OHlCHOl • 'fHI.CHIEr-JUSl'K'h
REPUBLIC OF ~OUTI I M'RICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 5299/2024
In the matter between:
DARREN JENS TIBSHRAENY Applicant
and
JENS PETER TIBSHRAENY Respondent
For the appointment of:
Curatores ad Litem et Banis to Jens Peter Tibshraeny
Coram Da Silva Salie, J
Written Judgment delivered Tuesday, 18 March 2025
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Counsel for Applicant
Instructed by
Counsel for Respondent
Instructed by Adv. Peter Hodes SC
Adv. Paul Tredoux
(Previous Attorney):
The Law Practice of B. L. Segal
(Present Attorney):
Kili Inc. Attorneys
Adv. Fiona Gordon-Turner SC
Adv. BF Nothling
Frank Biccari Attorneys
JUDGMENT ELECTRONICALLY DELIVERED ON 18 MARCH 2025
DA SILVA $ALIE, J
Introduction:
• [1] The applicant, Mr Darren Tibshraeny ("Darren"), seeks the appointment of a
curator ad /item and ultimately a curator bonis for his father, Mr. Jens Tibshraeny. Initially,
the application was brought ex parte, however, after an intervention application by Mr
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Tibshraeny, the matter proceeded, by agreement, as an opposed application in terms of
Rule 57 of the Uniform Rules of Court. The matter proceeded with Mr Tibshraeny as the
respondent.
Historical Background:
[2] Sometime during early 2023, the applicant noticed significant cognitive decline in
his father, leading to concerns about his capacity to manage his affairs. His father is a
79-year-old restaurateur, has significant assets, including the well-known Cape Town
Waterfront restaurant, Willoughby's, conducted through Willoughby's (Pty) Ltd.
[3] The application is brought by the applicant as the son of the respondent. He
submits that he has the standing to bring this application as he is well known to the
respondent. The founding affidavit sets out facts and information which he alleges are
within his own knowledge concerning his father's mental condition. The respondent and
his wife, Mrs Elizabeth Tibshraeny (aged 80) have two children, Mrs Natalie Bezemer
("Natalie") and Darren, both of whom reside in the USA However, the respondent and
his wife would regularly visit the USA, also owning an apartment in Huntington Beach,
USA and would also stay with Natalie in USA from time to time and/or spend time with
their son Darren either in USA or in South Africa.
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[4] Whilst Natalie and her husband are permanently resident in the USA they have
until recently temporari ly moved into the Fresnaye residence of their parents. Darren
alleges that Natalie and her husband have effectively taken control of their parental home
and vehicles and restricted his communications with their parents.
[5] The sister of the respondent , Mrs Angela Maclachlan ("Angela") and her husband,
Mr Dennis Maclachlan ("Dennis"), are resident in Jeffrey's Bay but have also moved into
the home of his parents. He alleges that Angela and Dennis have taken over control of
their parents' credit cards and residence and assisting Natalie in controlling their parents.
[61 Over the past several years, it had become evident that the respondent is
increasingly unable to manage his personal affairs, handle his financial responsibil ities or
ensure his own safety effectively. The deterioration in his cognitive abilities has been
noted by Darren and subsequently confirmed by healthcare providers, who have
observed a marked decline in his memory, reasoning and problem-solving capabilities.
[7] This impairment, the applicant avers, has reached a point where his father's ability
to make informed decisions is severely compromised , thereby posing a significant risk to
his financial security and to the conduct of his business.
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[8] With the passage of time, the respondent's mental health challenges have become
gradually worse. Darren set out incidents where the respondent had acted contrary to
his normal nature and posing risk to himself. His father had also sought brain mapping
therapy from the Amen Clinic in California , USA. This is a non-invasive technique used
to improve cognitive, emotional and psychological function, by identifying the areas of the
brain which are not functioning optimally and then using that information to guide
therapeutic intervention. The respondent had stopped using the medication after leaving
the USA.
[9] The further deterioration in the respondent's cognitive abilities became more
apparent over several visits which he made to the USA and where his son had interacted
with him over the past few years. This included incidents where the respondent did not
have insight into his actions, the details of which I would not repeat herein. His driving
skills became highly compromised by veering off the road when distracted or looking in a
different direction and he has been unable to cope with the functions of his business by
missing appointments , dealing with suppliers, food costing, monitoring stock levels, etc.
In short, he is completely reliant on the ability of others to perform the tasks which he was
once able to do. In particular, the management of the restaurant has been handed over
to his nephew, Mr. Phillip Human, whom the applicant alleges draws a salary far in excess
of what is reasonable and exploits his position and the vulnerability of the respondent by
having his father sign handwritten promissory notes against his anticipated profit share
for his business of the year totalling in excess of R1 ,3 m.
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[1 O] The applicant further states that the dependency which the respondent has on
others is a stark departure from his former self-sufficiency. It follows that Angela, Natalie
and their husbands have moved into his parents' home as they (his parents) are no longer
able to function and live independently.
[11] The respondent presents with memory lapses and communication difficulty in
struggling to find a word to complete his sentence, resulting in his frustration and sadness.
[12] The respondent started to be mistaken of his ownership of certain properties by
letting out the Clifton property as being owned by him in his own name instead of that of
the Trust which owns it (of which he is a trustee) or would lease the same property in two
lease agreements to different tenants. He would also forget about the actions of a
delinquent tenant and proceed to re-lease the property to the same tenant.
[13] In short, the applicant reports that his father's battle with mental challenges is
heart-wrenching, with the fading of his abilities, incremental losses and the constant
adjustment to their family life are testament to the cruel nature of his condition. The
respondent's challenges with daily living activities, coupled with his inability to manage
his finances, underscore the urgent need for a curator bonis to be appointed. In his view,
his father requires a level of care and oversight that goes beyond what can be provided
without formal legal authority.
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[14] The tension within the family, causes the applicant grave concerns regarding the
current management of his father's affairs. The applicant claims that he has a strong
suspicion that his sister, Natalie, along with his aunt, Angela, and her husband, are
exploiting his father's mental condition to their comfort and advantage. He concludes this
from a number of factors, particularly the consistent efforts on their part to isolate their
father, specifically by maintaining constant supervision and hindering their communication
with each other. On a visit to Plettenberg Bay in February 2024, his conversation with his
father would be abruptly interrupted by Natalie forbidding any private interaction between
himself and his father and screeching to their dad that she had told him that Darren wants
to steal the business from him, as she had warned him before.
[15] Subsequently , his contact with his father has been limited by those around his
father, including his cousin who had been appointed as the general manager of
Willoughby's restaurant. Various expenses are charged to the Respondent's credit card
which are undoubtedly not for him. Follow-up medical appointments made for the
respondent , in particular for his mental health, are cancelled by his caretakers in
circumstances in which it is necessary to attend. No appointments have been made with
similar medical professionals to see to his declining mental health. These factors are
amongst a few, together with the findings of two medical practitioners, which are set out
below and who support the appointment of a curator for the respondent.
