South Africa: Western Cape High Court, Cape Town

You are here:  SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2011 >> [2011] ZAWCHC 254

| Noteup | LawCite

---

September v Harrison (13037/2009) [2011] ZAWCHC 254 (7 June 2011)

Download original files PDF format RTF format

[9] As the Applicant was and is the primary caregiver of the minor child, she has not been advised as to how this award would be managed, and further how is Respondent going to contribute to the well-being of the minor child.

[10] This court, has only been advised that some clothes and a bicycle was sent to the Applicant's house sometime in 2009 for the minor child. There has not been any structural maintenance of the child by the Respondent who claimed his bona fides towards the minor child. In the eyes of this court, it is not enough for the Respondent to allege that "some of the money has been put in the bank account."

[11] Ms Nel contended that, what fuelled this application is that Respondent has not been acting in the best interest of the minor child. It is the Applicants intention that the minor's rights have to be protected at all times.

[12] Further, in principle, Applicant and Respondent are in agreement on the appointment of a curator ad litem, but his mandate should be confirmed only to the compilation of a report in terms of Rule 57 (5) at (ii) in order to report on whether he is capable of managing his son's affairs and, if a curator bonis should be appointed.

[13] On the other hand. Applicant contends that exceptional circumstances exist for the appointment of a curator ad litem as the previous behaviour displayed by

Respondent, in taking monies due to the minor child and not handing over those monies to the minor, or investing them, nor giving proper accounting of where such funds may be, raises some concern.

[14] There is still further claim/s that still needs to be prosecuted or are in the process of prosecution with the Road Accident Fund, and if an award is made, the best interest of the child needs to be taken care of.

[15] This court, as the upper guardian of all minors has to exercise its discretion judicially in making sure that the minors interests are protected at all costs.

[16] Mr. Webster constantly argued the rights that the Respondent is vested with in terms of Section 21 of the Children's Act. Those rights are not disputed by this court whatsoever. He has not at all taken this court into confidence and in proving that Respondent's bona fides are not questionable towards the minor child.

[17] This court has considered alt the reports filed herewith, making some recommendations on this application. The final report of the family advocate after evaluating the needs of the minor child support the appointment of a curator ad litem.

[18] Consequently, given the history of the Applicant and Respondent, this court is convinced that a third person in the form of a curator ad litem should be appointed in order to safeguard the interest of the minor child. This court cannot loose sight of the fact that we are dealing with a toddler who is 3 and a half years old, who has lost one of his parents, and now leaving with the grandparent. The role of the surviving biological parent is not clear towards his welfare and upbringing.

[19] At this stage, I will not deal with issues of contact, care and custody, as they are not before this court

[20] As such there will be no order against the Road Accident Fund, as the Road Accident Fund is not before this court either.

[21] On the issue that was taken by Mr. Webster about the affidavit annexed to the notice of motion, and that it has not been properly commissioned, I agree with him in as far as that is concerned. At the same time, there has been no application to strike out its contents. This court has a discretion to condone such errors, and I hereby condone this error

[22] After considering the arguments by the parties. I therefore make the following order:

(1) Adv. ALLAN LANGE is appointed as curator ad litem to the minor to:-

1. assist and represent the minor child's in matters of litigation,
   including the Road Accident Fund claim or any other claim that may
   arise as a result of the accident in which the minor child was injured
   and in which the minor child's mother was deceased on the 15
   December 2007;

1.2 the curator ad litem is authorized to take all steps necessary on the
minor child's behalf to lodge, demand, ratify, institute / prosecute, pursue, defend and / or settle the minor's claim as aforesaid;

1.3. to investigate and report on the claim paid out to the Respondent on or about November 2008, for the claim for the minor child's personal injuries sustained in the aforesaid collision, and to investigate where the proceeds of such claim are and to ratify and take all steps necessary to establish the validity of the settlement of the minor's claim:

1.4. to investigate and report on the necessity and / or desirability of appointing a curator bonis to assist the minor child in the administration of any monies received in respect of the aforesaid claims.

2. The costs of this application be paid by the Respondent on an attorney and client scale

3. The costs of the curator ad litem shall be paid out of the minor child's estate, without prejudice to any claim for their recovery against the Road Accident Fund or any other person arising from the aforementioned contemplated claims.

MANTAME, AJ