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[2014] ZAGPPHC 1071
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Modiba obo Ruca; In Re: Ruca v Road Accident Fund (12610/2013; 73012/13) [2014] ZAGPPHC 1071 (27 January 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
NORTH GAUTENG
DIVISION, PRETORIA
Case No: 12610/2013
and
Case No: 73012/13
Not reportable
Not of interest to
other judges
27 January 2014
In the
ex parte
application of
JACOB MANTJITJI
MODIBA Applicant
obo SIBUSISIWE RUCA
In re
SIBUSISIWE
RUCA Plaintiff
and
ROAD ACCIDENT
FUND Defendant
JUDGMENT
INTRODUCTION
1.
This matter
is one of a number of similar cases, all involving road accident
victims who suffered significant head and brain injuries,
which were
heard by the court during the last weeks of the fourth term of 2013.
They share most, or all, of the features that will
be addressed
infra
.
These features represent a practice that appears to have developed
over the past few years which avoids or circumvents the provisions
of
Rule 57 of the Uniform Rules of Court and the common law relating to
individuals who are, or may be, unable to look after their
own
affairs. By avoiding or circumventing the provisions of the Rule and
the common law principles established over decades, these
matters are
prevented from coming to the Master’s attention, avoiding the
latter’s supervision and scrutiny while the
potential need to
appoint a
curator
bonis
or
curator
bonis et personae
to the individual concerned is not considered properly or at all.
2.
This
practice may cause irreparable harm to the road accident victims
concerned and leaves the door open to other abuses of the
Road
Accident Fund litigation. It is therefore essential to examine its
characteristics in some detail. While the facts of the
present matter
may in some instances be more extraordinary than in others, it must
be underlined that there appear to be many cases
which present the
same issues that are discussed
infra
.
THE FACTUAL BACKGROUND
3.
The action
was originally instituted in the name of the patient on whose behalf
the
curator
ad litem
is
presently conducting the litigation against the defendant. The
particulars of claim, signed by the then plaintiff’s attorney
of record on the 26
th
February 2013, assert that the plaintiff (henceforth referred to as
‘
the
patient’
)
was a pedestrian who was involved in an accident with an identified
vehicle on the 28
th
November 2009 at approximately 20h00 in Solomon Drive, Asanda
Village, Strand, Western Cape.
4.
The patient
suffered severe injuries, which are set out in the particulars of
claim as follows:
‘
.
1
Severe head injury with brain damage;
.2 ….
.3 Facial bruises;
.4 Right ear injury….
.5 Chest injury;
.6 Whiplash neck
injury;
.7 …
’
5.
On the 6
th
November 2013, a few days before the trial date, the particulars of
claim were amended to include an allegation that the patient,
then
still acting in his own name, had lost the function of his right ear
and had suffered injuries to his neck and right shoulder.
6.
The medical
report forming part of the RAF 1 form, the third party claim form,
was completed by dr. Peter Mitchell at the Groote
Schuur hospital on
the 11
th
May 2012. He recorded that the patient was admitted to this hospital
the day after the accident, having been transferred to it
by
ambulance from the Strand. It was evident that the patient had
suffered a severe head injury and upon admission recorded 3T/15
on
the coma scale, a reading that is in itself indicative of severe
traumatic effects upon the brain. A CT scan of the head demonstrated
a large right tempero parietal extradural haematoma. The blood that
had gathered in the scull had to be evacuated by way of a craniotomy.
The patient took more than a month to recover sufficiently to reach a
coma scale of 14/15 on the 21
st
December 2012.
7.
The
assessment report prepared by dr Mokgokong, a neurosurgeon, dated the
13
th
July 2012 concludes that:
‘
The head and
brain injuries were severe. There were also severe long-term mental
and behavioural changes that resulted from the
accident…
’
8.
In his
expert report which was finalised on 10 July 2012, dr Mokgokong
asserts that the patient’s head and brain injury was
so serious
that he took a full year to recover sufficiently to recognise his
family members and to communicate intelligibly with
them. He also
suffered prolonged post-traumatic amnesia. During the interview the
patient presented with neuropsychological problems,
suffered memory
lapses, exhibited changes in behaviour and personality as well as
features of mental depression.
9.
Dr
Mokgokong’s report concludes with the following finding:
‘
As a
complication of the severe brain injury, he also (h)as long-term
mental and behavioural changes.
’
10.
The
defendant instructed another neurosurgeon, dr L F Segwapa, who
examined the patient on the 26
th
August 2013. Dr Segwapa recorded i.a. the following in respect of the
patient’s accident-related injuries:
‘
Head injury
He sustained direct
injury to the right side of the head and face causing an extradural
hematoma. He had immediate loss of consciousness.
His admission GCS
was 5/15 and remained confused after 3 weeks. These are features of a
severe brain injury.
’
11.
As far as a
potential curatorship was concerned, dr Segwapa commented in one
sentence: ‘
He
cannot manage his affairs.
’
12.
Dr Gladys
Maluleke, a consulting clinical psychologist, was requested by the
patient’s attorneys to examine him, which she
did on the 18
th
September 2012. In her neuropsychological report she opines the
following:
‘
He is
independent in self-care and can look after himself. He can
distinguish coins from banknotes, but he is confused when he has
to
count a lump sum of money. He can manage his own budget. He relates
well with the family. He needs assistance to manage, plan,
think and
run his life and he relies on his mother for that. He believes that
he will not be able to live independently as he needs
assistance in
some aspects of house management and planning…. The severe
deterioration in bilateral functions strongly implicates
the severe
diffuse axonal brain injury he sustained. Given a mental functioning
of this level, Mr Ruca has been stripped of the
mental capacity to
participate effectively in the open labour market and to live
independently….There is sufficient evidence
in the records
that he sustained severe injuries to the head involving a large
tempero parietal extradural haematoma, loss of consciousness
with the
admission GCS of 3/15 that improved gradually over a period of
weeks, The dynamics demonstrate severe brain dysfunction…..Judging
from the main complaints, cognitive, emotional and behavioural
deficits, he seemed to retain serious complications of severe
diffuse
brain injury that compromised his employment prospects and ability to
live independently….His condition imposes
a considerable
burden to his relatives and renders him vulnerable to abuse and
rejection. A caregiver need to be appointed…..All
funds
awarded to him must be protected.
