Fisher obo TS.M and Another v Road Accident Fund (2010 /34001) [2023] ZAGPJHC 160 (14 February 2023)

Fisher obo TS.M and Another v Road Accident Fund (2010 /34001) [2023] ZAGPJHC 160 (14 February 2023)

The court found that Adv Fisher's prior involvement as counsel for the plaintiff in the same matter compromised his independence as curator ad litem, rendering him unable to impartially scrutinize the actions and fees of the attorneys. The handling of the general damages award by the plaintiff's attorneys was marred by irregularities, including the absence of a contingency fee agreement, lack of proper accounting, and questionable execution of special powers of attorney. The court emphasized that the curator ad litem must be manifestly independent and that any association with the attorneys undermines this requirement. Consequently, the orders appointing Adv Fisher as curator ad litem and...

Citation
[2023] ZAGPJHC 160
Parties
Plaintiff: TS.M; Applicant: Adv Michael Alex Fisher; Defendant: Road Accident Fund
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 February 2023
Case Number
2010 /34001
Procedural Posture
Civil Trial / Rescission and Removal of Curator Ad Litem; Post Quantum Determination
Outcome
The order appointing Adv Michael Fisher as curator ad litem is rescinded and set aside due to compromised independence. The conduct of the attorneys and curator is referred to the Legal Practice Council and General Bar Council for investigation. A new curator ad litem fluent in IsiZulu is to be nominated. Further...
Judges
L Flatela
Legal Topics
Curator Ad Litem Appointment, Rescission of Order, Road Accident Fund Claim, Attorney Fee Dispute, Special Power of Attorney, Mental Incapacity
Civil Procedure Delict Family and Children Curator Ad Litem Appointment Rescission of Order Road Accident Fund Claim Attorney Fee Dispute Special Power of Attorney +1 more

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Parties

TS.M

Plaintiff

Adv Michael Alex Fisher

Applicant

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Rescission and Removal of Curator Ad Litem; Post Quantum Determination

Legal Issues

  1. 1 Whether the appointment of Adv Fisher as curator ad litem should be rescinded due to compromised independence.
  2. 2 Whether the conduct of the plaintiff's attorney and curator ad litem warrants referral to regulatory bodies for investigation.
  3. 3 Whether the plaintiff's mother understood and validly executed the special power of attorney and fee agreements.

Ratio Decidendi

The court found that Adv Fisher's prior involvement as counsel for the plaintiff in the same matter compromised his independence as curator ad litem, rendering him unable to impartially scrutinize the actions and fees of the attorneys. The handling of the general damages award by the plaintiff's attorneys was marred by irregularities, including the absence of a contingency fee agreement, lack of proper accounting, and questionable execution of special powers of attorney. The court emphasized that the curator ad litem must be manifestly independent and that any association with the attorneys undermines this requirement. Consequently, the orders appointing Adv Fisher as curator ad litem and...

Court Disposition

The order appointing Adv Michael Fisher as curator ad litem is rescinded and set aside due to compromised independence. The conduct of the attorneys and curator is referred to the Legal Practice Council and General Bar Council for investigation. A new curator ad litem fluent in IsiZulu is to be nominated. Further...

Orders

  • The order granted on 20 October 2022 appointing Adv Michael Alex Fisher as curator ad litem is rescinded and set aside.
  • Adv Fisher is removed as curator ad litem acting on behalf of the plaintiff.