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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-035298
In the matter between:
CATHARINA SIBILLA VAN AS N.O. First applicant
HARRY BERNARD HOLSBOER N.O. Second applicant
BONNEMAN & PARTNERS BV N.O. Third applicant
And
D[… ] P[… ] H[… ] Respondent
This Order is made an Order of Court by the Judge whose name is reflected herein, duly
stamped by the Registrar of the Court and is submitted electronically to the Parties / their
legal representatives by email. This Order is further uploaded to the electronic file of this
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
8 May 2026 ………………………...
DATE SIGNATURE
matter on Caselines/CourtOnline by the Judge’s secretary. The date of this order is deemed
to be 8 May 2026.
___________________________________________________________________
J U D G M E N T
CORAM: LIEBENBERG AJ:
[1] The applicants, who are appointed as curators to M […] B[…] H[…] (the patient)
by the Cantonal Court of North Holland, approached this court on a bifurcated
basis for relief. Before this Court was part A of the application for an interim
maintenance order, an order that the respondent make financial disclosure, an
order that the respondent pays for the services of a forensic auditor to be
appointed by the applicants to calculate the accrual in the respondent’s estate,
and costs.
[2] The respondent opposes the relief sought on primarily three bases: firstly,
contending that this court does not have the requisite jurisdiction to make a
stand alone interim maintenance order in circumstances where the relief falls
squarely in the remit of the Maintenance Court; secondly, that the first and
second applicants did not have locus standi to institute the proceedings absent
authorisation by the Cantonal Court of North Holland which granted the initial
order appointing them as interim curators and any alleged subsequent
authorisation afforded to the third applicant does not cure the defect; thirdly,
that there is no basis in law to order him to make financial disclosure when
there is no suggestion that the marriage is to be dissolved and not case is
made out for the immediate division of the accrual in terms of section 8 of the
Matrimonial Property Act 88 of 1984 (the MPA).
Jurisdiction
[3] In terms of section 3 of the Maintenance Act 99 of 1998 (the Maintenance Act)
every Magistrate’s Court for a district is a maintenance court for purposes of the
Maintenance Act which is endowed with the power to entertain maintenance
complaints and the payment of maintenance. Such complaints are lodged in
the prescribed manner, investigate d by the maintenance officer who may
institute a maintenance enquiry in the maintenance court. Although the
jurisdiction of the High Court has not been ousted as a matter of law, a
Maintenance Court is a specialised court geared to determine matters arising
from the provisions of the Maintenance Act.
[4] It is only in very exceptional cases where bypassing the Maintenance Court
procedure would be justified.
1 The conundrum is not the jurisdiction of the High
Court but rather how that jurisdiction is exercised. 2 It is in exceptional
circumstances where it may be justified to side- step the lower court’s
processes. Exceptional circumstances is case specific and defies universal
definition, but it is the litigant who seeks to invoke the High Court’s jurisdiction
who must make out its case adequately in its founding affidavit. Herein, the
applicant’s failed. They made no attempt to justify bypassing the M aintenance
Court processes in seeking this Court to engage in a maintenance enquiry in
two parts, both interim and final.
[5] This matter does not fall within the ambit of Rule 43, there being no pending
matrimonial action. The applicants seek stand- alone maintenance orders
1 AD and another v DW and others (Centre For Child Law as Amicus Curiae; Department For Social
Development as Intervening Party) 2008 (3) SA 183 (CC) at para [34].
2 In Re XN 2013 (6) SA 153 (GSJ).
which are ordinarily and properly to be adjudicated by a Maintenance Court.
Absent exceptional circumstances, the applicants must follow the lower court
processes to obtain the relief they seek.
Legal standing
[6] The first and second applicants were provisionally appointed by the C antonal
Court of North Holland as bewindvoerders to the patient. The role is akin to
that of a South African curator bonis. In June 2025 they were replaced by the
third respondent as independent curator. By all accounts , the third applicant
sought authorisation to engage in litigation and was so authorised. It is wholly
unclear whether the authorisation is retrospecti ve, as contended for by the
applicant or whether the first and second applicants’ actions were also
condoned by the Cantonal Court. The document relied upon is not a court order
but appears to be an application for authorisation and the annotation that
authorisation is granted is cryptic at best.
[7] The parties are ad idem that the patient is not capable of conducting litigation
for and by herself. She requires the assistance of a curator. I n the South
African context, when faced with a litiga nt who does not have capacity to
litigate, a curator ad litem is appointed to act on behalf of such litigant . When
launching these proceedings, the applicants did not have authorisation from the
Cantonal Court to institute the proceedings nor did they seek the appointment
of a curator ad litem to the patient.
[8] At common law a curator bonis does not have inherent litigation powers
especially not in matrimonial litigation. 3 This has been the position
since Voet,4 who stated the common law to be as follows:
“Husband's curator has no power over wife or children — However that may be, it
has been remarked in the same passage above that the wife or children of one who
is a madman or a prodigal are certainly not subject to the power of a curator
assigned to the mad or prodigal husband or father.”
