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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

 

                                                                                         Case No: 15472/2020

 

In the matter between:                            

                           

CANDICE CORNELIUS                                                                                                                                             Applicant

 

and                      

 

LEON VAN RENSBURG N.O.                                                                                                                                   First Respondent

VAN RENSBURG & CO. ATTORNEYS                                                                                                                 Second Respondent

MASTER OF THE HIGH COURT,

CAPE TOWN                                                                                                                                                                 Third Respondent

 

JUDGMENT DELIVERED ON THIS 17^TH DAY OF FEBRUARY 2022

 

Introduction

 

1.             This is an application in terms of Rule 57(14) of the Uniform Rules for the release of Carmelita Cornelius (the Patient) from curatorship and for her to be declared capable of managing her own affairs. The applicant, Candice Cornelius, is an adult daughter of the Patient. The application is opposed by the first respondent, Leon Van Rensburg, who is cited in his official capacity as the curator bonis of the patient.

2.             The second respondent is a firm of attorneys of which Mr Van Rensburg is a director. The second respondent assisted the Patient to successfully claim compensation from the Road Accident Fund (RAF). The second respondent has filed a notice to abide. The third respondent is the Master of the High Court (the Master), Cape Town who issued the first respondent with the letters of curatorship and who, most importantly, and under whose control the curator bonis exercises his power. The third respondent also has filed a notice to abide.

 

FACTUAL BACKGROUND

The period before 2 August 2008

 

3.             Prior to 2 August 2008, life was pretty normal for the Patient. She was going about her normal life like all adult citizens of sound mind. Unfortunately, calamity struck on 2 August 2008 when a motor vehicle that she was travelling in as a passenger got involved in a collision. Pursuant to that accident the Patient sustained serious injuries and disfigurement. Prior to the accident, the Patient was an outgoing and sociable person.

 

The period after 2 August 2008 until 2017

 

4.             The injuries sustained by the Patient included mild brain and shoulder injuries, and serious facial injuries that left her face badly disfigured. The head injury affected the Patient’s short term memory and possibly caused a personality change. The Patient became socially withdrawn, depressed, and was easily agitated and upset. She needed assistance from her children with washing and dressing herself.

 

5.             The cumulative effect of all these factors made it impossible for the Patient to take up gainful employment. She suffered from a major depressive disorder and she was declared disabled and unable to manage her own affairs.

 

 

6.             The Patient avoided looking at herself in the mirror because she could not accept her facial disfigurement. She avoided going outdoors where she could be seen by other people. She had to endure persistent facial pain.

 

7.             Despite her medical and psychological condition, with the assistance, encouragement and support of her mother, her children and other associates, the Patient soldiered on with life. For instance, she continued raising her minor daughter Kesia Lee, she attended to her house chores albeit with extreme difficulty, and she paid her municipal bills at Shoprite.

 

8.             During this period, the Patient received a monthly disability grant of R1310.00 and a state child grant of R320.00 from the state. She managed to run her household with the meagre income for well over eight years. Whenever she encountered a shortfall, her adult daughters and mother would come to her aid and provided her with the necessary financial assistance.

 

 

9.             On 3 December 2014 the Patient was declared incapable of managing her affairs and curator ad litem was appointed to assist her with lodging a claim against the RAF.

 

10.          On 13 February 2017 and after lengthy litigation against the RAF, the Patient was awarded compensation in the amount of R2 280 850.00 (‘the award”) in respect of general damages and future loss of earnings occasioned by the injuries that she sustained in the motor vehicle accident.

 

 

The period from 13 February 2017 until now

 

11.          On 26 October 2017 Mr Leon Van Rensburg was appointed by the Master as curator bonis in respect of the Patient’s property.

 

12.          In his first report, the curator ad litem recommended that only the award part of the estate of the Patient should be placed under the control of the curator bonis. However, for reasons that are not quite apparent, the entire estate of the Patient was placed under curatorship. Despite this, the curator bonis still mainly concerned himself with the award part of the Patient’s estate. Prior to the award, the Patient owned and lived in a fully paid modest house in Lavender Hill, a suburb in Cape Town which is known for its high crime rate and poverty. Even after the Patient’s estate was placed in curatorship, the Patient continued with her life, albeit with extreme difficulty in the beginning. The court directed that Leon Jansen Van Rensburg be appointed as curator bonis to the property of the Patient. The appointment of curator bonis and the exercise of his powers are subject to the control of the Master.

