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Understanding Curatorship in South African Law

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Understanding Curatorship in South African Law

Understanding Curatorship in South African Law

Understanding Curatorship in South African Law

Persons with mental illness, diminished mental capacity, minors and prodigals are all incapable of managing their own affairs, though their affairs should still be protected.

In such situations, an application can be made to have a Curator appointed to protect those interests.

What is Curatorship?

Definition and Purpose 

A Curator as defined in the Administration of Estates Act, is someone who acts under letters of Curatorship, granted by a Master.

Curatorship is when a Curator is assigned to take care of a person, or their affairs, when they cannot take care of them, themselves.

This can include the mentally ill, those with diminished mental capacity, minors and prodigals.

There is no set name for people placed under Curatorship, with client or patient commonly being used depending on the specific case at hand.

For ease of writing, all vulnerable persons to be placed under Curatorship, in this article, shall be referred to as principals.

The Legal Basis for Curatorship in South Africa 

The idea behind Curatorship, is to protect the interests of principals, since they cannot do so themselves. To manage a principal’s matters without authority can in fact qualify as fraud.

Rule 57 of the Uniform Rules of Court allows for a third party to make the application for someone to be placed under Curatorship.

Types of Curators:

Curator Ad Litem 

Role and Responsibilities 

The Curator ad litem takes care of the principal’s legal transactions, litigates for them, and in essence takes care of their legal standing.

They additionally may recommend a Curator bonis or personae, and must draft a report to the Master of the High Court

Appointment Process 

A Curator ad litem is appointed through the usual procedure determined by the Uniform Rules of Court, nominated by the applicant, and appointed by the court. This Curator is normally a legal practitioner.

Curator Bonis 

Functions and Limitations 

The functions of a Curator bonis include managing their principal’s maintenance or support, acquiring immovable property on their behalf, managing any business affairs they may have and administering their estates or assets, according to the Department of Justice and Constitutional Development. These functions are limited to those granted by the court.

Reporting and Accountability

 The Curator bonis must make regular reports and updates on the estate they manage, to the Master of the High Court, including its assets, income and expenditure.

These will be verified by the Master of the High Court, ensuring that the estate is being handled in the best interests of the principal.

Curator Personae 

Duties and Significance 

The Curator personae is appointed by the court, to take care of the principal and their physical well-being, such as consenting to medical treatment.

Typical Scenarios for Appointment 

Only the court can appoint the Curator personae, and this intensely personal relationship, and the intimate types of decisions mean that normally, someone like a spouse or other family member, will be appointed to this position, if deemed suitable.

The Appointment Process

Initiating a Curatorship Application

Rule 57 of the Uniform Rules of Court determines how Curators are appointed, requiring that an ex parte application must be made to have a principal declared incapable of managing their own affairs.

Required Documentation and Medical Reports

Attached to the application, there must be affidavits from two appropriate medical experts and at least one other person who knows the principal concerned in the application well, attesting that said principal should be placed under Curatorship, as well as suggesting a Curator.

While it is best if the medical experts are unrelated to the principal, and have no interest in the matter, the other person supplying an affidavit must set out in that affidavit, how they are related and the details of any interest they may have in the matter.

The Role of the High Court and the Master of the High Court

 The High Court and the Master of the High Court have substantial roles in Curatorship.

The application for Curatorship is made before the High Court, and it is in this court that the Curator is appointed, be it the person nominated, or another person. Similarly, the court may also elect to dismiss the application, or make any other order they deem fit.

The Master of the High Court will make a report on the person nominated to be Curator, making recommendations on their powers, the furnishing of security and rendering of accounts, should they be appointed as a Curator.

According to Pienaar v Pienaar’s Curator, the court will look at each case’s individual facts in determining whether a principal can manage their own affairs or if a Curator is to be appointed.

Once a Curator ad litem is appointed, they must make a report to the court on the matter and principal, including whether they think that a Curator bonis or personae is required.

The Curators can then be appointed if the court deems such necessary.

Legal Considerations and Implications regarding Curatorship 

Mental Incapacity and Legal Representation 

Where a person is not mentally capable, of understanding the nature, purpose and consequences of a legal transaction, then the legal transaction is invalid, with no consequences attached. This is done to protect the mentally incapable person.

The reason for mental incapacity, or diminished capacity, can come from any number of issues, including mental illness, brain trauma and disease.

