SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION , PIETERMARITZBURG
CASE NO: 8637/2023P
In the ex parte application of
M[...] S[...] N[...] APPLICANT
and
A[...] A[...] INTERVENING PARTY
In the matter of an application for the
appointment of a curator ad litem to
M[...] A[...] (born M[...] )
(ID NO: 7[...])
___________________________________________________________________
ORDER
___________________________________________________________________
In the premises the following order is made:
1. It is declared that the patient, M[...] A[...] (born M[...] ) (ID NO: 7[...]) is declared
to be incapable of managing her own affairs.
2. The oral evidence of the medical and other witnesses may be dispensed with.
3. TWANNETTE HOL TZHAUSEN, an advocate of the High Court of South Africa,
be appointed as curat rix ad litem to the patient, M[...] A[...] (born M[...] ) (ID
NO: 7[...]) and is substituted for the patient in the aforesaid actions under case
2
numbers D4684/2023 and 7608/2023P with the powers to:
3.1 take all further steps to finalise and/or defend such claims;
3.2 launch such further claims on behalf of the patient in relation to the above
legal proceedings, as she may be advised;
3.3 settle and compromise the aforesaid claims; and
3.4 ratify any action taken on behalf of the patient in the course of the
aforesaid proceedings.
4.1 M[...] S[...] N[...] , is hereby appointed curat rix bonis to the estate of the said
M[...] A[...] (born M[...] ) (ID NO: 7[...]), with the following powers:
4.1.1 to receive, take care of, control and administer all the property
constituting the estate of the said M[...] A[...] ;
4.1.2 to carry on or discontinue, subject to any law which may be applicable,
any business or undertaking of the said M[...] A[...] ;
4.1.3 to acquire, whether by purchase or otherwise, any property, whether
movable or immovable, for the benefit of the said M[...] A[...] ;
4.1.4 to let, exchange, partition, alienate and for any lawful purpose to
mortgage or pledge any property, movable or immovable, whether in
whole or in part, belonging to the said M[...] A[...] ;
4.1.5 to perform any contract relating to the property of the said M[...] A[...]
entered into by her or on her behalf before she was declared incapable
of managing her own affairs;
4.1.6 to exercise any power or give any consent required for the exercise of
any power, where such power is vested in the said M[...] A[...] for her
own benefit or is in the nature of a beneficial interest in her;
4.1.7 to raise money by way of mortgage or pledge of any of the movable or
immovable property of the said M[...] A[...] for the payment of h er debts
or the payment of any debt or expenditure incurred or to be incurred for
her maintenance or otherwise for her benefit or the improvement or
maintenance of any of her property;
4.1.8 to apply any money for the maintenance, support or towards the
benefit of the said M[...] A[...] ;
4.1.9 to incur expenditure in respect of the improvement of any property of
the said M[...] A[...] by means of building or otherwise;
3
4.1.10 to expend any moneys belonging of the said M[...] A[...] on the
maintenance, education or advancement of any relative of the patient,
or any other person, wholly or partially dependent on the patient. To
continue such other acts of bounty or charity exercised by the patient
as the Master having regard to the circumstances and the value of the
estate of the patient considers proper and reasonable;
4.1.11 to invest and reinvest moneys which may be available from time to time
and which are not immediately required for the purposes referred to in s
82(c) of the Administration of Estates Act 66 of 1965; and
4.1.12 to institute proceedings which may be necessary in the interest of the
said M[...] A[...] , or for the due and proper administration of h er
property;
4.2 The powers conferred upon the said curat rix bonis, in paragraph 4.1 above
shall be exercised subject to the approval of the Master.
4.3 The curat rix bonis is exempted from providing security to the satisfaction of the
Master of the High Court .
5. M[...] S[...] N[...] be and is hereby appointed as curatrix personae to the person
of the said M[...] A[...] , with the following powers:
5.1 to give consent to the medical examination of the said M[...] A[...] ;
5.2 to admit the said M[...] A[...] to any hospital or medical facility;
5.3 to give consent for any medical or surgical procedure to be conducted
on the person of the said M[...] A[...] ;
5.4 to arrange for accommodation and care for the person of the said M[...]
A[...] ;
5.5 to admit the said M[...] A[...] to a nursing, rehabilitation or high -care
centre; and
5.6 to determine the appropriate investigation, treatment and management
of any medical or other condition of M[...] A[...] .