 

13.          She continued receiving treatment at Groote Schuur Hospital. It seems the treatment eventually led to her complete recovery.

 

Reasons for placing the Patient’s estate under curatorship

 

14.          On 13 October 2017 the Patient was declared to be incapable of managing her own affairs. She was not declared to be of unsound mind.

 

15.          For the purpose of this judgment, the most significant reasons for placing the Patient under curatorship were the following: “the awarded amount is large and she has never managed a large amount of money; she is not sufficiently educated to understand the nuances of managing large sums of money; she has a borderline level of intelligence; she is pliable and will not be able to resist her family members and other close contacts taking advantage of her and squandering her newly found riches;  she expressed a desire that when she receives the RAF pay-out she would give her mother and her three daughters a sum of R50 000.00 each and donate a substantial amount to her church; she is surrounded by poor people who have minimal resources and who are not used to socialising with someone who owns a large estate; she suffers from depression; due to her injuries, she was unable to care for herself; she was forgetful and easily agitated since the accident; and due to her being perceived to be impulsive and financially illiterate, she lacks the skills to manage large sums of money.’ 

 

16.          Initially the Patient was vehemently opposed to the idea of being placed under curatorship because, according to her, she is compos mentis and is capable of managing her own affairs. However, seemingly after numerous attempts by her late mother to convince her, she relented and agreed to be placed under curatorship.

 

17.          In the application for placing the Patient’s property under curatorship, a report by a psychiatrist Dr Chris George dated 26 May 2017 was placed before the court. The said report states as follows:

 

“I interviewed Carmelita Cornelius again on 25 May 2017 and I observed how much more confident and positive she appeared in comparison with my previous assessment; her depressive symptoms have resolved and she seems to be in control of her life”

 

“Carmelita Cornelius appears to control her own finances frugally and according to her she pays her own municipality rates at Shoprite despite being only partially literate. However, if she were to have to manage a large sum of money she would have to seek advice from others and I doubt that she would be in a position to properly evaluate any advice that she is given. Whether Carmelita Cornelius needs a curator bonis or not, depends on her intellectual ability and degree of financial insight and not her psychiatric state per se. She is no longer depressed or in need of psychiatric treatment.  She is kind hearted and keen to help her children and grandchildren and also her own mother who is a pensioner and doubt that she would have the ability to resist the temptation to make life financially easier for them as indeed her own daughters are now doing for her”

 

In my view, Carmelita Cornelius can manage a small amount of money and a stable income but she would need competent advice to invest a large amount of money and I recommend the appointment of a curator” (My own emphasis).

 

18.          In a letter dated 23 May 2017 and addressed to the first respondent, Dr Cora De Villiers wrote the following: “I refer to your letter dated 22 May 2017 regarding the appointment of a curator bonis for Ms Cornelius. As you are aware, she has a low level of education, and is probably functionally illiterate. It is for these reasons that she would struggle with financial agreements and contracts. Because her illiteracy is not accident related, there is no point in conducting a second neuropsychological examination”.

 

 

GROUNDS FOR THIS APPLICATION:

 

19.          The stated reasons for seeking the release of the Patient from curatorship are as follows: she has fully recovered from  her injuries; she no longer suffers from depression; she is no longer a withdrawn person; she freely moves around to run her life even in public spaces; she is not bothered by her bodily scars; she is compos mentis and is fully capable of managing her own affairs; she was against the curatorship from the very beginning; after the accident, she capably brought up her youngest daughter; she has been driving her own motor vehicle on public roads for years without needing any assistance; she is managing a monthly budget of more than R15 000.00 without any assistance and does her own shopping; the curatorship is a violation of her constitutional rights including the rights to freedom of choice, equality and dignity; she is not a spendthrift; the curator bonis has been hostile and rude towards her; and the curatorship ad litem et bonis negatively affect the Patient’s life, status and dignity because she is treated like an imbecile.

 

20.          In support of her application for release from curatorship, the Patient relies on the report dated 27 July 2020 compiled by Dr Naz Daniels, a specialist psychiatrist which states inter alia as follows:

 

“If she were not subject to curatorship Ms Cornelius says she would take financial advice to invest her money because she acknowledges that she does not have knowledge or experience to manage a large sum of money. She has no immediate wish to access a large amount or spend more than what she would use for daily living. She appears to be a frugal woman and in her own words ‘ek mors nie geld nie” meaning “I do not waste money”. She would like to be free of the curatorship because she does not feel it is necessary.

