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[2019] ZAWCHC 85
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Ex Parte Zanello (19238/2018) [2019] ZAWCHC 85 (10 July 2019)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: 19238/2018
In
the ex parte application of
SANDY
DENNIS ROBERT VALENTINO ZANELLO
APPLICANT
for
the substitution of the curator bonis of
ROSINA
ZANELLO
THE
PATIENT
Coram:
Rogers J
Heard
:
26 & 28 June 2019
Delivered:
10 July
2019
JUDGMENT
Rogers
J
[1]
The above application for
substitution of a curator bonis came before me in Third Division on
Wednesday 26 June 2019. It was uncontentious
that the curator
appointed by this court on 27 March 2019, Mr P F Theron,
should be replaced and that Mr Johan Swart
was a suitable substitute.
An order to that effect was made.
[2]
The contentious issue is
the costs of the substitution application. The applicant (one of the
patient’s sons), supported by
the curator ad litem,
Mr S R Kotze, submitted that these costs should be
paid by the outgoing curator, Mr Theron.
The latter opposed this
request. The matter stood down to Friday 28 June 2019 to allow for
the filing of opposing and replying
papers. Although it occurred to
me that Mr Theron should have been cited as a respondent if the
applicant sought relief against
him, it seemed to me undesirable to
deal with the matter on such a technical basis, particularly since
this course was only likely
to cause delay.
[3]
The circumstances of the
present case are unusual and unlikely to arise again. The order
appointing Mr Kotze as curator ad litem
was made on 24 October 2018.
In his report of 18 December 2018 Mr Kotze identified Mr Theron as a
suitable candidate for appointment
as the patient’s curator
bonis. Mr Theron was at that time a director of the firm Heyns &
Partners. He signed a consent
on 16 January 2019. The application for
the declaration in respect of the patient and for Mr Theron’s
appointment was only
brought in late March 2019. As I have said, the
order for Mr Theron’s appointment followed on 27 March 2019.
[4]
In the meantime there had
been ructions at Heyns & Partners. Mr Theron says that in
February 2019 various disputes which had
been simmering between the
five directors reached boiling point, to such a degree that each
director appointed his or her own legal
representative. Mr Theron
appointed his lawyer on 12 February. Channels of communication were
‘severely strained’,
conducted mainly through the legal
representatives. On 15 February Mr Theron resigned, and was followed
by two others, leaving
the firm with only two directors. The disputes
between the directors and former directors have not yet been resolved
and are the
subject of investigation by the Legal Practice Council.
[5]
Mr Theron states that when
he signed his consent on 16 January he did not envisage leaving the
firm. He has signed no consents since
his departure.
[6]
After making
representations to the Legal Practice Council, Mr Theron informed
that body that he no longer intended to practise
as an attorney, and
his name was duly moved from the roll of practising attorneys to the
roll of non-practising attorneys.
[7]
Mr Theron says that when
he left the firm he no longer had access to any of his files or to
his Heyns email account. Any queries
relating to matters with which
he had been concerned would have been dealt with by the two remaining
directors. Aware that he had
been appointed as curator in various
estates, he instructed his lawyer to write to the firm on 28 February
to seek details and
court orders relating to such matters so that he
could take the appropriate steps to deal with them. Two months later,
on 29 April,
his lawyer received a response from the firm attaching a
list of such appointments. The firm stated that in their submission
Mr
Theron would have to be substituted. They proposed that he
voluntarily resign and that one of the remaining directors be
appointed
as curator bonis in his stead.
[8]
The attached list
consisted of 37 estates in which Mr Theron had been appointed curator
bonis, identified by name and the Master’s
reference number. To
judge by the reference numbers, these appointments were made over a
period of many years (1994 to 2018). Most
recently there were three
appointments in 2015, six in 2016, two in 2017 and five in 2018. At
the end of this list, after the 37
estates so identified, appeared
the name ‘Zanello, R’ with a question-mark in the column
recording the Master’s
reference numbers.
[9]
Since Mr Theron had no
other information concerning these estates, he applied to the firm
for fuller particulars but has not received
a reply.
[10]
While this was going on,
and as I have mentioned, Mr Theron was on 27 March appointed as a
curator in the present matter. According
to the applicant’s
affidavit in the substitution application, his attorneys informed Mr
Theron of the granting of the order
by way of an email of the same
date to his Heyns email address but received no reply. The reason for
this, we now know, is that
Mr Theron had left the firm. On the
evidence before me I must find that the firm did not pass on the
email to him.
