IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE No: 13037/2009

And

JUDGMENT DELIVERED ON 07 JUNE 2011 
MANTAME, AJ:

[2]    Applicant is represented herein by Ms. Nel and Respondent is herein represented by Mr. Webster.

[4] At the time of the deceased's death, the Respondent and the deceased were involved in a relationship and had a five month old child called J-C J.

[5] At the time of the accident, the Respondent, deceased and the minor child were all travelling together. It is worth noting that though Respondent and the deceased were staying together at the Applicant's home, they were never married.

[6] Respondent and the minor child sustained injuries and the deceased died as a result of the accident.

[7] Further, it is common cause that Applicant and Respondent consulted an attorney, and in this case, the firm of Mr. Webster to institute Road Accident Fund claim for the funeral expenses, personal injury claim and loss of support

[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.

[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.

[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.

[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:

1.1	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;

1.3. 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:

2.	The costs of this application be paid by the Respondent on an attorney and client scale
3.