N.C.S v Nompozolo and Gabelana Incorporated and Others (EL 785/09) [2023] ZAECELLC 7 (25 April 2023)

N.C.S v Nompozolo and Gabelana Incorporated and Others (EL 785/09) [2023] ZAECELLC 7 (25 April 2023)

The court found that the lack of locus standi by Ms S[...] could not be retrospectively ratified by the curator ad litem, as actions instituted without proper authority are void ab initio and cannot be validated. The curator's powers did not extend to conferring standing where none existed, nor did the order of...

Source-derived case information.

Citation
[2023] ZAECELLC 7
Parties
Plaintiff: N[...] C[...] S[...]; Defendant: Nompozolo & Gabelana Incorporated; Defendant: Lindile Brian Nompozolo; Defendant: Mzingaye Gqomo; Defendant: Road Accident Fund
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
25 April 2023
Case Number
EL 785/09
Procedural Posture
Civil Procedure / Costs Determination Following Withdrawal of Action
Outcome
Plaintiff's attorney ordered to pay costs de bonis propriis for the specified period following withdrawal of the action.
Judges
T.V Norman
Legal Topics
Locus Standi, Curator Ad Litem, Withdrawal of Action, Costs De Bonis Propriis, Ratification, Attorney Misconduct
Civil Procedure Locus Standi Curator Ad Litem Withdrawal of Action Costs De Bonis Propriis Ratification Attorney Misconduct

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Parties

N[...] C[...] S[...]

Plaintiff

Nompozolo & Gabelana Incorporated

Defendant

Lindile Brian Nompozolo

Defendant

Mzingaye Gqomo

Defendant

Road Accident Fund

Defendant

Procedural Posture

Civil Procedure / Costs Determination Following Withdrawal of Action

Legal Issues

  1. 1 Whether the lack of locus standi by the plaintiff could be retrospectively ratified by the curator ad litem.
  2. 2 Whether the plaintiff's attorney should be held personally liable for costs de bonis propriis following withdrawal of the action.
  3. 3 Whether the conduct of the defendants contributed to the void litigation and costs incurred.

Ratio Decidendi

The court found that the lack of locus standi by Ms S[...] could not be retrospectively ratified by the curator ad litem, as actions instituted without proper authority are void ab initio and cannot be validated. The curator's powers did not extend to conferring standing where none existed, nor did the order of Dolamo J operate retrospectively to cure the defect. The plaintiff's attorney, Mr Niehaus, was aware of the lack of standing from at least 19 September 2016, yet continued the litigation until its withdrawal in March 2023, despite advice from the curator ad litem to withdraw. The attorney's conduct was reckless and unreasonable, warranting a costs order de bonis propriis for the...

Court Disposition

Plaintiff's attorney ordered to pay costs de bonis propriis for the specified period following withdrawal of the action.

Orders

  • The attorney, Mr Niehaus, is directed to pay, de bonis propriis, costs of the second and third defendants in relation to the action under Case No: EL 785/09 ECD 2685/09, from 15 July 2021 up to and including 16 March 2023, together with costs occasioned by the opposed hearing of 16 March 2023. Such costs shall...