[11]
When the issued court
order came to hand on 2 April 2019, the applicant’s attorney
phoned Mr Theron on the Heyns telephone
line but was told that he had
left the firm and that another director of the firm had taken over
his matters. When the attorney
spoke with the director in question to
obtain Mr Theron’s contact details, the latter informed her
that the firm did not
have his contact details and that she doubted
Mr Theron would return to practice.
[12]
The applicant’s
attorney confirmed the discussion in a letter to the director in
question the following day and asked the
latter to explain on what
basis she thought it possible for her to be substituted as curator
upon Mr Theron’s resignation.
On 9 April the applicant’s
attorney emailed the director again, pressing for a reply, which she
received the same day. In
the reply the firm stated that Mr Theron’s
only involvement in the matter had been to sign the consent form. No
file had
been opened and there was no way in which any member of the
firm could have ascertained that he had signed a consent. She
confirmed
having received the applicant’s attorneys’
letter of 27 March but by then the appointment had been made so there
was
nothing the firm could have done to prevent it.
[13]
Mr Theron expresses
surprise that the director in question should have told the
applicant’s attorney that the firm did not
have his contact
information. He had been a director of the firm for more than 15
years, and the firm had all his contact information,
including his
telephone numbers and residential address. The remaining directors
knew, too, who his lawyer was. Furthermore Mr
Theron’s father
and sister are still employed at the firm’s Goodwood branch.
[14]
The applicant’s
attorney managed to get Mr Theron’s mobile number from a
colleague and made various attempts to reach
him but received no
answer. She states that she also left two detailed voice messages for
him on 16 and 17 April 2019 to which
she received no response. In
answer to these allegations, Mr Theron says that he received no
missed calls or voice messages from
the applicant’s attorney on
his cellphone on the dates in question. He has had his current phone
for some years. He has never
enabled his voice message facility so
nobody could have left a voice message for him on that phone. He
pointed out that the applicant’s
affidavit did not identify the
number which the applicant’s attorney had dialled. Since the
applicant’s attorney did
not in her replying affidavit supply
the number she used, I must find on the papers that she had the wrong
cellphone number.
[15]
Be that as it may, the
applicant was then advised to bring the substitution application. A
tracing agency was appointed to establish
Mr Theron’s
residential address so that the application could be served on him.
On 18 June 2016 the application was so served.
An attachment to the
affidavit in support of the substitution application reflects that
the tracing agency charged R600 for its
report.
[16]
In the light of what has
been set out above, one must infer that the inclusion of the name
‘Zanello’ in the list sent
by the firm to Mr Theron’s
lawyer on 29 April was based on the letters the firm received from
the applicant’s attorneys
on and after 27 March. According to
the Heyns letter of 9 April, there would have been no other documents
in the firm’s possession
to indicate that Mr Theron might have
consented to act or been appointed as a curator to Mrs Zanello. It is
most regrettable that
the firm did not pass on to Mr Theron the
communications it received from the applicant’s attorneys.
[17]
Although the substitution
application was presented as one for the removal of Mr Theron, it
seems to me that he did not at any time
become the patient’s
curator bonis. Although there was a court order appointing him, he
was not aware of the order and did
not apply to the Master for
letters of curatorship in terms of s 72 of the Administration of
Estates Act 66 of 1965. In terms
of s 71 he could not administer
the patient’s estate without such letters.
[18]
The applicant’s
counsel argued that the general rule was that an outgoing curator
bonis should pay the costs of his or her
substitution. I do not think
that such a general rule can be laid down or that it is supported by
authority (the cases to which
I was referred were
Ex
parte Bate
1928 CPD
186
;
Ex parte Place
1930 EDL 149
;
Ex
parte Smuts
1935 TPD
23
;
Ex parte African
Board of Executors and Trust Co Ltd
1939
TPD 37
; and
The Master
v White
1946 CPD 24).
The overriding principle is that costs are in the discretion of the
court, such discretion to be exercised judicially with reference
to
all relevant circumstances. In accordance with that principle, courts
have sometimes held that it would be just for a curator
who wishes to
be relieved of his duties to pay the cost of substitution out of his
remuneration (and normally it is the outgoing
curator who is the
applicant for substitution). Whether such an order is just would
depend on the period for which the curator
has held office and the
extent of his or her remuneration. In other cases, where the
appointment has endured for a relatively short
period or the
remuneration has been low in relation to the burdens imposed by the
office, courts have expressed the view that the
costs of substitution
should come from the ward’s estate, at least where there are
sound reasons for the outgoing curator
to seek substitution.
