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[2012] ZAFSHC 126
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Molete v MEC for Health, Free State (2155/09) [2012] ZAFSHC 126 (22 June 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 2155/2009
In
the matter between:
MICHAEL MOLETE
…..........................................................
Respondent
and
MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE HEALTH,
FREE STATE
….......................................
Applicant
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD ON:
28 MAY 2012
_____________________________________________________
DELIVERED ON:
22 JUNE 2012
_____________________________________________________
[1] These are motion
proceedings. The applicant applies for the appointment of curators
for the dual purpose of firstly having the
minor child legally
represented and secondly his estate separately administered by an
individual other than any of his biological
parents. The respondent
vigorously opposes the application. The master abides.
[2] The facts of the
matter were fully set out in the main judgment which will be
simultaneously delivered together with this subsidiary
judgment. I do
not intend repeating them here. In brief, the minor child fell out of
the tree. He sustained a fracture of the left
forearm and a
dislocation of the left elbow. There was a misdiagnosis of the
minor’s injury. On behalf of the minor, the
respondent
instituted a claim in the total sum of R21 million against the
applicant. The applicant conceded liability.
[3] No evidence was led
as regards the merits but was as regards the quantum. The minor’s
arm was so impaired that he suffered
rotational deformity. Physically
he is now impaired. I was satisfied that the physical impairment
constituted permanent disability
and that a total award of ±
R2,5 million would represent a fairly reasonable compensation to the
minor.
[4] The initial relief
sought in the current application is fully set out in annexure “a”
to the notice of motion. In
a nutshell the applicant seeks to have
the compensation to be awarded for the benefit of the minor by virtue
of the main litigation
between the parties paid over to the master
and held in the Guardians Fund pending the outcome of this two-legged
application for
the appointment of the curators. The principal relief
sought is to have a senior counsel appointed as curator
ad litem
on behalf of the minor as a prelude to the appointment of a
curator
bonis
in accordance with the second draft order, annexure “b”,
to the notice of motion and to have the costs hereof made costs
in
the second leg of the current application.
[5] In the founding
affidavit, the applicant’s deponent stated that the purpose of
the current application was to safeguard
the interests of the
aforesaid minor by, among others, appointing a curator
ad litem
to protect an award which was expected to be made at the end of the
trial for the benefit of the minor.
[6] In the answering
affidavit the respondent denied the allegation that the applicant was
impelled by genuine and honourable motive
to safeguard the minor’s
interests. He alleged that the interests of the minor were not in
jeopardy whatsoever. According
to him the application amounted to an
unsubstantiated and unwarranted interference with his parental sights
as the biological father
and natural guardian of the minor. He state
that the application was premised on the erroneous assumption and
prejudiced contention
that parents on the lower end of the social
spectrum were less responsible and able than those in the higher
social end. The latter,
he asserted, lived in more privileged
circumstances than the former. He asserted further that, since the
application was based
on incorrect facts and actuated by social
prejudice, it had absolutely no foundation in fact and in law.
[7] In the replying
affidavit the applicant denied the respondent’s allegation that
the application had no legally firm foundation.
The applicant
specifically denied the allegation that the minor’s parents
were discriminated against on the ground of their
low social
lifestyle or station in society. It was the applicant’s
contention that the body of child law seeks to have all
children,
irrespective of their social background, equally treated and
protected.
[8] There were certain
undisputed facts. The respondent’s surname and the minor’s
surname. There was no evidence whatsoever
led by any of the parties
as regards the substantive merits of the claim. The applicant
admitted that her department of health
was liable to pay compensation
for the minor’s benefit. The respondent does not suffer from
any disability whatsoever. The
beneficiary of the award is still
under the legal incapacity of minority. His parental dependence will
endure for the next eleven
years. The respondent is not gainfully
employed on permanent basis. He has entered into contingency
agreements with his lawyers.
[9] The respondent’s
attorney is currently under police investigation, which was seemingly
initiated by the Road Accident
Fund in connection with some 34 third
party claims. The Guardian Fund, which functions as a fiduciary
investment vehicle under
the auspices of the Master of the High Court
administers the fiduciary funds, entrusted to it for the exclusive
benefit of certain
persons living with disabilities, such as minors,
free of any administration charges. There are discrepancies in some
of the information
the respondent gave to the various experts. So
much about the common cause.
