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STEYN v. STEYN.

 

(NORTHERN CAPE DIVISION.)

 

1972. June 29; July 14.   VAN DEN REEVER. J.

 

Curator.-Curator-ad-litem.-Application for appointment of.-Uncertain when action could be proceeded with.-Refusal of application.

 

Applicant applied for the appointment of a curator-ad-litem for his wife "to do everything to fully assist her and act on her behalf" in an action which he proposed to bring against her, on the ground of alleged malicious desertion, for an order calling on her to restore conjugal rights. His wife, the respondent, was at the time in a hospital for mental treatment. Applicant attached a psychiatric report which clearly showed that respondent's desertion was at the time of the application not malicious.

 

Held, that it would be impractical to appoint a curator-ad-litem while it was uncertain when applicant's proposed action could be pursued.

 

Application for the appointment of a curator-ad-litem. The facts appear from the judgment.

 

M. D. J. Steenkamp, for the applicant.

 

Cur. adv. vult.

 

Postea (July 14^th.)

 

VAN DEN REEVER. J.: Applicant applied for the appointment of a curator-ad-litem for his wife

 

"to do everything to fully assist her and act on her behalf"

 

in an action which he proposes to bring against her, on the ground of her alleged malicious desertion, for an order compelling her to restore conjugal rights to him or in default of compliance, divorce.

 

He alleges that she has withheld conjugal rights from him since 1963 and has requested him to divorce her; which he refused to do because of their daughter who was still at home. Since the beginning of 1970 she started to use alcohol excessively, to such an extent since the beginning of 1971, that she had to be admitted to the National Hospital in Bloemfontein for treatment, from where she was transferred to the Oranje Hospital for psychiatric treatment.

 

He states further that it is essential to appoint a curator-ad-litem "to represent the respondent in the action which I propose to institute against her" because of the contents of the psychiatric report in respect of her condition. He attached a copy of the report to his application, and it reads as follows:

 

"(a)      Mrs. Steyn's memory in respect of the immediate past is still poor, although it has improved a lot. Spiritually she is extremely numbed and is interested in nothing. She does not care for herself and her clothes of her own accord, and instructions to her in this connection have to be repeated daily. She shows a complete lack of planning in respect of herself. When she goes away for a week-end she will only take cigarettes with her, if no one else packs clothes for her. She does nothing on her own initiative and must be requested to help with small chores, daily.

 

(b)       Her mental and physical condition can only be ascribed to prolonged, excessive abuse of alcohol.

 

(c)        I feel that her prognosis is hopeless, but like the panel of psychiatrists before whom I took her, I feel that·one should delay this decision for another six months, since there has been some improvement.

 

(d)       In my opinion Mrs. Steyn is best off in an institution for mentally deranged persons where she can also receive physical treatment and where she need not compete with normal people.

 

(e)       She is still receiving full treatment with vitamins and diet in order to reduce to a minimum the liver and brain damage, or if possible to repair it. At the moment she is not capable of understanding any legal procedures."

 

We are not dealing here with the appointment of a curator-ad-litem to manage the material affairs of an insane person, for example, in a divorce in terms of sec. 1 (1) (a) of Act 32 of 1935; but with a proposed action based on malicious desertion. If respondent does not have the mental capacity to maintain her previous intention to end the marriage, then applicant has no cause of action against her. Cf. Bowmaker v. Bowmaker, 1946 AD. 1094; and a curator cannot have this intention on her behalf. or. on receipt of a rule nisi, decide on her behalf, whether or not to restore conjugal rights-Ex parte A.B., 1910 T.P.D. 1332 ·at p. 1340. Indeed curators-ad-litem are often appointed in cases such as these (see, eg. van Dyk v. van Dyk, 1954 (2) S.A. 639 (O)); but his function is rather that of amicus curiae than that of curator-ad-litem. He does not supplement the respondent's limited capacity or act on his behalf, but rather presents evidence to the Court, on which the Court can decide whether respondent persists in a malicious desertion, or whether he is capable of deciding whether or not he will comply with the rule nisi.

 

The psychiatric report which applicant attached as a reason for the appointment for. a curator-ad-litem, clearly shows that respondent's desertion is not malicious at the moment. (Cf. also Hahlo, Husband and Wife, 3^rd ed., p. 396); and that, in addition, she is totally incapable of deciding on her reaction to a rule nisi.

 

Mr.·Steenkamp also did not argue that a different interpretation of this report was possible, and that a curator was, for example necessary so that these aspects could be investigated. He simply argued that respondent's condition does not exclude applicant's cause of action; it still exists, but is not enforceable.

 

Even if this argument were correct, it is impractical to appoint a curator-ad-litem at this stage, when it is still uncertain when the proposed action can be instituted. For example, a person appointed as a curator now, may not be available at that time.

 

No order is made on the application: but leave is granted to applicant to renew it, as soon as he supplements it with evidence which indicates that the possibility exists that he does have a (enforceable) cause of action against respondent.

 

Applicant's Attorneys: Roux, Welgemoed & de Kock.

 

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