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IN THE HIGH COURT OF SOUTH AFRICA,

KWAZULU-NATAL LOCAL DIVISION, DURBAN

                                                                                               

                                                                                                CASE NO: D5946/2019 

In the matter between:

DAVID SEAN SCOTT                                                                   FIRST APPLICANT

MARY- JEAN SCOTT                                                                           SECOND AP PLICANT

ALLANNAH TOMKINS                                                                       THIRD APPLICANT

COLLEEN ANN LISKA                                                                         FOURTH APPLICANT

ROBIN MICHAEL SCOTT                                                                   FIFTH APPLICANT

and

WILLIAM JOHN DESMOND IVEAGH SCOTT                              FIRST RESPONDENT

 

JACQUELINE ALEXANDRA BARRINGTON                               SECOND RESPONDENT

 

 

This judgment was handed down electronically by circulation to the parties’ legal representatives by email and released to SAFLII. The date for handing down is deemed to be 26 August 2020.

ORDER

1.    The application is dismissed.

2.    The applicants, jointly and severally the one paying the other to be absolved, are directed to pay the costs of the first and second respondents, including the costs of the application to strike out and all reserved costs, on a scale as between attorney and client, such costs to include the costs of two counsel where so employed.  

 

JUDGMENT

Chetty J:

[1]       The South African Law Commission Report of December 2015, Project 122, arose from a concern over the manner in which South African law addresses the needs of people with diminished capacity to make informed decisions and exercise their legal capacity. It noted that:

‘Making decisions is an important part of human life. By exercising choice through our decisions in matters relating to our personal welfare and financial affairs, we express our individuality and exert control over our own lives. Impaired decision-making ability can be the result of mental illness, intellectual disability, brain injury, stroke, dementia, a specific disease, or impairment related to ageing in general. A legitimate expectation for the law is that it should establish a structure within which autonomy and self-determination are recognised and protected, while also protecting persons with decision-making impairment from abuse, neglect and exploitation. South African law does not fulfil these requirements at present.’[1]

 

[2]          This present application is not unlike that in Nicolakakis & another v In re: Appointment of curator bonis to Arthur Nicolakakis (855651/2018) [2019] ZAGPPHC 997 (4 November 2019) involving litigation amongst family members, where a son, together with his mother, brought an application to have his father (‘the patient’) placed under curatorship in terms of Uniform rule 57 on the basis that his father was incapable of managing his own affairs.  The patient was a highly successful businessman, the sole shareholder of the well-known Roman’s Pizza franchise.

 

[3]          The application before me concerns an equally successful businessman, who by all accounts amassed a fortune through his involvement in the footwear industry and the establishment of a leading shoe store in Durban in the 1970’s, taking the family name. He was also the co-owner with his brother (the fifth applicant) of a highly successful thoroughbred stud farm in the Nottingham Road area of the Natal Midlands.  The brothers have been a major part of the South African horse racing landscape for close on 50 years.  Apart from his interests in the racing community at a local level, the first respondent owns valuable race horses in Ireland, as well as valuable paintings, antiques and investments in the United Kingdom and South Africa worth several hundred million rand.

 

[4]          In Nicolakakis it was contended that the patient was suffering from dementia and his son and wife feared that as a result of the patient’s condition, he intended leaving to his friends and personal assistant, amongst others, much of his wealth. The patient opposed the attempt to have him examined by a battery of doctors, citing this as an abuse of process, amounting to an invasion of his constitutional rights.  Fourie J at para 40 of the judgment quoted from the patient’s affidavit opposing the attempt to subject him to further medical examinations, in addition to the nine that he had already undergone.  The patient said the following:

‘As a result of the ex parte order . . . I have been subjected to needless interviews and medical examinations, I have had my conduct analysed and dissected and I have had my life history and the personal and private difficulties between my son and my wife and me splashed publicly across hundreds of pages of court papers . . . there have been very public, untruthful and scandalous allegations against me in relation to my relationship to my wife and family, my physical health, my sexual proclivities, my emotional state and a character assassination of whom I am as a person.’

 

[5]          In the matter before me, the applicants being the son, three daughters and brother of the first respondent, brought an urgent application for a member of the Bar to be appointed as a curator ad litem for the purpose of reporting to this court whether the first respondent is of unsound mind and incapable of managing his own affairs, and for the first respondent to undergo whatever medical and other examinations may be necessary for the purpose of preparing a report for the court. In addition, the applicants sought a rule nisi that the second respondent, who is the wife of the first respondent, be interdicted and restrained from causing her husband to be discharged from Gateway Hospital, Umhlanga, or from returning him to his residence at Forest Drive, La Lucia or to any other place under her control.

 

[6]          The application for interim relief in the form of the rule was brought on an urgent basis, giving the respondents barely two days within which to prepare their opposition. The matter was heard by D Pillay J on 25 July 2019, when the court adjourned the matter to 2 September 2019 as a holding date and granted leave to the applicants and the respondents to file further supplementary papers, reserving all costs.  Significantly, despite the apparent urgency alluded to in the papers, no interim relief was granted to prevent the first respondent, on his discharge from hospital, from returning to his home in La Lucia with his wife.

 

[7]          The respondents opposed the urgent relief and the substantive relief sought in the application in respect of the appointment of a curator.  I referred earlier to the extract from the affidavit of the patient in Nicolakakis inasmuch as it mirrors to a large extent, in my view, the basis on which the first respondent opposes the relief sought by his children and brother. The first respondent, in a relatively brief affidavit, confirmed that his wife (who he refers to as ‘Jacky’) and his attorney have explained to him the nature of the application brought by the applicants. In light of the length of those papers, being 169 pages long, he did not have the energy to read through them. He says the following, which is important in the context of the relief sought:

‘I am clear however that I do not want my children and my brother to succeed in having me removed from my flat. I have been in occupation of this flat since the time the building known as Saratoga was built approximately 44 years ago. I am 91 years of age and am adamant that I wish to live out my years in that flat and do not wish to be removed against my will to a retirement home care facility. I am perfectly satisfied with the condition of the flat and the care and attention which is provided to me by Jacky.’[2]

 

