SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	
                                REPUBLIC OF SOUTH AFRICA

                            IN THE HIGH COURT OF SOUTH AFRICA
                    GAUTENG LOCAL DIVISION, JOHANNESBURG

(1)    REPORTABLE:  YES / NO
(2)    OF INTEREST TO OTHER JUDGES:  YES / NO
(3)    REVISED:  YES / NO

18 June 2020_______                    _______________________
      DATE                                                        SIGNATURE	
		 
		CASE 	 NUMBER: 21562/18

In the matter between

ADV C VALLARO		Plaintiff

As Curatrix ad litem to

B V		Claimant

and 

ROAD ACCIDENT FUND		Defendant

Summary:  Agreements entered into by persons who lack the juristic capacity to do so is void ab initio.  No life can be breathed into an agreement that is void ab initio by a curator through ratification.
         
JUDGMENT
[1]	In this matter the claimant is an adult male with severely impaired mental faculties.  Even before the collision which gave rise to the claim against the defendant, the claimant had compromised mental faculties.  I need not, however, explore the pre-existing condition of the claimant for the purposes of this judgment.  What is clear from the expert reports filed on behalf of the claimant is that he has suffered a severe head injury as a result of the collision.  The claimant’s neuropsychologist describes the effect of the severe head injury as akin to “the degree of mental impairment. . .to a patient with moderate to severe dementia.”

[2]	The neuropsychologist goes further to state that the claimant “is incapable of understanding legal proceedings.  His insight and ability to comprehend and conceptualise complex information has been impaired to such a degree by the brain damage that he is of unsound mind.  He is unable to participate rationally and meaningfully in the management of his litigation, is incapable of appropriately instructing an attorney to conduct litigation on his behalf, and is unable to appreciate the legal and financial implications of such instructions.  He requires a curator ad litem to be appointed with immediate effect.”  

[3]	I add that a curatrix ad litem (“the curatrix”) was appointed by this court for the claimant.  As part of the powers given to the curator, the power to “ratify any steps, if any, which have already been taken in respect of prosecuting the claim.”

[4]	When the matter was finally called before me I was satisfied as to the settlement of the claim with the defendant.  What concerned me was the validity of the contingency fee agreement (“the agreement”) presented to me.  I hasten to add that I had no prima facie difficulties with the contents of the agreement which I only cursory looked at for the reasons dealt with in this judgment.  What struck me, however, was that the claimant had signed the agreement and was not represented by a curator of any sorts at the time that he signed the agreement.  I enquired from counsel appearing on behalf of the claimant whether the claimant could be said to have had the necessary contractual capacity to enter into the agreement at the time when he entered into the agreement.  Counsel conceded, rightly in my view, that the claimant had no such contractual capacity to enter into the agreement.

[5]	My question which I then posed to counsel was whether the agreement, which had been ratified by the curatrix, was valid or whether the agreement was void.  Counsel for the claimant submitted the curatrix is, in terms of the power accorded to her as mentioned in paragraph 3 of this judgment, empowered to ratify the agreement.  Although I take no issue that the curatrix may, in appropriate circumstances, ratify any steps already taken, the question remains whether she could ratify an agreement which, in my view, is void.

[6]	Counsel submitted that it often happens in these courts that contingency fee agreements, entered into by persons who lack contractual capacity, are ratified by curators and accepted by the courts.  I afforded counsel the opportunity to consider the matter and make either oral or written submissions to me on whether the curatrix could ratify a void agreement, thereby blowing life into the void agreement.  After affording counsel the opportunity to consider his position and to take instructions from his attorney, the election was made by the legal practitioners on behalf of the claimant to accede to the agreement being declared invalid.  I am of the view that something needs to the be said about the practice counsel submitted exists.

[7]	An essential element to a contract coming into force is the existence of the so-called meeting of the minds.  A sub-genre, to call it such, of the meeting of the minds is whether the minds seeking to meet had the legal ability to so meet.  Otherwise stated, did either or both of the minds which were to meet in a contractual setting have the necessary capacity to perform juristic acts.

[8]	Trite in law is the fact that persons under the age of 7 and severely mentally disabled persons completely lack the capacity to perform juristic acts.   As a severely mentally disabled person is unable to participate in reaching a consensus, the latter which is the foundation for the forming of a contract, it follows that a contract entered into by a mentally disabled person is void ab initio and not merely voidable.  As the agreement is void due to the claimant’s mental disability, the question of ratification does not (and cannot arise).  
[9]	As counsel elected not to make submissions in this regard but merely acceded to the declaration of invalidity of the agreement, I conducted my own further research in this matter.  During the course of such research I came upon the judgment of Mort N.O. v Henry Shields-Chiat which seems to suggest, on an initial reading, that acts done in respect of a mentally disabled person can be ratified.  On a closer scrutiny of the reasoning of my brother Davis J, it becomes clear that the Mort-decision is distinguishable on the facts.

[10]	In the Mort-decision, the ratification that was done by the curator pertained to the ratification of acts done by a falsus procurator on behalf of the mentally disabled person.  What occurred in that matter is that the mentally disabled person, prior to reaching the age of majority, was represented by his father in the litigation.  The father, whilst his mentally disabled son was still a minor, appointed the attorney (the respondent in that matter) to act for his son.  After the mentally disabled son reached the age of majority, the attorney continued to act for the mentally disabled son whilst he, in fact, lacked a valid mandate to do so and thereby acted falsus procurator.

[11]	In this matter it is the severely mentally disabled claimant himself who entered into the agreement.  It is not someone else, on the principle of falsus procurator, who acted on behalf of the claimant in entering into the agreement.  As the claimant, by virtue of his severe mental disability, could not enter into the agreement, the agreement is void ab initio.  The agreement being void ab initio, effectively never existed.  As the agreement effectively never existed, no life could be breathed into it by the curatrix.

[12]	Curators cannot ratify agreements which were entered into by severely mentally disabled persons if the agreement was entered into whilst the severely mentally person harboured under such severe mental disability as the agreement would be void ab initio in such circumstances.  In so far the practice is concerned as submitted by counsel, I am of the view the submission is being confused with circumstances where curators ratify contingency fee agreements that were entered into by persons purporting to represent the severely mentally disabled person whilst such persons acted without being properly authorised to do so.

[12]	As a result of the aforesaid, I granted the order acceded to by the counsel on behalf of the respondent relating to the declaration of invalidity pertaining to the agreement.

______________________________
C E THOMPSON
ACTING JUDGE OF THE HIGH COURT

Appearances:

On behalf of the Applicant                                                 Adv. H. Schouten
Instructed by:                                                		   Munro Flowers and Vermaak

On behalf of the Respondent:
Instructed by:			

Heard on 17 June 2020
Order granted on 17 June 2020
Reasons relating to the striking down of the contingency fee agreement handed down on 18 June 2020             

***JUDGMENT HANDED DOWN BY UPLOADING SAME ONTO CASELINES***