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[2026] ZAGPPHC 212
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Bouwer N.O. v Master of High Court Pretoria and Another (2023/016399) [2026] ZAGPPHC 212 (18 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG,
PRETORIA
Case Number:
2023-016399
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
18 March 2026
In
the matter between:
WILLEM
FRANCOIS BOUWER N.O.
AS
CURATOR BONIS
OF KHOMOTSO ALETTA SEBATJANE
APPLICANT
and
MASTER
OF THE HIGH COURT, PRETORIA
FIRST RESPONDENT
ANNELIEN
SMIT
SECOND RESPONDENT
Delivered:
This judgement was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically
by circulation to
the Parties / their legal representatives by email and by uploading
it to the electronic file of this matter
on CaseLines. The date of
the judgment is deemed to be: 18 March 2026.
JUDGMENT
RAUBENHEIMER
AJ
Introduction
[1]
Before
court is an application to review and set aside the decision of the
second respondent to disallow the remuneration of the
curator in the
curator
bonis
estate of Ms Khomotso Aletta Sebatjane (the patient), who was
involved in a motor vehicle collision on 1 March 2013, when she was
still a minor. She sustained severe injuries including brain injuries
as a result of the collision. A claim for damages was lodged
in terms
of the Road Accident Fund Act
[1]
(RAF Act). A
curator
ad litem
was
consequently appointed and authorised to settle the claim for damages
in terms of a court order dated 16 April 2019. The settlement
amount
determined by the court was R 996 186 (nine hundred and ninety-six
thousand one hundred and eighty-six rand) from which
legal costs had
to be deducted. The remainder had to be paid into an interest-bearing
trust account pending the appointment of
the
curator
bonis.
[2]
The applicant was duly appointed as the
curator bonis
of
the patient in terms of a court order dated 13 January 2020. Which
appointment was confirmed by the first respondent in letters
of
curatorship dated 12 May 2020.
[3]
The applicant submitted the first and
second curator’s account covering the period 12 May 2020 to 11
May 2021 and 12 May 2021
to 22 May 2022 respectively, on 7 June 2022.
These accounts were examined by the second respondent, and the
applicant was provided
with a response on 30 June 2022 in which the
second respondent requested the applicant to explain the
administration fees plus
Value Added Tax (VAT) in favour of the
applicant. The second respondent maintained that the
curator
bonis
fee will not be payable
unless and until the explanation has been provided.
[4]
The applicant duly provided an explanation
on 4 October 2022 to which the second respondent replied on 11 May
2023. The second respondent
accepted the administration fees
reflected in the account but was not satisfied with the explanation
in respect of the curator’s
fees.
[5]
The basis for the objection to the
curator’s fees was that the fees were based on funds received
from the Road Accident Fund
(RAF) which constituted capital and not
income. The curator’s fees were however reflected in the
account as fees earned on
income and not capital.
[6]
The
applicant responded on 15 May 2023, citing that the second respondent
was non-compliant with the relevant training manuals
of the
Department of Justice and acted in contravention of the Promotion of
Administrative Justice Act
[2]
(PAJA).The applicant requested an urgent response from the second
respondent.
[7]
Having received no response from the respondents the applicant
launched the review application on 23 June 2023.
The
parties
[8]
The applicant is a practising attorney
appointed as the
curator bonis
of
the patient.
[9]
The first respondent is the Master of the
High Court, Pretoria.
[10]
The second respondent is an employee of the
first respondent. She is cited in her personal capacity.
The
basis for the review
[11]
The first basis for the review is that the
decision by the second respondent was procedurally unfair in that the
second respondent
contravened the provisions of PAJA in the following
respects:
1
Failure to give notice of the nature and
purpose of the proposed administrative action not to have the fees of
the curator submitted
for taxation;
2
Failure to provide the applicant with a reasonable opportunity
to make representations in terms of section 2(a)(ii) of PAJA before
arriving at a decision;
3
Failure to give notice of any right to review in
terms of section 2(a)(iv) of PAJA;
4
Failure to give notice of the right to request reasons in
terms of section 2(a)(v) of PAJA;
5
Failure to afford the applicant an opportunity to
obtain legal representation in accordance with section 3(3)(a) of
PAJA;
6
Failure to afford the applicant an opportunity to present
information and arguments in person in terms of section 3(3) of PAJA;
7
Failure to provide reasons for the
decision.
[12]
The second basis is that the second
respondent contravened section 3(2)(a) of PAJA by not considering the
objects, nature and purpose
of the empowering provision.
