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
>>
2016
>>
[2016] ZAGPPHC 424
|
|
Ex Parte Maimane (64547) [2016] ZAGPPHC 424 (3 June 2016)
IN
THE HIGH
COURT OF
SOUTH
AFRICA
(GAUTENG
LOCAL DIVISION,PRETORIA)
Case
no: 64547/2013
DATE:
3 JUNE 2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the ex
parte
application of:
DAISY
BUSISIWE
MAIMANE
...
.............................................................................
Applicant
JUDGMENT
MAGARDIE
AJ:
1.
This
an
ex
parte
application
brought
by
the
mother
of
one
Priscilla
Mamoletlane
Maimane (Priscilla), for the setting aside of the
appointment
of a
curator
bonis
allegedly
appointed
per
court
order
to
manage
the
affairs
of
Priscilla
and
thereby
releasing
her from
curatorship.
In the
alternative,
in the event
that
the court
is not keen to
grant the
main prayer,
the
applicant wants
the
court
to
discharge
the
appointed
curator
bonis
and
to
appoint her as the
curator to manage the affairs of her daughter.
2.
It
is
appossite
to
mention that
the
same
applicant
initiated
an
application
before the Gauteng High Court, Johannesburg, under
case nr 22106/2012,
against
the
trustees appointed
per
court order to manage
the
financial
affairs
of
Priscilla
pursuant to the
Road
Accident
Fund (RAF) payout
in
favour
of
Priscilla.
It appears that the Johannesburg application is still pending. It was
not
explained
why
the
applicant decided
on
forum shopping
instead
of
making
the
current
application
in
Johannesburg.
3.
Although she did not
cite
the
trustees
in
this
matter,
the application
was
served on the trustees. The trustees were
represented
during the argument of the matter before me.
4.
From the
perusal of the
papers
before me, the
incident giving rise to the
claim
against the
RAF
was
a motor vehicle accident which occurred
on or about
19 February
2006,
during which Priscilla was
knocked
down
by
a motor vehicle.
Priscilla, who
is
currently 24 years
of age, was
a
minor child at the time of the
accident.
She,
inter alia,
sustained
severe brain
damage.
5.
Priscilla
was
assisted
by
her
mother
to
lodge
a
claim
against
the
RAF. Priscilla's
mother
contracted
the
services
of
J
J
S
Manton
Attorneys
to
institute a claim against
the
RAF. Since Priscilla was a minor and also unable to manage her own
affairs, application was made for the appointment of Mr
Irvin
Smith, a practising advocate, as
curator
ad /item.
6.
Summons
against the
RAF
was
issued
under
case
no
18204/2007
in the
Gauteng High
Court,
Johannesburg.
On 18
July
2009,
the
parties
concluded
a settlement
agreement
after which
Joffe
J made the
settlement
an order
of
court.
7.
The terms of the settlement agreement which was
made
an order of court,
inter alia,
contained
the
following:
7.1
That
an
amount
of
R1
600
579.00
should
be
paid
as
full
and
final
settlement of the claim. Such amount to be paid
into the trust account
of
J
J
S
Manton
Attorneys by
30
June
2009;
7.2
That the RAF shall pay the taxed or agreed party
and party costs on the High Court scale as well as the reasonable
costs of the
curator ad
litem
;
7.3
That the
firm J J S Manton
Attorneys
shall establish a trust for the sole
benefit
of
Priscilla;
and
7.4
That the net proceeds of the capital would be held in trust in terms
of
the provisions of section 78(2)(A) of
the
Attorneys Act until
the establishment
of
the
trust.
8.
Joffe J did not make any order for the appointment of a
curator
bonis.
Such is
not
surprising given the fact that there was an order for the
establishment of
the
trust.
The
trustees appointed
to
the
trust
were supposed to
act in
Priscilla's best interest.
9.
The
amounts
of
R1
619
610.54
together
with
the
party
and
party
costs
of
R157
452.
15
was
paid into
the trust account of J
J
S Manton Attorneys by
the RAF on 05 August
2009
and 21 April 2010
respectively. A total amount
of
R1
777
062.69
was therefore paid
by
the RAF.
