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[2011] ZAWCHC 254
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September v Harrison (13037/2009) [2011] ZAWCHC 254 (7 June 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
CASE No: 13037/2009
In
the matter
between:
DEIDRE
FREDELINE RACHEL SEPTEMBER
…...........................
Applicant
And
LORENZO
ANTHONY HARRISON
….............................................
Respondent
In
re the
application
for a
curator
ad litem
for:-
J-C J
("the
minor")
JUDGMENT DELIVERED ON 07 JUNE
2011
MANTAME, AJ:
[1] This is
an application for a
curator
ad litem.
This
ex-parte application was filed on the 30 June 2009 by applicant, who
is acting herein in the best interest of the minor child,
herein
referred to as J-C J.
[2] Applicant is represented
herein by Ms. Nel and Respondent is herein represented by Mr.
Webster.
[3] It is
common cause that Applicant is the minor's grandmother and primary
caregiver. The grandmother took over this responsibility
after the
death of her daughter. Adri Eugeny Jaftha in a motor car collision
that took place on the 15 December 2007.
[4] At the time of the
deceased's death, the Respondent and the deceased were involved in a
relationship and had a five month old
child called J-C J.
[5] At the time of the accident,
the Respondent, deceased and the minor child were all travelling
together. It is worth noting that
though Respondent and the deceased
were staying together at the Applicant's home, they were never
married.
[6] Respondent and the minor
child sustained injuries and the deceased died as a result of the
accident.
[7] Further, it is common cause
that Applicant and Respondent consulted an attorney, and in this
case, the firm of Mr. Webster to
institute Road Accident Fund claim
for the funeral expenses, personal injury claim and loss of support
[8] A claim
for funeral expenses were settled and it later came to the attention
of the Applicant that Respondent also received
an award from the Road
Accident Fund, on behalf of the minor, for the minor's personal
injury claim. The award was
paid
to the Respondent, on or about November 2008. This has not been
disputed by the Respondent
[9] As the Applicant was and is
the primary caregiver of the minor child, she has not been advised
as to how this award would
be managed, and further how is Respondent
going to contribute to the well-being of the minor child.
[10] This
court, has only been advised that some clothes and a bicycle was
sent to the Applicant's house sometime in 2009 for
the minor child.
There has not been any structural maintenance of the child by the
Respondent who claimed his
bona
fides
towards
the minor child. In the eyes of this court, it is not enough for the
Respondent to allege that "some of the money
has been put in
the bank account."
[11] Ms Nel contended that,
what fuelled this application is that Respondent has not been acting
in the best interest of the minor
child. It is the Applicants
intention that the minor's rights have to be protected at all times.
[12]
Further, in principle, Applicant and Respondent are in agreement on
the appointment of a
curator
ad litem
,
but his mandate should be confirmed only to the compilation of a
report in terms of Rule 57 (5) at (ii) in order to report on
whether
he is capable of managing his son's affairs and, if a
curator
bonis
should
be appointed.
[13] On the
other hand. Applicant contends that exceptional circumstances exist
for the appointment of a
curator
ad litem
as
the previous behaviour displayed by
Respondent,
in taking monies due to the minor child and not handing over those
monies to the minor, or investing them, nor giving
proper accounting
of where such funds may be, raises some concern.
[14] There is still further
claim/s that still needs to be prosecuted or are in the process of
prosecution with the Road Accident
Fund, and if an award is made,
the best interest of the child needs to be taken care of.
[15] This court, as the upper
guardian of all minors has to exercise its discretion judicially in
making sure that the minors
interests are protected at all costs.
[16] Mr.
Webster constantly argued the rights that the Respondent is vested
with in terms of Section 21 of the Children's Act.
Those rights are
not disputed by this court whatsoever. He has not at all taken this
court into confidence and in proving that
Respondent's
bona
fides
are
not questionable towards the minor child.
[17] This
court has considered alt the reports filed herewith, making some
recommendations on this application. The final report
of the family
advocate after evaluating the needs of the minor child support the
appointment of a
curator
ad litem.
[18]
Consequently, given the history of the Applicant and Respondent,
this court is convinced that a third person in the form
of a
curator
ad litem
should
be appointed in order to safeguard the interest of the minor child.
This court cannot loose sight of the fact that we are
dealing with a
toddler who is 3 and a half years old, who has lost one of his
parents, and now leaving with the grandparent.
The role of the
surviving biological parent is not clear towards his welfare and
upbringing.
[19] At this stage, I will not
deal with issues of contact, care and custody, as they are not
before this court
[20] As such there will be no
order against the Road Accident Fund, as the Road Accident Fund is
not before this court either.
[21] On the issue that was
taken by Mr. Webster about the affidavit annexed to the notice of
motion, and that it has not been
properly commissioned, I agree with
him in as far as that is concerned. At the same time, there has been
no application to strike
out its contents. This court has a
discretion to condone such errors, and I hereby condone this error
[22] After considering the
arguments by the parties. I therefore make the following order:
(1) Adv.
ALLAN LANGE is appointed as
curator
ad litem
to
the minor to:-
assist and represent the
minor child's in matters of litigation,
including the Road
Accident Fund claim or any other claim that may
arise as a
result of the accident in which the minor child was injured
and
in which the minor child's mother was deceased on the 15
December
2007;
1.2
the
curator
ad litem
is
authorized to take all steps necessary on the
minor child's
behalf to lodge, demand, ratify, institute / prosecute, pursue,
defend and / or settle the minor's claim as aforesaid;
1.3. to investigate and report
on the claim paid out to the Respondent on or about November 2008,
for the claim for the minor
child's personal injuries sustained in
the aforesaid collision, and to investigate where the proceeds of
such claim are and to
ratify and take all steps necessary to
establish the validity of the settlement of the minor's claim:
1.4. to
investigate and report on the necessity and / or desirability of
appointing a
curator
bonis
to
assist the minor child in the administration of any monies received
in respect of the aforesaid claims.
The costs of this application
be paid by the Respondent on an attorney and client scale
The costs
of the
curator
ad litem
shall
be paid out of the minor child's estate, without prejudice to any
claim for their recovery against the Road Accident Fund
or any
other person arising from the aforementioned contemplated claims.
MANTAME,
AJ