[13]
The third basis is that the applicant harbours a reasonable
suspicion that the second respondent was biased against the applicant
due to the following reasons:
1
The second respondent has a historic track
record of making decisions against the applicant in his capacity as
curator bonis
;
2
A previous decision of the second respondent resulted in
litigation of which at least one culminated in an adverse cost order
in
the Supreme Court of Appeal against the first respondent due to
the conduct of the second respondent;
3
The second respondent has made defamatory
and unsubstantiated statements against the applicant which is
currently the subject of
ongoing litigation;
4
The relationship between the applicant and the second
respondent has deteriorated to such a degree that the applicant has
on a number
of occasions approached her superiors with complaints
against the second respondent for making adverse decisions against
the applicant
in respect of estates in which the applicant is the
executor or curator.
Submissions
by the applicant
[14]
After
his appointment as
curator
bonis,
the
applicant complied with Regulation 8 of the Regulations to the
Administration of Estates Act
[3]
by preparing and submitting the first and second curator’s
account covering the periods: 12 May 2020 to 11 May 2021; and
12 May
2021 to 11 May 2022 respectively.
[15]
The accounts were examined by the second
respondent who requested the applicant, in respect of both accounts,
to explain the administrative
fee to WF Bouwer attorneys plus VAT on
the administrative fee.
[16]
The applicant was furthermore informed in
respect of both accounts that the fee for the
curator
bonis
will only be approved on the
provision of a proper explanation as to why the fees are claimed on
the capital received.
[17]
The applicant provided an explanation as
requested which was accepted by the second respondent in respect of
the first query.
[18]
In respect of the second query the second
respondent informed the applicant on 11 May 2023 that his fees cannot
be taxed or approved
because the fees reflected in the first account
was impermissible on the basis that it was calculated on the capital
and not the
income.
[19]
In the first account the applicant calculated the curator’s
fees at the rate of 6% on income actually collected in that
particular
year which fee amounted to R 48 559.35. In the second
account the fee was again calculated at the rate of 6% on the income
collected
during the course of the particular period, amounting to R
1661. 84.
[20]
The applicant contends that the calculation
of the fee was done in accordance with the provisions of Regulation
7(3)(b) and 7(3)(c)
of the Regulations to the Administration of
Estates Act.
[21]
The second respondent simply disallowed the
fees without providing any reason for her decision neither did she
indicate whether
any other remuneration or reduced taxed amount would
be allowed as fees. She simply decided that no fees are to be paid
for work
rendered in the administration of the curatorship.
[22]
The decision by the second respondent
amounts to administrative action as she acted in her capacity as an
employee of the Master
of the High Court, and as such was exercising
a public power or performing a public function in terms of
legislation, namely the
Administration of Estates Act, and
consequently falls to be reviewed in terms of PAJA.
[23]
The mentioned administrative action
furthermore adversely affected his rights directly by denying him any
form of remuneration to
which he is entitled in terms of Regulation
8.
[24]
When viewed holistically it is clear that
the second respondent departed without reason from the provisions of
PAJA by embarking
on a course of action without considering the
objects of the empowering provision, the nature, purpose and need to
take administrative
action or the likely detrimental effect that the
administrative action would have on the applicant.
[25]
The mentioned factors militate in favour of
a judicial review in accordance with section 6(2) of PAJA as the
action taken by the
second respondent was procedurally unfair,
arbitrary and in bad faith.
[26]
There is furthermore a reasonable
apprehension that the second respondent was biased in her decision
making, due to the existence
of a historical track record of making
decisions unfavourable to the applicant on numerous occasions.
[27]
The applicant refers to a specific court
application, the subject matter of which were also the fees of a
curator where the second
respondent made defamatory, unsubstantiated
and false statements about the applicant under oath.
[28]
The applicant refers to numerous other
incidents involving disputes over curatorship fees that occurred over
an extended period
of time.
[29]
The applicant attended meetings at the
first respondent with the superiors of the second respondent where
the bad relationship between
the applicant and the second respondent
were discussed.
[30]
The applicant consequently harbours a
reasonable suspicion that the second respondent is biased against
him.
[31]
The baseless allegations in the answering
affidavit confirms this suspicion of bias namely the failure to act
in the best interest
of the patient, failure to act with the highest
degree of integrity in ensuring that the estate is not subjected to
the unnecessary
burden by charging unjustified fees, failure to
provide details of account of the various transactions, failure to
administer the
estate with safety and security and exposing the
estate to the risk of a potential tax liability.
[32]
On 15 May 2023 the applicant caused a notice of contravention
of PAJA to be delivered to the second respondent informing her that
her conduct contravenes PAJA and affording her an opportunity to
rectify her decision.
[33]
The notice elicited no response from the
second respondent.
[34]
The second respondent as an Assistant
Master was exposed to basic training within the office of the Master
of the High Court and
is in possession of a training manual provided
to her by the Department of Justice and Constitutional Development
which deals extensively
with the provisions of PAJA.
Submissions
by the second respondent
[35]
The second respondent contends that no
administrative action occurred and she merely requested additional
information from the applicant
as the accounts submitted did not
comply with the applicable regulations.
[36]
The basis for her contention is founded in
Regulations 7 and 8, the court order, the ensuing letters of
curatorship and the obligations
of a curator in respect of payments
by the RAF.
