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[1995] ZASCA 52
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Santam Insurance Ltd v Booi (565/93) [1995] ZASCA 52; 1995 (3) SA 301 (AD); [1995] 2 All SA 537 (A) (18 May 1995)
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between:
SANTAM INSURANCE LTD Appellant
and
MPITIZELI BOOI Respondent
Coram:
JOUBERT, E M GROSSKOPF, STEYN, F H GROSSKOPF et HOWIE JJA
Heard:
20 March 1995
Delivered:
18 Mei 1995
JUDGMENT JOUBERT JA
On 9 November 1988 a motor vehicle collided with the respondent
2 ("Booi")
who was at the time working as a member of a road construction team
on the
road between Plettenberg Bay and The Craggs. The appellant
("Santam") was the appointed agent for the insured motor vehicle within
the
meaning of the Motor Vehicle Accidents Act 84 of 1986 ("the Act"). As a
result of the collision Booi sustained severe bodily injuries, including a
serious
head injury. He was hospitalised from the date of the collision until 17
February 1989 when he was discharged to the care of his relatives. A
medical
report optimistically expected him to resume his work within a year.
During January 1990 Booi, accompanied by his brother-in-law Maxin
Yoli, consulted attorney Dullabh in Grahamstown through an interpreter.
Acting on Boot's instructions Mr Dullabh took the necessary steps to
enforce
his claim against Santam. He caused an action under case no. 5234/91 to
be
instituted in Booi's name in the Cape Provincial Division against Santam
as
defendant for the recovery of damages in consequence of the injuries
sustained
by him in the collision. The summons was issued on 17 April 1991.
In its plea dated 1 July 1991 Santam, save for the collision, disputed
and
3 placed in issue most of the allegations on which Boot's action was
founded.
On 28 June 1991 Mr Keely, a neurosurgeon, made available his
report
of the neurological examination by him of Booi. In his
report he described the
nature of the serious brain injury sustained by Booi as "an extensive,
severe,
shining-force type brain injury which left Mr Booi demented and
moderately
incoordinate."
At the request of Santam, Booi was examined on 23 and 24 February
1993 by a psychiatrist, a neurosurgeon and a clinical psychologist. From
their
respective reports it appeared
inter alia
that Booi as a result of the
collision
suffered from a marked post-traumatic dementia, which rendered him unable
to manage his own affairs and to understand and appreciate the nature,
effect
and implications of legal proceedings instituted on his behalf. They
recommended the appointment of a
curator ad litem
to assist Booi in
the
conduct of the legal proceedings instituted in his name against Santam.
Santam amended its plea by the inclusion of a special plea which
challenged Booi's
locus standi in judicio
owing to his reduced mental
capacity
4 when the legal proceedings were introduced. The institution of the
action was
claimed to be null and void
ab initio
. On 2 March 1993 service of
the
amended plea was effected on Boot's attorneys of record.
On 19 April 1993 Mr Dullabh applied in the Cape Provincial
Division
for the appointment of Adv Kotze as
curator ad
litem
to Booi in order to assist
him in the conduct of his action against Santam. The latter did not oppose
the
application. On 12 May 1993 KING J granted the relief sought in the
following terms:
"1 Advocate Hendrik Kotze is appointed as
curator ad litem
to
Mpitizeli Booi for the following purposes:
1.1
To assist him in the
conduct of legal proceedings instituted in the Supreme Court of South Africa,
Cape of Good Hope Provincial Division,
under case number 5234/91, which action
was brought to recover damages under the Motor Vehicle Accidents Act, No 84 of
1986, arising
out of injuries sustained in a collision with a motor vehicle
which occurred on 9 November 1988 and further to assist him in considering,
and
where appropriate accepting, offers of settlement;
1.2
To assist him in determining whether the action referred to in
paragraph 1.1 hereof ought to be proceeded with or whether the action
ought to
be withdrawn;
1.3 In the event of it being
determined that the action under case number
5234/91 be withdrawn and
thereafter reinstituled, to assist him in all
things necessary in instituting
such action and bringing the matter to a
5 conclusion."
