Thiessen and Another v Botha and Another (A243/2016) [2017] ZAWCHC 59 (26 May 2017)

Thiessen and Another v Botha and Another (A243/2016) [2017] ZAWCHC 59 (26 May 2017)

The court found that the appellant lacked locus standi to seek interdictory and proprietary relief against the respondents, both in the court a quo and on appeal. The founding affidavit failed to allege or establish any factual or legal basis for such standing, nor did it explain why the patient's next of kin did not bring the application. The right to challenge orders affecting the patient's estate, including costs and proprietary orders, vests in the curator bonis, not the appellant. The curator bonis did not participate in the appeal to defend the estate's interests or attack the costs orders. Consequently, the appeal failed, and the orders of the court a quo stood, subject to the...

Citation
[2017] ZAWCHC 59
Parties
Appellant: Axel Theissen; Appellant: Adam Victor Pitman N.O.; Respondent: Stephanus Jacobus Botha; Respondent: Marianne Holscher
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
26 May 2017
Case Number
A243/2016
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court Judgment Delivered by Schippers J on 3 June 2015
Judges
Gamble, Desai, Waglay
Legal Topics
Curatorship, Locus Standi, Costs Orders, Rule 57 Applications, Appointment of Curator Bonis
Civil Procedure Family and Children Curatorship Locus Standi Costs Orders Rule 57 Applications Appointment of Curator Bonis

Case Brief

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Parties

Axel Theissen

Appellant

Adam Victor Pitman N.O.

Appellant

Stephanus Jacobus Botha

Respondent

Marianne Holscher

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court Judgment Delivered by Schippers J on 3 June 2015

Legal Issues

  1. 1 Did the appellant have locus standi to seek interdictory and mandamus relief against the respondents?
  2. 2 Was the appellant entitled to appeal the costs and proprietary orders made by the court a quo?
  3. 3 Should the costs of the application and opposition be borne by the estate of the patient or by the respondents?

Ratio Decidendi

The court found that the appellant lacked locus standi to seek interdictory and proprietary relief against the respondents, both in the court a quo and on appeal. The founding affidavit failed to allege or establish any factual or legal basis for such standing, nor did it explain why the patient's next of kin did not bring the application. The right to challenge orders affecting the patient's estate, including costs and proprietary orders, vests in the curator bonis, not the appellant. The curator bonis did not participate in the appeal to defend the estate's interests or attack the costs orders. Consequently, the appeal failed, and the orders of the court a quo stood, subject to the...