Kotze NO v Santam Insurance Ltd
Jurisdiction | South Africa |
Judge | Conradie J, Foxcroft J |
Judgment Date | 06 August 1993 |
Docket Number | 5234/91 |
Court | Cape Provincial Division |
Hearing Date | 15 February 1993 |
Citation | 1994 (1) SA 237 (C) |
Foxcroft J:
This is an application by Mr Hendrik Kotze, an advocate of the J Cape Bar, in his capacity as curator ad litem to the plaintiff,
Foxcroft J
A Mr Mpitizeli Booi, for the ratification and confirmation of all steps taken on behalf of the plaintiff in the trial action against respondent as the defendent in case No 5234/91.
Before dealing with the notice of motion, it is necessary to set out some of the background.
On 17 April 1991 plaintiff's attorneys of record, Messrs N N Dullabh & Co B of 5 Bertram Street, Grahamstown, instituted action on plaintiff's behalf against defendant for damages arising from injuries sustained by plaintiff in a motor collision. Defendant was the appointed agent for the vehicle which had struck plaintiff, a pedestrian, on 9 November 1988.
In a plea dated 1 July 1991, defendant admitted that plaintiff is C Mpitizeli Booi, but placed in issue the remaining averments in para 1 of the particulars of claim, which were'. . . an adult male labourer presently residing at c/o Mr Trevor Hulley, Grassmere, Trappes Valley. The plaintiff was born on 9 May 1956.'
On 23 September 1991, plaintiff's attorneys in Cape Town served a summary in terms of Rule 36(9)(b) to the effect that a Dr R J Keeley, a D neurosurgeon, would testify at the trial. In the report attached to the notice, Dr Keeley described certain tests which he had carried out. Of particular importance was the information under the heading 'Neurological examination'. Dr Keeley's conclusion under this subsection of his report was as follows: E
'The impression is of a generally healthy man who is demented and who has a moderate degree of ataxia. There were no focal neurological signs.'
It was common cause that the plaintiff had sustained a head injury which was the cause of his present neurological condition.
On 21 October 1992 the trial action was set down for hearing on 25 F February 1993. Three days before the trial date, defendant's attorneys served on plaintiff's Cape Town attorneys notices in terms of Rule 36(1), (2) and (3) requiring plaintiff to submit to medical examinations by a psychiatrist, a neurosurgeon and a clinical psychologist on Wednesday 24 February. On the same day notices were given by defendant that it intended G calling these same medical practitioners to give evidence as experts in the trial due to commence on 25 February 1993.
On 25 February that matter was postponed by agreement to 25 May 1993, with an order that the costs occasioned by the postponement were to stand over for later determination. On 23 February 1993 a special plea was apparently H signed by Mr Blommaert, counsel for defendant, but the special plea was issued only on 2 March 1993 and served on defendant's Cape Town correspondents on that same date, namely 2 March 1993. It appears from the affidavit of Mr Narandra Dullabh, dated 31 March 1993, that
'shortly prior to the date for the hearing of the matter, the legal representatives of Santam indicated that they wished to dispute the H question of whether the said Booi had the requisite locus standi'.
In the circumstances the matter was postponed by agreement between the parties until 25 May 1993. I have referred to this passage to show that, although the special plea was only served on plaintiff's representatives after 25 February 1993, they were aware of the point relating to locus J standi raised by defendant's attorneys.
Foxcroft J
A On 19 April 1993 Mr Dullabh instituted proceedings for the appointment of Advocate Kotze as curator ad litem to plaintiff, and in a replying affidavit Mr Phillippus Strydom Simpson, claims manager for defendant, said that:
'4 Ad para 11:
B It is not correct to state that the point relating to the locus standi of the patient was raised shortly prior to the date of the hearing. I annex hereto marked "PS 1" a copy of respondent's/defendant's plea dated 1 July 1991. From para 1(b) it clearly appears that the patient's locus standi was put in issue already at the plea stage of the action. Thereafter, on 11 February 1993 respondent/defendant amended its plea by the insertion ex C abundante cautela of (sic) special plea which more fully sets out respondent/defendant's objections. A copy of the notice of amendment is annexed hereto marked "PS 2".
I further wish to point out that by agreement the costs of the postponement stood over for later determination. The purpose of the postponement was to enable patient's legal representatives to assess their position and afford them the opportunity of bringing this application.' D
What emerges from these statements is that Mr Dullabh says that defendant's representatives specifically informed him of the locus standi point shortly before the trial, and their answer is that the pleading which was served upon plaintiff's representatives in July 1991 took the point of absence of locus standi.
E While it is true that the original plea could be read to mean that the mental capacity of the plaintiff was placed in issue, it is clear that this is not the proper way to plead such an allegation.
In Pheasant v Warne 1922 AD 481, a decision which was referred to by both counsel in the application before us, Innes CJ said the following at 489: F
'Now an inquiry into the condition of a man's mind is a very difficult and delicate inquiry, of which both parties to the litigation are entitled to due notice. The issue should be distinctly raised on the pleadings and the onus of establishing defective mentality must lie upon the side which relies upon it.'
In my view the issue of mental incapacity should have been pleaded by G defendant in its original plea, in the form of a special plea, or at least in a far more pertinent fashion than in the cryptic way in which the mental capacity of the plaintiff was placed in issue. Be that as it may, the trial could obviously not proceed on 25 February 1993 once the special plea was signed and apparently drawn to the attention of the defendant's H attorneys, although only served on them after 25 February. It was obviously appropriate that the issue raised by the special plea should be disposed of before the trial proceeded.
On 12 May 1993, Advocate Kotze was appointed as curator ad litem under case No 4768/93. The Court order, which followed precisely the wording of I the draft order which had been agreed upon by the applicant and respondent, was as follows:
Advocate Hendrik Kotze is appointed as curator ad litem to Mpitizeli Booi for the following purposes:
To assist him in the conduct of legal proceedings instituted in the Supreme Court of South Africa, Cape of Good Hope Provincial J Division, under case No 5234/91, which action was brought to
Foxcroft J
A recover damages under the Motor vehicle Accidents Act 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;
B To assist him in determining whether the action referred to in para 1.1 hereof ought to be proceeded with or whether the action ought to be withdrawn;
In the event of it being determined that the action under case No 5234/91 be withdrawn and...
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