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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 18/10/2007

REPORTABLE CASE NO. 15226/2005

In the matter between:

J. P. SPANGENBERG N.O. FIRST APPLICANT

L.I. KARB N.O. SECOND APPLICANT

AND

DAPHNE DE WAAL RESPONDENT

________________________________________________________________

JUDGMENT

________________________________________________________________

Conradie, AJ

The Court has been approached by the First and Second
Applicants in their respective capacities as curator ad litem and curator bonis seeking an order to set aside an Order in terms of Rule 43 of the Uniform Rules of Court granted in favor of the Respondent on 16 September 2005.

RUDOLPH JACOBUS DE WAAL (hereinafter referred to as “The Husband”) and the Respondent were married to each other during 1971 out of community of property. On the 14^th March 1995 the Husband was involved in a motor vehicle collision. A curator ad litem was appointed in order to institute action against the Road Accident Fund and Avis Rent a Car. The claim became settled and the Husband received an amount of R 3,4m.

On the 17 September 2002 Kampepe, J. made an order in the Witwatersrand Local Division declaring the Husband to be of unsound mind and as such incapable of managing his own affairs. In terms of the order the Second applicant was appointed as Curator Bonis to the Husband with a wide range of powers to be exercised subject to the consent and the approval of the Master.

For the period following the motor vehicle accident to January 2005 the Respondent cared for the Husband and received certain amounts monthly from the Curator Bonis to cover the costs of the Husband’s care as well as the expenses of the joint household. At the end of February 2005 the Husband relocated to the Western Cape to be with his mother and has since not returned to the common home. According to the Respondent the Husband had informed her during a telephone conversation at the end of February 2005 that he wanted to divorce her. After that he at times told her that he was coming home to be with her and at other times told her that he intends to divorce her and stay with his mother. At some point he informed her that the second Applicant was instructing attorneys to institute divorce proceedings.

The Respondent alleged in her founding affidavit in the Rule 43 application that the cordial relationship between her and the Second Applicant broke down shortly after this as the Second Respondent had informed her that he would be paying monies over to the Husband’s mother to make provision for his care while staying with her. It seems that the Respondent did not approve of this.

The Respondent, believing that a divorce action was about to be instituted, made application to the Court for an order in terms of Rule 43. The Notice of Motion together with the Founding Affidavit was served on the Second Applicant, in his capacity as Curator Bonis for the Husband, on the 13^th May 2005. The Second Applicant thereupon submitted the Notice of Motion with the annexures as well as a status report on the financial position of the Husband to the Master of the High Court requesting the Master’s instructions regarding the application.

On 16 May 2005 the Attorneys for the Second applicant informed the Respondent’s attorneys of their request to the Master. On the 3^rd June 2005 the Second Applicant’s attorneys requested the Respondent’s attorneys not to proceed with the Rule 43 Application pending the receipt of the Master’s directive. The Second Applicant’s attorneys stated in this letter that they had made two telephone calls to the Respondent’s attorneys, to which they had not received a reply. They also had not receive a response to either of their letters.

On the 2^nd June 2005 the Master of the High Court approved the appointment of the First Applicant as Curator ad Litem in order to attend to the divorce proceedings. The Master directed that the Second Applicant should urgently make application for the appointment of the Curator ad Litem.

In the mean time the Second Applicant did not take any steps to oppose the rule 43 application and also took no steps to draw the court’s attention to the fact that he was undertaking the process for the appointment of a Curator ad Litem. According to the Second Applicant he took it for granted that the Respondent would not continue with the application after receiving his attorney’s request.

The Respondent on the other hand, annexed the letters from the Second Applicants attorneys dated 16 May 2005 and 3 June 2006 to her Rule 43 application.

On the 16^th September 2005 Motimele, AJ. made an order in terms of Rule 43 that, pendente lite, the Second Applicant pay maintenance of R9 000,00 (NINE THOUSAND RAND) per month to the Respondent and that the Respondent remains on the Husband’s Medical Aid Scheme. A contribution to costs in the amount of R 5000,00 was also awarded to the Respondent, to be paid in installments of R 500,00 per month, payable from date of service of the summons in the divorce proceedings. As the Rule 43 Application was not opposed by the second Applicant on the Husband’s behalf, the Order was given by Default.

The Respondent’s attorneys informed the Second Applicant’s attorneys by letter on 26 September 2005 that an order in terms of Rule 43 had been awarded in favour of the Respondent.

