DE REBUS June 1st, 2014
By Maud Letzler and Viviana Vergano
The
appointment of curators is a daily occurrence in our courts and in particular
in the North and South Gauteng High Courts where the proliferation of personal
injury matters has made such appointments common place. On the other hand, in
matrimonial matters it is not utilised enough to safeguard the interests of
minor children, where such interests form the very dispute between parents (by
inference we refer to any lawful guardian as well) and require that an
independent person takes cognisance of the child’s wishes, which interests,
however, may not always be sufficiently protected by an overworked family
advocate.
A
short summary of the different bases for the appointment of curators is
detailed herein, together with an exposition of the law regulating the
appointment of curators and the duties and responsibilities that rest on such
curators by law or by inference.
The
law
A
number of writers who contributed to the Roman Dutch law from which curators
originate are referred to in Ex Parte Hill 1970 (3) 411 (SA) by Van Winsen J
such as Kaser Roman Private Law (Dannenburg’s trans) 2nd ed para 64 (iii);
Gaius Elements of Roman Law (Poste’s trans) 3rd ed p 138; and de Groot
Introduction 1.11.2.
The
common law relating to curators was preserved by the Mental Disorders Act 38 of
1916 repealed twice and currently regulated by the Administration of Estates
Act 66 of 1965. The latter Act of 1965, makes provision for the appointment of
various types of curators inter alia a curator ad litem and would not be
repeated here.
Rule
57 of the Uniform Rules of Court, deals specifically with the inherent power of
the court to appoint curators and in particular, curators to people who are
mentally incapacitated. A person who is not mentally incapacitated but still
personally or through an interested party, feels the need to appoint a curator
to manage his or her property may be declared a prodigal and a curator bonis
may be appointed without the need for a curator ad litem. This is particularly
useful in awards for damages where the amount awarded needs to be protected but
the plaintiff is not of unsound mind (see Delius v Delius 1960 1 SA 270 (N)).
It may
be useful in preparation for your duties as curator or in drafting such an
application to have sight of not only Erasmus Superior Court Practice Uniform
Rule 57 but also of LAWSA vol 3 ‘Civil Procedure’ Para 425 to 431; AC Cillier,
C Loots and HC Nel Herbstein and van Winsen: The Civil Practice of the High
Courts and Supreme Court of Appeal of South Africa 5th ed (Cape Town: Juta) p
164 – 174 and Chapter 48, which deals with this in detail; and the
Administration of Estates Act and the Mental Health Act supra.
The
duties
According
to r 57 (5) ‘Upon his appointment the curator ad litem … shall without delay
interview the patient, and shall also inform him of the purpose and nature of
the application. … He shall further make such inquiries as the case appears to
require and thereafter prepare and file with the registrar his report on the
matter to the court, at the same time furnishing the applicant with a copy
thereof.’
The
Gauteng High Courts very seldom implement the procedure set out in r 57 (5) and
it is maybe time that the courts crack down on the current and very common
practice of appointing curators on the day of trial. A recent unreported
judgment of Bertelsman J in the matter of Modiba obo Ruca v Road Accident Fund
(GP) (unreported case no 73012/13, 27-1-2014) questions this practice by
stating at para 1 ‘By avoiding or circumventing the provisions of the Rule and
the common law principles established over decades, these matters are prevented
from coming to the Master’s attention, avoiding the latter’s supervision and
scrutiny while the potential need to appoint a curator bonis or curator bonis
et personae to the individual concerned is not considered properly or at all.’
It is
noteworthy to reflect on the commentary set out in Erasmus (B1-395), relating
to the importance of the duties of a curator and the fact that because the
court relies heavily on the curator’s report that he or she is to fulfil his or
her duties with efficiency and fully with great responsibility, and in order
for the court to exercise a proper discretion in a particular case. It is the
duty of the curator ad litem, by making such inquiries as he deems necessary,
to see that the existence and extent of the patient’s mental illness are
properly investigated, and to ensure that the proprietary and other interests
of the patient are adequately protected by the terms of the order made by the
court.
The
courts have mentioned that the curator ad litem may in certain circumstances
function rather as an amicus curiae, and his or her primary function in the
present context is to ensure that the proprietary and other interests of the
patient are adequately protected (Steyn v Steyn 1972 (4) SA 151 (NC) at 151).
According
to F du Bois (ed) Wille’s Principles of South African Law 9th ed (Cape Town:
Juta), a curator ad litem has no power over the person or property of the
person whom he or she is appointed to represent, and his or her authority
extends no further than the proceedings to which his or her appointment
relates. He or she is responsible only to the court for the proper discharge of
his or her functions. See also Ex Parte Campher 1951 (3) SA 248 (C).
In the
matter of Ex Parte Glendale Sugar Millers (Pty) Ltd 1973 (2) SA 653 (N), it was
said that ‘… the duties of a curator ad litem are clearly not to be confined
to, or delayed until, an appearance in Court; the curator must investigate the
relevant facts and circumstances and apply his judgment extra forensically in
deciding what attitude he should adopt and the precise contents of his report
to the Court.’ The Sugar Millers case states further that ‘[C]urators must make
such investigations and judgments in regard to the appointment of curatores
bonis in terms of the Uniform Rules of Court.’
