Silo v Nompozolo & Gabelana Incorporated and Others (EL785/09; 2685/09) [2023] ZAECELLC 17 (25 April 2023)

Silo v Nompozolo & Gabelana Incorporated and Others (EL785/09; 2685/09) [2023] ZAECELLC 17 (25 April 2023)

The court found that Ms Silo lacked locus standi to institute the action, and this defect could not be cured by subsequent ratification by the curator ad litem. The curator's powers did not extend to validating actions that were void from inception due to lack of standing. The attorney of record, Mr Niehaus, was aware of the lack of locus standi from at least 19 September 2016, yet continued to pursue litigation against the defendants, causing them to incur unnecessary costs. The court held that such conduct was reckless and unreasonable, warranting a costs order de bonis propriis against Mr Niehaus for the period from 15 July 2021 (a reasonable time after the curator's instruction to...

Citation
[2023] ZAECELLC 17
Parties
Plaintiff: Nokilimusi Christine Silo; 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
EL785/09; 2685/09
Procedural Posture
Civil Procedure / Costs Determination Following Withdrawal of Action
Outcome
Costs order granted against the plaintiff's attorney of record, Mr Niehaus, de bonis propriis, for the period specified.
Judges
T.V Norman
Legal Topics
Locus Standi, Withdrawal of Action, Costs De Bonis Propriis, Curator Ad Litem, Ratification of Invalid Acts
Civil Procedure Locus Standi Withdrawal of Action Costs De Bonis Propriis Curator Ad Litem Ratification of Invalid Acts

Case Brief

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Parties

Nokilimusi Christine Silo

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 Ms Silo in instituting the action could be ratified by the subsequently appointed curator ad litem.
  2. 2 Whether the attorney of record, Mr Niehaus, should be held personally liable for costs de bonis propriis following the withdrawal of the action.
  3. 3 Whether the defendants contributed to the void litigation and should bear any responsibility for costs.

Ratio Decidendi

The court found that Ms Silo lacked locus standi to institute the action, and this defect could not be cured by subsequent ratification by the curator ad litem. The curator's powers did not extend to validating actions that were void from inception due to lack of standing. The attorney of record, Mr Niehaus, was aware of the lack of locus standi from at least 19 September 2016, yet continued to pursue litigation against the defendants, causing them to incur unnecessary costs. The court held that such conduct was reckless and unreasonable, warranting a costs order de bonis propriis against Mr Niehaus for the period from 15 July 2021 (a reasonable time after the curator's instruction to...

Court Disposition

Costs order granted against the plaintiff's attorney of record, Mr Niehaus, de bonis propriis, for the period specified.

Orders

  • The attorney, Mr Niehaus, is directed to pay, de bonis propriis, the 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...