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[2019] ZAWCHC 35
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Ex Parte: S.M.W (18926/2018) [2019] ZAWCHC 35 (28 March 2019)
Republic
of South Africa
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No:
18926/2018
In
the
ex
parte
application of:
S
M
W
Applicant
For
the appointment of a curator
ad
personam
to
R
W S
W
Patient
and
J
J
W
Intervening
Party/Respondent
(nee
A nee O)
In
her application to intervene
Heard:
12, 15 March 2019
Revised Judgment: 28 March 2019
JUDGMENT
De Waal AJ:
[1]
In
this Judgment I deal with an intervention application brought by Ms J
J W (“
the
Intervening Party
”)
in respect of the application brought by Mr S M W (“
the
Applicant
”)
for the appointment of a curator
ad
personam
to R W S W (“
the
Patient
”).
The Applicant is the son of the Patient and the Intervening Party is
his wife, them having married on 8 June 2018.
I
should add that the Applicant believes that the Patient’s
marriage to the Intervening Party is void due to the latter’s
lack of mental capacity when he entered into that marriage.
[2]
In
2017, the Patient had a first stroke. As a result he now
suffers from loss of speech and impaired coordination. After
his discharge from hospital he also displayed episodes of mania and
aggression. His health subsequently deteriorated further,
as I
shall explain below.
[3]
In
May 2017, the Applicant found space for the Patient in a care
facility known as St Johannis Heim situated in Parow.
This
is an upmarket retirement home. The Applicant believed this
home would give the Patient the best chance of recovery.
[4]
During
this time, the Patient was also examined by a neurologist who came to
the conclusion that the patient cannot manage his own
financial
affairs due to him having severe functional deficits; having no
ability to use language and speech; and suffering from
a cognitive
impairment. The neurologist recommended that a curator
bonis
and
a curator
ad
personam
be appointed for the Patient. The Patient’s medical
practitioner also came to the conclusion that the Patient is unable
to manage his financial and personal affairs and recommended that
curators be appointed for him.
[5]
On
18 July 2017, the Applicant instituted an application for
the appointment of a curator
bonis
for the Patient. On 5 September 2017, Mr Johann
Vos (“
Mr Vos
”)
of Visagie Vos Attorneys, a firm specialising in curatorship matters,
was appointed as the curator
bonis
.
[6]
At
that time, the Applicant believed that it would be unnecessary to
appoint a curator
ad
personam
as the Patient was residing at St Johannis Heim, a care facility
that is professionally equipped to see to the Patient’s
every
day and medical needs.
[7]
The
Intervening Party, who has had a relationship with the Patient for
over 8 years, visited the Patient on a regular basis.
This
resulted in conflict between her and the Applicant. There is a
long history of animosity between the two.
[8]
The
Patient’s circumstances changed in April 2018 when it
appeared that he suffered another stroke. The Intervening
Party
then removed the Patient from St Johannis Heim and took him to
the Panorama Hospital. This escalated the tensions
between the
Applicant and the Intervening Party. During this time, it
appeared to the Applicant that the Patient’s
condition was
deteriorating. The Applicant mentions an occasion when he took
the Patient out for a pizza but the latter was
so confused that he
could not differentiate between a slice of pizza and a serviette, and
he kept trying to eat the serviette.
[9]
On
4 June 2018, the Applicant received a phone call from one
of the Patient’s friends informing him that the Intervening
Party planned on marrying his father on Saturday, 9 June 2018.
The Applicant found this absolutely bizarre as,
according to him, the
Patient was not mentally capable of comprehending what he was going
to do. Medical professionals confirmed
that the Patient was
unable of understanding the meaning and consequences of entering into
a marriage relationship.
[10]
The
Intervening Party nevertheless went ahead and, on her version,
married the Patient at St Johannis Heim during the course
of
Friday evening, 8 June 2018. She then left with the
Patient, with the permission of the staff, and took him back on
the
Sunday evening.