[37]
Her argument commences with the court order
in terms of which the RAF was ordered to make payment of a capital
amount to the plaintiff.
Paragraph 2 of the order reads as follows:
“
The defendant is
ordered to pay the capital amount of R 996 186.00 (nine hundred and
ninety-six thousand one hundred and eighty-six
rand) to the
plaintiff’s attorney as more fully set out in paragraph 4
below.”
[38]
Paragraph 4 states that:
“
After
deduction of the legal costs, the Plaintiff’s attorney is
ordered to pay the balance of the capital into an interest-bearing
account, pending the appointment of the curator bonis.”
[39]
The letters of curatorship issued to the applicant included a
directive referring to the court order in terms of which the
applicant
was appointed. He was to execute the powers conferred on
him in the court order subject to the approval and consent of the
first
respondent.
[40]
The powers conferred on the applicant were
as follows:
1
To receive and take care of, and control and administer all
assets of the patient;
2
To carry on or discontinue, subject to any law which may be
applicable, any trade, business or undertaking of the patient;
3
To acquire, whether by purchase or
otherwise, any property movable or - immovable, for the benefit of
the patient;
4
To let, exchange, partition, alienate, and for any lawful
purpose, to mortgage or pledge any property belonging to the patient,
or in which she has an interest;
5
To perform any contract relating to the property of the
patient, entered Into before she was declared incapable of managing
her
own affairs;
6
To exercise any power, or give any consent required for the
exercise of such power, where the power Is vested in the patient for
her own benefit or is in the nature of a beneficial Interest to her;
7
To raise money by way of mortgage or pledge of any of the
movable property of. the patient, for the payment of her debts
or
expenditure incurred or to be incurred for her maintenance or
otherwise for her benefit or provision for the expenses of her future
maintenance; or maintenance of her property;
8
To apply any money for the maintenance or support of the
patient;
9
To incur expenditure in respect of the improvement of any
property of the patient by means of building or otherwise;
10
To expend any monies belonging to the patient on the
maintenance, education or advancement of any relative of the patient,
or any
other person, wholly or partially dependent on her;
11
To continue such other acts of bounty or
charity exercised by the patient, as the Master, having regard to
circumstances and the
value of the estate of the patient, considers
proper and reasonable;
12
To invest or re-invest any monies of the
patient which become available from time to time for investment, and
which are not immediately
required for the purposes defined in
section 82(c) of the Administration of Estates Act no 66 of 1965 (as
amended);
13
To institute proceedings which may be
necessary in the interest of the patient, or for the due and proper
administration of her
estate;
14
To incur any expenditure to ensure that the
patient is properly cared for;
15
To administer the undertaking issued by the Road Accident Fund
in terms of section 17(4) (A) of Act 56 of 1996;
16
To open a bank account at a financial Institution for the
patient, and to manage or close any existing bank accounts of the
patient,
to her benefit.
[41]
The duties and responsibilities of the
Master entails
inter alia
to
scrutinize, consider and ensure the correctness and accuracy of
accounts and whether the account conveys a true reflection of
the
administration of the estate under curatorship. The oversight
function of the Master culminates in the taxation of the curator’s
fees.
[42]
Regulation 8 limits the fees of a curator
to 6% on income collected during the existence of the curatorship and
2% on the value
of capital assets on distribution, delivery or
payment thereof on termination of the curatorship.
[43]
Regulation 7 prescribes the content and
format of the account to be rendered by the curator and specifically
refers to the capital
account.
[44]
In accordance with her responsibilities as
an Assistant Master, the second respondent queried the allocation of
the payment to the
patient as curator fees earned on income and not
capital, which is clearly at odds with the court order as well as the
nature and
purpose of the award. She also queried why the nature of
the award changed in the second account from income to capital and
the
interest earned shown as income.
[45]
In the first account the amount of R785
776.82 (seven hundred and eighty-five thousand, seven hundred and
seventy-six rand and eighty-two
cents) being the amount
received from the patient’s attorney after deduction of legal
costs, is reflected as income
and allocated to the income account. On
this amount the applicant calculated his fee at the rate of 6%.
[46]
The second respondent holds the view that
not only is the fee calculated on the incorrect basis, it is also
excessive.
[47]
The purpose of the award as compensation
for damages suffered is to supplement the income of the patient by
employing the interest
accrued to the capital or as a withdrawal from
the capital to supplement any deficit in the income requirements of
the patient.
[48]
The effect of this classification is
however much broader than a mere increase in the fees of the curator.
The applicant chose the
more expensive option and thereby depleting
the funds available for the maintenance and care of the patient. The
election furthermore
contains the possibility of an increased tax
liability as the capital is now regarded as income. The only person
benefitting from
this election is the applicant
[49]
The duties of a
curator
bonis
are always to act in the best
interest of the person for whom he has been appointed, with the
highest degree of integrity and must
act in consultation with the
person for whom he has been appointed as far as reasonably possible.