6. The costs of this application, as between attorney and client, including the costs
of the application for the appointment and the fees of the curat rix ad litem
appointed to represent the patient, shall be paid out of the patient’s estate.
7. All costs incurred, as a consequence of the intervening party’s opposition of this
application, shall be paid by the intervening party on a scale B.
___________________________________________________________________
4
JUDGMENT
___________________________________________________________________
Mathenjwa J
Factual background
[1] This application arise s from an emotional case where in Mrs M[...] A[...] (‘the
patient ’) who is married to Mr A[...] A[...] (‘the intervening party ’) murdered their own
daughter, a four-year-old by drowning her in a bucket of water on 26 April 2022. The
patient was convicted of murder and sentenced to 18 years’ imprisonment .
Subsequently , the intervening party instituted divorce proceedings against her, which
prompted the patient’s sister (‘the applicant’) to launch this application for the
appointment of a curator ad litem to assist the patient in the divorce action . The
application is opposed by the intervening party.
[2] The patient had appeared in the KwaDukuza Reginal Court where the
Regional Magistrate referred her to Fort Napier Psychiatric Hospital for psychiatric
evaluation in terms of ss 77 and 78 of the Criminal Procedure Act (the Act).1 Reports
of two psychiatrists diagnosed the patient as suffering from major depressive
disorder, in partial remission . However, both psychiatrists found that the patient was
fit to stand trial in the criminal proceedings and that at the time she committed the
offence she was able to appreciate the wrongfulness of her actions. The patient
pleaded guilty to the charge of premeditated murder in terms of s 112(2) of the Act
and she was found guilty as charged .
[3] On 6 June 2023 the applicant , Ms M[...] S[...] N[...] approached this court as a
matter of urgency seeking an order for the appointment of a curator ad litem to her
sister (the patient) , to investigate whether the patient is capable of managing her
own affairs and report on the prospect s of success or any further steps to be taken in
the legal proceedings brought against the patient in respect of the divorce action
under case number D4684 /2023 and application for the termination of her parental
1 Criminal Procedure Act 51 of 1977.
5
rights and responsibilities in respect of her minor child under case number
7608/2023P.
[4] The matter came before Wallis AJ on 13 June 2023 where the learned acting
judge issued an order appointing Advocate Twannette Hol tzhausen as curatrix ad
litem to the patient. Additionally, to the appointment of the curatrix ad litem , the order
directed the curatrix to investigate whether a curator bonis ought to be appointed to
the estate of the patient and a curator ad persona e ought to be appointed for the
patient and to report back to the court on these questions. On 14 April 2024 the
intervening party launched an application to interven e in the proceedings and the
order for intervention was granted by consent .
The parties contention
[5] The applicant claims that the patient has acute anxiety and serious
depression. Because of her condition, the patient has been admitted to several
hospitals. She was admitted to Optima Psychiatric Hospital in Bloemfontein from 17
May to 1 June 2012, from 4 to 9 March 2013, and from 8 to 10 July 2015. She was
also admitted to Aga Khan Hospital in Kenya on 17 August 2021; Optima Psychiatric
Hospital in Stellenbosch from 20 to 30 March 2022; and Alberlito Hospital in Ballito
on 15 April 2022. Furthermore, the patient had attempted suicide on at least five
occasions : 17 August 2021, 6 January 2022, 15 April 2022 , 18 Ap ril 2022 and 26
April 2022 being the date on which she murdered her child.
[6] The patient has a substantial estate, which includes a retirement village
property worth approximately R1 million and R6 00 000.00 in her investment bank
account. Also, she owns an immovable property valued between R3,5 to R4,2 million
in Islgton and other property valued between R3,8 to R4,2 million at Mount Augusta,
Midstream . Additionally , she jointly with the intervening party , has assets of
significant value .
[7] The patient signed a settlement agreement regarding the patrimonial
ramifications of the divorce while she was still awaiting her psychiatric evaluation
report related to the criminal trial, which agreement was sent by the intervening
party . Because the patient is so fragile, depressed, and incapable of understanding
6
the repercussions of her actions during the divorce processes, the applicant
requested the appointment of a curator ad litem to assist her in the divorce action.
[8] Ms Kissoon Singh for the applicant submits that when the court granted the
order known as the “first order prayed ” on 13 June 2023, any flaws in the application
with regard to the conditions stipulated in Uniform r ules 57(2) and (3) was condoned.