[11]
After
the wedding, the Patient continued to reside in St Johannis
Heim, but the Intervening Party was now frequently taking
him out for
day trips.
[12]
On
16 July 2018, the Applicant received a WhatsApp message
from a friend of the Patient which contained a photo of his
father
walking in the street with a piece of cloth wrapped around his hand.
The Applicant then opened a missing persons case
at the Muizenberg
police station. It appears that the Patient was stabbed.
He was initially taken to Groote Schuur
Hospital but was later
admitted to Kingsbury Hospital. It appears from ameeting held
between the curator
bonis
,
the Intervening Party and a private social worker, a Ms Edna
Lambrechts (“
Ms Lambrechts
”),
that what happened was that the Intervening Party left the Patient at
her house unsupervised while she went to work.
Upon her return
she realised that the Patient was gone and she notified the
neighbourhood watch. The Patient ended up at
a mall where
someone called an ambulance which took him to Groote Schuur
Hospital. The hospital had the Intervening Party’s
name
as a contact and the Patient was then transported to Kingsbury
Hospital, on the instructions of the Intervening Party. He
stayed there overnight and was then discharged and fetched away by
the Intervening Party. In the intervention application,
the
Intervening Party gives a different version of the events, to which I
shall revert below.
[13]
At
the time when the application for the appointment of a curator
ad
personam
was launched, the Patient was still staying with the Intervening
Party.
[14]
According
to expert reports annexed to the founding affidavit, the Patient
suffers from severe functional deficits resulting in
the following:
14.1.
The
inability to use language and to fully understand spoken words;
14.2.
Poor
insight and judgment;
14.3.
Behavioural
changes;
14.4.
Inability
to plan motor tasks;
14.5.
Spatial
disorganisation;
14.6.
Inability
to express himself in a verbal or non-verbal manner; and
14.7.
Impaired
comprehension of simple daily tasks.
[15]
The
experts further state that the Patient’s condition is of such a
nature that any improvement in his condition or his return
to full
social and occupational functioning, is highly unlikely.
[16]
Against
this background, the High Court appointed a curator
ad
litem
for the Patient on 24 October 2018.
[17]
In
terms of the Court order, the curator
ad
litem
had to report to the Court on the desirability of declaring the
Patient incapable of managing his own personal affairs and that
a
curator
ad
personam
be appointed for him.
[18]
The
curator
ad
litem
,
Adv Genevieve Hayward, duly compiled a report which is dated
22 November 2018. In her report, she recorded
that:
18.1.
She
interviewed the Patient and found that he was unable to communicate.
His speech is unintelligible and he only makes the
same repetitive
sounds (duh duh duh).
18.2.
Two
expert geriatric psychiatrists expressed the opinion that the Patient
is unable to communicate and that he suffers from vascular
dementia.
18.3.
Both
psychiatrists are of the opinion that the Patient needs to live in a
frail care facility that allows for 24-hour nursing care,
especially
because the Patient is often active at night.
18.4.
The
experts asked the Patient to indicate his answers by tapping once for
“yes” and twice for “no”, but
the Patient was
unable to do so. He has conduction aphasia. He cannot
communicate yes or no on demand.
18.5.
According
to the Intervening Party the patient is fully functioning.
However, the Intervening Party also indicated that she
wishes to be
appointed as the curator
ad
personam
to the Patient.
18.6.
The
experts concluded that the Intervening Party does not understand the
Patient’s needs and that she cannot cope with the
care of the
Patient.
18.7.
During
an interview held on 9 November 2018, the Intervening Party
informed the curator
ad
litem
that she intends to obtain another medical report regarding the
Patient’s condition. She undertook to provide the curator
ad
litem
with the report. However, at the time of the completion of the
report, the curator
ad
litem
had not received the promised medical report from the Intervening
Party.
18.8.
The
Intervening Party and the Patient have been in a relationship for
8 years. They had discussed marriage but the time
was
never right.