[10] Now the disputed
factual allegations. The respondent denied the purpose of the
application, the soundness of its factual and
legal foundation, the
need to appoint curators, the allegation that the minor’s
interests were at risk if the future administration
of his estate was
left in the hands of his parents and the applicant’s allegation
that the minor was not his biological child.
[11] In the replying
affidavit the applicant persistently denied that the respondent was
the minor’s biological father; that
the respondent and the
alleged lady were legally married to each other; that they were the
biological parents of the minor; that
no reason existed, as the
respondent alleged, for the applicant’s concern about the
manner in which the minor’s funds
would be dealt with; that the
proposed creation of a trust by the respondent’s attorney and
its management by a bank appointed
trustee would adequately protect
the interests of the legally unrepresented minor against financially
burdensome and disadvantageous
decisions by the respondent, the
attorney and the proposed trustee; that a curator(s) would not seize
all the powers of the minor’s
natural guardians and singularly
decide what he considers good or not for the minor; that the only
basis for the launch of the
current application was the wrong
perception that the funds would not be properly expended for the
minor’s benefit because,
as the applicant alleged, his parents
were unemployed and that the applicant was unfairly influenced by the
low level of education
of the minor’s parents or their low
social standing.
[12] The issue in the
case is whether or not, on the peculiar facts of this particular
matter, a proper case has been made out to
deprive the child’s
parents and natural guardians of their right to administer the estate
of their child notwithstanding
their ability and willingness to do so
without the interference of an outsider such as a curator or the
master.
[13] Some of the
applicable principles of child law need to be restated. The court is
the upper guardian of all children and is
obliged to see to it that
the best interests of any child are meaningfully protected wherever
necessary. Every child has the right
to have a legal practitioner
assigned to him or her by the state and at the state expense, in
civil proceedings affecting such
child, if substantial injustice
would otherwise result - section 28(1) 1996 Republic of South Africa
Constitution. The best interests
of a child are of paramount
importance in every matter concerning a child – section 28(2).
[14] The costs relative
to the appointment of a curator
bonis
as well as the curator’s
future remuneration for the running of the victim’s affairs can
be quantified and included
as part of the global compensation awarded
in favour of the victim if the appointment of a curator is an
unavoidable result of
the injuries since the quantum of the damages
awarded would otherwise be diminished by the costs of appointing and
later remunerating
such curator –
REYNEKE v MUTUAL
&FEDERAL INSURANCE CO LTD
1992 (2) SA 417
at 419H –
I and the authorities there cited.
[15] In the case of
EX
PARTE
OPPEL & ANOTHER
2002 (5)
SA 125
(C) at 129G – H the court cautioned that because of the
nature of the inroads curatorship makes into the relationship between
parent and child a court should be loathe to grant an application for
the appointment of a curator
bonis
to a minor’s estate
unless it was satisfied that a minor’s parent was incapable to
manage such an estate.
[16] It has been held on
more occasions than one that a proposed curator should preferably be
someone completely independent and
outside the radar of local
influence –
EX PARTE
MARITZ;
EX PARTE
DE KLERK
1968 (4) SA 130
(C).
[17]
Section 9
of the
Childrens’ Act 38 of 2005
lays down the salient norm contained
in the constitutional imperative that in all matters concerning the
protection, care and well-being
of a child, the supreme standard that
the child’s best interest is of paramount importance must be
applied.
[18]
Section 15
of the
Childrens’ Act 38 of 2005
obliges almost everyone to act in the
interests of a child in matters involving the health and well-being
of a child.
[19] The applicant sought
to have curators appointed and relied on a few grounds to justify the
application. The first ground relied
upon was that the respondent had
no
locus standi
to sue the applicant on behalf of the minor.
The contention of the applicant, which was raised during the course
of the second
phase of the hearing viz the adjudication of the
quantum, was that seeing that the respondent, as the plaintiff, did
not testify
during the first phase of the civil trial viz the
substantive stage, there was no evidence of the minor’s
parenthood. The
lack of such evidence prompted the applicant to
contend that the respondent was not entitled to act in the alleged
representative
capacity as the father and natural guardian of the
minor and to receive the expected award on behalf of the minor.
[20] The respondent’s
marital status was also under attack. The applicant bemoaned that
there was no averment in the particulars
of claim that the respondent
was married to the minor’s mother, whoever she was (para 22,
founding affidavit).
In the answering
affidavit the respondent averred that he and the minor’s mother
were spouses (para 1 answering affidavit).
In the replying affidavit
the applicant persisted with the denial of the respondent’s
marital status (para 15, replying affidavit).
