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[2016] ZAGPPHC 1107
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Nel N.O. obo Jumba v Macbeth Attorneys Incorporated and Others (86454/16) [2016] ZAGPPHC 1107 (30 November 2016)
THE
REPUBLIC OF SOUTH AFRICA
I
N
THE GAUTENG HIGH COURT: PRETORIA
Case
number: 86454/16
Date:
30/11/2016
ADV
NEL N.O obo WEZI BEVERLY
JUMBA Applicant
AND
MACBETH
ATTORNEYS
INCORPORATED First
Respondent
MANDLA
MACBETH NCONGWANE
Second Respondent
BONGANIMANTSANE
Third Respondent
SIBONGILE
MUWAMBA
CHIMIMBA Fourth
Respondent
FRIDAY
JUMBA
Fifth
Respondent
LAW
SOCIETY OF THE NORTHERN
PROVINCE Sixth
Respondent
Heard:
17 to 18 November 2016
Order
made: 21 November 2016
Reasons:
30 November 2016
Reasons
for Judgment
Molahlehi
AJ
Introduction
[1]
This judgment provides reasons for the order which was made on the 21
November 2016. The order was made following the urgent
interim
interdict launched by the applicant. The matter was heard over a
period of a day and a half. The essence of the order,
which was made
thereafter, is that the first respondent is required to pay into the
trust account of Weavind and Weavind Attorneys
(the applicant’s
attorneys), moneys received from the Road Accident Fund (RAF) on
behalf of Ms Wezi Beverley Jumbe (the patient).
The first respondent
was further ordered to deliver to the applicant's attorneys certain
documents relating to the estate of the
patient
[2]
The first part of the order, being Part A, is an interim order
pending the launch of further proceedings against the first and
second respondents (the respondents) by the applicant, which has to
be made within ninety (90) days of the date of the order. The
relief
sought for the proceedings that are to follow hereafter, is set out
in Part B of the notice of motion.
[3]
In Part B of the notice of motion the applicant seeks an order
directing the sixth respondent, the Law Society of the Northern
Province, to conduct an inspection of the books of accounts of the
first respondent relating to the management of the settlement
amount
paid on behalf of the patient into the trust account of the first
respondent.
[4]
The order was also varied to effect certain typographical errors at
paragraph 5 thereof. [5] The respondents opposed the application
and
applied for condonation for the late filing of their answering
affidavit. Erroneously the order does not deal with the condonation
for the late filing of the answering affidavit by the first and
second respondents. Having regard to the context in which this
application is made and the reasons proffered by respondents, I am of
the view that it would be in the interest of justice to grant
condonation. The late filing of the first and second respondents'
answering affidavit is accordingly condoned.
[6]
The other application that needs consideration, in this matter is the
counter- application filed by the respondents.
[7]
In opposing the application, the respondents raised certain points
in
limine
which were dismissed with costs. The reasons
for that are also set out in this judgment.
[8]
It was agreed at the beginning of the hearing that the points
in
limine
would be heard first and thereafter the
counter-application. It follows from this approach that the court
would deal with the main
application only if the points
in limine
and or the counter application were unsuccessful. As it
appears later in this judgment both the points
in
limine
and the counter-application were unsuccessful and accordingly the
court proceeded to deal with the main application.
[9]
It seems to me that it is apposite to deal with the background facts,
before dealing with the points
in limine
raised by the
respondents, for the purposes of providing the broader and objective
understanding of what the issues are in this
matter. Those facts are
important, for in addition to placing the matter into its context,
they also serve to highlight the reason
for the conclusion arrived at
the end of the hearing. I do not intend dealing with each and every
fact relating to the background
facts of this matter but the focus is
on those which I regard as relevant and important for the
determination of the issues raised.
Background
facts
[10]
It is common cause that the patient instructed the first respondent
to assist her in launching her claim against the Road Accident
Fund
(RAF) arising from the injuries she suffered as a result of the motor
vehicle collision, she was involved in The first respondent
is a firm
of attorneys registered with the Law Society of the Northern
Provinces. The patient suffered severe injuries including
a severe
head injury as a result of the collision.