Ms Kisso on Singh submits that subrules (1)-(3) address the process and
prerequisites for the court to issue an order under rule 57(4); thus, Ms Holtzhausen ’s
appointment as curatrix ad litem completed that process. It was submitted on behalf
of the applicant that the curators ad litem , bonis , and ad personae should be
appointed to the patient since it is clear from the medical reports presented in court
and the curatrix ad litem ’s report that the patient is incapable of managing her own
affairs.
[9] The intervening party contends that the reports relied upon by Ms
Holtzhausen includes two reports by psychiatrists who at the patient’s criminal trial
recently expressed the opinion that she was fit to stand trial in criminal proceedings.
According to the intervening party the diagnosis of the patient and findings by Dr
Meyer and Ms Styles do not support the relief sought by the applicant that a curator
ad litem be appointed to litigate on behalf of the patient in the divorce action. The
intervening party contends that in cases where the patient has, at best, full cognitive
capaci ty and, at worst, some diminished conative capacity as a result of a major
depressive disorder, Ms Holtzhausen ’s recommendation to appoint a curator ad litem
is legally incorrect. Furthermore, he dispute s that he manipulated the patient when
they negotiat ed the settlement agreement in their divorce action.
[10] Mr Humphrey for the intervening party, argue d that the applicant's request for
the appointment of a curator ad litem does not comply with rule 57 since the court
does not currently have enough information to determine whether the patient is
incapable of handling her own affairs. It was argued that the applicant's reliance on
Dr Meyer ’s report in instances where he has not attested to an affidavit introducing
his evidence in court is faulty. On behalf of the intervening party, it was argued that
the patient is not in any way cognitively or intellectually handicapped because Dr
Meyer ’s report, which states that the patient last saw him in 2022, is hearsay and
7
does not demonstrate that the patient has lower cognitive ability. The argument was
made that the patient ’s severe depression and related symptoms do not qualify her
for the appointment of a curator ad litem .
The curatrix ad litem’s report
[11] In addition to providing her original and supplemental reports, the curatrix ad
litem personally attended the hearing of the case as an amicus curiae. She
consulted with the patient during her appearance at KwaDukuza Regional Court and
at frequent intervals when she was incarcerated at Westville Prison. Ms
Holtzhausen claims that the patient began experiencing depression soon after the
birth of her first child in 2012. She married Mr A[...] on 5 May 2015, and the
deceased child was born in 2018. The patient ’s anxiety and despair persisted after
she married Mr A[...]. She had made multiple attempts to end her life. The patient
attempted to take her life on 26 April 2022, by consuming benzene and sleeping
pills. Because she did not want to abandon her child without anybody to care for her,
she chose to drown her child to death. She then fell asleep. When she woke up later
that afternoon she phoned the landlord and her husband and disclosed to them that
she had killed her child.
[12] During her consultation with the patient, Ms Holtzhau sen noticed that the
patient appeared weak and had struggled to concentrate. She was housed in the
hospital section of the prison . The patient disclosed suicidal thoughts and self -hatred
during their follow -up visit. She also said that she hate d herself for what she had
done. At one point, she was crying, calling herself a monster, and saying that she
missed her children . She was aware that she had signed a settlement agreement
and that a summons had been issued in the divorce proceedings. She felt compelled
to sign the settlement ag reement in order for her husband to move away from her
since she felt very bad about the death of their child. In addition to taking a sleeping
pill at night and depression medicine in the morning and afternoon, she does not
receive therapy or any other kind of treatment. In order to guarantee that the patient
receives proper medical and psychological care, which the State does not currently
provide , Ms Holtzhausen suggests that a curator ad persona be appointed.
8
[13] Additionally, Ms Holtzhausen provided reports from Dr Meyer, a psychiatrist
who has been seeing the patient since 27 May 2012. Major depressive disorder and
severe anxiety disorder were the patient ’s diagnoses. Dr Meyer claims that anxiety,
ambivalence, indecisiveness , lack of enthusiasm, diminished problem -solving skills,
and difficulty focussing are some of the symptoms of severe depressive disorder.
When he last saw the patient in March 2022 the patient did not exhibit any cognitive
decline. According to Dr M eyer’s additional report, the patient ’s persistent acute
depression and suicidality would probably hinder her conative function even while
she is capable of acting on a cognitive level. As a result, he is in favour of appointing
a curator to help the patient make rational decisions .