On 1 November 2005, Second Applicant’s application requesting the appointment of the First Applicant as a Curator ad Litem for the Husband was heard in the WLD. In his Founding Affidavit to the said application, the Second Applicant stated the following:

“3. As I have conducted my duties as regard to Curator Bonis diligently in respect of the patient, I am in fairly regular contact with him and he discusses not only his financial but also personal details with me, the patient has advised me that he and the Plaintiff separated from one another in or about January 2005.

1. The reason therefor is that he had lost all love and affection for the Plaintiff and had found it preferable to move to Wellington in the Eastern Cape (sic) where he has since been living with his mother.

4. The patient no longer wishes to remain married to the Plaintiff.

5. I have been advised by the Master of the above Honourable Court that in order to institute an action for inter alia a decree of divorce, a Curator ad Litem has to be appointed to represent the patient in the proposed Litigation.”

An Order appointing the First Applicant as Curator ad Litem was given on the 1^st November 2005 and it was specifically ordered that:

“2. Advocate Johan Spangenberg attend to do all things which may be necessary in the interest of the said Rudolph Jacobus de Waal in the divorce proceedings which are to be instituted.”

On 27 January 2006 and 20 March 2006 the Applicants’ attorneys sent letters to the Respondent’s attorneys exploring the possibility of a settlement. These letters were replied to on 31 May 2006. The Respondent’s attorney essentially responded by sayin in their letter that the Respondent did not contemplate instituting a divorce action.

THE APPLICATION

In the present Application the Court is requested to set aside the Rule 43 Order on the following grounds:

1. That the Order in terms of Rule 43, should not have been granted as there was no pending or contemplated matrimonial action at the time as:

• the Respondent herself did not intend to institute divorce proceedings;

• the Husband’s curator bonis did not have locus standi to institute divorce proceedings on his behalf;

• the Husband on the other hand, as a result of his mental incapacity, was incapable of instituting divorce proceedings.

2. That, at the time when the Rule 43 Order was granted, the Husband had already been declared to be of unsound mind and as such incapable of representing himself in the proceedings and that no Curator ad Litem had at that stage been appointed to oppose the Application on his behalf.

The abovementioned grounds on which the Applicants are seeking the order are forthwith examined:

THE RESPONDENT’S INTENTION TO INSTITUTE DIVORCE PROCEEDINGS

It is settled law that the Respondent in this matter would have been entitled in terms of the Divorce Act 70 of 1979 to institute divorce proceedings against the Husband if she wished to do so, either on the grounds of the irretrievable break-down of the marriage or mental illness if she was able to prove it. In that case the husband would have been assisted by his Curator ad Litem and Curator Bonis in such proceedings.

The Respondent makes it adequately clear in the papers though that she had no intention whatsoever to institute divorce proceedings against her Husband. She states that she had out of her own choice provided daily care to the Husband for a decade and that she would not be able to forgive herself neither would their children be able to forgive her if she took the initiative to institute divorce proceedings against him.

The Applicants are thus correct in their contention that the Respondent did not at any stage prior to the hearing of the Rule 43 application contemplate instituting divorce proceedings against the Husband.

LOCUS STANDI OF THE CURATORS

Counsel for the Applicants argued that a divorce is a legal action of such personal nature that it cannot be instituted by a Curator Bonis and that the Curator Bonis would therefore not have had locus standi to institute divorce proceedings on the patient’s behalf and there could therefore not have been a contemplated or pending matrimonial action when the Rule 43 application was brought to court. He relies for his point of view on the judgment of Wessels, J (as he was then) in Ex parte A B 1910 TPD 1332.

In that matter the Applicant had been appointed as Curator Rerum of a so called lunatic by virtue of section 42 of Proclamation 36 of 1902. The lunatic, who possessed considerable property, was married in community of property to his wife. It appeared that since the lunacy of the husband, the wife had committed adultery and was pregnant as a result of the adultery. An application was made for an order authorizing the Applicant (the Curator) to institute action against the wife for divorce and for an order declaring her to have forfeited all benefits derived from the marriage in community of property. According to the argument of the Applicant in that matter he (the Curator), could not properly administer the estate of the lunatic if he were compelled to pay the lunatic’s money in order to maintain a spouse guilty of adultery.

The said judgment of the learned Wessels, J. gives an interesting insight into the social dynamics of marriage and community in the early part of the previous century both in England and South Africa. In considering whether the said curator had locus standi the court examined a number of English decisions in order to determine whether they embodied principles similar to our law. It also considered the common law and statutes in this regard:

(At p. 1338) “I have therefore to ask myself this question – Does our common law contemplate that the Curator of a lunatic can institute divorce proceedings on behalf of the lunatic against the adulterous wife of such lunatic? In anything which relates to the property of the lunatic the Curator can appear on his behalf. He is, therefore, entitled to see that all contracts in favour of a lunatic should be performed by the lunatic’s debtors. Does this include the incidents of the marriage contract? Clearly not, for marriage is not a obligatio, and does not fall under the category of contractual obligations. This is clearly expressed by Brett, J. in Mordaunt vs Moncreisse (43 L.J. P.D. 49): Marriage is not, as is often popularly stated, a contract. If it were it could, according to every principle of the laws of contracts, be rescinded by mutual consent, but it cannot.”

