Ex parte Bloy

• Jurisdiction: South Africa
• Judge: Kriek J
• Judgment Date: 27 September 1983
• Citation: 1984 (2) SA 410 (D)
• Hearing Date: 27 September 1983
• Court: Durban and Coast Local Division

Kriek J:

This is an ex parte application for the appointment of a curator ad litem to Russel Phillip Bloy, a minor who is said to have a claim for damages against the third party insurers of a motor vehicle which ran into him and caused him certain injuries. The application is brought by his grandmother in whose custody he has been placed by a children's court. It is not known where his parents are.

Kriek J

The applicant seeks an order appointing an advocate as curator ad litem -

"... to represent Russel Bloy and on his behalf to bring, prosecute and to take all such steps as are necessary in respect of any claim, action or other lawful proceedings A and to settle and compromise any claim, action or proceedings which may subsist or arise against the Southern Insurance Association Ltd, which carries on business as insurers in terms of Act 56 of 1972, as amended, at Ashley House, 320 Smith Street, Durban, for compensation in terms of the aforesaid Act, as a result of injuries received by B the said Russel Phillip Bloy in a motor collision."

Apart from a statement that the minor received certain injuries "in a motor collision which occurred on 28 November 1980 at the intersection of Clinic and Alabama Roads, Wentworth, Durban," and that the driver of the insured vehicle was one Pretorius, C the only reference in the affidavit to the cause of the accident in question, is the following:

"According to information received by me and as a result of discussions with the said Russel Phillip Bloy, I verily believe that the said collision was caused solely by the negligence of the said R Pretorius."

This was presumably said with the object of satisfying the Court that there is a reasonable probability that the proposed D action will succeed. It does not achieve that object. All the applicant is saying that on the basis of certain undisclosed information she "verily believes" (the emphatic asseveration does not, of course, endow her belief with any special qualities) that the insured driver's negligence was the sole cause of the collision. This cannot possibly satisfy the Court E that the proposed action has a reasonable prospect of success. Even if she had related what she had been told, that would still not have been good enough since she would then have been advancing hearsay evidence.

It seems to me that the Court, as upper guardian of minors, has a two-fold function in matters such as the one with which I am F now concerned:

(a)

It must ensure that the advocate to be appointed as curator ad litem, who will have authority, not only to assess the quantum of the...