[50]
Where a curator provides assistance, such
assistance must be proportionate to the mental status of the person
concerned and must
be the least intrusive.
[51]
The curator must respect the human dignity,
privacy, and autonomy of the person for whom the
curator
bonis
has been appointed and is to
keep detailed records of his administration of the estate, and must
lodge administration accounts,
together with proper vouchers and
receipts for all entries in the account, with the Master of the High
Court, annually. He must
invest the property of the person whose
estate he is authorized to administer with safety and security.
[52]
At no stage does the applicant mention
rights of the patient and how these rights are affected. Neither does
the applicant take
cognizance of the emotional state of the patient
about the increased fees charged to the estate.
[53]
The applicant has consequently failed to
execute his duties as a reasonable c
urator
bonis
should have done and have
completely misconstrued the request for information as a rejection of
his fees and his rights.
[54]
The applicant has never been prevented from
engaging with the second respondent to establish the reasoning for
her request of the
information.
[55]
The second respondent acted as a
representative of the first respondent. The allegations of bias is
without merit as the applicant
did not establish any factual basis
for the allegations. In her capacity as an Assistant Master she is
required to scrutinize accounts
and it happens frequently that
accounts are queried and items disallowed. To allege that by doing so
amounts to bias and a vendetta
is unwarranted.
[56]
The second respondent has never previously
approved fees calculated on the basis advocated for by the applicant
in RAF matters and
is also not aware of any such fees that have been
approved by the first respondent . The second respondent has checked
the records
of the first respondent and could not find any.
[57]
The second respondent has no personal
interest in the querying of the fee; her query was solely based on
the interest of the estate
of the patient.
[58]
The reference to a previous matter is
irrelevant as the facts in this matter are different to the current
set of facts and at the
time of this application the subject matter
of an appeal to the Supreme Court of Appeal.
[59]
The failure to respond comprehensively to
the query resulted in the second respondent not being able to assess
the response properly.
Discussion
The
Legislative Framework
[60]
The
legislative framework starts with the RAF Act, of which the purpose
is the payment of compensation for loss or damage wrongfully
caused
by the driving of motor vehicles.
[4]
The obligation to compensate any such loss or damages is found in
section 17. Payment is made by the Road Accident Fund (RAF),
which
was established in terms of the RAF Act. The RAF Act has the power to
stipulate the terms and conditions upon which the compensation
to
victims is to be administered.
[5]
[61]
The
administration of the payments to patients incapable of managing
their own affairs due to the nature and gravity of the injuries
is
regulated by Rule 57 of the Superior Court Rules in terms of which a
curator
bonis
is
appointed by the court and subject to the powers conferred on such
curator
by
the court on appointment. The
curator
appointment
is confirmed by the Master of the High Court and is accountable to
the Master for the administration of the estate of
the patient. This
relationship is regulated by the provisions of the
Administration of
Estates Act.
[6
]
The Master’s
extensive statutory powers in respect of the supervision and
oversight of the administration of estates were
confirmed in
Harper
v ABSA Trust Limited N.O and others
[7]
and
The Master of the High Court, Pretoria v The Pretoria Society of
Advocates and Others
.
[8]
Analysis
[62]
The
first basis for the review deals with procedural irregularities. The
well-established principle in this regard is that not every
deviation
from a procedural requirement is fatal if it is just and
equitable.
[9]
[63]
In
the
All
Pay Consolidated Investment Holdings (Pty) Ltd v CEO of SASSA
[10]
decision
the Constitutional Court, in a move away from a strictly formalistic
approach adopted a more substantive evaluation of
procedural flaws in
terms of the materiality test which is a more flexible and pragmatic
approach.
[64]
The test comprises a two-stage analysis of
which the first is a factual enquiry to establish whether there was a
failure to comply
with the legal requirements for procedural fairness
as for instance stated in PAJA.
[65]
In the second phase of the enquiry the
court has to determine whether the failure was legally significant or
material. A procedural
failure is regarded as material if it had a
real and substantial impact on the outcome of the administrative
decision. It is thus
not the mere existence of the procedural
irregularity that establishes a ground for review. The focus of the
enquiry is on the
consequences of the procedural flaw.
[66]
An
administrative authority has the discretion to condone a mere
formality or non-material deviation.
[11]
[67]
In
determining whether the procedural irregularity is material the court
will have regard to a number of factors such as: the purpose
of the
requirement and the existence of actual prejudice,
[12]
the context of the entire process,
[13]
whether the outcome was potentially affected,
[14]
whether the decision was substantively lawful and rational
[15]
and whether the
audi
alteram
rule
was materially infringed.
[16]
[68]
The
second basis for the review is the existence of a suspicion of bias
by the second respondent. Bias in an administrative setting
is
governed by PAJA which requires a reasonable suspicion of bias.
