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2024
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[2024] ZAECQBHC 20
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C R v T N (4327/2016) [2024] ZAECQBHC 20 (19 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
NUMBER.:
4327/2016
In the matter between:
C[...]
R[...](previously V[…]
D[…])
Applicant
And
T[...]
N[...]
Respondent
IN RE:
T[...]
N[...]
Applicant
And
C[...]
R[...]
Respondent
JUDGMENT
Beshe J
[1]
This
is an application for the appointment of Advocate HanN[...]ie Bakker
as the curator ad litem for a minor child I shall refer
to as AM, and
that the curator ad litem be directed to investigate the best
interest of the child and any other relevant factor
the curator may
deem fit. Further that the office of the Family Advocate be directed
to assist the curator in her investigation.
The application is a
prelude to Part B thereof. In Part B the applicant, who is the mother
of the minor child will be seeking,
inter alia, an order granting her
sole parental rights and responsibilities as well as sole
guardianship over the child as contemplated
in Section 18 of the
Children’s Act.
[1]
That
the applicant be permitted to amend the names of the minor child
without the consent of the respondent in terms of Section
24 (1) and
25 (1) (c) of the Births and Deaths Registration Act.
[2]
Parties
[2] The
applicant and the respondent are the biological parents of the minor
child who were never married.
The application
[3] The
matter appears to have a long-convoluted history. I do not think it
will serve any purpose to go
through the history for purposes of this
judgment. The application itself seems to be a simple and straight
forward one. Simply
the appointment of Advocate Bakker as a curator
ad litem to investigate what will be in the best interest of the
minor child in
respect of the orders the applicant will be seeking in
Part B of the application. The office of the Family Advocate is
normally
requested to conduct investigations into what will be in the
best interest of the minor child. Applicant, and this seems to be
common cause, points to difficulties the Family Advocate’s
office has encountered in dealing with this matter, hence the
application for a person not attached to the Family Advocate’s
office, who will nonetheless be assisted by the Family Advocate.
Advocate Bakker has consented to act as a curator ad litem for the
minor child.
The opposition to Part
A of the application
[4] Respondent’s
main reason for opposing the application (Part A thereof) is that a
curator ad litem
was appointed for the minor child by the Children’s
Court in respect of case number 14/1/4-01/2023. Respondent however
complains
that that curator ad litem does not act in the best
interest of the minor child. Further that that curator as litem
should have
been cited as a party and given an opportunity to respond
to the proposal that they should be replaced. And furthermore, that
this
application should be serving before the Magistrates’
Court where the curator ad litem was appointed. In his opposing
affidavit,
respondent states that:
‘
49.1. I personally
do not have any faith in the legal fraternity. I have many reasons.
Any investigation undertaken by HanN[...]ie
Bakker whereby I am
involved/included, I oppose.’
[3]
Applicant’s
reply
[5] I
will in this regard also confine myself to those parts of the
affidavit that relate to relief sought
in Part A. According to the
applicant, the curator ad litem appointed for purposes of the
Children’s Court matter is irrelevant.
This application relates
to an investigation for purposes of Part B of the application. It is
further contended that Advocate Bakker
is a well respected and senior
legal practitioner with more than 30 years legal experience.
Submissions of an
alternative curator ad litem
[6] During
argument counsel for the applicant mentioned that should the court
not be amenable to appointing
Advocate Bakker in light of
respondent’s objection to his appointment, Attorney Judy Theron
is suggested as a suitable alternative
to Advocate Bakker.
[7] Respondent’s
counsel had during argument pointed out that Advocate Bakker was
involved at the New
Law Court when the applicant was wrongfully
brought before court as an accused. Respondent raised other reasons
why this application
is, according to him, an abuse of the court
process. Namely previous “extant orders” etc. In my view,
if a curator
ad litem is appointed he/she will investigate all those
aspects.
[8] Having
heard the parties, I reserved judgment intending to make a ruling the
following day. Applicant’s
counsel addressed a letter to the
Deputy Judge President regarding the alternative curator ad litem
suggested. The correspondence
was forwarded to me. I then invited the
parties to submit supplementary/submissions in respect of the
suggested curator ad litem
candidate. Ms Theron, who was suggested as
an alternative curator ad litem has consented to being appointed as
one. Her Curriculum
Vitae has also been filed together with
applicant’s supplementary submissions.