10.
The Maimane Trust was established for the benefit of Priscilla in
accordance
with
the
court
order.
An
amount
of
only
R980
000.00
was
paid
into
the
Maimane Trust.
11.
The
applicant is
aggrieved
that, being
Priscilla's
mother,
J
J
S
Manton Attorneys
failed to account for approximately
R700
000.00 as well as legal costs, making
the
total amount of over R857 000.00 that apparently remains
unaccounted for. She averred that there was no
contingency fee agreement
concluded between
her and the attorney she instructed to institute the claim against
the
RAF,
namely
J
J
S
Manton.
12.
There was no contingency fee agreement
presented
before me to disprove the applicant's allegations.
It
is
trite that for an attorney to claim
contingency
fees, there must be
an
agreement in
writing in
terms
of
which an attorney can
retain
an amount that does not
exceed
25% of
the payout.
Absent
a
contingency
fee
agreement
that
complies
with
the
provisions
of
the
Contingency Fees
Act, 66
of 1997
as
amended, the
attorney
cannot claim
the benefit
of
the
contingency
fee.
13.
When regard is had to the total payout including
the
amount for legal fees, at best,
the
applicant's former attorneys could not legitimately retain
the
amount that
they
did
as
fees.
The
conduct
of
the
applicant's
former
attorneys
of retaining
the amount of approximately R797 062.69 certainly appears to be
unlawful
and if
so
found, constitutes dishonourable
and
unprofessional
conduct.
14.
Against the forgoing backdrop, there can be little
surprise, if any at all, when the
applicant
expresses her
unhappiness
with
the
manner
in
which
the
trustees conducted
themselves
in
this regard. It
was
the
duty of
the
trustees
to act in the
best interest of Priscilla. A duty was
upon
them to
interrogate the
amount
paid into the Maimane Trust bank account when considered against
the
background
of
the
total
amount
paid
by
the
RAF.
In
this
regard,
the applicant
also highlighted
that, knowing
that
Priscilla is
wheelchair
bound,
the trustees have falied to ensure that the house
she lives in is made
wheelchair friendly.
I
must add that one of
the trustees was
in fact the applicant's
attorney
at the time of the
litigation against the RAF.
15.
On
10
March
2014,
this
application
came
before
Kollapen
J,
who
then
made
an
order appointing Mr Alexander
Politis,
a practising advocate,
as
curator
ad
litem
to
investigate and
report to the court on the ability of Priscilla to
manage her own affairs. There was
no order
for the appointment of a
curator bonis.
16.
I
have
already
mentioned
that
Priscilla
suffered
brain
damage
as
a
result
of
the
motor
vehicle
accident.
However,
over
a
period
of
time,
Priscilla
made
remarkable
recovery.
She
was
able
to
study
and
completed
the
NQF
level
II
qualification.
She
is
currently
employed
as
a
business
administrator.
When
the application
came
before
me,
the
curator
ad /item
had
already filed various
expert
reports, to which I was referred, demonstrating Priscilla's recovery
from
her
injuries
as
well
as
the
fact
that
she
is
now
of
a
sound
mind
and
can
manage
her
own
affairs.
I
was
shown
Priscilla,
who
was
sitting
in her
wheelchair
during
the
hearing of the matter.
17.
All the experts that examined Priscilla are in agreement
that
she is of a sound mind
and
able
to
manage
her
own
affairs. Such
can
come
as
no
surprise
when
considered
against the
fact
that
she
completed the
NQF
level
II qualification
and is currently
employed.
Although
Mr Politis did not
take
Priscilla to the
original experts
who
examined her after
the
injuries and concluded
that
she
suffered
brain damage,
nothing
turns
on the
issue
when considered
against
the background that
there
is
no
dispute
that she
was deed
examined by experts.
I am satisfied
that she
is indeed of a
sound
mind and able to manage her own
affairs.
18.