I may add that counsel of the parties to the
present appeal "were agreed that the effect of the order appointing Adv Kotze as
curator ad litem
could not have been to empower the curator to proceed
with the trial action without further ado, but was only to authorise him to
investigate the legal question raised in the Special Plea and to decide how to
proceed with the conduct of the litigation." That
was the effect of the order
granted by KING J on 12 May 1993.
Accordingly on 19 May 1993 Adv Kotze in his capacity as
curator ad
litem
applied in the Cape Provincial Division for the following order:
"(a) Declaring that the ratification and confirmation by HENDRIK KOTZE, in
his capacity as
curator ad litem
to MPITIZELI BOOT, of all steps taken in
the action instituted against the Respondent under case number 5234/1991 is of
full force
and effect;
(b) Granting applicant leave to amend the summons and particulars of claim
accordingly to reflect Applicant as Plaintiff in his capacity
as
curator ad
litem
to MPITIZELI BOOI;
6
(c)
Declaring
that the action instituted against the Respondent under case number 5234/1991
may proceed on the pleadings under case number
5234/1991 as amended in terms of
paragraph (b) hereof;
(d)
Granting the
Applicant the costs of his application only in the event of the Respondent
apposing same."
In para 6 of his supporting
affidavit he stated that he had considered the reports
of the experts who had examined Booi. He then proceeded as follows:
"It would appear to me that it cannot be disputed that at the time the legal
proceedings were instituted in the name of Booi by DULLABH,
BOOI lacked the
necessary mental capacity to litigate in this matter and therefore lacked the
necessary
locus standi
. It is for this reason that I have ratified all
steps taken in this matter
prior
to my appointment as
curator ad
litem.
" (My underlining).
The application which was opposed by Mr Blommaert on behalf of
Santam was heard by the Court
a quo,
constituted by FOXCROFT and
CONRADIE JJ. In a very well reasoned judgment on 6 August 1993
FOXCROFT J (CONRADIE J
concurrente)
granted prayers (a), (b) and (c)
of
the Notice of Motion. This judgment has been reported as
Kotze NO v
Santam
Insurance Ltd
1994 (1) SA 237
(C). Applicant (Booi) was to bear the
costs of
the application on an unopposed basis and respondent (Santam) was ordered
to
7 pay such of applicant's costs as were occasioned by respondent's
opposition to
the application.
With leave of the Court
a quo
Santam
now appeals to this Court against the orders granted and those parts of the
judgment relating to them.
In this Court Mr Smit contended on behalf of Santam that the action which Mr
Dullabh purported to institute in the name of Booi was
null and void
ab
initio
because Booi, who was
captus mente
or
non compos
mentis,
lacked the necessary mental capacity to authorise him to litigate on
his behalf. Consequently, so it was argued, the void "authorisation",
and also
the litigation which followed, together constituted a nullity which was in law
incapable of ratification. The contention
that Booi's purported authorisation
was void is based on trite law. See the judgment of the Privy Council in
Molyneux v Natal Land Colonization Co Ltd
reported in
(1905) 26 NLR 423
at p.429-430; and also LAWSA vol 20 s.v. Persons para 230. The litigation
instituted by Mr Dullabh, however, stands on a different
footing. There is no
basis on which it can be said to have been void. It was merely unauthorised.
8 Our common law distinguishes between a
verus procurator
who
holds
a valid mandate
(qui mandatum habet)
and a
falsus
procurator
who lacks such
mandate (
qui nullum mandatum habet
). Mr
Dullabh obviously qualifies as a
falsus procurator.
Our common law
sources abound in references to the
falsus
procurator
. See D
5.1.56 (Ulpianus), D 46.8.3.1 (Papinianus), D 48.8.12.1
(Ulpianus), Cod 2.12.24, Damhouder (1507-1581)
Practycke in Civile
Saken.
1660, cap 92 nr 1, Morula (1558-1607),
Manier van Procederen
. 1741,
lib 4 tit
18 cap 8 nr 4, Gail (1526-1587)
Practicae Observationes.
1634, obs 47
nr 1;
Voet (1647-1713) 3.3.10.
The jurists recognised an important legal principle which permitted a
principal (
dominus
or meester), to ratify
before
judgment the
litigious acts
performed on his behalf by a
falsus procurator.