[19]
In
the light of the above,, the curator
ad
litem
found that it is in the Patient’s best interest that his
current living arrangement and medical care and treatment be
investigated
and that decisions be made on his behalf in this
regard. She further found that these issues need to be
urgently
resolved as they pertain to the Patient’s wellbeing, safety and
care.
[20]
The
Applicant suggested that Ms Lambrechts be appointed as the
curator
ad
personam
whilst the Intervening Party, as stated before, suggested that she
herself be appointed as curator
ad
personam
.
[21]
Given
the conflict between the views of the Applicant and the Intervening
Party, the curator a
d
litem
recommended that it would be counterproductive to appoint the
Intervening Party as it would not result in the issues being
resolved.
Given the objection by the Intervening Party to
Ms Lambrechts, nominated by the Applicant the curator
ad
litem
recommended that Ms Patricia Lucette Lindgren (“
Ms Lindgren
”)
be appointed. Ms Lindgren was a director at Action on
Elder Abuse (SA) which had to close its doors due to a
lack of
funding. She also previously served on the board of Dementia
(SA). She has many years of experience working
with elderly
patients with mental illnesses. She charges R500 per hour for
her services.
[22]
I
pause to mention that it is clear from the curator
ad
litem
’s
report that the Patient is in the fortunate position of being able to
afford the services of a curator
ad
personam
at the rate of R500.00 per hour. The Patient has some four
immovable properties registered in his name to the value of well
over
R3 million as well as cash in bank accounts to the value of
approximately R450 000.00. He receives rental
income and a
monthly pension pay-out. The income easily covers the two home
loans in respect of two of these properties.
It should further
be borne in mind that the intention is not for the curator
ad
personam
to personally take care of the Patient at R500 per hour but rather
for her to investigate and arrange the best solution for him.
[23]
On
28 January 2019, the curator
ad
litem
filed a supplementary report following her second meeting with the
Intervening Party which took place on 24 January 2019.
[24]
During
the course of the second meeting, the Intervening Party reported that
the Patient was doing well and that he was still living
with her.
She further stated that a carer, Ms Vanessa Moses, now looks
after him while the Intervening Party was at
work. At the
meeting, the Intervening Party presented a letter prepared by a
psychiatrist, Dr Chris George (“
Dr George
”).
In this letter, Dr George concluded that, due to his expressive
aphasia, the Patient was totally unable to
give any information
regarding himself, his health, family and financial affairs.
The Intervening Party further provided
the curator
ad
litem
with a written response to her report which she requested the curator
ad
litem
to provide to the Court. This response is indeed annexed to the
supplementary report of the curator
ad
litem
.
In fact, some twelve documents were provided by the Intervening Party
to the curator
ad
litem
,
including a statement that the Intervening Party declined the
position as frontline supervisor at her work as she wished to focus
on the Patient.
[25]
In
her supplementary report, the curator
ad
litem
concluded that there is a conflict between the contents of the
founding affidavit and the responses of the Intervening Party.
According to the curator
ad
litem
,
the Applicant and the Intervening Party express different versions
regarding past events and they agree on very little, if anything,
regarding important matters pertaining to the Patient. Given
that the Patient is incapable of communicating, a vulnerable
adult
and a person who is completely dependent on others to assist him with
his affairs, the curator
ad
litem
confirmed the recommendation in her first report that the Patient be
declared incapable of managing his own personal affairs and
that
Ms Lindgren be appointed as curator
ad
personam
.
[26]
When
the matter was called in the Third Division on Tuesday,
12 March 2019, Mr J Moses announced that he was
acting for the Intervening Party and that he intended to bring an
application to intervene and ultimately to oppose the appointment
of
the curator
ad
personam
.
I then ruled that the matter should stand down until Friday,
15 March 2019 in order for the Intervening Party
to prepare
and file papers in support of the application. Such an
application was duly delivered during the course of Thursday,
14 March 2019.
[27]
However,
in the founding affidavit, the Intervening Party traverses much of
the same terrain as covered in her interactions with
the curator
ad
litem
.