[8]        In his supplementary affidavit the first respondent confirms that he has been perfectly happy in his relationship with his wife, the second respondent, and did not see any need or basis for this court to intervene to appoint a curator to him. He was adamant that he was of sound mind and able to make his own decisions and that ‘[t]here is no basis for my children to suggest otherwise’.[3]

 

[9]        In light of the first respondent having a trusted group of advisors, including his long standing financial advisor, his accountant, bank officials, his attorney and his wife who has been together with him for over 30 years, he feels secure in the decisions that he takes.  He went on to state:

‘I am upset that my children have resorted to this litigation. It is an affront to me as is their decision to oppose the successor Protectors I have appointed to office in my place in the Watermark Trust as a result of which there is to be a hearing before the Royal Court of Jersey to try to resolve this matter. It is particularly distressing that they have done this as I have been very generous to them. I love my children and will always love them. But, I think that they do need to respect my privacy, autonomy, choice of my soulmate and the decisions that I make. To repeat, I am perfectly happy with the medical treatment I receive and with my living arrangements at our matrimonial home. I remain deeply in love with my wife who I believe reciprocates my feelings. It hurts me that matters have come this far. I respectfully ask this Honourable Court to dismiss the application brought by my children with costs…’[4]

 

[10]      These remarks by the first respondent are contrite and sincere. They appear to be an honest expression of the anguish felt by a father whose children have launched an application against him purporting to act in his best interest. As will be seen, despite their assertions of having his best interest at heart, no latitude is spared in the papers in laying bare much of his personal life, and lifestyle choices.

 

[11]   The applicants contend that they bring the application out of love for their father, whom they suspect has Alzheimer’s disease, like his mother and brother who passed away from the same illness.  They contend that their communication with their loving father has been stymied and stifled by his manipulative and conniving wife (the second respondent) who is 35 years’ younger than their father, and to whom they allege their father married in a clandestine wedding in 2018.  Much of their bitterness, as will appear from what follows, is reserved for the second respondent, whom they allege ill-treats and abuses their father, while at the same time mysteriously siphoning off large amounts of money from his fortune.

 

[12]     At an early stage and prior to any litigation, in February 2019, a letter was addressed to the second respondent from the applicants’ attorney seeking to make arrangements for some of the applicants to visit the first respondent, but in circumstances where second respondent, his wife, would not be present.  This was in the context of the first and fifth applicants wanting to spend time alone with the first respondent as they contend that the second respondent had obstructed their attempts to visit the first respondent.  At the outset, the tone had been set by the applicants’ attorney that should the applicants not receive the co-operation of the second respondent, the applicants intended to proceed with an application to court seeking access to their ‘paterfamilias’.  The second respondent rose above the acidic tone of the demand and suggested that instead of the first respondent going out that his brother and son should have lunch with him at their home in La Lucia, and she offered to excuse herself for the time they were present.  In the event that they wished to go out for lunch, she indicated that the first respondent’s caregiver, Mrs Ester Ndlovu, accompany them.  That offer was declined and ultimately the first and fifth applicants took the first respondent alone out to lunch.

 

[13]      Following this luncheon, the applicants’ attorney then wrote to the second respondent recording the concerns of the applicants that their open lines of communication with the first respondent be restored without the second respondent screening their calls and to desist from removing the telephone landline at his home.  More importantly, a concern was noted that the first respondent (as observed over lunch) was unable to conduct a reasonable conversation and had a loss of short-term memory, leading the first and fifth applicants to conclude that the first respondent be made available for a consultation with a clinical psychiatrist of their choosing.

 

[14]      In response, the respondents’ attorney advised that the first respondent was happy to receive social visits from the applicants and their children but these had to be done by prior arrangement with the second respondent, who would not be excluded from being present during these visits.  The first respondent also rejected the notion that he be assessed by a doctor of their attorney’s choosing, stating that he had confidence in the treatment of his own doctors.  The respondents’ attorney went on to state the following:

‘Des feels his family should take comfort in the fact that he is lovingly cared for by Jacky and he would like them to respect the role that she plays in his life’.[5]

 

[15]      The applicants were not prepared to accept the explanation tendered on behalf of the respondents through their attorney, a very senior practitioner in Durban.  Instead the applicants contended that the response conveyed by the respondents’ attorney emanated not from the first respondent but the second respondent.  I digress to say that I find this response from the applicants, through their attorney, most disconcerting.  In his letter of 25 March 2019, the respondents’ attorneys clearly stated that ‘Des [the first respondent] has asked me to respond on his behalf’.[6]  Despite that assurance, the applicants deemed it fit to question the respondents’ attorney’s ethics as responding not on behalf of the first respondent, but doing so solely on the instructions of his wife.  This is not an isolated instance, and repeats itself elsewhere in the papers.

 

[16]      The missives that followed from the applicants’ attorney were directed at a continued demand that the first respondent submit himself to a medical examination.  In response, his attorney replied that the first respondent found it difficult to understand why his children and brother would not accept his assurance that he was being properly taken care of and had his own team of medical consultants.  The letter repeated the ‘wonderful role’ which the second respondent played in the life of the first respondent and that his children had no reason to believe otherwise.  The applicants nonetheless remain indignant in their perception of the second respondent, asserting that she has been instrumental in destroying the loving relationship which the first respondent once shared with his family.

 

[17]      Being a prominent member of the Durban horse racing community entails  that the July Handicap is an important date on the first respondent’s social calendar.  According to the first applicant, his father generally attends the July Handicap and invites members of his family and friends to his private box. The first respondent extended an invitation to the first applicant to attend the function with him. This arrangement was changed, according to the first applicant, when his father informed him that he would not be attending the race. The first applicant considered that in light of his father’s frail condition, it would be better to visit him at his apartment, where they could watch the race together on television. When the first and second applicants arrived at their father’s apartment block, they learnt that he had been taken to the races by the second respondent. Later in the following week the first respondent took seriously ill, causing him to be admitted to the Gateway hospital, where he was transferred to the intensive care unit.

