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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)            REPORTABLE: YES/NO

(2)            OF INTEREST TO OTHER JUDGES: YES/NO

 

CASE NO: 3198/18

26/9/2018

 

In the ex parte applications of:

 

THITHI REBECCA MOLANTOA                                                              Applicant

 

obo

 

T[….] R[….]

 

and

 

O[….] M[….]

 

and

 

OTHER APPLICANTS LISTED IN APPENDIX

ON BEHALF OF CHILDREN

JUDGMENT

Tuchten J:

 

1          Section 14 of the Children’s Act[1] recognises the right of children to be assisted in vindicating their rights in court.  This right was recognised at common law and is now entrenched by s 28 of the Constitution,[2]  which recognises in specific content that children, ie persons under the age of 18, have special needs which require special protection.

2          This judgment concerns the appointment of curators ad litem (whom I shall mostly call curators) to protect the interests of children in actions brought against the Road Accident Fund (the Fund). Those cases concern claims by children for damages arising from the driving of motor vehicles in the Republic.[3]  The damages they claim. In turn, are said to result from bodily injuries suffered by the child itself or for loss of the support to which the child is entitled.

3         This Division has set down on its trial roll every day of the week during term time at least one hundred and sixty cases against the. Fund. It has become routine, where the plaintiff is a child, for an application to be brought in the unopposed motion court for the appointment of a curator ad litem to ratify steps already taken by the child in its action and to represent It further in the proceedings. Often such orders sought include prayers empowering the curator lo settle the case, usually after the consent of a judge has been obtained, and the creation of protection such as a trust to administer any award made to the child following upon the action.

4         I have often granted such orders but have recently become uneasy about whether they are necessary. Other Judges in the Division have told me that they share my concerns. For this reason, with the permission of the Judge President, I  convened a special court to which I adjourned matters which came directly before me in the unopposed motion court during August 2018. Other judges before whom such cases came similarly adjourned those cases for consideration by me. I approached the Centre for Child Law (CCL), which consented to act as amicus curiae in the special hearing. I am most grateful for the assistance provided by Ms Ozaah, who represented the CCL before me. In addition, the Fund itself briefed counsel to represent it at the hearing.

5          The curators appointed are in most cases advocates practising fn Pretoria. The orders which appoint them usually provide in effeGt that the Fund will pay the1r fees if the child Is successful in the action. Usually, these orders are taken without opposition from the Fund. My concern about the necessity for such applications Is that they create an additional tier of paid professionals  retained to representor project the interests of It-le child plaintiff. But what work does the curator actually do? What value does the curator actually add to the case?

6          I  gained  the  distinct  impression  during  argument and  informal discussions with other judges that much, if not all, of the work done by curators simply duplicates the work done by the attorneys of record or by persons such as advocates who are instructed by such attorneys. Counsel were unable to point to any work which the curator did which was no! done, or could not have been done, by or on behalf of 1he attorney who accepted the Instruction to represent the child in the litigation.   In     almost all  such cases the ·attorney  briefs counsel  to represent the child in the trial. In some cases,  it was suggested  that the appointment of a  curator  was  justified  because  the  child  was resident   far      from  the seat of  the court and  taking instructions was made costly and logistically difficult. In  my  view, this argument is  unsound. Circumstances might justify an attorney in appointing a correspondent or investigator to do work which would be too costly or inconvenient for the attorney of record to perform. But that is no basis for appointing a curator.

7          It emerged from the debate before me that attorneys are routinely confronted by practical problems . The Fund questions their authority to represent the child. Attorneys fear that they will at a later date be required     to   defend themselves  against accusations  that they have given negligent advice which has resulted in a settlement lower than was justified;  or  have  settled  without  authority.  They  view the appointment of such curators as some protection against these risks.

8         I doubt that the remedy selected will be effective. An attorney who gives  negligent  advice is  liable  because  he  gives such  advice; it matters not  whether he gives such advice to his lay client or to a curator. The appointment of a curator will not immunize  the attorney from the risk. ff the person assisting the child ln the conduct of the case who authorises the settlement is empowered to do so, then the attorney need not on that score fear that he will be found to have acted without authority. In a proper case, where the Fund unreasonably refuses to recognise the authority of the attorney to represent the child, the attorney can approach the court fora declaratory order.

9          So the issue   of principle before me is whether the children   whose actions are before me require as a matter of law the appointment of curators ad litem to assist them in their actions.

