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South Africa Judgment

North Gauteng High Court, Pretoria

Baloyi v Road Accident Fund (3959/18) [2025] ZAGPPHC 665 (27 June 2025)

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Source document

01

Holding and result

The court found that the plaintiff, due to severe traumatic brain injury and functional illiteracy, is unable to furnish proper instructions or manage his own affairs. The expert evidence and family reports confirmed his mental incapacity. The acceptance of the general damages offer and execution of affidavits were called into question, as the plaintiff's ability to understand and consent was doubtful. The belated attempt to protect future funds via a deed of trust was inadequate. In these circumstances, the court held that it is necessary to appoint an independent curator ad litem to safeguard the plaintiff's interests, investigate the validity of prior agreements and settlements, and report to the court on all relevant matters, including the plaintiff's capacity, use of funds, and suitability of legal representation.

Court disposition

Curator ad litem appointed to assist the plaintiff; further proceedings stayed pending curator's report.

Orders

  • A curator ad litem is to be appointed by the acting Deputy Judge President, N Davis.
  • The Pretoria Society of Advocates must nominate a senior advocate with more than 20 years' experience in personal injury matters within five days.
  • The nominated curator's name must be communicated to Justice N Davis.
  • The curator is to assist the plaintiff with the powers and duties set out in the order.
  • The curator may approach the court to extend powers and functions if necessary.
  • Within 30 court days, the curator must report to Justice N Davis on the plaintiff's capacity, settlement acceptance, use of funds, validity of affidavits and contingency fee agreement, suitability of legal representation, costs, deed of trust, and further conduct of the action.
  • Plaintiff's attorneys must provide the curator with all documents and information relating to the claim.
  • Plaintiff's attorneys must urgently serve this order on the Pretoria Bar and relevant parties.
  • Costs of 25 and 27 June 2025 are reserved.

02

Material facts

Parties

Baloyi Vincent Atlholane

Plaintiff Counsel: Adv. Brian Matlhape

Road Accident Fund

Defendant

Amounts and remedies

  • Claim Amount: ZAR 10,000,000
  • General Damages Settlement: ZAR 350,000

03

Procedural history

  1. Posture

    Civil Trial / Trial Default Judgment Roll

04

Questions and positions

Legal issues

Party arguments

Applicant
The plaintiff, through his legal representatives, sought to proceed with the claim for damages arising from a traumatic brain injury. Expert reports indicated severe cognitive impairment, functional illiteracy, and inability to manage his own affairs. The plaintiff had attested to affidavits and ostensibly instructed his legal team, but concerns were raised about his capacity to do so. The legal team attempted to address future protection of funds via a deed of trust and proposed appointment of a trustee.
Respondent
The Road Accident Fund did not appear and made no submissions or arguments in this matter.

05

Court’s reasoning

  1. 01

    Ex parte Hill 1971 (3) SA 258 (T)

    A curator ad litem must be appointed where a litigant is incapable of managing his own affairs due to mental incapacity, to ensure proper protection of his interests.

  2. 02

    Legal Practice Act 28 of 2014

    Legal representatives must ensure that instructions are validly obtained from a client who is mentally competent; otherwise, the proceedings may be irregular.

  3. 03

    Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA)

    Settlement agreements must be entered into by parties with legal capacity; otherwise, they may be subject to rescission.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the plaintiff, due to severe traumatic brain injury and functional illiteracy, is unable to furnish proper instructions or manage his own affairs. The expert evidence and family reports confirmed his mental incapacity. The acceptance of the general damages offer and execution of affidavits were called into question, as the plaintiff's ability to understand and consent was doubtful. The belated attempt to protect future funds via a deed of trust was inadequate. In these circumstances, the court held that it is necessary to appoint an independent curator ad litem to safeguard the plaintiff's interests, investigate the validity of prior agreements and settlements, and report to the court on all relevant matters, including the plaintiff's capacity, use of funds, and suitability of legal representation.

Obiter and limits

  • The practice of proceeding with litigation where a party's mental capacity is in doubt undermines the integrity of the process and may prejudice vulnerable litigants.
  • Legal practitioners must be vigilant in assessing the capacity of their clients and take appropriate steps to protect their interests, including seeking the appointment of a curator where necessary.

Court disposition

Curator ad litem appointed to assist the plaintiff; further proceedings stayed pending curator's report.

  • A curator ad litem is to be appointed by the acting Deputy Judge President, N Davis.
  • The Pretoria Society of Advocates must nominate a senior advocate with more than 20 years' experience in personal injury matters within five days.
  • The nominated curator's name must be communicated to Justice N Davis.
  • The curator is to assist the plaintiff with the powers and duties set out in the order.
  • The curator may approach the court to extend powers and functions if necessary.
  • Within 30 court days, the curator must report to Justice N Davis on the plaintiff's capacity, settlement acceptance, use of funds, validity of affidavits and contingency fee agreement, suitability of legal representation, costs, deed of trust, and further conduct of the action.
  • Plaintiff's attorneys must provide the curator with all documents and information relating to the claim.
  • Plaintiff's attorneys must urgently serve this order on the Pretoria Bar and relevant parties.
  • Costs of 25 and 27 June 2025 are reserved.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2025] ZAGPPHC 665

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: 3959/18

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

DATE 27/06/2025

SIGNATURE

In the matter between:

BALOYI

VINCENT ATLHOLANE

And

ROAD

ACCIDENT FUND

JUDGMENT

DE

JAGER AJ

[1] This matter was before me for adjudication on 25 June 2025, set down on the Trial Default Judgement Roll. The claim is for an amount in excess of R10 000 000.00 (Ten Million Rand).

