs order granted against her attorney. It follows that the
Applicant is not entitled to the
relief in prayer 4 of the Notice of
Motion.
30.
Finally, the Applicant seeks an order
compelling the First, Second and Third Respondents to submit bank
statements of the First
Respondent's Trust Account for the period 18
August 2016 to 8 October 2018. Again, no basis is laid in the
Founding Affidavit for
this relief. There cannot be any doubt, in my
view, that the Applicant would be entitled to an account by the
curator bonis.
This
is not what she is seeking, though. The Applicant seeks to inspect
the First Respondent's Trust Account and no basis is laid
in the
Founding Affidavit for such relief.
31.
In any event, the Third Respondent
stated in his answering affidavit that he only received the funds
from the RAF on 31 July 2018
and that he then invested the monies in
an Investec Corporate Cash Manager Account (the account reflected a
balance of R1,500,254.59)
and a Nedbank Corporate Saver Investment
Register(that account reflected a balance of R885,839.54). The total
amount currently
invested by the Third Respondent is R2,386,094.33.
32.
The Third Respondent
attached banking statements in support of the aforementioned and in
my view he accounted sufficiently to the
Applicant.
33.
In
my view the entire application was ill-conceived and completely
without merit.
34.
I
would be shirking in my duty if I do not comment on the conduct of
Counsel for the Applicant. A disturbing feature of the Application
is
the fact that most of the allegations contained in the Founding
Affidavit which relate to the circumstances whereunder the Applicant
signed the founding affidavit in support of the application to
appoint the Third Respondent appear to be false to the knowledge
of
the Applicant. At least, this should have been clear to Applicant's
Counsel when the matter was argued.
35
Counsel
for the Applicant chose to ignore the facts set out in the First and
Third Respondent's Answering Affidavits and which the
Applicant did
not deny and insisted that the Applicant did not authorise the
Application for the appointment of the Third Respondent
and that the
founding affidavit filed in support of that application was a
forgery. He also suggested that the minor's monies had
been depleted
and even went so far as to suggest that the Master's report was a
forgery.
36
Counsel
has a duty towards the Court and also towards the other litigants. He
or she should fearlessly uphold the interests of the
client. That
duty does not translate into a licence to act irresponsibly or
foolishly, however (S v Baleka (1) 1988 (4) SA (T)
at 7050). In this
case, Counsel for the Applicant sadly appears to have lost sight of
what his duty as advocate entails and he
made submissions that could
not on any reasonable interpretation, be supported on the papers
before the Court. Also, Counsel made
a number of scurrilous attacks
on Counsel who appeared for the First, Second and Third Respondents
and when called to order, he
directed his wrath at the Court to such
an extent that I had to adjourn the matter and had to urge Counsel in
chambers to show
restraint and also respect the dignity of the Court.
37.
The
name of Counsel will be withheld. It is hoped that he will take a
lesson from this judgment and conduct himself in future becoming
of
an Advocate and an officer of the Court.
Costs:
38.
In
my view, the conduct of the Applicant ought to be deprecated. She
enrolled an application brought on an urgent basis in the ordinary
motion court and under circumstances where the matter was clearly not
urgent. She also failed to comply with the practice directives
that
apply in this division as far as indexing, paginating and the filing
of a practice notice and heads of argument is concerned.
39.
In
addition she made extremely serious allegations against the First and
Third Respondents which turned out to have been completely
unwarranted and were knowingly not the truth.
40.
The
First, Second and Thirds Respondents seek a costs order on a punitive
scale. Punitive costs orders are not likely granted. In
my view, the
conduct of the Applicant justifies the granting of a punitive costs
order, however (see:
Hawkins
v Gelb and Another
1959 (1) SA 703
(W) at 708G-H).
ORDER:
1.
The Application is dismissed with costs on the scale as between
attorney and
client.
BC STOOP AJ
Acting Judge of the High Court
Gauteng Division, Pretoria
Date
of Hearing:
3 December 2018
APPEARANCES:
For
the Applicant:
Counsel's name withheld
Instructed
by:
MUGEBE B ATTORNEYS
Pretoria