10        The nature of the responsibilities assumed by the curator ad /item was dealt with very fully in Martin NO v Road Accident Fund.[4] The function of such a curator is not always the same. The duty of this curator is to represent the child in the case then pending and to watch and protect the Interests of the child in the case as a good and prudent parent would have done. The practice is to appoint legal practitioners as such curators.  The essential purpose of the appointment is to avoid a conflict of interest.

11        It is generally accepted that the biological parent of a child is empowered to assist the child in actions against the RAF .But in some of the cases before me, biological mothers have sought the appointment of such curators. There is authority for their stance. In ex parte Donaldson.[5] the court held that although the widowed mother of the child could herself act for her child

 

… a woman parent In the position of the applicant of the applicant is entitled to apply to court for the appointment of some suitable male person to act as curator-ad-litem  to her minor daughter as is contemplated in the present case.

 

12       In the past. not only were women not regarded  as  adequately equipped to assist their children In litigation, but women were not eligible  for appointment as curators ad litem.[6] But while the cases before me do not make the gender point asserted in Donaldson,  in

 many of them the argument is made that the applicant does not have the necessary expertise to advise the child on the subtleties and complexities of high court litigation. The applicant in these cases  is sometimes a mother, often a grandmother and often a relative. More often than not a female relative. So much for the. gender point in Donaldson. No rational person would make the gender point today In this respect, times have changed. For the better.

13         I think that the answer to the present problem lies in s 32 of the Children's Act Section 32 reads:

 

(1)            

A person who has no parental responsibilities and rights in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially, and including a care-giver who otherwise has no parental responsibilities and rights in respect of a child, must, whilst the child is in that person' s care-

(a)          

safeguard the child's health, well-being and development; and

(b)         protect the child from maltreatment ,abuse, neglect, degradation, discrimination, exploitation, and any other physical, emotional or mental harm, or hazards

(2)         Subject to section 129, a person referred to in

 subsection (1) may exercise any parental responsibilities and rights reasonably necessary to comply  with  subsection  (1),  including  the  right   to consent to any medical examination or treatment of the child if such consent cannot reasonably be obtained from the parent or guardian of the child

(3)       A court may limit or restrict the parental responsibilities  and  rights  which  a  person  may exercise in terms of subsection (2).

(4)       A person referred to in subsection (1) may not-

(a)                hold    himself  or  herself  out  as  the  biological    or adoptive parent of the child; or

(b)       deceive the child or any other person into believing that that person is the biological or adoptive parent  of the child.

 

14         A care-giver is defined in s 1 of the Children's Act

 

'care-giver' means any  person  other  than  a  parent  or guardian, who factually cares for a child and includes-

(a)       a roster parent;

(b)       a person who cares for a child with the implied or express consent of a parent or guardian of the child;

(c)       a person who cares for a child whilst the child is In temporary safe care;

(d)       the person at the head of a child and youth care centre Where a child has been placed;

(e)       the person at the head of a shelter.

(f)        a child and youth care worker who cares for a chi d who is without appropriate family care in the community; and

(g)       the child at the head of a child-headed household,

 

15         The   task of a care-giver is self-evidently to care for the children  under her care. What is the content of care? Again s 1 of the Children's   Act supplies the answer.

 

'care', In relation to a child, includes, where appropriate-

(a)       within available means, providing the child with-

(i)         a suitable place to live;

(i)        living  conditions  that are conducive to the child's health, well-being and development; and

(iii)     the necessary financial support;

(b)       safeguarding and promoting the well-being of the child;

(c)      protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation aod any other physical, emotional or moral harm or hazards;

(d)      respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child's rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act;

(e)     guiding, directing and securing the child's education and upbringing, Including religious and cultural education  and  up bringing, in a manner appropriate to the child's age, maturity and stage of development;

(f)       guiding, ad vising and assisting the child in decisions to be taken by the child 1n a manner appropriate lo the child's age, maturity and stage of development;

(g)        guiding the behaviour of the child in a humane manner;

(h)       maintaining a sound relationship with the child;

(i)       accommodating any special needs that the child may have. and

(g)       generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child.

 

16         Although the CCL and most of the Counsel who appeared supported the proposition that s32 was not wide enough in its terms to empower a· care-giver under s 32(1) who Is a family member in relation to the child[7] to assist the child in her care in an action against the Fund, counsel for one of the applicants submitted that it was not.

17         As was so trenchantly observed In Potgieter v Olivier and Another,[8] the Supreme Court of Appeal provided in Natal Joint Municipal Pension Fund v Endumeni Municipality[9] an exposition of the principles of interpretation. It is a unitary exercise that requires the consideration of text, context and purpose.