 

Ms Cornelius does not currently suffer from any mental illness or intellectual impairment. In the previous report available to me, the reason for curatorship was given as ‘intellectual ability’ and ‘financial insight’. In my view these are not sufficient grounds for curatorship. While the decision may have been in the interest of her protection, if it is imposed unreasonable, then it is to the detriment of her own independence and is overly restrictive.

 

Consequent to my assessment of the patient, and the collateral information available to me, I would support the application to release Ms Cornelius from curatorship. I do not believe that she is sufficiently incapacitated to require curatorship. I do accept that her limited formal education and knowledge of finances could impact her ability to manage a large sum of money in her own best interest, and that there is a risk of making unwise decisions financially as a result. She could also be at risk of exploitation. To mitigate these risks in the least restrictive way, in the circumstances, it is advisable that Ms Cornelius engage the services of a reputable independent organisation who could support her and advise her with regard to managing her money. This would empower her with skills and promote independence, while ensuring that sound decisions are made”. My own emphasis.

 

21.          In response to the queries raised by the curator ad litem about the contents of Dr Daniels’ report, the latter wrote an email to the curator ad litem on 1 March 2021 and among others, stated the following:

 

“There is no evidence of any acute psychiatric illness that would impair her capacity. Given the fact that since Cora’s assessment her emotional state is significantly improved, and she is no longer depressed, I would suggest that a reassessment would be useful. Although her level of education and functional literacy are fixed factors, the assessment may still have been influenced by the above factors which are now significantly improved. Given the complexity of the case and the other 2 areas I will address below; I believe a reassessment would provide further information which could assist in making the best decision at present”.

 

What is not clear is whether the low level of literacy and education are sufficient grounds for a curatorship. The court requested the curator ad litem to investigate other alternative vehicles available from the Master of the High Court as an option for the patient’s estate. The former filed a detailed report wherein he advised as follow:

“The guardian fund will not be in the patient’s interests referring the court to Sections 90 and 90A at paragraphs 29 to 31 of the Administration of Estates Act 66 of 1965” (AoEA).

The curator ad litem indicated that even if the money is administered by the guardian fund, a curator bonis would still need to be appointed for the patient. A proper reading of Section 90 A (1) of the AoEA does not suggest that a beneficiary must be under some kind of guardianship before his or her money are administered by the guardian fund. Section 90 A of AoEA reads:

“the master may, where any person has a right as usufructuary or fiduciary to money which was paid into the guardian’s fund, pay such money to that person or, if that person is a minor or a person under curatorship, to his tutor or curator, as the case maybe, has given security to the satisfaction of the master for the refund of such money on the termination of his right or of his tutorship or curatorship, as the case maybe”.

 

In summary, Ms Cornelius is not suffering from any mental illness or impairment as a result of her accident that impairs her capacity to manage her finances”.

 

22.           Dr Chouler who examined the patient on 24 October 2019 writes as follows:

 

“this is to state that the above – named sustained injuries to (R) side of face in MVA 2/8/2008 as well as the left shoulder.

 

She has now fully recovered mentally, emotionally, but has residual:

 

1) asymmetry of her face (Right side)

 

2) reduced visual acuity (R) eye

 

3) reduced range of upward movement of left shoulder.

 

She has completed her rehabilitation.

 

She is driving independently, and is competent in all activities of daily living”.

 

 

23.          The first respondent questioned the contents of Dr Chouler’s letter dated 24 October 2019. In response to first respondent’s query, Dr Chouler wrote and provided the following explanation inter alia,

 

“5. The wording of the letter was based on a brief examination and the truthfulness of the client’s self-examination”.

 

Naturally, a brief examination is still an examination. In my view the fact that Dr Chouler’s letter was not written with the RAF claim in mind suggests that it is objective and was done in a neutral fashion.

