Chapter 7 part 1- The Parties

Question 0

What does the analysis of a party’s locus standi involve?

Answer 0

It involves a consideration of two discrete legal concepts.

1) Sufficient interest-
An examination of whether the litigating party has a sufficient interest in the right which is the subject matter of the litigation; and

2) Capacity-
Secondly, examination of whether the litigating party has capacity to sue or be sued.

Question 1

What is the literal translation of Locus standi in iudicio (locus standi)?

Answer 1

Literally translated it means “place to stand before a court”.

Question 2

Why does the right and interest in a matter play a considerable role in determining locus standi?

Answer 2

In this sense, locus standi refers to a determination of whether the correct party is before the court.

Question 3

What is the common law definition of locus standi?

Answer 3

In terms of common law, party instituting proceedings and bringing claim before court must possess a direct and substantial in the right which forms the subject matter of the litigation.

Question 4

What is the plaintiff required to have in terms of the common law definition of locus standi?
-4 points

Answer 4

According to Jones and Buckle, the plaintiff/applicant required to have:

1) Adequate interesting subject matter of litigation, usually described as direct interest in relief sought;
2) Interest that isn’t too far removed;
3) Actual, not abstract or academic, interest;
4) Current, not hypothetical, interest.

Question 5

Does the common law definition of interest apply to all legal proceedings?

Answer 5

It will apply to majority of legal proceedings. However, when litigation based on a BoR issue, s38 of the Constitution must be taken into account.

Question 6

In terms of s38 of the Constitution, who may approach the court seeking relief, alleging that a right contained in the BoR has been infringed/ threatened?

Answer 6

The persons who may approach a court are -

a) anyone acting in their own interest;
b) anyone acting on behalf of another person who cannot act in their own name;
c) anyone acting as a member of, or in the interest of, a group or class of persons;
d) anyone acting in the public interest; and
an association acting in the interest of its members.

Question 7

What is the effect of the definition of locus standi contained in s38 of the Constitution?

Answer 7

The effect of this clause is to allow any person or orgnisation to enforce rights contained in chapter 2 BoR, regardless of whether that person or organization is negatively affected by the alleged infringement of rights.

Question 8

What is a class action?

Answer 8

In terms of s38(c) of the Constitution a class/representative action allows a single person to institute an action on behalf of and in the interest of a group or class of persons all having the same cause of action.

Question 9

Who was integral in introducing class actions and public interest actions in our legal system?

Answer 9

In 1998 the South African Law Reform Commission (SALRC) published a research report together with draft legislation proposing the introduction of class actions and public interest action into SA law.

Question 10

How does the SALRC define a class action?

Answer 10

The Commission defines a class action as “a device by which a single plaintiff may pursue an action on behalf of all persons with a common interest in the subject matter of the suit”

Question 11

What are the questions that the SALRC lists in order to identify a class action? -7 points

Answer 11

The SALRC lists the following questions to be asked in order to identify a class action:

1) Is there an identifiable class?
2) Is the cause of action known?
3) Is there a commonality of legal and factual issues?
4) Is there a suitable representative?
5) Is it of legal importance to institute the action?
6) Is there a suitable method to institute the action?
7) Is it possible to plead res judicata at conclusion of the matter?

Question 12

What is a public-interest action?

Answer 12

In the case of a public interest action, the plaintiff institutes the action on behalf of the public or a distinct section of the public, even if plaintiff has no direct, indirect or personal interest in outcome of the action.
Public interest actions mostly be directed at State organs in order to protect rights guaranteed in BoR.

S38(d) of the Constitution introduces the concept of an unrestricted public-interest action.

Question 13

What 2 requirements must be fulfilled in order to institute a public-interest action?

Answer 13

1) Must be established that person is indeed acting in the public interest; and
2) must be established that public has sufficient interest in the proposed remedy.

Question 14

How do public-interest actions differ from class actions?

Answer 14

Although there are similarities between the two, the procedures differ.