[14] Also, Ms Holtzhausen appointed Ms Philippa Styles, a professional
psychologist, to evaluate the patient. Ms Styles concluded that the patient had major
depressive disorder. According to the clinical evaluation, the patient had
psychomotor retardation, and this condition got worse over time. Psychomotor
retardation is the slowing down or impeding of one ’s mental or physical activities .
Slow speech, reduced mobility, and cognitive impairment are all signs of
psychomotor retardation . Her sluggish conative flexibility suggests th at the patient
may have some mental illness -related executive functioning issues. In support of
her conclusions, Ms Styles deposed to an affidavit. She suggests a curator be
appointed to the patient . Furthermore Ms Holtzhausen supplied reports of the two
psychiatrists who assessed the patient when she was referred to Fort Napier
Hospital by KwaDukuza Regi onal Magistrate in conformity with s 79( 1) of the Act.
The patient was diagnosed with major depressive disorder by both psychiatrists. In
terms of criminal proce edings, they concluded that the patient could follow court
proceedings and give instructions to her attorneys; she could stand trial and was
able to appreciate the wrongfulness of her actions at the time of commission of the
offence.
[15] Therefore, the question I have to decide is whether the patient requires , as a
matter of law , a curator ad litem to assist her with the ongoing divorce action and
application to terminate her parental rights and responsibilities in respect of her
minor child, as well as whether a curator bonis and ad personae should be appointed
to the patient.
9
Applicable legal principles
[16] Uniform r ule 57 provides:
‘(1) Any person desirous of making an application to the court for an order declaring
another person (hereinafter referred to as “the patient ”) to be of unsound mind and
consequently incapable of managing his or her own affairs, and appointing a curator
to the person or property of such patient shall in the first instance apply to the court
for the appointment of a curator ad litem to such patient .
…
(3) The application shall, as far as possible, be supported by -
(a) …
(b) affidavits by at least two medical practitioners, one of whom shall, where
practicable, be a psychiatrist or other medical practitioner with appropriate
expertise, who have conducted recent examinations of the patient with a view
to ascertaining and reporting upon the patient’s mental condition and stating
all such facts as were observed by them at such examinations in regard to
such condition, the opinions found by them in regard to the nature, extent and
probable duration of any mental disorder or defect observed and their reasons
for the same and whether the patient is in their opinion incapable of managing
his or her affairs. Such medical practitioners shall, as far as possible, be
persons unrelated to the patient, and without a personal interest in the terms
of the order sought .
(4) Upon the hearing of the application referred to in subrule (1), the court may
appoint the person suggested or any other suitable person as curator ad litem , or
may dismiss the application or make such further or other order thereon as it deems
fit and in particular on cause shown, and by reason of urgency, special
circumstances or otherwise, dispense with any of the requirements of this rule .
…
(10) Upon consideration of the application, the reports of the curator ad litem and the
Master and such further information or evidence (if any) as has been orally adduced,
or otherwise, the court may direct service of the application on the patient or may
declare the patient to be of unsound mind and incapable of managing his or her own
affairs and may appoint a suitable person as curator to the patient’s person or
property or both, on such terms as it deems fit, or it may dismiss the application or
10
generally make such order (including an order that the costs of the proceedings be
defrayed from the assets of the patient) as it deems fit.
…’
[17] The initial procedure for the appointment of a curator ad litem is set out in rule
57(1) -(3). The application must, as far as possible , be accompanied by an affidavit
from at least two medical professionals who have recently examined the patient .2
Except for subrule (4), which gives the court the authority to dispense with any of the
rule’s requirements in cases where a good cause is shown or other special
circumstances exist, the provisions of the rule is peremptory. It is the applicant's
responsibility to prove that the individual requires a curator because he is unable to
handle his own affairs.3
[18] It is trite that ‘the appointment of a curator ad litem constitutes an interference
with the right of an adult person to control his affairs, and that before such an
appointment is made, the Court ‘must be satisfied, on proper enquiry; that the mental
condition of that person is such as to justify interference of this kind ’.4 However, the
appointment of a curator ad litem does not deprive the patient of administering his
property to the extent that he is able to do so wit h assistance of the curator. This
view was expressed in Pienaar v Pienaar’s Curato r5 where the court held that that:
‘The mere fact that such a person has been declared insane or incapable of
managing his affairs, and that a curator is appointed to such person, does not
deprive him of the right of administering his own property and entering into contracts
and other legal dispositions to the extent to which he may de facto be capable,
mentally and physically, of so doing .’