18         Section 32(1) provides in terms that a person who voluntarily cares for a child must safeguard the child's health. well-being and development. Section 32(2) confers upon a voluntary caregiver the power to exercise · any parental responsibilities and rights reasonably necessary to comply with subsection (1)".

19         Section 32(2) is made expressly subject to s 129. In s 129(4), the care-giver is empowered, together with parents and guardians, to consent to the medical treatment of the child. But in s 129(5), the care-giver is omitted from the categories of persons who may consent to a surgical operation on the child.

20         A "parent or other person who acts as guardian  of a child" is expressly obliged to administer and safeguard the child's property and property interests^10[10] and to assist the child in administrative, contractual and other legal matters.[11] A "parent or other person who acts as guardian of a child" is empowered to give or refuse consent for a child to be married, adopted or obtain a passport and for a child's immovable property to be alienated or encumbered.[12]

21         I think it is significant that’s  32 is not made subject to s 18. In matters concerning a child, the child's interest are paramount. lt must surely have been present to the collective mind of the legislature that the nuclear family (ie biological mother + biological father + biological children) was and is by no means the universal norm in this country. Why would the legislature impose a purely bureaucratic obstacle in the path of the vindication of child litigants' rights? I can see nothing in the scheme of the Children's Act or i{s purposes which will he retarded ifs 32 is interpreted to permit a child's care giver to assist the child in an action against the Fund. An interpretation which recognises such a competence on the part of a care-giver will advance the purposes of the Act.

22         Whether or not this reasoning is applicable to other Instances of the exercise of parental power is a matter upon which I express no opinion. And other considerations arise when it comes to the question of protecting the award of monetary compensation to a child. In such a case, the danger of a conflict of interest between care-giver and child, and indeed between parent and child, may be significant.

23         Traditionally, curators ad litem have been appointed where 1he interests of the child conflict with those- of Its parents or where the parent was absent or unwilling to act. In the present cases, far from being unwilling to act, the relative of the each of the child plaintiffs who has applied for relief in the cases 'before me has obtained legal assistance for the child and cooperated in the conduct of the case. In some of those oases, the applicant family member  is far from the seat of the court. But that to my mind is no reason to appoint a curator, as was argued. The person offered for appointment as curator is more often than not an advocate practising at the seat of the court. As I have said, it may be that in the exercise of the attorney's mandate, the attorney will be justified in appointing an investigator or a correspondent attorney to do work whi.ch the local attorney cannot do. But  that is no justification for the appointment of a curator. In some of the cases, the applicant relative is poor or poorly educated. That may place a greater burden on the attorney who accepts the case to explain the nature of the proceedings or the wisdom of accepting a settlement offered. But the appointment of a curator will not eliminate the burden  ; it will just pass the burden from the attorney to the curator.   It is not a reason to appoint a curator at  what amounts  to public expense.

24         It is as well to make clear with what this judgment deals and does not deal. This judgment deals with applications by adult family members to appoint curators to assist the child plaintiff in the conduct of its case against  the  Fund.  All the  applicants before me are· adults,  so  this judgment does not deal with the situation where  .the care-giver is another child.13[13] This judgment does-not deal with the situation where it is sought to protect an award that ls or may be made· ln favour of the child.    Nor  does this judgment deal with the case of an  incapacitated adult who claims, or on whose behalf it Is claimed, that such adult is entitled to be compensated by the Fund.

25         To sum up: a curator ad litem will be appointed to assist a child in an action against the Fund where the best interests of the child require that such an appointment should be made. Each case must be determined on its own facts. An adult care-giver who is a family member in relation to a child is competent to assist the child In its action against the Fund. Where a conflict of interest or other good ground is shown, such a curator will be appointed. Unless and until the reasonable (and not merely speculative) possibility of a conflict a  rises, no curator will generally be required. The fact that the child’s' care-giver is a family member other than a biological parent is no ground on its own for the appointment of a curator, Nor is the fact that the care-giver is poor or ill-educated.