’
13.
In his
psychological report dated 25 September 2013 Mr H J Swanepoel,
clinical psychologist, notes the patient’s psychological
complaints:
‘…
nightmares
of the accident and anxiety when he has to drive in traffic.
He is weary when he is
a pedestrian.
He has poor memory as
he will forget where he left objects.
He also suffers from
poor concentration.
He is aggressive with
constant irritation.
His mother notes that
Mr Ruca requires assistance to manage his affairs. She believes that
he will not be able to live independently.’
The neuropsychological
evaluation indicates that Mr Ruca seem (
sic)
to be
neuropsychologically impaired in the area of logical reasoning,
problem solving, memory and learning. It can be concluded
that he is
neurologically impaired however, his pre morbid
(sic)
level
speaks of a lowered level of functioning as he failed several
academic years.
The results also
suggest lowered cognitive pre morbid
(sic)
functioning.
However, the accident background and his neuropsychological results
suggest the probability of severe traumatic head
injury….
11.1 The available
information indicates that Mr Ruca is neurologically impaired which
prevents independent functioning. It is therefore
unlikely that
psychotherapy will be of assistance for Mr Ruca due to his low level
of functioning. The family members who care
for him may benefit from
psycho education…
11.2 If compensation
is awarded the funds must be protected by a curator.
’
14. It is unnecessary to
quote from other expert reports that were prepared for purposes of
the trial, which was set down on the
21 November 2013, as they do not
deal with aspects that are relevant to this judgment.
15. Against the
background of the above comments upon the plaintiff’s mental,
neurological and psychological condition the
parties made their final
trial preparations, including the holding of two pre-trial
conferences at which the usual issues, including
the status of the
expert reports and the possibility of a settlement of the patient’s
damages claim were discussed. The patient
was still acting as
plaintiff until the day of the trial. (In passing it may be noted
that the patient swore to an affidavit as
claimant, presumably when
the claim was submitted to the defendant. In this affidavit the
patient asserted that the facts recorded
therein fell within his
personal knowledge and were true and correct. He described the
accident scene and the manner in which the
collision occurred. He
even provided the registration number of the vehicle that hit him
after it ‘…
approached from East to West at a high
speed and collided with me.
’ All the relevant experts are
in agreement that the patient suffered from severe retrograde amnesia
and could remember nothing
of the accident after regaining
consciousness many weeks after the accident.)
16. The matter was
enrolled for the 21
st
November 2013. On the day of the
trial the patient, still acting as plaintiff, and the defendant
purported to settle the claim,
agreeing to the defendant paying a sum
of R 2 320 540, 00 in respect of the patient’s
damages and a 100% undertaking
in terms of section 17 (4) (a) of the
Road Accident Fund Act, Act 56 of 1996, for the reasonable cost of
any future accommodation
of the plaintiff in a hospital or nursing
home, or treatment or rendering of a service or supplying goods to
him, arising from
the injuries sustained by the plaintiff in the
accident. The defendant agreed to pay the costs on the High Court
scale including
the costs of the patient’s experts. A draft
order was prepared for presentation to the presiding judge at the
roll call of
the trial roll with the request to make the agreement an
order of court.
17. When the matter was
called, the patient was represented by his attorney and advocate who
informed the court that she was acting
on behalf of the ‘plaintiff’.
The court raised the question whether the patient was in a position
to appreciate the
nature and extent of the proposed settlement and
whether he would be able to manage the funds about to be awarded to
him. The matter
stood down until the 25
th
November 2013 to
allow the parties to consider the position. The matter had to be
postponed again to the 29
th
November 2013 to allow a
proper application for the appointment of a curator
ad litem
to
be prepared. On that date, the patient’s counsel, while the
patient was still acting as plaintiff, intimated to the court
that
adv R had been ‘
instructed
’ as curator
ad litem
and that the latter had already been briefed by the patient’s
attorney and herself on all relevant aspects of the matter and
had
already prepared a report which he intended to present to the court
once his appointment as curator was confirmed by the court.
Counsel
for the defendant indicated that the defendant agreed to the proposed
modus operandi.
When the court enquired how it was possible to
prepare a report as curator
ad litem
without having been
appointed as such by the court, not one of the three advocates was
able to supply the court with a satisfactory
answer. Nor were the
three able to deal with the court’s question whether the
proposed curator’s independence had not
been irrevocably
compromised by his prior association with the patient’s legal
representatives. Not one of the three advocates
had considered the
applicability of Rule 57 of the Uniform Rules of Court to the
appointment of the proposed curator, and they
did not seem to be
aware of its provisions.
18. When pressed for an
answer why the appointment of a curator
ad litem
was
considered necessary the court was informed that the patient was not
able to deal with the funds about to be awarded to him,
as determined
by the experts – so the argument ran - and that the
creation of a trust to have the moneys administered
by a trustee
appointed by a financial institution was proposed in the report
already prepared by the aspirant curator
ad litem
.
19. The court was not
referred to any authority authorising the proposed course of conduct,
which was clearly in conflict with the
provisions of Rule 57 and with
all relevant authorities. The matter was stood down for a few days to
enable the patient’s
advisors to prepare a duly motivated
application for the appointment of a curator
ad litem
, in
spite of the three counsel’s assurance that the
modus
operandi
followed by them had been followed in this division’s
courts, as well as in the Gauteng South Division ‘
for
years’.
Similar indications had been given by counsel
practising at the Pretoria and Johannesburg Bars in the other matters
dealt with
by the court in the weeks preceding the hearing of this
case, when similar orders to create a trust with a financial
institution
for a brain damaged plaintiff ‘
who would be
unable to administer a large amount of money
’ were sought.
In all these matters the court raised the question whether such an
order could be made without first declaring
the plaintiff/patient
unable to deal with all or some of his affairs – a question
which appeared to take all the counsel
involved in these matters by
surprise. It certainly caught the three counsel involved in this
matter on the wrong foot.
20. The ‘application’
for the appointment of advocate R as curator
ad litem
was
dismissed and no fees were allowed for that day’s appearance,
on the 29
th
November 2013.