Returning to the order that the
applicant
seeks
in the
notice of motion,
I
have
already mentioned
that neither Joffe J nor Kollapen J ordered the appointment
of
a
curator
bonis
to
manage
Priscilla's
affairs
consequent
upon the
injuries
she
sustained from
the
motor
vehicle
accident.
This
begs
the
question as to
why
the
court
was
approached
for
this relief
in
the
first
place.
Surely,
the
applicant's
legal
representatives
knew
or
should
have
known
that
no
curator bonis
was
ever
appointed to
manage
Priscilla's
affairs. There
was
Mr Smith
who
was
the first
curator
ad
/item
appointed, followed
by
Mr Politis who
was
also
appointed per the order of Kollapen J.
19.
In a
nutshell,
the
applicant
has
approached
the
court
to
set
aside
an appointment
that does not exist.
I was
not
referred to any court order
in terms
of which a
curator
bonis
was
appointed.
Further, the applicant did not identify the
curator
bonis
allegedly appointed
per
court
order.
To
this
end, the
application
is
misconceived
and
defies
logic.
It
is
unpalatable
that
the applicant's
legal
representatives
could
pursue a matter
like
this which is of
no assistance to
the applicant.
20.
I am
however
of
the
view
that
misconceived
as
it
is,
the
application
has
managed to bring to the fore possible acts of
misconduct on the part of the
applicant's
former attorneys who represented her in
the
litigation against the
RAF. It is
my
view
that
this
judgment must
be
furnished to
the
secretary of
the
Law
Society
of
the
Northern
Provinces
to
investigate
possible
acts
of
misconduct on
the
part
of
the
applicant's
former
attorneys, J
J
S
Manton Attorneys.
There
must
be
some
investigation
on
what
became
of
the
other portion of
Priscilla's payout from the RAF.
21.
Having
said
the
forgoing,
the
relief
that
the
applicant
seeks
in
the
notice
of
motion
is
therefore
incompetent
and
one
that
I
cannot
grant
since
it
will
be tantamount
to
setting aside
an
appointment that was
never
made.
The alternative
relief also falls
away
insofar
as
it
is predicated
on the
existence
of an appointment that
does
not exist
as well;
the
applicant
is
seeking an order to appoint herself in
the
place of the
curator bonis
who
does not exist.
22.
If the intention of the applicant is to get appointed to manage her
daughter's
affairs, I fail
to
understand
the
basis
thereof
since
the
experts' reports
presented
to me
are all in
agreement that Priscilla is of a sound
mind
and
can
manage
her own affairs. Moreover, Priscilla has grown up and is
no
longer a minor
child
she
was
at
the
time
of
the
accident.
23.
The
applicant has
a
pending
application
at
the
Johannesburg
High
Court
seeking the
discharge
of the trustee.
If
it
is her
intention to gain control of
her
daughter's
affairs
or
to return
her daughter's
affairs
to the daughter,
perhaps the
Johannesburg
application
is the
one to
pursue.
However,
insofar
as the
matter before me is concerned, the applicant was
certainly ill-advised.
24.
Considering the fact that this application was
instituted on the advise of the applicant's
legal
representative, I
am
of
the
view
that
an
order
de
bonis
propriis
is
appropriate
under
the circumstances. As I mentioned
herein
above,
I
am
of
the
view
that it
should have
dawned upon
the
applicant's
legal representatives
that
they
were
pursuing a
relief that
could
not
be
granted
insofar as they should have known
that no
curator bonis
was
ever appointed.
This
is
evidenced
by the fact
that
the
applicant
could not even
identify
the name
of
the
curator bonis
whose
appointment
was supposed to be
set
aside.
25.
In
the result, I make
the
following
order:
25.1
The application is
dismissed
with costs
de bonis propriis;
25.2
The
registrar
is
directed
to
furnish
a
copy
of
this
judgment
to
the Secretary of the Law Society of the
Northern Provinces to investigate
possible
acts
of
misconduct on
the
part
of
the
applicant's
former
attorneys, J
J
S
Manton Attorneys,
who
represented
the applicant in
the
initial
litigation
against
the
RAF.
S.L.
MAGARDIE
ACTING
JUDGE OF THE HIGH COURT, PRETORIA