26         I must deal with another matter that arose during argument Section 24 of the Children's Act empowers the high court to grant guardianship to"[a]ny person having an interest in the care, well-being  and  development of a child". It seems to me that a care-giver   whose authority  to assist the child In her care is doubted or otherwise challenged would be well served by bringing an application for guardianship  under s 24. I can see no reason in principle why an adult person who has assumed the responsibility of caring for a child and who is otherwise a fit and proper guardian should not use s 24  to eliminate potential disputes  and  uncertainties  in  this  regard. The employment of s 24 would carry the collateral benefit of saving the public purse the costs of curators ad  litem who add no value to a case. I was told from the Bar that! in cases where the qualifications or the motives of the applicant for guardianship are in dispute, the family advocate will, if asked to do so by the court, investigate and report.

27         I turn to deal with the individual cases before me.

 

TR Molanfoa obo T[…] R[….] and O[….] M[….]: case no. 3198/18

28         The. applicant Is the child's maternal grandmother. There are no special circumstances which would justify the appointment of  a curator ad litem .

 

EK Myende obo P[….] M[…]: case no. 19736/17

29         The applicant is the child's mother. There are no special circumstances which would justify the appointment of a curator ad litem .

 

LM Baby obo M[….] K[….] V[….]: case no. 20763/17

30         The child's mother instructed the attorney to bring the claim on behalf of the child but has since died. The attorney himself brought the application for the appointment of a curator ad litem. But no attempt was made to stablish the circumstances of the child and the identity of the child' scare-giver. If those who seek to advance the child’s best interests consider, after making the appropriate investigations,  that the appointment of a curator is warranted. they may bring a fresh application.

 

H Grootboom obo R[….] D[….] A[….]: case no. 23715/17

31         The applicant is the child's paternal uncle. There are no special circumstances which would justify the appointment of a curator ad litem.

 

HA Madonsela obo S[….] K[….] S[….]: ca.se no. 27410/16

32         This application was withdrawn by counsel in open court.

 

NPR Jabu obo N[….] V[….] N[….]: case no. 29084/18

33         The applicant is the child's paternal grandmother. There are no special circumstances which would justify the appointment of a curator ad litem,

 

PM Makwana obo M[….] T[….] M[….]: case.no. 37218/18

34         This application was withdrawn by counsel in open court.

 

BR Moerane obo K[….] H[….] M[….]: case no. 38700/18

35         The applicant is the child's maternal grandmother. There are no special circumstances which would justify the appointment of a curator ad litem.

 

ZJ Nzilane obo E[….] N[….] K[….]: case no. 44272/17

36         The applicant is the child's aunt. There are no special circumstances which would justify the appointment of a curator ad litem.

 

ZV Qiqimane obo B[….] Q[….]: case no. 34805/18

37         The applicant is the child's mother. There are no special circumstances which would justify the appointment of a curator ad litem .

 

KV Motlokiwa obo B[….] M[….] :case no. 63778/18

38         The applicant is the child's maternal grandmother. There are no special circumstances which would justify the appointment of a curator ad litem.

 

DA Maboka obo T[….]  J[….] M[….], O[….] E[….] M[….] and E[….] P[….] M[….]: case no. 79434/17

39         The applicant is the children's maternal grandmother. There are no special circumstances which would justify the appointment of a curator ad litem .

 

KR Buthelezi obo N[….] B[….]: case no. 85091/16

40         The applicant is the children's paternal grandmother. There are no special circumstances which would justify the appointment of a curator ad litem.

 

MA Ramaila obo M[….] R[….] S[….]: case no. 88298/15

41         The applicant is the child' s mother. There are no special circumstances which would justify the appointment of a curator ad litem.

 

SJP Erasmus obo N[….] G[….] B[….] and L[….] A[….] B[….] : case no 96200/16

42         The child's mother instructed the attorney to bring the claim on behalf of the child but has since died. The attorney himself brought the application for the appointment of a curator ad litem . No attempt was made to establish the circumstances of the child and the identity of the child's care giver. If those who seek to advance the child's best interests consider, after making the appropriate investigations, that the appointment of a curator is warranted, they may bring a fresh application.

 

NW Ntshangase obo B[….] P[….]: case no. 69360/17

43         The child's mother died many years ago and the father's whereabouts are unknown . Th attorney  himself brought the application for the appointment of a  curator  ad  litem.  But  no  attempt  was  made  to establish the circumstances of the child and the identity of the child's care-giver. If those who seek to advance the child's best interests consider, after making the appropriate investigations, that the appointment of a curator is warranted, they may bring a fresh application.

 

M Chamunorwa obo J[….] M[….]: case no. 64249/15

44         The applicant is the child's guardian. He  and  the  child  live  in Zimbabwe . The  submission  on  the  applicant's behalf is  that  the distance between the seat of the court and the residence of the applicant and the child justify the appointment of a curator because the local attorney will find it difficult to take instructions. If that Is so the local attorney should appoint a correspondent or investigator   in Zimbabwe. There are no special circumstances which would justify the appointment of a curator ad litem.

