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[2019] ZAECELLC 7
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Silo v Nompozolo & Gabelana Incorporated and Others (EL785/2009;ECD2685/2009) [2019] ZAECELLC 7 (5 March 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION, EAST
LONDON)
Case No:
EL785/2009
ECD2685/2009
In
the matter
between:
NOKILIMUSI
CHRISTINE SILO
Applicant
And
NOMPOZOLO
& GABELANA INCORPORATED
First Respondent
LINDILE
BRIAN NOMPOZOLO
Second Respondent
MZINGAYI
GQOMO
Third Respondent
JUDGMENT
BESHE
J:
[1]
This is an application for an
order in the following terms:
(i) Declaring one
Siyabulela Mananga to be incapable of managing his own affairs.
(ii) Appointing Advocate Charles Barry
Wood as Curator – ad – Litem to take care of Siyabulela
Mananga’s interest.
[2]
This appears to be an
application in terms of
Rule 57 (13)
because this court is not
required to declare
Siyabulela
to be of unsound mind.
[3]
Applicant in this matter is
Ms
Nokilimusi Christine Silo
, who alleges that she is an aunt to
Siyabulela
. She goes on to state that she was the plaintiff in
the action on behalf of
Siyabulela
against the Road Accident
Fund (fourth respondent). The said action was settled.
[4]
The applicant is in the process
of instituting a claim against
inter alia
first, second and
third respondents concerning the manner in which the action against
the Road Accident Fund that is referred to
supra
, was handled.
[5]
According to
Ms Mananga
as a result of injuries sustained in 1996 by
Siyabulela
from a
motor vehicle accident at the time when he was a pedestrian, he is
not able to manage his own affairs; least of all understand
legal
proceedings.
[6]
The application is further
supported by the following reports:
(i) Clinical Psychologis
,
Ms Luyanda Mapekula
; and that of
(ii) Occupational
Therapist,
Ms Rynette Fryer
.
Both
reports appear to have been compiled circa 2002 at the request of the
first respondent. At the time
Siyabulela
was said to be
attending Masizame School for the intellectually handicapped. In her
first report,
Ms Mapekula
concludes that – based on what
was reported by
Siyabulela’s
paternal aunt and tests she
conducted, these lend support to the view that
Siyabulela’s
pre-trauma functioning was in the low average range and he suffered
severe traumatic brain injury in the alleged motor vehicle
accident
on 11 March 1996. In assessing
Siyabulela
,
Ms Fryer
found
inter alia
the following problems:
o Complicated family
environment and support.
o Inadequate start to
schooling carrier and post-accident ability
o Unrealistic future
dreams.
o Severe psychological
inadequacies as described by other professionals.
o Severe perceptional and
cognitive delays.
o Dependence in care and
self-help tasks of daily living.
o Inadequate personal
management and presentation.
[7]
The application is opposed by
first, second and third respondents. The latter only filed
a notice
to oppose.
[8]
The application is resisted on
inter alia
the following grounds:
The
said
Siyabulela Mananga
has since attained the age of
majority;
The
applicant lacks the
locus standi
to pursue the application;
The
application is based on outdated medical reports;
The
medical reports are not in affidavit form as required by
Rule
57
.
[9]
Rule 57
governs applications for the appointment of curators
in respect of persons under disability. The rule provides that:
“
(1) Any person desirous of
making application to the court for an order declaring another person
(hereinafter referred to as ‘the
patient’) to be of
unsound mind and as such incapable of managing his affairs, and
appointing a curator to the person or
property of such patient shall
in the first instance apply to the court for the appointment of a
curator
ad litem
to such patient.
(2) Such application shall be brought
ex parte
and shall set forth fully−
(a) the grounds upon which the
applicant claims
locus standi
to make such application;
(b) the grounds upon which the
court is alleged to have jurisdiction;
(c) the patient’s age and
sex, full particulars of his means, and information as to his general
state of physical health;
(d) the relationship (if any)
between the patient and the applicant, and the duration and intimacy
of their association (if
any);
(e) the facts and circumstances
relied on to show that the patient is of unsound mind and incapable
of managing his affairs’
(f) the name, occupation
and address of the respective persons suggested for appointment by
the court as curator
ad litem
, and subsequently as curator to
the patient’s person of property, and a statement that these
persons have been approached
and have intimated that, if appointed,
they would be able and willing to act in these respective capacities.