21. The application was
renewed on the 2
nd
December 2013. It was now brought on
behalf of the patient by the attorney who had acted as attorney of
record for the patient
plaintiff since the inception of the matter
and had, purportedly on the instructions of the patient, engaged
counsel and instructed
experts to act as witnesses and had, finally,
purported to settle the matter on behalf of his client.
22. In motivating the
need to appoint a curator
ad litem,
the attorney now, for the
first time, stated i.a. the following under oath in his affidavit
sworn to and filed in support of the
application to appoint a
curator:
‘
On the 26
th
November 2013 I consulted with Prof Mokgokong, our Neurosurgeon and
he confirms that Curator
(sic)
be
appointed as the claimant will not be able to manage his affairs.
…
After
perusing medico legal reports of the abovementioned experts and
considering their recommendations, I am also of the opinion
that the
claimant is incapable of managing his affairs and therefore Curator
ad Litem be appointed to assist him. The Curator will
then decide on
how his funds should be protected. I will recommend that trust should
be established for him.
’
(sic)
23. The attorney did not
deal with the question whether the patient’s apparent
incapacity to deal with his own affairs extended
to his ability to
understand the proceedings or not. He therefore did not address the
patient’s capacity to instruct the
attorney to conduct the
litigation on his behalf.
24. Mr R assured the
court that, in spite of the fact that he had only practiced for about
eighteen months, he had considerable
experience of RAF matters and
was able to assist the court independently in spite of his earlier
exposure to the plaintiff’s
legal representatives and their
view of the patient’s case. The court was persuaded, not
without difficulty, to appoint Mr
R as curator
ad litem
. The
court underlined the need to address, as part of the report, the
question whether the patient would have to be declared incapable
to
manage all or part of his affairs if a recommendation was to be made
that his funds should be administered by a trustee through
a trust
created by a financial institution or by a
curator bonis.
At
the same time the court amended the original notice of motion by
detailing some of the powers that should be granted to and exercised
by the curator
ad litem
.
25. In a report dated the
8
th
December 2013 and presented to the court the next day
Mr R reported that the experts he consulted, in particular the
neurosurgeons
quoted above, were of the view that the patient’s
funds needed to be protected as he was unable to deal with them on
his
own. Mr R proposed in the light thereof that a portion of the
funds should be invested in certain policies as suggested by a
financial
adviser and that the balance remaining after the attorney
had deducted his contingency fee of almost R 600 000, 00 should
be invested in a trust with a financial institution. This suggestion
was based upon the advice of the medical experts he had consulted
that the patient was unable to deal with a large amount of money.
26. In spite of the
court’s express requests in this regard, Mr R did not address
the provisions of Rule 57 in his report
and did not investigate the
question that had generated the most discussion during previous
hearings, namely whether the creation
of a trust needed to be
preceded by a declaration that the patient was incapable of dealing
with his own affairs, or with his assets,
or not. The court was
therefore not prepared to accept the report and instructed Mr R to
prepare another report that dealt with
all relevant issues. It is
obvious that no fees can be allowed for the insufficient effort that
Mr R presented as a report.
27. Mr R’s next
attempt was presented to the court on the 13
th
December
2013. It recorded the same interviews with the same experts as
before, and as before avoided any reference to Rule 57
of the Uniform
Rules. Surprisingly, however, the curator concluded now that the
patient was
compos mentis
and should be placed in control of
the funds that remained after the attorney had deducted his
contingency fee – apparently
over and above the costs to be
paid by the defendant in terms of the draft order. No discussion of
the potential creation of a
trust decreed by the court was contained
in the report.
28. The report
recommended that the actions taken by the attorneys be approved
without any reference to the contingency fee agreement
that the
patient apparently concluded with them. No attention was paid to the
question whether the patient was able to make rational
decisions
regarding the litigation he was about to embark upon based upon his
understanding of the issues at the time he instructed
the attorney.
Dr Swanepoel was not consulted at all, in spite of his recommendation
that the patient would require the assistance
of a curator if any
award were to be made to him. The instructing attorney’s
comments regarding the patient’s mental
capacity, presented
under oath less than three weeks earlier to motivate the curator
ad
litem
’s appointment were neither referred to nor considered
at all. Both the patient and his 68 year old mother were reported as
having been of the view that the patient was unable to deal with his
funds, but there was not a word of motivation in the report
why their
views were not taken into account and the patient’s own wishes
were disregarded. No concern was expressed about
the obvious risk the
patient appeared to run if he was left in control of his money
awarded to him and no suggestions were made
in this regard at the
final hearing of the matter, even after the court questioned Mr R
repeatedly in this respect. The report
merely concluded that there
was no evidence suggesting that the claimant was ‘
mentally
retarded
’ and that there was therefore no ‘…
.
need to declare the claimant of unsound mind and incapable of
managing his own affairs’
. In the alternative the court was
invited to decide how the claimant’s funds should be protected
since the court had a wide
discretion to make an appropriate order.
29. It should be added
that counsel who acted for the plaintiff prior to the appointment of
the curator
ad litem
continued to appear on the instructions
of the patient’s attorney ‘
for the plaintiff
’
after the curator’s appointment. She was unable to enlighten
the court of the nature of her role and function at that
stage.
30. Before dealing with
the curator’s report itself, it is necessary to examine the law
and procedure that applies to cases
in which the assistance of a
curator
ad litem
is required.
RULE 57
31. Uniform Rule of Court
57 reads as follows:
‘
57
De Lunatico Inquirendo,
Appointment of Curators in Respect of Persons under Disability and
Release from Curatorship
(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 or 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 ascertaining 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 opinions 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.
(4) Upon the hearing of the
application referred to in subrule (1), the court may appoint the
person suggested or any other suitable
person as curator ad litem, or
may dismiss the application or make such further or other order
thereon as to it may seem meet and
in particular on cause shown, and
by reason of urgency, special circumstances or otherwise, dispense
with any of the requirements
of this rule.
(5) Upon his appointment the
curator ad litem (who shall if practicable be an advocate, or failing
such, an attorney), shall without
delay interview the patient, and
shall also inform him of the purpose and nature of the application
unless after consulting a medical
practitioner referred to in
paragraph (b) of subrule (3) he is satisfied that this would be
detrimental to the patient's health.