The Court goes on to say: (At p.1339) “Nor do I doubt that where the property of the lunatic husband is concerned the curator may be able to interfere, but the question is whether he can demand that the status of the spouses shall be altered, that their personal relations shall be completely severed whilst endeavouring to adjust their property relations. I have little doubt that the curator may ask the Court that under certain circumstances the maintenance of the wife shall be stopped or modified, or even that the community of goods shall cease pending the lunacy of the husband, because these matters affect his estate; but is the curator entitled to do acts which are personal to the lunatic and which profoundly affect his status? I think this can be answered by an argument from analogy. The curator of a lunatic does not completely represent the lunatic in our law, for where the relationship was of a peculiarly personal nature he ceased to have any power. He had no authority over the wife or the children of the lunatic (Voet, 27, 10, 10).The curator’s interference in the home of the wife and children is confined entirely to the property of the lunatic husband.

It appears to me that it is a question for the husband alone to say whether the marriage tie should or should not be broken, and no curator can determine this for him. Just as our law regards it inexpedient to allow the curator to interfere in the relationship of the lunatic’s wife towards her children, so in my opinion it regards it as intolerable that a curator should come between husband and wife in order to determine whether the relationship should cease or not. It is a significant fact that no single Roman Dutch authority that I have come across suggests that such a power exists”

(At p. 1340) “ The marriage tie appears to me to be recognized by our Law as an intensely personal relationship with which no outsider has any right to interfere”

The court points out the religious aspects of the case: “Roman Catholics and many Anglicans, as has been pointed out by Sir James Hannen in Baker vs Baker, Wheeler and Owen(49 L.J. P.D. 49), regard marriage as a sacrament, and would not under any circumstances initiate proceedings to have that tie broken by a court of law. Can we say that because marriage is also a civil institution a Protestant curator should be able to disregard the religion of the lunatic and the feelings of his relatives and ask the court to give him leave to sue for a divorce? It may be said that the court has a discretion, and need not grant an application. But on what principles is the court to act? Is it to grant the order in the case of a Protestant, but to refuse it in the case of a Catholic? But what if the lunatic be an Anglican? Is the Court to inquire to what particular class of Anglicans he belongs, and then to judge whether he would or would not approve of the divorce? In other words, is the Court to enter into the religious tenets of the lunatic and his family? I doubt if this would be wise.”

(At p.1341): “Look at the subject as we will, it seems clear to my mind that the relationship of husband and wife is so personal that it would be most inexpedient to allow a third party – even if he be the curator to the lunatic – to determine whether or not a divorce should be obtained on behalf of the lunatic. Turning from the Common Law to our Statute Law, I find nothing there to justify me in granting this application.”

The court concludes: “Under the circumstances, therefore, I do not feel justified, sitting as a Court of First instance, in granting an order which appears to me to be hostile to our law and practice”

The question now arises whether the application before this court can be distinguished from the abovementioned one in Ex Parte A B. In this regard it is important to consider the following:

Does the fact that fault is no longer a requirement for a divorce to be granted justify a deviation from that decision and therefore allow for a curator bonis to have locus standi while instituting a divorce action on behalf of the Husband?

With regard to this question one would accept that in the case before this court, the curator bonis, should he have had locus standi to institute divorce proceedings on behalf of the Husband, would have alleged that the Husband’s marriage with the Respondent had broken down irretrievably. The court is of the opinion that in the case before the court, it would most probably have been more difficult for the curator to prove irretrievable breakdown of the marriage than it would have been to prove fault as required formerly.

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More often than not, evidence of the irretrievable breakdown of a marriage is emotional rather than factual in nature. When a spouse states that his or her marriage has irretrievably broken down, he or she is making a statement of the heart rather than a statement of fact. While there are certainly facts like adultery and violence which can be proved which will demonstrate that a marriage has broken down irretrievably, it is very difficult for an outsider to prove that an individual no longer loves or respects his or her spouse. It is not possible for an outsider to be able to gauge whether a spouse is prepared to forgive his marriage partner despite whatever offence his or her partner has committed against him. What appears to be unforgivable for one person is tolerable for another given his particular personal circumstances. The fabric that keeps a marriage from breaking down is no doubt unique to every marriage.