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Two medical practitioners and reports:
[16] The respondent was taken to see Dr Roy Spammer , a physician, practising in
Panorama. His report dated 13 March 2023 states as follows regarding his observation
of Mr Tibshraeny:
"I have been in contact with the 79-year-old Mr Tibshraeny. It is clear talking to him that
there is an element of memory difficulty. He tries to be humorous, but he is missing
out on a lot of detail." (emphasis added)
The applicant was in the USA at the time and did not attend the consultation with his
father. Stemming from the results and findings of Dr Spammer , the respondent was
referred to a practising psychiatrist, Dr Michael Mason, of Panorama Psychiatry and
Memory Clinic for psychiatric evaluation. Whilst the applicant was not afforded a copy of
the report by the family, he subsequently spoke with the said doctor and obtained a copy
of the report dated 4 December 2023 and addressed to the physician, Dr Spammer. The
summary of which reads:
"Mr. Tibshraeny is showing signs of a Major Neurocognitive Disorder as summarised
above and will require [an] increasing level of support and care going forward. This will
be especially important with respect to the taking of medication , nutrition and self-care. I
do not recommend that he drive. I also advise support and protection with respect to
financial matters, which may necessitate the appointment of a curator. Independent
living is not feasible without assistance, either in the form of live-in care or moving to an
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environment that can offer an ever-increasing level of support going forward." (emphasis
added)
[17] Dr Mason set out earlier in his report:
"On Neurocognitive assessment, Mr Tibshraeny engaged well, but with obvious deficits
in time orientation, short-term memory function and executive function as evidenced
in impaired clock drawing and Luria II. He scored 8/15 on the Boston Naming Test and
22130 on the Mini-Mental State Examination Score. Short-term memory was in fact
severely impaired, even with 3 attempts at learning the same list of 10 words, he could
never recall more than 3." (emphasis added)
[18] The opening paragraph of his report reads:
"Thank you for the opportunity to be involved in the care of Mr. Jens Pieter Tibshraeny,
who attended an appointment at Panorama Psychiatry and Memory on 1 Novembe r 2023
and went for an MRI brain on 21 November 2023. The reason for the referral was a
growing concern about forgetfulness and cognitive functioning, especially given that
his wife is also struggling with similar difficulties ." (emphasis added)
[19] The applicant met with Dr Mason on 23 February 2024 to discuss his parents'
medical condition and findings. During the conversation, he learnt that his parents' follow
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up appointment on 29 February 2024 had been cancelled. In the hope that they would
be brought for the appointment, Darren reinstated the appointment for 1 March 2024,
however, he was informed that his sister or aunt had cancelled the appointment, and his
parents were not brought for the appointment.
[20] The affidavits filed by the doctors set out that the patient presents with a major
neurocognitive disorder -"dementia" and, according to one of the reports, may also suffer
from Alzheimer 's. The affidavit of Dr Spammer (FA 5, record page 59) in support of the
curatorship application reads:
"He [the patient] struggled with insight in medical explanations and as he is ageing further
deterioration is to be expected. He was always supported by Mr. D. MacLachlan [Dennis}
[who] made sure advice was adhered to in view of his [the patient's] poor insight.
I am of the opinion that he is not able to grasp complex ideas and should not make
important own decisions and curatorship may serve him well as to allow that things
happen in his best interest." (emphasis added)
[21] Dr Mason, a registered psychiatrist, similarly attests on 1 March 2024 (FA4, record
page 58) that:
"2. Mr Jens P Tibshraeny suffers from Dementia. He has severe functional deficits
secondary to the dementia. The dementia is characterised by disorientation , poor
memory, impaired judgment and impaired insight.
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3. He is not able to manage his own affairs.
4. The course of the disease is such that any improvement in his condition is unlikely.
In fact, decline is expected.
5. I hereby recommend the appointment of a curator bonis and curator personae
so that his interests can be protected." (emphasis added)
[22] Based on the aforesaid averments and medical evidence, the applicant alleges
that the respondent is unable to manage his own affairs, is relatively wealthy, and a
curator bonis will have to investigate this matter and take steps to ensure that his assets
are protected. The applicant seeks the appointment of a curator ad /item to provide the
patient with the necessary assistance for the purpose of the application. Consents to
appointment as curator ad /item was filed of record by Adv Philippa Susan van Zyl and
during the hearing of the matter, Adv Diane Davis S.C. similarly consented to the
appointment in the Court's discretion. If so granted, the curator ad /item would be required
to report on the suitability of the curator bonis or curators bonis.
[23] The respondent filed a substantial and detailed answering affidavit in opposing the
relief sought. The respondent kicks off his opposition on the basis that his son brought
the application serving his own interests and not with the aim of serving the respondent.
The respondent sets out the infrastructure that he had created to enable him to continue
to conduct his own affairs in his retirement years. He acknowledges that he is forgetful,
requiring assistance with daily activities, however, he strongly advocates that he is able
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to manage his own affairs. He emphasises repeatedly that he has the support of trusted
family members and relevant professionals . The respondent states that at no stage can
it be said that he is dissipating his assets or conducting his affairs in a reckless manner
or to his prejudice.
[24} The respondent denies vehemently that his support structure, particularly in the
form of his daughter, Natalie, and sister, Angela are taking advantage of him.
[25] He established Willoughby's more than 30 years ago. He was fortunate and
enjoyed great success in establishing Willoughby's, a business which allowed him to
amass a sizeable financial fortune. He has considerable means and enjoys a comfortable
life. His financial success has enabled him to provide his family, including both his
children, financial security and a good standard of living. He has a generous nature, from
which both his children have benefitted substantially.
[26] Mr Tibshraeny maintains that he has established structures to ensure his affairs
are protected and properly managed. He, however, still exercises oversight of his affairs
to ensure that they are appropriately managed. He no longer drives as he has since early
2023 realised that he was no longer comfortable operating a motor vehicle, wherefore,
his sister and her husband, Angela and Dennis, assist him and his wife with driving
appointments and grocery shopping. With both children residing in the USA, Dennis and
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Angela's family presence is welcomed as they keep them company and help with their
care.
[27] The respondent repeats at various points in his answering affidavit that he is
perfectly satisfied with his living arrangemen ts and that he and his wife, Liz, are taken
care of. Assistance with personal tasks, healthcare and financial matters are left to his
"trusted supporters and advisors [who] adequately respond to the task." He maintains
that he is not at risk of neglect or exploitation.
[28] A substantia l part of his answering affidavit is directed to what he considers to be
the underhandedness on the part of his son, acting in concert with his erstwhile attorney,
Mr. Neville Cohen, to bring and pursue this application including placing the two medical
practitioners under undue influence to make the recommendation of curatorsh ip. All this
was done, he believes, because of Darren's wish to serve his own financial interests
including escaping the liability of his loan account owing to the business in excess of R9m.
His son did not accede to any transparent attempt to mediate settlement, however, he
wanted to include all his trusted advisers in the mediation efforts. The respondent, he
believes, is acting with malice and unclean hands, purely motivated and aggrieved by the
financial control which the applicant had recently implemented, and which does not allow
his son financial access anymore. He states that Darren considers the business as his
"wallet". (Answering affidavit, paragraph 55). The respondent set out in a detailed account
and dates when he sought to have time spent with Darren but that his son rejected these
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invitations. Since Darren had not spent adequate time with him, he denied that his son
was in the position to comment on his mental health and general well-being. In the
respondent's view, the purpose of the appointment of a curator would be to ask the curator
that Willoughby reinstate the payments to Darren which have historically been made, and
which had recently been stopped.
[29] The respondent pauses repeatedly in his answering affidavit to re-affirm that
Darren's application is not a bona tide attempt born out of his concern for his well-being,
but intended to serve a different agenda, that being, that he wishes to establish unfettered
access to his financial resources.
