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Our office was recently involved in a trial in the North Gauteng High Court (Pretoria). For the sake of confidentiality, we refer to the parties as Peter and David. Peter is David’s uncle. Peter is the patient’s son. The patient is mute-deaf and was in a motor vehicle collision during the 1990s which lead to monthly Road Accident Fund payments to her estate to cover her medical costs and some of her personal expenses.

The patient was placed under curatorship as a result of her divorce many years ago. A person was to assist the patient in her divorce and her sister (David’s sister) was appointed as curator bonis for this purpose. After the divorce, the curator bonis gave David a power of attorney to do all administration on behalf of the patient. Such administration included claims at the Road Accident Fund and then paying such claims to the said service providers such as doctors, the pharmacy and full-time caregivers. Groceries had to be bought and the patient’s household had to be run on a financial basis, which David did from day to day.

The initial curator bonis was replaced with her son, Peter, some years later. Peter also gave his uncle David a power of attorney to continue to administer all financial affairs on behalf of his mother as he always had been doing. David was doing the administration for many years and Peter felt he could carry on doing the said administration. Therefore the de facto curator bonis has always been David and not Peter or the previous curator (the patient’s sister).

The legal question in the matter was in short as follows:
Can a curator bonis be removed for abdicating his powers (was abdication present) and can a family feud be said to have affected administration of the patient’s estate negatively to the extent that it warrants the curator bonis’ removal?

For the sake of context:
A curator bonis differs from a curator ad litem and a curator ad persona. In short, a curator bonis deals with the finances of the patient, the curator ad litem acts legally for the person and a curator ad persona looks after the emotional affairs of the patient. The Administration of Estates Act defines the said terms in detail.

In this matter, the curator bonis (Peter) sued his uncle (David) for misappropriation of the patient’s funds whilst he was handling such funds with a power of attorney from Peter. In reaction to the said claim for misappropriated funds, David put in a counterclaim to remove Peter as curator bonis for two main reasons:

  1. Peter abdicated his powers by giving David a power of attorney and abdication is unlawful according to the Administration of Estates Act;
  2. The family feud has caused Peter to negatively administer the patient’s affairs based on the following grounds:
  • Peter lived with his mother, the patient, for four months thereby obtaining personal benefit from his mother’s household;
  • Peter lodged the accounts required in terms of the said Act incorrectly with the Master’s office and the errors were substantial;
  • Peter abdicated his powers contrary to section 52 of the Act;
  • Peter does not allow the rest of the patient’s family to have contact with her;
  • Peter removed files from the home of the patient in order to base his claim against David on misappropriation of funds whilst the said files contained the evidence of how such funds were applied during the time David administered the affairs.

The matter of Bramwell & Lazar v Naub (1978) addresses abdication in context of an executor. David’s legal team applied this concept to the issue of a curator bonis by arguing that the above five instances indicate that the family feud has rendered Peter unable to correctly administer the patient’s affairs.

The obvious concern with the said argument is that both the Master’s report and the curator ad litem’s report (the curator ad litem having been appointed to act on behalf of the patient in the said litigation) considered the power of attorney which gave Peter’s powers to David and still found such power of attorney to indicate delegation rather than abdication.

David’s legal team lead evidence at trial, hoping such evidence would indicate abdication rather than delegation. David administered the affairs for nine years on behalf of the previous curator bonis and for another two years on behalf of the current curator bonis, namely Peter. This is clearly abdication and clearly the Master’s report and curator ad litem’s report did not take the instances and time periods into account.

The relevance of abdication, David’s legal team argued, is as set out in the matter of Volkwyn (par. 384 of the printed judgment):
“That it prohibits abdication, not delegation. An executor, as I see the matter, may not someone to act instead of himself, so as to relieve himself of responsibility; but he may not appoint someone, for whose acts he will be responsible, to act on his behalf, and that is what, in my judgment, the second plaintiff did in the present case”.

Abdication is in contravention of section 52 of the Act and therefore unlawful, David’s legal team argued.