[9] The position is confirmed in LAWSA,5 stating that certain acts considered to be
of too personal a nature which cannot be performed by a curator. A curator, for
example, is said to have no locus standi to institute an action for divorce on
behalf of an insane person . The common law position was applied with
approval in Ex parte AB and confirmed with approval in Spangenberg and
Another v De Waal.
[10] In LM v DM 6 the Court developed the common law to allow a curator bonis ,
who is ordinarily a supervisor of the patient's property and does not inherently
possess power to institute certain proceedings, to exercise litigation powers
specifically conferred by court order, subject to the Master's prior approval.
[11] The applicants did not ask this Court to develop the common law and argument
was based purely on their appointment as bew indvoerders by the Cantonal
Court and subsequent (unclear) authorisation by that court.
[12] Spousal maintenance and an application in terms of section 8 of the MPA
constitute matrimonial litigation . These are of a very personal nature. At
common law, a curator bonis does not have legal standing to institute such
3 Ex parte AB 1910 TPD 1332; Spangenberg NO and Another v De Waal [2008] 1 All SA 162 (T).
4 27.10.10.
5 20(1) LAWSA 2 ed at 487.
6 2021 (5) SA 607 (GP)
proceedings on half of a patient. I t is only in exceptional circumstances and
with leave of the Court that a that a curator bonis can institute such litigation. In
the present matter no exceptional circumstances were raised by the applicants.
Absent exceptional circumstances, the common law position holds sway and
the applicants had no locus standi to institute the present proceedings.
[13] The retrospective authorisation contended for is not borne out by the
documents before C ourt and did not cure the initial nullity tainting the present
proceedings.
[14] In sum, the applicants do not have the requisite legal standing to institute and
litigate these proceedings on behalf of the patient.
Financial disclosure
[15] An accrual claim vests upon the dissolution of a marriage, whether by death or
divorce, or, exceptionally, upon an order in terms of section 8 of the Matrimonial
Property Act 88 of 1984 (the MPA) if the applicant spouse’s estate has shown a
smaller accrual and the right to share in the accrual is not declared forfeit in
part or in whole.
7 Prior to vesting, the contingent right is protectable by
interdictory relief such as an “anti-dissipation” order or other interdict.
[16] In PAF v SCF8 the Supreme court of Appeal summarised the position thus:
“Although the accrual claim only arises at the dissolution of the marriage, both
spouses acquire a protectable contingent right against each other during the
subsistence of the marriage, which the law will protect in circumstances of
irregularity and a lack of bona fides. Thus, upon vesting of such right, there is a
legal obligation on both spouses to satisfy the accrual claim (and hence to share in
7 Reeder v Softline Ltd 2001 (2) SA 844 (W).
8 PAF v SCF 2022 (6) SA 162 (SCA) at para [35].
their respective gains) at the dissolution of their marriage. Furthermore, s 7 of the
MPA obliges both spouses to furnish 'full particulars of the value' of their estates.
Therefore, an accurate reflection of the parties' respective accruals is necessary to
give effect to the intention behind the legislature's provision of the accrual system in
the first place.”
[17] The obligation created in section 7 arises “ [w]hen it is necessary to determine
the accrual of the estate of a spouse” , that is when the right has vested or is
about to vest such as when divorce litigation is pending. As long as a spouse
needs the information to prepare for a trial at which an accrual calculation will
have to be made, the jurisdictional requirement of the provision would be
triggered.
9
[18] It is patent from the wording of the notice of motion that financial dis closure is
sought to enable the applicant to appoint an expert of their choice, at the
respondent’s costs, to calculate the value of the respondent’s estate to
determine the extent of the patient’s accrual claim against him. But there is no
necessity to determine the extent of the patient's contingent accrual claim at
this juncture. There is no divorce litigation pending between the patient and the
respondent. This Court is not called upon to pronounce on Part B of the
application wherein the applicants seek an order in terms of section 8(1) of the
MPA. Accordingly, the jurisdictional requirement of section 7 if not triggered
and there is no legal basis for the disclosure sought.
[19] The applicants cannot invoke the machinery of discovery without legal
proceedings, nor can ordinary discovery principles be transformed into a
general matrimonial obligation to disclose all assets on demand. Outside of the
9 DM v DM 2025 (4) SA 183 (GJ) at para [22].
latter recognised proceedings or judicial sources, a spouse seeking broad
disclosure of the other spouse's assets, liabilities, income, trusts, companies, or
financial records has no general entitlement to such relief and information.
[20] In the result, the applicants are not entitled to the financial disclosure they seek
at this juncture.
Costs
[21] The respondent argued for a costs order de bonis properiis against the
applicants in their personal capacities rather than milking the estate of the
patient. As attractive as the argument was, the applicants did not act reckless
or with ill-intent in bring this application.
[22] In the result, costs must follow the result which costs are to be recouped from
the patient’s estate.
Order
[23] Accordingly, I make the following order:
1. The application is dismissed.
2. The applicants are to pay the costs of the application including counsel’s fees on
scale B.
____________________________
SARITA LIEBENBERG
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
For the applicants:
Adv Metzer
Instructed by M Strydom and Associates
For the respondent:
Adv Haskins SC and Adv Grobler
Instructed by Delberg Attorneys
Heard on 30 April 2026
Judgment on 8 May 2026