He shall further make such
inquiries as the case appears to require and thereafter prepare and
file with the registrar his report
on the matter to the court, at the
same time furnishing the applicant with a copy thereof. In his report
the curator ad litem shall
set forth such further facts (if any) as
he has ascertained in regard to the patient's mental condition, means
and circumstances
and he shall draw attention to any consideration
which in his view might influence the court in regard to the terms of
any order
sought.
(6) Upon receipt of the said report
the applicant shall submit the same, together with copies of the
documents referred to in subrules
(2) and (3) to the Master of the
Supreme Court having jurisdiction for consideration and report to the
court.
(7) In his report the Master shall,
as far as he is able, comment upon the patient's means and general
circumstances, and the suitability
or otherwise of the person
suggested for appointment as curator to the person or property of the
patient, and he shall further
make such recommendations as to the
furnishing of security and rendering of accounts by, and the powers
to be conferred on, such
curator as the facts of the case appear to
him to require. The curator ad litem shall be furnished with a copy
of the said report.
(8) After the receipt of the report
of the Master, the applicant may, on notice to the curator ad litem
(who shall if he thinks
fit inform the patient thereof), place the
matter on the roll for hearing on the same papers for an order
declaring the patient
to be of unsound mind and as such incapable of
managing his affairs and for the appointment of the person suggested
as curator
to the person or property of the patient or to both.
(9) At such hearing the court may
require the attendance of the applicant, the patient, and such other
persons as it may think fit,
to give such evidence viva voce or
furnish such information as the court may require.
(10) Upon consideration of the
application, the reports of the curator ad litem and of the Master
and such further information or
evidence (if any) as has been adduced
viva voce, or otherwise, the court may direct service of the
application on the patient or
may declare the patient to be of
unsound mind and incapable of managing his own affairs and appoint a
suitable person as curator
to his person or property or both on such
terms as to it may seem meet, or it may dismiss the application or
generally make such
order (including an order that the costs of such
proceedings be defrayed from the assets of the patient) as to it may
seem meet.
(11) Different persons may, subject
to due compliance with the requirements of this rule in regard to
each, be suggested and separately
appointed as curator to the person
and curator to the property of any person found to be of unsound mind
and incapable of managing
his own affairs.
(12) The provisions of subrules
(1), (2) and (4) to (10) inclusive shall in so far as the same are
applicable thereto, also apply
mutatis mutandis to any application
for the appointment by the court of a curator under the provisions of
section 56 of the Mental
Health Act, 1973 (Act 18 of 1973), to the
property of a person detained as or declared mentally disordered or
defective, or detained
as a mentally disordered or defective prisoner
or as a State President's decision patient and who is incapable of
managing his
affairs.
(13) 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.
(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.
(15) Upon receipt of such notice
and after due consideration of the application and such information
as is available to him, the
Master shall, without delay, report
thereon to the court, at the same time commenting upon any aspect of
the matter to which, in
his view, its attention should be drawn.
(16) The provisions of subrules
(14) and (15) hereof shall also apply to any application for release
from curatorship by a person
who has been discharged under section 53
of the Mental Health Act, 1973 (Act 18 of 1973), from detention in an
institution, but
in respect of whom a curator bonis has been
appointed by the court under section 56 of the said Act.
(17) Upon the hearing of any
application referred to in subrules (14) and (16) hereof the court
may declare the applicant as being
no longer of unsound mind and as
being capable of managing his affairs, order his release from such
curatorship, or dismiss the
application, or mero motu appoint a
curator ad litem to make such inquiries as it considers desirable and
to report to it, or call
for such further evidence as it considers
desirable and postpone the further hearing of the matter to permit of
the production
of such report, affidavit or evidence, as the case may
be, or postpone the matter sine die and make such order as to costs
or otherwise
as to it may seem meet.
’
32. Whenever there is a
credible allegation that a patient is in need of a curator to his
person or property (the onus to establish
this circumstance rests
upon the applicant), the provisions of Rule 57 cannot be ignored and
may only dispensed with under the
circumstances envisaged in sub-rule
(4) thereof:
Judin v Wedgewood & Another
2003 (5) SA 472
(W) at para [13]; see further the comprehensive discussion by D van
Zyl, J in
Ex parte Futter, in re Walter v Road Accident Fund &
Another
[2012] ZAECPEHC 52 (17 August 2012) (not reported). No
argument was advanced in any of the matters the court dealt with as
set out
above, or in this case, to justify any departure from the
Rule. In fact, any reference to Rule 57 was absent in all cases until
its applicability was raised by the court. (There are instances in
which a curator
bonis
may be appointed to a person of sound
mind but unsound habits, (such as a prodigal), or to someone
suffering from severe physical
defects, without the prior appointment
of a curator
ad litem
. In these matters the person concerned
is as a rule able to understand the proceedings and can consent to
the appointment of a
curator
bonis
:
Delius v Delius
1960
(1) SA 270
(N),
Ex parte Horwood
1960 (4) SA 757
(T). The Rule
envisages that a Master’s report should ordinarily be obtained
in these instances as well.)
33. Other than in these
exceptional cases and unless circumstances are proven to exist which
entitle the court in terms of sub-rule
(4) to dispense with some
requirements of Rule 57, the failure to observe the Rule renders an
application defective to the extent
that such application cannot and
should not be entertained at all.
34. Before giving
directives in respect of further steps that need to be taken in this
application some comments upon the implications
of the practice that
has apparently taken root in recent times are called for. They are so
grave and potentially or actually detrimental
to the patients
concerned that it is essential to restate the law and practice in
some detail to ensure that the face of the courts
is set firmly
against the disregard of the principles and practice that are
designed to protect the most vulnerable of litigants.
THE INDEPENDENCE OF
THE CURATOR
AD LITEM
.