[21] A marriage
certificate, marked annexure “mm1”, was attached to the
respondent’s answering affidavit. The
document certifies that
the husband is a certain Tefo Michael Molete whose national identity
number is given as 691101 5344 08
0. It also certifies that the wife
is a certain Thembi Mariam Maseko whose national identity number is
given as 751010 1369 08
1. The place of the couple’s marriage
is given as Johannesburg and the date of the marriage as 10 September
2004.
[22] The respondent
averred that he was the husband referred to in the aforesaid marriage
certificate, that he was commonly known
as “Michael Molete”;
that he instituted the action under such name but that his full and
formal names were “Tefo
Michael Molete”.
[23] I accept that the
names “Tefo” and “Michael” are the first and
second names of the plaintiff. It follows,
therefore, that Tefo
Michale Molete and Michael Molete is one and the same person, namely:
the plaintiff in the action proceedings
and the respondent in these
motion process.
[24] Accordingly I find
that the respondent was lawfully married to Thembi Mariam Maseka at
all times material to this application
and the summons. The
respondent relied on an official document to prove that he was
legally married and who his wife was. The document,
annexure “mm1”,
was a
prima facie
proof of the facts it asserted. In the
replying affidavit I could find nothing to the contrary. Since the
applicant dismally failed
to rebut such
prima facie
evidence
that evidence became conclusive proof of the respondent’s
marital status according to our law of evidence.
[25] Now I revert to the
question of the minor’s parenthood. The onus of proving it
rested squarely on the shoulders of the
plaintiff, now the
respondent. Ms Norman correctly submitted that it was incumbent upon
the respondent, as the plaintiff, to place
evidence before the trial
court to establish that he was the biological father and thus a
natural guardian of the minor and that,
as such, he was entitled to
receive the award, on behalf of the minor, whose biological offspring
he was. Obviously, the respondent
would have had no
locus standi
in iudicio
unless he discharged such onus. If he failed then
there would have been so much to be said for the appointment of
curators for
the parentless child.
[26] Despite the
applicant’s request(s) the respondent failed to furnish the
applicant with official documentation to prove
that he was indeed the
biological father of the child. His failure to do so was one of the
reasons which made the applicant sceptical
and eventually
precipitated the current application.
[27] In spite of the
respondent’s failure to prove that he had
locus standi
to act in his alleged representative capacity in the main action, the
applicant attached a full birth certificate, labelled annexure
“sc1”,
to the founding affidavit. The annexure reflected the names of the
following three individuals: firstly, Moahlodi
Daniel Molete with
national identity number 010605 5665 08 2 described as a child,
secondly, Tefo Michael Molete with national
identity number 691101
5344 08 0 described as a father and thirdly, Thembi Marriam Maseko
with national identity number 751010
1369 08 1 described as a mother.
[28] In the answering
affidavit the respondent once again asserted that he was the minor’s
biological father as annexure “sc1”
evidenced. In her
confirmatory affidavit n support of the answering affidavit Thembi
Marriam Molefe (ex Maseko) asserted that she
was the minor’s
biological mother. A copy of her identity document was annexed to her
sworn statement as annexed “tmm1”.
The personal
particulars as reflected in the identity document precisely
corresponded with those in the marriage certificate and
the
unabridged birth certificate.
[29] Notwithstanding all
of the aforesaid mountain of information as verified by official
documents such annexure “tmm1”,
annexure “sc1”
and annexure “mm1” the applicant, in the replying
affidavit”, still denied that the
respondent was the minor’s
biological father and that his wife Thembi Marriam Molete (ex Maseko)
was the minor’s biological
mother as they averred they were.
According to the respondent, the unabridged birth certificate
constituted
prima facie
evidence that the respondent was (and
still is) the biological father of the minor.
[30] The same applied to
the respondent’s wife. The minor’s unabridged birth
certificate constituted
prima facie
evidence that she was the
minor’s biological mother. In the absence of any further and
more credible and reliable evidence
to the contrary, in the replying
affidavit, the unrebutted
prima facie
proof of the minor’s
parenthood becomes conclusive proof thereof and the party upon which
the onus rested discharges it –
Ex Parte
MINISTER OF JUSTICE: REX v JACOBSON AND LEVY
1931
AD 466
at 478 and Hoffmann & Zeffert:
The Sale
,
fourth edition 596.
