THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2017-01312
In the matter between:
SS NTSHANGASE ATTORNEYS Applicant
and
MASAKHE TENGWA
ROAD ACCIDENT FUND
LEGAL PRACTICE COUNCIL
ADVOCATE JABU LUVUNO N.O
1st Respondent
2nd Respondent
3rd Respondent
4th Respondent
JUDGMENT
Mfenyana J:
Introduction
[1] The applicant, a firm of attorneys, instituted proceedings against the first and
second respondents seeking a series of orders against the first, second and fourth
respondents. Key to these orders, listed in no particular order, is an order declaring
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: No
Date: 24 November 2025
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the settlement agreement reached between the first respondent (Mr Tengwa) and the
second respondent (the Road Accident Fund / the Fund) on 28 August 2020 invalid .
A second order is to the effect that Mr Tengwa be directed to account to the third
respondent (the LPC) and the fourth respondent (the curator) on various issues
relating to the settlement amount paid by the Road Accident Fund into ‘Mr Tengwa’s
trust’ account on 1 August 2022 as compensation for injuries sustained by a certain
Mr Thwala within seven days.
[2] Against the Fund, the relief sought is for the Fund to make a vailable to the
registrar of this court a copy of a forensic investigation report compiled by the Fund
pursuant to a complaint lodged by the applicant within seven days of an order by this
court.
[3] Lastly, the applicant seeks an order directing the curator to ratify , accept and
finalise any proposed settlement and file his repor t in respect of Mr Thwala’s claim
with the registrar of this court within 21 days of an order being granted by this court.
[4] Costs are sought only in the event of opposition.
[5] The application is opposed by the first and second respondents only. The third
and fourth respondents have not opposed the application , with the fourth respondent
only filing an explanatory affidavit. In his explanatory affidavit, the fourth respondent
sought to lend support to the applicant’s contention of ratification.
[6] On 14 June 2016, the applicant, acting in terms of the power of attorney signed
by Mr Thwala in April 2016, lodged a delictual claim on behalf of Mr Thwala in terms
of the Road Accident Fund Act1, claiming damages allegedly suffered by Mr Thwala
as a result of a motor vehicle accident which took place on 15 March 2016 . The
claimant sustained head injuries. On 18 January 2017, the applicant instituted
proceedings in this court against the Fund under case number: 2017-01312.
1 Act 56 of 1996.
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[7] The applicant argues that the claimant was, at the applicant’s instance, referred
for medical assessment to substantiate the claim , and the experts diagnosed Mr
Thwala with a severe brain injury and further that his mental acuity was adversely
affected. D octors Fine and Rosman, who furnished medico -legal reports , further
recommended that, due to the nature of his injuries, a curator ad litem be appointed
on behalf of the claimant as he would not be able to manage his affairs. The doctors
further opined that it might also be necessary to appoint a curator bonis. Advocate
Jabu Luvuno, cited as the 4th respondent, in these proceedings, was appointed as the
curator ad litem for the plaintiff on 8 October 2018.
[8] The applicant contends that this application is brought under section 38 of the
Constitution to protect Mr Thwala’s rights and interests. It further asserts that, as of
October 2020, when it learned of a settlement between Mr Tengwa and the Fund, it
still had the authority to represent Mr Thwala in his claim against the Fund. It further
contends that the settlement was reached without any input from the curator, who was
also unaware of it. The applicant also states that it has filed a complaint with the LPC
to resolve the dispute regarding the mandate given by Mr Thwala to either the
applicant or Mr Tengwa. Accordingly, the applicant argues that the LPC has a direct
and substantial interest in the matter. It also notified the Fund, which then initiated an
investigation. Thus, the applicant contends that the settlement is invalid and falls to be
set aside.
[9] In opposing the application , Mr Tengwa raised various points in limine as set
out hereunder.
Locus standi
[10] Mr Tengwa avers that the applicant has no locus standi to initiate these
proceedings. He further asserts that the applicant has neither provided a mandate nor
a power of attorney authorising it to act on behalf of Mr Thwala, nor has the curator
a power of attorney authorising it to act on behalf of Mr Thwala, nor has the curator
approved the institution of these proceedings by the applicant. Mr Tengwa denies that
any of Mr Thwala’s rights are at risk.