 

 

Reasons for opposing the application  

 

24.          Some of the most salient reasons advanced by the first respondent for his opposition are as follows: the Patient easily gets emotional, since the appointment of the curator bonis four years ago, nothing has changed on the reasons for placing the Patient’s property under curatorship, the Patient’s levels of education and intelligence respectively are still low. The Patient has no experience in managing large sums of money and only capable of managing a small estate. While she was awaiting the pay out from RAF, the Patient expressed intention to donate large portions of the award to family members and charitable organisations and this proves that she will not be able to protect and retain the award. The Patient is still pliable because she is surrounded by family and community members that are not used to interacting with people who have large estates. In the absence of a curator bonis, the Patient will quickly deplete her estate leading her to a state of destitute. The curator has done a good job in strictly controlling the award and taking good care of the interests of the Patient. As proof that the Patient makes bad financial decisions, the first respondent gives the following examples: the Patient requested the following funds to be released from the capital amount of the award: R50 000.00 for the purpose of funding her 50^th birthday party and R50 000.00 for her mother’s funeral including a coffin costing R35 000.00. Even if the Patient were to try and rely on professional financial advice, she would still not be capable of understanding such advice because of the factors listed above particularly her low levels of education and intelligence. She would still not be able to distinguish between good and bad advice. She lacks the nuances required for managing a large estate. She drives an uninsured motor vehicle and is, therefore, irresponsible. She expressed a desire to give away approximately R450 000.00 of the capital sum. Even though the Patient is not suffering from any mental or physical disability, it is in the interests of justice to place her under curatorship in order to protect her large estate.

 

Common cause facts

 

25.          The Patient is and has always been compos mentis. Having only passed Standard 2 at school, her level of education is low. Coming from an impoverished and poor background, she has never had the opportunity to manage an estate even close to a R1 000 000.00. Prior to the pay out of the award she lived in the poverty stricken and crime infested township of Lavender Hill in Cape Town. After the pay-out she identified the need for her and her minor daughter to relocate from Lavender Hill to a better area. She identified a house that she wanted to buy and communicated her decisions to the first respondent. The house was subsequently acquired with part of the award capital. The Patient’s desire to move out of Lavender Hill was motivated by her realisation then that her minor daughter deserves to grow up in a better and safer neighbourhood than Lavender Hill. At some point, right in the beginning the Patient expressed her objection to curatorship. Even before her estate was placed under curatorship, the Patient was managing her household by herself and running her own house chores albeit with some difficulty in some instances.

 

Facts in dispute

 

26.          The main thrust of the dispute in this matter turns around whether a mentally sound adult person with low level of formal education, low intelligence level and without prior exposure to managing a large estate may be trusted to efficiently and effectively manage the award. In his report dated 11 March 2021 the curator ad litem states his understanding of the questions to be answered in this matter as follows:

 

(a)  “Should a person in the Patient’s position (socio economic / financial position / level of literacy / level of education / potential vulnerability) be involuntarily placed under curatorship”?

(b) “If the question above is answered in the affirmative, does the patient’s present circumstances meet the requirements of Rule 57 (13) of the Rules of this Court”.

(c) “Should the Patient be reassessed by medical professionals to give guidance on answering the two questions posed above”?

 

Applicable legal principles

 

27.          The pertinent provisions of Uniform rule 57 state as follows:

 

“(1) 40. tances meet the requirement                                                                      083 367 Any person desirous of making application to the court for an order declaring another person (hereinafter referred to as 'the patient') to be of unsound mind and as such incapable of managing his affairs, and appointing a curator to the person or property of such patient shall in the first instance apply to the court for the appointment of a curator ad litem to such patient”

 

(2) Such application shall be brought ex parte and shall set forth fully- (a) the grounds upon which the applicant claims locus standi to make such application; (b) the grounds upon which the court is alleged to have jurisdiction; (c) the patient's age and sex, full particulars of his means, and information as to his general state of physical health; (d) the relationship (if any) between the patient and the applicant, and the duration and intimacy of their association (if any); (e) the facts and circumstances relied on to show that the patient is of unsound mind and incapable of managing his affairs; (f) the name, occupation and address of the respective persons suggested for appointment by the court as curator ad litem, and subsequently as curator to the patient's person or property, and a statement that these persons have been approached and have intimated that, if appointed, they would be able and willing to act in these respective capacities.

(4) Upon hearing of the application referred to in sub rule (1), the court may appoint the person suggested or any other suitable person as curator ad litem, or may dismiss the application or make such further or other order thereon as to it may seem meet and in particular on cause shown, and by reason of urgency, special circumstances or otherwise, dispense with any of the requirements of this rule.