[19] Once appointed the curator ad litem has a duty to make inquiries , investigate
the patient’s mental illness and report back to court. Elaborating on the duty of the
curator ad litem in Ex parte : Futter, Van Zyl J stated as follows:6
2 Ex parte Stoffberg ; In re: Xaba v Road Accident Fund and two related matters [2018] 3 ALL SA 145
(GP) para 13 .
3 Ibid.
4 Ex parte: Fu tter, In re: Walter v Road Accident Fund and Others [2012] ZAECPEHC 52 para 19 .
5 Pienaar v Pienaar ’s Curator 1930 OPD 171 at 174 .
6 Ex parte : Futter above fn 4 .
11
‘This is in my view the correct approach. The person appointed as curator ad
litem as envisaged in Rule 57, is not appointed to simply act as amicus curiae to
assist the Court in determining whether the patient is capable or incapable of
managing his own affairs, and whether the proposed curator bo nis is a fit and proper
person to administer the estate of the patient. He is appointed as curator ad litem to
the patient, to act on his behalf and to represent his interests in the litigation
pertaining to the appointment of a curator b onis to manage his estate…’
Analysis
[20] The case comes before me at the second stage of the application process in
order to evaluate the curator ad litem ’s reports and other pertinent information and
decide whether to declare the patient mentally ill and appoint curators ad litem ,
bonis , and ad personae to her. The affidavit of at least two medical professionals
confirming the application, as required by rule 57( 3), was not submitted to the court
when it issued the order appointing the curatrix ad litem . On the basis of the principle
that compliance with the rule is peremptory and that “a failure to observe the Rule
renders an application defective to the extent that such application cannot and
should not be entertained at all ”,7 counsel for the intervening party argues that the
application should be dismissed for non -compliance with the rules.
[21] It is appropriate to note that there are two steps involved in an application to
declare someone mentally i ll and appoint a curator for them. Rules 57(2) and (3)
must be followed during the first phase, which concludes when the court appoint s a
curator or dismiss es the application in accordance with subrule (4). Following the
appointment of the curator ad litem by the court, the second stage commences with
the curator interviewing the patient, investigating his mental health, gather further
pertinent information , put together his report and arrange for it to be delivered to
court , in accordance with subrule (5).
[22] There is no question that medical reports o f a patient ’s mental state are
required to help the court make a decision regarding that person ’s mental state,
given the impact that the appointment of a curator has on the individual ’s dignity and
7 Modiba obo Ruca; In Re: Ruca v Road Accident Fund [2014] ZAGPPHC 1071 para 33 .
12
his or her right to manage his or her affairs as an adult. Subrule (4) gives the court
the authority to dispense with the requirements of the rule in certain situations . The
court (per Wallis AJ) that initially heard the application had the authority to decide
whether to dispense with the rule ’s requirements based on the facts presented to it.
Neither the court order nor the evidence provided to this court reflects the
circumstances that the court took into consideration when it dis pensed with the
requirements of the rule and appointed the curatrix ad litem . Therefore, the
application is not invalid merely because the court dispensed with the requirement of
medical reports at the initial stage.
[23] I have to assess whether the patient is mentally ill and unable to manage her
own affairs at this second stage of the application by considering the curatrix ad
litem ’s report as well as other relevant information presented in court. When
investigating a patient ’s mental state, the curator ad litem has broader powers . For
example, if the court that appointed the curator ad litem had dispensed with the
patient ’s medical re port, as in this instance, the curator ad litem may refer the patient
for a medical examination. Ms Holtzhausen has used her authority to obtain and
submit medical reports that were put together by Ms Styles and Dr Meyer. Dr Meyer
failed to provide an affidavit attesting to the accuracy of his repo rt. In an affidavit
deposed to by Ms Holtzhausen she included Dr Meyer ’s reports on the patient ’s
diagnosis and course of therapy. During her consultation with Ms Ho ltzhausen, the
patient verified the diagnosis and therapy given by Dr Meyer. Additionally, the
patient’s sister provided an affidavit in which she stated the dates and treatment
given by Dr Meyer to the patient. Dr Meyer ’s supervision of the patient over a 12 -
year period is undeniable, and the intervening party is not disputing the factual or
medical conclusions in Dr Meyer’s medical report. Thus, under the facts of this case,
Dr Meyer ’s report substantially complies with the r ules and is pertinent in helping the
court ascertain the patient ’s mental state.