[11]
The doctor who attended the patient recommended that a
curator
ad
litem be appointed to assist her in lodging a
claim against the RAF. The doctor's made the recommendation is based
on the finding
that the patient was not capable of managing her own
affairs.
[12]
The third respondent, Mr Bongani Mantsane, was on 13 April 2011
appointed as
curator ad
litem for the patients in terms
of Rule 57(1) of the Uniform Rules of the Court (the Rules). The
order provides as follows:
1.
" Appointing Bongani Matsana as curator
ad
litem
of
Wezi Beverlyy Jumbe born on the 28th of February
1980 ("herein referred to as the patient") for the purpose
of proceeding
with
the
action for damages instituted under case number 08/50304 arising out
of injuries sustained by the patient in a motor accident
which
occurred on the 4th of November 2008.
2.
THAT granting Bongani Matsane all such powers and or authority as is
necessary to proceed with the action and pursue
such proceedings to
their final end and conclusion and granting the power and or
authority to him to negotiate a settlement of
such claim on behalf of
the patient which settlement shall be subject to the
approval of this Court including
the power to ratify all steps
take to date hereto in pursuit of such action.
3.
THAT APPOINT Bongani Matsane as curator
ad
item
with powers and for the purposes Contemplated in Rule 57.
4.
THAT the remainder prayers be and is hereby
postponed sine die."
[13]
It is common cause that following the above order the parties
concluded a settlement agreement which was subsequently made
the
order of the court on 24 May 2013. In terms of the order the RAF
undertook to pay the patient the amount of R5 432 784, 00
in
settlement of the damages claim. The amount was to be paid into the
trust account of the first respondent.
[14]
The order further required the RAF and the first respondent to do the
following:
i.
Furnish the trustees who were to be appointed with an undertaking in
terms of
s 17
(4) (a) of the
Road Accident Fund Act 56 of 1996
,
concerning future medical expenses,
ii.
the undertaking in terms of
s 17
(4) (a) of the Act was to be
administered by the trustees,
iii.
Pay the patient’s taxed or party and party costs,
iv.
the first respondent was to pay the capital remaining after all the
relevant cost had been paid into
the Trust which was supposed to have
been created within 12 months of the date of the order,
v.
the Trust Deed was to be signed within 30 days from the date of the
order.
[15]
The importance of the establishment of the Trust is underscored by
clause 6 of the
order
which provides as follows:
"6.
Should the aforementioned Trust not be created with in the
aforementioned period 12 (twelve) months the plaintiff is directed
to
approach this court within 1 (one) month thereafter in order to
obtain further directives in respect of the manner in which
the
capital amount is to be utilised in favour of Wezi."
[16]
The first trustees of the Trust were supposed to have been:
i.
Mr Macbeth Ncongwane, the second respondent
ii.
Sibongile Muwemba Chimimba, a citizen of Malawi, apparently resident
in England. Friday Jumba,
apparently based in Malawi.
[17]
The events after the order of 24 May 2013 was made, are briefly as
follows:
a.
the second respondent informed the patient that the money was in the
Trust and that he was appointed
as her "guardian."
b.
the patient was furnished with a bank card from which she could draw
the monthly allowance of R15
000,00.
c.
the bank debit card issued to the patient was in the name of the
second respondent.
d.
at some point the patient lost the debit card but was thereafter
issued with a substitute card
by the second respondent.
[18]
It would appear that the patient became suspicious after receipt of
the substitute bank debit card from the second respondent.
The
suspicion was raised by the fact that the account details were not
the same as those of the lost card. It was following this
discovery
that she requested a statement of account detailing how the capital
amount was invested and dealt with by the first respondent.
After
this discovery, the patient addressed several emails to the
respondents expressing her dissatisfaction with the manner in
which
the capital amount was being managed. She, for instance, addressed
the email on 26 August 2014 to the office manager of the
first
respondent wherein she requested four months' bank statement.