Question 15

What does the second leg of determining locus standi, Capacity, entail?

Answer 15

Every natural person possessing full legal capacity may sue or be sued. However, certain types of natural persons don’t enjoy full capacity and may not appear as legal parties in legal proceedings without appropriate assistance. Eg minors

Question 16

Do minors (children) have capacity to appear as parties in legal proceedings?

Answer 16

In terms of s17 of Children’s Act, natural person becomes a major at 18. A natural person under 18 is defined as a “child” and must be “duly assisted” or “represented” by parent/guardian for purposes of civil litigation.

Examples:
1) Infans (under 7)- no legal capacity, must alway be represented by guardian. Claim brought or defended in name of guardian who acts in representative capacity on behalf of minor.

2) Impube/ Pupillus (over 7)- may choose to institute or defend claim in name of guardian acting in representative capacity or in name of minor ‘duly assisted’ by guardian.

Question 17

Is a guardian who acts in a representative capacity on behalf of a minor liable for costs or damages awarded against the minor at judgment?

Answer 17

The guardian isn’t liable for costs or damages awarded against the minor at judgment, since the minor is the litigant.

(However, where guardian acts mala fide, negligently or unreasonably, the court may order the guardian to pay costs in a personal capacity de bonis propriis).

Question 18

When may a guardian act in a dual capacity?

Answer 18

Sometimes a guardian may act in a dual capacity, namely on his own behalf (eo nomine) and as representative of minor child (nomine officio).

This circumstance usually arises when minor is injured through negligence of 3rd party.

• Guardian may sue as representative of minor for, inter alia, any pain and suffering caused to minor; and
• Guardian may may also sue on his behalf for medical expenses in treating child’s injuries.

Question 19

What happens when a minor has no guardian?

Answer 19

Where a minor has no guardian, or guardian refuses to act for minor, or when there’s a conflict of interest between minor and guardian, the court may appoint a curator ad litem to a ton minor’s behalf in a legal proceeding.

Question 20

Do married women possess capacity (locus standi) to be party in legal proceedings?

Answer 20

In terms of s29 of General Law Amendment Act read together with s11 of Matrimonial Property Act, all married women possess locus standi.

Question 21

Do spouses married in community of property have locus standi in sense of capacity to sue/defend legal proceedings?

Answer 21

Spouses married in community of property can’t institute or defend legal proceedings without the permission of the other spouse.

However, in terms of s17 of Matrimonial Property Act, such consent isn’t required when the legal proceedings is:

(i) Between spouses;
(ii) In respect to a spouse’s separate property;
(iii) For recovery of non-patrimonial damages; and
(iv) Related to the spouse’s profession, trade or business.

Question 22

Do insane and disabled persons have locus standi in the sense of capacity to sue/defend legal proceedings?

Answer 22

In terms of HCR 57 an application may be made to the HC to appoint curator to the person or property of a person or “patient” incapable of managing his own affairs by reason of some mental disability or any other factor. (HCR 57(12) above applies mutates mutandi to detained state patient.)

Question 23

What are the two types of curators that HCR 57 refers to with regards to insane and disabled persons?

Answer 23

1) Curator ad litem-
Appointed by court to protect interests of a patient unfit to manage his own affairs during course of a legal proceedings;

2) Curator Bonis-
Appointed by court to manage and control property of such an unfit patient.

Question 24

Who brings an application for curators in terms of HCR 57 for insane or disabled persons?

Answer 24

Application usually brought

• by applicant,(either relative, guardian or in certain circumstances, a friend);
• before a court (court where domiciled, resides or has property)
• in 2 stages:

1) Firstly for curator ad litem (“curator for purpose of litigation”); and
2) Secondly for appointment of curator bonis (“a curator for the goods”).

Question 25

How is the application for a curator ad litem brought to court?

Answer 25

The application for a curator ad litem is brought by an ex parte notice, together with affidavits of:

(i) Person who’s familiar with patient and can attest to patient’s unsound mental health or otherwise;
(ii) 2 medical practitioners, one of which must be alienist or psychiatrist.

