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[2011] ZAWCHC 101
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Dewar v Ashton (25631/2010) [2011] ZAWCHC 101 (5 May 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE NO.:25631/2010
In the
ex parte
application of:
ROSS
DEWAR
(Identity
No: )
…...........................................................................................................
Applicant
For
the appointment of a
curator
bonis
and
curator
ad
personam
to
manage the affairs and person of:
ELIZABETH
ROSE ASHTON
(Identity
No: )
…........................................................................................................
The
Patient
Appearance: 22, 24 February
2011
Reasons for judgment: 5 May
2011
Appearances: For the Applicant:
Attorney Mr J N J Pieterse of Bisset Boemke McBlain
Adv
Ronee Robinson as
curator
ad litem
for
the Patient
KATZ
AJ
REASONS
FOR JUDGMENT: 5 MAY 2011
1.
On 24 February 2011, I granted orders,
inter
alia,
declaring
Mrs Elizabeth Rose Ashton incapable of managing her affairs, and
appointed
curator
bonii
to
manage her property and a
curator
ad
personam
to
her person. When making the orders, I indicated that reasons would
follow. These are the reasons.
2.
A
curator
bonis
is
concerned with the patrimonial affairs of the person. A
curator
ad personam
is
concerned with persona! matters relating to the person, such as
where she is to live, e.g. whether she needs to be consigned
to an
institution or to live at home, her health, e.g. whether she is to
have a particular treatment such as an operation and
by whom it is
to be performed and generally the control over her personal day to
day living.
3. The
appointment of a
curator
with
general powers, both in respect of a person's property and of their
person, will clearly affect the personal liberty and
autonomy of
such person and courts are to be guarded in the exercise of its
jurisdiction to make such appointments.
1
4. The common law,
2
and the Uniform Rules of Court,
3
provide this Court with the jurisdiction to appoint curators, both
to the property of the person and to the person themselves.
5. The question arises that
bearing in mind the serious inroads into the liberty interests of
the person subject to such an order,
what role, if any, does the
Constitution of the Republic of South Africa 1996, play in the
appointment of curators.
6. The Constitution, being the
supreme law, enjoins courts in developing the common law, to promote
the spirit, purport and objects
of the rights in the Bill of Rights.
A similar injunction applies in respect of interpreting any
legislation, such as the Rules
of the Court.
4
7. That being so, the issue of
the right to dignity must be considered when it comes to the
individual liberty, autonomy and independence
that is compromised
when a curator is appointed either to the property of an individual
or to the person. The right to dignity
is one of the most important
of all human rights, and the source of all other personal rights.
5
8. Thus, in considering whether
a curator should be appointed, the first and primary issue is
whether and how the dignity of the
subject of the application will
be threatened or violated.
6
Will the person's dignity be respected and protected if a curator is
appointed?
9. Before turning to
considerations relating to dignity and other rights, it is
appropriate that the facts be set out.
10.
Mr Ross
Dewar is the Applicant. He is a director of a design company and a
property development company in Cape Town. He is a
long- standing
family friend of Mrs Ashton. His late mother and Mrs Ashton were
best friends for many years. He has been assisting
Mrs Ashton for
more than 10 years with the managing of her finances as well as
general advice and assistance. After his mother
passed away during
2001, he remained in regular contact with Mrs Ashton and he has
been
considered by her to be almost like her son. She telephones
him up to 10 times a day.
11.
Mrs Ashton
was born on 24 April 1940 and was an only child. Both her parents
passed away many years ago. During her childhood
years, she attended
Kings Road Primary School and matriculated at Ellersley Girls' High
in Sea Point, whereafter she studied
and completed a Bsc and
ultimately MSC degrees in environmental science at the University of
Cape Town, qualifying as a chemist.
She had a successful career as a
chemist in the private sector and subsequently worked for the Cape
Town City Council as a botanist.
During approximately 1990, Mrs
Ashton retired and pursued her hobbies, botany and mountain
climbing.
12. During 1972, she married Mr
Brian Ashton, which marriage lasted for some 10 years. No children
were born of the marriage and
she did not work whilst they were
married. After her divorce, she moved to Oranjezicht where she lived
until about 2006, whereafter
she moved to Lamierner in Vredehoek.
