Advocates will no longer be routinely appointed as curators to assist children in claims against the Road Accident Fund where they add no value and vastly increase the cost of litigation, a high court judge has ruled.
Judge Neil Tuchten convened a special court and invited the Centre for Child Law to make submissions after he and a number of other judges became uneasy about whether curators were necessary in all cases where children were claiming damages for the injuries they sustained in car accidents or for loss of support.
He turned down applications for the appointment of curators in 15 separate cases where the applicants were the mothers, grandmothers or relatives of children claiming damages from the RAF, stressing that adult family members who were the children’s caregivers were competent to assist them in such claims.
The High Court in Pretoria dealt with at least 160 cases against the fund every day of the week during term and it had become routine to apply for the appointment of curators where the plaintiff was a child.
The curators appointed were in most cases Pretoria advocates and the court orders provided for the fund to pay their fees if the child’s claim succeeded.
Judge Tuchten said his concern was that such appointments created an additional tier of paid professionals retained to represent or protect the interests of children, while the curators in most cases simply duplicated the work already done or which could have been done by attorneys or advocates.
He said argument that the appointment of a curator was justified where the child was far from the seat of the court, where relatives were poorly educated or where attorneys feared that they would have to defend themselves against accusations that they had given negligent advice which resulted in lower settlements were not valid reasons for the appointment of curators.
Poor or poorly educated relatives might place a greater burden on the attorney who accepted the case, but the appointment of a curator would not eliminate the burden, just pass it from the attorney to the curator at public expense, he added.
An attorney who gave negligent advice was liable because they gave such advice, while the appointment of a curator would not immunise them from the risk. Where the RAF unreasonably refused to accept the attorney’s authority to represent the child, they could approach the court for declaratory orders, he said.