[2] The expert reports uploaded substantiating the Plaintiff’s traumatic brain injury contain several factual statements that the Plaintiff is forgetful, unable to count, or to be left alone as he gets lost. Family members further report that the Plaintiff is mentally unstable and spends time with people in the community who are psychotic.

[3] The expert reports and counsel during argument confirmed that the Plaintiff is functionally illiterate.

[4] A practice note and heads of arguments were filed, these did not deal with the Plaintiff’s ability to furnish instructions or manage his own affairs.

[5] It appears that merits have not been conceded or adjudicated despite an offer and acceptance for general damages in the amount of R350 000.00 (Three Hundred and Fifty Thousand Rand). Counsel was not able to indicate how this occurred, or even if it is possible.

[6] The Plaintiff, despite the above, attested to affidavits in this matter and ostensibly instructed his legal team. After deliberation with counsel about the ability of the Plaintiff to instruct his legal representatives, it was requested that this matter be removed. The matter stood down to 27 June 2025.

[7] It appears that subsequent to the appearance on 25 June 2025, a proposed deed of trust, and appointment of a trustee was uploaded. This is a belated attempt at trying to protect future funds that may be awarded to the Plaintiff, in circumstances where the Plaintiff on what is currently before Court, cannot sensibly give instruction to the legal team. This is not acceptable.

[9] I am compelled to appoint an independent curator ad litem to assist the Plaintiff and report to Court.

[10] Accordingly, the following order is made:

1. That a Curator ad litem is to be appointed in the matter by the acting Deputy Judge President, N Davis.

2. The Pretoria Society of Advocates, under the leadership of Adv L Haupt within 5 (five days) of this order nominate a senior advocate, of more than 20 years adequate experience in matters of personal

injury to act as Curator ad litem in this matter on behalf of the Plaintiff.

3. The name of such nominated Curator ad litem to be communicated to the Honourable Justice N Davis.

4. The nominated Curator ad litem to assist the Plaintiff in this matter with the powers and duties as set out below.

5. The nominated Curator ad litem is authorised to approach the Acting Deputy Judge President, alternatively a Judge in chambers to extend the powers and functions in the event that such powers and functions as set out is not sufficient.

6. The nominated Curator within 30 court days of today, being 11 August 2025 report to Honourable Justice N Davies in this matter, specifically regarding the following matters:

6.1 The Plaintiff’s ability to manage his own financial affairs and take decisions with regards to his person;

6.2 The acceptance of the amount of R350 000.00 (Three Hundred and Fifty Thousand Rand) as full and final settlement for general damages in this matter [CASELINES 12 (1)];

6.3 How the amount for general damages received by the Plaintiff’s attorneys has been utilized;

6.4 The signed confirmatory affidavit of the Plaintiff dated 24 January 2025 [CASELINES 009:2], given the severity of the brain injury of the Plaintiff and the reports by experts indicating that the Plaintiff cannot read;

6.5 The validity of the contingency fee agreement uploaded under [CASELINES 13];

6.6 The suitability of the current legal representation of the Plaintiff to continue the representation of the Plaintiff in this matter;

6.7 The costs, if any of the action to date including costs associated with the appearance on 25 and 27 June 2025;

6.8 The belated (26 June 2025) uploaded deed of the trust;

6.9 The further conduct of the current action and any further potential claims that the Plaintiff may have, including the possible rescission of the full and final award of R350 000.00 in general damages.

7. The attorneys of record are ordered to provide the curator with copies of all information and documents relating to the Plaintiff’s claim.

8. The Plaintiff’s attorneys to attend to the urgent service of

this order by sheriff on the offices of the Pretoria Bar, and via email on

8.1 Adv L Haupt (Pretoria Bar) a[...];

8.2 Office Manager – Petra Jacobs (Pretoria Bar) m[...]

9. The costs of the 25 and 27 June 2025 is reserved.

J DE JAGER

ACTING JUDGE, THE HIGH COURT

Date of hearing : 25 June 2025

Date of Judgment : 27 June 2025

Appearances:

For The Plaintiff : Adv. Brian Matlhape

Instructed by : Chauke J Attorneys Inc

For The Defendant : No Appearances

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Ex parte Hill 1971 (3) SA 258 (T)

Case cited

Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA)

Case cited

Legal Practice Act 28 of 2014

Legislation

Legislation referenced in the available case record.

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