 

(14) Every person who has been declared by a court to be of unsound mind and incapable of managing his affairs, and to whose person or property a curator has been appointed, and who intends applying to court for a declaration that he is no longer of unsound mind and incapable of managing his affairs or for release from such curatorship, as the case may be, shall give 15 days' notice of such application to such curator and to the Master.

 

(17) Upon the hearing of any application referred to in subrules (14) and (16) hereof the court may declare the applicant as being no longer of unsound mind and as being capable of managing his affairs, order his release from such curatorship, or dismiss the application, or mero motu appoint a curator ad litem to make such inquiries as it considers desirable and to report to it, or call for such further evidence as it considers desirable and postpone the further hearing of the matter to permit of the production of such report, affidavit or evidence, as the case may be, or postpone the matter sine die and make such order as to costs or otherwise as to it may seem meet”. 

 

28.          In MEC for Education: KwaZulu-Natal v Pillay, [2007] ZACC 21; 2008 (1) SA 474 (CC) para 53, Langa CJ stated as follows: “The notion that ‘we are not islands unto ourselves’ is central to the understanding of the individual in African thought. It is often expressed in the phrase umuntu ngumntu ngabantu, which emphasises ‘community and the interdependence of the members of a community’ and that every individual is an extension of others. … Dignity and identity are inseparably linked as one’s sense of self-worth is defined by one’s identity”.

  

29.          In Modiba obo Ruca v Road Accident Fund (12610/2013; 7312/13) [2014] ZAGPPHC 1071 (27 January 2014), it was stated as follows: “Whenever there is a credible allegation that a patient is in need of a curator to his person or property (the onus to establish this circumstance rests upon the applicant), the provisions of Rule 57 cannot be ignored and may only be dispensed with under the circumstances envisaged in sub-rule (4) thereof: Judin v Wedgewood & Another 2003 (5) SA 472 (W) at para [13]; see further the comprehensive discussion by D van Zyl, J in Ex parte Futter, in re Walter v Road Accident Fund & Another [2012] ZAECPEHC 52 (17 August 2012) (not reported). There are instances in which a curator bonis may be appointed to a person of sound mind but unsound habits, (such as a prodigal), or to someone suffering from severe physical defects, without the prior appointment of a curator ad litem. In these matters the person concerned is as a rule able to understand the proceedings and can consent to the appointment of a curator bonis: Delius v Delius 1960 (1) SA 270 (N), Ex parte Horwood 1960 (4) SA 757 (T). The Rule envisages that a Master’s report should ordinarily be obtained in these instances as well.)[1] my emphasis.

 

The court went on to say “Other than in these exceptional cases and unless circumstances are proven to exist which entitle the court in terms of sub-rule (4) to dispense with some requirements of Rule 57, the failure to observe the Rule renders an application defective to the extent that such application cannot and should not be entertained at all.  Before giving directives in respect of further steps that need to be taken in this application some comments upon the implications of the practice that has apparently taken root in recent times are called for. They are so grave and potentially or actually detrimental to the patients concerned that it is essential to restate the law and practice in some detail to ensure that the face of the courts is set firmly against the disregard of the principles and practice that are designed to protect the most vulnerable of litigants”.[2]

 

30.          I must emphasise that The court acknowledged in Modiba obo Ruca v Road Accident Fund at paragraph 37 that the “appointment of a curator to a patient represents a very serious invasion of the patient’s liberty, dignity and control of his destiny”.

 

31.          The Patient is a compos mentis adult. In Advocate R Ferguson obo Ncebakazi Nteyi v Road Accident Fund (1073/2012) [2014] ZANWHC 16 (7 July 2014 (unreported) the court stated that “the court will not appoint a curator where a person is not of unsound mind and that person opposes the appointment of a curator. She may however consent to an appointment of a curator if he or she is compromised but not incompetent”.

 

32.          The natural converse of the situation stated in Advocate R Ferguson obo Ncebakazi Nteyi v Road Accident Fund above is that once a person of sound mind who previously consented to the appointment of a curator withdraws such consent, the curatorship may not be forced against the will of such a person.