[30] As regards his recent mistakes in the lease agreements , the respondent explains
in bald terms that all is not lost, as the tenant in question was ultimately evicted. In
explaining the mistake, the respondent states that:
"Risk is an incidence of commercial transactions . I managed the risk in that situation, with
my advisors at my disposal to assist in this endeavour. " (Answering affidavit, paragraph
82)
[31] The respondent maintains that whilst he strongly relies on his circle of trusted
individuals who maintain a watchful eye on his interests and limit the risks, financial and
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otherwise, to which he may be exposed, he states further at paragraph 84 of his
answering affidavit:
" ... I still have the ultimate say ... "
[32] At paragraph 85 of the answering affidavit the respondent repeats:
"I have an effective support infrastructure to assist me, I have implemented sufficient
controls, including the establishment of a group of trusted individuals , that will ensure my
affairs are not exploited or mismanaged ."
Medical reports challenged:
[33] The respondent challenged the reports and the affidavits of the two medical
practitioners who support this application on the basis that he had only once consulted
with Dr Mason on 1 November 2023. From this interaction and assessment , at some
stage together with his wife, Angela and Dennis, the respondent does not believe that the
doctor could have made such a far-reaching conclusion to recommend him for
curatorship . On 21 November 2023 he went for the MRI scan, as did his wife. They did
not consult with Dr Mason on that day. The only other interaction he had with Dr Mason
was, after this application was launched, and he attended to uplift and remove his medical
file from the doctor's practice.
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[34] I pause to mention that the file note of Dr Mason indicates that the attendance at
his rooms was without appointment and that the patient was escorted by his daughter,
Natalie, to collect his file. Both Mr Tibshraeny and his daughter came across as upset.
Dr Mason records on his file note of 5 April 2024 (after the institution of this application
on 15 March 2024):
"Mr and Mrs Tibshraeny arrived with their daughter and her partner unannounced at my
rooms demanding copies of their results and reports regarding their condition. They
apologised for not attending their follow-ups, were not keen to discuss the results at
all. I explained briefly why I recommend curatorship and what it entails but they were
insistent that they had limited time and only wanted reports. They said they would arrange
a follow-up later." (emphasis added)
It is common cause that no follow-up was arranged for both Mr and Mrs Tibshraeny, nor
is there any record of the respondent having been seen by a similar medical professional.
[35] The respondent sets out in his affidavit that Dr Mason had not assessed his
functional ability as this would require a more detailed investigation. This would include
an assessment of how he is able to socialise and communicate with other people
effectively. It was also incumbent on the doctor to interview those people and
professionals who are associated with him and have an intimate knowledge of his abilities
and decision-making. That did not happen. Their medical opinions expressed at the time
appear to the respondent as an interim opinion rather than a final one. In any event, it is
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apparent that the doctor expressed a final opinion based on a meeting with the applicant
(his son) and his partner as well as his erstwhile attorney shortly before 1 March 2024,
the date of the signing of the doctor's affidavit. In Mr Tibshraeny 's view, Dr Mason had
no right to meet with them without seeking his prior permission and in any event Mr.
Cohen had at that stage already been fired as his attorney. The respondent is of the view
that none of them possessed the knowledge to sustain the information which is required
for the functional assessment and further expressed that the intention of the meeting was
to obtain an affidavit to support this curatorship application. He goes on to say that Dr
Mason was unaware of his functional ability and could not as a result have formed a
professional opinion to support the curatorship as he had. The shortcomings of the two
medical professional opinions are supported by the affidavits and professional opinion of
Dr Leon Fine, who formed the view that the assessments by the two doctors were not
complete to substantiate the recommendations so made. Dr Leon Fine is a psychiatrist
in private practice in Johannesburg.
[36] The respondent states that he only saw Dr Spammer , the physician, once. He is
not his usual treating physician. It was at Dr Spammer's request that he consulted with
Dr. Mason. The affidavit of Dr Spammer does not give any background or information
regarding his cognitive abilities. The medical records obtained from him consisted of a
MRI scan radiology report, blood tests and a medical report.
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Critique by Or. Fine:
[37] The professional opinion of Dr. Fine was filed in support of the respondent's
opposition, who reviewed the medical evidence including notes and scans from the two
medical professionals and in short stated that:
[37 .1] Dr Mason ought to have had at least two more sessions with the respondent
to have been able to express an opinion that his patient is incapable of managing
his affairs.
[37.2] It was essential for Dr Mason to have assessed his functional ability.
[37.3] It cannot be said that there is necessarily a correlation between loss of brain
cells and actual functional ability, because sometimes a person who shows severe
loss of brain cells may still be able to function normally.
[37.4] The opinion that his cognitive decline is so severe it renders him incapable
of managing his own affairs ought to have been supported by a neurologist and a
neuropsychologist given the far-reaching effects of curatorship .
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I pause to add that the latter requirement, that being that the recommendation ought to
have been supported also by a neurologist and neuro psychologist, exceeds the
requirement of Rule 57 which require two medical practitioners, one of which is a
psychiatrist.
[38] Dr Fine's affidavits dated 17 April, and 22 April 2024 primarily critique the work and
opinion of the psychiatrist, Dr Mason and do not include independent assessment or
direct interactions with the applicant. In short, Dr Fine did not conduct any tests or a
personal assessment of the respondent and is limited to his opinion based solely on a
very brief review of documents provided to him. He set out more of an academic review
of what would be ideal theoretically in the recommendation by a medical professional for
curatorship of a patient. Dr Fine's position is that whilst the respondent suffers from
cerebral atrophy (in this case symptomatic of a major neurocognitive disorder) such
diagnosis only supports a clinical finding but does not illustrate a functional diagnosis of
such a disorder. In support of this, a substantial part of the argument by counsel for the
respondent was directed at the critique that the 2 medical professionals , particularly the
psychiatrist, did not do an in-depth assessment of the respondent's functional ability
which was to be conducted over at least 2 or more sessions with a detailed evaluation
together with input from persons who engage with the respondent.
[39] Whilst Dr Fine's affidavits critique and views raised valid points about the need for
comprehensive evaluations, I questioned Counsel during the hearing as to the position
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this Court would be in to dismiss the strong views of two independent medical
professionals supporting the curatorship application, both of whom had consulted,
engaged and assessed the respondent in person including interpretation of the MRI
(brain) scan. It was not disputed by Dr Fine that the respondent suffers severe cognitive
decline as a result of MNCD (dementia). Dr Fine opined that the assessment ought to
have been more extensive. I need add that Dr Fine's input was mostly set out as a minute
of a virtual conference held with the respondent's legal representatives. Same is set out
as a 2 page annexure to his affidavit (record page 351-352).