Since these affected people (principals) may still require that legal transactions be done in order to live, these legal transactions need to be done on their behalf, with the Curator ad litem.

The application for such a Curator is done by someone other than the principal, so as to have legal effect. Once the Curator is appointed, they act to perform legal transactions on behalf of the principal, in their best interests.

Distinction between Power of Attorney and Curatorship 

With a Power of Attorney, the person granted power can have no more power than the principal, who holds authority, and must provide permission for any action to happen.

The Power of Attorney further lapses when one is no longer mentally capable of making decisions and managing their affairs, as seen in the case of Tucker’s Fresh Meat Supply (Pty) Ltd v Echakowitz 1958 (1) SA 505 (A).

Curators, however, do not need to seek permission from their principal, and may act as they deem fit.

Additionally, while a Curator must be appointed after an application to the High Court, a Power of Attorney is a document drafted without the input of the court.

Legal Rights of the Person Under Curatorship

The principal has the same rights as they would ordinarily have, were they not under Curatorship, and of any other person capable of managing their own affairs, albeit limited as the Curator can act on behalf of their person, without seeking their permission.

It should be remembered that where a principal is mentally ill, has diminished mental capacity, or is a minor or prodigal, there are limitations on the law, and how they may be treated in their respective capacities.

These remain present, although the Curator does allow for some of these limitations to be passed, as with a Curator ad litem being capable of litigating on behalf of a mentally ill person.

The Role of the Curator 

Financial Management and Asset Protection 

The Curator bonis has the duty to protect and take care of the estate of the principal under Curatorship. This means managing the assets, income and expenditure of the estate, even acquiring assets for the estate’s benefit and continuing, or discontinuing the business attached to the estate.

Personal Care and Welfare Decisions 

As stated above, the personal care and welfare of a principal can be decided by a Curator personae, and as in the case of Ex parte Hill 1970 (3) SA 411 (C), or Gray v Armstrong 1961 (4) SA 107 (C), though it must be mentioned that the court is reluctant to appoint such a Curator, due to the personal nature of the role.

Reporting and Oversight by the Master of the High Court

Curators have a duty to annually report and account to the Master of the High Court, on legal matters, financial matters or the personal care of the principal, depending on the respective Curator.

The Master of the High Court will then verify the facts of the reports, and ensure that the principal’s matters are being managed effectively.

Challenges and Ethical Considerations 

Ensuring the Best Interests of the Patient 

Curators are bound to act in the best interests of their principals.

Curators ad litem, and Curators bonis are often legal practitioners who are bound to act in the best interests of their client, or in this case principal, as required by the Code of Conduct made under the Legal Practice Act.

Curators personae on the other hand, are often a family member or similarly close to the principal. In this manner, it is made more likely that Curators will act in the best interest of their principal.

With regards to minors, the Children’s Act goes further, with Section 9 ensuring that the best interests of the child being paramount. In this sense, all Curators are forced to look to the child’s best interest.

Another check on the Curators, for those less inclined to trust in their Curators, is that they must make updates and reports to the Master of the High Court.

These are then verified, ensuring that the Curator is in fact working in the best interests of their principal. In layman’s terms, think of it as an audit to ensure the principal is protected.

Balancing Autonomy and Protection 

Given that Curators have the ability to act on the principal’s behalf without their permission, to protect their interests, it is a concern held by some, that they in fact remove the ability for the principal to act and make decisions on their own.

As such, the court must first balance the autonomy against the need for Curatorship in the application.

Should a Curator be appointed, they themselves must make constant discourse with their principal, and only interfere with the principal’s decisions if they consider a decision to be a detrimental one, according to Rice and Hendricks.

It is worth remembering that Sections 9, 10 and 12 of the Constitution of the Republic of South Africa, 1996, grant the rights to equality, dignity and freedom as well, suggesting that the principal is always entitled to some form of autonomy.

That been said, the Curator is present to protect the principal’s interests, and it would be best to heed their advice, before they prevent a detrimental decision.

Potential Conflicts of Interest 

According to Rule 57, those medical experts writing affidavits must as far as practical, be unrelated to the principal considered to be placed under Curatorship and have no interest in the matter.

The same Rule sees the person applying to the High Court for the Curatorship, having to disclose their relationship, and any personal interest they have in the matter, in their affidavit.

In this manner, conflict of interest is already somewhat mitigated.

The court will also see the report made on the possible Curator and may deny them appointment, should they discern some potential conflict of interest, such as relation.