35. The curator
ad
litem
is usually appointed to conduct the litigation on behalf of
the patient who is unable to appreciate the nature of the legal
issues
and procedural steps required to ensure that she or he is
adequately compensated for injuries that are almost invariably so
serious
in those matters that justify the appointment of such a
curator that they attract large awards. It follows that a curator
ad
litem
must be (ordinarily) an advocate of sufficient experience,
proven expertise and good standing to ensure that the patient
receives
optimal forensic advice and service; see
Soller NO v G &
Another
2003 (5) SA 430
(W) at 436B – 437A. Advocates are –
as members of a referral profession practising individually -
generally regarded
as being professionally independent as they are
not beholden to clients other than in respect of the particular brief
that has
been entrusted to them. One non-negotiable quality of an
advocate (or attorney) acting as curator must be indisputable
independence
to ensure the integrity of the professional service that
must be rendered to the patient: see Harms,
Civil Procedure in the
Supreme Court
at para.
B 57.9
;
Ex parte Mallach
1921
TPD 514
, in which Mason J in a concurring judgment said:
‘…
in ordinary
applications for the appointment of a curator
ad litem
to the property of
any person found to be of unsound mind the Court always requires that
some independent person, acting as curator
ad
litem
on behalf of the
person supposed to be insane, should independently investigate
the matter
,
…
’
.
(p 516).
In the context of
children who required representation by a curator
ad litem
the
Appellate Division described the curator’s duty as the
‘ …
vigilant
protection of the rights of minors which our system of law seeks to
promote by the appointment, in an appropriate case,
of a
curator-ad-litem.
’
See
Rein NO v Fleischer NO & Others
[1984] ZASCA 102
;
1984 (4) SA 863
(A).
Although the Appellate Division was dealing with the protection of
the interests of minors in that matter, it could never
be argued that
the same vigilance must not be displayed when a curator is appointed
to a patient who may be unable to look after
his own affairs and to
understand the forensic issues in respect of a claim against the
defendant Road Accident Fund. See further
Kotze v Santam Insurance
Co. Ltd.
1994 (1) SA 237
(C) and authorities cited there at 244G
to 245D;
Ex parte Phillipson and Wells, NN.O. and Another
1954
(1) SA 245
(EDL).
36. The need for an
independent approach to the litigation is especially si
gnificant
in cases such as the present, in which the attorney acting for the
claimant accepted instructions from an individual whose
capacity to
understand the processes of litigation and the implications of the
mandate given to the attorney may subsequently be
found to have been
compromised. Vigorous vigilance and pronounced independence are
essential when issues such as the enforceability
of a contingency fee
agreement and the validity of instructions allegedly given by the
patient in respect of the conduct of the
litigation must be examined
to protect the patient’s interests. Just as
‘ …
it
is not merely of some importance but is of fundamental importance
that justice should not only be done, but should manifestly
and
undoubtedly be seen to be done
..’
(per Hewart LCJ in
S v
Sussex Justices, ex parte McCarthy
[1923] All ER Rep 233),
the curator’s independence must not only exist, it must
manifestly be free of any semblance
of bias or association with any
party having an interest in the outcome of the matter. It is
therefore self-evidently unacceptable
that a potential curator
ad
litem
should have had any association with the plaintiff’s
or soon-to-be-patient’s legal representatives, let alone to
have
been briefed by this team upon the merits and background of the
application for his appointment in preparation of his report.
Whenever
a curator
ad litem
is appointed under circumstances
such as the present, he steps into the shoes of the former plaintiff
and continues the litigation
in his or her place. One of the aspects
that must be considered by the curator appointed at a late stage is
whether the steps taken
by the attorney and counsel who acted for the
patient as plaintiff until the curator was substituted as nominal
plaintiff, were
reasonable, correct and in the patient’s best
interest and should therefore be ratified:
Kotze v Santam
Insurance Co Ltd
.’
supra,
at 244F and further. This
process must include an investigation into the fees charged by
counsel and attorney up to that stage,
as set out above. Such
investigation is obviously compromised where the curator has been
consulting with these lawyers prior to
his appointment.
THE CURATOR AD LITEM’S
DUTIES AND FUNCTIONS
37. It is clear that the
curator fulfils a very important function. A curator is usually
appointed when the patient’s circumstances
indicate that the
appointment of a curator
bonis
or a curator
bonis et
personae
may be found to be necessary. The appointment of a
curator to a patient represents a very serious invasion of the
patient’s
liberty, dignity and control of his destiny. It is
therefore essential that the conditions set out in sub-rules (1), (2)
and (3)
of the Rule are met before a curator may be appointed: see
Ex
parte Futter, supra
. As Galgut J said in
Ex parte Klopper: In
re Klopper
1961 (3) SA 803
(T) at 805 E to H:
‘ …
a
Court will not appoint a
curator
bonis
until
it is absolutely satisfied that the patient has to be protected
against loss which would be caused because the patient
is unable to
manage his affairs…. in
Ex
parte Kotze,
1955
(1) SA 665
(C) …(t)he learned Judge came to the conclusion
that before the Court could interfere with the right of an adult to
control
his own affairs the Court had to be satisfied after a proper
enquiry into the mental condition of the alleged patient that
interference
by the Court was justified.
’
The curator’s
report must deal with all relevant facts that may impact upon the
question whether the patient is of unsound
mind or not and is
therefore of great importance to the court faced with the question
whether the patient should be declared to
be incapable of managing
all or part of his affairs and be placed under curatorship, see
Niekus v
Niekus
1947
(1) SA 309
(C) – in which the court emphasized that a curator
ad litem
would
be appointed in circumstances where the failure to do so might cause
an injustice to the patient - ;
Mitchell
v Mitchell & Others
1930 AD 217
at 224; Ex parte Campher
1951
(3) SA 248
(C). If the patient is unable to participate rationally in
the management of his or her litigation against the RAF and is
incapable
of giving appropriate instructions to his or her legal
representatives, the patient lacks
locus
standi in iudicio
and
the appointment of both a curator
ad
litem
and
a curator
bonis
is indicated:
Jonathan
v General Accident Insurance Company of South Africa Ltd
1992
(4) SA 618
(C). In circumstances such as the present the curator must
include a recommendation in his report whether the steps taken by the
patient’s legal representatives prior to the curator’s
appointment should be ratified, if he has come to the conclusion
that
the patient was at all relevant times incapable of giving valid
instructions due to his or her mental impairment.
38. Once the curator has
consulted all relevant persons as required by the Rule and the
exigencies of the case, and has obtained
and/or studied each and
every expert opinion that may be relevant, he must prepare his own
report and provide a copy thereof to
the applicant. The latter must
make a copy thereof available to the Master having jurisdiction. This
is a requirement of the Rule
the court must ensure is complied with.