 

[18]      The contention of the applicants is that the first respondent’s hospitalisation was a direct result of an infection which he presumably contracted whilst attending the races. They attribute this to the neglect of the second respondent who exposed the first respondent to inclement weather on the day, and thus was directly responsible for the condition in which the first respondent found himself. It is for this reason that the applicants sought as part of the relief that the first respondent be transferred to a care facility at the Mount Edgecombe retirement home rather than return to his matrimonial home in La Lucia. In motivating their grounds of urgency, the applicants, in May 2019, suggested that if the first respondent were to return to his home, he feared he would die. As set out earlier, when the matter came before D Pillay J, it was simply adjourned without any interim relief.

 

[19]      It is significant to note that at the time when the application was launched, none of the doctors who had been attending to the first respondent provided any medical evidence in support of the contention of the applicants. Even while the first respondent was at the hospital, the applicants’ attorney and the wife of the first applicant attempted to draw the hospital management into their ongoing dispute with the second respondent, instructing the hospital not to allow the second respondent to sleep in the ward in which her husband was a patient, alleging that she could possibly infect him with pneumonia.  It was even suggested that the second respondent was unlawfully administering medication or drugs to her husband, and they urged the hospital management to take preventative measures. The applicants further requested that in the event of the first respondent being discharged from hospital, they should be granted 24 hours’ notice thereof.

 

[20]      I should point out that I found it concerning that pressure had been put on the hospital management against discharging the first respondent on strictly medical grounds, and without any restriction. It is evident from the letters written to the hospital that the applicants were intent on besmirching the second respondent’s character by suggesting that she was administering drugs to her husband, and that a forensic pathologist was going to be appointed to investigate this. The hospital wisely, in my view, steered clear of the pressures which the applicants brought to bear on them, and indicated that any decision made in relation to the discharge of the first respondent would be a medical decision made by his attending doctors.

 

[21]      It is against this factual background that the applicants brought their urgent application. The papers are replete with allegations of mistreatment by the second respondent of her husband, that she causes him to live in appalling conditions and to wear tattered clothing despite him being a wealthy man. They also accuse her of controlling his finances and limiting his resources for his maintenance.  In so far as the first respondent’s financial situation is concerned, the first applicant has managed to obtain copies of his father’s bank statements, which are commonly regarded as confidential documents. He expresses concern over significant amounts which have been transferred out of the first respondent’s accounts the United Kingdom as well as his private account held in Umhlanga, from which they record the amount of payments made to the second respondent. In April 2019 the first applicant points out that the second respondent made cash withdrawals from the funds in her husband’s account in an amount of R680 000. On this basis it is suggested that the first respondent is not aware of what is taking place regarding his financial affairs, which are being dealt with by the second respondent. In short, the suggestion is that the second respondent is exploiting her husband’s financial resources and condemning him to an uncared for, filthy existence.

 

[22]      The fifth respondent has also detailed his ownership of a highly successful stud farm, which he co-owned with the second respondent in the Nottingham Road area in the Natal Midlands. Over the years the first respondent became less involved in the affairs of the stud farm, and a decision had been taken that it should be sold. A very generous offer of R34 million had been made by the neighbouring farm and the fifth applicant was very eager to sell the farm. In order to do so, he required the consent and signature of the first respondent, as well as the approval of the first respondent’s attorneys that the sale could go ahead. The fifth applicant appears to have been desperate for the sale, and details his attempts to see his brother to discuss the urgent sale. He contends that the second respondent obstructed his access to the apartment and to his brother. 

 

[23]      The fifth applicant however stopped short in his affidavit from indicating to the court that the first respondent nonetheless signed the sale agreement, allowing the transaction to go ahead. This took place less than two months before the applicants brought this application contending that the first respondent was possibly suffering from Alzheimer’s disease, was on his death bed and unable to make decisions himself. Ms Gabriel SC, who appeared with Ms Olsen for the respondents, seized on this point contending that it is inconceivable that an individual who consents to a ‘high-value transaction’, which has not been sought to be set aside on the grounds that he was unaware of the transaction he was entering into and of unsound mind at the time, is nonetheless considered to be in need of a curator less than two months after the event.  This is a significant factor, in my view, in assessing the strength of the applicants’ case.  I raised this as an issue with the applicants’ counsel during the course of the hearing and was not convinced by his response.

 

[24]      The applicants also attempted to bolster their cause by enlisting support of the first respondent’s caregiver, Mrs Ester Ndlovu. She deposed to an affidavit supporting the suspicions of the applicants that the second respondent administers medication to the first respondent, which she believes to be antibiotics. This is simply speculation and in any event there is nothing untoward in a wife administering medication to her husband. Furthermore Mrs Ndlovu is a trained caregiver, not a qualified nurse. She details in her affidavit that the first respondent is simply ordered by his wife to do what she says, that she has no physical affection for him, and that this is a situation that has been existence for many years. She adds that the second respondent does not take care of the first respondent, almost suggesting that she deliberately ensures that he is unkempt in his appearance. Like the applicants, she too states that she was kept in the dark about the marriage of the respondents. I am not sure what concern this is to a caregiver, or to anyone else, for that matter. It is clear that Mrs Ndlovu has a strained relationship with the second respondent and attributes this to the latter attempting to interfere with the ownership of a house which the first respondent had purchased her (Mrs Ndlovu).  Despite Mrs Ndlovu being responsible for the first respondent’s care, she states that the apartment in which he lives is not a healthy environment. She does not say why, despite being responsible for his care, she did nothing to improve his living conditions, or whether her attempts to do so were thwarted by the second respondent.

 

[25]      It seems to me to be unfortunate that the applicants have dragged Mrs Ndlovu into the dispute with the first and second respondents. The impression which I gained from her affidavit is that it has been tailored to provide corroboration of the hearsay allegations of the applicants.

 

[26]      The respondents oppose the appointment of a curator ad litem to the first respondent on the basis that the applicants have failed to make out a case for the relief sought, in particular that the applicants have failed to provide any facts or circumstances which show that the first respondent is of unsound mind and incapable of managing his affairs, and that the bulk of the ‘facts’ are scandalous, vexatious and accordingly inadmissible.  They also submit that no medical reports have been provided by the applicants as required by Uniform rule 57.

 

[27]      The requirements in terms of Uniform rule 57(2) are that the application ‘shall set forth fully . . . the grounds upon which the applicant claims locus standi to make such application’ and the ‘facts and circumstances relied on to show that the patient is of unsound mind and incapable of managing his affairs’.