Appointment of an independent psychiatrist Prof Niehaus:
[40] To this end, given the wide powers which are bestowed upon the Court in terms of
Rule 57 together with the previously written proposal by the respondent in
correspondence of March 2024 addressed by Mr. Biccari for the respondent (at paragraph
11 thereof), that the respondent would consent to an assessment by a professional of his
choice and that he will bear the costs of the psychiatrist he so appoints (Record page
305): I enquired about the prospects of the respondent being assessed accordingly and
the matter stood over till the following day in order for counsel to take instructions. The
respondent filed an affidavit asserting his Constitutional right to dignity and bodily integrity,
refusing an assessment by a medical professional. In the circumstance, we discussed
the alternative of the appointment of a medical expert to consider the medical evidence,
reports, scans etc as well as the affidavits of Dr. Fine. I granted an order postponing the
matter to a date in August 2024, with provision for a medical expert appointed by the
Court (Prof DJH Niehaus, a registered specialist geriatric psychiatrist) to consider the
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medical reports and attachments thereto filed in support by the applicant and the affidavits
by Dr Fine filed in opposition thereto by the respondent. Furthermore, Prof Niehaus was
directed to prepare a report in his professional opinion, as to the adequacy of the medical
reports filed in support of the application for curatorship with reference to Rule 57(3)(b).
Paragraph 4 of the interim order also granted Prof Niehaus leave to set out aspects which
he may conclude from the aforesaid medical reports and which he, in his professional
opinion, may consider relevant for the Court's determination of this application for
curatorship.
[41] The appointment of an expert by the Court is to give evidence as set out in the
order, and ultimately, the Court remains the final arbiter of the matter before it, taking into
account the totality of the evidence in arriving at its conclusion.
In S v Rohde1 the court stated:
"Opinion evidence must not usurp the function of the court for this remains the domain of
the Bench. Furthermore, the expert witness is not permitted to give opinion on the legal
probabilities or the general merits of the case. The evidence of the opinion of
the expert should not be proffered on the ultimate issue. The expert must not be asked to
answer questions which the Court has to decide."
1 2019 1 All SA 740 (WCC) at 806
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As to the nature of an expert's opinion, the Court stated in Gentiruco AG v Firestone SA
(Pty) Ltd:
"an expert's opinion represents his reasoned conclusion based on certain facts or data,
which are either common cause, or established by his own evidence or that of some other
competent witness. Except possibly where it is not controverted, an expert's bald
statement of his opinion is not of any real assistance. Proper evaluation of the opinion can
only be undertaken if the process of reasoning which led to the conclusion , including the
premises from which the reasoning proceeds, are disclosed by the expert"2
[42) In his analysis of all the medical evidence, including clinical notes,
correspondence , reports and MRI scan results, as well as the affidavits of the three
doctors, Prof Niehaus set out a detailed report that the cognitive tests performed on the
respondent at the assessment on 1 November 2023 showed significant cognitive
impairment. Whilst he agrees with Dr Fine that additional information would have enabled
a more comprehensive review of the respondent 's financial capacity, he is of the view that
enough information is available to substantiate the concerns of Dr Mason and Dr
Spammer. He set out at page 28 of his report that the affidavits provided by the two
medical professionals could have benefitted from more contextual content but in his view,
contain the minimum required information to substantiate their concerns for the
appointment of a curator bonis. Prof Niehaus also noted the consensus between Dr. Fine,
2 1972 (1) SA 589 (AD) at 616H
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Dr Mason and Dr Spammer that the respondent suffers from a major neurocognitive
disorder ("MNCD"), commonly referred to as dementia.
[43) On the issue of the respondent's financial capacity, considering the medical
findings and results, Prof Niehaus sets out that the DSM-5 criteria for a MNCD (dementia)
implies impaired instrumental activities of daily living of which management of finances is
one such activity. The critique raised by the respondent that the medical assessment did
not include adequate collateral information ought to be tempered by the recognition that
self-report questionnaires rely heavily on the patient's insight into their activities of daily
living and therefore may be less reliable if a patient was noted by the medical professional
to have poor insight such as the case herein. The input of collateral information by
caregivers must also be afforded its appropriate weight in the face of the very clear results
of severe cognitive decline as caregivers may suffer from informant bias. To this extent,
the value of collateral information or inadequacy thereof cannot be considered as the
overarching factor in the clinician's assessment of his diagnosis and findings, and
subsequent recommendation.
[44) The cognitive tests performed on the respondent showed significant impairment
and in particular a substantial impairment of the executive function domain which is a
critical aspect of decision-making and judgement. This is a higher order function critical
for decision-making , insight and judgement , as well as foresight and planning.
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[45] Despite the limitations of the available collateral information, he believed that the
available medical evidence favoured the findings and recommendation for the
appointment of a curator bonis to protect the respondent's interests.
Oversight by the Respondent into his financial affairs:
[46] The respondent states that most of his "other assets are held through trusts". The
trustees of those trusts are himself, his wife and his accountant, Mr. Margolis. The
financial statements of Willoughby's and of the trusts are prepared by Mr. Margolis. These
are then discussed with him and approved by him. (Record page 262, paragraph 195)
The respondent is of the view that Mr. Margolis would not present the financial statements
to him if he did not consider that he had the necessary mental capacity to approve them.
The respondent also maintains that although he has delegated the operation of the
business to his nephew, the general manager, he still maintains a watchful eye over the
performance of the restaurant. Whilst Darren had worked in the restaurant for 11 years,
he had hoped that his son could take over the running of it himself in the future, but his
expectation did not materialise. He concluded that Darren was incapable of taking control
of the business and after his son returned to the USA in 2019, he appointed his nephew,
Phillip, who remains the general manager to date. The respondent defends Phillip's
remuneration on the basis that it is commensurate to the scale of the business operation
and to what he had been paid historically.
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[4 7] The respondent states that whilst he is forgetful, he can recall events when
reminded. Despite this, he can comprehend and show understanding on matters that
affect him and his assets and/or finances.
[48] The respondent denies that his daughter is controlling his affairs or financial
interests and that given that his business and assets are already well looked after and
protected by trusted family and professionals, to the extent necessary, the appointment
of a curator bonis is unnecessary.
Applicant 's reply:
[49] Whilst the applicant was invited to mediation, he maintained in reply that the
appointment of a curator bonis remains the most appropriate and legally sound solution
to ensure that his father's assets are properly managed and that any decisions made
regarding his financial affairs are subject to proper scrutiny and oversight. In any event,
an agreement between the parties would not provide the necessary legal safeguards to
prevent further exploitation or mismanagement of his assets. He maintained that his
interest in bringing the application was in pursuit of protection for his father given his ailing
mental condition.
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Issues before the Court:
[50] The fundamental issue at hand is whether the Respondent suffers from a
diminished mental capacity and as a result, he would not have the ability to make informed
decisions regarding his personal and financial affairs. The averments by the applicant
must be considered with the opinion of the two medical professionals who support the
granting of the curatorship order. It is not in dispute that the respondent suffers from a
major neurocognitive impairment (dementia) . The issue is whether it had been proven,
on a balance of probabilities , that the respondent is as a result incapable of managing his
affairs, warranting the granting of the relief sought.
[51] The respondent's assertion that he had created an adequate infrastructure must
be juxtaposed with some relevant facts, inter alia, that his previous and long-term advisor,
Mr. Neville Cohen, had abruptly been replaced by the attorney or close associate of his
daughter, Natalie. It is significant a fact to me that she forms part of the respondent's
trusted infrastructure. This may potentially create a conflict of interest. The respondent
presents with a loss of short-term memory, severe brain cell damage and other symptoms
of dementia such as confusion, difficulty solving problems which was evident from the
medical tests and his inability to do a basic clock drawing correctly, lack of insight and
foresight. It is also significant to me that Natalie and her husband escorted Mr and Mrs
Tibshraeny to Dr Mason's practice in what clearly transpired as a fairly hostile demand
for the file contents, with absolutely no interest in the results of the MRI scan nor follow
up appointments with the said doctor or records of other treating physicians.
