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[2019] ZAGPJHC 168
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P W v A W and Others (2018/47013) [2019] ZAGPJHC 168 (7 February 2019)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
2018/47013
DATE
:
7
TH
February 2019
In
the matter between:
W
,
P
Applicant
and
W
,
A
First Respondent
RITA
HENN & PARTNERS INC t/a R H P REHAB
Second Respondent
VERGANO
,
ADV VIVIANA N
O
Third Respondent
JUDGMENT
ADAMS
J
:
[1].
This is an opposed
urgent application by the applicant for an order granting her leave
to intervene as a respondent in the
ex
parte
application by the first respondent, who is the applicant in the
ex
parte
application.
On the 9
th
of
January 2019 the third respondent was appointed as
Curatrix
ad Litem
for and on behalf of M W (‘the patient’), the 18 –
year old daughter of the applicant and the first respondent,
who
reportedly is incapable of managing her own affairs due to severe
physical and mental incapacity.
[2].
In terms of the Order
of this Court (Moshidi J) of the 9
th
of January 2019, the third respondent was also directed to in due
course provide the Court with a report relating to the following
issues: the patient’s mental capacity; her ability to manage
her own affairs; and the appointment of a
curator
bonis
and
a
curator
ad personam
for
the patient. The Court also granted the third respondent, in her
capacity as
Curatrix
ad Litem
of the patient, certain powers and duties aimed at enabling her to do
the necessary investigations with a view to compiling her
report for
the Court.
[3].
The
application for the relief sought in Part B of the
ex
parte
application, which deals in the main with the appointment of the
curator
bonis
and
the
curator
ad personam
to
the patient, the court postponed
sine
die
on the
9
th
of January 2019. Part B of the notice of motion in the said
ex
parte
application
inter
alia
prays
for the granting of an order appointing specifically the first
respondent as the
curator
bonis
and
the
curator
ad personam
to the patient. It goes without saying that, having regard to the
applicable statutory framework, which governs this type of
application,
to which I shall revert shortly, the Court is not bound
to grant the relief prayed for by the applicant in Part B. That
decision
resides squarely within the discretion of the Court after
having considered the report by the
Curator
ad Litem
.
[4].
Part B of the
Notice of Motion is the portion of the application to which the
applicant objects. She has no difficulty with the
proceedings thus
far. In particular, the applicant is in agreement with the
appointment of the third respondent as the
Curatrix
ad Litem
of the patient. She does however vehemently intends opposing the
first respondent’s application to have himself appointed
as the
curator
bonis
and
the
curator
ad personam
to the patient. And, in order to have her voice heard on that issue,
which, needless to say, is of importance to her and understandably
so, the applicant has launched this urgent application for leave to
intervene in the proceedings.
[5].
The applicant
simply asks for leave to intervene as a respondent in the
ex
parte
application, which would then convert the said application into a
full blown opposed motion. She would like to be heard in the
matter
in relation to the appointment of the
curator
bonis
and
the
curator
ad personam
and the person or persons to be considered for these appointments,
because, so it is contended on behalf of the applicant, she
is after
all the biological mother of the patient and has been for long
periods of time the caregiver of the patient. She therefore
has an
interest in an application for the appointment of these curators.
[6].
On first
principles, there can be little doubt that the applicant is entitled
to intervene in the
ex
parte
application. Her direct and substantial interest in that application
is self – evident and lies therein that she surely must
have a
say in the appointment of curators to her biological daughter.
[7].
The
difficulty, however, which the applicant has relates to the procedure
which she followed. In my judgment, she was ill –
advised to
move this application for leave to intervene in the main
ex
parte
application. I am of the view that the application for leave to
intervene is un – procedural, and I say so for the following
reasons.
[8].
The
ex
parte
application of the first respondent is in terms of the provisions of
Uniform Rule of Court 57, which, in my view, sets up a cost
and time
effective procedure, which is aimed at expeditiously and efficiently
having appointed to a person incapable of managing
his or her own
affairs curators to assist such an individual in running his or her
affairs. The procedure envisaged by the Rule
is, in my judgment,
inquisitorial in nature and the spirit of the Rule discourages
protracted and adversarial exchanges between
interested parties.
[9].
The important
portions of Uniform Rule 57, under the heading ‘
De
lunatico inquirendo
,
appointment of curators in respect of persons under disability and
release from curatorship’, provides as follows:
‘
(1)
Any person desirous of making application to the court for an order
declaring another person (hereinafter referred to as ‘the
patient’) to be of unsound mind and as such incapable of
managing his affairs, and appointing a curator to the person or
property of such patient shall in the first instance apply to the
court for the appointment of a
curator
ad litem
to such patient.
(2)
Such application shall be brought ex parte and shall set forth fully—
(a)
the grounds upon which the applicant claims
locus standi
to
make such application;
(b)
to (e) … …
(f)
the name, occupation and address of the respective persons suggested
for appointment by the court as
curator
ad litem
,
and subsequently as
curator
to the patient’s person or property, and a statement that these
persons have been approached and have intimated that, if
appointed,
they would be able and willing to act in these respective capacities.
(3)
… …
(4)
Upon the hearing of the application referred to in subrule (1), the
court may appoint the person suggested or any other suitable
person
as
curator ad litem
, or may dismiss the application or make
such further or other order thereon as to it may seem meet and in
particular on cause shown,
and by reason of urgency, special
circumstances or otherwise, dispense with any of the requirements of
this rule.