 

The Preliminary Point

 

33.          Before I proceed to the analysis, it is necessary that I deal with the following preliminary point. The first respondent contends that the applicant has no locus standi to bring an application for the release of the Patient from curatorship. The first respondent further contends that the Patient herself should have brought this application if she was truly capable of running her own affairs as claimed.

34.          Implied in the first respondent’s contention is a suggestion that the fact that the Patient is not bringing this application personally means that she is not capable of managing her own affairs. This submission misses the point and is, therefore, rejected. It does not follow naturally that the Patient is incapable of managing her own affairs merely because she is not bringing this application herself.

 

35.          The applicant is an adult daughter of the Patient. She is one of the adult daughters of the Patient who took care of the Patient while the latter was unable to sufficiently take care of herself. She has always been involved in the advancement of the welfare of the Patient since the accident. The applicant clearly has the best interests of the Patient at heart. In my view, the applicant has the necessary locus standi to bring this application. It follows therefore that the second respondent’s preliminary point must fail.

 

 

ANALYSIS

 

36.          Dr Daniels supports the release of the Patient from curatorship.

In her email to the curator ad litem, Dr Daniels stands by the contents of her report and further suggests that a further psychiatric test be conducted on the patient ostensibly for the purpose of determining the Patient’s levels of intelligence and sophistication. It is clear that the further test suggested by Dr Daniels is not for testing the Patient’s mental capacity. It is unpalatable to require the Patient to undergo a psychiatric test purely for the purpose of testing her sophistication level.

 

37.          The fact that the Patient can stand up and make an informed decision that she does not want the curatorship must be accorded some significance and respect. She is aware of all that has been said in this matter about her not being able to manage her affairs. She insists that she has a right to make informed decisions. Is it fair to disregard her wishes and continue to subject the Patient to the standards and expectations of people who are better educated or have higher levels of intelligence than herself? Clearly, the Patient is by now well informed of the benefits of curatorship. Even armed with this information, she still chooses not to accept the said benefits. To make such a choice is her right. She is an adult. She is of a sound mind. There is no evidence that she is unable to manage a large estate. Like all mentally sound adults, she wants to take the risk of taking full control of her estate. She is entitled to make such a decision.

 

38.          The litigation costs in this very application have the potential to wipe out the award. Should people who are less educated and have lower levels of intelligence but capable of managing their affairs be castigated to the realm of disability even though it is evident that they have wisdom to run their households efficiently?  It should be remembered that once the court made the award against RAF in favour of the Patient, the award became Patient’s money. The real question is to what extent if any should the patient’s freedom to choose how she spends her money be limited especially in the absence of previous proof of extravagance?

 

39.          In discharging his or her duties, a curator bonis must avoid approaching the matter from a pure commercial basis at the expense of established cultural, family and community systems of reliable interdependence among people. In South Africa the vast majority of poor and uneducated people are socialised in a culture that places a high premium on community interdependence than on high levels of selfish individualism.

 

40.          Is it fair to expect a person who grew up and was socialised in these systems to change her social orientation and outlook and suddenly reject the family and community interdependence and inter-reliance? Is it fair to expect this kind of a person to suddenly embrace the Western social outlook of ruthless individualism once their financial fortunes change overnight? To have this kind of expectation would be tantamount to social dominance and forcing of Western notions and ways down the proverbial throats of those who are socialised or choose to live differently. It would be tantamount to cultural imperialism which must be denounced at all cost.

 

 

41.          It is this interdependence among the people that carried the Patient financially and materially and made it possible for her to pull through since the day of her unfortunate accident. It cannot be culturally equitable that the community interdependence system is good enough for financially marginalised and poor individuals but bad for the same people once their financial fortunes substantially improve. To continue subjecting the Patient to curatorship in this matter would be tantamount to endorsing the unfortunate and unfounded belief that only those who are sufficiently schooled in the Western ways of doing things have an inherent right and can be trusted to properly manage large estates. In our country Africa, where people have a culture of living communally, it would not be fair to condone this kind of attitude. A cultural misplacement should neither be allowed nor promoted.

 

42.          The courts must be alive and adept enough to put a halt on pure commercial tendencies from undermining the working and established practices of people who do not conform to the popular Western expectations.

 

43.          In Swinburne v Newbee Investments 2010 (5) 296 (KZD) 302G the court held that “the general position in our law is that whatever moral duty any person may think or believe he has, there is no legal duty on anyone to prevent harm or look after the affairs of another”.