[31] There was virtually
nothing in the replying affidavit, other than hollow denials, to
rebut the strong
prima facie
evidence as to who the natural
parents of the minor were. It will be recalled that the minor’s
full birth certificate was
part of the applicant’s own founding
papers. On the applicant’s own papers the very opposite of what
the applicant
endeavoured to prove was proven. There was overwhelming
documentary evidence which materially fortified the respondent’s
case and drastically destroyed the applicant’s case as regards
question of the respondent’s
locus standi
.
[32] The mere fact that
the respondent, as the plaintiff, did not testify at the initial
phase of the trial is neither here nor
there. Nobody testified then.
The applicant, as the defendant, unconditionally admitted liability
and thereby implicitly admitted
the respondent’s relationship
to the minor. To hold otherwise would be illogical and absurd.
[33] The wording of the
court order of 31 August 2010 is of particular significance in this
regard. The order was made by agreement
between the parties. The
concise import of the order was that the merits and quantum were
separated,
the defendant conceded that the defendant was liable
for the payment of the plaintiff’s proven or agreed damages
.
My understanding of the defendant’s admission of liability was
that, by necessary implication, the defendant also admitted
the
plaintiff’s
locus standi
. To that admission the
defendant, now the applicant, has to be held.
[34] To uphold the
defendant’s belated objection would boil down to unfairly
ambushing the plaintiff. The objection should
have been raised before
the substantive merits were conceded. We know now that they were
conceded without any reservation of rights
to revisit and attack any
aspects of the particulars of claim besides the quantum. In the
circumstances, I am of the firm view
that the first ground on which
the appointment of curator(s) was sought, had no substance. I would,
therefore, dismiss the objection
and indeed the entire application if
it were based on that ground alone. But there is more to it.
[35] The second ground on
which the applicant relied for the relief sought was that the
respondent had probably concluded certain
contingency agreements with
his lawyers, which agreements might be prejudicial to the minor’s
interests.
[36] In the founding
affidavit the applicant’s concern about the suspected
contingency agreements was articulated as follows:
“
The fact
that the parties (if proved to be) are not employed suggests that the
legal representatives involved in the matter are
conducting
litigation on a contingency basis. A contingency agreement would have
been signed by the Plaintiff. It is therefore
important that a legal
representative other than the Plaintiff’s attorneys of record
should have regard to those agreements
to satisfy himself or herself
that such agreements will not prejudice the child in any way. Should
it be found that the award will
be depleted contrary to the interests
of the child, the
curator
bonis
should be empowered to have those agreements annulled, if necessary,
or amended in accordance with justice.”
[37] In the answering
affidavit the respondent made no attempt whatsoever to specifically
deal with the applicant’s concern
pertaining to the conduct of
the litigation on contingency basis. The question of the alleged
unemployment of the minor’s
parents gave rise to the suspicion
of contingency agreement to cover the legal fees of the respondent’s
lawyers. In his response,
the respondent had this to say:
“
The heart of
the Applicant’s case, that we are “unemployed” and
therefore a
curator
bonis
should be appointed, besides being factually inaccurate, is based on
a prejudiced assumption. That is that persons of humble means,
on the
lower end of the social spectrum, are less responsible parents than
those who have more access to means.”
[38] In the replying
affidavit the applicant replied:
“
The reading
of the answering affidavit has confirmed the fears of the Defendant
in that:
4.1 The deponent to the answering
affidavit has not taken this Court into its confidence. It has not
dealt with the allegations
made in the founding affidavit instead has
simply recorded his general feelings as a guardian. All of these are
not based on any
law. In fact the legal basis referred to in the
founding affidavit upon which the applicant is based has not been
challenged.”
[39] The respondent did
not pertinently address the applicant’s concern. He
deliberately evaded the point. He had a lot of
critique to voice out
about the factually inaccurate allegation that he and his wife were
unemployed but he said nothing about
the factual inaccuracy, if any,
of the suspected existence of contingency agreements. His calculated
omission to refute the applicant’s
apprehension justified the
drawing of an adverse inference against him that such agreements
probably exist. The omission validated
the apprehension of the
applicant. His failure to disclose details of such contingency
agreement fuelled the fires of suspension.
The law obliges a service
provider to provide his client with a copy of a contingency
agreement. Seemingly, it was not done in
this instance. Was there
something to hide? I am certain the respondent was not knowledgeable
enough to figure it out for himself
and to demand it from his
attorney. The withholding of the crucial information relating to the
deal clinched by the respondent
and the attorney concerning the
minor’s funds strengthened the fear that such deal placed the
child’s interests at
risk.
