Ex parte Oppel and Another

• Jurisdiction: South Africa
• Judge: Ngwenya J
• Judgment Date: 21 September 2001
• Citation: 2002 (5) SA 125 (C)
• Docket Number: 2616/2001
• Hearing Date: 09 May 2001
• Counsel: J P de Pontes for the applicants.
• Court: Cape Provincial Division

Ngwenya J:

This is an application for the appointment of a curator ad litem with a view to preparing a report to the Court regarding the need to appoint a curator bonis or trustee to the estate of Dowayne Oppel (the minor). The B costs of this application are to be paid out from the estate of the minor.

This matter came to me on 12 April 2001 in the Third Division. It is my experience in Third Division in this Court that matters of this nature have become commonplace. I requested full heads of argument from counsel, Mr De Pontes, who appeared for the applicant in this matter. This I did because I had recently dismissed an almost C identical application and Mr De Pontes suggested that the issues raised here are totally different to the issues in that case.

Although the matter was not opposed, a firm of attorneys, apparently acting for the Road Accident Fund (RAF), faxed a letter to my Registrar for my attention, but there was no appearance for the RAF. In essence D the letter says that they object to the form of relief sought in para 4 of the application for the reasons set out in their attached telefax to the applicant's attorneys of even date.

This was quite an unusual way of appearance in Court, if it can be so called. It is discourteous, improper and out of order. The less said E about it the better. One can only hope the RAF will insist that those they instruct be observant of the Rules of this Court.

After I was furnished with the heads of argument, I dealt with the matter and on 9 May 2001 I refused the application. I did not give my reasons. On 4 June 2001 a request for reasons for judgment in terms of Rule 49(1)(C) of the Uniform Rules of Court was filed with the F Registrar of this Court. That Rule reads as follows:

'When in giving an order the Court declares that the reasons for the order will be furnished to any of the parties on application, such application shall be delivered within ten days after the date of the order.' G

Manifest in this request for the reasons are that it is completely out of time and therefore out of order. There is no condonation filed. Notwithstanding that, a letter has been addressed to the Registrar, again for my attention, in which the Registrar is asked to inquire from me about the reasons. That letter is dated 29 August 2001. Although I do not condone this attitude, at the same time I consider H these reasons important, in particular for the RAF.

The brief background of this matter is as follows. The applicants are husband and wife and parents of a minor child, Dowayne, born on 27 July 1984. He is now 14 years old. On 29 January 1995, the minor was involved in a car accident while riding on his bicycle. As a result of the accident, he sustained serious head injuries. Applicants, on I behalf of the minor, subsequently filed a claim with the RAF, claiming damages. On 20 February 2001 a settlement was reached with the RAF for the payment of a total sum of R861 338, together with a s 43 undertaking. In this amount is included the cost of the curator if he/she were to be J

Ngwenya J

appointed. This offer was subject or conditional to the appointment of a curator bonis to the estate of the A minor. It is for this reason that this application is brought.

The first applicant, who is the father of the minor, avers that he went as far as standard 4 at school, while the second applicant, his wife and the mother of the minor, attained standard 10 and thereafter proceeded to a nursing college, where she ultimately qualified as a B nursing sister. Between the years 1987 to 1999 she worked full-time as a nursing sister at the old age home at Springbok. As a result of the minor's injuries she resigned her job and looks after the minor on a full-time basis.

The gravamen of the applicant's case is set out as follows:

''11.

Ek is 50 jaar oud, en het tot standerd 4 op skool gevorder. Ek is sedert 1960 as verwer in diens van die O'kiep Copper C Company. Ek beskik nie oor die nodige kennis en vaardighede om die bedrag van R861 338 wat Dowayne toekom, behoorlik namens hom te bestuur en te belê nie.

12.

Die tweede applikante, my vrou en Dowayne se moeder, het St 10 voltooi en is as verpleegster opgelei. Sy het vanaf 1987 tot 1999 by die Springbok Ouetehuis gewerk. Sy is tans voltyds by die huis ten D einde Dowayne beter te kan versorg. Sy beskik eweneens nie oor die nodige kundigheid om so 'n groot bedrag geld behoorlik te kan bestuur nie.

13.

Ons vrees dat ons, uit onkundigheid, verkeerde besluite of beleggings kan maak wat Dowayne se boedel in die lang termyn kan benadeel.

14.

Ek en die tweede applikante is daarvan bewus dat 'n bedrag van E R741 338 as toekomstige verlies aan verdienvermoe by die skikkingsbedrag ingesluit is, en dat die geld vir die res van Dowayne se lewe sal moet hou. Dit is vir ons duidelik dat hierdie geld op 'n kundige manier belê en bestuur sal moet word.

15.

Ons is van mening dat dit in Dowayne se beste belang sal wees indien 'n kurator bonis vir Dowayne se boedel F aangestel word. Ons...