[24] Examining the criteria for mental incapacity is appropriate given the
disagreement between the applicant and the intervening party on whether the patient
may be legally declared to be of unsound mind and have a curator appointed to her.
An accused individual cannot stand trial in a criminal trial if due to a mental illness or
intellectual handicap he or she is not capable of understanding the proceedings so
13
as to make a proper defen se.8 A person who suffers from a mental illness or
intellectual disability which makes him or her incapable
‘(a) of appreciating the wrongfulness of his or her act or omission ; or
(b) of acting in accordance with an appreciation of the wrongfulness of his or her act
or omissio n,
shall not be criminally responsible for such act or omission .’ 9
The cognitive function is the ability to recognise the wrongness of one ’s actions, and
the conative function is the ability to act in a way that reflects an understanding of the
wrongness of one ’s actions. While the conative component refers to the capacity for
self-control and the exercise of free will, cognitive function is related to an individual ’s
ability to think, comprehend, and reason.10 Therefore, a person will be considered
mentally ill and incapable of managing his or her own affairs if he or she is
cognitively functional but conatively impaired
[25] According to Dr Meyer, the patient ’s conative function is probably going to be
hampered by her persistent depression and Ms Styles says that it is already
impaired . It is undeniable that the patient has been hospitalised in mental hospitals
12 times for depressive disorders; she has also attempted suicide five times , the
most recent of which occurred on the day she killed her child. It is clear from Dr
Meyer and Ms Styles ’ conclusions that the patient ’s co native function is
compromised, even though the psychiatrist s had concluded that the patient was able
to give instruction to her legal representative, follow the court proce edings and stand
trial in the criminal trial. It is hard to say that someone who struggles with self -
management, has attempted suicide multiple times, and still feels the need to end
her life because of depression, is capable of managing her own affairs. Taking in to
account the patient ’s physical state and behaviour, the medical evidence
demonstrating that the patient ’s conative function is compromised leads to the
conclusion that the patient is mentally ill and unable to manage her own affairs .
8 Section 77(1) of the Act.
9 Section 78(1) of the Act.
10 J Burchell South African Criminal Law and Procedure Volume I: General Principles of Criminal Law
4 ed (2011) at 255.
14
[26] This then brings me to the necessity of curators being appointed. When the
court asked the intervening party’s counsel about the reason for opposing the
application, Mr Humphrey responded by stating that the reason he opposed the
application was based on a sense of justice, stating that the applicant ’s application
was invalid due to non -compliance with the r ules. In my view justice will be done to
both litigant s if the curator ad litem is appointed to help the patient who is currently
incarcerated ; diagnosed with ongoing depression, has already made irrational
decisions when she killed her own child and made multiple suicide attempts , to deal
with the patrimonial consequences of her divorce because of the enormous value of
her estate.
[27] Based on the report of Ms H oltzhausen, it is clear that the patient is not
receiving adequate treatment and counselling in prison ; she will need medical
treatment for the rest of her life and that the appointment of curator ad persona e is
necessary to assist her with her medication and other personal needs. The
intervening party is not opposing the appointment of a curator bonis and Ms M[...]
S[...] N[...] has agreed to be appointed as both the curator bonis and curator ad
personae to the patient.
[28] It is trite that a curator bonis must furnish security, unless a court has
exempted him from furnishing such security. Ms H oltzhausen has consulted with the
patient’s other sister , Theresa Nel who confirmed that the applicant has been taking
care of the patient’s needs and her finances for the last two years and that all
members of the family support the appointment of the applicant as curator bonis and
ad personae to the patient. Further the applicant has extensive experience of 32
years in the insurance industry where she specifically dealt with asset management.
Therefore , considering these extraordinary circumstances I am satisfied that the
curator bonis ought to be exempted from fur nishing security .
[29] This then brings me to the issue of costs. There is no reason to deviate from
the principle that costs follow the results . Given the complexity of the matter and
seniority of the counsel involved in the matter the intervening party should pay the
applicant’s costs on scale B.
15
Order
[30] In the premises the following order is made:
1. It is declared that the patient, M[...] A[...] (born M[...] ) (ID NO: 7[...]) is declared
to be incapable of managing her own affairs.
