I admit that it has been a long time since I have had something to write about in this blog.
While I would prefer to stick with what I know and avoid the unusual cases one such case has found its way to me. Not so much because it concerns the decisions of our MEC for Cooperative Governance and the relevant Local Municipality about the Respondent building on a cultural heritage site, but rather because my client got killed before the court date...
The Respondent's legal team seems to expect of me to raise the white flag and tender costs...
What I think of them for requesting a withdrawal and tender for costs I shall rather leave to your imaginations, however, as I have enough trouble as it is...
So- after a frantic search by my counsel and myself for answers we have found Rule 15 of the Uniform Rules of Court- not to be confused with Rule 15 of the old Magistrates' Court Rules that got used by crooked defendants to make a nuisance of themselves when they had no real defense to begin with...
No- this Rule 15 reads as follow:
"15 Change of Parties
(1) No proceedings shall terminate solely by reason of the death, marriage or other change of status of any party thereto unless the cause of such proceedings is thereby extinguished.
(2) Whenever by reason of an event referred to in subrule (1) it becomes necessary or proper to introduce a further person as a party in such proceedings (whether in addition to or in substitution for the party to whom such proceedings relate) any party thereto may forthwith by notice to such further person, to every other party and to the registrar, add or substitute such further person as a party thereto, and subject to any order made under subrule (4) hereof, such proceedings shall thereupon continue in respect of the person thus added or substituted as if he had been a party from the commencement thereof and all steps validly taken before such addition or substitution shall continue of full force and effect: Provided that save with the leave of the court granted on such terms (as to adjournment or otherwise) as to it may seem meet, no such notice shall be given after the commencement of the hearing of any opposed matter; and provided further that the copy of the notice served on any person joined thereby as a party to the proceedings shall (unless such party is represented by an attorney who is already in possession thereof), be accompanied in application proceedings by copies of all notices, affidavits and material documents previously delivered, and in trial matters by copies of all pleadings and like documents already filed of record, such notice, other than a notice to the registrar, shall be served by the sheriff.
[Subrule (2) substituted by GN R235 of 18 February 1966.]
(3) Whenever a party to any proceedings dies or ceases to be capable of acting as such, his executor, curator, trustee or similar legal representative, may by notice to all other parties and to the registrar intimate that he desires in his capacity as such thereby to be substituted for such party, and unless the court otherwise orders, he shall thereafter for all purposes be deemed to have been so substituted.
(4) The court may upon a notice of application delivered by any party within 20 days of service of notice in terms of subrule (2) and (3), set aside or vary any addition or substitution of a party thus affected or may dismiss such application or confirm such addition or substitution, on such terms, if any, as to the delivery of any affidavits or pleadings, or as to postponement or adjournment, or as to costs or otherwise, as to it may seem meet."
Yes- I admit that it is a lot to read and if you have just scrolled down to what I have to say about it all you are forgiven.
Well... in short this rule allows for somebody to act in my client's stead.
Who this person may be is the following:
1. The executor of my client's estate;
2. His curator;
3. His trustee;
4. a "similar" legal representative.
Well- at the moment I do not know who the executor to my client's estate is. I have feeling that I shall find out quite soon, though... Until I know, however, I have to be prepared to look at other options for a suitable substitute.
There is no curator or trustee in the picture.
Now we get to the last option, which seems to point at yours truly. What is meant by "similar" legal representative I am not certain yet, but that question seems to be the least of my concerns.
My main concern is that other residents around the area affected by the Respondent's activities wish for this matter to continue. It can only continue through the appointed substitute, however, if the court finds upon application (by myself, most likely) that-
1. the cause of the proceedings have not become extinguished by my client's demise;
2. that it is necessary or proper for the substitute to be introduced into the matter and to take it further.
From where I am looking it seems that it would definitely be necessary and proper for the future owner of the deceased's property to continue with this application.
I'd also consider it proper if the other interested residents of the area give me a mandate to act as substitute.
What the Court will have to say on this, however, remains to be seen.