Lamierner is a retirement village, but does not have frail care or
one-on-one services for
persons in need of such care.
13.
Mr Dewar has
become aware, through his interactions with Mrs Ashton
and the
personnel who run Lamierner retirement village, that Mrs Ashton's
health has been steadily declining and more rapidly
in the last 18
months.
14.
To this end,
he had arranged for her general practitioner and a psychiatrist to
consider her general health, and more particularly,
her mental
health. Dr Barbara Kemp, Mrs Ashton's general practitioner examined
her on 6 September 2010. She filed a report in
which she diagnosed
Mrs Ashton with dementia. The report suggests that although Mrs
Ashton was orientated in place and person,
her relationship to time
was disorientated with her short-term memory being severely impaired
and she concluded that Mrs Ashton
was not capable of managing her
own affairs. Dr Kemp is not related to Mrs Ashton and she has no
direct interest in her being
placed under
curators hip.
15. On 21
September 2010 and on 27 September 2010, Dr Pieter Cilliers, a
psychiatrist, attended to Mrs Ashton and filed a report
on 15
November 2010 concerning this application. He stated that Mrs Ashton
suffers from dementia, probably of a mixed type, both
Alzheimer's
and vascular. The nature of the illness is such that any improvement
in her condition is extremely unlikely. Progressive
deterioration is
what is to be expected. He also concluded that she is unable to
conduct her own affairs or care for herself
and he recommended that
a
curator
bonis
and
a
curator
ad personam
should
be appointed. He also had no relationship to Mrs Ashton and has no
personal interest in terms of any order sought for the
appointment
of a curator.
16. Mrs Ashton's financial
position is secure. Although she is the registered owner of a
15-year old Toyota Corolla, she is the
owner of a substantial share
portfolio currently invested with Investec Private Client
Securities. The portfolio is suggested
to be worth approximately R30
million.
17. Mr Dewar
applied to this Court for the appointment of Adv Ronee Robinson, a
member of the Cape Bar, to assist Mrs Ashton in
the application to
have
curator
bonii
and
a
curator
ad personam
appointed
to her. On 26 November 2010, this Court (per Van Zyl AJ), made an
order appointing Adv Robinson as
curator
ad litem
for
the purpose of interviewing Mrs Ashton, making such further
enquiries for purposes of the application to declare her incapable
of managing her own affairs, and compiling a report in respect of
her findings.
18. Adv Robinson produced a
most helpful, detailed and comprehensive report in which she set out
the content of her interviews
with 15 different persons and in which
she drew certain conclusions. Her report is thorough,
well-researched and was indeed helpful
to this Court. Not only did
Adv Robinson produce the report just mentioned, but she filed a
supplementary report as well as heads
of argument which this Court
also found useful in determining the application. At the hearing, Mr
Kobus Pieterse, an experienced
attorney of this Court, appeared on
behalf of Mr Dewar and associated himself with the submissions made
by Adv Robinson.
19. The
Master of the Supreme Court also filed a report. He had no objection
to the proposed
curator
bonii
and
recommended that various powers listed in annexure "A" to
his report be granted to them and be exercised subject
to his
approval. The Master also had no objection to the
curator
bonii
not
giving security in terms of
section 77
of the
Administration of
Estates Act 66 of 1965
for as long as one of the appointed
curator
bonii
remain
a practising attorney who holds a valid fidelity fund certificate.
7
20. The
Master, in considering whether a
curator
ad personam
ought
to be ordered, referred to the
Hill,
Martinson
and
Powrey
cases
and commented that it was only when a real need is proved for the
appointment of a
curator
ad personam,
that
such should be ordered. He went on:
"I
am of the opinion that a real need has been proved in this
instance".
21. Adv Robinson interviewed
Mrs Ashton for the first time on 12 January 2011 at Lamierner. She
spent almost 3 hours with her
on that day. Although Mr Dewar had
indicated that he wished to attend the meeting, for reasons of
objectivity and neutrality,
Adv Robinson decided that it was better
for her to meet Mrs Ashton, at least initially, on her own.