27
[52] The respondent's repeated assertion that he had placed into position a reliable and
trusted infrastructure in the form of his carers, namely, his sister and her husband, his
daughter and her husband, his (now attorney of record) Mr Biccari, and his accountant,
Mr. Margolis, which renders the appointment of a curator nebulous, cannot be accepted
by the Court as the final say on the matter. The ability to appreciate this infrastructure
support system requires that the respondent be able and continues to have the ability to
understand and make informed decisions regarding his personal, financial and legal
matters.
[53] The question for this Court is whether, given his severe cognitive decline, the
respondent is nonetheless on a balance of probabilities, of full mental capacity. I must
equally be satisfied on the same burden of proof, that notwithstanding his cognitive
decline (dementia) his capacity is not so diminished as alleged by the applicant and as
confirmed by the two independent doctors, which would warrant the dismissal of this
application.
[54] Whilst the respondent maintained that he has always been a generous person,
and in that way explains his benevolence to others, the question remains whether the
expenditures so made to them can be considered as having been made with the full
appreciation of the respondent given memory difficulties , cognitive decline, lack of insight
and foresight. It cannot be doubted that the respondent's mental health renders him
vulnerable in various respects.
28
[55] The medical evidence in the form of the medical reports and affidavits of Dr.
Spammer and Dr Mason records the respondent's cognitive impairments and his inability
to make informed decisions regarding his personal and financial matters. The medical
evidence includes an MRI scan (imaging of the brain) performed on 21 November 2023
which supports overwhelmingly that the respondent suffers a significant loss of brain cells
(neurons) and the connections between them leading to noticeable shrinkage in the brain
volume. Whilst the loss of brain cells is a normal ageing process, the question is whether
the decline in the case of the respondent is so severe that it justifies the granting of this
application, firstly by way of the appointment of a curator ad !item, followed by a curator/s
bonis after the filing of a report by the curator ad /item.
[56] The answering affidavit sets out repeatedly that the respondent has at every turn
put into place trusted persons and professionals to advise him and that this would serve
his best interests. I must however consider that contention against the recommendations
and findings of the two independent doctors, physician and psychiatrist , as well as
examples of a sudden change in the respondent's longstanding lawyer to that closely
associated with his daughter, reported events which indicate his memory loss and actions
which are not congruent to his usual style of business and character .
[57] The contention that there is a sufficient and trusted infrastructure must be
considered against the medical evidence before me, and I cannot merely accept the
assurance of the respondent that his appointed advisers and infrastructure are acting in
29
his best interests as he believes. This assurance does not assuage the Court in the
fundamental concerns raised that he has diminished capacity as well as the reports and
affidavits provided by two medical practitioners which support the appointment of a
curator. Whilst I am mindful of the fact that the respondent enjoys a Constitutional right
of autonomy and dignity, I need to be satisfied that the evidence supports the conclusion
that the respondent is still able to make informed decisions, a cardinal basis of autonomy.
Assisted decision making -The South African Law Commission Report of December
2015 -Proiect 122:
[58] The South African Law Reform Commission recommended changes to our law in
the 2004 discussion paper to allow for alternatives like an "enduring power of attorney"
(or "EPA") which would remain valid despite the subsequent incapacity of the principal;
and a "conditional power of attorney" which would come into operation only on the
incapacity of the principal.
[59] This was further discussed in the 2015 -Project 122 Report. The Commission in
its Report on Enduring Powers of Attorney ("the Report") recognised that whilst the law
ought to establish a structure within which autonomy and self-preservation are recognised
and protected; while also protecting persons with decision-making impairments from
abuse, neglect and exploitation, South African law does not fulfil these requirements at
present. The recommendation of the Report aims to provide suitable solutions for this
deficiency regarding existing impairments as well as possible future impairment.
30
[60] The Commission 's investigation illustrates that the curatorship system is outdated
and unduly paternalistic, a "one-size-fits-alf' solution that tends to take over the affairs of
the person with a disability. The High Courts have the power to develop the common law
to ensure that the curatorship system accords with the Constitution and the Convention
of the Rights of Persons with Disabilities (United Nations) in short referred to as the
CRPD. Judicial development of the common law is, however, a notoriously slow process.
[61] The Report acknowledges that many persons who foresee the possibility that their
ability to make choices -or to make informed or fully informed decisions -might be
impaired in future, wish to cater for that eventuality . An obvious way of doing so is to
authorise a trusted person to take care of one's affairs, should one become a person with
a disability. Under our current law, however, such an authorisation and/or Power of
Attorney is terminated by the subsequent disability of the person who made the
authorisation (the principal). It follows that under our current law, a person (a principal)
cannot authorise another (an agent) to take care of his or her (the principal's) affairs after
he or she has become a person with a disability. In this respect, South African law is out
of step with comparable legal systems.
Development of the Common Law:
[62] I am mindful of the fact that whilst law reform is called upon in curatorship
applications , moreover , to the extent of recognising assisted or supported decision
making by a principal in the wake of future or declining mental health or capacity, it is the
31
position in our law that a person who does not have full mental capacity cannot appoint
an agent. Similarly, a power of attorney becomes invalid when the principal loses mental
capacity and is unable to appreciate the terms of the power of attorney. That would be
the case herein where the respondent no longer has full legal capacity or differently put,
in the case of the respondent who presents with major cognitive decline and memory loss,
it is unlikely that the respondent is still able to fully appreciate the powers which he
granted, with the requisite insight and oversight ability. More particularly , even in the law
reform proposals for the recognition of assisted or supported decision-making in
circumstances such as these, the agents are required to provide security for their
administration of the principal's affairs, together with proposed supervisory roles of the
Master of the High Court, including payment of security in the discretion of the Master,
recordkeeping to the Master of assets and expenditures as a safeguard against the risk
consequent of possible maladministration , including a number of other checks and
balances proposed for the statutory implementation of a system of assisted decision
making. In the case before me, the infrastructure of the respondent is a far cry from the
law reform's proposed mechanism of protection , checks and balances. In any event,
whilst the law reform commission has proposed the system of assisted decision-making ,
such law reform and legal system had not yet been promulgated into our law. However,
the curator ad /item would serve her mandate well by considering whether the system
proposed by the law reform commission on this issue could be implemented in this case
by developing the common law position, albeit within the current legal position and ambit
of Rule 57 and the law of curatorship with powers extended to various curators bonis
given the complexities or vastness the respondent's estate and business. The curator is
32
also directed to investigate whether certain of the persons who form the support
infrastructure of the respondent may be viable and well suited co-curator bonis in a
specific ambit and with the necessary checks, balances, security, recordkeeping and
report to the Office of the Master of the High Court.
[63] The development of the common law as indicated above would be in line with
international jurisdictions and regimes where it works well in Australia, England, Wales,
Scotland, New Zealand and United States. The United Kingdom has ratified the Hague
Convention on the International Protection of Adults which allows for the recognition of
Scottish Continuing Powers of Attorney and Welfare Powers of Attorney in countries that
have also ratified the convention such as France, Germany and Switzerland. (See: The
Hague Protection of Adults Convention, formally the convention on the International
Protection of Adults, a convention concluded by the Hague Conference on Private
International Law 2000).
