CASE LAW UPDATE

Facts: The taxing master ruled that the shuttle usage for the plaintiff's travelling costs to attend medical legal examinations is a luxury on a party and party basis. For this reason, she disallowed the full amount claimed for the shuttle service and instead allowed a fee that she considered a reasonable cost of transportation. She ruled that the travelling costs would be allowed at a rate of R3,00 per kilometer in 2018, and R3,50 per kilometer in 2019 to 2021. The plaintiff contends that the taxing master should have allowed the full shuttle service accounts because of the plaintiff having a reduced mental capacity. It was submitted at taxation that the plaintiff was not able to make use of public transport and personal family transport. The plaintiff's attorneys instructed shuttle services to collect the plaintiff from his residence and to transport him to and from consultations at their office, medical legal appointments with the experts, and to the virtual court hearing at their offices.

Application: The plaintiff, dissatisfied with the taxing master's rulings, requests a review of taxation in terms of Uniform Rule 48. The taxing master reduced amounts claimed as disbursements (expenses) of the bills of costs. It was advanced that the use of the shuttle services to transport the plaintiff was both reasonable and necessary under the circumstances and for that reason the items were reasonable, proper and necessary and that the taxing master was wrong in her decision to reduce the claimed amount.

Discussion: The applicant contends that the use of the shuttle services was neither luxurious nor over cautious but vitally necessary to ensure that the patient attended the medical legal appointments and virtual court hearings in Pretoria. A strict application of the normal transportation principles applicable to an able-bodied individual to the plaintiff is deemed to be inequitable. Plaintiff submits that the full shuttle costs were reasonably incurred and not increased through over-caution, negligence or mistake. The full shuttle costs are not luxurious and extravagant so it would not be an injustice to impose upon the Road Accident Fund. The taxing master ruled that an attorney is bound to litigate in the least expensive and most expeditious manner. Over caution and fear that the client will not arrive timeously at any expert appointment cannot be recovered on a party and party scale. The extent of the reduced mental capacity was not fully explained at the taxation. She stated that there was nothing to indicate in the taxation that the litigant was so incapacitated that it required special intervention. From the submissions it is not made out that the plaintiff was constrained by having to carry any medical equipment that would require specified and preferred transportation.

Findings: At item 146 the plaintiff claims a disbursement of R6,240 to travel from Mafikeng to Pretoria and returned home on the same day. On the very next day, the same conveyance is repeated back to Pretoria, travelling some 640 km return and charging a further R 6,240 at item 147. A night's accommodation in Pretoria would have been cost effective and reasonable in the circumstances reducing the travel costs by a full return trip. The taxing master reduced each of these amounts and she rightly did so. The taxing master assessed the disbursement items in accordance with principles, rules and recognized practices regarding taxation and discharged her discretion properly and correctly. The full shuttle accounts do not qualify as a party and party charge, even though the plaintiff may have a reduced mental capacity. A reasonable fee for transportation by a motor vehicle was allowed. There is no reason to interfere with the taxing master's discretion.

Order: The review of taxation is dismissed.

FRANCIS-SUBBIAH J

Facts: The plaintiff is the biological mother of the minor child who was born at the Themba Hospital, a health facility that falls under the control, management and authority of the Department. The plaintiff’s pregnancy progressed uneventfully and without apparent complications. The plaintiff’s baby was delivered 2 hours and 45 minutes after the decision had been made for caesarean section, and over 5 hours since the caesarean section was indicated. There is no evidence that contractions were tocolysed while awaiting caesarean section or that intrauterine resuscitation was performed. It is accepted that the available evidence supports the premise that the brain injury was caused by hypoxia and that this hypoxia most likely occurred during labour because of the prolonged nature of the advanced stages of labour. The minor child has since been diagnosed with severe mixed-type cerebral palsy. The plaintiff testified that she had taken "isiwasho" the day before the birth of the child.  She said that in consequence of her having been to the hospital and having been sent home because she was not in labour, she felt that her luck was bad. The iziwasho was taken to change her luck and that the specific preparation she had taken was in fact called "luck".

Application: The action brought by the plaintiff against the defendant arises out of what is contended by the plaintiff to be the negligent conduct of the medical staff at the Themba Hospital. Two issues are to be decided. Firstly, whether the alleged taking of "isiwasho" or "imbita" by the plaintiff to speed up labour had any impact upon her child’s subsequent birth injury. Secondly, whether the Themba Hospital facilities and relevant budget, including for the period relating to the weekend of 18 and 19 December 2010, was causally related to the delay in the carrying out of the caesarean section for the delivery of the plaintiff’s child.