(5)
Upon his appointment the
curator ad litem
(who shall if
practicable be an advocate, or failing such, an attorney), shall
without delay interview the patient, and shall also
inform him of the
purpose and nature of the application unless after consulting a
medical practitioner referred to in paragraph
(b) of subrule (3) he
is satisfied that this would be detrimental to the patient’s
health. 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. In his report the
curator ad litem
shall
set forth such further facts (if any) as he has ascertained in regard
to the patient’s mental condition, means and
circumstances and
he shall draw attention to any consideration which in his view might
influence the court in regard to the terms
of any order sought.
(6)
… ….
(7)
In his report the Master 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 the patient, and he
shall
further make such recommendations as to the furnishing of security
and rendering of accounts by, and the powers to be conferred
on, such
curator as the facts of the case appear to him to require. The
curator ad litem
shall be furnished with a copy of the said
report.
(8)
… ...
(9)
At such hearing the court may require the attendance of the
applicant, the patient, and such other persons as it may think fit,
to give such evidence viva voce or furnish such information as the
court may require.
(10)
Upon consideration of the application, the reports of the
curator
ad litem
and of the Master and such further information or
evidence (if any) as has been adduced
viva voce
, or otherwise,
the court may direct service of the application on the patient or may
declare the patient to be of unsound
mind and incapable of
managing his own affairs and appoint a suitable person as curator to
his person or property or both on such
terms as to it may seem meet,
or it may dismiss the application or generally make such order
(including an order that the costs
of such proceedings be defrayed
from the assets of the patient) as to it may seem meet.
(11)
Different persons may, subject to due compliance with the
requirements of this rule in regard to each, be suggested and
separately
appointed as curator to the person and curator to the
property of any person found to be of unsound mind and incapable of
managing
his own affairs.
(12)
… ...’
[10].
I have cited
the provisions of this rule extensively in order to demonstrate the
point made
supra
that the first respondent’s
ex
parte
application is of an inquisitorial nature. This rule provides for the
various steps that must be taken in an application for the
appointment of a curator to the person or property of a person.
[11].
The provisions
of the rule are peremptory and, other than in the circumstances
provided for in subrule (4), the failure to observe
the provisions of
the rule renders an application defective to the extent that such
application cannot and should not be entertained
at all.
[12].
A
curator
ad litem
must be of sufficient experience, proven expertise and good standing
to ensure that the interests of the patient are best served.
It is
important that the
curator
ad litem
is professionally independent. In that regard, section 57
specifically provides that he or she should, if practicable, be an
advocate,
as is the case
in
casu
.
Advocates are as members of a referral profession practising
individually – generally regarded as being professionally
independent as they are not beholden to clients other than in respect
of the particular brief that has been entrusted to them.
[13].
The position
of a
curator
ad litem
is one of considerable responsibility and the Court is greatly
dependent upon the proper exercise of a curator’s duties in
arriving at a just decision in any particular case. It is the duty of
the
curator
ad litem
,
by making such enquiries 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.
[14].
From the aforegoing it is clear that the
applicant’s application for leave to intervene is not
sanctioned by the letter and
the spirit of Rule 57, which is designed
as an expeditious mechanism for the appointment of curators to the
person and property
of individuals incapable of managing their
affairs. The correct approach by the applicant would have been for
her to approach the
Curatrix ad Litem
,
and to advise the Curatrix of her desire to be appointed as a
curator
bonis
and
curator
ad personam
of the patient. The
Curatrix would then have been under a duty to consider and to have
regard to such a request and to the motivation
by the applicant.
[15].
This does not
however mean that the applicant, whilst she acted un –
procedurally, did so
mala
fide
or in
total disregard of the interest of the patient. I have no doubt that
in bringing this application for leave to intervene,
the applicant
intended acted in the interest of the patient. That is commendable
and is an issue which, in my judgment, affects
the cost order which
should be granted. Additionally, the applicant’s intention was
only to have her voice heard in relation
to issues involving the
wellbeing of her daughter.
[16].
Therefore,
whilst her urgent application stands to be dismissed, I intend, in
the spirit of the provisions of Uniform Rule 57 and
in the interest
of justice, to order that her submissions in this application be
considered by the
Curatrix
ad Litem
when compiling her report, and to specifically have regard to her
desire to be appointed as a curator to the property and person
of the
patient.
Costs
[17].
The general
rule is that cost should follow the suit.
[18].
In the
circumstances of this matter, I am of the view that each party should
bear his / her own cost of this urgent application.
That, in my
judgment, would be just and equitable.
Order
In
the result, I make the following order:-
1.
The applicant’s urgent application
for leave to intervene in the
ex parte
application of the first respondent be and is hereby dismissed.
2.
The applicant’s application for leave
to intervene, including the founding affidavit and the annexures
thereto, as well as
the first respondent’s opposing affidavit
and the annexures thereto shall form part of and remain part of the
record of the
ex parte
application.
3.
In compiling her report in terms of Rule
57(5), the third respondent (the
Curatrix
Ad Litem
) shall have regard to, take
cognisance of and consider the contents of the applicant’s
application for leave to intervene,
including the founding affidavit
and the annexures thereto, as well as the first respondent’s
opposing affidavit and the
annexures thereto.
4.
Each party shall bear her / his cost of
this urgent application for leave to intervene.
_________________________________
L R ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD
ON:
5
th
February 2019
JUDGMENT
DATE:
FOR
THE APPLICANT:
7
th
February 2019
Adv
L Grobler
INSTRUCTED
BY:
Bose
Attorneys Incorporated
FOR
THE FIRST RESPONDENT:
Adv
Sandra Freese
INSTRUCTED
BY:
Alan
Josè
Incorporated