22. Mrs Ashton appeared
well-kept. She came across as healthy, attractive, intelligent and
alert. Although she was not immediately
willing to speak to Adv
Robinson because she claimed she had a full programme and that she
had no need for her in her life, it
was explained to her that it was
necessary to conduct the investigation because of this Court's
order.
23. Mrs Ashton insisted that
she was capable of looking after her own affairs and that her
condition might not be due to Alzheimer's,
but simply part of a
normal ageing process. She had said that she had paid a visit to a
professor at the University of Cape Town
who had told her that as
long as she remained on a drug called Ebixa, she would be alright.
Mrs Ashton insisted that she had
not lost her independence and that
she would not. That was the theme of her conversation with Adv
Robinson. Mrs Ashton acknowledged
that Mr Dewar had always been
around, that he played a supportive role and that she speaks to him
often. She claimed that Mr
Dewar was used to her going to the bank
on her own and managing by herself. She claimed that she managed
this quite well although
she does not use the auto-teller.
24.
An important
aspect of Adv Robinson's interaction with Mrs Ashton, is her living
space. Mrs Ashton at first refused to allow Adv
Robinson to have
sight of or inspect her accommodation because she claimed that she
had recently unpacked lots of papers and
that her flat was, as a
consequence, unusually untidy. She wanted to clean it up first
before she would let anybody see it. After
some time, Adv Robinson
was allowed to inspect her apartment.
25.
The
apartment is a complete mess and not fit for human habitation. Heaps
of papers are strewn everywhere, including in the bathroom,
and it
appeared that it had been thus for much longer than the short time
claimed by Mrs Ashton. There was virtually no food,
the fridge was
locked and could not be opened. A spare room was entirely stacked
with items of absolutely no use. Dust lay heavily
on all surfaces.
It was clear that the washing machine was not being used and Mrs
Ashton in response claimed that she washed
her clothes by hand.
There was nowhere for any person to sit down. Mrs Ashton claimed
that she had not done much about cleaning
the apartment because of
the intolerable heat.
26. Mrs Ashton suggested that
she might be able to clear out her apartment and make it habitable
in about a week and pointed to
a paper shredder which she claimed
was used to shred her papers. She was not willing to throw them out
because they may contain
confidential information. Adv Robinson
informed Mrs Ashton that she would return in approximately a week's
time and that the
status of her apartment would form an important
part of her assessment for purposes of reporting back to this Court.
Mrs Ashton
acknowledged that the apartment was not what it should be
which was why, according to Adv Robinson, she declined to allow
people
to visit.
27. Mrs Ashton appeared to be
intelligent, aware of what was happening around her and fairly
strong.
28. When Adv Robinson left, Mrs
Ashton informed her that she would be available at any time during
the following week and that
a meeting should be scheduled when it
would be suitable for Mr Dewar as she knew he was busy.
29. When Mrs Ashton was
contacted the following week to confirm Adv Robinson's meeting, she
was hostile and appeared to have no
recollection of the basis on
which they had parted the previous week. At first she claimed that
her schedule would not permit
such a meeting as she had an
appointment to meet with Investec the following day. She then stated
that she did not wish her independence
to be taken away, that she
did not wish to have people interfering in her life and that she was
not willing to attend the meeting.
30. She appeared to be under
the impression that if she pushed hard enough, the problem presented
by this application, would disappear.
When Adv Robinson phoned Mrs
Ashton the next day to meet with her, she refused to do so. She
refused to allow Adv Robinson into
her apartment. According to Mr
Dewar, there is a long history of procrastination around the
cleaning out of the apartment. Mrs
Ashton insisted that there was no
need for anybody to interfere in her affairs and as far as she was
concerned, Mr Dewar was
in effect her assistant and that she had no
need for any court intervention. According to Adv Robinson, Mrs
Ashton's responses
had now become irrational.
31. The staff at the Lamierner
village were extensively consulted by Adv Robinson. What was
apparent was that Mrs Ashton may be
drinking more alcohol than
necessary, there are dangers that she may over-medicate or
under-medicate herself, that Mrs Ashton
goes through bad patches
when, for example, she may walk around aimlessly and appears unduly
anxious and worried for no apparent
reason. The consensus was that
she seemed to have improved with the medication that she was given.