Case Studies and Real-Life Examples

Illustrations of Curatorship in Action 

S v S (Centre for Child Law as Amicus Curiae) concerned the sentencing of a mother, who had been convicted of committing crimes including forgery and fraud.

The mother in this matter alleged that the courts including the Supreme Court of Appeal had failed to prove that she was a primary care-giver and that she did not act properly in the best interests of her children.

She then applied to the Constitutional Court for leave to appeal. The Centre for Child Law was admitted as amicus curiae who then requested that Curator ad litem be appointed to investigate what would be in the best interests of the children.

The Constitutional Court then appointed Curator ad litem to report on how the children would be affected if the mother was imprisoned, and if any measures needed to be taken if the mother was indeed imprisoned.

A Curator bonis, can also be appointed in matters where the principal is of sound mind, but is incapable of managing their estate (a prodigal).

In the case of Van Rensburg N.O. v Cornelius, the court had appointed Curator ad litem and on their recommendation a Curator bonis, though it was noted that the Curatorship could be temporary, as the principal was not of unsound mind, and she could become financially literate in the future.

An application to have the Curatorship removed was eventually done by the principal’s daughter and the Curatorship papers for the Curator bonis retracted.

Although the Curator bonis appealed the decision, saying that the principal did not show sufficient understanding and no change in circumstances warranted the removal of Curatorship.

Fearing that the principal could be exploited by those around her, and considering further neuropsychological tests, the expert medical practitioner considered that the Curatorship should not have been terminated.

The appeal succeeded and the Curator bonis reinstated, though the court mentioned that the principal was entitled to the neuropsychological test, which could support the termination of Curatorship, and she could then apply for as such herself, in the future.

Lessons Learned and Best Practices

From the above, it can generally be considered that any Curator should act in the best interests of their principal and the court, and in line with the powers and restrictions placed upon them by the court.

The Curators should also try to regularly interact with their principal, and ensure that they do not remove the autonomy of the principal without good cause.

Seeking Legal Assistance: When to Consult a Legal Professional

A legal professional should be contacted in order to make an application to the High Court for Curatorship, as well as seeking a suitable legal professional to nominate as Curator ad litem when necessary.

A legal professional should also be sought when you yourself are under Curatorship, and wish to have the Curatorship removed. This is done through another application to the High Court in terms of Rule 57(14).

Finding Qualified Attorneys in Curatorship Matters 

Finding Attorneys qualified in Curatorship can be done through simply searching for attorneys who specialise as Curators. Reviews and referrals from other legal practitioners can be of great assistance in this matter.

Recap of Key Points 

There are three types of Curators, dealing with the financial, legal and personal interests of a principal as necessary.

These Curators must be appointed by the High Court, and report to the Master of the High Court once appointed, acting in the best interests of their principal.

The Curator must regularly report to the Master of the High Court on the principal and their estate, respectively.

The Importance of Curatorship in South African Society

Curatorship provides a measure of protection to the interests of those incapable of protecting themselves. As such, it cannot be emphasised how important a Curator can be, to ensure that the best interests of the incapable person are met and protected.

References and case law  

  • Rule 57 of the Uniform Rules of Court, Created under the Supreme Court Act 59 of 1959
  • Legal Practice Council Code of Conduct, created under Section 97(1)(b) of the Legal Practice Act 28 of 2014
  • Tucker’s Fresh Meat Supply (Pty) Ltd v Echakowitz 1958 (1) SA 505 (A).
  • S v S (Centre for Child Law as Amicus Curiae) 2011 7 BCLR 740 (CC)
  • Ex parte Hill 1970 (3) SA 411 (C).
  • Gray v Armstrong 1961 (4) SA 107 (C).
  • S v M (Centre for Child Law as Amicus Curiae) 2008 3 SA 232 (CC)
  • Pienaar v Pienaar’s Curator 1933 OPD 171 op 174.
  • Van Rensburg N.O. v Cornelius (A31/2023) [2023] ZAWCHC 190 (7 August 2023)
  • Robinson, JA, Horsten, DA, Human, S and Mould, KL (2015) “Introduction to the South African Law of Persons” 3rd Printing Things CC: Potchefstroom.
  • F du Bois (ed) Wille’s Principles of South African Law9th ed (Cape Town: Juta)
  • Rice, KL and Hendricks, ML “Curatorship applications: role of neuropsychology” 2022 SAMJ (112) at 209-213.

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