Even though marriage as an institution is today much more secular in nature than it was a century ago, and even though divorce is much more prevalent and certainly socially more acceptable than then, the deep personal nature of marriage has not changed and it remains the most intimate of all human relationships recognized by law.

It is thus my considered view that the fact that fault no longer needs to be proved makes the decision to institute divorce proceedings rather more personal than less personal in nature.

Having regard to the above, I can thus find no reason to divert from the judgment of the court in Ex parte A B in as far as it found that a Curator Bonis does not have locus standi to institute divorce proceedings on behalf of a person declared to be of unsound mind. In the case before the court, it can therefore not be said that there was a pending or contemplated matrimonial action which was about to be instituted by the Curator Bonis.

THE MENTAL CAPACITY OF THE HUSBAND

The question then arises whether the husband, having been declared by the court of “unsound mind” in respect of a particular circumstance, was legally capable of instituting divorce proceedings.

In Boberg’s Law of persons and the family 2^nd edition (1999) at p. 106 the following is said: “But modern psychology has shown that sanity and insanity are not dichotomous: it is all a matter of degree. The difficulty, therefore, is to decide whether a person’s intellectual capacity is sufficiently afflicted to warrant the deprivation of his or her legal capacity. A judicial declaration that the person is mentally ill, or the person’s subjection to the provisions of the Mental Health Act, is not decisive of this question, for a person may be found wanting in capacity although he or she has not been ‘certified’, and, conversely, a mental patient may be held bound to by an act performed during a lucid interval. The question is one of fact, to be answered according to the circumstances of the particular case”.

He refers to the decision in Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669 where a marriage entered into by a man declared of unsound mind, and to whom curators had been appointed two years previously, was held to be valid because it appeared at the time of the marriage and thereafter that he had been “of sufficiently sound mind and understanding to realize the nature of the obligation into which he was entering, and to appreciate the duties and responsibilities created by that contract.” (at 673) “After all” said Solomon J. “the contract of marriage is a simple one and does not require a high degree of intelligence to understand the nature of the contract”

In Pienaar v Pienaar’s Curator 1930 OPD 171 (at 174-175) De Villiers JP says ”The mere fact that such a person has been declared insane or incapable of managing his own affairs, and that a curator is appointed to such a person, doesn’t deprive him of administering his own property and entering into contracts and other legal dispositions to the extent which he may de facto be capable, mentally and physically, of so doing. Such mental or physical capacity may vary from day to day, in varying degrees, necessary… In all these instances the person, who has been declared insane or otherwise incapable, retains his contractual and legal capacities and his administration of his own affairs to the extent which he is from day to day capable of exercising them. If at any time he is not legally competent to perform a legal act, that incompetence flows from the physical or mental incapacity which prevents him from understanding or from giving his consensus, and not from the fact that he has been declared incapable and had a curator appointed to him (at 174-175) ”

In order to ascertain whether the Husband possessed the mental capacity to institute matrimonial action on his own behalf, it would thus not be enough to simply state that he was incapable to do so because the court had declared him to be of unsound mind.

This court does not have the benefit of the evidence presented to the WLD when application was made for the appointment of a Curator Bonis for the Husband. One would assume that evidence was essentially brought to court showing that the Husband did not have the ability to manage a substantial amount of money which had been awarded to him through the settlement of his personal injury claim. I would further assume that when he was declared to be “of unsound mind and as such incapable of managing his own affairs” the honorable Kampepe, J. had in essence considered his mental capacity to handle his own financial affairs and not necessarily his ability to make unrelated personal decisions.

From the founding affidavit of the Second Applicant, it also seems that no further evidence in regards to the Husband’s mental capacity was submitted to court during the application for the appointment of the First Applicant as Curator ad Litem. The mere fact that the Second Applicant brought the application should most probably be an indication that both he and the Master were of the opinion that it was necessary for the First Applicant to be appointed in order to guide the court in a matrimonial action as to the degree of the Husband’s mental impairment.

In the statements he had made to his Curator Bonis which were quoted in the application for the appointment of the Curator ad Litem, the Second Applicant said that Husband had told him that he had lost his love and affection for the Respondent, that he had found it preferable to move to Wellington where he lived with his mother and that he no longer wished to be married to the Respondent. It gives the impression that the Husband might have had the mental capacity to assess the state of his own marriage and make a decision in accordance with his assessment.

By the time the Husband made the statements to the Respondent regarding his intended divorce it was already nearly ten years since his motor vehicle accident and two and a half years since being declared of ‘unsound mind’. It is not impossible that his mental condition had by then improved to the extent that he understood exactly what he intended to do.

