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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: M431/2023
In the matter between:
EWAN CARTER SMITH N.O.
(In his capacity as curator bonis of
O[...] S[...]) Applicant
and
KOKETSO MARGRET BALIBI First Respondent
SEGARIA BALIBI Second Respondent
ADVICE MOLUSI Third Respondent
LEGAL PRACTICE COUNCIL Fourth Respondent
MASTER OF THE HIGH COURT: PRETORIA Fifth Respondent
Coram: Petersen ADJP
Date enrolled: 29 January 2026
Judgment reserved: 29 January 2026
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email. The date and time for the handing down of the
judgment are deemed to be 14h00 on 09 February 2026.
Summary: Application by curator bonis – interdictory relief – refusal to
disclose whereabouts of patient – obstruction of court -appointed officials –
threats of violence – appointment of curatrix ad personam – best interests of
patient paramount – respondents' opposition based on stayed resci ssion
application – lack of counterapplication for stay fatal – final interdict granted –
costs on attorney and client scale.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETERSEN ADJP:
Introduction
[1] This is an application concerning the well -being and administration of the
affairs of Mr. O[...] S[...] (“the Patient”). The applicant, Mr. Ewan Carter Smith
N.O., approaches this Court in his official capacity as the appointed curator
bonis of the Patient.
[2] The applicant seeks interdictory relief against the first, second, and third
respondents to compel the disclosure of th e Patient ’s whereabouts, to prevent
obstruction of the court-appointed curators ’ duties, and to interdict the
respondents, specifically the third respondent, from committing hostile acts or
threats against the legal representatives and medical teams tasked with the
Patient's care. Additionally, the applicant seeks the appointment of an interim
curatrix ad personam.
Factual Background
[3] The Patient, while still a minor aged approximately 5 years, was involved in
a motor vehicle collision on 16 July 2010 in Kuruman, Northern Cape. As a
result of the accident, he sustained a severe paediatric traumatic brain injury,
including cerebral contusions and a skull fracture.
[4] Drs du Plessis (Neurosurgeon) and Mazabow (Clinical Psychologist) have
confirmed that the Patient sustained permanent neuropsychological difficulties.
Consequently, on 19 December 2017, Baqwa J of the G auteng Division
Pretoria, declared the Patient incapable of managing his own affairs.
[5] The applicant was appointed as curator bonis by the Master of the High
Court on 17 September 2021 , an appointment that the respondents challenge.
Since his appointment, the applicant avers that his effort s to locate and consult
with the Patient have been systematically frustrated by the first, second, and
third respondents.
[6] The applicant enlisted private investigators to trace the Patient, but these
efforts were unsuccessful due to the respondents’ refusal to cooperate.
The conduct of the Respondents
[7] The first and second respondents are “represented” by the third respondent,
Mr. Advice Molusi . The papers before this Court indicate serious concerns
regarding the third respondent’s standing and conduct. Although he purports to
represent the family, investigations reveal his letterhead refers to a “Mulusi
Property Trust” and lists qualifications from an institution that does not offer a
Bachelor of Laws (LLB) degree. He also admits that he is not an admitted
attorney or advocate.
[8] It is with grave concern that this Court notes the evidence of hostility and
threats directed at the court-appointed officials. The applicant refers to email
correspondence dated 26 February 2024, in which the third respondent
communicated the following threat to the legal team:
“...we have been discussing this matter with the local community, and the decision was taken
that you are taking the blacks for granted... SOLUTION WAS TAKEN THAT WHOEVER
YOU ARE GOING TO SEND NEAR O[...] WILL NOT COME BACK.”
[9] This statement constitutes a direct threat to the safety of the applicant, the
curatrix ad litem, and any medical personnel attempting to assist the Patient.
[10] The first, second, and third respondents filed a Notice of Intention to
Oppose and an Answering Affidavit on 01 July 2025. They failed to specifically
deny the material averments in the Founding Affidavit or to “confess and
avoid.” In motion proceedings, where a respondent fails to dispute the
applicant’s allegations, those allegations are generally taken as established facts.