 

[28]      In addition, Uniform rule 57(3)(b), requires that the application

‘shall, as far as possible, be supported by – . . .  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.’

 

[29]      In so far as the requirement of locus standi in Uniform rule 57(2(a), the decision in Judin v Wedgwood & another 2003 (5) SA 472 (W) is instructive.  In Judin the applicant applied to have a curator ad litem appointed to the first respondent, in respect of the applicant’s proposed litigation to claim fees for services rendered. The court held in para 7 that the applicant had not established that he had locus standi since it was not shown that he had a ‘direct interest in the matter’. The court stated in para 9 that:

‘the health of the first respondent, whether it be his physical or mental health, has insufficient to do with the applicant to justify his bringing the present application.’

 

[30]      In Ex Parte Futter; In re: Road Accident Fund and another [2016] JOL 35335 (ECP), para 11, the court stated the following:

‘. . . from a reading of the case law it is evident that locus standi in applications for the appointment of a curator to another is not determined by whether the applicant has a financial interest in the ability or inability of another to manage his own affairs. In Judin v Wedgwood and Another 2003 (5) SA 472 (W) it was by way of example held that a debtor-creditor relationship alone does not give locus standi to a creditor to apply for the appointment of a curator ad litem to his debtor. It is rather the proximity of someone’s relationship to another that is sufficient to create a direct or real interest in the relief sought. An application of this nature is for this reason usually brought by one of the patient’s next of kin, not simply because they may personally be adversely affected by the inability of the patient to manage his own affairs, but also because they are sufficiently close to him so as to have a real concern for his welfare, thereby creating a legally recognised interest in his ability to manage his own affairs.’

 

[31]      The above decision would favour the case of the applicants as having the necessary locus standi on the basis of their close family relationship to the first respondent.  The issue however is whether their motives for doing so stem from a genuine concern over his health or whether, as the first respondent seems to suggest, that their concerns arise more from how he disposes his vast fortune and to what extent the second respondent will be a beneficiary thereof, including any role that she plays in the Watermark Trust. It is common cause that the first respondent set up the Watermark Trust in Jersey which held in January 2019 assets to the value of £15 million.

 

[32]   Uniform rule 57(2)(e) requires that the facts and circumstances must show that patient is of unsound mind and incapable of managing his affairs.  The facts must be within the personal knowledge of the deponent to the founding affidavit, otherwise, within the personal knowledge of deponents to supporting affidavits.  In this regard the following is stated in Erasmus: Superior Court Practice:

‘It is submitted that such facts and circumstances must fall within the personal knowledge of the deponent to the founding affidavit. If not, supporting affidavits to prove the patient’s mental condition must be filed.’ [7]

In Ex Parte Futter , para 27, the court emphasised that the applicant is required to set forth ‘“fully” the facts and circumstances relied on to show that the patient is by reason of a mental defect incapable of managing his affairs’. This requirement is separate and additional to the requirements of subrule (3)(b),[8] which provides that the application ‘shall, as far as possible’ be supported by the affidavits of medical practitioners. The contention of the respondents is that the assertions made by the applicants are based on supposition and are not corroborated by anyone else other than Mrs Ndlovu, whose version is beset with problems. 

 

[33]      Regarding the fulfilment of the requirements of Uniform rule 57(3)(b), it is not in dispute that this application is not supported by an affidavit of even a single medical practitioner. The applicants contend that the second respondent has been instrumental in preventing the first respondent from submitting to an examination of a medical practitioner.  On the other hand, it was submitted on behalf of the first respondent that he does not want to have his privacy and right of confidentiality violated by the unwarranted intrusion of having to subject himself to medical examinations.  He contends that his health is being properly managed by a team of medical professionals and that he will not allow his privacy to be invaded at the demand of his children.  In Erasmus: Superior Court Practice the following commentary is made regarding this su-rule:

‘It is not an absolute requirement that the application be supported by the affidavits contemplated in this subrule. The subrule requires that the application shall “as far as possible” be supported by the affidavits. It is submitted that all reasonable attempts should be made to obtain the affidavits and that in the absence of obtaining them, the attempts made should be disclosed to the court in the founding affidavit or a supporting affidavit to the application.’ [9] (my emphasis)

 

[34]      What the applicants wish the court to order, in light of the first respondent not voluntarily subjecting his person to examination, is to impose an examination against his will.  This is a most drastic of measure and will be something considered only in the most extreme and perhaps life-threatening scenarios.

 

[35]      In Ex parte Stoffberg; In re: Xaba v Road Accident Fund and two related matters [2018] 3 All SA 145 (GP), para 13, the court adopted a more stringent and literal interpretation of Uniform rule 57, holding in that:

‘The provisions of the Rule are clear and unambiguous. The Rule clearly sets out the procedure to be followed. The application as far as possible should be supported by an affidavit of at least one person to whom the patient is well known as well as two medical practitioners who have conducted recent examinations on the patient.’  

 

[36]      The first respondent relies on Judin in which matter the court found there to have been non-compliance with Uniform rule 57, in particular that:

(a)       the applicant had failed to file affidavits by two medical practitioners;

(b)       there were certain medical reports (not affidavits) attached to the application, but even these did not meet the requirement of demonstrating that the first respondent was incapable of managing his own affairs – they only showed that he was unable to resume his previous employment; and

(c)        the applicant had also failed to make out a case that would justify the court dispensing with the requirements of Uniform rule 57, in terms of Uniform rule 57(4).

 

[37]      In so far as the burden of proof is concerned, Mr Dickson SC, who appeared on behalf of the applicants, submitted that in as much as the applicants were seeking at this stage only the appointment of a curator ad litem, the standard which they were required to meet was perhaps not more than a prima facie case.  As I understood his argument, as the applicants were seeking at this stage only the appointment of a curator ad litem, who would be the ‘eyes and ears of the Court’ in reporting on the physical and mental state of the first respondent.[10]  For this reason, counsel contended that there could be no prejudice occasioned to the first respondent by the granting of such an order. It was further submitted that in as much as the contentions of the applicants were met with a bare denial, the respondents have failed to put up any credible evidence in their defence.  I am not persuaded by this argument of a ‘reverse onus’ on the respondents, nor am persuaded that the second respondent is incapable of managing her husband’s affairs or expressly requires the permission of the court to transfer money out of his accounts. As I understand the correspondence that has been exchanged between the parties, the second respondent acts on the instructions of the first respondent, her husband. They can be no logical reason why a court order is necessary for her to follow her husband’s instructions, even if the applicants regard her as a ‘gatekeeper’ to the first respondent.