(In practice the curator
ad litem
should normally supply
a copy of his report to the Master at the same time the report is
presented to the applicant.)
39. The Master’s
jurisdiction is determined not by the jurisdiction of the court, but
by the provisions of the
Administration of Estates Act 66 of 1965
:
Ex
parte Beukes
[2011] ZAWCHC 267
(15 June 2011). The referral of
the curator’s report to the Master is obligatory as decreed by
sub-rule 57 (6), as is the
subsequent Master’s report as
determined by sub-rule (7) of that Rule. As Leeuw JP said in
Molatudi
v Molatudi, In re Molatudi v Road Accident Fund
[2010] ZANWHC 6
(20 May 2010):
‘
[27]
Rule 57
(6) prescribes
that, the report of the
curator
ad litem
as well as
the documents filed in terms of 57 (2) and (3), shall be submitted to
the Master of the High Court for consideration
and report to the
Court.
Rule 57
(7) provides that the Master, in his report, “shall
as far as he is able, comment upon the patient’s means and
general
circumstances, and the suitability or otherwise of the person
suggested for appointment as
curator
to the person or
property of the patient. …
[28] This application was not
submitted to the Master in accordance with
Rule 57
(7) and this Court
did not have the benefit of the Master’s report for the purpose
of determining the suitability of Mr Moolman
Wessels to be appointed
as a
curator bonis
to the patient. This Rule must be complied
with.
[29] Furthermore, in considering
whether or not it is suitable for a
curator
bonis
to be
appointed for the patient, it will be important for the Master to
consider the possibility of depositing the money in the
Guardian’s
Fund and have it administered from the Master’s Office in
accordance with
section 90
of the
Administration of Estates Act No 66
of 1965
.
’
THE MASTER
40. Apart from the
functions the Master must fulfil in insolvencies and liquidations,
the Master’s Office has been specifically
created and empowered
to protect minors, deceased estates, heirs, trust beneficiaries and
persons declared unable to conduct their
own affairs. The Master also
appoints administrators to mentally ill persons whose fate is dealt
with in terms of the Mental Health
Act 17 of 2002. The Master
exercises control over curators, executors and trustees, the powers
to do so having been conferred by
the
Administration of Estates Act
66 of 1965
and the Trust Property Control Act 57 of 1988. The Master
is obliged by the Rule to consider the recommendations made in the
curator
ad litem’
s report and must in turn report to the
court whether these proposals could be regarded as in the patient’s
best interest
or whether alternatives should be considered to ensure
the protection of the patient’s funds. The Master’s
interest
in the proceedings, and the court’s duty to consider
the Master’s advice and obtain the benefit of his insight, were
completely ignored by the legal teams involved in the matters under
discussion. The effect of bypassing the Master’s office
by the
practice followed in these matters is, of course, the avoidance of a
potential recommendation by the Master that the funds
awarded to the
patient should be invested in the Guardian’s Fund rather than
with a financial institution. The creation of
a trust with a
financial institution avoids the conditions that accompany the
appointment of a curator
bonis
, with resultant potential
detriment to, and diminishing of the effective protection of
vulnerable victims. Other than provided
for specifically in the trust
deed, trustees of a financial institution’s trust are not
required to report to the Master
annually on the performance of their
duties. The Master does not comment upon the suitability of the
individuals administering
the trusts with financial institutions.
The court is denied the benefit of the Master’s comment upon
the suitability
of the person who might be appointed as curator
bonis,
as no such appointment is envisaged by the practice
under discussion. When a trust is created, the fees charged by the
patient’s
legal representatives are not subject to the Master’s
scrutiny, as they are when a curator
bonis
is appointed. The
potential harm to the patient concerned is self-evident.
THE PROPOSED TRUST
WITH A FINANCIAL INSITUTION AND THE PROPOSED POLICIES
41. There are other
worrisome features that may impact negatively upon the patient whose
funds are dealt with as suggested by the
financial adviser, according
to Mr R’s report. No particularity is provided of the terms and
conditions of the policies it
is suggested the patient should invest
in. In particular there is no investigation of any commission or
introductory fee that the
financial adviser, who remains
unidentified, or the financial institution may earn or demand. There
is no explanation whether the
policies are to be taken out by the
trustee(s) of the trust with the financial institution, or prior to
the appointment of the
trustees. There is no investigation what
monthly, quarterly or annual charges the financial institution may
raise, nor are the
fees of the trustees investigated and compared
with the charges that might be allowed by the Master in respect of
the curator
bonis
’ remuneration. There is no analysis of
the patient’s monthly expenses and no explanation of the income
that the proposed
financial arrangements might render for the
patient.
42. The Master has had
occasion in the past to express his misgivings about an arrangement
similar to the one that is proposed now.
In
A N Granova N.O. v The
Road Accident Fund
Case No 23167/2007 NGHC, Pretoria the Master
filed a report in which he stated i.a. the following:
‘
4.
According to the evidence it
appears that Mr Khumalo is incapable of managing his financial
affairs. The Curatrix-ad-Litem came
to the same conclusion in
paragraph
4
of her report.
5.
The assets of the patient appears
to be the offer of settlement in the amount of R 1,150,000.00 made by
the Defendant .I have no
further information in this regard and I am
of the opinion that the assets of Mr Khumalo justify the appointment
of a Curator Bonis.
6.
The Curatrix-ad-Litem indicated in
paragraph
3.5
of her report that the purpose of this report is
to advise the Honourable Court on the issue of whether a Trust should
be created
and if so, who should be the Trustee thereof.
It appears from paragraph
4.1.
of her report that the Curatrix-ad-Litem contradicted herself
by indicating that it would be in the best interest of Mr Khumalo
if
a Curator Bonis be appointed.
In paragraph
8
of her report
the Curatrix-ad-Litem is opined that the creation of a trust and the
appointment of a trustee is essential in securing
the financial
future of Mr Khumalo.
7.
It is my humble opinion that it
would
not
be in the best interest of Mr Khumalo if a
Trust should be established instead of appointing a Curator Bonis to
administer the
assets of Mr Khumalo.