On the other hand, the Respondent, in her founding affidavit to the Rule 43 application says that she knows that the Husband, as a result of his condition, is a person who makes fickle (“wispelturige”) decisions. The Respondent has certainly at no point in this application contended that the Husband has the mental capacity to institute divorce proceedings. This is further demonstrated by the fact that the application in terms of rule 43 seems to have been served on the Second Applicant only and not on the Husband personally.

With the evidence at hand, it is difficult for this court to assess whether the husband, when informing the Respondent that he wanted to divorce her, had the mental ability to assess the state of his marriage or the ability to decide whether he wanted to remain married to the Respondent.

In the absence of any evidence to the contrary, it is thus the considered view of this court that at the time of the Respondent making application in terms of Rule 43, it cannot determine with certainty that the Husband possessed the mental capacity to institute a matrimonial action without the assistance of the Curator ad Litem.

Having considered the above the court thus finds that neither the Respondent, nor the Second Applicant nor the Husband had instituted or was about to institute a matrimonial action at the time when application in terms of Rule 43 was made. The order made in terms of rule 43 should thus be set aside on these grounds.

The setting aside of the order would not leave the Respondent without any other remedy though as it is clear that the Husband has a responsibility to maintain her. This court though does not have enough evidence to make an order in this regard.

THE GRANTING OF THE RULE 43 ORDER IN THE ABSENCE OF THE CURATOR AD LITEM AND THE COSTS OF THE APPLICATION

It is clear from the papers before the court that the Second Applicant was well aware that the application in terms of Rule 43 was about to be brought on 16 September 2005 as the Notice of Motion had been served on him on 13 May 2005. Although he had requested the attorneys of the Respondent to suspend their application pending his instructions from the Master, he had not received the Respondent’s undertaking to do so.

At the date of the hearing of the Rule 43 application, the Second Applicant had already received instructions to make application for the appointment of the Curator ad Litem from the Master on 7 June 2005 but from the papers in that application it seems that he had not informed the Respondent of these instructions. The Masters instruction further reads as follows: “2. …. This application must be attended to urgently if you want to attend to the divorce proceedings” Despite this instruction, application was only made for the appointment of the Curator ad Litem on 1 November 2005, some five months after the instruction was issued.

I am prepared to go as far as to speculate that the Respondent might have brought the rule 43 application in an attempt to prompt the Second Applicant to act in the matter.

During the hearing of the Rule 43 application, nothing prevented the Second Applicant from bringing the Master’s directive to the court’s attention and advancing the same arguments regarding his locus standi as he has advanced in this application. He could have requested the court to postpone the matter pending the appointment of the Curator ad Litem. He left it up to the Respondent though to submit as part of her papers the letters he had written to her attorneys requesting that the matter be held over pending receipt of the Master’s instruction.

It was already sufficiently clear from the Respondent’s Founding affidavit in the Rule 43 Application that it was never her intention to institute divorce proceedings against the Husband and that it was her bona fide belief that he was about to institute such proceedings with the assistance of his curator bonis. The Second Applicant could not have believed that the matrimonial action was going to be instituted by her.

In my view the Second Applicant should have appreciated the risk of the order being granted by default in favour of the Respondent and should not be asking the court to set aside the rule 43 order on the ground that it was granted by default in the absence of the Curator ad Litem.

The conduct of the Second Applicant in allowing the rule 43 order to be granted by default has no doubt resulted in detriment for the Husband and the Respondent. Had the Second Applicant brought the Master’s directive to the attention of the court the rule 43 application would not have been granted in the first place and the application before this court would not have been necessary.

Whether the court awards the costs of this application to either the Applicants or the Respondent, the costs would be paid from the same source as the Respondent has no income of her own. I also believe that the Respondent was bona fide in bringing the Rule 43 application and should not be punished with costs when setting that order aside.

Had the court been requested to do so I would have seriously considered awarding costs de bonis propriis against the Second Applicant.

THE ORDER

Having read the documents filed in the matter and heard the arguments advanced by counsel and having considered the matter:

IT IS ORDERED THAT:

1. The application to set aside the order granted in terms of rule 43 on 16 September 2005 by Motimele AJ is hereby granted;

2. The costs of this application shall be paid from the estate of Rudolph Jacobus de Waal..

FOR THE APPLICANTS: ADV P VAN DER BERG

FOR THE RESPONDENT: ADV D H HINRICHSEN

__________________________

T CONRADIE

ACTING JUDGE OF THE HIGH COURT

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