 

[38]      The onus is on the applicant to prove on a balance of probabilities ‘that the appointment of a curator ad litem to the patient is a necessary step’.[11] I do not share the view that the appointment of a curator ad litem should only pass the threshold at a prima facie level.  Following the decision in Ex Parte Futter where the court remarked in para 18 that ‘the appointment of a curator ad litem is not to be regarded as an inflexible rule, or simply as a procedural step in the process of appointing a curator bonis to someone’s estate’. Jacqueline Heaton writing in the Annual Survey points out that:

‘The flexible approach is certainly preferable as it is both illogical and superfluous (not to mention a serious infringement of the right to dignity of the patient!) to appoint a curator ad litem to a person who understands the nature of the legal proceedings for the appointment of a curator bonis in respect of his or her estate’. [12]

 

[39]      It was submitted by Mr Dickson that the requirement of the submission of affidavits by two medical practitioners, as required in Uniform rule 57(3), should be dispensed with on the grounds that the first respondent’s doctors, Dr Coetzee and Dr Van Deventer have been approached to provide information regarding the first respondent’s mental and physical health but have been ‘embargoed’ from doing so.  There is nothing to support this contention. I do not consider this to be the type of case where I should condone non-compliance with Uniform rule 57 simply because the first respondent has directed his doctors not to divulge confidential information as to his health.  This is not a case where the first respondent is in a coma or vegetative state and unable to comprehend what is going on around him.  On the contrary, he has the awareness to direct his attorney and counsel as to what the basis of his opposition to this application should be, and issued directions to his doctors not to divulge details of his health to his children.  Moreover, he strenuously opposes any attempt to subject him to examination. 

 

[40]      In Modiba obo Ruca; In Re: Ruca v Road Accident Fund (12610/2013; 73012/13) [2014] ZAGPPHC 1071 (27 January 2014), para 1, the court noted with concern that ‘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.’  The court emphasised the importance of complying with the provisions of Uniform rule 57 stating in para 37 that:

‘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 805E 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…”’

The court emphasised the need for compliance with Uniform rule 57, holding in para 32 that:

‘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]’.

 

[41]      Similarly in Ex parte Futter, para 27, the court held that:

‘. . . the appointment of a curator constitutes an interference with the right of the person concerned to manage his own affairs. That right should not lightly be interfered with, especially not on the basis of what amounts to no more than vague and unsubstantiated allegations.’

 

[42]      The court in Ex parte Futter postulated the following as the standard of proof required for the appointment of a curator, in para 20:

‘Whether or not it is necessary to appoint a curator ad litem as envisaged in subrule (1) must accordingly be determined on the facts and circumstances of each individual case. There are in my view at least two considerations relevant to this enquiry. The first relates to the sufficiency of the evidence on which the applicant places reliance in support of the application for the appointment of a curator bonis. The second consideration, which is pertinently raised by the facts of the present matter, relates to the ability of the patient to understand the nature and consequences of the Rule 57 proceedings.’

 

[43]      As opposed to the prima facie test suggested by the applicants’ counsel, the court in Ex Parte Futter, para 28, likened the sufficiency of the evidence under Uniform rule 57 for the appointment of a curator ad litem to an in limine objection that the applicant has failed to establish a prima facie case for the relief claimed or an application for absolution from the instance in a trial action. The test is whether the first respondent, on the evidence before me, is able to appreciate the nature and consequences of the present proceedings.  As indicated earlier, the first respondent has deposed to two affidavits, albeit brief.  In those affidavits, he unequivocally sets out his opposition to the attempt by his brother and children to invade his privacy by subjecting him to medical examinations based on a suspicion that he is gravely ill and incapable of managing his own affairs.  In Pienaar v Pienaar’s Curator 1930 OPD 171 at 174 the court found that that:

‘The mere fact that such a person has been declared insane or incapable of managing his affairs, and that a curator is appointed to such person, does not deprive him of the right of administering his own property and entering into contracts and other legal dispositions to the extent to which he may de facto be capable, mentally and physically, of so doing.’

 

[44]      In Ex parte Futter, para 19, the court referred to Ex Parte Kotze 1955 (1) SA 665 (C) stating:

‘Herbstein J quite correctly said at page 666G-H that the appointment of a curator ad litem constitutes an interference with the right of an adult person to control his affairs, and that before such an appointment is made, the Court “. . . must be satisfied, on proper enquiry; that the mental condition of that person is such as to justify interference of this kind.’ (emphasis in original).

Similarly, in Ex parte Stoffberg; In re: Xaba v Road Accident Fund and two related matters [2018] 3 All SA 145 (GP), para 19, the court noted the concern that the appointment of a curator constituted an interference with the rights of an individual, holding that ‘[a]s the appointment of a curator has the practical effect of interfering with the person's right to make his/her own decisions, such interference can only be justified if the Rule is adhered to.’

 

[45]      The closest that the applicants have come to meeting the threshold set out in Uniform rule 57 is the snapshot of the first respondent’s doctor’s consultation notes which were recorded on his file while the first respondent was at the Gateway Hospital.  The note, annexed to the papers as annexure ‘DSS18’, is unauthenticated and is alleged to be made by Dr Coetzee.  The latter is one of the doctors who have refused to breach their duty of confidentiality in respect of the patient’s condition.  The applicants contend that the note refers to ‘Alzheimer type dementia’.  They also rely elsewhere on certain remarks attributed to Dr Ambaran and Dr Lalloo who treated the first respondent at Gateway Hospital, indicating that affidavits would be obtained from them at a later stage.  All of this information is hearsay, but the applicants contend that it should be admitted in terms of s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988.  Of concern to me is the unapologetic manner in which applicants seek to use annexure ‘DSS18’, obtained without the consent of the first respondent, as proof of his ill health. I am not prepared to condone such conduct.