[19]
The patient pursued the issue of the management of the capital amount
in another correspondence dated 11 June 2015, addressed
to the
respondents. This was followed by a telephone conversation between
the patient and the office manager of the first respondent
who during
that conversation informed her that the second respondent had
approached the court to have the estate handed over to
her. The
reason for this, the patient, was informed, was because the second
respondent believed that she (the patient) was in a
position to run
her own affairs.
[20]
The idea to have the estate handed over to the patient was confirmed
further in an email from the first respondent dated 6
April 2016,
wherein she was informed that preparations were underway for a
variation of the order made on 24 May 2013, the purpose
of which was
to ensure that the patient took charge of her own affairs.
[21]
On 12 June 2015 the second respondent in response to the queries
raised by the patient addressed the letter to her which reads
as
follows:
"Dear
Wezi
The
Courts are reluctant to keep you inside the country. DOH wants you to
apply outside the country. We got the Court ordered that
you must not
be deported as per Judge Prinsloo but emphasis was made by Judge
Nuiwenhuizen that you must apply for medical visa
outside the
Republic if your visa has expired. Mirna told you that and you
insisted that you want tickets for August. This also
distresses me
because you don’t wanna follow the law and my instructions.
Last year you said you wanted money to pay for
you Granny's flight
ticket to come and resolve your status in the country it did not
happened (sic).
I'm
unable to claim from the fund all the money is used for medical and
stay in SA because there is no Trust established by Bongi,
Uncle and
I, as a result your funds will deplete very fast because nothing is
claimed at RAF hence I have instructed counsel to
amend the order
that you can plan your affairs including to correct your status in
the Country on your own. . .
The
Range Rover I bought for you is at Land Rover Nelspruit and it is a
subject of litigation due to the fact that it was not fixed
and
eventually was stripped by the previous owners of the dealership
(Autotech) now Supergroup the new owners they don't wanna
take
responsibility.
I'm
your guardian by law, the Judge said you are here because of me but
if you don't wanna do as I advise I have no choice but to
report your
defiance to authorities. So I need you to cooperate with me."
[22]
During August 2016 the patient was invited to attend a meeting at
Dyson Attorneys where she was presented with a draft founding
affidavit supporting an application for the variation of the court
order made on 24 May 2013. The draft affidavit suggests that
the
patient was declared incapable of managing her personal affairs
because of a miscommunication and misunderstanding by some
trustees.
At the same time the affidavit states that there had been significant
improvement in the physical and mental state of
the patient; since
the order of 24 May 2013. It is for this reason that the doctor had
apparently, now belief, that she is capable
of managing her affairs.
The affidavit further states the following:
"5.1
5.7
5.8 "As a result of the above-mentioned I submit the order
granted on 24 May 2013 was granted as a result of a mistake,
common
to both parties, in that it was believed I would not be able to look
after my own affairs. The report referred to in 5.6.1
above states
that I can manage my own.
5.9
The attorney who presently administers the funds allocated to me,
Macbeth Ncongwane supports this application and I attach hereto
his
confirmatory affidavit . . ."
[23]
On 30 September 2016, Mr Cloete of the applicant's attorneys of
record, send the email to the first respondent informing it
that they
had received instructions from the patient and that they would be
writing to them regarding the concerns they have regarding
her
matter.
[24]
On 3 October 2016, the first respondent addressed an email to Mr
Cloete enclosing therein the draft application for the variation
of
the order of 24 May 2013 and indicating that the delay in moving the
application was due to the patient not signing the same.
The email
further requested Mr Cloete to persuade the patient to sign the
affidavit.
[25]
On 24 October 2016, the first respondent addressed the letter to Mr
Cloete, the essence of which was to inform him that the
patient was
owing rental at the property where she was staying at Willow Crest.
The letter demanded payment of the arrears immediately
otherwise she
would be evicted. It later transpired that the property in question
is owned by AA-TAK-THINK Trading 102 CC. The
sole member of that
close corporation is the second respondent.