[64] This position would certainly ameliorate and assuage the crippling fear of the
unknown for the future of a person faced with the reality that his or her medical condition
will decline further with the passage of time. I believe it affords the principal dignity
confronted with these disabling circumstances but so too protection by oversight of the
Master of the High Court against any abuse of power, negligence or lack of accountability.
33
[65] Given the extraordinary circumstances of the vast business, personal financial
interests and trust ownership of assets of which Mr and Mrs Tibshraeny are two of the
three Trustees, I am of the view that exceptional circumstances exist warranting to the
possible appointment of more than one curator, alternatively a main curator with sub
curators who shall report to the former and in turn to the Master of this Court.
[66] I have considered the ubiquitous submission by the respondent that his son
brought this application to protect his own financial interests such as wanting to escape
an alleged loan account owed by the applicant to the business. The applicant denies that
he is indebted to the business or that he has a loan account due to the business. If it is
so that applicant's application to place his father in curatorship is to avoid his
indebtedness , it can hardly be accepted by this Court that the applicant would escape
his financial liability to the company without further ado, as the oversight of curatorship by
a third party/s would be clinical to the enquiry as to this loan account or the extent thereof,
in line with his or her Court ordered mandate and oversight by the Master's office. It is
more believable that the applicant may escape his indebtedness to the business by it
remaining in the discretion of his father (without curatorship) to write it off or reduce it
given that he is loved by his father who could be open to the choice or manipulation (as
the case may be) and pivot in absolving him from this liability.
[67] It is maintained throughout the opposition that the applicant lacks personal
knowledge of his father's daily function and cognitive abilities given his lack of visits with
34
the respondent and interactions with him over the past two years. As such, the answering
papers also attempt to cast in doubt the examples which are set out in the founding papers
of his father's diminished capacity, confusion , memory problems, uncharacteristic
behaviour and vulnerability to influence.
[68] I am satisfied that the applicant has the locus standi to bring the application and
complies with Rule 57(3)(a) in that he is a ''person to whom the patient is well known and
that the affidavits contains such facts and information as are within the deponent's own
knowledge" concerning his father's mental condition. I need to add that the examples
provided to support the application are the classic symptoms of major neurocognitive
decline which overlap or mirror the test results set out in the medical evidence. The
respondent in a number of ways either boldly denied the examples or failed to deal with
it in his answering affidavit.
[69] It is worthy of mention and of concern to this Court that the follow-up appointments
with Dr Mason were cancelled by the respondent's trusted support network, a strong
suggestion that their actions appear to be driven by a desire to avoid the scrutiny and
medical attention to the respondent. It also concerns me that it is mostly likely done to
avoid oversight which a curatorship would bring. This raises concern about the
motivations of the members of the trusted support network, the potential for undue
influence and gatekeeping of the respondent's affairs and health. It points this Court in
the direction of the need for the appointment of a curator.
35
[70] Much shadow had been cast over the motivations ; timing and the way the applicant
had gone about to institute this application to place his father under curatorship. It is clear
from the respondent's affidavit that upon being informed by "others" that his son sought
to place him under curatorship, he stopped his son's financial benefits received from the
business. However, Dr Mason raised the issue of curatorship in his report to Dr Spammer
in December 2023 well before the meeting with the applicant on 23 February 2024. The
recommendation for curatorship by the two doctors was made prior to the applicant's
contact with them and I cannot find that it was because of undue influence or pressure
from the applicant or anyone for that matter. The doctors, upon their assessment of the
respondent , raised the need for the applicant to have safeguards put in place given his
diagnosis and in particular curatorship. It is the follow-up by the applicant as to the
diagnosis and proposal of the appointment of a curator which brought about the reaction
by the respondent to stop his son's benefits more likely and as a form of sanction and
consequence. Given his memory loss and declining mental state, it is highly probable
that the respondent was puffed up by the members of his trusted advisors to act
accordingly , supported by an inflicted fear that his son wished to cause him harm,
embarrassment and take the business from him. It is more likely that the respondent's
perception of the situation limited by his loss and insight and vulnerability was skewed by
the individuals who surround him, that being, his trusted advisers.
[71] The applicant's inclusion of his father's former attorney who had been his trusted
advisor, lawyer and friend for over two decades makes eminent sense as Mr_ Cohen
would have been able to give in-depth knowledge of Mr Tibshraeny to the medical expert
36
apropos his decline or not in managing his affairs or unusual behaviour. Mr. Cohen has
however personally observed the applicant's mental decline. For reasons which the
respondent deems as a conspiracy against him, he terminated his mandate with his long
time lawyer and advisor without any ado and appointed his present attorney who is the
attorney or attorney closely associated with his daughter. This lends itself to the
ineluctable inference that the respondent had been placed into fear by making him believe
that his lawyer is conspiring with his son to wring his financial control from him. A strong
suspicion of manipulation is unavoidable and one which the Court must be alive to in
considering this application with the totality of the evidence and the reasons which compel
the appointment of a curator.
(72] I am satisfied that the appointment of a curator will bring the needed layer of
scrutiny and control over the respondent's financial matters. This will include reviewing
all past practices and ensuring that any future expenditures are justified and properly
approved . This measure will safeguard against any potential misuse of funds and the
financial integrity of Willoughby's and the respondent's estate.
[73) In Stoffberg obo Xaba: In re Xaba v Road Accident Fund [2018) 3 All SA 145 (GP)
the Court held at paragraph 18 of the judgment:
"The curator ad /item is the eyes and ears of the Court. This is achieved by the curator
investigating and reporting back to the Court and the Master. The report is there to draw
37
the Court's attention to any consideration which in view of the curator ad !item might
influence the Court with regards to the terms of the order sought."
[7 4] A curator ad /item wou Id also be empowered to investigate whether the respondent
requires assistance in the further litigation of this matter and provide the Court
considerable insight into the granting of the order for the appointment of the curatorls
bonis.
[75] Counsel for the respondent argued that the Court's dismissal of a curator ad !item
in Scott and Others v Scott and Another 2021 (2) SA 27 4 KZD is pertinently on all fours
in consideration of this application. In Scott, the Court held that as Rule 57(1) -(3) is
predicated on a peremptory requirement that the application must be supported by the
required medical reports in support of the facts and circumstances relied on to show that
the patient is of unsound mind and incapable of managing his affairs, the application must
be supported by such medical reports. Unlike in the present case, in Scott no medical
reports have been provided by the applicants . The application was brought without any
medical reports and they sought an order from the Court to subject the respondent to a
medical examination to comply with the provisions of the rule. The matter before this Court
is however distinguishable from that of Scott as this application is supported by affidavits
of at least two medical practitioners , who had recently assessed the patient with a view
to ascertaining and reporting upon his mental condition and whether the patient is in their
opinion incapable of managing his affairs. In Scott, it was contended by the children and
38
brother of Mr. Scott who had made substantial earnings from the footwear as well as
horse racing industry, that the appointment of a curator ad /item could recommend
whether the respondent is of unsound mind and incapable of managing his own affairs
and for their father to undergo whatever medical and other examinations necessary for
the purpose of preparing a report for the court. Mr. Scott opposed the relief sought.