 

[46]      The reason tended for the absence of confirmatory affidavits from doctors, in the founding papers, was due to the urgency of the application. However even in the replying affidavits of the applicants, no confirmatory affidavits are produced. It is not sufficient in my view to suggest that the evidence tendered or attributed to the doctors is ‘hardly controversial’ and should therefore be admitted.  The conclusion by the applicants of the first respondent’s health is a diagnosis which is unsupported by medical evidence. All that appears on the papers is the say-so of the applicants, none of whom appear to be medically trained. What the applicants contend is for this court should appoint a curator ad litem, one of whose duties it would be to procure the reports that are missing from this application.

 

[47]      While the applicants suggest that the motive in bringing the application is to protect the first respondent, is not clear to me what he ought to be protected from, particularly as he states that he is well taken care of by his wife, he receives sound financial advice and is represented by a senior attorney. He opposes the application to appoint a curator. This is ‘direct evidence’ from the first respondent. In Ex parte Futter, para 30, it was held that a court should generally be circumspect if the application for the appointment of a curator has been opposed by the so-called ‘patient’ if s/he can understand the proceedings sufficiently well enough to furnish an attorney with meaningful instructions:

‘While each case must depend on its own facts and circumstances, I agree with the view that the Court should generally be reluctant to appoint a curator ad litem to a person who not only opposes the application for the appointment of a curator, but who has the ability to understand the proceedings at a level which is sufficient to enable him to give meaningful instructions to his legal adviser. Authority for this view is to be found in Ex Parte Van der Linde 1970 (2) SA 718 (O) at 720C-D.’

 

[48]      I am accordingly not persuaded that it is in the interests of justice to receive hearsay evidence attributed to the doctors, where no attempt has been made to cure this defect. There are also no exceptional circumstances in terms of Uniform rule 57(4) which suggest that I should dispense with the requirement.  In Modiba, para 33 the court held that a ‘failure to observe the Rule renders an application defective to the extent that such application cannot and should not be entertained at all’. In Ex Parte Stoffberg, para 15, the court considered the provisions of Uniform rule 57 to be peremptory.

 

[49]      While the applicants contend that they bring the application in the best interests of the first respondent as immediate members of his family, there is a significant undercurrent which suggests a concern to ensure that the financial affairs of the first respondent do not fall to be dealt with by the second respondent.  The only basis where a court would interfere is where it could be shown that the second respondent is siphoning off vast amounts of money without the knowledge and consent of her husband and is defrauding him while he is incapacitated by ill health. As mentioned earlier, it is common cause that the first respondent set up the Watermark Trust for the benefit of his children which held assets to the value of £15 million. In addition, the first respondent was a partner with his brother, the fifth applicant, as owners of a stud farm, sold shortly before this application could be launched, for approximately R34 million.  The first to the fourth applicants are all beneficiaries of the Watermark Trust, and rely on this, apart from their familial ties to the first respondent, as the basis for bringing the application. It is contended on their behalf that their valuable interest in the Watermark Trust constitutes a basis for their legal interest in bringing the application to have the first respondent placed under curatorship, giving them locus.

 

[50]      The matter of Ex Parte Klopper: In Re Klopper 1961 (3) SA 803 (T) has some parallels to this case. That matter concerned an application for the appointment of a curator bonis to take charge of the affairs of the respondent, where the applicant was the respondent’s son. The respondent opposed the application. The applicant claimed that, following a stroke and the alleged resultant diminished mental responsibility, the respondent was unable to manage his affairs, and that he was no longer competent to deal with even small business or money transactions. The applicant alleged that the respondent was hostile towards the applicant and his mother. Medical evidence in the form of affidavits was submitted, but the court found at 804H that these affidavits gave ‘ground for no more than suspicion’.  The court stated at 804H-805B that:

‘The fact that the son was prepared to take from the father, during the time when the father was seriously ill, a guarantee, for the large sum mentioned in the answering affidavit is, in my view, something which should have been set out in the petition. The petition should have made mention of the fact that the father, since he resumed control of his own affairs, had farmed successfully; there should have been some mention made of the reasons why the animosity between the son and wife and the father had continued to grow. The affidavits filed by the respondent are from responsible people and there can be no doubt that they have no reason to believe that he cannot manage his affairs. There is nothing on the papers to suggest that he is giving away his assets; that he is squandering his money or that he is likely to farm at a loss. Nowhere is it suggested that he, by his conduct, will cause any diminution of his assets. In all these circumstances it seems to me that the probabilities are that he is able to manage his affairs. It may be that he is quick tempered or eccentric and it may be that he suffers from fits on occasions but this does not mean that he is not capable of managing his affairs.’

 

[51]      In the present matter, the applicants contend that the first respondent has given away much of his assets, that he has transferred ownership of his flat to the second respondent, as well as much of his antiques. He is also embroiled in a dispute with his children over the appointment of a Protector to the Watermark Trust. It was submitted that the second respondent is attempting to meddle in the affairs of the Watermark Trust. In this regard it is submitted on behalf of applicants that their financial interests are intertwined in the financial affairs of the first respondent. In his correspondence to the applicants’ attorney, the first respondent’s attorney made it clear that the first respondent has been very generous his children and that he loves them dearly, but that he wishes they not interfere in his private life or attempt to exclude his wife from the role which she plays in his life. As stated above, the first respondent has a team of advisers in respect of his legal and financial affairs, and with which advice, he appears to be perfectly comfortable.  Until proven otherwise, I am not satisfied that the financial affairs of the first respondent are such that it can be demonstrated that he or his wife are in the process of squandering his assets to the detriment of his children. There is nothing untoward with him paying for expenses or allowing the transfer of funds to his wife. As he has repeatedly pointed out, he has known her for over 30 years and is very happy with the love and affection which she has shown to him.

 

[52]      This also brings me to the application to strike out hearsay allegations made by the applicants in relation to the first respondent’s medical condition. I have already expressed my views in that regard, and find that there is no basis for these unsubstantiated conclusions. They do not persuade me to grant relief to the applicants. In so far as the application to strike out allegations pertaining to the second respondent, it is contended that the founding papers and supporting affidavits contain irrelevant, scandalous and vexatious averments directed against her. They attack not only the credibility of the second respondent, but she contends they are scandalous and defamatory. They also, according to the second respondent, cast aspersions on the credibility of her attorneys and undermine whether the instructions emanate from the second respondent only, to the exclusion of her husband.