32. Mrs Mahdia Allie is the
portfolio manager of Mrs Ashton's portfolio at Investec Bank. She
opined that Mrs Ashton was extremely
conservative with her money.
She met with Mrs Ashton quarterly to discuss the portfolio. Although
Mrs Ashton went through a brief
bad patch during October 2010 when
she contacted Mrs Allie up to 5 times a day, she appeared to have
stabilised. Mrs Allie described
Mrs Ashton as a very private person
and had always indicated that Mr Dewar was the executor of her
estate.
33. Mrs
Allie was strongly opposed to the idea of appointing a curator to
manage the affairs of Mrs Ashton. It would be, according
to Mrs
Allie,
"bad"
for
her to lose control of her affairs and she was quite capable of
managing her own affairs.
34. Mr Roald
Besselaar is an attorney of this Court and a partner at Bisset
Boemke McBlain. He has some experience as a
curator
bonis
and
is willing to act as a
co-curator
bonis
with
Mr Dewar with his decision prevailing in the event of a dispute
between him and Mr Dewar. Mr Besselaar accepted that he would
seek
advice from suitably qualified and reputable advisers as to the
optimal method of investment of Mrs Ashton's portfolio.
35.
Professor Wilcox, the person whom Mrs Ashton had consulted at the
University of Cape Town, said that he had only seen Mrs
Ashton once
and only had a brief
"snapshot"
of
her. When Mrs Ashton consulted him, she acknowledged that everybody
at Lamierner was concerned about her memory. She placed
great
emphasis on the spider bite that she had sustained and tried to
steer him away from memory issues to the issue of the spider
bite.
Professor Wilcox thought her personal hygiene to be lacking and
thought her to be unkempt. Professor Wilcox thought that
her memory
test was not incompatible with Alzheimer's in the early stages.
36. Adv Robinson concluded that
Mrs Ashton's case was not an easy one.
37. She stated that the answer
did not immediately suggest itself to her as, on her first
encounter, Mrs Ashton struck as entirely
in charge of herself.
38. It was only during the
further course of her acquaintance with Mrs Ashton and upon
listening to details of her conduct at
Lamierner and having spoken
to the Dewar family and other health professionals that she became
convinced that the medical opinion
was supported by the facts,
despite the medical evidence.
39. Mrs Ashton has a strong
resistance to being declared to be incapable of managing her affairs
and for curators to be appointed
to her property and to herself.
40. Adv Robinson concluded that
overall, Mrs Ashton cannot cope on her own and that in effect, a
curator is already in place as
regards certain aspects of her
affairs. In the circumstances, she advised that both curators to Mrs
Ashton's property and to
her person are required.
41. In considering the issue, I
was guided by the right to dignity and I was enjoined to respect and
protect Mrs Ashton's dignity
in deciding whether to make any order
and indeed, if so, what type of order.
42. I had regard to the issue
of dignity and came to the conclusion that, bearing in mind the
totality of Mrs Ashton's circumstances,
I would not be respecting
and protecting her dignity were I not to grant the orders I made.
43. Thus, if
Mrs Ashton were to continue living in what Adv Robinson called a
"pigsty"
without
any regard to the dangers and inherent risks that somebody in her
circumstances could find themselves, I would be failing
in my
constitutional duty to respect and protect Mrs Ashton's right to
dignity. To respect and protect Mrs Ashton's dignity curators
to
both her persona! property were called for.
44. In the circumstances, I
made the following orders:
(1) The Patient is declared
incapable of managing her own affairs.
(2) Roald
Besselaar and Ross Dewar be appointed as
co-curators
bonis
to
the property of the Patient to manage her affairs with the powers
and duties set out in annexure "A" hereto.
(a) The
curators
bonis
be
given the power to entrust the funds of Mrs Ashton to such financial
advisor/s or such financial institution/s as the
curators
bonii
may
deem suitable, for the purpose of investing, and, from time to time
reinvesting, such sum or any portion thereof in suitable
trustee
investments, fixed property and/or securities quoted on any licensed
Stock Exchange and/or in licensed Unit Trusts as
the
curators
bonii
or
the relevant financial institution/s or alternative advisor/s may
deem appropriate.