[17]
[69]
In
an administrative law context, bias has been defined as a "lack
of the quality of impartiality essential for a fair decision"
[18]
or an "unfair slanting of a decision-maker's mind towards a
particular outcome"
[19]
.
The core of the principle is that a decision-maker must be, and must
be seen to be, disinterested and impartial, having not prejudged
the
issue before them.
[20]
[70]
Any
suspicion of bias must be based on reasonable grounds.
[21]
[71]
The
test for bias is a double reasonableness test
[22]
in the sense that the suspicion must be held by a hypothetical
"reasonable, objective, and informed person" who has
considered all the relevant facts
[23]
and their suspicion must also be reasonable in the circumstances,
[24]
mere anxiety or an honest but unreasonably held suspicion is
insufficient.
[25]
The
suspicion may not be rooted in a mere apprehensiveness or the
idiosyncrasies, suspicions or intelligence of a particular
litigant.
[26]
The basis of the
suspicion may also not be “surmise or conjecture”
[27]
or even gossip or speculation. There must be a factual basis that can
be examined by the court.
[28]
[72]
The applicant is premising his suspicion of
bias on the acrimonious relationship between him and the second
respondent which has
manifested in previous unfavourable decisions
and defamatory utterances by the second respondent.
[73]
A
history of conflict and acrimony between an administrative
decision-maker and the recipient of a decision does not necessarily
or automatically indicate the presence of legally disqualifying bias
in a subsequent decision. The allegation should be subjected
to a
rigorous, objective test. The mere existence of prior animosity is
insufficient on its own; its impact must be assessed against
the
established standard of a reasonable apprehension or suspicion of
bias.
[29]
[74]
In
assessing whether the history of conflict indicates bias such history
serves as the factual foundation, not the conclusion. In
the process
of assessment the court considers several factors such as the nature
and gravity of the conflict during which the court
determines if the
conflict entails a professional disagreement that was conducted
within acceptable bounds.
[30]
A further factor to be considered is the proximity of the conflict to
the decision. The court will determine whether the conflict
is recent
and whether it is directly related to the subject matter of the
decision being made.
[31]
Whether the conduct of the administrator during the administrative
process betray any prejudice stemming from the past conflict.
[75]
The
criterion in such a case is whether the relationship is of such
a nature that a reasonable person having access to all
the relevant
facts would conclude that the relationship has progressed to such a
point where the impartiality of the second respondent
has been
compromised.
[32]
Application
[76]
The factual enquiry whether the applicant
was afforded the rights contained in PAJA indicates that he was
afforded some of the rights
but not all the rights that he claimed to
be entitled to.
[77]
In assessing this ground of review the
purpose of the procedural provisions in PAJA need to be considered.
The purpose is to ensure
that the second respondent has access
to the necessary information to be able to exercise her discretion
and to afford the
applicant an opportunity to present his case.
[78]
The second respondent had at her disposal
the court order in terms of which the applicant was appointed
including the powers of
the applicant. the confirmation of his
appointment by the Master together with the directives issued by the
Master and the first
and second curator’s accounts. The
applicant was afforded an opportunity to respond to the queries
raised by the second respondent.
When the second respondent was not
persuaded by his explanation, he was again invited to provide her
with an explanation. This
he elected not to do and rather brought the
review application.
[79]
The applicant is an attorney, regularly
appointed as a
curator bonis
and
has interacted with the Master and the second respondent on numerous
occasions in the past. There is consequently no basis to
conclude
that the procedural irregularities were material and that the
applicant was prejudiced by the procedural irregularities.
[80]
In respect of the suspicion of bias
harboured by the applicant, the basis for this suspicion is the
history of animosity and the
allegation that the second respondent
has made decisions in the past unfavourable to him. This in itself is
not sufficient to create
a reasonable suspicion. The second
respondent states that she acted within her mandate when she
inspected the accounts and raised
the relevant queries. She
furthermore states that she had never approved a curator account on
the basis advanced by the applicant
and neither could she locate any
evidence that any such accounts have been approved in the office of
the Pretoria Master.
[81]
The
applicant relies on the matter of
Bouwer
and Another NNO v The Master of the High Court, Pretoria
[33]
that was decided in his favour and the second respondent castigated
for the statements made by her. The reference to this matter
is
irrelevant as it dealt with an entirely different set of facts,
circumstances and statutory framework. The judgment was furthermore
delivered more than a year after the second respondent made her
decision in the current matter. Even if I am wrong, this case,
at
para 17, makes it clear that the Master has a remedy in section
84(2)(a) or (b) of the Act, a remedy that she clearly exercised.
[82]
That the second respondent exercised her
discretion on previous occasions unfavourable to the applicant is not
indication that she
is biased against the applicant. It is in the
nature of her functions and statutory obligations to make decisions
on a daily basis
of which some practitioners would not find
favourable . The applicant does not provide any detail regarding the
unfavourable decisions
which the court can use in assessing this
element.
