Santam Insurance Ltd v Booi (565/1993) [1995] ZASCA 52 (18 May 1995)

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. 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;

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

3. 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;

4. 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

1 0

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 non 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 curator 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