Question 26

What is a curator ad litem obliged to do in cases of insane or disabled persons?

Answer 26

The court appointed curator ad litem (usually advocate or attorney) is obliged to conduct a comprehensive investigation into mental condition and capacity, financial means, physical circumstances and any other subjective requirements of the patient, including the necessity for appointing curator bonis to manage patients property.

Question 27

How is an application for a curator bonis brought to court?

Answer 27

A report must be conscientiously prepared and filed with registrar, as court will often depend exclusively on recommendations made by curator ad litem.

In exceptional circumstances the various divisions of the HC have allowed appointment of curator bonis directly, without prior appointement of curator ad litem.

Question 28

Do prodigals have locus standi, in sense of capacity to sue/defend legal proceedings?

Answer 28

A prodigal is someone incapable of managing his own financial affairs. The court may, on application, appoint a curator bonis directly to manage estate of a prodigal without prior arrangement of a curator ad litem.

Curator ad litem only appointed if prodigal unable to understand nature of legal proceedings.

Question 29

Do insolvents have locus standi, in the sense of capacity to sue/defend legal proceedings?

Answer 29

Insolvent has very restricted locus standi. On being declared insolvent, the sequestered estate is administered by court appointed trustee, who will in a representative capacity sue or be sued in any matter related to the sequestered estate.

The insolvent may sue or be sued in his own name in respect of a limited number of matters.

Question 30

In what matters does an insolvent possess locus standi?

Answer 30

According to Jones and Buckle the insolvent possesses locus standi with regard to:

1) Matters relating to status;
2) Any right not related to sequestered estate;
3) Actions relating to his profession, occupation, service or trade;
4) Actions for recovery of a pension;
5) Actions related to recovery of non-patrimonial damages;
6) Actions for review of proceedings relating to sequestered estate;
7) Actions agains trustee for maladministration of sequestered estate etc.

Question 31

What is a trust?

Answer 31

A trust is a legal entity without separate legal personality in which one or more persons described as trustees administer property (separate from their own) on behalf of or for the benefit of one or more beneficiaries or for a charitable purpose.

Question 32

Do trusts have locus standi in the sense of capacity to sue or be sued?

Answer 32

A trust can’t sue or be sued in its own name: itis the trustees who must either sue or be sued.

When instituting legal proceedings against a trust all trustees must be cited in their representative capacity (nomine officii) unless one or more of the trutees has been authorised by others to act on behalf of the trust.

Question 33

Do partnerships, firms and associations have locus standi in the sense of capacity to sue or be sued?

Answer 33

A partnership, for or association consists of group of individuals with same objectives which doesn’t posses separate legal personality.

HCR 14 and MCR 54 allow a partnership, firm or association to sue or be sued in its own name, however, doesn’t endow with legal personality.

Question 34

Do judges have locus standi in the sense of capacity to litigate?

Answer 34

Consent is required to institute proceedings or to subpoena a HC judge or a judge of Appeal.

Question 35

Do members of parliament have locus standi in the sense of capacity to litigate?

Answer 35

A person can institute civil proceedings against a Member of Parliament but not while the Member is attending Parliament, unless the proceedings are instituted in a Cape Court.

Question 36

Do foreign heads if state, diplomats etc have locus standi in the sense of capacity to litigate?

Answer 36

They all enjoy immunity from all legal proceedings in the civil jurisdiction of SA courts. They may not be sued unless the person or state has waived immunity.

Question 37

Do fugitives from justice have locus standi in the sense of capacity to litigate?

Answer 37

Fugitives may not institute legal proceedings in any SA court, but they may defend legal proceedings brought against them.

Question 38

Do companies have locus standi in the sense of capacity to litigate?

Answer 38

A company is a juristic person, and has separate legal personality.

Question 39

Do Closed Corporations have locus standi in the sense of capacity to litigate?

Answer 39

A CC is a juristic person and has separate legal personality.