[83]
Although
some of the statements by the second respondent may be wrong in law,
such as the reference to the potential tax liability,
which is at
odds with the provisions of the Income Tax Act
[34]
none of the statements by the second respondent in her answering
affidavit is unsubstantiated or of a personal nature and bears
reference solely to the professional conduct of the applicant.
[84]
The assertion by the applicant that he
harbours a reasonable suspicion that the second respondent is biased
towards him does not
survive the double reasonableness test.
[85]
In assessing whether the outcome of the
administrative action would have been any different if the applicant
would have been able
to prove that the procedural irregularities and
the bias did prejudice him to such an extent that the outcome would
indeed have
been different, cognizance have to be taken of the
underlying context of the decision namely the payment of compensation
by a statutory
body tasked with the payment of compensation to
victims of motor vehicle accidents.
[86]
The
RAF Act is an important building block in the South African social
legislation landscape.
[35]
Its
purpose is not singular but constitutes a multi-layered construct
comprising a tripartite mandate involving an overarching
constitutional objective of social security, a functional delictual
mechanism of restorative justice, and a pragmatic imperative
for
financial sustainability.
[36]
[87]
The
overarching constitutional mandate of a system of social security and
solidarity has been affirmed by the Constitutional Court.
[37]
The RAF is consequently not a simple insurer of last resort but a key
instrument of the constitutional state's welfare obligations
that is
rooted in the values of human dignity and social solidarity.
[38]
[88]
In
Law
Society of South Africa v Minister of Transport
[39]
the Constitutional Court declared the RAF scheme as fundamentally a
"social security measure."
[40]
The court stated that the objective of the Act is to give effect to
the rights to social security and access to healthcare, as
enshrined
in sections 27(1)(c) and 27(1)(a) of the Constitution, by providing a
"safety net for all road users and their families."
[41]
The purpose is to prevent the "social-ills of destitution and
hardship that may befall victims of road accidents," thereby
affirming the state's constitutional duty to protect its vulnerable
citizens.
[42]
This judgment
was the culmination of a jurisprudential trend which commenced with
Engelbrecht
v Road Accident Fund
in which the RAF was referred to as a form of "social
insurance."
[43]
This
proposition was further solidified in
Road
Accident Fund v Mdeyide
,
where the Court described the Act's purpose as establishing a "social
safety net" for a "class of victims who would
otherwise be
remediless."
[44]
The
Court’s emphasis on the Fund's "public character"
legally distinguishes its purpose from that of a private,
profit-driven insurer and aligns it with public-good objectives.
[45]
[89]
In
Aetna
Insurance Co v Minister of Justice
,
the Supreme Court of Appeal confirmed the principle of widest
possible protection to injured persons
[46]
"
[90]
While
the Act’s overarching aim is social security, its functional,
on-the ground mechanism for achieving this is the payment
of
compensation.
[47]
The purpose
of this compensation is deeply rooted in the common law of delict,
specifically the principle of
restitutio
in integrum
,
which is aimed at returning a party to the position they occupied
prior to the wrongful act, and/or injury,
[91]
The
purpose of damages was articulated in
Southern
Insurance Association Ltd v Bailey NO
as to place the plaintiff in the monetary position they would have
occupied "had the delict not been committed".
[48]
The purpose of the compensation is therefore purely restorative.
[49]
[92]
This
principle has been continuously reaffirmed by the Supreme Court of
Appeal in for instance
Road
Accident Fund v Guedes
,
where it stated that the "primary rule for the assessment of
damages... is
restitutio
in integrum
."
[50]
[93]
In
the determination of the damages, courts treat a person's physical
and mental integrity as a capital asset.
[51]
The purpose of compensation is to place a monetary value on the
damage to this "human capital."
[52]
[94]
In
Dippenaar
v Shield Insurance Co Ltd
it was held that a claim for loss of earnings is for the "diminution
of the capacity to earn that income," which is an
asset in a
person's patrimony.
[53]
This
was clarified in
Santam
Versekeringsmaatskappy Bpk v Byleveldt
where it was held that earning capacity is an "incorporeal
right" and a "part of a person’s estate."
[54]
The purpose of the award, therefore, is to compensate for the
impairment of this capital asset. This is why the loss is calculated
as a single lump sum, representing the present capitalised value of
that diminished capacity.
[55]
[95]
It is thus clear that the compensation paid
to a victim of a motor vehicle accident amounts to capital and
remains capital. The
capital may be invested to produce interest
which would be regarded as income in accordance with the tree and
fruit analogy.
[96]
The mere fact that the amount awarded as
capital is paid into the interest-bearing trust account of the
instructing attorney who
deducts the legal costs and then pays the
remainder into the curator’s account is not sufficient to
transform the nature
of the award from capital to income.
[97]
Capital is regarded as the foundational
wealth or productive resource base and is distinct from the income it
produces as interest.