[9] In
his supplementary submissions, respondent states that he stands by
his opposition to the application,
mainly that the Children’s
Court is the right forum to deal with the 2013 matter until it is
finished. He also states that:
‘When it comes to who to
appoint, I do not deal with legal people except in a hostile way . .
. . . . Obviously while the
process is on and going forward the kid
is entitled to and will be better off having a separate
representative . . . . .’
Regarding Ms Theron, he does not
raise any objection save to state that her Curriculum Vitae is one
thing, for him it is about
how she applies it.
[10] I
am also satisfied that it will be appropriate for a curator ad litem
to the minor child to be appointed
for purposes of conducting an
investigation as to what will be in the best interest of the minor
child vis-à-vis the relief
sought in Part B of the
application. I am however of the view that in light of the concerns
or misgivings expressed by the respondent
about Advocate Bakker’s
appointment, she will not be an appropriate person to appoint as a
curator ad litem. Ms Theron has
deposed to an affidavit wherein she
states that she does not know the applicant or respondent and has hot
had any dealings with
any of the parties or the minor child
concerned. I am satisfied that Ms Theron will be an appropriate
person to be appointed as
a curator ad litem for the minor child and
conclude the investigation descried in the notice of motion in Part
B.
[11] Accordingly,
an order in the following terms will issue:
1. That Attorney Judy
Theron, an admitted attorney of the High Court of South Africa,
practising as such and in her capacity as
director of Rushmere Noach
Incorporated Attorneys, with premises situated at Greenacres,
Gqeberha be and is appointed as the curator
ad litem for Amore Duifie
N[...] (the minor child born on 12 June 2010) and she is hereby
requested and directed to investigate
the best interest of the minor
child and any other factor which she may deem relevant as
contemplated in sections 6, 7, 10 and
21 of the Children’s Act,
38 of 2005 read with
sections 24
and
25
of the
Births and Deaths
Registration Act, 51 of 1992
and to report in writing to this
Honourable Court on the relief sought in Part B of the Notice of
Motion dated 9 May 2022 on a
date to be allocated in the future by
the Registrar of Court for the hearing of Part B of the application.
2. That the office of the
Family Advocate is hereby requested and directed to assist the
curator ad litem in her appointment and
investigation into the relief
sought in Part B of the Notice of Motion dated 9 May 2022.
3. That, upon conclusion
of the report of the curator ad litem, prayer 3.1 supra, and after
considered the report and recommendation
of the curator ad litem, the
office of the Family Advocate is hereby requested and directed to
investigate the relief sought in
Part B of the Notice of Motion dated
9 May 2022 and to report and make a recommendation on it to this
Court, addressing specifically
the best interests of the minor child,
Amore Duifie N[...], born 10 June 2010.
4. That leave is granted
to the applicant to supplement her founding affidavit, within 3
(three) weeks upon the receipt of the curator
ad litem’s report
and recommendation and the report and recommendation of the office of
the Family Advocate. It is further
ordered that the period of 3
(three) weeks is to be calculated from date of receipt of the Family
Advocate’s report.
5. That leave is granted
to the respondent to supplement his answering affidavit, within 3
(three) weeks upon the receipt of the
applicant’s supplementary
affidavit. It is further ordered that the period of 3 (three) weeks
is to be calculated from date
of receipt of the applicant’s
supplementary affidavit.
6. That the relief sought
in Part B of the Notice of Motion, dated 9 May 2022 is herewith
postponed sine die pending the investigation
and recommendation of
the curator ad litem and the office of the Family Advocate, as
ordered hereinabove.
7. Costs of the hearing
on 15 February 2024 are ordered to be costs in the main application.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For the Applicant
: Adv: M Veldsman
Instructed by
: ANTHONY-GOODEN
INCORPORATED
9 Bird Street
Central
GQEBERHA
Ref: JAG/sn/J07609
Tel.: 041 – 582
5150
For the Respondent
: Ms. J N[...]
Instructed by
:
JANICE
N[...] ATTORNEYS
18 Albert Street
Sydenham
GQEBERHA
Tel.:
078
683
8268
Date Heard
: 15
February 2024
Date
Reserved
:
15 February 2024
Date
Delivered
:
19 March 2024
[1]
Act
38 of 2005.
[2]
Act
51 of 1992.
[3]
Page
110 of the paginated papers – Main Index.