2. The oral evidence of the medical and other witnesses may be dispensed with.
3. TWANNETTE HOL TZHAUSEN, an advocate of the High Court of South Africa,
be appointed as curat rix ad litem to the patient, M[...] A[...] (born M[...] ) (ID
NO: 7[...]) and is substituted for the patient in the aforesaid actions under case
numbers D4684/2023 and 7608/2023P with the powers to:
3.1 take all further steps to finalise and/or defend such claims;
3.2 launch such further claims on behalf of the patient in relation to the
above legal proceedings, as she may be advised;
3.3 settle and compromise the aforesaid claims; and
3.4 ratify any action taken on behalf of the patient in the course of the
aforesaid proceedings.
4.1 M[...] S[...] N[...] , is hereby appointed curat rix bonis to the estate of the said
M[...] A[...] (born M[...] ) (ID NO: 7[...]) , with the following powers:
4.1.1 to receive, take care of, control and administer all the property
constituting the estate of the said M[...] A[...] ;
4.1.2 to carry on or discontinue, subject to any law which may be applicable,
any business or undertaking of the said M[...] A[...] ;
4.1.3 to acquire, whether by purchase or otherwise, any property, whether
movable or immovable, for the benefit of the said M[...] A[...] ;
4.1.4 to let, exchange, partition, alienate and for any lawful purpose to
mortgage or pledge any property, movable or immovable, whether in
whole or in part, belonging to the said M[...] A[...] ;
4.1.5 to perform any contract relating to the property of the said M[...] A[...]
entered into by her or on her behalf before she was declared incapable
of managing her own affairs;
4.1.6 to exercise any power or give any consent required for the exercise of
any power, where such power is vested in the said M[...] A[...] for her
own benefit or is in the nature of a beneficial interest in her;
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4.1.7 to raise money by way of mortgage or pledge of any of the movable or
immovable property of the said M[...] A[...] for the payment of h er debts
or the payment of any debt or expenditure incurred or to be incurred for
her maintenance or otherwise for her benefit or the improvement or
maintenance of any of her property;
4.1.8 to apply any money for the maintenance , support or towards the
benefit of the said M[...] A[...] ;
4.1.9 to incur expenditure in respect of the improvement of any property of
the said M[...] A[...] by means of building or otherwise;
4.1.10 to expend any moneys belonging to of the said M[...] A[...] on the
maintenance, education or advancement of any relative of the patient,
or any other person , wholly or partially dependent on the patient. To
continue such other acts of bounty or charity exercised by the patient
as the Master having regard to the circumstances and the value of the
estate of the Patient considers proper and reasonable;
4.1.11 to invest and reinvest moneys which may be available from time to time
and which are not immediately required for the purposes referred to in
s 82(c) of the Administration of Estates Act 66 of 1965; and
4.1.12 to institute proceedings which may be necessary in the interest of the
said M[...] A[...] , or for the due and proper administration of h er
property;
4.2 The powers conferred upon the said curatr ix bonis, in paragraph 4.1 above
shall be exercised subject to the approval of the Master.
4.3 The curat rix bonis is exempted from providing security to the satisfaction of the
Master of the High Court .
5. M[...] S[...] N[...] be and is hereby appointed as curatrix personae to the person
of the said M[...] A[...] , with the following powers:
5.1 to give consent to the medical examination of the said M[...] A[...] ;
5.2 to admit the said M[...] A[...] to any hospital or medical facility;
5.3 to give consent for any medical or surgical procedure to be conducted
on the person of the said M[...] A[...] ;
5.4 to arrange for accommodation and care for the person of the said M[...]
A[...] ;
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5.5 to admit the said M[...] A[...] to a nursing, rehabilitation or high -care
centre; and
5.6 to determine the appropriate investigation, treatment and management
of any medical or other condition of M[...] A[...] .
6. The costs of this application, as between attorney and client, including the costs
of the application for the appointment and the fees of the curat rix ad litem
appointed to represent the patient, shall be paid out of the patient’s estate.
7. All costs incurred, as a consequence of the intervening party’s opposition of this
application, shall be paid by the intervening party on a scale B.
Mathenjwa J
Appearances
Applicant’s counsel: P Kissoon -Singh
Instructed by: V Chetty Incorporated
Durban
Intervening party’s counsel: S I Humphrey
Instructed by: Larratt L aw Incorporated
Durban
Amicus Cur iae T Holtzhausen
Date of hearing: 23 January 2025
Date of judgment: 27 March 2025