 

[53]      Throughout the applicants’ papers, they make clear their dislike of the second respondent. As stated earlier, they consider her to be manipulative and interfering in the affairs of the first respondent. For this reason they persisted in their demand to be able to visit or speak with the first respondent, but under circumstances that exclude his wife. He refused to bow down to such pressure. Whatever the applicants may think of the second respondent, it was the decision of the first respondent to marry her.  It was also the respondents’ decision to have a private wedding. For this, the applicants have sought fit to vilify the second respondent in the papers. The second respondent, to her credit and those who have advised her, has not sunk to those depths in her reply.

 

[54]      In Helen Suzman Foundation v President of the Republic of South Africa & Others; Glenister v President of the Republic of South Africa & others 2015 (1) BCLR 1 (CC); 2015 (2) SA 1 (CC), paras 27-28, Mogoeng CJ in his majority judgment said the following in relation to an application to strike out:

‘[27] Is the additional evidence scandalous, vexatious or irrelevant?  Two requirements must be met before a striking-out application can succeed: (i) the matter sought to be struck out must be scandalous, vexatious or irrelevant; and (ii) the court must be satisfied that if such a matter is not struck out the party seeking such relief would be prejudiced.

[28]      “Scandalous” allegations are those which may or may not be relevant but which are so worded as to be abusive or defamatory; a “vexatious” matter refers to allegations which may or may not be relevant but are so worded as to convey an intention to harass or annoy; and “irrelevant” allegations do not apply to the matter at hand and do not contribute one way or the other to a decision of that matter. The test for determining relevance is whether the evidence objected to is relevant to an issue in the litigation.’ (Footnotes omitted)

 

[55]      I am not persuaded by the arguments of Mr Dickson based on the minority decision. One is not dealing here with a situation of an attempt to root out corruption in the police service, as was the case in Helen Suzman Foundation where there was reliance on newspaper reports and the like. This is an application brought by children against their father, seeking to strip him of his independence and ability to deal with his own affairs, and to place him under the supervision and control of a curator. Guided by the majority decision in Helen Suzman Foundation, I find it frankly distasteful that such scandalous allegations can be levelled against the second respondent by her husband’s children.  This is a person whom the first respondent says he dearly loves and cares for. I have not repeated these assertions as they would serve no purpose other than to invade the first respondent’s right to privacy. These assertions, in my view, render hollow the applicant’s professed care for their father’s well-being. This is most evident in the supporting affidavit of Anne Ponting, who seeks to lay bare the vivid details of her relationship with the first respondent over sixty years, some of this time she proclaims overlapped with the period when the first respondent was supposed to be married or in a relationship with the second respondent.

 

[56]      I am satisfied that the allegations which the respondents find offensive have been introduced for no purpose other than to impair the dignity of the respondents, particularly that of the second respondent, and to muddy the waters. I am of the view that these allegations are irrelevant and ought to be struck out.

 

[57]      I turn to the affidavits of Mrs Ndlovu, who has cared for the second respondent for over 30 years and has been a constant companion to him.  The affidavits of the applicants are largely based on hearsay.  They rely on Mrs Ndlovu to bolster their claims of the first respondent being abused by the second respondent, neglected and dominated. I am also alive to the fact that there has been a strained relationship between the second respondent and Mrs Ndlovu.  Mrs Ndlovu’s affidavit as stated earlier appears to be tailored in order to corroborate the suspicions of the applicants. If she did see and experience what she has set out in her affidavit, it begs the question why she did not report this to the applicants at a much earlier stage, alternatively, brought this to the attention of the doctors at the time when the second respondent was not at the home. She laments that the first respondent spends most of his days lying in bed, that he is unable to walk, and that his health is deteriorating.

 

[58]      Mrs Ndlovu’s affidavit is not confined to her duties as a caregiver. She even ventures to comment that the second respondent has not put up a report from Dr van Deventer.  This is only something of which she could only have been informed of by the applicants or those advising them.  It is also surprising that while she says she has no knowledge of the details of the sale of the stud farm, she does recall that the second respondent threatened the first respondent not to sign documents. She fails to say what documents these are, but seeks to convey the impression that this was related to the sale of the stud farm. She also makes free flowing assertions that the first respondent was admitted to hospital for Alzheimer’s disease, Swine Flu, pneumonia and sepsis on his lungs.  How she could have come across all of this medical information, in the absence of a single report by a doctor treating the first respondent, is unknown to me.

 

[59]      The employment relationship between the second respondent and Mrs Ndlovu has become strained as a result of her affidavits filed in this application. She says that after her return from sick leave, the second respondent informed her that her services were no longer required. The fairness or otherwise of such termination is not a matter before me. I therefore make no comment in relation thereto.

 

[60]      It is regretful that Mrs Ndlovu has become a casualty of the tussle between the first respondent and his children. I am however unable to give much weight, if any, to her affidavit in light of my misgivings that much of what is stated therein may have been tailored to suit the versions presented by the applicants. As stated in Ex Parte Futter, para 19, '[t]he appointment [of a curator ad litem] itself reflects negatively on the status of the patient and his legal capacity, not only to manage his own affairs, but also to litigate on his own.'  For this reason and the inroads that it makes into the life of a ‘patient’, I am of the view that there is an onus on the applicant to prove on a balance of probabilities that the appointment of a curator ad litem is necessary.

 

[61]      I am not persuaded that a court should grant orders for the appointment of a curator ad litem for the purpose of ‘investigating’ or ‘digging’ up medical evidence to show that the ‘a patient’, in this case the first respondent, is incapable of managing his affairs.  On my interpretation of Uniform rule 57, an applicant must show that the respondent or patient is incapable of managing his own affairs. This is a precondition for the appointment of a curator ad litem.  To grant an order to enable a legal practitioner to engage in investigative work to justify the order sought, is inconsistent with and subverts the purpose and intent of Uniform rule 57. 