They held divergent
views on
the question of ratification by a principal
after
judgment was given.
The views
of the following jurists are relevant on the subject, viz.:
1 Damhouder,
loc.cit.
para 2: "Ende mach den Meester 't doen van soodanigen Procureur
9
ratificeeren ende approberen tot de conclusie in Rechten toe,
ghelijck't gedaen wordt, ende tot noch toe gedaen is geweest in de grooten
Raedt
van Mechelen". para 3: "Maer
na de sententie
en gelt die approbatie van
den Meester niet, ten ware tot sijn eygen schade ende prejudicie." (My
underlining)
Ratification
after judgment
was to no avail unless it was to the
principal's own detriment and prejudice.
2 Van Zutphen (
obit
1685)
Practijcke der Nederlantsche Rechten
.
1680, s.v.
Procureurs en Procuratie
para 8: "Indien een valsch Procureur sonder Procuratie heeft gecompareert, en
in den processe yet gedaen heeft, soo mach den Meester
voor de geweesene
sententie
ratificeeren al het geene by sodanigen Procureur gedaen is; ja dat
meer is, kan ook
na de sententie,
na het gevoelen van sommige Doctoren,
ratificatie gedaen werden". (My underlining).
Ratification could take place before judgment. According to some Commentators
ratification could follow after judgment.
3 Gail,
loc citato
para 3: ... & Doctores in Cod 212.24, Cod 2.40.4, D 46.7.3.1
distinguunt, utrum scntentia contra dominum, an vero in cius favorem lata
sit: ut primo casu ratificatio domini valeat: ut si a sententia
contra falsum
procuratorem lata appellaverit: nam eo ipso censeetur sententiam ratam habere,
per text. in D 46.7.3.1, gl in Cod.
7.58.2 & in eo omnes Doctores
conveniunt,
in locis allegatis.
Secundo vero casu, nullius sit momenti
domini ratificatio, ne via malitiis aperialur: nam dominus eventum senteniae
semper expectaret,
non aliter sententiam
10
ratificaturus, nisi in sui favorem prolata sit: idque pluribus rationibus
confirmat Salicetus in Cod 2.40 nr 4 & 5 & ita
se Farrariae consuluisse
dicit, aliosque eiusdem opinionis Doctores citat.
The
Commentators distinguish whether judgment was given against the
principal or
in his favour. In the former instance his ratification would be
valid, e.g. if he appealed against a judgment adverse to the
falsus
procurator
.
In the second instance the ratification of the principal would be null and
void.
4 Voet,
loc.cit,
as translated by Gane:
"[If such attorney admitted his acts null, and judgment in his favour
incapable of ratification]
But if, though he lacked a mandate, and such failure of mandate was clear, he
has none the less been admitted as attorney for a plaintiff,
then whatever has
been done by the false attorney is
ipso jure void
(Cod. 2.12.12 (13),24),
nor is a judgment confirmed by the ratification of one in whose favour it was
given, inasmuch as such a person
cannot by his ratification destroy the right of
objecting to the nullity of the judgment when such right has once accrued to his
opponent. Although ratification is deemed to be like a mandate, and is drawn
right back and confirms things already done (Cod 4.28.7,
D.50.17.60), yet that
result does not take place if an accrued right is taken away by it from a third
party, but only when a person
by his ratification prejudices himself above.
11
"[A judgment against a false attorney however may be ratified] Clearly if a
judgment had been given against a false attorney, nothing
would stand in *he way
of the principal being able to confirm it by his ratification, since thus he
renounces his own right only.
And it would be allowable also to infer such a
ratification from the fact that the principal appealed to a higher tribunal from
the
judgment pronounced against the false attorney (D 46.8.3.1).
[And so may acts done prior to judgment]
In the same way too a principal can before judgment ratify acts done by a false
attorney while the result of the suit is still pending
in uncertainty; for as
yet no right has accrued to anyone, and thus nothing can appear to be taken away
from the opponent by a ratification
then taking place (D 5.1.56). It follows
also that there may be a sufficient tacit ratification when the principal
further pursues
a suit which an attorney has begun (D 46.8.5 . .