[26]
In another letter dated 31 October 2016 the applicant's attorneys
summarised the issues which the first respondent was supposed
to have
attended to in terms of the court order of 24 May 2013. The most
important aspect of that letter for the purposes of this
judgment is
found at paragraph 10 which reads as follows:
"In
addition to the aforegoing, and insofar as you might be labouring
under any misconception, our client hereby formally terminates
your
mandate. In this regard we specifically wish to point out that your
contentions raised in various correspondence that our
client has been
declared a
"Patient'
and that you have been
appointed as her
"Guardian''
in terms of the Court Order
is not only totally misplaced, but untenable in law. We specifically
invite you before the deadline
furnished herein to draw out attention
to the paragraph in the Court Order in terms of which our client was
declared a "Patient"
or incapable of managing her own
affairs."
Preliminary
points
[27]
The respondents in opposing the applicant's application have raised
the issue of
locus
standi
of both Mr Cloete and
the applicant in the present curator ad litem. . They also contended
that the approach adopted by the applicant
in instituting these
proceeding constitutes "a fatal irregularity".
[28]
The
locus standi
point is based on the following contention:
i.
The complaints against the respondents were not submitted to the Law
Society prior to it being
brought before the court.
ii.
At the time of instituting the proceedings, to have Adv Nel appointed
as the
curator
ad
litem
, Mr Cloete
did not have a proper mandate from the patient to institute such
proceedings.
iii.
The order of the 24 May 2013, amongst other things, directed that the
patient's money from the
RAF should be paid into the trust account of
the first respondent as attorneys of record of the patient.
[29]
Counsel for the respondents contended in his submission that the
patient was incapable of giving instructions to Mr Cloete
to
institute the proceedings to appointed Adv Nel as a
curator
ad
/item
in terms of Rule 57 (1) of
the Uniform Rules of the Court (the Rules). The patient was,
according to Counsel, incapable of giving
instructions to Mr Cloete,
because she had been declared, "unable to act in her best
interest in financial and legal matters."
It was further
contended that the patient knew the second respondent much better
than she did with Mr Cloete and thus had an intimate
relationship
with the second respondent.
[30]
In relation to the applicant, the respondents contended that he could
not claim to have personal knowledge of the affairs of
the patient
because the first time he became involved with the patient was on 4
November 2016, when he was appointed
curator
ad
litem.
His testimony as contained in the founding affidavit was
hearsay and further that no application was made to have that
evidence
admitted as such.
Evaluation
and analysis
[31]
Whilst it may be correct that the applicant came into the picture in
as far this matter is concerned after the order of 4 November
2016,
the facts set out in his affidavit are largely based on documents the
contents of which have not been disputed and the respondents
on their
own version had knowledge thereof. The failure to comply, for
instance, with the provisions of the court order set out
in
applicant's affidavit are not in dispute. Firstly, the Trust was, on
the version of the respondents, never established. Secondly
the
purchase of the Land Rover and the repairs effected to it from the
funds of the patient has not been disputed. In any case,
I see the
evidence provided by applicant having been directed at establishing
the fundamental issues which the respondents had
to deal with in
their answering affidavit.
[32]
In my view the
locus standi
points raised by the respondents
have no merit and stands to be dismissed for the reasons set out
hereafter. Mr Cloete in instituting
the proceedings in terms of rule
57 (1) of the Rules, for Adv Nel to be appointed as a
curator
ad
/item,
did so on the basis of the
instructions received from the patient. The contention that the
patient did not have the capacity to
instruct Mr Cloete is
unsustainable when regard is had to the totality of the facts and the
circumstances of this matter.
[33]
It is common cause in this respect that the order appointing
applicant as
curator
ad litem
has not
been set aside and the attempt to do so in terms of the
counter-application has, as will appear later in this judgment been,
unsuccessful . As the matter stands currently, there can be no
dispute that applicant, as
curator
ad
/item
is the most qualified person to protect the interest of the
patient. This is even more so when regard is had to the failure by
the
first respondent to comply with the court order of 24 May 2013.
In this context the mandate which was given to the third respondent,
as by the court order has to be noted. His main role was to assist
the patient in litigating against the RAF. It is common cause
that
the issue of litigating against the RAf came to the end when the
settlement agreement was concluded and more importantly when
that
settlement agreement was made the order of the court.
