Djukanovic v Jordan No. DCCIV-95-419 Judgment No. D110

[1999] SADC 110

ZVONKO DJUKANOVIC v NEVILLE JOHN JORDAN
[1999] SADC 110

Judge Lunn
Civil

REASONS ON DEFENDANT’S APPLICATION TO STAY THE ACTION

1. The defendant was a solicitor who had previously acted for the plaintiff in relation to a claim which he had for damages for personal injury.  In this action the plaintiff has sued the defendant for damages for alleged breaches of his duties as his solicitor.  What breaches of duty are alleged, and what heads of damages are claimed, are somewhat uncertain, but it does not affect this application.  The plaintiff is acting in person.  No next friend has ever been appointed for him.

2. The action was listed for trial for 9 August 1999 with an estimate of ten days for the trial.  At the commencement of the trial the defendant made an oral application to stay the action on the ground that the plaintiff was a “person under disability” and was proceeding without a next friend.  If he is a “person under disability”, the action is to be stayed until a next friend is appointed: Hutchison v Gaitazis (1980) 25 SASR 30. There was also a subsidiary point that if the plaintiff is a “person under disability”, he needs leave of the Court under Rule 35.04 to act in person.

3. The issue is whether the plaintiff is a “person under disability”.  That phrase is defined in R5 as follows:

   “’Person under disability’ means an infant, and any person, who by reason of physical weakness or intellectual impairment whether temporary or permanent, is unable to give sufficient instructions to take, defend or compromise proceeding.”

Although this definition has been in the Rules since 31 December 1993, as far as I can ascertain it has never been the subject of any reported judicial exposition.  On the hearing of the application the defendant called Mr Quinton, a psychologist, who had been seeing the plaintiff over many years, and Dr Czechowicz, his treating psychiatrist.  While they considered that the plaintiff suffered from a number of psychological and psychiatric disorders, such as a post traumatic stress disorder, major depression, an anxiety condition and an adjustment disorder, and that his psychiatric condition was thereby impaired to at least 20%, and possibly 50%, they were both categorical that he did not have any significant “intellectual impairment”.  Dr Czechowicz considered that for him to be intellectually impaired he must be psychotic, ie out of touch with reality, but he found him to be reasonably in touch with reality.  In the light of this evidence I must, and do, find that it is not proved that the plaintiff is suffering from any “intellectual impairment”.

1. I am satisfied that the proper interpretation of the definition of “person under disability” applies only where any inability to give sufficient instructions results from “intellectual impairment”.  In other words in the absence of any “intellectual impairment” the plaintiff cannot be a “person under disability”, and it does not matter whether he is unable to give instructions for any other reason.  (There was no issue here relating to any “physical weakness” within the definition.)  Accordingly, it is not necessary to go into the other issues which were debated about the ability of the plaintiff to give sufficient instructions for taking or compromising proceedings.

2. For these reasons the application was dismissed.