It represents a durable store of value or a
resource base intended for long term use, investment or wealth
preservation.
[98]
The test to determine the true economic
nature of an asset is whether it constitutes and enduring source of
wealth in which case
it would be regarded as capital.
[99]
The
award for damages is intended to be an “ongoing source of
financial support for the remainder of the plaintiff’s
lifetime.”
[56]
[100]
One
of the primary duties of a curator is the preservation of the
estate’s capital in order to serve as an ongoing source
of
financial support.
[57]
[101]
In terms of
section 83(1)
of the
Administration of Estates Act the
curator is to lodge with the Master
an account in the form as prescribed in
Regulation 7
, which provides
for a capital account. As an amount for damages is regarded as
capital it should consequently be reflected in the
capital account.
Conclusion
[102]
The applicant has not shown the procedural
irregularities to have been of such a nature that it substantively
deprived him of the
rights afforded to him in PAJA. He was afforded
an opportunity to make representations which he did. The procedural
irregularities
were consequently not material and would have had no
impact on the final outcome of the decision by the second respondent.
[103]
The suspicion of bias harboured by the
applicant does not satisfy the double reasonableness test and would
likewise not have had
any effect on the ultimate outcome of the
decision by the second respondent.
[104]
The decision by the second respondent is a
reasonable decision and is based on rational grounds.
Order
[105]
The application for review is dismissed
with costs on scale B.
E
RAUBENHEIMER
ACTING JUDGE OF THE
HIGH COURT
PRETORIA
Electronically
submitted
For
the Applicant:Adv Coetzee
instructed
by WF Bouwer Inc
For
the First Respondent: Adv Nyabane
instructed
by State Attorney
[1]
Act 56 of 1996.
[2]
Act 3 of 2000.
[3]
Act 66 of 1965.
[4]
Section 3 of Act 56 of 1996.
[5]
Section 4(1)(a) of Act 56 of 1996.
[6]
Section
83(1) of
Act
66 of 1965.
"Every...
curator shall... lodge with the Master an account of his
administration... Sect 85(1) "The Master shall examine
every
account... and if he is of the opinion that the account is not a
full and proper account... he may reject the account...
and direct
the... curator to lodge another account...".
Section 85(3).
"Upon
the completion of the examination... to the satisfaction of the
Master, he shall... confirm the account...".
[7]
Harper
v ABSA Trust Limited N.O. and Others
[2023] ZAWCHC 242
at para 64-65.
[8]
The
Master of the High Court, Pretoria v The Pretoria Society of
Advocates and Others
[
2022]
ZAGPPHC 396 at paras 21-24 and 34.
[9]
All
Pay Consolidated Investment Holdings (Pty) Ltd v CEO of SASSA
[2014]
ZACC 12
;
2014 (4) SA 179
(CC);
2014 (6) BCLR 641
(CC)at para 34.
[10]
All
Pay Consolidated Investment Holdings (Pty) Ltd v CEO of SASSA
[2014]
ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC).
[11]
Viking
Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems
(Pty) Ltd and Another
[2010]
ZACC 21
;
2011 (1) SA 327
(CC);
2011 (2) BCLR 207
(CC).
[12]
Millennium
Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo
Province and Others
[2007] ZASCA 165
; [2007] SCA 165 (RSA);
[2008] 2 All SA 145
;
2008
(2) SA 481
;
2008 (5) BCLR 508
;
2008 (2) SA 481
(SCA) and
Aurecon
South Africa (Pty) Ltd v City of Cape Town
ZASCA 209;
[2016] 1 All SA 313
(SCA);
2016 (2) SA 199
(SCA) and
Democratic
Alliance v The Electoral Commission of South Africa and Another
[2024] ZAEC 6; and
Ashebo
v Minister of Home Affairs and Others
[2023] ZACC 16; 2023 (5) SA 382 (CC); 2024 (2) BCLR 217 (CC).
[13]
Moseme
Road Construction CC and Others v King Sabata Dalindyebo Local
Municipality and Others
[2010] ZASCA 13; 2010 (4) SA 359 (SCA); [2010] 3 All SA 549 (SCA).
[14]
African
Independent Congress v The Electoral Commission and Others
[2016] ZAEC 6 and
Group
Five Construction (Pty) Ltd v The MEC for Public Transport and Roads
Infrastructure, Gauteng
[2015] ZAGPJHC 55;
[2015] 2 All SA 716
(GJ)
;
2015
(5) SA 26
(GJ
);
and
Legal
Practice Council v Teffo
[2023] ZAGPPHC 1794.
[15]
Helen
Suzman Foundation v President of the Republic of South Africa and
Others
[2014] ZACC 32;
2015
(2) SA 1 (CC);
2015 (1) BCLR 1 (CC).
[16]
Palabora
Copper (Pty) Ltd v Motlokwa Transport and Construction (Pty) Ltd and
Others
[2018] ZASCA 23
;
[2018] 2 All SA 660
(SCA);
2018 (5) SA 462
(SCA).