In the same judgment above, however, Peter’s legal team showed the court to the following:
“It is common practice, and a convenient one, for an executor to authorise his co-executor or some other person to carry out some or all of his functions on his behalf. It is not lightly to be assumed that such conduct is invalidated by section 52 of the Administration of Estates Act, and in my view such an assumption would be unjustified.”

Therefore, even if abdication was present, this would not necessarily be regarded as unlawful or reason to remove the curator bonis. The court had a discretion in this regard.

Evidence was also lead to the extent that the above five instances illustrated that the family feud affected Peter’s ability to administer the patient’s affairs negatively. Three cases were mentioned in this regard: Volkwyn NO v Clarke (1946) (locus classicus), Venter v Oosthuizen NO (2006) and Oberholster NO v Richter (2013). These cases set out a test which the court applied regarding an executor, which David’s legal team applied to a curator bonis.

The test in the said cases is: Is the family disharmony such that it imperils the trust estate and its proper administration? 1) Is there disharmony in the family and, if so 2) does it imperil or put the administration of the estate in danger?

Peter’s counsel said that a family feud was present but that such feud did not have any effect and emphasised the following line in the Venter matter:
“Vir sover die applikante op die blote bestaan van onmin wat daar bestaan, sou wou steun, is dit klaarblyklik nie voldoende nie. Die essentiële vraag is immers of die onmin wat daar bestaan die boedel en/of die administrasie in gevaar stel.”

David is adamant that Peter’s behaviour places the patient’s estate in danger – Peter is adamant that there is the family feud does not have any effect on his abilities to administer the patient’s affairs.

Peter’s legal team quotes the matter of the Minister of Interiors v Cowley (1956) to illustrate that one cannot apply the test in Bramwell to a case of the role of curator bonis as opposed to that of an executor is clearly different. An executor fills the shoes of the deceased’s estate; a curator bonis stands next to the shoes of the patient and merely supplements the patient where needed. Therefore, the arguments applied by David’s legal team in respect of executors cannot be relevant to this matter which deals with a curator bonis.

Furthermore, Peter’s legal team said that the Master of the High Court was aware of David’s concerns and did not, as the Act permits, 1) caution the curator bonis and 2) thereafter remove him. It was therefore not for the court to decide the issue of removal but, instead, David was to take the Master of the High Court’s decision not to remove Peter on review.

The issue was not to be decided in terms of section 54(2) of the Act by the court but was to be taken on review based on the Master’s decision in terms of section 54(1) of the Act. It should never have been formulated as a counterclaim by David before this court.

Concerning costs – David’s legal team said that the postponement of the main claim by Peter against David had to be postponed because the removal of the curator bonis had to be decided before the main claim could proceed. In other words, the postponement of the main claim and the wasted costs of not hearing the main claim should not be borne by David.

Section 85 of the Act deals with curators. The said section does not specifically mention that a claim by a curator remains alive after his removal. David’s legal team, therefore, argued that the removal by the curator may deem his claim against David for the misappropriated funds as having ended. A new curator will have to decide the issue of the main claim anew.

Peter’s legal team said that the above was nonsensical. Section 85 may not specifically mention that a claim remains alive after a curator is removed, but it is logical that is must remain alive the court said. The section does not mention it because there is an obvious difference between an executor (where it is specifically mentioned that a claim stays alive even after removal) and a curator bonis.

The curator ad litem which was appointed to act for the patient asks that the losing party is to pay his costs on attorney-and-client scale, to which the court and the parties agree.

Peter’s team says that David is to pay their costs of the postponement of their claim and the costs for opposing the removal of Peter on attorney-and-client scale as it must have been clear during the pre-trial conference and upon receiving the reports of the Master of the High Court and the curator ad litem that David’s case had poor merits. David’s team argues that they believe, even after the said reports said that Peter was to remain as curator bonis, that they had to lead evidence at court to illustrate that Peter substantially failed to comply with his duties as curator bonis inter alia because he abdicated his duties. It was not enough to accept that their client had no case.

Judgment is reserved in respect of this matter.