The mixture: The plaintiff’s evidence was that she had mixed the "luck" with some water and then taken two teaspoons of the mixture, put them into her mouth and then spat the mixture onto her stomach. The plaintiff was adamant that she had neither drank nor swallowed the mixture. The plaintiff denied taking "imbita". She testified that the former was to bring luck and was not ingested whereas the latter was a herbal mixture which was ingested. They were two different things. The plaintiff testified that she had informed the experts with whom she had consulted, that she had taken the isiwasho. The evidence of the plaintiff that she neither took imbita nor told the doctor that she had, was not disputed and is accepted. The whole question of whether she took isiwasho and/or imbita is a red herring. The first reason is that the claim of the plaintiff was brought against the defendant in a purely representative capacity. The plaintiff was never joined as a wrongdoer in her personal capacity and so it does not now afford the defendant succour to raise as a defence to the claim, that the plaintiff’s conduct was in any way the cause of her child’s misfortune. The second reason arises out of the undisputed entries in the hospital records. The recording of the use of isiwasho (and allegedly imbita) was accompanied by a caution recorded by the doctor that in consequence of this, the plaintiff was at high risk for a ruptured uterus and required close monitoring. Throughout the period of monitoring, neither the plaintiff nor the child demonstrated any distress which could be attributable to the isiwasho (or the imbita).

Findings: Despite the recognition that the plaintiff was in obstructed labour and required a caesarian section, inexplicably, and for a 4,5-hour period, monitoring of the foetus ceased. It is self-evident that if the monitoring of the plaintiff and foetus had continued, then distress in the foetus would have been detected earlier and the caesarean section performed earlier. In the absence of any adverse effect on the foetus being established in consequence of the use by the plaintiff of iziwasho (or imbita) or of the Themba Hospital being without the staff or facilities to properly care for the plaintiff and the foetus, that the sole cause of the injury to the foetus (the child once he was a newborn) is the negligent failure on the part of the staff of the Themba Hospital to timeously deliver him when by the exercise of reasonable care, they could and should have done so. There is no merit in the defendant’s argument that the taking of iziwasho (or imbita) played any role in the birth injury.  Additionally, no merit is found in the argument that due to a lack of resources the staff at the Themba Hospital were unable to provide a minimum standard of care which would have obviated the birth injury. The injury to the plaintiff’s child was entirely avoidable.

Order: The defendant is liable for the payment of 100% of the proven or agreed damages of the plaintiff’s minor child. The defendant shall pay the plaintiff’s taxed or agreed party-and-party costs.

MILLAR J

Facts: The court is called upon to deal with an unprecedented scenario. Dr Hlophe was appointed a judge in the Cape Provincial Division in 1995 and elevated to the position of Judge President of that Division in 2000. The justices of the Constitutional Court, led by Chief Justice Langa and Deputy Chief Justice Moseneke, lodged a complaint with the JSC against Dr Hlophe whereupon the matter was referred to the Judicial Conduct Tribunal. After having heard evidence and argument, the Tribunal provided its report and recommendation to the JSC. It concluded that Dr Hlophe was guilty of gross misconduct. The National Assembly (NA) designated to the Judicial Service Commission (JSC) a Member of Parliament (MP) being a former judge who was impeached by the NA for gross judicial misconduct. The NA’s designation of the MP in question, namely Dr Hlophe, triggered three applications. The Democratic Alliance, Freedom Under Law and Corruption Watch issued their separate applications respectively. 

Application: The applicant seeks interim orders pending a determination of the merits of the applicant's review of the National Assembly's decision to designate Dr Hlophe as its representative to the JSC, that Dr Hlophe be interdicted from participating in the processes of the JSC. The court is required to adjudicate whether the NA properly exercised its discretion to designate Dr Hlophe to the JSC.

Discussion: Adv Mpofu SC on behalf of MK strenuously submitted that Dr Hlophe is suitably qualified and fit and proper to serve on the JSC, bearing in mind his qualifications, achievements and expertise. Also, he is entitled to serve on the JSC because he is an MP and he cannot be prevented from performing his constitutional duties as MP. Furthermore, he was designated by the NA to serve on the JSC in accordance with the NA’s convention which is consistent with the Constitution. The golden thread is that the applicants conflate his position as impeached judge with his present position as MP. It is also submitted that the applicants’ whole theory and basis of the applications would fall away when Dr Hlophe is eventually reinstated as a judge. The respondents’ submission that the JSC would not have a quorum to take valid decisions if Dr Hlophe is interdicted from participating in that forum is incorrect. The majority support for decisions required by section 178(6) of the Constitution is the majority of members entitled to be present according to section 178(1) and not merely the majority present and voting. The absence of Dr Hlophe on the JSC would not be significant. There would still be five NA members represented on the JSC, constituting a majority of such members.

