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Litigation: Daughter's hopes of representing dad dashed

Lynn Akers has lost the battle to represent her parents in a Western Cape High Court bid to set aside Standard Bank’s repossession of their property after they defaulted on the loan. A Cape Argus report says Akers – daughter of Roland Carelse (66) and his late wife – wanted the court to rescind a judgment granted in favour of Standard Bank against her parents. They had fallen 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 settlement amount was R34 123 which was valid until December 2017. In February 2018, 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’ application on three grounds: they said Akers had failed to show her direct and substantial interest in the dispute; that not being an attorney she could not rely on the power of attorney to establish her authority to represent her father; and that she could not rely on the provisions of the Older Person’s Act, as it only applied to organs of state that render services to older persons. The Cape Argus report says in his ruling, Acting Judge Daniel Thulare said in his view Akers had no legal capacity to sue or approach the courts as the matter concerned her parents. While Carelse fitted the definition of an older person as defined in the Act, there was no evidence to suggest that he is a frail older person, 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’ applications, Thulare said: ‘Representing another in High Court litigation is a serious exercise. SA 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 SA citizen or be permanently resident in the Republic, be a fit and proper person to be admitted and having served his credentials with the SA Legal Practice Council.’

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