South Africa: Court Was Wrong to Release Woman From Curatorship, Full Bench Rules

11 August 2023
GroundUp (Cape Town)
By Tania Broughton

The Western Cape High Court has overturned an order by Judge Nolundi Nyati releasing a woman from the control of a curator bonis

  • A full bench of the Western Cape High Court has ruled that a woman who received R2.2-million in a Road Accident Fund payout must remain under curatorship.
  • Previously the High Court ruled that the woman should have control of her money and not be subjected to "Western notions" of how it should be spent.
  • This criticism of the curator bonis was unfounded and there was no evidence that the woman could manage her own affairs, the three judges said.

A full bench of the Western Cape High Court has overturned a previous order releasing a woman, who had received a R2.2-million payout from the Road Accident Fund (RAF), from the control of a curator bonis who was managing her funds.

While Cape High Court Acting Judge Nolundi Nyati found that the woman was capable of handling her own financial affairs and criticised the curator for "not understanding the social context of how she wanted to spend her money", Judge Kate Savage (with Judges Andre Le Grange and Judy Cloete concurring), has said this was wrong.

The appeal was launched by attorney Leon Jansen Van Rensburg, who was appointed to handle the woman's affairs after she received the RAF payout in 2017, following the findings of a psychiatrist that she would need help in managing the money and would probably not be able to resist giving it away to family members.

The application before Judge Nyati was brought by the woman's daughter, who said her mother believed that Van Rensburg treated her like an imbecile, because she was uneducated.

She said he had complained after her mother wanted to give money to her adult daughters and her church, and had wanted to spend money for a funeral for her own mother (the daughter's grandmother).

Van Rensburg, in opposing the application, said that she was "still pliable because she was surrounded by family and community members not used to interacting with people who have large estates". He predicted that she would quickly deplete her estate and become destitute.

But Judge Nyati, in granting the application, said Van Rensburg was imposing "Western notions" on the woman, and to keep her under curatorship was a grave affront to her dignity, freedom of choice, and right to equality. Nyati said that while R35,000 for a coffin might be unjustified in the eyes of Van Rensburg, "it was the least she could give as the last token of appreciation for her beloved mother".

In the appeal ruling, Judge Savage said the woman had been upset with Van Rensburg because he had refused to give her the money for the funeral.

Van Rensburg had said there was "clear evidence" that she had been pressured by family members to incur large expenses such as R50,000 towards the funeral.

He said she remained a vulnerable person.

He believed she should be assessed by a neuropsychologist and remain under curatorship in the meantime.

Judge Savage said Judge Nyati had found that the women's daughter had legal standing (locus standi) to bring the application. But this was wrong, because there had been no inquiry into whether the woman was able to litigate on her own behalf.

But even if the daughter had locus standi, Judge Nyati had not carefully considered the evidence, and the finding that the woman could now manage her affairs was "simply not borne out by the material before the court".

Experts had agreed that a further neuropsychological assessment was required.

Judge Nyati's statement about "Western ways of doing things" was unfounded, Judge Savage said.

"There are compelling reasons why appropriate protections are put in place by courts to protect and preserve both the dignity and interests of vulnerable people from all walks of life, in relation to their personal and proprietary affairs, not only in this country, but in jurisdictions around the world."

In upholding Van Rensburg's appeal, Judge Savage said it was, however, apparent that the relationship between him and the woman had become strained.

She agreed with his proposal that he be removed as curator bonis and replaced with someone else.

She ordered that the costs of the application be paid for by the woman's estate.

Read the original article on GroundUp.

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