Section 14 of the Children Act 38 of 2005 recognises the right of children to be assisted in vindicating their rights in court and this right is also entrenched by section 28 of the Constitution of South Africa. Generally it is accepted that the biological parents or guardians of the of the child will assist the child in actions against the Road accident fund for damages arising from bodily injuries suffered by the child itself or loss of support to which the child is entitled. However it has become routine that an unopposed application will be made in court for the appointment of a curator ad litem to assist and ratify the steps already taken by child in its action and to further proceedings.
Various applications of this nature were stood down by various judges to be decided by the judge in one hearing. In the ex parte application of Thithi Rebecca Molentoa obo of two minors and various other applicants, The court held that a curator ad litem will be appointed to assist the child in an action against the Fund, where the interest of the child require such appointment and each case must be determined based on its own facts. This decision affirmed the finding in Martin NO v Road Accident Fund 2000 2 SA 1023 W, the court held that the nature of the responsibilities of the curator is to represent the child in the case then pending and to watch and protect the interest of the child in the case as a good and prudent parent would have done so and to avoid a conflict of interests between the parent and the Plaintiff child.
Accordingly the court expressed that the appointments of these curators was in itself unnecessary because it created an additional tier of paid professionals who add no value to the work done, but simply duplicate the work done by attorneys of record and advocates who are instructed by the attorneys. Furthermore the court understood that in some instances the child Plaintiff may be resident far from the seat of the court and obtaining instruction was costly and logistically difficult, however that did not necessitate the appointment of a curator. The court held that the attorneys of record can simply appoint a correspondent and/or investigator to do the work of a local agent.
Further held that attorneys who appointed curators in order to protect themselves against their negligence should the fund question their decision and authority was not a sufficient reason to appoint a curator because in any case an attorney who gives negligent advice whether to a lay client or a curator is still liable for the advice they given and appointing a curator does not protect them against that risk. Further held that in instances where the fund unreasonably refuses to recognise the authority of the attorney of record, the attorney can approach the court for a declaratory order.
Interestingly to note from the judgement in the interpretation of Section 32 of the Children’s Act which deals with the responsibilities of a care giver or anyone other than the biological parents. Most counsels had argued that section 32 was not wide enough in its terms to empower a care –giver who is a family member in relation to the child to assist the child in an action against the Fund. The court held that the intended purpose of the legislature taking into consideration the interest of the child was to recognise the competence of a care-giver in assisting the child in an action against the fund. It would not have otherwise “impose a purely bureaucratic obstacle in the path of the vindication of child litigants’ rights”, given the fact that a nuclear family is no way a universal norm in this country.
The law as it is in terms of this case, care-givers can now assist child Plaintiff’s in vindication of their rights in an action against the fund and a curator ad litem will only appointed when it is necessary and in the interest of the child, with each case determined based on its own facts. The court dismissed all the applicants’ cases after it found on a case by case that it was not necessary to appoint a curator ad litem in an action against the fund.