 

44.          The question before this court is not whether the Patient was placed under curatorship justly or unjustly. The question is whether the Patient has made out a case for her to be discharged from curatorship?

 

45.          The first and third respondents had more than four years of working with the Patient and guiding her on how she may manage her newly found riches in a prudent fashion. Unfortunately, it is clear that the first and third respondents failed to be creative and to make good use of this opportunity to practically guide the Patient who is compos mentis. Instead of castigating her as someone who will never be able to understand the management of her newly found riches according to the Western paradigm, they should have sought other less foreign ways of addressing their concerns about the Patient’s perceived inability to manage a large estate.

 

46.           It must be remembered that the so-called large estate refers to the R2.2million or whatever amount still remains of it. The first and third respondents (the latter, by acquiescing to the management approaches adopted by the former) seem to hold a view with regard to the management of a large estate that it is either the first respondent’s way or the high way. In this case, it is evident that, performing his official duty towards the Patient under the supervision of the third respondent, the first respondent outrightly rejected the ways of doing things that the Patient knows and is familiar with and opted to force the Patient to learn Western ways without any attempt to find a middle ground. The first respondent’s firm belief that the ways with which the Patient is familiar regarding the management of her estate are not suitable for managing a large estate is unfounded. The first respondent’s uncompromising management approach in complete disregard of the social context, created a conundrum in that the first respondent would not try to get to the Patient’s level in order to understand her ways and the Patient was presumed not to have what it takes to understand the ways preferred by the first respondent.

 

47.          In S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 at 481 paragraph 224, Langa J as he then was, described the constitutional concept of Ubuntu as follows: “The concept is of some relevance to the values we need to uphold. It is a culture which places some emphasis on community and on the interdependence of the members of a community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such person happens to be part of”.

 

48.          The constitutional principle of ubuntu would have provided the first and third respondents with a good possible solution to this conundrum. If the first and second respondents had genuine interests of the Patient at the proverbial heart, they would have taken a number of steps that are aimed at bringing her to a level that is acceptable to them for her to take over the management of her full estate. They could have arranged for financial education to be presented to her and members of her immediate family in a manner and language that the Patient and her family can understand. That would have empowered the Patient instead of wishing she was a different person and wishing she had a different family. That is Ubuntu spirit. The latter would have forced the first and third respondents to capacitate the Patient if there ever was a need for her to be capacitated and equipped with the basic skills required for the management of a large estate.

 

49.          The manner the curator bonis and the third respondent dealt with the patient gives the wrong impression that they were faced with two extremes of strictly forcing the Patient’s award to be administered according to established conventional ways or letting the Patient destroy the award (my emphasis). Surely, there must be a middle way. It cannot be a situation of all or nothing. With some earnest effort, some middle ground could have been found within the familiar circumstances of the Patient: She is a community member. She is an active church member. She has a cousin who is a full time pastor. She has a close caring family that took good care of her during her time of need.

 

50.          Besides, the Patient indicated her wishes to give her family an offering of gratitude from the award capital, there is no evidence that her family was cunning over her newly found riches to the extent that the curator needed to intervene or be concerned. 

  

51.          The following excerpt from the first report of the curator ad litem also shows that the curatorship was not meant to last perpetually and that it was envisaged that the Patient would be assisted to bring her up to speed with the nuances of managing a large sum of money.  “I am of the view that the appointment of a curator bonis for this portion of the Patient’s estate may not be a permanent feature in the Patient’s life and may only last for a few years. This time may enable the Patient to become financially literate and familiar with the many and various nuances which will of necessity come about with such a dramatic change to the financial circumstances in the Patient’s life with the assistance of the curator bonis”. My own emphasis.