[40] In the circumstances
I find that the respondent had concluded contingency agreements with
his attorneys; that he, on purpose,
chose to withhold instead of
revealing details thereof to me as the court and upper guardian of
the minor child and that, objectively,
there is a reasonable
apprehension that the best interests of the minor might be at risk. I
would, therefore, be inclined to intervene
to safeguard such
interests.
[41] The third ground on
which the applicant applied to have curators appointed was based on
the need felt by the expert witness
to have the minor’s award
protected from depletion. The majority of those advisors were the
respondent’s own expert
witnesses, namely: Ms F A van Vuuren,
Ms J C Bainbridge. The same view was shared by the applicant’s
expert witness, Mr B
Moodie.
[42] The experts
suggested in their written assessment reports that curator(s) should
be appointed to safeguard the minor’s
award. In their oral
testis they once against repeated and confirmed their
recommendations. Their evidence was never attacked.
In my view their
unchallenged oral evidence could not be subsequently modified as the
respondents tried to do. I am with Ms Norman’s
submission that
the attempts to have the original oral evidence of the expert
witnesses altered by way of subsequent sworn statements
have to be
rejected.
[43] To the extent that
the two confirmatory affidavits by the aforesaid two ladies sought to
water down their original testimonies,
they have to be simply
disregarded. The respondent is now precluded from advocating a cause
different from the one he previously
supported, albeit indirectly,
through his own witnesses now that the applicant is having a ride on
the same ticket. There is a
long-felt need by experts to have the
minor’s funds safeguarded. The only critique against the expert
was that none of them
gave any reason as to why the funds had to be
safeguarded. Perhaps they reckoned that the need to do so was
obvious. Since they
were not invited to explain in order to challenge
their explanation afterwards, I also assumed that the respondent,
like everyone,
also implicitly recognised such need. He cannot now
cry foul play. In my view the common opinion of the experts is an
objective
factor that cannot be ignored. It is but one of the factors
that have to be taken into consideration in the process of
determining
a solution that will preserve the best interests of the
child.
[44] The fourth ground of
concern on which the current application was based was that there
were some disturbing discrepancies which
emerged upon the comparative
and critical analysis of the various expert assessment reports
concerning certain historical background
compiled on the strength of
the information obtained by some experts from the respondent.
[45] The discrepancies
related to matters such as the minor’s date of birth, the
apparent or perceived disinterest of the
minor’s mother in the
litigation, the minor’s alleged head injury and matters of
family habitat. By and large the respondent
did not seriously dispute
those discrepancies save that the minor’s mother supported him
all along in prosecuting their son’s
claim and that they were
in it together as responsible parents concerned with the best
interests of their child.
[46] In the founding
affidavit the applicant expressed some concern that the
attorney-client relationship that existed (and still
exists) between
the respondent and his attorneys of record would determine how the
money to be awarded for the benefit of the minor
should be utilised.
This was the fifth ground on which the application was based. The
concern was that in the absence of a legal
representative appointed
for the minor; there would be no guarantee that the interests of the
minor would be protected as against
decisions detrimental to the
minor’s best interests taken by the respondent or his
attorney(s) or both.
[47] In the answering
affidavit the respondent countered by saying he had been advised that
the relationship between him and his
attorney was a matter of
professional privilege and that it was completely irrelevant to the
application. I hope I am right that
this was the respondent’s
correct answer to the applicant’s concern that that
relationship alone did not afford satisfactory
and adequate
protection to the minor’s interests. My difficulty is that the
answering affidavit was not drafted in a conventional
and expedient
manner whereby each allegation in the founding affidavit is
numerically identified and specifically answered seriatim.
[48] The respondent’s
answer opened a can of worms in the replying affidavit:
“
44.1 I note
the professional privilege between the Plaintiff and his attorney.
This privilege, however, does not extend to the award
which is
intended for the benefit of the child. It is my concern that once the
Plaintiff and his attorney hide behind professional
privilege, it
will be difficult for this Honourable Court to investigate how the
child’s award was handled.”
[49] The applicant set
out to investigate the conduct of the respondent’s attorney.
The private investigation revealed that
the lawfirm was under police
investigation; that the Road Accident Fund was behind it all; that
there were 34 cases involved and
that they all concerned victims of
the road accidents.