[34]
As concerning the issue of the capacity of the patient to instruct Mr
Cloete, on her behalf, it is common cause or at least
it cannot be
disputed that the patient was never declared insane but was rather
declared to be incapacitated from dealing with
her financial and
legal affairs. In fact on the version of the respondents, but for her
delay in signing the supporting affidavit
to vary the order of 24 May
2016, she would have at that stage been permitted to take full
responsibility for her own affairs.
The application to vary the order
to that effect was drafted by the second respondent who also drafted
his own supporting affidavit
for the application to vary the order.
The view that the patient had the capacity to approach and instruct
another attorney of
her own choice, in circumstances where
prima
facie
evidence pointed to mismanagement of her fund by the
respondents, is even stronger when regard is had to the exchange of
correspondence
between her and them.
[35]
The contention that Mr Cloete could not take instructions from the
patient because there was "no intimacy" between
them bears
no merit as it has no basis in public policy consideration or legal
principle.
[36]
The other point, which does not appear on the papers, raised by the
respondents' Counsel is that Mr Cloete had no right to
"investigate
another attorney." The approach adopted by Mr Cloete, according
to the respondents' Counsel, is unconstitutional
and amounted to
discrimination. Counsel did not, however, provide any authority for
this proposition. The basis of the alleged
discrimination was not
substantiated neither was it made out in the respondents' papers.
[37]
The contention that the applicant should have approached the Law
Society before instituting these proceedings is also unsustainable.
It is unsustainable because there is no law or policy considering
that dictates that the Law Society must first be approached before
instituting proceedings in court against an attorney who is
mismanaging the financial affairs of a client.
The
counter-application
[38]
Although the counter-application is silent as to which rule is relied
on in instituting the proceedings, it is apparent from
the reading of
the affidavit that it is rule 42 of the Rules. The respondents are,
in this regard, seeking to have the order made
on 4 November 2016
rescinded. The application is essentially based on the contention
that the approach adopted by the applicant
is subversive of the order
made on 24 May 2013.
[39]
It is important to note that the respondents' counter-application was
initially not supported by a notice of motion. In response
to the
question put to him about this issue by the court, Counsel for the
respondents contended that it was not necessary to do
so as this was
a counter-application. He, in this respect, relied on Erasmus
Superior Court Practice and referred specifically
to page 01-81. The
notice of motion was, however, submitted on the second day of the
hearing.
(a)
Counter - applications are governed by Rule 6 (7) of the Rules. Rule
6 (7) reads as follows Any party to an application proceedings
may
bring a counter application or may join any party to the same extent
as would be competent if the party wishing to bring such
counter-application or join such party were a defendant in an action
and the other parties to the application were parties to such
action.
In the latter event rule 10 shall apply
mutatis
mutandis.
[40]
The above authority rel
i
ed
on by the respondents' Counsel do not support his proposition that
counter-application
are
dependent on the main application
and thus
the appl
i
cable
general rules regarding applications would not apply. In
fact, the
very first comment
made
by
the
l
earned
author
in
dealing
with the
provisions
of
rule
6
(7)
(a) states
that; "Counter-applications
are subject
to the general principles applicable to
applications."
[1]
It,
accordingly,
follows
that
a
counter-application
has
to
comply
with
the
provisions
of rule 6
(1)
of
the Rules, in that it must be brought on notice and supported
by an
affidavit
setting out
the facts
relied upon.
[2]
Put
in another
way, a
counter-claim
is
not
deferent
to
any
other
appl
i
cation
in
that
it
has
to
comply
with
the
requirements
of
the rule as
an application.
[41]
The counter-application was brought on an urgent basis and thus rule
6 (12) of the Rules is applicable. Rules 6 (12) provides
as follows:
"(12)
(a)
In urgent applications the court or a judge may
dispense with the forms and service provided for in these Rules and
may dispose
of such matter at such time and place and in such manner
and in accordance with such procedure (which shall as far as
practicable
be in terms of these Rules) as to it seems meet.