In this regard, the Intervening Party:
27.1.
Emphasises
her long relationship with the Patient, including her marriage to
him.
27.2.
Claims
that the Applicant and his father never had a good relationship.
27.3.
States
that she invited the Patient’s family to the wedding ceremony
but that only his brother’s stepdaughter and her
friend came.
27.4.
States
that the Patient was very agitated and frustrated with his placement
at the St Johannis Heim frail care centre.
For this
reason, he attempted to abscond from the centre on or about
15 July 2018 and was on his way to his house when
he was
found in Frans Conradie Road, Parow.
27.5.
Claims
that the Patient can drink coffee / tea; can eat on his own; can
indicate what he likes; can dress himself; can use the toilet;
walk
normal and will communicate with facial and sound expressions and
hand gestures.
27.6.
Lists
the documents provided to the curator
ad
litem
which are the subject matter of the latter’s supplementary
report as well as certain further medical reports which she claims
were not annexed to the curator’s report even though referred
to therein.
27.7.
Explains
that she has earned a decent income in her life and has acquired two
properties as well as two motor vehicles in her own
name. Says
furthermore that she has always used her own resources to buy things
necessary for the Patient.
27.8.
Objects
to the enormous cost implications of the appointment of the curator
ad
personam
for the Patient.
27.9.
Acknowledges
that there are differing medical opinions regarding the condition of
the Patient and asks for more time to obtain medical
opinions and
explore ways of improving his physical and mental health and
wellbeing.
27.10.
Claims
that the Patient’s biggest impediment is his inability to
speak.
27.11.
Contends
that the Patient was not “
abducted
”
on 8 June 2018 in order to marry him but that he willingly
went with the Intervening Party and then spent a wedding
night
together with her at her house whereafter he returned to the frail
care centre on Sunday, 10 June 2018.
27.12.
Explains
that on 15 July 2018, whilst the Patient was in her care,
she left him to go to work and asked her sister and
uncle to look
after him. It was during this time that the Patient somehow
managed to leave the house and was found in the
vicinity of a crowd
of demonstrators. After the news of his disappearance broke, he
was picked up by an acquaintance who
saw the WhatsApp messages
regarding him and this person then took him to the Westgate Mall.
From there he appears to have
ended up in Groote Schuur Hospital and
Kingsbury Hospital, as was explained above.
[28]
I
have considered the affidavit of the Intervening Party as well as the
annexures thereto. In my view they do not cast any
doubt on the
question as to whether the Patient is capable of managing his own
affairs and whether there is a need for the appointment
of a curator
ad
personam
to assist him. As things stand, he is clearly incapable of
managing his own affairs.
[29]
I
do not understand the Intervening Party to contend otherwise.
The argument made by the Intervening Party at the hearing
of the
matter was rather that the Patient primarily suffers from a speech
impediment which could improve with proper treatment
and furthermore
that it was unnecessary that a curator
ad
personam
be appointed as she herself could look after the Patient at minimal
cost to his estate.
[30]
My
findings are as follows:
30.1.
In
the present matter all the formal requirements for the appointment of
a curator
ad
personam
have been met. The curator
ad
litem
’s
report has been filed. In that report a convincing case is made
out that the Patient is unable to manage his affairs
that there is a
need for the appointment of a curator
ad
personam
.
30.2.
The
Master has also filed a report which does not cast any doubt on the
recommendations of the curator
ad
litem
,
although pointing to case law which held that there must be a real
need for the appointment of a curator
ad
personam
.
30.3.
Having
regard in particular to the incident on 15 July 2018 where
the Patient somehow left the Intervening Party’s
house and was
later found wandering in the area and, it appears, stabbed in the
hand, it is imperative that a curator
ad
personam
be appointed immediately.
30.4.