.)"
Gane provided his translation with sub-headings of his own
which do not feature in Voet's Latin text. I have placed these sub-headings
in
square brackets.
In the above passage Voet distinguishes between three categories
viz.
(i)
First Category
where the principal's ratification
of the acts of his
falsus
procurator
is effected
before judgment
has been given i.e. the
matter is
still
re integra et tempore congruo.
since the result of the suit is
still
pending and accordingly uncertain. No party to the suit has at that stage
12 acquired any vested rights to the result thereof.
(ii)
Second Category
where the principal ratifies the acts of his
falsus
procurator after judgment
in his favour such ratification is null and
void since it would deprive his opponent to the suit of his right to
object to the nullity of the judgment.
(iii)
Third
Category
where judgment has been given against the falsus
procurator
his principal may ratify the acts performed on his behalf
by
the
falsus procurator
. He would even be entitled to appeal against
the
judgment to a higher tribunal.
In the present case the matter is still
re Integra et tempore congruo
since
judgment in the action instituted by Mr Dullabh is still pending. The
matter
therefore falls within the first category
(supra)
of Voet. Had Booi as
principal
been
compos mentis
he could according to our common law authorities
have
ratified on his own the acts performed on his behalf by Mr Dullabh as his
falsus procurator
. Unfortunately Booi is n
on compos mentis
and
therefore
incompetent to ratify Mr Dullabh's acts on his behalf.
13 KING J, as I mentioned
supra
, appointed Adv Kotze
curator ad
litem
to
assist Booi in the legal proceedings instituted by
Mr Dullabh. The Court a quo
granted Adv Kotze the necessary authority to
amend the summons and
particulars of claim to reflect him as plaintiff in his
capacity as
curator ad litem
and to proceed with the action on the amended pleadings. The question now
falls to be decided whether or not the Court
a quo
could grant Adv
Kotze as
curator ad litem
the relief set out in the order granted by it.
A Court has inherent jurisdiction to appoint a
curator ad litem
in
order
to avoid a negation of justice where there is no other proper or legal way
in
which a plaintiff can vindicate his rights. I fully agree with the
following
dictum
by REYNOLDS J in
Ex Parte Phillipson and Wells NNO and
Another
1954(1) SA 245 (EDL) at p.246F:
"The principle underlying these cases would appear to be that the Court has
power to appoint, and will appoint, a
cura
t
or ad litem
to assist
persons to vindicate rights where there is no other suitable means in the
ordinary way and will do so by appointing a
curator ad litem
either to
the proper plaintiff or to the defendant, for where there is a claim of right
there should be a means of vindicating it."
14 On the strength of the common law authorities quoted above the
Court
a quo
was competent to grant Adv Kotze as
curator
ad litem
the powers set out
in its order. Adv Kotze therefore became
Booi's duly appointed representative
with power,
inter alia
, to ratify
the steps taken by Mr Dullabh. Such
ratification was indeed legally competent.
Mr Smit raised a further argument on behalf of Santam. He
contended that the sanctioning of the ratification by the
curator ad
litem
would
be prejudicial to Santam since the latter had an accrued right to raise a
defence
of prescription by the time when Adv Kotze's ratification took place. The
answer to this submission, it seems to me, is as follows. The curator's
ratification and the concomitant amendment of the claim to substitute him
as
plaintiff, will not alter the identity of the true claimant. In other words
it will
not introduce a new claim or a new party. The possibility of Santam being
prejudiced by losing the opportunity to plead prescription therefore does
not
arise:
Boland Bank Ltd v Roup Wacks Kaminer and Kriger
1989(3) SA
912
(C) at 914 B-I and earlier cases there cited. In view of this conclusion I
need
15 not consider whether the Court
a quo
was correct in holding,
at 246 F - 248 I
of its judgment, that a plea of prescription could in any event not have
succeeded. There is therefore no substance in this contention by Mr Smit
In my judgment the order granted by the Court
a quo
was entirely
correct.
In the result the appeal is dismissed with costs.
C.P. JOUBERT JA
CONCUR
E M GROSSKOPF JA
STEYN JA
F H GROSSKOPF JA
HOWIE JA