(b)
In every affidavit or petition filed in support of any
application under paragraph
(a)
of this sub-rule, the
applicant shall set forth explicitly the circumstances which he avers
render the matter urgent and the reasons
why he claims that he could
not be afforded substantial redress at a hearing in due course."
The
respondents do not seem to take issue with the fact that they in
their counter application were required to comply with
the
requirements of Rule 6 (12) of the Rules.
[42]
The respondents deal with the issue of urgency in their counter
application under the heading "COUNTER-APPLICATION AND
URGENCY"
and that is from paragraph 63 to 68 of the application. It is clear
from the reading of these paragraphs that the
issue urgency is
neither dealt with explicitly nor can it be inferred therefrom. The
same applies to the irregular notice of the
counter-application which
was submitted on the second day of the hearing. It is silent in as
far as urgency is concerned. There
is no prayer in the belated notice
of motion or the founding affidavit requesting condonation for the
non compliance with
the rules relating to time frames for
service and filing the application. There is also no prayer to have
the matter treated as
one of urgency.
[43]
It is for the above reasons that all the points
in
limine
raised by the respondents were dismissed with costs. The
counter-application was struck of the roll for lack of urgency.
The
main
application
[44]
The main
appl
i
cation
in
the
present matter is
instituted
by
the
appl
i
cant,
as
the
curator
ad litem
of
the
patient. The relief
sought is
quasi-vindicatory
in
nature.
In
Stem
and
Ruskin
N.O
v
Appleson,
[3]
the
court
in
dealing
with
the
vindicatory
relief
had
the
following
to
say:
"...
applicants cannot obtain an interdict unless they prove in addition
to a prima facie case an actual or well-grounded apprehension
of
irreparable loss if no interdict is granted. In the case of
vindicatory or quasi-vindicatory claims, this is presumed until
the
contrary is shown. In the case of all other claims, it must be
established by the applicant for the interdict as an objective
fact.
It is not sufficient to say that the applicant himself bona fide
fears such loss."
[45]
In Pieterse v Broderick and Others,
[4]
the court held that:
"[15]
Generally, the quasi-vindicatory claim is in respect of some object,
however, in certain limited and circumscribed circumstances
money too
can be interdicted. This is so if the money to be interdicted is
identifiable with or is earmarked as a particular fund
to which the
plaintiff claims to be entitled."
[46]
In
Fedsure
Life
Assurance
Co
Ltd
v
Worldwide
African
Investment
Holdings
(Pty)
Ltd
and
Others,
[5]
the
court
held
that:
'[16]
Money has also been interdicted in cases of misappropriation of funds
where the money has indeed been mixed with other monies
and moved
from one account to another. In such circumstances where an interdict
is sought to preserve the money held in a given
account pending a
trial."
[47]
There can be no doubt in the present matter, and it has not been
disputed that the money in question is identifiable and earmarked
for
the patient.
[48]
Turning
to
the approach to adopt
when
considering an interim
i
nterdict
pending
further litigation, it
was stated
in Erickson Motors v Protea Motors Warrenton and
Another,
that:
[6]
"The
granting of an interim interdict pending an action is an
extraordinary remedy within the discretion of the Court. Where
the
right which it is sought to protect is not clear, the Court's
approach in the matter of an interim interdict was lucidly laid
down
by INNES, J.A., in
Setlogelo v
Setlogelo,
1914
AD 221
at p. 227. In general, the requisites are -
(a)
a right which, 'though
prima facie
established, is
open to some doubt';
(b)
well-grounded apprehension of irreparable injury
(c)
the absence of ordinary remedy.
[49]
In exercising its discretion the Court weighs,
inter alia,
the
prejudice to the applicant, if the interdict is withheld, against the
prejudice to the respondent if it is granted. This is
sometimes
called the balance of convenience.
[50]
The foregoing considerations are not individually decisive, but are
interrelated; for example, the stronger the applicant's
prospects of
success the less his need to rely on prejudice to himself.