Findings: The NA failed to appreciate that it had a discretion in designating MPs to the JSC and consequently, it failed to exercise such discretion and "rubberstamped" MK’s nomination of Dr Hlophe. The first requirement for an interim interdict has been established by the applicants, demonstrating good prospects of success in the review application. All three applicant parties made valid points, indicating that the legitimacy of the JSC’s processes would be tainted, which cannot be repaired later if Dr Hlophe is allowed to participate in the JSC interviews and deliberations. This will undermine public confidence in the JSC. The applicants’ prima facie rights are threatened as there is a reasonable apprehension of irreparable and imminent harm if interdicts are not granted. In evaluating the balance of convenience, this is one of the clearest of cases to grant a restraining order and it is also constitutionally appropriate to grant the required interim interdicts. In granting same, Dr Hlophe will not be prevented in carrying out his obligations as MP. There was no satisfactory alternative remedy available to the applicants, given the imminent JSC interviews.

Order: Pending the determination of the merits of the applicant's review of the National Assembly's decision to designate Dr Hlophe as its representative to the Judicial Service Commission, Dr Hlophe is interdicted from participating in the processes of the JSC.

BAQWA J, DAFFUE J and COLLIS J

Facts: The applicant, DB, married MB (the deceased) in 2006 at Oudtshoorn. She has two sons from him. She is the third wife of the deceased. The deceased had children from his other wives. The applicant instituted divorce proceedings against the deceased in 2014 and the marriage was declared by court order in 2014 to be one in community of property. The divorce was not finalised when the deceased died. The respondent is the executor of the joint estate. He was nominated executor testamentary and appointed by the Master in 2023. The respondent has been the deceased's attorney since 2013. He acted on behalf of the deceased in the divorce proceedings and further related litigation instituted by and against the applicant.

Application: The applicant seeks to remove the respondent as the executor in terms of section 54(1)(a)(v) of the Administration of Estates Act 66 of 1965. The applicant also relies belatedly on section 54(1)(a)(ii) of the Act. The Applicant seeks, in addition: an order that the respondent is precluded from receiving any remuneration for services rendered whilst he was executor; that the Master appoint a new executor; and costs on an attorney-client scale.

Discussion: In the will, the deceased asserted that the applicant had already received more than her due share through the lengthy and disgraceful divorce proceedings. The executor is well taken care of, and his fees for managing the interest of the minor sons in German and South African properties and his fees to resist the applicant's half share in the joint estate are ensured. It is difficult to believe that the respondent, who was the deceased’s lawyer for at least ten years, did not have a hand in drafting the will. The applicant alleges that the respondent assisted the deceased in drafting the will. She cites the deceased’s protracted illness, his proficiency in English, the attention to minute details in the will, and the inclusion of “vindictive and toxic” instructions as factors pointing to the respondent's hand in drafting the testament and implementing its provisions unwaveringly.

Findings: The respondent has a low threshold for threatening litigation and litigating on behalf of the estate against the applicant. He has intervened at the estate’s cost in Germany and South Africa. His attorney firm benefits from the litigation. This attitude is inconducive to the interests of the estate, to that of the heirs, as well as to the applicant. The respondent, as the attorney to the deceased, has been involved in the acrimonious litigation against the applicant, which was directed to stifle the applicant’s entitlement to a fair half share of the joint estate. The respondent acted as an attorney just before the deceased’s death in litigation that was intended to deprive her of the German assets of the deceased. The deceased expected the respondent to become immersed in the administration of the joint estate way beyond that which is ethically and legally permitted of an executor. The deceased expected the respondent to pursue the applicant with the same vigour he did while alive. The administration of this estate requires an independent executor who will bring a fresh and uncluttered mind to its resolution. This estate requires an executor who is not encumbered by the baggage of the past and will genuinely attend to his legal and fiduciary duties.

Order: The respondent is removed from his office as executor in terms of section 54(1)(a)(v) of the Act. He shall be entitled to claim his fees as executor from the date of his appointment to the date of this judgment, however, the respondent or his attorney firm shall not be entitled to claim any legal costs relating to the intervention in the matters involving the applicant in Germany from the date of his appointment as executor to the date of this judgment. The respondent shall pay the costs of this application. Counsel’s fees will be recovered and taxed on the “C” scale.

BHOOPCHAND AJ