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
(WESTERN CAPE DIVISION, CAPE TOWN)

JUDGMENT
Not Reportable
Case No: 13122/2019
Related Case No: 8222/2020
In the matter between:

S[...] M[...] W[...] N.O.
(In his capacity as Executor of the Estate Late
Mr R[...] W[...] S[...] W[...])

Plaintiff
And


J[...] J[...] W[...] [NÉE A[...]] First Defendant
(ID No: 6[...])


PATRICIA LUCETTE LINDGREN N.O.
(In her capacity as Curator ad Personam
to Mr R[...] W[...] S[...] W[...])

Second Defendant
DIRECTOR-GENERAL OF THE DEPARTMENT
OF HOME AFFAIRS

Third Defendant
MASTER OF THE HIGH COURT, CAPE TOWN Fourth Defendant

Coram: NJOKWENI AJ
Heard on: 12 June 2025; 3, 4, 8 September 2025 ; 18 October
2025
Delivered on: 10 December 2025

Summary: Civil Trial – executor of the deceased estate – marriage concluded when
person is of unsound mind and under curatorship - onus shifts to the defendant –
medical expert evidence – declaration of invalidity of marriage – costs – Marriage
declared null and void ab initio.

ORDER

1. The marriage agreement concluded on 8 June 2018 between the late R[...] W[...]
S[...] W[...] and the First Defendant is declared null and void ab initio.
2. The First Defendant is ordered to pay the costs of the action.
3. The First Defendant is ordered to pay the costs in respect of the two urgent
applications instituted under case number 8222/2020 on 2 July 2020 and 25 May
2021.

JUDGMENT

NJOKWENI AJ


INTRODUCTION

[1] Decision-making is a key part of life. People make choices about where to live,
health care, education, work, relationships, and finances 1. Making these choices
shows our individuality, and when others respect our decisions, we have control over
our lives.2

1 SALRC Discussion Paper 105 on Assisted Decision-Making: Adults with Impaired Decision-Making
Capacity (January 2004) on 6.
2 SALRC Discussion Paper 105 supra, on 6, footnote 14 with reference to Ashton and Ward 3 -7;
Queensland Law Reform Commission Draft Report 1995 1.

[2] This action concerns the validity of a marriage between the late R[...] W[...]
(“the Deceased”) and the First Defendant, J[...] J[...] W[...]. The Plaintiff, as executor
of the Deceased's estate, seeks to have the marriage declared null and void ab initio,
arguing that the Deceased was of unsound mind at the time due to severe cognitive
and behavioural impairments from a stroke and vascular dementia. The First
Defendant contes ts this, asserting the Deceased was of sound mind when the
marriage was concluded. At trial, the First Defendant represented herself.


RELEVANT FACTS

[3] The facts relevant to this case are set out below.

[4] R[...] W[...] had a severe stroke in May 2017, which caused major cognitive and
behavioral problems, including vascular dementia. Because of his condition, a
curator bonis was appointed to manage his affairs on 5 September 2017. He and the
First Defendant married in community of property on 8 June 2018, while he was still
under curatorship.

[5] The First Defendant claims the Deceased was of sound mind when they
married. However, she did not provide expert evidence to support this, even though
the court gave her several chances.

[6] The Plaintiff brought expert evidence from Prof Niehaus, a psychiatrist, who
said the Deceased was of unsound mind and could not enter into a marriage
contract at the time. The First Defendant called two experts, Dr. Burger and Dr.
Mason, but their evidence also supported the Plaintiff's claim that the Deceased was
of unsound mind.

[7] The curator bonis, who acted before the Plaintiff, filed two urgent applications
against the Firs t Defendant to manage the joint estate and arrange the Deceased's
medical care and accommodation. The First Defendant at first refused to cooperate
but agreed to the relief requested in both cases on the day of the hearings. The
question of who should pay for these applications remains unresolved.

[8] The Plaintiff argued that the First Defendant did not prove the Deceased was of
sound mind. The Plaintiff asks the court to declare t he marriage null and void and to
award costs for this case and the urgent applications.

ISSUES


[9] The issues the court must decide in this case are:
a. whether the Deceased had the mental capacity to understand and consent to the
marriage agreement.
b. Costs, including whether the First Defendant should bear the costs of the action
and two prior urgent applications filed by the Plaintiff’s predecessor to manage the
joint estate and provide for the Deceased’s care.

Summary of Expert Evidence

Dr. Burger (Neurologist)

[10] According to Dr Burger, the Deceased suffered an acute MCA stroke in May
2017, leading to global aphasia, mild right -hand apraxia, and severe cardiac
morbidity. He was re-admitted to care due to confusion and aggression.