 

Order of court

45         Except for those cases Indicated above which were withdrawn in open

 court, all the applications before me are dismissed. To the extent necessary and for the avoidance of doubt. leave Is granted to each of the applicants to bring a fresh application for relief in relation to the representation of the children involved.

 

 

 

NB Tuchten

Judge of the High Court

26 September 2018

 

 

For the amicus curiae:

Adv K Ozaah

Instructed by

The Centre for Child Law

Pretoria

 

For the first applicant:

Adv T Ralkane

Instructed by:

KS Dlnaka Attorneys

Pretoria

 

For the second applicant:

No appearance

 

For the third applicant

No appearance

Pretoria

 

For the fourth applicant:

Adv L Mgwetyana

Instructed by:

Cingo Attorneys

Pretoria

 

For the fifth applicant:

Adv GL Shabangu

Instructed by:

Molaudzi Attorneys

Pretoria

 

For the sixth applicant:

Adv MK Mabote

Instructed by

Ndhima Attorneys Inc

Pretoria

 

For the seventh applicant:

Adv E Moukangwe

Instructed by

Mphele -and Associates

Pretoria

 

For the eighth and ninth applicants:

No appearance

 

For the tenth applicant:

Adv M Jacobs

Instructed by

VZLR Inc

Pretoria

 

For the eleventh applicant:

Adv JW Makhubo

Instructed by

Brian Ramaboa Inc

Pretoria

 

For the twelfth and thirteenth applicants:

No appearance

 

For the fourteenth applicant::

Adv AM Jardine

Instructed by

Gouse Van Aarde Inc

Pretoria

 

For the fifteenth applicant:

Adv MH Mostert

Instructed by

Erasmus De Klerk Inc

Pretoria

 

For the sixteenth applicant:

Adv N Fourie

Instructed by

O Joubert-Attorneys

Pretoria

 

For the seventeenth applicant:

Adv B Nel

Instructed by

Gildenhuys Malatji Inc

Pretoria

 

For the Road Accident Fund:

Adv N Mokopo

Instructed by

Nozuko Nxusani Inc

Johannesburg

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: 3198/18

 

In the ex parte applications of:

 

THITHI REBECCA MOLANTOA                                                              Applicant

 

obo

 

T[….] R[….]

 

and

 

O[….] M[….]

 

and

 

OTHER APPLICANTS LISTED IN APPENDIX

APPENDIX

1          TR Molantoa obo T[….] R[….] and O[….] M[….]  . .   . . . . . .. . . . . . . . . . . . . . case no. 3198/18

2             EK Myende obo P[….] M[….] . . . . . .. …………………  . .case no. 19736/17

3.            LM Baby obo M[….] K[….] V[….] . . . . …………………... case no. 20763/17

4             H Grootboom obo R[….] D[….] A[….]  ……………………case no. 23715/17

5             HA Madonsela obo S[….] K[….] S[….]…………………….case no. 27410/16

6             NPR Jabu obo N[….] V[….] N[….] . . . . ………………. . . case no. 29084/18

7             PM Makwana obo M[….] T[….] M[….]……………….…… case no. 37218/18

8             BR Moerane obo K[….] H[….] M[….] ………………….… case no. 38700/18

9             ZJ Nzilane obo E[….] N[….] K[….] . . . . . ………….…. . . case no. 44272/17

10          N  Qiqimane obo B[….] Q[….] ……………………………..case no. 34905/18

11          KV Motlokiwa obo B[….] M[….]………………..…………..case no. 63778118

12          DA Maboka obo T[….] J[….] M[….], O[….] E[….] M[….] and E[….] P[….] M[….] . . . . …………………………………………… . . . . case no. 79434117

13          KR Buthelez i obo N[….] B[….] . . …………………….. . .. case no. 85091/16

14          MA Ramaila obo M[….] R[….] S[….]……………………….case no. 88298/15

15          SJP Erasmus obo N[….] G[….] B[….] and L[….] A[….] B[….] . . . ………………………….. . .. . .  . . . .  ......... …………….  .  case no 96200/16

16          NW Ntshangase obo B[….] P[….]. . . . . …………… . . … case no. 69360/17

17          M Chamunorwa obo J[….] M[….] ……...………….…….... case no. 64249/15

 

 

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