Conversely, the more the element of 'some doubt', the greater
the
need for the other factors to favour him. The Court considers the
affidavits as a whole, and the interrelation of the foregoing
considerations, according to the facts and probabilities ..."
[51]
In dealing with the onus of applicant concerning irreparable harm in
urgent interdicts concerning vindicatory or quasi-vindicatory
interdicts the court held that:
"[13]
Where the interim interdict seeks to protect the property forming the
subject matter of the main action in cases of a
vindicatory or
quasi-vindicatory claim irreparable harm is presumed and there is no
onus on the applicant to make out a case in
this regard. . ."
[52]
The case of the applicant in the present matter is based on the
complaints that the respondents failed to comply with the provisions
of the court order and are in breach of the obligations set out in
that order. There are two main aspects relating to the non
compliance with the court order which the applicant relies on in
support of the application and these are:
a.
Failure to invest the patient's money in terms of the law and
misappropriation of the patient's funds,
b.
failure to establish the trust which was ordered by the court order.
[53]
The other complaint relates to the contingency fee agreement which
the applicant contends is void because it does not comply
with the
provisions
s 3
of the
Contingency Fees Act of 1997
. Counsel for the
respondents contended that the agreement is valid because it was
subsequent to its conclusion ratified by the
third respondent being
the curator ad litem. It has to be noted that the third respondent
also at some point questioned the validity
of that agreement and
suggested that a directive be obtained from the court regarding its
validity.
[54]
The aspect of the applicant's case that carried considerable weight
and persuaded this court that the applicant had established
a
prema
facie
case for the relief sought, concerns the alleged
misappropriation of the patient's funds and non-compliance with the
provisions
of the order made on 24 May 2013.
[55]
In terms of the order of the 24 May 2013, the first respondent was
required to invest the capital amount received on behalf
of the
patient from the RAF as provided for in terms of section 78 (2A) of
the Attorneys Act. It would appear from the answering
affidavit that
the capital amount was partially invested. This, however, is not what
the court order required of the first respondent.
The requirements of
the court order of 24 May 2013 which the first respondent failed to
comply with was that a Trust to manage
the funds of the patient's
fund was to be established, within 12 months of the date of the
order. The order also made provision
in the event the first
respondent not being unable to establish the Trust within the said
period to approach the court for a directive
regarding the manner in
which the capital amount of the patient could be utilized in favour
of the patient.
[56]
It is common cause that the Trust was never established. It is also
not disputed that the court was never approached for a
directive
relating to the manner in which the capital amount of the patient
could be dealt with. The explanation for the failure
to establish the
Trust is totally unsatisfactory. There is also no explanation as to
why the court was not approached for a directive
as to how the found
could be dealt with following the failure to establish the Trust.
This failure is exacerbated by the fact that
respondents did nothing
even after they were reminded of the issue by the RAF in the email
date 1 May 2016.
[57]
The greatest concern in this matter is what appears to be both
maladministration and misappropriation of the funds of the patient
by
the respondents.
[58]
It is common cause that before the court order of 24 May 2013, was
made the second respondent purchased a Range Rover, using
the
patient's funds. He claims in the answering affidavit that the motor
vehicle was purchased on the request of the patient. The
facts
surrounding the purchase of the motor vehicle carried a significant
weight in the consideration of whether or not the court
should
intervene. In this respect the following facts are relevant:
a.
It is common cause that the patient does not have a drive’s
license.
b.
The motor vehicle is registered in the name of the second respondent.
c.
There is no evidence that the car is being used for the benefit of
the patient.
d.
The repairs to the motor vehicle, which is evidently been used by the
second respondent, are paid
from the patient's capital fund.
[59]
There is also
prema facie
evidence that supports the
need to investigate both issues of the validity of the contingency
fee agreement and travelling expenses
to Malawi by both the second
and third respondents.
[60]
It was for the above reasons that the following order was made:
PART
A
1.
The normal rules relating to form, procedure and service are
dispensed with and this matter is treated
as one of urgency in terms
of Rule 6 (12) (b) of the Uniform Rules of the Court.
2.