Misconduct on the part of the outgoing curator will naturally be a
very relevant consideration.
[19]
In the present case Mr
Theron has earned no remuneration under the court order appointing
him as curator. As I have said, he did
not even enter upon the
curatorship. In the circumstances, and in the absence of relevant
misconduct, I do not think it would be
just for him to pay the costs
of the substitution.
[20]
The submissions on behalf
of the applicant and by the curator ad litem at times appeared to
rest on the notion that I should disbelieve
Mr Theron when he says
that he had no idea of leaving the firm at the time he signed the
consent. In that regard I need only say
that I have no grounds for
rejecting what an officer of this court has said under oath and that
in accordance with the usual rule
in motion proceedings I cannot
reject his version out of hand.
[21]
If Mr Theron, when he left
the firm on 15 February, recalled that he had signed a consent
relating to Mrs Zanello, and recalled
the identity of the curator ad
litem or of the applicant’s attorneys, it would have been
reasonable to expect of him to contact
Mr Kotze or the applicant’s
attorneys to inform them that he was no longer able to accept the
appointment. Since the application
for his appointment was only made
in the latter part of March, such a communication would have enabled
the applicant to propose
a different curator to the court, rendering
any later substitution unnecessary.
[22]
Mr Theron does not in
terms state that he did not recall these matters, but the whole tenor
of his affidavit is inconsistent with
his having done so. I cannot
say that an attorney in his position would definitely have recalled
the relevant details a month after
signing the consent. He was a
senior practitioner dealing, I may suppose, with many matters. The
disputes among the directors would
also have occupied his mind. I
think he acted reasonably by seeking particulars from the remaining
directors by way of the letter
his lawyer sent to the firm at the end
of February. He only received a response to that enquiry at the end
of April. By then the
order appointing him had already been made, and
the substitution application could not be avoided.
[23]
Mr Theron has not
explained the two-month delay between the enquiry from his lawyer and
the firm’s reply. In the light of
what he says elsewhere in the
affidavit, one gains the impression that he attributes this to a lack
of cooperation from the remaining
directors. I do not know whether,
in the intervening two-month period, his lawyer pressed the firm for
a reply. If one assumes
that his lawyer did not do so, and that such
action would have elicited an earlier response, such response might
have come before
or after 27 March. If it was before 27 March, the
list provided by the firm would not have included the name ‘Zanello’,
because before 27 March there was no file or source from which the
firm could have established that Mr Theron had signed a consent.
Accordingly, a reply before 27 March would not have reminded Mr
Theron of the Zanello case. If the firm had replied to Mr Theron’s
enquiry on or after 27 March, the need for a substitution application
would not have been avoided.
[24]
What should Mr Theron have
done once he received the list containing the name of ‘Zanello’?
I think that this would
or should have caused him to remember signing
a consent in respect of such a patient. The name is an unusual one in
this country.
The curator ad litem’s report of 18 December 2018
indicates that Mr Kotze had discussed the proposed appointment with
Mr
Theron. The curator had tried without success to find a suitable
Italian-speaking person to accept the appointment, so it is probable
that this aspect was mentioned during the discussion.
[25]
If Mr Theron did not
remember the identity of the curator ad litem or of the applicant’s
attorneys, and wished to find out
what had happened in respect of the
matter, an enquiry to the Master’s office may have drawn a
blank because the Master had
not yet issued letters of curatorship to
anyone. On the other hand, it would have been possible to establish
from this court’s
daily rolls whether a curatorship application
in respect of a person with the name Zanello had served before court.
The rolls are
published on SAFLII. If Mr Theron had entered the name
‘Zanello’ as a search term on the SAFLII website, he
would have
immediately learnt that a curator bonis application with
the name ‘Zanello’ and with case number 19238/2018 served
before court on 27 March. (I have done the exercise myself.) He could
then have inspected the court file.
[26]
In this day and age,
practitioners should be aware of the SAFLII website and of the
information obtainable there. Mr Theron can
thus be criticised for
not taking the steps which would have enabled him to make contact
with the applicant’s attorneys before
they brought the
substitution application. But what with this have achieved,
practically? A substitution application would still
have been needed.