[11] Dr. Burger testified that the Deceased was not of sound mind and incapable of
making major life decisions during his May 2017 examination. He could not confirm
the Deceased’s mental state at the time of the marriage, but stated that the
Deceased was not in a state to contract a marriage during his examination. To Dr
Burger, the Deceased suffered an acute MCA stroke in May 2017, leading to global
aphasia, mild right -hand apraxia, and severe cardiac morbidity. He was re -admitted
to care due to confusion and aggression.

Dr. Mason (Psychiatrist)

[12] Dr Mason found the Deceased suffered from vascular dementia and post -
stroke sequelae, including aggression, aphasia, impaired comprehension, and
behavioural changes. On 16 May 2 018, less than a month before the marriage, Dr.

Mason found the Deceased’s clinical state unchanged, with permanent
neurocognitive and behavioural impairments.

[13] Dr. Mason testified that the Deceased’s stroke caused frontal lobe impairment,
leading to behavioural difficulties. He stated that the Deceased did not have the
mental capacity to enter into a marriage contract at any point during his involvement.

Prof Niehaus (Psychiatrist, Plaintiff’s Expert)

[14] On 26 June 2018, Prof Niehaus examined the Deceased and found him
suffering from global aphasia, vascular dementia, and significant cognitive and
behavioural impairments. The Deceased was unable to comprehend or express
agreement/disagreement with the concept of marriage or its responsibilities. Prof
Niehaus stated t hat the Deceased lacked the capacity to consent to or sign
contracts, including a marriage agreement, due to his severe neurocognitive
impairments.

THE LAW

[15] The general rule is that majors are presumed mentally and legally competent to
manage their own affairs until the contrary is proved. The onus of proving that a
transaction is invalid for want of mental capacity normally rests on the party alleging
it.3 However, where the court has declared a person to be of unsound mind, and
incapable of managing his or her own affairs, such certification creates a rebuttable
presumption of incapacity, shifting the burden of proof to the party who wants to hold
the certified person bound by the transaction.

[16] In terms of our Common Law the general principle is that if a person is not able
to fully understand or interpret all the consequences of his actions due to a mental
illness or intellectual disability, it is said th at such person lacks capacity to perform a
specific act and the act is consequently void. It makes no difference whether the
person has not yet been declared mentally ill and a curator appointed to him or her,

3 De Villiers v Espach 1958 (3) SA 91 (T).

or that the other party to the transaction was unaware of the person’s mental
condition.4

[17] It is important to note that the mere fact that a person has been declared
mentally ill and that a curator has been appointed to administer his or her estate
does not mean that such person loses all capacity to act.5 In Pienaar v Pienaar’s
Curator6 Judge President De Villiers (as he then was) stated:
‘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 of which he may de facto be capable, mentally and physically, of so doing. Such
mental or physical capacity may vary from day to day, but at all times it remains a question
of fact. The object of appointing a curator is merely to assist the person in question in
performing legal acts to the extent of which such assistance is from day to day, in varying
degrees, necessary. Thus ev en a person who has been declared insane and to whose
estate a curator has been appointed can dispose of his property and enter into contract
whenever he is mentally capable of doing so.’

[18] Accordingly, someone who has been placed under curatorship because of a
mental illness and a subsequent inability to manage his or her own affairs, can enter
into a valid legal transaction with its normal consequences if, at that particular
moment, he or she was physically and mentally capable of doing so. 7 Thus, for
example, it has been held that such person may enter into a contract .8 However, the
person who alleges that the person under curatorship had full capacity to enter into
the legal transaction must prove that fact.

[19] However, If it is found that the person lac ked the capacity to understand the
nature or consequences of the transaction when he or she entered into it, as is the

nature or consequences of the transaction when he or she entered into it, as is the
case in this matter - he or she is not bound by it9 and it is void for want of capacity.


4 Boberg’s Law of persons and the Family 106; Molyneux v Natal Land & Colonization Co Ltd (1905)
AC 555 (PC) at 561.
5 Cronjé & Heaton, The South African Law of Persons, 113.
6 1930 OPD 171 at 174-175 1930.
7 Cronjê & Heaton 125.
8 Ex parte De Bruin 1946 OPD 110.
9 Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman 1997 (4) SA 302 (SCA).