The conduct of the respondents
[11] A central aspect of this application is the deteriorating behaviour of the
Patient and the inability of the current caregivers (the respondents) to manage
his condition appropriately. The reports filed by the social worker, Ms. P.T.
Koko Mogokonyane, and the occupational therapist, Ms. Anneke Greeff, paint a
concerning picture of the Patient’s conduct and living conditions since 2015.
[12] The first, second, and third respondents oppose the application primarily on
the basis that the current proceedings sh ould be stayed pending an application
for the rescission of the order granted by Acting Justice Dibetso -Bodibe on 31
August 2023. They contend that they have reasonable prospects of success in
the rescission application and raise two main grounds of irregu larity regarding
the appointments of the court-appointed officials.
[13] Firstly, the respondents challenge the re -appointment of Advocate Gianni
as curatrix ad litem . They submit that Advocate Gianni became functus officio
on 19 December 2017 when the ma in action against the Road Accident Fund
was concluded. They argue that the application for her re -appointment in 2023
was fatally flawed because it was not served on the first and second respondents
and was not supported by an affidavit from a person well -known to the Patient,
as required by Rule 57(3)(a) of the Uniform Rules of Court.
[14] Secondly, the respondents challenge the appointment of the current curator
bonis, Mr. Smith, following the removal of the previous curator, Ms. Spitalieri.
They aver t hat the Master of the High Court removed Ms. Spitalieri without
providing reasons to the Patient's next of kin . Furthermore, they argue that the
subsequent appointment of Mr. Smith by the Assistant Master, Mr Neethling, on
17 September 2021 constituted administrative action that failed to comply with
the Promotion of Administrative Justice Act 3 of 2000 (PAJA). They
specifically contend that the Assistant Master was unable to notify interested
parties, including the Patient, before making the decision.
[15] The respondents consequently seek a stay of these proceedings to allow for
the rescission application to be adjudicated. They argue that the underlying
processes for appointing both the curatrix ad litem and the curator bonis were
irregular.
[16] The submissions advanced on behalf of the respondents are further that the
reports on which the appointment of Adv Gianni is based and on which the
order of Bodibe -Dibetso AJ was predicated are outdated, in circumstances
where the whereabouts of the Patient were known. The submissions of the
respondents regarding the social worker receiv ing collateral information from
the Principal of the school; that the Patient , after 2015 was indicative of
behaviour contrary to the findings of experts Dr Mazibow and Dr du Plessis ,
resulting in the order of Baqwa J, must be considered in context with re ference
to the facts as a whole and not extracted out of context.
[17] As indicated above, t he reports filed by the social worker, Ms. P.T. Koko
Mogokonyane, and the occupational therapist, Ms. Anneke Greeff, paint a
concerning picture of the Patient’s conduct and living conditions since 2015.
The record reflects a significant escalation in aggre ssive behaviour in early
2019. In March 2019, the Patient was implicated in an incident at his school
where he threatened another learner with a knife. Following this, he was
admitted to Akeso Clinic on 02 April 2019 for observation. On 16 April 2019,
Dr. Magagula (Psychiatrist) reported that the Patient had again displayed violent
behaviour, attempting to attack other children with a knife before being stopped.
Medical professionals recommended his transfer to Weskoppies Psychiatric
Hospital as the appropr iate institution for his needs . Still, the First and Second
Respondents refused to cooperate or provide the necessary consent for this
transfer.
[18] Ms. Mogokonyane, the appointed social worker, has compiled three reports
dated 02 November 2022, 23 March 2023, and 24 March 2024 detailing her
attempts to assess the Patient. The following is evidence from her reports.