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[11] Furthermore, he contends that Mr Thwala has not been declared non compos
mentis under Rule 57 of the Uniform Rules of Court, and thus does not require the
applicant’s assistance. However, this argument overlooks the fact that the court has
appointed a curator to act on Mr Thwala’s behalf. As such, the applicant cannot rely
on section 38(b) of the Constitution, as this responsibility now vests in the curator, the
fourth respondent in these proceedings. Similarly, Mr Tengwa’s assertion that Mr
Thwala has not been declared non compos mentis is unsanctionable.
[12] In Firm-O-Seal CC v Prinsloo & van Eeden Inc and Another2, the SCA held
that:
[6] Locus standi in iudicio is an access mechanism controlled by the court itself.
Generally, the requirements for locus standi are these: the plaintiff must have an
adequate interest in the subject matter of the litigation, usually described as a direct
interest in the relief sought; the interest must not be too remote; the interest must be
actual, not abstract or academic; and, it must be a current interest and not a
hypothetical one. Standing is thus not just a procedural question, it is also a question
of substance, concerning as it does the sufficiency of a litigant’s interest in the
proceedings. The sufficiency of the interest depends on the particular facts in any given
situation. The real enquiry being whether the events constitute a wrong as against the
litigant.”
[13] In Giant Concerts CC v Rinaldo Investments (Pty)Ltd and Others 3, the
Constitutional Court (CC) held that the question of l ocus standi must be determined
before the merits of the lis are considered by the court.
[14] Section 38(b) provides for ‘anyone who acts on behalf of another person who
cannot act in their own name to approach the court alleging that a right in the Bill of
Rights has been infringed or threatened’. This provision essentially expands who has
standing to bring a case and enables the specified groups of people to litigate for those
standing to bring a case and enables the specified groups of people to litigate for those
who cannot.
2 (483/22) [2023] ZASCA 107 (27 June 2023).
3 2013(3) BCLR 251 (CC) at para 32.
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[15] It is common cause that the fourth respondent was appointed by the court as a
curator ad litem on behalf of Mr Thwala. Consequently, the responsibility of instituting
proceedings on behalf of Mr Thwala falls on him. It does not shift to the applicant even
if the curator has ratified other decisions. Moreover, legal standing cannot be ratified.
Ratification stems from the law of agency , where a principal ratifies otherwise
unauthorised conduct of their agent and thus giving consent to an agreement to render
it legally binding and enforceable. Locus standi, on the other hand, is a technical legal
point and does not involve the exercise of discretion by the person purporting to ratify
prior unauthorised conduct. The rights of the curator have also not been ceded to the
applicant. It follows, therefore, that this point in limine should succeed.
Jurisdiction
[16] The application was filed under a case number previously issued in a matter
between the Fund and the claimant. That dispute has since been settled and finalised.
Mr Tengwa contends that the applicant should have issued this application under a
different ca se number. He argues that, failing this, the court lacks jurisdiction to
adjudicate the matter. It is common cause that the applicant in this matter did not
initiate the proceedings under a new case number.
[17] While I agree with Mr Tengwa that the present application is a new one, distinct
from the initial dispute between Mr Thwala and the Fund, and should have been filed
under a new case number, Mr Tengwa’s contention seems to conflate the court’s
jurisdiction with the procedural irregularity of obtaining a case number. This is an
administrative requirement aim ed at identifying the matter. The lack of a new case
number is not fatal to the application and can be remedied by reissuing it under a
correct number. This does not mean that the court lacks the authority to adjudicate
the matter, as the court inherently possesses the power to hear and decide cases. I
the matter, as the court inherently possesses the power to hear and decide cases. I
do not agree that the application should be dismissed solely on that basis. An
improperly issued application implies that the matter is not properly before th e court
and can therefore not be adjudicated. It is the kind of procedural irre gularity that is
curable and cannot result in the dismissal of the matter on its merits.
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Non-joinder
[18] Mr Tengwa further contends that he entered into the settlement agreement with
the Fund within the scope of his employment at Tengwa Attorneys. The settlement
amount was deposited into Tengwa Attorneys' trust account and not his personal
account. Therefore, the applicant’s failure to join Tengwa Attorneys as a party to these
proceedings is fatal to this application, he avers. I do not agree.