[20] In casu, the Deceased was already placed under curatorship of a curator bonis
and ad personam at the date of conclusion of the marriage. The first defendant
alleges that the Deceased was of sound mind when he concluded the marriage and
could appreciate the consequences. As a r esult, the first defendant bore the onus to
prove that the Deceased was of sound mind when the marriage was concluded and
that he could appreciate the legal consequences thereof. In casu, both the plaintiff
and the first defendant’s experts agree that the Deceased lacked the necessary
capacity to understand the nature or consequences of the marriage when he entered
into it. As a result, the first defendant failed to discharge that onus.

COSTS

Costs of the Action

[21] The two basic rules in respect of costs are well summarized by the Court in Ferreira v
Levin, Vryenhoek v Powell10 wherein Ackerman J stated the following:
“[3] The Supreme Court has, over the years, developed a flexible approached to costs which
proceeds from two basic principles, the first being that the award of cost, unless expressly
otherwise in enacted, is in the discretion of the presiding judicial off icer, and the second that
the successful party should, as a general rule, have his or her cost.”

[22] This discretion is to be exercise d on grounds upon which a reasonable person
could have come to the conclusion arrived at.11 The Plaintiff argues that the general
rule should apply: the successful party is entitled to costs. The First Defendant had
the onus to prove the Deceased was of sound mind but failed to present sufficient
expert evidence despite being advised by the Court of the necessity to do so. T he
Plaintiff incurred substantial costs to safeguard the rights of the Deceased and his
heirs, which would otherwise result in financial prejudice due to the First Defendant’s
unreasonable conduct.

Costs in the Urgent Applications


10 1996 (2) SA 621 (CC) at 624.
11 Bruwer v Smit 1971 (4) SA 164 (C) at 517

[23] The Plaintiff’s pre decessor (curator bonis) was forced to institute two urgent
applications due to the First Defendant’s refusal to cooperate in managing the joint
estate, despite repeated requests and correspondence. In both applications, the First
Defendant conceded to the relief sought only on the day of the hearing, leaving the
issue of costs unresolved.

[24] The Plaintiff argues that the Applicant (estate of the Deceased) should be
awarded costs as the First Defendant’s conduct rendered the applications necessary
and urgent. Jenkins v SA Boil er Makers, Iron & Steel Workers & Ship Builders
Society12 established that: where a case has been settled on a basis which disposes
of the merits except in so far as costs are concerned, the court – while not required
to hear evidence to decide the disputed facts in order to decide who is liable for
costs – has to make a proper allocation of costs.13

[25] In Ideal Trading 199 CC v Polokwane Local Municipality 14, where the Court
quoted passages from Ward v Sulzer15 before stating at para [9] that:
‘Although this case was decided against the backdrop of a withdrawal, the reasoning still
rings true. The Applicant cannot be deprived of its costs in as far as the conduct of the
Respondent rendered the merits of the application moot.’

[26] In the Urgent Applications the only material to the disposal of the Honourab le
Court is the version of the Applicant therein - i.e. the estate of the Deceased, as
presented now by the Plaintiff. In the action and during cross examination the First
Defendant was expressly requested to provide reasons for her delay in providing he r
co-operation to the management of the common estate, to which she simply
answered she was ‘unhappy with the way she was approached’, without providing
any further particulars in that regard.

[27] The position is consequently that the Applicant has brought tw o applications of
undisputed urgency, which was justified and well -founded, in order to address the

undisputed urgency, which was justified and well -founded, in order to address the
First Respondent’s refusal to provide her co-operation in the management of the joint
estate, in order to care for the Deceased. Only after the institution of the Urgent

121946 WLD 15.
13Cilliers, Law of Costs (3rded) (1997) at para 2.20.
14 3087/2021) [2023] ZALMPPHC 75 (15 August 2023)
15 1973 (3) SA 701 (A),

Applications and on the day of each respective hearing, did the First Respondent
essentially concede to the relief sought. The usual rule in such circumstances is that
an applicant should be awarded costs.16

CONCLUSION

[28] Considering the whol e body of the evidence, this Court is satisfied that the
plaintiff is entitled to relief sought in this action and has made out a case for all the
relief sought.

[29] For these reasons, I make the following order:

1. The marriage agreement concluded on 8 June 2018 between the late R[...]
W[...] S[...] W[...] and First Defendant is declared null and void ab initio.
2. The First Defendant is ordered to pay the costs of the action.
3. The First Defendant is ordered to pay the costs in respect of the two urgent
applications instituted under case number 8222/2020 on 2 July 2020 and 25
May 2021.

___________________________________
P. NJOKWENI
ACTING JUDGE OF THE HIGH COURT

Appearances
For Appellant: Mr C Bosman
Instructed by: Visagie Vos Attorneys

First Respondent: In person.



16 See the Ward-matter supra