During a home visit to Morokweng Village on 19 October 2021, the respondents
refused to cooperate or allow the social worker access to the Patient. On 03
March 2023, during a visit to Iteko Special School, the social worker was
presented with an individual purported to be the Patient . Still, no identification
could be produced to verify this identity. Significantly, during a subsequent visit
to Iteko Special School on 24 October 2023, Ms. Mogokonyane, alongside the
curator bonis and curatrix ad litem , was unable to see the Patient. It was
reported to them that the Patient had been expelled from the school due to
“unruly” behaviour.
[19] The social worker’s reports consistently reflect that the respondents’ refusal
to cooperate has prevented a proper assessment of the Patient’s social and
medical needs. This lack of supervision is particularly alarming given the
documented history of armed aggression towards other children.
[20] The conduct of the respondents has moved beyond mere non -cooperation
to active obstruction that endangers the Patient and the public. The history of
violent outbursts, specifically the use of weapons against minors, man dates
professional supervision, which the respondents have clearly failed to provide.
[21] The expulsion of the Patient from Iteko Special School for unruly
behaviour in late 2023, coupled with the earlier refusals to allow psychiatric
admission to Weskoppies, demonstrates that the Patient is not receiving the
requisite care. The appointment of a curatrix ad personam is therefore not
merely a procedural step but a necessary intervention to ensure the Patient's
physical safety and that of those around him.
Legal Principles and Application
[22] The paramount consideration in this matter is the Patient’s best interests .
The Patient has sustained a debilitating head injury and requires lifelong
medical evaluation and treatment. The expert findings, albeit in 2015 , were
findings indicative of a permanent nature. The obstructive conduct of the
respondents prevents the curator bonis and curatrix ad litem from assessing the
Patient’s needs, which is potentially harmful to his health and well-being.
[23] The requisites for a final interdict are well -established: a clear right, an
injury actually committed or reasonably appreh ended, and the absence of
similar protection by any other ordinary remedy. As to the requirement of a
clear right , the applicant, as curator bonis , has a statutory and court -ordered
duty to manage the Patient’s affairs. He has a clear right to access the Patient.
[24] Is there an injury actually committed or reasonably apprehended? The
threats of violence and the continued concealment of the Patient constitute a
continuing injury to the applicant’s ability to function and, more importantly, to
the Patient’s health.
[25] Is there any other remedy? The applicant has attempted to use private
investigators without success. Judicial intervention is the only remaining avenue
to ensure the Patient’s safety.
[26] The conduct of the third respondent, who appears to be acting as an
unregistered legal practitioner while issuing death threats, is unlawful and
unacceptable. This Court cannot countenance vigilantism or intimidation tactics
that hinder the administration of justice and the protect ion of vulnerable
persons.
[27] The respondents seek an order staying the application pending an
application for rescission of the order Dibetso -Bodibe AJ in 2023. Notably ,
there is no counter-application for a stay of proceedings before this Court. The
relief sought by the respondents , in the absence of a counter -application, is
accordingly not sustainable or capable of being granted.
Conclusion
[28] I am satisfied that the applicant has made out a case for the relief sought.
The respondents' obstruc tion must cease immediately to allow the necessary
medical and legal assessments of the Patient. The appointment of an interim
curatrix ad personam is also appropriate to oversee the Patient ’s personal well-
being.
Order
[29] As a result, the following order is made:
1. That Ms Anneke Else Greeff is hereby appointed as interim curatrix ad
personam to O[...] S[...], an adult male with Identity Number: 0[...]
(hereinafter referred to as “the Patient”).
2. That the curatrix ad personam is given the capacity and authorisation,
usually awarded to a curatrix ad personam, which shall include, but not be
limited to:
2.1 Make the necessary arrangements for the Patient to be relocated to
Yonder Centre for Adults with an Intellectual Disability, alternatively a
medical facility and/or residence most suitable for the Patient, considering
his medical and social wellbeing;
2.2. make the necessary arrangements to ensure that a Social worker
assessment, medical and psychological assessment , and evaluation of the
Patient is conducted;
2.3 authorise immediate medical treatment for the benefit of the Patient,
if necessary; and
2.4 Report to the curatrix ad litem and curator bonis about the
Outcome of the Social worker assessment, medical and psychological
assessment, and evaluation of the Patient and to make recommendations
accordingly.