[50] Accepting, in favour
of the respondent, that the pending police investigation constitute a
new matter raised for the very first
time in the replying affidavit,
recognising the principles that, in motion proceedings, the applicant
has to make out his case
in the founding affidavit and to amplify it
in the replying affidavit – I nonetheless consider, that I am
impelled to take
such investigations into account as one of the
factors. The overriding considerations in the current application are
chiefly the
best interests of the minor. They supersede the aforesaid
principles which are designed to regulate procedural fairness between
the applicant and the respondent. Besides, the respondent could have
sought leave to duplicate if the allegations were untrue but
he
elected not to do so.
BAYAT AND OTHERS v HANSA AND ANOTHER
1955 (3) SA 547
(N) 553C – G.
[51] In coming to the
aforesaid conclusion, I am fortified by the neutral stance adopted by
Mr Dutton, a very capable counsel who
represented the respondent very
well in this litigation. Moreover the rule that an applicant has to
make his case in his petition
is a relative and not an absolute rule.
If new facts subsequently appear in a replying affidavit which were
previously unknown
to the applicant and which supply facts of
material substance not appearing in the founding affidavit, the court
has power to grant
the relief. This is one such case.
DRIEFONTEIN
CONSOLIDATED GOLD MINES LTD v SCHLOCHAUER
1902 TS 33.
[52] Since the
investigations against the respondent’s attorneys are still
pending, I refrain from making any finding. The
law must be allowed
to run its own course. At the end of it all the attorney(s) concerned
will either be exonerated or condemned.
It is not for anyone to
prejudge the final outcome of the police investigation. What the
future holds I do not know. What I do
know is that where trust funds
have been embezzled by an attorney, the investigative process is more
often than not, inordinately
long, very cumbersome and frustrating.
[53] Although the mere
investigations cannot be held against the respondent’s
attorney(s) or be used against him to the prejudice
of his client,
the respondent – the fact that the lawyer(s) to whom the
applicant is obliged to pay the funds is or are under
police
investigation and the mere magnitude of such investigation cannot be
ignored – not by the upper guardian of children
but by any
other objectively minded parent.
[54] What I have now is a
kind of a wake-up call. I am called upon to be proactive by guarding
against a possible misappropriation
of the minor’s funds under
the nose of his unsuspecting or too trusting parents. Some
pre-amptive judicial intervention is
objectively required. I do not
suggest, for one moment, that the attorney will misappropriate the
minor’s funds and deplete
his estate. But currently there are
some dark clouds of suspicion hanging over the heads of the
respondent’s attorneys. Those
clouds seem to suggest, rightly
or wrongly, that the lawyers have strayed beyond the ethical bounds
of proprietary in their dealings
with the money entrusted to them. To
an extent this investigations reinforced the applicant’s second
ground of concern. There
is some connection between the police
investigation and the contingency agreements.
[55] Frequently a member
of the public finds little joy in reporting an attorney to a
responsible law society for disciplinary action
or to the police for
criminal prosecution after the disappearance of trust funds. Doing so
is like closing the gate after a horse
has bolted. None of those
post
ex facto
remedial processes guarantees recovery of
misappropriated funds. The idiom that prevention is better than cure
applies. My heart
goes out to the minor. I can only ignore the
warning signs at his peril. As his upper guardian, I will be guilty
of abdicating
my duty if I do not instantly intervene for the sake of
the child’s best interest. There is good reason to believe such
interests
are under threat –
section 15
Children’s Act
supra.
[56] The respondent is
naive to think that the proposed creation of a trust by the bank
would provide a sound investment haven for
the effective protection
of the funds of the minor. The applicant ably demonstrated just how
burdensome and expensive the running
of such trust would be.
“
8.5 The rate
of the management fee is 1% plus VAT which on an estimated award, for
example, of R1 million rand is R10 000,00 per
annum plus VAT
totalling to R14 000,00 per year. The minor child is currently 11
years and will reach maturity age when he turns
21. This will mean
that by the time he reaches 21 years Absa Bank would have depleted
the minor child’s estate by an amount
of R140 000.00. This is a
lot of money. The more the award is the more this amount would be.”
[57] The actual figure I
awarded as compensation to the minor is over R2,5 million. By the
time the minor reaches the age of 21
years in ten years time (2021)
the trust would have raked in a staggering sum of R350 000,00 as
management fees. The letter from
the bank’s commercial trust
company annexure “jb1” did not give an indication of the
interest rate to be earned
by the minor’s investment. Whatever
the rate may be, the point remains that the proposed creation of a
trust does not make
a sound investment proposition. This is
particularly so in the light of the alternative we have in our law
that the minor’s
award can be kept in “The Guardian’s
Fund” where his account will not be debited with any charges
whatsoever
as administration costs but will, instead, earn interest.