 

[62]      Even if I had to accept that the first respondent has an ‘Alzheimer’s type dementia’, I am of the view that this is not enough to conclude that the first respondent is incapable of managing his own affairs. There is nothing before me that suggests the extent of his illness or its effect on his ability to manage his affairs.[13] As stated in Re Freedman 1907 TS 1088 at 1089:

‘In considering whether I should make this order, the question for my consideration is not simply the abstract one of whether the respondent is suffering in any way from unsoundness of mind. The question is a practical one, whether such unsoundness of mind has been proved in this case as would justify me in appointing a curator for his person and for his property - whether he is of such unsound mind that I am justified in depriving him of his liberty, of the liberty to move about, to live where he pleases, to do as he chooses, as any ordinary individual can do, and of the liberty of dealing with his property as he thinks best. Those are the practical questions which I have to consider; not merely the abstract question of whether I am satisfied that the mental condition of the respondent is not quite normal.’

The court pointed out at 1090:

‘An inquiry into the state of mind of any person is always a very difficult matter, mainly, I suppose, because there is no recognised test or standard of sanity. Many eccentricities of conduct are to be found amongst a number of people, which indicate to a certain extent unsoundness of mind, but which certainly do not justify in themselves the interference of the Court.’

 

[63]      Ms Gabriel was highly critical of the manner in which the applicants had sought to ride roughshod over the rights of the first respondent and smeared the second respondent. To the extent that the appointment of a curator in terms of Uniform rule 57 has the potential to impact on a person’s constitutionally protected rights, such as dignity and privacy, the rule must also be interpreted with a view to promoting ‘the spirit, purport and objects of the Bill of Rights’ (see s 39(2) of the Constitution).[14] I agree with that submission.

 

[64]      The possibility for abuse of the provisions of Uniform rule 57 must also be borne in mind, which is all the more reason to require proper compliance with its provisions. See Ex Parte Stoffberg, para 28. The manner in which foreign courts have approached the same subject matter provides useful insight. Jeanne Louise Carriere in the article ‘Reconstructing the Grounds for Interdiction’ (1993) 54 Louisiana Law Review 1199 at 1209, referred to the number of cases where the process of ‘interdiction’ was abused Louisiana Civil Code in the United States:[15]

‘Any hope that these cases are exceptional is destroyed by regarding the sorry assortment of characters that parades through the jurisprudence: the jealous siblings, the domineering parents or spouse, the children who wish to forestall their co-owning father from demanding a partition of property, the collateral relations of an elderly childless wealthy bachelor who has turned spendthrift, the relatives looking for a way to warehouse the non-committable elderly in nursing homes against their will. Rather than furnishing a shield for the incompetent, the grounds of the interdiction regime often appear to provide a weapon for the self-interested.’

 

[65]      The requirements for the appointment of a ‘guardian ad litem’ in the United States are legislated differently, varying from one State to another. In some jurisdictions, courts have the power to compel a mental examination, while others do not. In Scotland the approach taken to the management of the affairs of adults with diminished capacity is regulated by the Adults with Incapacity (Scotland) Act 2000, which requires two medical reports before a guardianship order is granted.  Importantly, guardianship is deemed appropriate ‘when there is no lesser measure that could sufficiently safeguard the adult’s interests, ensuring the least restrictive intervention’.[16] An ‘incapable’ adult is defined in s1(6) of the Act as someone over 16 who is “incapable of acting or of making, communicating, understanding, or retaining the memory of decisions because of mental disorder or of inability to communicate because of physical disability”. In British Columbia, Canada the position is similar to that in South Africa.  In order to obtain an order declaring a person incompetent, the evidence of at least two duly qualified medical practitioners setting out their opinion that the person is incapable by reason by mental infirmity is necessary. A court is also specifically empowered to order a person to undergo mental examination, however, this is only possible after an application for declaration of incompetence has been properly brought, including the evidence of at least two duly qualified medical practitioners. See British Columbia (Public Trustee) v. Batiuk, 1996 Carswell BC 2570 where an application had been brought under the Patients Property Act R.S.B.C 1979 c. 313 for the patient to submit to a medical examination. The court rejected the application holding that there was no evidence to suggest that the patient was incapable of managing her own affairs.[17]

 

[66]      In the result and after considering all of the evidence before me, I am not persuaded that the applicants have made out a case for the relief sought. Mr Dickson submitted that if the court was inclined to grant the first order prayed, the costs of this application, if opposed, be paid by the respondents on an attorney and client scale.  The relief was strenuously opposed from the outset, even prior to the launching of this application.  In so far as costs are concerned, the first respondent in his affidavit sought that the application be dismissed with costs against his children (the first to fourth respondents). In respect of costs against his brother (the fifth applicant) he asked that such costs be on a punitive scale. Ms Gabriel submitted that the application be dismissed with costs of two counsel on an attorney and client scale.  Relying on the dictum in Judin, paras 18-20, the respondents submit that attorney and client costs are warranted, particularly as it had been made abundantly clear to the applicants’ attorney prior to the launch of the litigation that the first respondent was opposed to the invasion of his privacy and was not impressed with the allegations against the second respondent, his wife.  That view remained constant throughout these proceedings. Moreover, the manner in which the applicants relentlessly sought to sully the reputation of the second respondent with irrelevant facts and allegations, resulting in these allegations to be struck out, itself warrants censure of their conduct with an adverse costs order.

 

[67]      The following order is therefore made:

1.    The application is dismissed.

2.    The applicants, jointly and severally the one paying the other to be absolved, are directed to pay the costs of the first and second respondents, including the costs of the application to strike out and all reserved costs, on a scale as between attorney and client, such costs to include the costs of two counsel where so employed.

M R CHETTY

Appearances

For the applicant:                    Mr AJ Dickson SC

Instructed by:                          Ditz Attorneys Inc, Durban

Ref:                                         J Fobb

Email:                                      jfobb@iafrica.com

 

For the Respondent:               Ms A A Gabriel SC / L K Olsen

Instructed by:                          NSG Attorneys, Durban

Ref:                                         A Cohen/lk/S2328/00003

Email:                                      acohen@nsg.co.za

 

Date reserved:                        15 May 2020

Date of Judgment:                  26 August 2020

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