[19] In Erasmus: Superior Court Practice, Vol 2 at D1-125, the following is noted:
“The rule is that any person is a necessary party and should be joined if such
person has a direct and substantial interest in any order the Court might make,
or if such an order cannot be sustained or carried into effect without
prejudicing that party, unless the Court is satisfied that he has waived his right
to be joined.”
[20] The SCA held in Naude4 that “(t)he test whether there has been non-joinder is
whether a party has a direct and substantial interest in the subject -matter of the
litigation, which may prejudice the party that has not been joined.”5 The SCA referred
with approval to the sentiments expressed in Gordon6, where it was held that “… if an
order or judgment cannot be sustained without necessarily prejudicing the interests of
the third parties that had not been joined, then those third parties have a legal interest
in the matter and must be joined”.7
[21] In the supplementary heads of argument, the applicant contended that Mr
Tengwa and Tengwa Attorneys “…are one in the same”.8 (sic). Mr Tengwa is the sole
director and principal of Tengwa Attorneys, a company with personal liability. As a
director of Tengwa Attorneys, Mr Tengwa is not an employee of the firm in the strict
sense of the word. By definition, an employee is a person who is hired by another (in
4 Absa Bank Ltd v Naude NO and Others 2016 (6) SA 540 (SCA).
5 Id at para [10].
6 Gordon v Department of Health, KwaZulu -Natal (2008) (6) SA 522 (SCA)
7 Id at para [9].
6 Gordon v Department of Health, KwaZulu -Natal (2008) (6) SA 522 (SCA)
7 Id at para [9].
8 See para 17 of the Applicant’s Supplementary Heads of argument.
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this case, an employer) to perform certain tasks or undertakings in return for
remuneration. This presages a situation where there is an existence of an
employer/employee relationship within the meaning and contemplation of the Labour
Relations Act9. While a director is typically not liable for the debts of the firm, the
power of attorney issued to Mr Tengwa by Mr Thwala records that Mr Tengwa was
appointed to prosecute the claim on behalf of the firm. Moreover, there is no apparent
distinction between Tengwa Attorneys and Mr Tengwa. Importantly, the order granted
against the first respondent would not be prejudicial to Tengwa Attorneys in any way
whatsoever. This point in limine should fail.
Lis pendens
[22] The first respondent did not persist with this point.
The relief sought is competent
[23] Mr Tengwa avers that the relief sought by the applicant is incompetent and bad
in law, arguably on the basis that the settlement agreement has run its course and
both parties involved (Mr Thwala and the Fund) have performed their obligations in
terms of the settlement agreement. He argues that the court cannot declare invalid or
set aside a settlement that does not exist.
[24] I find no merit to this contention as it is relevant to the merits of the application.
It is not, strictly speaking, a legal point.
Conclusion
[25] Having found that the applicant has no legal standing to institute these
proceedings, which is dispositive of the entire application, it will serve no purpose to
traverse the merits of this application. The application ought to be dismissed.
9 Act 66 of 1995.
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[26] With regard to costs , I am of the view that the general rule that costs follow the
result should apply. The dismissal of the point of law of locus standi implies that the
first respondent is successful in his opposition.
Order
[27] The following order is made:
a. The first point in limine of lack of locus standi is upheld.
b. The second point in limine of jurisdiction is dismissed.
c. The third point in limine of the non-joinder of Tengwa Attorneys
is dismissed.
d. The application is dismissed.
e. The applicant shall pay the first and second respondents’ costs of
the application
S MFENYANA
Judge of the High Court
Johannesburg
This judgment was handed down electronically by circulation to the parties’
representatives by email and by uploading the judgment onto Caselines. The date of
handing down the judgment is deemed to be 24 November 2025.
Appearances:
For the applicant :
Counsel: B Molojoa
Instructed by SS Ntshangase Attorneys
For the respondent 1st respondent:
Counsel: M.S. Lufele
Instructed by: Tengwa Attorneys
-
For the 2nd respondent
Counsel: P Nziyanziya
Instructed by: State Attorney
For the 3rd respondent:
No appearance
For the 4th respondent:
Counsel: AJP Luvuno
(In his representative capacity as the curator ad litem)
Date of hearing:
29 May 2025
Date of judgment:
24 November 2025