In the
matter of Ex Parte Campher above at p 252, the following was said: ‘The curator
will ordinarily appear on the return day of the rule if he be counsel: in the
case of other curators, appearance in person, or a written communication
addressed to the Registrar, will, in straightforward cases, normally suffice.’
Furthermore, the above case sets out that circumstances can easily be envisaged
where the services of independent experts may also be required in addition to
the services of an independent attorney. Thus, for example, it may be necessary
to test an essential link in the claim that comprises documentary evidence of
doubtful authenticity requiring the assistance of an expert in questioned
documents. In such circumstances the curator ad litem would normally make a
request to the applicant for such assistance and the applicant would, in the
majority of cases, no doubt afford all reasonable assistance. In case of a
difference of opinion regarding the necessity of such assistance, a curator ad
litem would be at liberty to apply to the court for directions in regard to
such matter.
In the
Campher matter, it was also noted by Harcourt J that an over-enthusiastic
curator ad litem may well incur criticism. The judge regarded this as an
occupational hazard of curator’s ad litem who, being responsible persons
discharging important functions to assist the court, are expected to act
responsibly.
Furthermore,
with regard the question as to whether investigations that were made, well
before a court appearance would suffer from the demerit of not being on oath,
if a curator ad litem were to have grounds to believe that this imperfection in
his ability to investigate might prejudice his ability to assist the court, he
should report this belief to the court which would, if convinced of the
disadvantage, no doubt either send the matter to trial or direct that oral
testimony should be offered. It is the duty of the curator ad litem to see that
the existence and extent of the prospective defendant’s mental illness are
properly investigated at the trial and – assuming that the plaintiff succeeds
on the merits – to do his best to ensure that the proprietary, and other
incidental, interests of the patient are adequately protected by the terms of
the order made by the court. Such functions can only be discharged by
responsible persons.
In the
case of Du Plessis NO V Strauss 1988 (2) SA 105 (A), the court commented on the
conduct of the curator ad litem, the curator’s attitude was that arguments
against the appeal had been fully advanced by the respondent and that the
Appellate Division would benefit if he adopted a ‘more objective’ approach. Van
Heerden JA held that this attitude was clearly in conflict with the duties of
the curator ad litem, and it was furthermore expected of him to advance all
possible arguments in favour of his charges.
In
Dickinson v Dickinson 1981 (3) SA 856 (W) at 857G, it was stated that the only
duty that a curator ad litem has, after his or her appointment, is to inform
himself or herself properly of the patient’s condition. He or she is clothed
with no powers whatever to represent him or her on any other basis and in any
event he or she has no power to enter into contracts on his or her behalf. He
or she can only represent him or her during such proceedings.
In the
matter of Ex Parte Comins 1951 (2) SA 249 (W), which application for the
appointment of a curator bonis was heard before Murray J, the court was asked
to stabilise the practice regarding the admissibility in such applications of
evidence by way of affidavit without the necessity of viva voce evidence in
open court to establish the inability of the person in question to manage his
or her own affairs. In the great majority of cases full evidence on this point
has already been given on affidavit by the medical practitioners at the stage
when the appointment of the curator ad litem is asked for his or her opinion.
In open court, they merely repeat such evidence and there is, normally, no
necessity for the court or the curator ad litem to examine or cross-examine
these medical practitioners further. In fact the curator ad litem, in the
proper discharge of his duty, has previously interrogated these medical
practitioners for the purpose of his report to the court.
Lastly
in a more recent judgment by Van Zyl J, in the matter of Ex parte: Futter, In
re: Walter v Road Accident Fund and Another (ECP) (unreported case no
2422/2008, 17-8-2012) it was stated by Van Zyl J that: ‘The person appointed as
curator ad litem as envisaged in Rule 57, is not appointed to simply act as
amicus curiae to assist the court in determining whether the patient is capable
or incapable of managing his own affairs, and whether the proposed curator
bonis is a fit and proper person to administer the estate of the patient. He is
appointed as curator ad litem to the patient, to act on his [or her] behalf and
to represent his [or her] interests in the litigation pertaining to the
appointment of a curator bonis to manage his [or her] estate. The appointment
itself reflects negatively on the status of the patient and his [or her] legal
capacity, not only to manage his own affairs, but also to litigate on his own’
(para 19).
Conclusion
It is
above all clear that the best interest of the patient, minor or prodigal is
what should be uppermost in the mind of the curators and it is doubtful that a
curator appointed on the day of a trial could execute his or her function
properly. Such matters should be postponed to allow the curator to properly
investigate the matter. It is also doubtful that the appointment of a curator
ad litem without the appointment of a curator bonis and/or curator ad personae
would stand the scrutiny of the court in future in light of the Modiba judgement.
In the cases of prodigals, it may be prudent to appoint a curator bonis as well
as a trustee if they cannot function as one and the same, as the appointment
will ensure that the scrutiny of the Master safeguards their interests.
A
curator should furthermore never be a creature of instructions but should
always remain independent and fiercely protective of their client’s rights
without fear of reprisal. The position is after all based on that of great
trust
Maud
Letzler LLB (Unisa) and Viviana Vergano LLM (Banking Law) (UJ) are advocates in
Johannesburg.
This
article was first published in De Rebus in 2014 (June) DR 30.
