The end of legal practitioners as curators?

By: Lize-Marie Weideman, LindsayKeller partner 

Many legal practitioners had to revisit what they knew (or thought they knew) about locus standi when Judge Tuchten recently handed down a judgement in the ex parte applications of Thithi and Others in the High Court of South Africa, Gauteng Division, Pretoria. The judgement concerned the right of natural persons to litigate against the Road Accident Fund. This article will explore this topic.

But first, what is locus standi? Locus standi in iudico means “capacity to stand before a court”. The term has two applications:

  1. Does the party instituting or defending a legal proceeding (litigating) have the capacity to do so? This includes whether the party has been correctly described in the proceeding.
  2. Does the party instituting the legal proceeding have a sufficient interest in the relief claimed?

Put differently, locus standi is a person’s capacity to relate to the legal system:

  1. As the bearer of rights and duties;
  2. In terms of his/her ability to perform acts; or
  3. In terms of his/her ability to participate in a law suit.

Closely related to the capacity to act is a representative’s or attorney’s authority to act on behalf of a party. The locus standi of a party must be proven as the first step in litigation.

Rule 17(4) of the Rules which govern the High Court of South Africa stipulates that every summons (including applications) should, as a minimum, provide the following information about the parties: name, place of residence or business, occupation, capacity, gender and marital status (in the case of females). If a person is not acting in his or her personal capacity but as a representative – such as a trustee, executor or curator – this should be stated in the citation. The requirements regarding a party’s gender and the marital status of women are no longer enforced as these don’t affect the capacity to act. The legal capacity to litigate is determined by:

  1. Age: Persons under the age of 18 and who have not been emancipated by way of marriage or other means or been declared a major are considered minors and therefore lack the capacity to participate unassisted in litigation.
  2. Status: The status of certain persons such as judges, members of parliament, persons with diplomatic immunity, aliens, fugitives and natural persons under a disability (minors, mentally disordered persons, prodigals, insolvents) limits or excludes their capacity to litigate.

Actions by and against unassisted or unrepresented minors can, however, be ratified retrospectively. According to the Children’s Act (Act 38 of 2005), the following persons may be considered the guardian of a minor:

  • The biological mother.
  • The biological father (with certain exceptions).
  • Any person with an interest in the care, well-being and development of a minor, on application to the High Court by way of a “parental responsibilities and rights agreement”, testament, or appointment in terms of the Administration of Estates Act.

A curator ad litem is a person appointed by a court to represent a party to litigation who suffers a limitation to their locus standi. Usually, a curator ad litem will not be appointed to a minor who has a guardian. Extraordinary circumstances which warrant this appointment appear to be:

  1. When the litigation is between the guardian and the minor.
  2. In proceedings where there are real or potential conflicts of interest between the interests of the minor and the interests of the guardian.

A curator ad litem is appointed through an application to court brought by any person who is able to show an interest in the appointment. This may include the minor (if he or she is old enough to understand the proceedings) or an interested party without the minor’s knowledge or participation. The other party may oppose the application if it believes that circumstances do not warrant the costs of such an application or appointment.  

Although the applicant may make proposals for a suitable candidate to be appointed as curator ad litem, the Court is not bound to adopt a proposal and may appoint anyone.  According to Herbstein and Van Winsen, such a person is usually a close relative of the minor. The second category of natural persons who are considered not to have the capacity to participate in litigation are “mentally disordered persons”. Although they are majors, such people are not able to understand or appreciate the proceedings at a sufficient level to play a constructive role in making rationally motivated decisions or giving their legal advisors proper instructions. This category of litigant must be represented by a curator ad litem, as the locus standi of their natural guardians to act on their behalf (note that the word “assisted” is not used) expired when they reached the age of majority. As Herbstein and Van Winsen note, “Every person is presumed to be sane, and the onus is on the person alleging the contrary to prove it”. Other categories of persons who do not have the capacity to litigate are not discussed in this piece. 

In the ex parte applications of Thithi and Others, Judge Tuchten criticises the widespread practice of legal representatives who, while representing minors litigating against the Road Accident Fund, apply for curators ad litem (mostly advocates) to be appointed when in many cases one or both of the minor’s natural guardians (biological mother or father) are alive and available to represent them. According to Judge Tuchten, this creates an unnecessary tier of paid professionals to represent, assist or protect the interests of minors litigating against the Fund.

It emerged from Judge Tuchten’s enquiries that attorneys bringing these applications view the appointment of advocates as curators ad litem as a convenience to themselves: the advocates facilitate litigation where the minor is far from the seat of the court or protect them against being accused of giving negligent advice or undersettling a matter. Judge Tuchten rightly dismisses this argument on the basis that negligent advice given by an attorney will not be less so because it is given to an advocate representing the minor. The purpose of appointing a curator ad litem is not to benefit the attorney or ease his or her burden or liability, but to assist the minor who does not have the necessary locus standi because of his or her age.

The argument presented to Judge Tuchten by the representatives of the parties who applied for the appointment of curators ad litem on behalf of minors who do have guardians or close family members who can act as guardians, was that these guardians lacked the necessary “expertise” to advise the minor on the “subtleties and complexities of High Court litigation”.

However, our law has never required a person (whether a major or minor) to have “expertise” in the “subtleties and complexities of High Court litigation” in order to have the necessary locus standi to litigate. This is the arena of the trained attorney whose mandate is to provide the client with expert advice.

A curator ad litem is not required to be anything other than a natural person with the locus standi which the minor lacks and with an intention to act in the minor’s best interests. If all litigants had to be measured against the standards argued for in the Thithi and Others applications, curators ad litem would have to be appointed for all natural persons not trained in the legal field.

Judge Tuchten uses the Children’s Act to support his view that, save for the exceptions mentioned earlier, there is no reason why a close adult family member of sound mind (or a caregiver as defined in the Children’s Act) should not be able to represent or assist a minor with litigation if the minor’s biological parents are unable or unwilling to so do, or if there is a conflict of interest. Judge Tuchten appears to suggest that this should be possible without a formal application for the appointment of such a close family member as curator ad litem.

On this last point, I respectfully disagree with Judge Tuchten. It is my view that the abuse of process he seeks to address is the unnecessary expense of appointing an advocate or other legally trained person as curator ad litem on behalf of a minor in matters where:

  • the minor’s natural guardians are willing and able to represent or assist the minor 
  • or, if the latter are not available, where a close family member or caregiver (if he or she is a major, of sound mind and without any of the other limitations to the capacity to act as a natural person) is available.  

A family member or caregiver who is appointed as curator ad litem would be able to provide the minor with the necessary assistance and guidance expected from any adult lay person who could act as a litigant in his or her own action without any restriction. In this case, the only additional expenses incurred would be in respect of the application itself.

The capacity to be the bearer of rights and duties, to perform acts or to litigate in a law suit (locus standi) relates to the status of a person. Limiting or awarding this capacity or any part thereof to a third party is therefore significant. With the exception of reaching the age of 18, which automatically confers majority, the state alone can award, revoke or alter the status of a person. Allowing a person other than the biological parent of a minor to assume a position in which they remedy the limitations to a minor’s status as a litigant is not a decision which ought to be taken lightly. This should only take place through the intervention of the state and by way of formal application.  

Both the Road Accident Fund and judges hearing such applications should strongly object to appointing advocates as curators ad litem on behalf of minors who have biological parents or to the appointment of advocates above lay persons who are willing and able to assist and represent a minor’s family member. However, the requirement that a person who is not the biological mother or father of the minor must apply to be appointed as curator ad litem on their behalf should not be dispensed with.