7.1.
My opinion is based on the
following reasons:
7.1.1
Trusts are taxed at a higher scale
than Curatorship estates unless a special Trust is registered which
is taxed on an individual
scale.
7.1.2
A Trust is usually made subject to
an annual audit in terms of the court order which is a cost against
the estate. Estates under
Curatorship are not subject to an audit but
a Curator Bonis must in terms of section 83(1) and (2) of the
Administration of Estates
Act 1965 (Act no 65 of 1965) draw an annual
account which is examined by the Master to ensure compliance with
regulation 7
of the
Administration of Estates Act.
7.1.3
In
a Curatorship estate a patient
can make a will were he has the mental capacity to do so because he
is the owner of the Curatorship
property.
7.1.3.1.
In a Trust a beneficiary does not
own the property and he consequently cannot bequeath the property by
way of a will.
7.1.3.2.
In a Trust the principle of freedom
of testation and the provisions of the Intestate Succession Act ,1987
(Act no 81 of 1987) could
be violated because the patient’s
(trust property) will devolve in terms of the Trust deed and not in
terms of a will or
intestate succession.
7.1.4.
Should a court order that a Road
Accident Fund payment should be paid into a Trust, it usually makes
no order in respect of the
patient’s other assets which should
then fall into his/her Curatorship estate.
7.1.4.1.
This would make the administration
of the patient’s assets cumbersome and costly because there
will then be two entities dealing
with the patient’s estate.
7.1.5.
SARS could interpret a Road
Accident Fund payment to a Trust as a donation which could be subject
to donations tax.
7.1.5.1.
The Honourable Court did make an
order on 14 October 2008 that the Defendant pays the Plaintiff, Mr N
G Khumalo the amount of R
1,150,000.00. It is my submission that to
establish a Trust will conduct a
donatio.
7.1.6
The remuneration of a Curator Bonis
is taxed annually by the Master whereas in Trusts the Master only
adjudicates on a Trustee’s
remuneration in the event of a
complaint.
7.1.7
Legal costs in curatorship estates
(ie the costs of the applicant attorney) are carefully monitored by
the Master, while the Master
only looks at these costs in the event
of a complaint in a trust.
7.1.8
The powers of a Curator Bonis are
circumscribed by the court whereas the powers of a Trustee in a trust
deed and are often vague
and difficult to interpret. ….
9.
It is my humble submission that
security must be furnished by the Curator Bonis/ Trustee which ever
appointment will be made, for
the full value of the assets of Mr
Khumalo which will be placed under her control.’
43. The
Granova
matter was only finalised some two years after the Master had
presented his comments to the Court. An order was eventually made
that authorised the creation of a trust with a financial institution.
The trust was expressly placed under the control of
the Master.
(Unfortunately the pleadings and other documents filed of record are
not contained in the court file, which also relates
to an application
for a voluntary surrender with the same case number as the
Granola
matter.) It is unclear why the Master’s views have been
disregarded over the years and why they were not addressed in any of
the reports that were presented to the court in this or other
matters.
THE DECLARATION OF
INABILITY TO DEAL WITH SOME OR ALL OF THE PATIENT’S AFFAIRS
44. Another potentially
grave problem that may raise its head if the proposal presently under
discussion were to be accepted, is
the express disavowal of any
intention to seek a declaration that the patient is unable to deal
with his personal affairs, or is
unable to deal with the funds that
are about to be awarded to him. The proposed trust is paraded as the
answer to the problems
the patient is alleged to experience in
dealing with large sums of money. The patient must clearly be a
beneficiary of the trust,
usually the only one. The trust is to be
created with the patient’s own funds. Whether such trust will
become liable for
donation’s tax or not, and whether the
trustees are instructed to deal with the funds in a particular
fashion or for particular
purposes only or not, without a declaration
of inability to manage these funds or all of his belongings, a trust
can only be created
with the patient’s express prior consent
validly given. Should this consent later be held to have been of no
force and effect
because of the patient’s mental impairment,
the consequences may be dire. It is difficult to discern what benefit
the failure
to issue a declaration of inability may render to the
patient, whose incapacity to deal with the funds is the only reason
the trust
is being created.
45. The preferable
practice must in the light of the aforegoing considerations surely be
that a patient who suffers from a mental
disability resulting in the
inability to manage all or some of his own affairs should be declared
to be unable to do so. Such an
order protects the patient and those
who interact with him. It forms the basis upon which the
appointment of a curator
bonis
or
bonis et personae
is
justified in law, as the patient’s fundamental rights to
dignity and freedom to decide how she or he would prefer to live
his
or her life are compromised by granting to a curator the right to
take decisions on behalf of the patient:
Ex parte Hartzenberg
1928
CPD 385
;
Ex parte Marais
1944 CPD 460
;
Ex parte Herzberg
1950 (2) SA 62
(C);
Ex parte Van der Merwe
1956 (2) SA 113
(C);
Ex parte Van der Linde
1970 (2) SA 718
(O) and
Ex
parte Thomson: In re Hope v Hope
1979 (3) SA 483
(W). (These
considerations do not necessarily apply in all instances in which the
patient is able to consent to the appointment
of a curator
bonis
as discussed above).
EARLY APPOINTMENT OF
THE CURATOR
AD LITEM
46. It is indisputable
that the appointment of a curator
ad litem
should be sought at
the earliest moment after it has become clear that the patient may be
unable to understand the proceedings or
to give rational instructions
to legal representatives, or may be unable to conduct his or her own
affairs:
Road Accident Fund v Ndeyide
[2007] ZACC 7
;
2008 (1) SA 535
(CC). In the present instance there were early indications that the
patient may be significantly impaired mentally as a result
of the
head and brain injuries suffered in the accident. It may have
been advisable to consider the appointment of a curator
bonis
or
curator
bonis et personae
before summons was issued. The
patient’s ability to give proper instructions to his attorney
at the time litigation commenced
will now have to be investigated.
THE PRESENT
APPLICATION
47. It is obvious that
the present application is plagued by procedural errors and
substantial non-compliance with practice and
law. According to
Futter’s
case,
supra,
the applicant for the
appointment of the curator
ad litem
lacked
locus standi
because he had no sufficient interest in the matter. The court
was nonetheless persuaded to appoint Mr R as curator
ad litem
in
the light of the fact that the patient and his mother agreed with the
conclusion that the former is in need of assistance, at
least in
regard to the management of his financial affairs, if not in all his
affairs.