Currently the applicable rate of interest offered by “The
Guardian’s
Fund” is 6.5% per annum. The minor’s
capital will handsomely grow instead of being systematically and
drastically depleted
as already demonstrated in the aforegoing
paragraph.
[58] The respondent has
badly misconstrued not only the purpose but the applicable test. The
test is not whether the parents are
capable or not of managing the
estate of the minor child. The test is whether the appointment or
non-appointment of a curator(s)
will serve the best interest of the
minor child regard being had to the peculiar circumstances of this
particular matter.
[59] The legal basis of
the respondent’s opposition to the appointment of the
curator(s) is that the management of a minor’s
property is
generally the exclusive private preserve of a minor’s parents
as natural guardians. As a general legal proposition,
the
respondent’s contention is indeed correct.
Ex Parte
OPPEL & ANOTHER
supra.
[60] The respondent
heavily relied on the Oppel decision. Mr Dutton submitted that the
instant matter was on all fours with that
decision in every material
respects. I have serious reservations about counsel’s
submission.
[61] Brief comparison
between this matter and that decision reveals: that in that case the
minor had sustained severe head injury;
that the 1984 injury resulted
in such a disability and permanent adverse impact that in 1999 his
mother sacrificed her professional
career as a nursing sister to look
after her disabled son, then 15 years of age; that if the application
was successful, the minor’s
estate would have been placed under
the burdensome curatorship for an indefinite period, probably equal
to the minor’s lifespan
in view of the permanence of his
impairment; that the application was brought principally because the
appointment of a
curator bonis
was a condition demanded by the
Road Accident Fund for the acceptance of the offer and settlement of
the minor’s motor vehicle
accident claim; that the parents
applied for the appointment of curator(s) on the sole ground that
they supposed they were incapable
of running the affairs of their
handicapped son; that the were no reasons given as to why a
curator
bonis
had to be appointed to the minor’s property while his
capable, though reluctant, parents were available; that the costs of
the application be paid by the minor’s estate.
[62] In the instant
matter the scenario is different. If the application is successful
the minor’s estate would be placed
under the burdensome
curatorship for a fixed period of eleven years at most. The onerous
inroads of curatorship would not endure
for an endless period of
time. There is no prayer that the minor’s estate pays the costs
of curatorship. The applicant is
prepared to foot the curator’s
bill in full to prevent any depletion of the minor’s property.
The application was initiated
by an organ of state, an independent
and disinterested entity. The minor’s parents oppose the
application and aver that they
can responsibly run the affairs of
their son. The current application is based on more grounds than one.
The capabilities of the
parents was not one of the grounds relied
upon. A few reasons were spelt out why the applicant was concerned
that it would be in
the best interest of the minor to deviate from
the general norm of guardianship by entrusting his estate to his
parents for management
as their exclusive preserve.
[63] Indeed there was no
proven disability of any sort on the part of the minor’s
parents in this matter as was the case in
the Oppel decision. While
question of parental disability was the sole decisive consideration
in that particular case, it was certainly
not in the instant matter.
I did not understand Ngwenya J to suggest or propound the absolutely
rigid rule that any application
for the appointment of a curator to a
minor’s property, irrespective of the peculiar grounds on which
it is based, should
fail as long as it can be shown that a minor’s
parent suffers from no disability physical, mental or otherwise. The
special
circumstances outlined in that decision cannot and should not
be regarded as the exhaustive grounds on which application of this
nature can be based.
[64] The protective
remedy of curatorship has many recognised and undesirable downsides.
However burdensome inroads thereof may
be to parent and child
relationship, great caution has to be exercised not to accentuate the
disadvantages or to underplay the
advantages of the remedy. A damaged
relationship can be repaired but a lost fortune can be hard to
recover. A family feud about
missing wealth can permanently destroy
close relationships in the end. Some balancing act of the conflicting
triangle of interests
is required in order to do some damage control.
In doing so, a court has to bear in mind that the overriding
consideration above
all others is the best interest of the minor. The
constitution enjoins the courts and everyone else to accord those
interests supreme
protection.
[65] I note that, in
Oppel’s case no reference was made to those cardinal provisions
of the constitution. I think they were
not brought to the attention
of the court by counsel for the applicant.