[76] In Scott, the Court quoted with approval the matter of Nicolakakis and Another: in
re appointment of Curator Banis to Arthur Nicolakakis [2019] ZAGP-PHC 997 (4
November 2019) involving litigation amongst family members , where a son, together with
his mother, brought an application to have this father (the patient) placed under
curatorsh ip in terms of Rule 57 on the basis that his father was incapable of managing
his own affairs. The patient was a highly successful businessman , the sole shareholder
of the well-known Roman's Pizza franchise. In Nicolakakis it was contended that the
patient was suffering from dementia and his son and wife feared that as a result of the
patient's condition, he intended to leave to his friends and personal assistant, amongst
others, much of his wealth. The patient opposed the attempt to have him examined by
doctors.
[77] In Scott the respondent confirmed that he has been perfectly happy in his living
arrangements with his wife and did not see any need or basis for the Court to intervene
to appoint a curator to him. He was adamant that he was of sound mind and able to make
his own decisions and that there was no basis for his children to suggest otherwise . The
39
Court held that in light of the first respondent having a trusted group of advisors, including
his long-standing financial advisor, his accountant , bank officials, his attorney and his wife
of over 30 years, without the applicants meeting the requirements of Rule 57, the
Court dismissed the application.
[78] It is trite that the onus is on the applicant to prove on a balance of probabilities that
the appointment of a curator ad /item to the patient is a necessary step. Prima facie proof
is not sufficient. In the matter before this Court, however, the application is brought with
the support of two affidavits by two independent medical practitioners who have examined
the respondent. The critique is, however, that the medical practitioners did not investigate
the respondent adequately in that they did not do a functional assessment. I am not
persuaded that this distinction is so acute in these circumstances that it warrants me to
dismiss the medical opinion of these two practitioners. I have considered the reports, the
chronological sequence of events together with other relevant facts, and I am satisfied
that the medical professionals had sufficient information to have formed their opinion and
recommendation. I am of the view that the requirements of Rule 57(3) are met by way of
the affidavits of Dr Spammer and Dr Mason. This Court is certainly in a markedly different
position as that of the respective courts in Scott and Nico/akakis where the application
were brought without any medical evidence _and no basis for special circumstances
existed for condonation thereof by the Court as otherwise permitted in terms of Rule 57(4).
Importantly, in the matter before this Court, the applicant had set out in substantial and
sufficient detail the basis for his case, from knowledge which he has acquired first-hand
as the son of the respondent and his wife and confirmed by the third parties, to the extent
40
that he relies on their input, by way of confirmatory affidavits. The burden of proof has
been met that on a balance of probabilities, the respondent suffers from a moderate to
severe diminished mental capacity warranting the appointment of a curator.
(79] Counsel for the respondent argued that this application is about wanting a curator
to investigate the need for granting a curatorship order. I raised with counsel for the
respondent, that the appointment of a curator ad /item is not to be considered as
investigating the matter for this Court to decide whether to grant the application or not. I
emphasised that that is certainly not permitted in law. Leaving such a decision in the
hands of a person other than the Court would undoubtedly be a misdirection . I will deal
with this in further detail below.
[80] I consider this an opportune juncture to turn the objection which respondent 's
counsel raised to my appointment of an expert to assess the medical evidence of the two
doctors and in particular that the medical opinion of the psychiatrist did not include a
functional assessment.
[81] The respondent's counsel submitted that the wide powers afforded by Rule 57(4)
cannot reasonably be interpreted as permitting the Court, at the first stage of the
curatorship application, to cure a defective case mounted by an applicant. The argument
followed that since the Court has expressed its concern that the issue goes to the heart
of the welfare of an older person, the Court is "not under anv duty to interfere with the
41
respondent's life to prevent harm from ensuing." Counsel argued that the curator ad /item
is not on a similar footing to an application affecting the welfare of children, in regard to
whom the Court is the upper guardian, and in which the interests of children are
paramount. Whilst I agree that as the upper guardian of all minor children, the Court can
and must make such orders as it deems appropriate to avoid the prospects of harm, I
found it somewhat problematic to accept the argument that the Court has no duty to
interfere with the respondent's life to prevent harm from ensuing and dismiss the
application for curatorship in the premise, where the Court is confronted in this matter
with some unique circumstances, inter alia:
[81.1] The application relates to a person of an advanced age of almost 80
years old suffering from dementia (MNCD).
[81.2] There are reports of behaviors by the respondent which are
uncharacteristic and harmful to himself and his financial affairs, consistent with
the medical scan results showing the respondent has severe brain damage
(cerebral atrophy (shrinkage)).
[81.3] Reports that his medical appointments have been cancelled by his
infrastructure of family members which medical treatment is aimed at
facilitating , delaying or managing the ailing condition of his diagnosis.
42
[81.4] Two specialized medical doctors who have had the opportunity to
consult with the respondent, together with MRI brain scans, taking into account
his medical and mental health history and who found the respondent to be
unable to retain information in a coherent manner and thus incapable of
managing his affairs.
[81.5] The aforesaid two medical practitioners have maintained their
professio.nal opinion under oath that the respondent is certainly not able to
adequately take care of his affairs, including his substantial financial affairs.
[81.6] The respondent is relying on a criticism by a medical practitioner who
had not consulted with the respondent. Indeed, there is no reverse onus on
the respondent to provide a physical assessment challenging the medical
reports upon which the application is brought. However, the affidavits which
seek to impugn the findings and medical recommendations of the aforesaid two
medical practitioners, are a general overview of medical assessments in theory
and how in practice it should ideally be over a period of 2 or 3 sessions, to do
a full investigation as to the patient's functional ability and other suggestions for
a comprehensive assessment with the application for curatorship needing to
be appointed by four clinicians as opposed to the mandatory minimum of two
doctors.
43
[81.7] The position of Dr. Spammer and Dr Mason were that it was very
patent upon meeting with the patient respectively, that together with the tests,
MRI brain scan and in the course of their interaction with the patient and
members of his circle, that they had enough evidence to come to their
respective conclusions.
[82] I was of the view that the Court would benefit from an expert to consider the
medical evidence not as a general observation but in detail, together with the criticism of
Dr Fine and place the Court with insight into whether the medical evidence upon which
the application is brought is sufficient to warrant the relief sought. I am of the view that
my decision to appoint Prof Niehaus as an expert for the Court did not amount to
garnering more evidence to cure a 'defective' application as argued by respondent's
counsel. In fact, it was open to Prof Niehaus to state that he agrees that further
assessments were warranted before Dr Spammer and Dr Mason could each support an
application for the appointment of a curator. Irrespective of the report of Prof Niehaus,
this Court is able to decide, taking into account the totality of the evidence, whether the
application ought to have been granted. Given the circumstances set out above, I was of
the view that the Court ought to proceed with caution and that it was in the interests of
justice to consider an assessment of the adequacy of the medical evidence.
[83] However, even if I am wrong in the appointment of Prof Niehaus, as an expert to
evaluate the medical evidence, and his report is altogether disregarded, the weight of the
evidence before me is substantial enough to find that the applicant had discharged the
44
onus upon him on a balance of probabilities. It is significant to mention that Dr Mason's
affidavit filed after having sight of the critique levelled by Dr Fine as follows: (paragraph
1 O, record page 67 4 to 677)
"I respectfully submit that this is a case specific determination. While multiple
consultations may be ideal in some cases, the indication in Mr. Tibshraeny 's case were
sufficiently clear and compelling to warrant my diagnosis of dementia after one such
consultation/assessment .... I maintain that, in light of the medical evidence, Mr.
