While most of us are familiar with the concept of appointing a curator for people who are unable to conduct their own litigation or to handle their own affairs all in all, we may not be aware that there is an extensive procedure to be followed before one can be appointed as a curator or we are just oblivious to the procedure like the practitioners in matter of Sibusisiwe Ruca v Road Accident Fund (GP) (unreported case no 73012/13, 27-1-2014). There is a spectrum of curators, however this article will only focus on people who require the assistance of a curator as a result of having sustained severe head and brain injuries in a motor vehicle collision.
This article focuses the circumvention of the provisions of Rule 57 of the Uniform Rules of Court by practitioners while dealing with the appointment of curators. This was extensively dealt with in the Ruca-matter. A summary of the facts of this case are as follows:
The patient, Ruca, had been involved in a collision on the 28th of November 2009. He had suffered a severe head injury with brain damage, facial bruises, a right ear injury and whiplash injury to the neck. The patient had been transferred to Groote Schuur Hospital on the, upon examination dr. Peter Mitchell recorded that the patients Glasco Coma Scale was 3/15, a reading that is in itself indicative of severe traumatic effects on the brain.
The patient had been examined by various experts opined as follows:
Dr Mokgokong, the Plaintiff’s neurosurgeon, stated that the head and brain injuries suffered by the plaintiff were severe and that there would be severe long term mental and behavioural changes resulting from the accident. He further stated that the patient’s head and brain injury was so serious that it took a full year to recover sufficiently to recognise his family members and to communicate intelligently with them. He also suffered severe post-traumatic amnesia.
The defendant’s neurosurgeon, Dr Segwapa, examined the patient and concluded that he had suffered severe brain injury, commenting that he would not be able to handle his own affairs.
A consulting clinical psychologist, Dr Gladys Maluleke recorded that “he is independent in self-care and can look after himself. He can distinguish coins from banknotes, but he is confused when he has to count a lump sum of money. He relates well with his family. He needs assistance to manage, plan, think and run his life and he relies on his mother for that.”
The matter was brought before court and settled. Upon settlement, the issue was raised as to whether the patient would be able to handle his own affairs.
It was then decide that a curator ad litem should be appointed on behalf of the patient, since both the medical experts and his mother are of the view that he will not be able to handle his own affairs.
Bypassing the rules and the independence of a curator
The court raised the question of whether the patient was in a position to appreciate the nature and extent of the proposed settlement and whether he would be able to manage the funds to be awarded to him and further queried the procedure followed when deciding that counsel who was representing the patient on first appearance be appointed as his curator.
When pressed for answers not one of the three advocates was able to supply the court with a satisfactory answer. Nor were the three able to deal with the court’s question whether the proposed curator’s independence had not been irrevocably compromised by his prior association with the patient’s legal representative, not one of the three considered the applicability of Rule 57 to the appointment of the proposed curator, and did not seem to be aware of its provisions. Application for appointment of advocate R as curator was dismissed.
Upon return to court on the 2nd of December 2013 the patient’s attorney of record applied to be appointed as the patient’s curator ad litem. He motivated his application with the help of his neurosurgeon’s report, quoting the doctor’s statement that the patient would require the assistance of a curator as he is unable to handle his own affairs.
The court raised the same question, stating that the attorney had failed to deal with patient’s incapacity to deal with his own affairs and whether or not this extended to his ability to understand the proceedings or not. The court stressed in this regard that “when an application is made to appoint a legal representative as a patient’s curator ad litem, that representative should know if there is a need to address the issue of whether the patient requires a curator to assist in dealing with his personal or financial affairs.
In the matter of Ex Parte Futter 2012, the court dealt with the issue mentioned supra and stated that “…a court will not appoint a curator until it is satisfied that the patient needs to be protected against loos that would be caused if the patient is unable to manage his affairs.” This emphasises the idea that the curator must address the issue of whether the patient needs a curator to manage all or part of his affairs.
Circumventing the Master’s supervision
With regard to avoiding the master’s supervision the court stressed that “the Master’s jurisdiction is not determined by the jurisdiction of the court, but by the provisions of the Administration of Estates Act 66 of 1965. That the
referral of the report to the Master is obligatory as decreed by sub-rule 57(6). In this regard the court, in the matter of Molatudi v Road Accident Fund  ZANWHC 6 (20 May 2010), said that:
“Rule 57(6) prescribes that, the report of the curator ad litem as well as the documents filed in terms of 57 (2) and (3), shall be submitted to the Master of the High Court for consideration and report to the court. Rule 57(7) provides that the Master, in his report, shall as far as he is able, comment upon the patient’s means and general circumstances, and the suitability or otherwise of the person suggested for appointment as curator to the person or property of patient.”
The Master exercises control over curators, executors and trustees, the powers to do so having been conferred by the Administration of Estates Act and Trust Property Act.
One can conclude from the discussion supra that to an extent the court was not challenging the patient’s capability of managing his own affairs or having an unsound mind all in all, but the circumvention of Rule 57. Whether it was correct for the attorney and counsels involved in the matter to deal with such a sensitive matter in the way they did, whether it was proper for the practitioners to avoid a thorough inquiry into the appointment of a curator.
It is absurd for the practitioners involved in the Ruca-matter to even mention that the practice of avoiding the provisions of Rule 57 is trite in both the North Gauteng and South Gauteng High Court divisions. It cannot be acceptable that this extensive and thorough procedure be avoided as the patient loses his independence and someone must now make decisions for him (who oversees this process if the rule is circumvented?). It goes without saying that there has been gross negligence in both divisions in the past years and we as practitioners need to jettison it.
by Sada Raulinga