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