All the points in limine raised by the first and second respondents
are dismissed with costs.
3.
The counter claim of the first and second respondents against Adv
Nel, Mr Cloete, and the law firm Weavind
& Weavind is struck of
the roll for lack of urgency with costs to be paid by the first and
second respondents on the scale
as between attorney and client, the
one paying the other to be absolved, including the costs of two
counsels.
4.
The first respondent is ordered to, within two(2) days of service of
this order, pay to the Weavind &
Weavind Attorneys into their
trust account, any or all the funds held on behalf of Ms Wezi
Beverley Jumbe, which were received
by the first respondent in terms
of the court order dated 24 May 2013 under case number 50304/2008,
together with interest earned
thereon to be dealt with by Weavind &
Weavind in accordance with the aforesaid court order of 24 May 2013.
5.
The first respondent is ordered to within five(5) days of service of
this order deliver to
the applicant's attorneys of record, Weavind &
Weavind the following documents:
i.
The copy of the first respondent's journal/ledger evidencing all
payments received on behalf of Ms Wezi
Beverly Jumbe by the first
respondent from the Road Accident Fund under case number 50304/2008
and in terms of the court order
dated 24 May 2013.
ii.
A detailed statement of account duly supported by vouchers in terms
of all expenditures incurred on
behalf of the applicant, Ms Wezi
Beverly Jumbe, and which were expended in terms of and in the process
of giving effect to the
terms of the court order made on 24 May 2013.
i
i.
A detailed statement of account supported by vouchers in respect of
all fees and disbursements incurred
by the first respondent on behalf
of the applicant, Ms Wezi Beverly Jumbe, in respect of services
rendered by the first respondent
to the applicant under case number
50304/2008 made on 24 May 2013.
iv.
The second respondent is ordered to give effect to prayers 4
including 5; above
v.
Prayers 2 including 3 shall operate as an interim interdict with
immediate effect pending the institution
of action and or proceedings
to be instituted by the applicant against the first and second
respondents and such process or processes
shall be instituted within
90 days from the date of this order, failing which this order shall
lapse and the applicant shall be
ordered to pay the cost of the
application.
6.
The costs of this application (Part A) shall be paid by the first and
second respondents on scale
as between attorney and client jointly
and severally the one paying the other to be absolved and shall
include two counsels.
7.
The applicant is granted leave upon receipt of the documents referred
to in paragraph 3 above to approach
this court on the same papers
duly supplemented for the relief prayed for in Part B.
8.
There is no order as to costs made against the third respondent.
PART B
9.
The sixth respondent is ordered to conduct an inspection of the books
of account including the trust
accounts of the first respondent with
reference to all the files received by the first respondent in terms
of the court order dated
24 May 2013 under case number 50304/2013 to
compile a report serve it on all the parties in this application
within 30 calendar
days from the date of this order.
10.The
sixth respondent is ordered to investigate the conduct of the second
and third respondents and thereafter to compile a report
and serve it
on all the parties in this application, within thirty (30) calendar
days from the date of this order.
_________________
E
M Molahlehi
Acting
Judge of the Gauteng High
Court:
Pretoria.
Appearances:
For
the Plaintiff: Adv
Instructed
by : Weavind & Weavind Attorneys
For
the Defendant:
Instructed
by: Macbeth Attorneys INC
[1]
See also Livanos v Oates
2013 (5) SA
1
65,
where
the
court in dealing with
the issue
of disputes of fact in a
counter-application
held that the respondent would be subject to the general ru le
regard ing resolution of disputes of
facts.
[2]
Rule 6(1) of the Ru les reads as follows: "Save where
proceed ings by way of a petition
are
prescribed
by law,
every
application shall be brought on notice of motion supported by an
affidavit as to the facts upon which the applicant relies
for
relief."
[3]
1951
(3)
SA
800
(W)
at 803.
[4]
(CA96/2013) 12014] ZAECGHC 8 (27 February 2014).
[5]
2003 (3)
SA
268
(WLD)
at
278C-D).
[6]
1973
(3)
SA
691
(A)
691
C-G.