Cape Town - A woman has lost the battle to represent her parents in a High Court bid to set aside a bank’s repossession of their property after they defaulted on the loan.
Lynn Akers, the eldest daughter of Roland Carelse and his late wife, wanted the court to rescind a judgment granted in favour of Standard Bank against her parents.
The couple obtained a home loan in respect of a vacant plot from the bank. However, they fell into arrears with the bond repayments and the bank obtained a default judgment against them in March 2008 for an amount of R330 000.
In November 2016, the bank’s attorneys told Carelse that the outstanding balance on the account was R170 632.58 excluding future legal costs and interest. They also said that the bank had given them 80%, which left the settlement amount at R34 126.52 which was valid until December 2017.
On February 17, 2017, the attorneys gave the couple 24 hours’ notice that their furniture, vehicles and property would be attached if judgment was obtained against them on the home loan account and that immediate payment was urgently required.
It was then that Carelse told his daughter and asked her to intervene, giving her power of attorney. His wife had meanwhile died.
Standard Bank opposed Akers’s application on the three grounds. Firstly, they said Akers had failed to show her direct and substantial interest in the dispute.
Secondly, they said that not being an attorney she could not rely on the power of attorney to establish her authority to represent her father.
Finally they argued that Akers could not rely on the provisions of the Older Person’s Act, OPA, as it only applied to organs of State who render services to older persons.
In his ruling, acting Judge Daniel Thulare said that in his view Akers had no legal capacity to sue or approach courts as the matter concerned her parents.
He also said that while at the age of 66 Carelse fit the definition of an older person as defined in the OPA, there was no evidence to suggest that he is a frail older person, who is defined as one who needed 24-hour care due to a physical or mental condition which rendered him incapable of caring for himself.
Dismissing Akers’s applications, Judge Thulare said: “Representing another in High Court litigation is a serious exercise. South Africa requires that those who have a right to appear on behalf of another person in any court in the Republic should meet certain requirements.
“These include that the person be duly qualified, be a South African citizen or be permanently resident in the Republic, be a fit and proper person to be admitted and having served his credentials with the South African Legal Practice Council."