3 That the issue of whether a curatrix ad personam remains necessary for
the Patient is referred for reconsideration on a return date suitable to the
Honourable Acting Deputy Judge President Petersen, the Honourable
Court, the Applicant, the curatrix ad litem, and the curatrix ad personam
on these papers, duly supplemented if necessary.
4 That the First, Second, and Third Respondents, together with any other
person(s) instructed by or acting under the control of the First, Second, and
Third Respondents, are prohibited from obstructing, preventing , or
inhibiting Advocate Delene Sally Gianni N.O (“ curatrix ad litem ”) or
anyone so appointed by her, from executing her duties as curatrix ad litem
to the Patient in terms of the Court Ord er handed down by the Honourable
Acting Justice Dibetso -Bodike on 31 August 2023 under case number
M431/2023.
5 That the First, Second, and Third Respondents, together with any other
person(s) instructed by or acting under the control of the First, Second, and
Third Respondents, are prohibited from obstructing, preventing , or
inhibiting Ms Anneke Else Greeff or anyone so appointed by her, from
executing her duties as curatrix ad personam to the Patient.
6 That the First, Second, and Third Respondents, together with any other
person(s) instructed by or acting under the control of the First, Second and
Third Respondents, are hereby ordered to cooperate with the curatrix ad
litem, the curatrix ad personam, Mr Ewan Carter Smith (“ curator bonis”)
and any other person(s), which person(s) shall include the Patient’s legal
representatives, the Patient’s Case Manager, the Patient’s medical team, the
Sheriff or Deputy Sheriff of the Board of Sheriffs, any member of the
South African Police Service or any other person(s) assigned, instructed or
tasked by the curator bonis or the curatrix ad litem to render assistance or
care to the Patient.
7 That the First, Second , and Third Respondents are hereby ordered to ,
within five (5) calendar days of receipt of this Court Order, disclose the
location of the Patient to the curator bonis, the curatrix ad litem, and the
curatrix ad personam.
8 That the First, Second and Third Respondents are hereby ordered to
within ten (10) calendar days of receipt of this Court Order, deliver the
Patient, alternatively allow the curator bonis, the curatrix ad litem and the
curatrix ad personam to make the necessary arrangements for the Patient
to be transported to Yonder Centre for Adults with an Intellectual
Disability, alternatively a medical facility and/or medical experts for, inter
alia, conducting a Social worker assessment, medical asses sment of the
Patient and commence treatment if necessary.
9 That the First, Second, and Third Respondents, together with any other
person(s) instructed by or acting on the control of the First, Second and
Third Respondents, are prohibited from committing or attempting to
commit any hostile act or assault aimed or directed towards the curator
bonis, the curatrix ad litem , the curatrix ad personam and any other
person(s), which person(s) shall include the Patient’s legal representatives,
the Patient’s Case Manager, the Patient’s medical team, the Sheriff or
Deputy Sheriff of the Board of Sheriffs, any member of the South African
Police Service or any other person(s) assigned, instructed or tasked by the
curator bonis or the curatrix ad litem to render assistance or care to the
Patient.
10 . That the First, Second , and Third Respondents are ordered to pay the
costs of this application on the High Court attorney and client scale, jointly
and severally, the one paying the other to be absolved at Scale B (counsel)
and C (curatrix ad litem) where applicable.
________________________
A H PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
Appearances
For the Applicant: Adv D Viller
Instructed by: MC Kruger Attorneys
c/o Van Rooyen, Thlapi, Wessels Attorneys
Mahikeng
For the First, Second, and
Third Respondents: Adv G E Matsietsa
Instructed by: Motshabi & Associates Inc
Mahikeng