48. It is evident from
the chronology recorded above, however, that the court rendered both
the patient and Mr R a disservice by
burdening him with the
responsibility to act as curator
ad litem
on his own. He
clearly is in need of assistance to ensure that the patient’s
circumstances are properly investigated. The
court will therefore
call upon the Chairperson of the Bar Council of the Pretoria Society
of Advocates to nominate another junior
counsel of sufficient
seniority and experience to lead Mr R in the preparation of a
supplementary and sufficiently comprehensive
report dealing with the
desirability of declaring the patient to be unable to conduct his own
affairs and other issues related
thereto. Such nomination should be
made in writing within three weeks from date hereof and should be
submitted to the court and
delivered to the defendant’s
attorney of record together with such nominee’s written
acceptance. The defendant may
object to the proposed nominee, if so
advised, within one week of receipt of such nomination, failing which
the court will confirm
the nomination in Chambers.
49. It is clear that the
Master has a substantial interest in the matters raised in this
judgment. He must obviously receive a copy
of the envisaged
supplementary report of the curators
ad litem
and must comment
upon the latter’s contents as intended by the Rule. In
addition, however, the Master will be requested to
advise the court
in general upon the implications of the recommendations made by Mr R
to date, and upon the practice that the court
has addressed in this
judgment.
50. The application may
be set down for hearing once all interested parties have had the
opportunity to consider the curators’
and the Master’s
reports and are ready to submit argument to the court upon the best
option to protect the patient’s
interests.
51. The defendant’s
legal advisors supported Mr R and the patient’s legal
representatives in all their submissions since
the matter was
purportedly settled, or at the very least did not offer any objection
thereto. It is therefore only fair that the
defendant be ordered to
pay the costs to date, subject to the defendant’s right to
argue at the next hearing that this order
should be revised.
ORDER
The following orders are
made:
1.
The matter
is postponed
sine
die
.
2.
The
Chairperson of the Bar Council of the Pretoria Society of Advocates
is requested to nominate a junior counsel of sufficient
expertise and
seniority to lead Mr R in the preparation of a supplementary report
concerning the ability of the patient to handle
his own affairs and
make appropriate recommendations to the court in the light of their
findings.
3.
The
nomination of the said counsel by the said Chairperson should be made
in writing and should be accompanied by the said counsel’s
written acceptance of the nomination. The nomination is to be
delivered to the court and to the offices of the defendant’s
attorneys of record.
4.
Should the
defendant have any objection to the counsel so nominated by the
Chairperson of the Bar Council, such objection should
be made in
writing within one week of the nomination having been delivered to
the defendant’s attorneys and be delivered
to the proposed
curator
ad
litem
and
the court as well as the applicant’s attorneys.
5.
If no
objection is made to the appointment of the curator
ad
litem
proposed
by the said Chairperson, the court will appoint the nominee as such
in Chambers unless any interested party requests a
hearing in open
court to effect the appointment of the counsel nominated.
6.
The
curators
ad
litem
are
requested to prepare a comprehensive report dealing with all aspects
that may impact upon the issue whether the patient should
be declared
incapable of dealing with all or some of his affairs. The need
to issue a declaration to the effect that a patient
is unable to
conduct his or her own affairs, the legal principles underlying such
a declaration and the effect thereof should be
specifically
discussed.
7.
If there
appears to be a need to provide assistance to the patient, the
curators
ad
litem
are requested to investigate the proposed creation of a trust with a
financial institution and the likely benefits and challenges
that the
patient may face if such route is to be followed. The curators are
requested to obtain full comments upon the court’s
misgivings
in this respect from the financial advisor and/or the financial
institution(s) concerned. The curators should inform
the financial
institution(s) or financial advisor that they may request to be
allowed to make direct submissions to the court,
should they wish to
be admitted as
amici
curiae.
8.
The
curators ad litem are requested to compare the patient’s
position if a curator
bonis
or
bonis et
personae
is
appointed with his position if a the proposed trust with a financial
institution is created, and the position if all the patient’s
funds are paid into the Guardian’s Fund.
9.
The
curators
ad
litem
are further requested to investigate the patient’s ability to
understand the implications of the litigation instituted on
his
behalf against the Road Accident Fund and to give rational
instructions to his attorneys in respect thereof. This investigation
must also cover the enforceability of the contingency fees agreement.
The curators
ad
litem
are requested to advise the court whether the steps taken on behalf
of the patient by the attorneys concerned should be ratified
or not,
should the patient be found to have been unable to understand the
implications thereof.
10.
The
curators’ report must be delivered to the Master for his or her
comment and report.
11.
The Master
is requested to deal in his or her report not only with the curators’
recommendations, but also with:
(i)
The
practice that has been described in this judgment, with particular
reference to the need or otherwise to declare a person in
the
patient’s position incapable of dealing with some or all of his
or her affairs; and
(ii)
with the
merits or demerits of the creation of a trust with a financial
institution when compared with the appointment of a
curator
bonis
.
12.
The costs
of the proceedings to date must be paid by the defendant, with the
exception of the appearances on the 29
th
November 2013 and the 9
th
December 2013, for which appearances no fees are allowed to any of
the parties. This order may be revised at the next hearing upon
the
specific request by any interested party.
13.
Once the
curators’ and the Master’s reports have been received,
any interested party may file comments thereupon within
twenty days
of the Master’s report having been received.
14.
Once the
period of twenty days has expired, any interested party may enrol the
matter upon notice to all other parties.
15.
All parties
should file heads of argument not later than fifteen days before the
hearing referred to in 12. above.
16.
A copy of
this judgment must be provided to the Law Societies of the Northern
Provinces and upon the Bar Councils of the Pretoria
and Johannesburg
Society of Advocates for their attention and comment, should they
wish to do so.
17.
Pending the
finalisation of this matter, the court file is to be retained in the
Judge’s Chambers
Signed at Pretoria on
this 27
th
day of January 2014.
E Bertelsmann
Judge of the High Court.