There
is a dispute about whether the Patient will improve to such an extent
where a curator
ad
personam
is no longer necessary and there is also the dispute about who the
curator should be.
30.5.
Those
matters do no need to be resolved immediately and I have made
provision in the order I intend to make for these aspects to
be
revisited in due course. At the moment it is imperative that an
independent third party act as curator
ad
personam
in order to ensure that the Patient receives the best assistance
possible in the circumstances.
[31]
Uniform
Rule 57(10) confers a wide discretion on the High Court to
impose “
such
terms as to it may seem meet
”
when appointing a curator
ad
personam
.
In this regard, the Court should obviously specify the powers
conferred upon the curator. But I see no reason why
the Court
cannot also require that the question of whether a curator remains
necessary and who that curator should be, should be
revisited after a
certain period of time has expired. In the present matter and
given the dispute between the Applicant and
the Intervening Party I
consider it necessary that these aspects be revisited in a few months
from now. I have to this end
incorporated a paragraph into the
order to be made which requires the curator
ad
personam
to compile a report to the curator
ad
litem
and for the latter to re-enrol the matter in October 2019 for
reconsideration. In this regard, I have further provided
for
the Intervening Party to be furnished with a copy of the curator
ad
personam
’s
report for her comments, which comments are also to be considered in
October 2019 by this Court.
[32]
It
would be inappropriate for this matter to be reconsidered in the
Third Division in and amongst many other unopposed matters.
The
duty Judge simply does not have sufficient time to give proper
consideration to the matter if opposed, which is highly likely
to be
the case. For this reason I have decided to refer the
reconsideration of the appointment of the curator
ad
personam
as well as the identity of that curator to the Fourth Division for
determination. The parties may approach me once they have
agreed on a date for the reconsideration of the matter in the Fourth
Division and obtained the necessary compliance certificate.
I
shall then refer the issue set out in paragraph 4 below for hearing
on the semi-urgent roll on the agreed date.
[33]
In
the result, the following orders are made:
1.
The
application for intervention is dismissed with no order as to costs.
2.
For
and until the matter is reconsidered by the Court in terms of this
order, and until the Court on reconsideration reaches a different
conclusion:
2.1
the
Patient, Mr R W S W, is declared incapable of managing his
personal affairs; and
2.2
Patricia
Lucette Lindgren is appointed as curator
ad
personam
to the Patient with the powers as set at in annexure “
B”
hereto and subject to her not charging more than R500.00 per hour for
her work.
3.
The
costs of the application for the appointment of a curator
ad
personam
,
as between attorney and client, including the costs of the
application for the appointment and the fees of the curator
ad
litem,
is to be paid out of the estate of R W S W.
4.
The
issue of whether a curator
ad
personam
remains necessary for the Patient as well as the issue of who the
curator
ad
personam
should ultimately be, is referred to the semi-urgent roll in the
Fourth Division for reconsideration on a date suitable to the
Applicant, the curator
ad
litem
and the Intervening Party in terms of the following timetable:
4.1
The
curator
ad
personam
shall compile a report to the curator
ad
litem
by no later than 31 May 2019;
4.2
The
Intervening Party shall be entitled to comment on that report by no
later than 31 July 2019;
4.3
The
Applicant shall file his heads of argument no later than 10 days
before the hearing; and
4.4
The
Intervening Party shall file her heads of argument no later than
5 days before the hearing.
H J DE WAAL AJ
Acting Judge
of the High Court
Cape Town
28 March 2019
APPEARANCES
Applicant’s
counsel: Adv C Bosman
Applicant’s
attorneys: Visagie Vos Attorneys (Goodwood)
Intervening
Party’s counsel: Mr J Moses
Intervening
Party’s attorneys: Bagraims Attorneys (Gardens, Cape
Town)
Curator
ad
litem
: Ms G Hayward
Applicant’s
attorneys: Visagie Vos Attorneys (Goodwood)