Selina Sitole v Lloyd Muriva and The Master of the High Court N.O

### Preamble
1
HH 153-22
CIV “A” 4563/19
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SELINA SITOLE

versus

LLOYD MURIVA

and

THE MASTER OF THE HIGH COURT N.O

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE, 22 February, 2022

OPPOSED MATTER

C.T.Tinarwo, for the Applicant

B Furidzo, for the 1st Respondent

No appearance for the 2nd Respondent

MAXWELL J

Applicant who resides in Germany approached this court seeking the appointment of one Pepukai Mabundu as a curator ad litem of Samantha Mercy Muriva (Samantha), born on 14 September 1996. Applicant and 1st Respondent are the biological parents of Samantha. Applicant alleged that Samantha is mentally ill and legally cannot perform any juristic act without a curator ad litem. She stated that Samantha has been in the custody of 1st Respondent without the consent of the Applicant. Applicant alleged that she wants to use the opportunity of her current stay in Germany to seek quality medical attention for her daughter therefore she seeks to have custody of her daughter. Applicant submitted that Pepukai Mabundu consented to being appointed as a curator ad litem for her daughter. In her view following the appointment he will assess whether or not her daughter is mentally ill and whether or not she, as the biological mother, should be awarded custody. According to her, 1st Respondent will not suffer any prejudice as a result of the appointment. Pepukai Mabundu confirmed his consent through an affidavit attached as Annexure “A” to the Founding Affidavit.

The application is opposed. Felistas Mapwashike (Felistas) deposed to the opposing affidavit on behalf of 1st Respondent on the basis of a Special Power of Attorney. She avers that there is no basis for the application as Samantha is not mentally ill. She points out that Applicant has not proffered medical evidence showing that Samantha is mentally ill. She argued that Samantha can perform any juristic act and does not require a curator ad litem. To show that Samantha is not mentally ill, Felistas attached a Certificate of Attendance from Harare Polytechnic certifying that Samantha attended a course in Bakery, Level III from August 2018 to September 2018. The certificate is attached as Annexure “B”. Felistas further pointed out that on 16 December 2012 when Samantha was still a minor   Applicant voluntarily surrendered her custody to 1st Respondent and indicated to him that she was married and living in Germany. A letter to that effect is attached as Annexure “C”. The Marriage Certificate attached to that letter shows that the marriage was entered into on 15 August 2008 in Denmark. Felistas contends that Samantha is now a major who can make her own decisions. She disputed the capacity of Pepukai Mabundu to assess whether or not Samantha is mentally ill as he is not a medical practitioner. Felistas prayed for the dismissal of the application with costs on a legal practitioner and client scale.

In her answering affidavit Applicant insisted that Samantha is mentally ill. According to her efforts to seek medical attention for Samantha were being blocked by 1st Respondent. She disputed surrendering custody of her daughter and alleged that Annexure “C” to the opposing affidavit is not authentic. She insisted that Samantha needed a curator ad litem who could even engage a medical practitioner to carry out the necessary tests. She averred that there is no alternative remedy and the application ought to be granted with costs on a legal practitioner and client scale.

The question that arises is whether or not a case has been made for the appointment of a curator ad litem? The answer seems to be in the negative. An application of this nature was governed by Order 32 Rule 249 (1) (a) and (b).  The Rule provided that; -

“In the case of any application in connection with—

the estate of a person alleged to be prodigal or under any disability, mental or

otherwise; or

(b) a minor;

a chamber application, annexing the written consent of the person proposed to be so appointed, shall first be made for the appointment of a curator ad litem.”

Now it is governed by Rule 61 (2) (a) and (b). The court must first be satisfied that the person for whom a curator ad litem is to be appointed is either a prodigal, minor or a person under a disability, mental or otherwise. 1st Respondent disputes that Samantha is a minor. That position is confirmed by her age. At the time of filing the application, Applicant averred that Samantha was tuning 23 years that year, i.e,in 2019. It follows that at the time of writing this judgment, she will be turning 26 years. Section 2 of the Children’s Act [Chapter 5:06] defines a minor as a person under the age of eighteen years; Samantha is not under the age of 18. Mr Tinarwo submitted that she is being referred to as a perpetual minor by virtue of the fact that she is not of a sound mental state. No authority was provided to support that submission. It therefore follows that it was incompetent for Applicant to make this application on the basis that Samantha is a minor. Rule 249 (1) (b) is therefore inapplicable in this case. Rule 249 (1) (a) deals with a person under any disability, mental or otherwise. Applicant was correct to base the application on this rule. However that is not the end of the matter. In accordance with the said rule, the appointment of a curator ad litem is connected to the estate of the person for whom he is to be appointed. Generally this is usually in circumstances were the mentally challenged person is a party in litigation or is entitled to receive some assets in cash or kind. As stated in AFM Zimbabwe v Josiah Garamukanwa HH 468/17; -

“A curator ad litem is a person who is appointed by the court to act in a lawsuit on behalf of another person .He may be appointed on behalf of a child or an incapacitated adult who the court deems incapable of representing his interests in a suit. A mentally defective person is at law deemed incapable of representing himself. Every litigant is required to have the requisite mental capacity to understand and appreciate legal proceedings. Where a litigant is shown to lack capacity, he must be represented by a curator ad litem who litigates on his behalf. Before a court appoints a curator, it has to be satisfied that a litigant’s condition is such that it warrants the appointment of a curator.”(Bold for emphasis)

As submitted for 1st Respondent, Applicant has not stated which litigation she wants to conduct on behalf of Samantha. She makes reference to an application for custody but issues of custody pertain to children or minors. See Simango (nee Makoni) v Simango HH 79/2011. In any event, Applicant has not established that Samantha lacks capacity. Her mere say so is not enough. In the AFM v Garamukanwa case (supra), a curator ad litem was appointed after the Court witnessed some irrational behavior during proceedings. I am of the view that Applicant ought to have stated the grounds on which she believes Samantha is mentally ill. It is common cause that Applicant took care of Samantha up to 2011. Applicant should have stated any observations pointing to instability of mind during the time she had Samantha in her custody. The fact that at that time she did not find it necessary to seek the help of a psychiatrist or neuropsychologist is telling. On being asked why Applicant did not gather evidence of Samantha’s mental condition up to the teenage years when she had custody, Mr Tinarwo’s response was that there are levels of mental disability and when Applicant had custody Samantha’s condition was not so extreme. That the condition was not extreme suggests that there were telltale signs yet none are stated in the Founding Affidavit.

I am not persuaded that a case has been made for the appointment of a curator ad litem. No facts have been provided to enable the Court to conclude that Samantha’s condition is such that it warrants the appointment of a curator. The Application therefore fails.

1st Respondent sought costs on a legal practitioner and client scale. His heads of argument state that he has been put to unnecessary expense. I agree. Despite being challenged that the application was baseless, Applicant persisted. There is no reason to deny 1st Respondent the costs prayed for. Accordingly, the following order is appropriate.

The application be and is hereby dismissed with costs on a legal practitioner and client scale.

Zimudzi and Associates, Applicant’s Legal Practitioners

Marume & Furidzo, Respondent’s Legal Practitioners