The fruitless telephone calls which the applicant’s attorney
made in early April would not have been avoided.
At most, so it seems
to me, such initiative from Mr Theron would have made it unnecessary
for the applicant’s attorneys to
engage tracing agents or to
have formal service effected on him by the sheriff. The tracing
agents charged R600 and the sheriff,
according to the return of
service in the file, charged R925,75.
[27]
Mr Theron can perhaps also
be criticised for not having filed his affidavit promptly after
service of the application on him. On
the other hand, he did take
steps to try to resolve the question of costs. Without admission of
liability, he tendered R5000 which
he later increased to R7500. His
counsel repeated the tender of R7500, saying that his client would
contribute this sum even if
the court found that there were no
grounds to order Mr Theron to pay costs. I do not know the precise
timeline of these offers,
but I think – given the unfortunate
circumstances which had occurred – that it was Mr Theron’s
duty to ensure
that his affidavit was placed before court in
sufficient time that the question of costs could be resolved without
a postponement.
[28]
In short, had Mr Theron
exerted himself reasonably, all that would have been needed was an
unopposed application for substitution
which would have been disposed
of on 26 June without the need for service by the sheriff. Instead,
the applicant and his advisors,
on the strength of the information
available to them at the time, formed the view, not unreasonably,
that Mr Theron had been at
fault and that he should pay the costs of
the application. Because Mr Theron did not file his affidavit by 26
June, they did not
know at that time what his explanation was. This
necessitated a postponement so that costs could be dealt with.
[29]
But was it reasonably
necessary to have a full opposed hearing on the question of costs? In
my view, once the applicant and his
advisors read Mr Theron’s
affidavit, they should not have persisted in pressing for costs
beyond the amount of R7500 which
he had tendered, since the only
additional costs caused by Mr Theron’s failures were the costs
of the tracing agent, of service
by the sheriff and of a second
formal appearance to deal with costs on an unopposed basis. I would
expect his tender of R7500 to
be in excess of such costs. The
applicant and the curator ad litem in truth pursued the question of
costs on 28 June because they
considered that Mr Theron was
responsible for the fact that a substitution application had been
necessary at all, but for reasons
I have explained I disagree.
[30]
Mr Theron’s counsel
submitted that in any event the applicant had pursued an
unnecessarily expensive course by applying to
court for substitution.
He submitted that in terms of s 73(1)(
c
)
read with s 18(1)(
b
)
of the Act the Master could have been approached to make the
substitution. There is authority that substitution under that section
is permissible in the case of a curator appointed by order of court
(
Ex parte Ganga
1979
(1) SA 586
(N)). The Master would have needed to publish a notice in
the
Gazette
.
There is no reason to think that anyone would, in response to the
notice, have raised objection to the proposed substitution.
The
applicant or his attorneys could have transmitted the notice to his
brother, who lives in Australia. On the date appointed
in the notice
the applicant’s attorney could have attended before the Master
and, in the absence of any other proposal, the
Master would have
approved Mr Swart’s appointment.
[31]
I think this argument has
merit and is a further reason why I should not mulct Mr Theron in
costs above the sum he has tendered.
In regard to the balance of the
costs, I have no reason to doubt that the applicant has at all times
acted in what he conceived
to be the best interests of his mother.
The costs exceeding those tendered by Mr Theron should thus come from
the patient’s
estate, and should not be ordered against the
applicant personally.
[32]
I make the following
order:
(a) In accordance with his
tender, Mr Pieter François Theron shall, within one week from
the date of this order, pay to the
applicant’s attorneys an
amount of R7500 in respect of the costs of substituting Mr Johan
Swart in his stead as curator bonis.
(b) Save as aforesaid, the costs
occasioned by such substitution, including the appearances on 26 and
28 June 2019, shall be borne
by the patient’s estate.
(c) No order is made in relation
to Mr Theron’s own costs.
______________________
Judge
O L Rogers
APPEARANCES
For
Applicant
Ms
N van Zyl
Instructed
by
Shepstone
& Wylie
18
th
Floor, 2 Long Street
Cape
Town
For
Mr P F Theron
Mr
L J Smit
Instructed
by
De
Klerk & Van Gend Inc
3
rd
Floor, Absa Bank Building
132
Adderley Street
Cape
Town
Curator
ad litem of the Patient
Mr
S R Kotze