[17]
Section 6(2)(a)(iii) Act 3 of 2000.
[18]
Baxter
Administrative
Law
(Juta & Co. Ltd, Cape Town 1984) at 558.
[19]
Baxter above n 20.
[20]
Devenish and Govender
Administrative
Law and Justice in South Africa
(Butterworths, Durban 2001) at 322.
[21]
S
v Roberts
1999
(4) SA 915 (SCA).
[22]
South
African Commercial Catering and Allied Workers Union and Others v
Irvin & Johnson Ltd Seafoods Division Fish Processing
[2000] ZACC 10; 2000 (3) SA 705 (CC); 2000 (8) BCLR 886 (CC).
[23]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059.
[24]
Hoexter
Administrative
Law in South Africa
2nd ed (Juta & Co. Ltd, Cape Town 2012) at 565.
[25]
S
v Shackell
[2001]
ZASCA 72
;
[2001] 4 All SA 279
(A);
2001 (4) SA 1
(SCA);
2001 (2)
SACR 185
(SCA) at para 20.
[26]
BTR
Industries South Africa (Pty) Ltd and Others v Metal and Allied
Workers' Union and Another
[1992] ZASCA 85
;
1992 (3) SA 673
(AD);
[1992] 4 All SA 701
(AD)
695F.
[27]
S v
Roberts
above n 23 above.
[28]
SACCAWU
above n 25 at para 12.
[29]
Hoexter
above n 27 at 565.
[30]
S v
Roberts
above n 23.
[31]
Liebenberg
v Brakpan Liquor Licensing Board
1944
WLD 52.
[32]
Plasket
The
Rule Against Bias’. In South African Administrative Law
(Juta & Co. Ltd, Cape Town 2020) at 245-258.
[33]
Bouwer
and Another NNO v The Master of the High Court, Pretoria
(916/2022) [2023] ZASCA at para 135.
[34]
Section 10(1)(g) Act 58 of 1962.
[35]
Klopper
The
Law of Third Party Compensation
3rd ed (LexisNexis 2012) at 11. Road Accident Fund v Busuku 2023(4)
SA 507 (SCA) par 6.
[36]
Law
Society of South Africa v Minister of Transport
[2010] ZAGPPHC 26;
2011 (1) SA 400
(CC);
2010 (11) BCLR 1140.
Par 46
[37]
Law
Society of South Africa v Minister of Transport
above (n 37)
[38]
Road
Accident Fund v Mdeyide
[2010]
ZACC 18
;
2011 (2) SA 26
(CC);
2011 (1) BCLR 1
at para 9.
[39]
Above n 39.
[40]
Law
Society of South Africa v Minister of Transport
above n 37 at para 4.
[41]
Law
Society of South Africa v Minister of Transport
above n 37 at para 81.
[42]
Law
Society of South Africa v Minister of Transport
above n 37 above at para 81.
[43]
Engelbrecht
v Road Accident Fund
2007 (6) SA 96
(CC) at para 22.
[44]
Road
Accident Fund v Mdeyide
above n 39 at para 9.
[45]
Road
Accident Fund v Mdeyide
above n 39 at para 9.
[46]
Aetna
Insurance Co v Minister of Justice
1960 (3) SA 273
(A) at 285E-F. See also above n37 at para 11.
[47]
Southern
Insurance Association Ltd v Bailey NO
1984 (1) SA 98
(A) at para113F-G.
[48]
Southern
Insurance Association Ltd v Bailey NO
above n 49 at para 113F-G.
[49]
Neethling and Potgieter
Law
of Delict
8th
ed (LexisNexis 2019) at 205.
[50]
Road
Accident Fund v Guedes
[2006] ZASCA 19
;
2006 (5) SA 583
(SCA) at para 8.
[51]
.Millard,
D Loss of earning capacity: its nature and its place in South
African Law. Unpublished LLD thesis, University of Johannesburg
2005. Botha v RAF [2025] ZAGPPHC 458 par 13. Zitzke, E Transforming
a child’s claim for loss of earning capacity, De Jure
2023,
646
[52]
Rudman v Road Accident Fund
[2002] 4 All SA 422
(SCA par10.
[53]
Dippenaar
v Shield Insurance Co Ltd
1979 (2) SA 904
(A) at para 917B.
[54]
Santam
Versekeringsmaatskappy Bpk v Byleveldt
1973
(2) SA 146
(A) at para 150.
[55]
Koch
The
Quantum Yearbook
(Juta, updated annually) 105.
[56]
Master
of the High Court v The Pretoria Society of Advocates and Others
[2022] ZAGPPHC 396;
2022 (6) SA 446
(GP) at para 1 and
Sandenbergh
and Another v Master of the High Court and Another
[2024] ZAGPPHC 436.
[57]
Ex
Parte Boedel Steenkamp
1962
(3) SA 954
(O).