 

52.          The requirements for a Patient to be declared incapable of managing her own affairs are spelt out clearly in Uniform Rule 57(14) and that is that the Patient must suffer from disability whether mental or physical. The Patient in this case does not suffer from disability. Further, the Patient has withdrawn her consent to remain under curatorship. A person who is not suffering from any disability may be placed under curatorship only with her consent. It must follow that if such a person withdraws the consent, the curatorship cannot continue to exist

 

53.          It is not proven that, due to her levels of formal education and intelligence, the Patient will not be able to manage a large estate in her own way. It is a pure conjecture based on a certain paradigm foreign to the Patient that she cannot manage a large estate. To keep her under curatorship would be a grave affront not only to her dignity, freedom of choice and right to equality but also to all the people who live by paradigms that she subscribes to. For the first and third respondents a coffin costing R35 000.00 is unjustifiable but for the Patient a coffin worth the same amount is the least she could give as the last token of appreciation for her beloved mother. The Patient has a right to make that choice. It is not in dispute that the patient is frugal. It cannot be in the interests of justice that a person in respect of whom there is no reasonable doubt that she can manage her own affairs be placed under curatorship. The first respondent’s contention that it is in the interests of justice to keep the Patient under curatorship is unconvincing.   

 

54.          The Patient has filed a string of letters which she wrote to both the first and third respondents expressing her frustration with the curatorship. Judging by the contents of these letters, it seems that the Patient has become financially wiser since she was placed under curatorship.

 

55.          I am not persuaded by the first respondent’s contention that nothing has changed in the circumstances of the Patient since she was placed under curatorship. Notably, some of the significant changes that have occurred since the Patient was placed under curatorship are the following: She became more matured age-wise and in terms of her life experience in general. She has established a track record of efficiently managing her finances. She owns two paid up houses. She appreciates the value of living a better quality of life. She has a track record of raising her daughter to adulthood. There is no doubt that raising a child demands more than managing a large sum of money partly because parenthood cannot be outsourced and it is laden with emotions and an ever changing subject matter.  

 

56.          From a conspectus of all the medical evidence in this matter, it is abundantly clear that any further medical assessment of the Patient will not be of any assistance in this application. The levels of formal education and intelligence of the Patient are fixed and are not a consequence of a road accident. The alleged two challenges facing the Patient are more of a social nature than medical. Having consider all the evidential material placed before court, I am of the opinion that the applicant’s application must succeeds

 

COSTS

 

57.          It is trite law that an award of costs is in the discretion of the court and that such discretion must be exercised judicially upon consideration of the facts of a case. The first respondent argued for costs de bonis propriis on an attorney and client scale against the attorneys for the applicant. This submission is based on the fact that first respondents’ attorney advised applicant’s attorney not to proceed with the application. The reason for this advice was that the first respondent’s attorney believed that the applicant has no locu standi and that the Patient has no capacity to conclude a contingency fee agreement with applicant’s attorney. The applicant’s attorney argued that the applicant has the necessary locu standi to act in the best interest of the Patient, her mother in this instant. It is apparent from the letters written by the Patient which form part of record that she did not want to be under curatorship. I am satisfied that by bringing this application as a daughter of the patient, the applicant is protecting her mother’s interests. For all the reasons stated above, it is my view that the first respondent should not have opposed this application if it genuinely wanted to avoid litigation. It is my considered view that it would not be in the interests of justice to punish the curator with costs for incorrectly believing that he was protecting the interests of the Patient.

 

 

58.          In the circumstances, I make the following Order:

 

a.    It is declared that Carmelita Cornelius is not of unsound mind and is (under case numbers WCHC 9385/2019 and WCHC 7579/2019) capable of managing her affairs.

 

b.    Carmelita Cornelius is hereby released from curatorship.

 

 

c.     The Master of the High Court Cape Town is authorised and directed to terminate and retract the Letters of Curatorship in favour of Leon Van Rensburg on behalf of Carmelita Cornelius with immediate effect from the date of judgment.

 

d.    The funds held in trust by Van Rensburg & Co on behalf of Carmelita Cornelius be transferred to a bank account held and operated by Carmelita Cornelius and not to an account operated by attorneys. The said transfer must be done within 14 (fourteen) days from the date of judgment.  

 

e.    Each party to pay its own costs.

 

f.      The release of the curator bonis will not be finalised until final accounts are presented within 14 (fourteen) days from the date of this judgment to and approved by the Master of the High Court pertaining to the administration of the patient’s estate.

 

 

 

 

 

 

                                   

                                    NYATI, AJ

            ACTING JUDGE OF THE HIGH COURT

 

Date of hearing: 10 June 2021

Counsel for Applicants:               Adv D M Nyathi

Instructing Attorneys:                 Roscoe Howard Korkie Attorneys

 

Counsel for Respondent:             Adv P Corbett SC

Instructing Attorneys:                  Van Rensburg & Co

                                               

 

 

 

 

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