(3) The application shall, as far as
possible, be supported by−
(a) an affidavit by at least one
person to whom the patient is well known and containing such facts
and information as are
within the deponent’s own knowledge
concerning the patient’s mental condition. If such person is
related to the patient,
or has any personal interest in the terms of
any order sought, full details of such relationship or interest, as
the case may be,
shall be set forth in his affidavit; and
(b) affidavits by at least two
medical practitioners, one of whom shall, where practicable, be an
alienist, who have conducted
recent examinations of the patient with
a view to ascertain and reporting upon his mental condition and
stating all such facts
as were observed by them at such examinations
in regard to such condition, the opinion found by them in regard to
the nature, extent
and probable duration of any mental disorder or
defect observed and their reasons for the same and whether the
patient is in their
opinion incapable of managing his affairs. Such
medical practitioners shall, as far as possible, be persons unrelated
to the patient,
and without personal interest in the terms of the
order sought.”
Subrule 13
provides that:
“
Save to such extent as the
court may on application otherwise direct, the provisions of subrules
(1) to (11) shall,
mutatis mutandis
, apply to every
application for the appointment of a
curator bonis
to any
person on the ground that he is by reason of some disability, mental
or physical, incapable of managing his own affairs.”
[10]
In a bid to establish her
locus standi in judicio
, applicant
states that she is
Siyabulela’s
aunt. That she was
plaintiff in the main action against the Road Accident Fund under
Case Number 295/2006. She does not give any
details as to why in her
view
Siyabulela
is incapable of managing his own affairs apart
from referring the court to reports that were prepared by
Ms Fryer
and
Ms Mapekula
. She does not give any insight into
Siyabulela’s
means and state of health.
[11]
In an apparent bid to cure the short comings that
were pointed out in second respondent’s opposing
affidavit, in
her replying affidavit, applicant attached recent medical reports
that were compiled by
Ms Mapekula
and
Doctor Makangee
.
Both however are still not in affidavit form as required by
Rule
57 (3) (b)
. Applicant also stressed that first and second
respondents went to great lengths to have her appointed as a
curator
ad litem
for
Siyabulela
previously. It is common cause
however that this did not materialise.
[12]
First and second respondents deny that
Siyabulela
is incapable of managing his affairs. Pointing out to a sworn
statement he purportedly made in relation to the complaint against
the respondents regarding the conduct of his claim against the Road
Accident Fund.
[13]
Applicant is not in a position to shed any light
as to how the sworn statement purportedly signed by
Siyabulela
came about.
[14]
From what I have stated above, it is clear that the application does
not meet the requirements
set out in
Rule 57
. The applicant
does not sufficiently spell out the grounds upon which she claims
locus standi in judicio
to make this application. All she
states in the founding affidavit is that she is
Siyabulela’s
aunt. It is only in the replying affidavit that she attempts to add
some flesh to this allegation. It is trite that a case should
be made
in the founding affidavit. As to
Siyabulela’s
means, it
is only in reply that she states that he is in receipt of a
disability grant. That
Siyabulela
has been staying with her
for several years but also spends time with his brother and sister in
Mdantsane. She does not tell us
anything about his general state of
physical health or day-to-day behaviour, which would give us insight
as to why she feels
Siyabulela
is not capable of managing his
own affairs. The application is not supported by affidavits by at
least two medical practitioners.
[15]
Rule 57 (4)
allows the court to dispense
with any requirements of the
Rule (57)
. This the court can do
on good cause shown. No attempt has been made to explain the
shortcomings in the application. Even in their
current unsworn form,
the medical reports, both outdated and recent do not talk to whether
Siyabuela
is capable of managing his affairs. In this regard,
Ms Mapekula
had this to say:
Siyabulela
has severely compromised cognitive and adaptive skills, and is
therefore not in a position to handle and act responsibly in managing
large sums of money.
[16]
I have already stated what conclusion
Ms Fryer
arrived at.
Doctor A Makangee
, a neurosurgeon expressed
the view that
Siyabulela’s
medical condition has
remained unchanged since October 2005.
[17]
For these reasons, I am not satisfied that the
applicant has made out a case for the relief she seeks.
[18]
For all the above reasons, the application is
dismissed with costs.
_____________
NG BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant
: Adv: Louw
Instructed
by
: NIEHAUS McMAHON &
OOSTHUIZEN
12 Belgravia Crescent
Southernwood
EAST LONDON
Ref: B Niehaus/nmv/MAT1416
Tel.: 043 – 721 3322
For
the 1
st
and 2
nd
Respondent
: Adv:
Poswa
Instructed
by
: ENZO
MYERS ATTORNEYS
121 Devereux Avenue
EAST LONDON
Ref: Mr Meyers
Tel.: 043 – 721 1109
For
the 3
rd
Respondent
:
Adv: Kilana
Instructed
by
: B
BANGANI ATTORNEYS
50 St Georges Road
Southernwood
EAST LONDON
Ref: Mr Bangani
Tel.: 043 – 742 2904
Date
Heard
: 21
February 2019
Date
Reserved
: 21
February 2019
Date
Delivered
: 5 March
2019