Curator ad litem
Children
Carina du Toit
18 June 2014
Difficult cases
• MEC for Social Development v Child Welfare
Stilfontein
• Adv Paul Nieuwoudt and another // JDR and
others
Common law
• Child is under a disability – limited capacity to
litigate
• Normally child is assisted by a parent or
guardian
• Conflict of interests, deceased, unreasonable,
or cannot be found – curator ad litem
• Traditionally, this was for the institution of
actions for damages, limited to delict
• Unusual to have a curator appointed when a
child has a guardian
• Becoming more frequent in family law matters
• Generally high conflict matters
• Investigation and report back to the court with
recommendations
• What is the situation vis-à-vis the Family
Advocate?
• Care and protection proceedings that have
escalated to the High Court or protracted high
conflict family law matters
• Usually, a curator is appointed for a specific
purpose
– Not permanent, and does not have the same broad
powers as a curator bonis to administer the child’s
life
• No order affecting the rights of the child should
be granted before or at the same time as the
appointment of a curator ad litem
Procedure to appoint a curator
• High Court application
• Normal standing requirements – must have an interests
in the care and well-being of the child
• Curator is usually appointed before further legal
proceedings
• The appointed person should have a neutral interest in
protecting the child, not personally invested and ask
order for him or herself
• You cannot be the curator and be applicant to adopt
the child - conflict
When is a curator necessary
• Obvious cases where a child is orphaned
• Need for appointment of a guardian or action
for damages
• Very complex or acrimonious family law
proceedings
– Baby swopping
– If the child is very young
– If the child is fragile and needs independent
assistance
• If the matter comes from the children’s court
and there is already a legal representative from
Legal Aid then that person’s mandate has to be
terminated by the court
• A legal representative in the Children’s Court
must be disclosed to the High Court if there is an
application for a curator
• It would not generally be necessary to have a
legal representative and a curator ad litem
Legal Aid Board: In re four children (SCA)
• Common law position that a child may not litigate without the
assistance of a parent or guardian.
• Law has always recognised that there may be a conflict between
parent/guardian and child and therefore provides for the
appointment of a curator ad litem.
• “conduct litigation in the name and in the interests of the minor”
• Still requires appointment by the court
• Justice Centre should have asked the court to appoint a suitable
employee of Legal Aid as curator
• It is clear that the SCA sees legal representation for children as
necessary to augment their lack of capacity and as appointed by
the Court
• Not necessary to invoke section 28(1)(h) because the common
law already provides for curators
• Seems to place a s28(1)(h) legal practitioner as subject to a
curator
• In other words, you appoint a curator to assist – if the curator
cannot himself/herself conduct the litigation, then a s28(1)(h)
legal representative can be appointed to manage the litigation
• Does this mean a s28(1)(h) legal practitioner cannot assist in
place of a guardian?
• Any positive aspects?
• Curator/legal representative is not required to be objective but
must advance the case of the child
• So what does this mean, if anything.
Constitutional Court and curators
• Du Toit and Another v Minister of Welfare and Population
Development and Others 2003 (2) SA 198 (CC)
• S v M 2008 (3) SA 232 (CC)
– Imprisonment of the primary care-giver
• AD and another v DW and others 2008 (3) SA 184 (CC)
– Disputed inter-country adoption
• Van der Burg and Another v National Director of
Prosecutions and Another 2012(2) SACR 331(CC)
– Eviction
• To ascertain the real-life circumstances of the children
and the impact of the litigation or possible orders
• They make the appointment i.t.o. s28(1)(h)
Investigative curators
• Central Methodist Church
• Child Welfare Stilfontein
• Transnet v Noupoort
– Large groups of children and it is unclear what
their situation is or what their rights are
• Christian Education South Africa v Minister of
Education 2000 (4) SA 757 (CC)
– Would have been helpful to hear from the
children