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
In Re
In the ex parte application of:
DARREN JENS TIBSHRAENY Applicant
For the appointment of Curatores ad Litem et Bonis to
JENS PETER TIBSHRAENY
_________________________________________________________________ _____
Coram : Da Silva Salie, J
OFFICE OF THE CHIEF JUSTICE
REPUBLIC OF SOUTH AFRICA
Judgment delivered in respect of : 2 June 2025
postponement application heard on
28 May 2025
Counsel for Applicant : Adv. Peter Hodes SC
Adv. Paul Tredoux
Instructed by : Kili Inc. Attorneys
Ref: Mr L ennox Kili
Counsel for Respondent : Adv. Fiona Gordon -Turner SC
Instructed by : Frank Biccari Attorneys
Mr Frank Biccari
JUDGMENT ELECTRONICALLY DELIVERED ON 2 JUNE 2025
DA SILVA SALIE, J
Introduction:
[1] Before this Court is an application by the respondent, Mr Jens Peter Tibshraeny,
for a postponement of these proceedings to enable a psychiatric evaluation to
determine his capacity to give instructions to his legal representatives. The application
is opposed by the applic ant, Mr Darren Tibshraeny. The curator ad litem, Adv Diane
Davis SC, did not participate in or oppose the application.
[2] On 18 March 2025, this Court granted an order in terms of Rule 57 of the
Uniform Rules of Court declaring Mr Tibshraeny incapable of managing his affairs and
appointed a curator ad litem to act in his interests. This finding considered in detail, inter
alia, the opinions by two medical evaluations which confirmed a progressive cognitive
decline impairing the respondent's functional and decisional capacities.
[3] It is against this backdrop that the respondent, acting purportedly through his
legal representatives, filed a notice of appeal and now seeks a postponement pending
further psychiatric assessment. The core of the request is to reassess his competence
to instruct his legal team, which he argues is distinguishable from his broader incapacity
to manage his affairs.
[4] This contention is without merit. The nature of a declaration under Rule 57
encompasses both patrimonial and legal decision -making capacities . Once a person
has been declared incapable of managing their own affairs, this incapacity extends to all
consequential faculties which require sound and independent judgment, including the
ability to engage in litigation and instruct legal representatives , pending the report of the
appointed curator ad litem, whereafter the Court will direct further in this application
brought in terms of Rule 57.
[5] Such incapacity necessarily implies the inability to give meaningful instructions
for litigation unless and until set aside or varied on proper application supported by
medical evidence and in compliance with procedural requirements. See Van Rensburg
N.O. v C ornelius (A31/2023) [2023] ZAWCHC 190 (7 August 2023) .
[6] In this instance, the appointment of Adv Diane Davis SC as curator ad litem was
not ceremonial but functional. She is authorised and directed by this Court to act in the
best interests of the respondent and to represent him in ongoing and future litigation
until this Court directs further . The respondent is, by law, required to cooperate with the
curator ad litem. Any application or notice filed without her involvement lacks legal
standing. The curator ad litem is entitled to obtain a further medical repor t by a medical
specialist of her choosing and if and as she may consider such action appropriate in
order to prepare her report.
[7] Furthermore, the present application for postponement seeks to relitigate an
issue already determined by this Court and cl oaked now in a veneer of procedural
fairness. There is no new or compelling medical evidence to contradict the findings
previously made. The proposed assessment does not justify a further delay in
proceedings and would prejudice the proper administration o f justice and the interests of
the patient who is suffering from a de clining mental condition .
[8] Wherefore I make the following Order :
“[i] The application for a postponement is accordingly refused.
[ii] The respondent shall cooperate fully with the appointed curator ad litem,
who shall continue to act and represent the respondent in all pending
proceedings and related matters until further di rection from this Court.
[iii] Costs of this application shall be borne by the respondent’s estate on
Scale C .
[iv] The Registrar of this Court is directed to serve a copy of this Order on
Adv. Davis SC by email.”
________________________
DA SILVA SALIE, J
JUDGE OF THE HIGH COURT
WESTERN CAPE