(3) The said
curator
bonis
in
their capacities as such be exempted for so long as Mr Besselaar is
a
curator
bonis,
practises
as an attorney of this Honourable Court and is in possession of a
valid fidelity fund certificate, demonstrating that
he enjoys
professional indemnity cover, from the duty of furnishing security
in terms of section 77 of the Administration of
Estates Act, 1965
(Act 66 of 1965).
(4) In the
event of a dispute or difference of opinion between the
curator
bonis,
the
decision of Mr Besselaar shall prevail.
(5) As long
as the
curator
bonis
deem
fit, Mrs Ashton shall be allowed a small banking account of such
nature and with such limited facility as the
curators
bonis
deem
fit.
(6) Mrs Ashton be declared
incapable of managing her own personal affairs.
(7) Mr Ross
Dewar be appointed as
curator
ad personae
to
the Patient with the powers and duties set out in annexure
"B"
thereto.
(8) The
costs of the application (inclusive of the costs of the
curator
ad iitem
and
any professional fees incurred) be paid out of the Patient's estate.
ANNEXURE"A"
45.
To sell any
property belonging to the patient;
46. To make exchange or
partition of any property belonging to the patient or in which she/he
is interested, and give or receive
any money for equality of exchange
or partition;
47. To carry on or discontinue
any trade, business or undertaking of the patient;
48. To grant leases of any
property of the patient;
49. To perform any contract
relating to the property of the patient entered into by the patient
before she/he became mentally disordered
or defective;
50. To exercise any power or
give any consent required for the exercise of any power where the
power is vested in the patient for
her/his own benefit, or the power
is in the nature of a beneficial interest in the patient;
51. To raise money on mortgage
of the patient's property for payment of her/his debts or expenditure
incurred for the patient's
maintenance or otherwise for her/his
benefit, or for payment of, or provision for, the expenses of her/his
future maintenance;
52. To apply any money for or
towards the maintenance or the benefit of the patient;
53. To expend money in the
improvement of any property of the patient by way of building or
otherwise;
54. To expend any moneys
belonging to the patient in the maintenance, education, or
advancement of the husband/wife of the patient
or of any relative of
the patient or of any person wholly or partially dependant on the
patient or continue such other acts of
bounty or charity exercised or
promised to be exercised by the patient as the Court or the Master
having regard to the circumstances
and the amount or value of the
estate of the patient considers proper and reasonable;
55. To invest moneys of the
patient which may be available for investment;
56. To take
any proceedings which may be necessary in the interests of the
patient
or
the
due and proper administration of her/his property;
57. To make such reports
concerning the patient's estate to the Court or to the Master as the
Court or Master deems fit.
The above powers are subject to
the approval of the Master of the High Court.
ANNEXURE"B
58. To exercise parental powers
in regard to matters relating to the patient's person, and physical
and mental well-being;
59. To determine where the
patient is to live;
60. Whether the patient has to
have any particular medical, surgical or dental treatment, and by
whom;
61. The right to engage the
services of someone to look after the said patient should he/she
consider it necessary to do so;
62. All such other powers as may
be necessary to ensure the well-being and safety of the patient.
1
See
Ex
parte: Hill
1970
(3) SA 411
at 412G-413A and
Martinson
v Brown
1961
(4) SA 107
(C) and Ex
parte:
Powrie
1963
(1) SA 299
(W).
2
See
Ex
parte: Hill
at
412E-F.
3
See
Ruie 57.
4
Section
39(2) of the Constitution.
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001
(4) SA 938
(CC) at paras [50] - [60].
5
S
v
Makwanyane
[1995] ZACC 3
;
1995
(3) SA 391
(CC) at para
[44]
.
6
It
is now trite that dignity is a judiciable concept. See
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others: Thomas and
Another v
Minister of Home Affairs and Others
[2000] ZACC 8
;
2000
(3) SA 936
(CC) at para
[35]
.
7
Ex
parte Davidson
1981
(3) SA 575
(D); Ex
parte
Smit In re Estate Smit
1983
(3) SA 438
(T) and Ex
parte
Bell
1991
(2) SA 109
(T).