Tibshraeny 's need for assistance and care, and financial security, it would have been
negligent for me not to have recommended the appointment of a curator to protect his
interests." (emphasis added)
[84] For the respondent it was argued that "mere suspicion " would not discharge the
applicant's onus. I cannot disagree more. This matter was not mere suspicion. I am
satisfied that the papers before me (even without the report of Prof Niehaus)
overwhelmingly support the appointment of a curator for Mr. Tibshraeny to protect his
interests. The respondent's severe cognitive impairment and executive function severely
impacts his ability to manage his own affairs, especially complex financial matters. Whilst
the respondent maintained throughout this matter, that professionals and other support
members would act according to his instructions and that he would have "the final say", I
am not persuaded that the respondent's final say, or approval is an informed decision, nor
can it be considering his mental condition. For example, the business of Willoughby 's
runs at an annual gross turnover of R1 m per annum. (Affidavit of Mr. Phillip Human). Mr.
45
Tibshraeny was unable to do the clock drawing during his medical evaluation and
notwithstanding repeated attempts at a 10-word list, could only repeat 3 words. Together
with the other medical evidence, I cannot accept that the respondent has the capacity to
exercise overall (informed) control over his affairs and in particular grasp the complexities
of the financial demands of this business and his other financial interests.
[85] I am satisfied that the totality of the evidence supports the granting of the
application on a balance of probabilities . It is trite that the investigation by the curator and
reporting back to the Court and the Master is to draw the Court's attention to any
consideration which, in view of the curator ad /item, might influence the Court with regard
to the terms of the Order sought. I stated in paragraphs 62 -65 that this may be a suitable
case to develop the common law, as indicated, the curator's role is not deciding on the
granting of curatorship but rather the terms which she may propose as an order. The
appointment by this Court of a curator would be in the best interests of the respondent.
Any further delay or diversion from an order placing the respondent under curatorship
would only serve to prolong the responden t's vulnerability and potentially expose him to
harm.
[86] Lastly, the application was made by the respondent on 25 September 2024, after
the final hearing of this matter, for leave to permit the filing of further affidavits. I granted
such leave as being in the interests of justice for the complete ventilation of the matter,
including those factors which have come to the attention of the parties or transpired after
46
the hearing of the matter. I have considered the affidavits of the respondent, and Mr.
Phillip Human, the manager of the Willoughby's Restaurant and cousin of the applicant,
dated 31 October 2024. As set out in the affidavits, its purpose is to bring to the attention
of the Court facts which are believed by Mr Tibshraeny and Mr Human to be indicative of
the self-serving interests of Darren in bringing the curatorship application. In short, it
refers to events where the applicant had commenced occupation of the Clifton apartment
valued more than R30 million, owned by the Laguna Trust, of which the respondent , his
wife and his accountant , Mr Margolis are the trustees. The occupation of the apartment
took effect without the consent of the three trustees. It is alleged that the applicant
clandestinely arranged with the applicant's erstwhile attorney, Mr. Cohen, to cause the
early vacation of the tenant, Mr Mouton, including repayment of the deposit and advance
rental to him, thereby arranging for the applicant's occupation. Mr Cohen filed an affidavit
denying these averments and set out that he acted in accordance with his mandate held
in respect of the Trust. Notwithstanding written demands by Mr Biccari for Darren's
vacation by 18 September 2024 and payment of occupational interest for the period of
his stay from 11 August 2024 in the amount of R80 000 per month, pro-rated to the daily
rate and payable to his practice trust account, he remains so resident without the payment
of rental and refuses to vacate. If anything, the appointment of a curator would also
address the occupation of the Clifton apartment , as the respondent is a trustee of the
Laguna Trust who owns it.
[87] The affidavit of Mr. Human also sets out that the applicant had been dining at the
restaurant on numerous occasions , sometimes with guests, and refused to effect
47
payment of the bill instead he would merely sign it. On certain occasions he would also
enter the non-patron areas and engage with staff, making certain enquiries as if entitled
to do so which Mr. Human considers as a gross interference of the business and
disruptive to staff which erodes the morale of the employees. He also alleges that the
respondent would be recorded on video footage and occasionally would look "defiantly"
into the cameras. He furthermore considers the actions of the applicant as undermining
his position as the general manager of the business which he speculates may very well
be the intention of the applicant. He also alleges that the applicant has conveyed to the
other manager, Mr. Clint Fennel, that the applicant has openly declared to Mr. Fennel that
he considers himself to have the right to be the owner of Willoughby 's by succeeding the
respondent , his father, and that he considers himself as the rightful person to be in charge
of Willoughby 's business and not his cousin, Mr Human. Furthermore, when the applicant
succeeds as owner, he will run the business and remove his cousin as general manager.
Confirmatory affidavits for Mr. Fennel, Mr Margolis, Mr Human and the daughter of the
respondent, Natalie, are respectively filed of record to these further affidavits filed.
[88] I am not persuaded that the belated alleged facts change the findings of this Court.
It is common cause that this family is at war with itself. The papers are sadly replete with
the reality that the financial success of the applicant and the wealth of the family had
resulted or contributed in significant conflict and deep division within the family. Different
caucus groups have formed together with outsiders actively opposing each other, creating
a hostile, combative and tense atmosphere . It is not in dispute that Mr Tibshraeny had
always maintained that the business had been built up into a lucrative empire for the
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benefit of the family and should remain in the family. It is not in dispute that he loves both
his children, his daughter, Natalie and the applicant, Darren. It is apparent however that
during this feud, suspicions and negative emotions towards polarised groups, anger,
resentment , bitterness and self-preservation have become a prevalent feature within the
family dynamic. The vilification of the applicant by the respondent and those who form
part of his support infrastructure and their allegations with regard to Darren's ma/a tides
is a pervasive and very burning allegation throughout the papers. So too, is the suspicion
and allegations by the applicant that his father is being manipulated and that his parents
are subjected to an unlawful palace revolution by those his father trusts the most. The
portrayal of these events and emotions is unfortunate . However, it does not detract from
the findings of this Court. The members of this family are urged to find common ground.
The children of the respondent, and his wife, are urged by this Court to accept that the
vulnerable positions of their parents including their state of health and their advanced age
require of their children to be at peace with each other. It is hard to imagine that a young
Jens Tibshraeny, with the support of his wife, Elizabeth, had started a business which had
boomed into success with hard work and sacrifice, only to have its exponential
achievements haunt them in their old age and divide their family. Apropos this reality, the
appointed curator ad /item is also directed to investigate the discord between the family
and propose to this Court, in her report, ways in which the acrimony and tensions can be
reduced for the respondent and resolved in a manner which would lessen the pressure
which bears upon him as a result.
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[89] For the reasons to which this Court has come and in all circumstances of the
matter, I make the following order:
i] ADVOCATE DIANE DAVIS SC is appointed as Curator Ad Litem to
represent JENS PETER TIBSHRAENY ("the patient") in an application to have
him declared incapable of managing his own affairs and for the appointment of a
curator bonis or curators bonis to the patient.
ii] The curator ad !item is also requested to investigate the question of whether
Attorney SEMIRA FUAD HRISTOV should be appointed as curator bonis to the
patient in addition to such other persons as the curator ad /item may wish to
recommend as additional curators.
iii] The curator ad /item is directed to file her report with the Registrar of this
Court and the Office of the Master of the High Court by 30 May 2025.
iv] The matter is postponed to Tuesday, 17 June 2025.
v] The costs of this application shall stand over for later determinati