I shall tell you in due course...
While I would prefer to stick with what I know and avoid the unusual cases one such case has found its way to me. Not so much because it concerns the decisions of our MEC for Cooperative Governance and the relevant Local Municipality about the Respondent building on a cultural heritage site, but rather because my client got killed before the court date...
The Respondent's legal team seems to expect of me to raise the white flag and tender costs...
What I think of them for requesting a withdrawal and tender for costs I shall rather leave to your imaginations, however, as I have enough trouble as it is...
So- after a frantic search by my counsel and myself for answers we have found Rule 15 of the Uniform Rules of Court- not to be confused with Rule 15 of the old Magistrates' Court Rules that got used by crooked defendants to make a nuisance of themselves when they had no real defense to begin with...
No- this Rule 15 reads as follow:
"15 Change of Parties
(1) No proceedings shall terminate solely by reason of the death, marriage or other change of status of any party thereto unless the cause of such proceedings is thereby extinguished.
(2) Whenever by reason of an event referred to in subrule (1) it becomes necessary or proper to introduce a further person as a party in such proceedings (whether in addition to or in substitution for the party to whom such proceedings relate) any party thereto may forthwith by notice to such further person, to every other party and to the registrar, add or substitute such further person as a party thereto, and subject to any order made under subrule (4) hereof, such proceedings shall thereupon continue in respect of the person thus added or substituted as if he had been a party from the commencement thereof and all steps validly taken before such addition or substitution shall continue of full force and effect: Provided that save with the leave of the court granted on such terms (as to adjournment or otherwise) as to it may seem meet, no such notice shall be given after the commencement of the hearing of any opposed matter; and provided further that the copy of the notice served on any person joined thereby as a party to the proceedings shall (unless such party is represented by an attorney who is already in possession thereof), be accompanied in application proceedings by copies of all notices, affidavits and material documents previously delivered, and in trial matters by copies of all pleadings and like documents already filed of record, such notice, other than a notice to the registrar, shall be served by the sheriff.
[Subrule (2) substituted by GN R235 of 18 February 1966.]
(3) Whenever a party to any proceedings dies or ceases to be capable of acting as such, his executor, curator, trustee or similar legal representative, may by notice to all other parties and to the registrar intimate that he desires in his capacity as such thereby to be substituted for such party, and unless the court otherwise orders, he shall thereafter for all purposes be deemed to have been so substituted.
(4) The court may upon a notice of application delivered by any party within 20 days of service of notice in terms of subrule (2) and (3), set aside or vary any addition or substitution of a party thus affected or may dismiss such application or confirm such addition or substitution, on such terms, if any, as to the delivery of any affidavits or pleadings, or as to postponement or adjournment, or as to costs or otherwise, as to it may seem meet."
Yes- I admit that it is a lot to read and if you have just scrolled down to what I have to say about it all you are forgiven.
Well... in short this rule allows for somebody to act in my client's stead.
Who this person may be is the following:
1. The executor of my client's estate;
2. His curator;
3. His trustee;
4. a "similar" legal representative.
Well- at the moment I do not know who the executor to my client's estate is. I have feeling that I shall find out quite soon, though... Until I know, however, I have to be prepared to look at other options for a suitable substitute.
There is no curator or trustee in the picture.
Now we get to the last option, which seems to point at yours truly. What is meant by "similar" legal representative I am not certain yet, but that question seems to be the least of my concerns.
My main concern is that other residents around the area affected by the Respondent's activities wish for this matter to continue. It can only continue through the appointed substitute, however, if the court finds upon application (by myself, most likely) that-
1. the cause of the proceedings have not become extinguished by my client's demise;
2. that it is necessary or proper for the substitute to be introduced into the matter and to take it further.
From where I am looking it seems that it would definitely be necessary and proper for the future owner of the deceased's property to continue with this application.
I'd also consider it proper if the other interested residents of the area give me a mandate to act as substitute.
What the Court will have to say on this, however, remains to be seen.
I shall tell you in due course...
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