[66] Dealing with a
living guardian’s requisite attributers prior to the
appointment of a curator to a minor’s property
the court held:
“
It
seems to me therefore the guardian must have the same handicap as
would entitle the Court to appoint a curator to a major person
before
a curator could be appointed to the estate of a minor who has a
guardian.”
[67] In a case where it
is shown that a minor’s guardian is insane, insolvent,
alcoholic, prodigal, fugitive, homeless, fraudulent
criminal, drug
addict, gambling addict, or suffers from one or other addictive
aliments or chronic handicap – such a guardian
would be a
threat to a minor’s interests – and should thus not be
entrusted with the management of a minor’s
estate. Obviously
these comments are obiter
dicta
.
[68] To the aforegoing
list of disqualifying factors another scenario has to be added.
Where, as in this matter, a legal representative
of a minor’s
perfectly capable and unblemished guardian is shown to be a suspect,
not in one but in a number of criminal
cases under police
investigation – the paramouncy of a minor’s best
interests would be seriously undermined if such
circumstances were to
be disregarded because the guardian is available and capable.
DU
TOIT AND ANOTHER v MINISTER OF THE DEPARTMENT OF WELFARE AND
POPULATION DEVELOPMENT AND OTHERS (LESBEIAN AND GAY EQUALITY PROJECT
AS
AMUCUS CURIAE)
[2002] ZACC 20
;
2003 (2) SA 198
(CC).
Unless the funds are intercepted and the ordinary course of the
payment of the award is diverted and recalled substantial
injustice
may result – section 28 (1) 1996 of the Constitution of the
Republic of South Africa.
[69] In the instant
matter, I am persuaded that the best interest of the minor would be
better served by entrusting his estate to
a curator. I was inclined
to order that the minor’s award be paid to “The Guardians
Fund” with the explicit directive
to the master to pay out such
funds as may be shown necessary from time to time to the minor’s
parents for the child’s
maintenance, education, hospitalisation
and medical treatment. But seeing that the applicant, an organ of the
state, is obliged
to pay for the curator’s remuneration for the
management of the minor’s estate, it will do the minor’s
interests
no harm if his estate is placed in the hand of a curator
bonis.
Similarly there can be no harm if it is left in the
capable hands of the master.
[70] The trial has been
finalised. The appointment of a curator
ad litem
is really
water under the bridge now. It will serve no further useful purpose.
I would, therefore, recommend that Adv. P. U. Fischer
SC be appointed
curator
bonis
. He is a seasoned lawyer and a man of integrity.
He is no more of a stranger to the minor’s parents than Ms M.
M. Prinsloo,
manager trust services at Absa Trust Limited. Corbett J,
as he then was, once held that
it was desirable that a person to
be appointed as curator should be an advocate who is completely
independent and outside the range
of local influence.
EX
PARTE
MARITZ;
EX PARTE
DE KLERK
1968 (4) SA 130
(C).
[71] According I make the
following order:
71.1 The application for
the appointment of a
curator ad litem
is refused;
71.2 The applicant is
granted leave to apply, on the same papers duly amplified, if so
advised, for the appointment of Adv. P. U.
Fischer SC as a
curator
bonis
to Moahlodi Daniel Molete, a minor child born on 5 June
2001 and presently residing at 7594, Section K9, Kutloanong
Odendaalsrus.
71.3 That the total award
in the amount of R2 532 543,00 arising from the litigation between
the minor’s father, Mr Tefo Michael
Molete and the MEC:
Department of Health, Free State Government under case number 2155/09
be held in a trust account of “The
Guardian Fund” under
the auspices of the Master of the High Court, Bloemfontein until the
court orders otherwise.
71.4 The Master of the
High Court is further directed to make a once-off payment of R100
000,00 (R50 000,00 to each parent) directly
to the minor’s
parents.
71.5 The applicant is
directed to pay the costs of this application, the future application
for the appointment of a
curator bonis
, should such
application become necessary, as well as the curator’s
remuneration for the future management of the minor’s
estate.
71.6 The Master of the
High Court is hereby authorised to pay out to the minor’s
parents from time to time, as he in his unfettered
discretion, may
consider necessary for the minor’s maintenance, education,
hospitalisation, medical treatment or any other
legitimate cause.
_________________
M. H. RAMPAI, J
On behalf of applicant:
Adv. T. V. Norman SC
Instructed by:
The State Attorney
BLOEMFONTEIN
On behalf of respondent:
Adv. I. T. Dutton
Instructed by:
Nomxuba Inc.
BLOEMFONTEIN
/eb