Ex parte Maritz ; Ex parte De Klerk

• Jurisdiction: South Africa
• Judge: Corbett J
• Judgment Date: 23 July 1968
• Citation: 1968 (4) SA 130 (C)
• Hearing Date: 10 July 1968
• Court: Cape Provincial Division

Ex parte Maritz ; Ex parte De Klerk
1968 (4) SA 130 (C)

1968 (4) SA p130

Citation	1968 (4) SA 130 (C)
Court	Cape Provincial Division
Judge	Corbett J
Heard	July 10, 1968
Judgment	July 23, 1968

Flynote : Sleutelwoorde

Curator — Rival applications for appointment as curator ad litem as preliminary step to appointment of curator bonis - Procedure — Preference given to applicant first filing papers with Registrar — E Provision made for other interested parties to participate — Court appointing an advocate — Costs left open for decision in final application.

Headnote : Kopnota

Where two applications for the appointment of a curator ad litem as a preliminary step to an application for an order declaring a certain F widow to be incapable of managing her own affairs and appointing a curator bonis to her property came simultaneously before the Court, the Court having allowed them to be called together, it appeared that both applications were defective.

Held, that an application for a consolidation of the applications should be refused.

Held, further, that prederence should be given to the applicant who first filed papers with the Registrar.

Held, further, however, that the fullest opportunity should be given to G the second applicant and any other interested party to canvass fully all issues in the matter and more particularly the question as to who should be appointed curator bonis.

Held, further that the person to be appointed curator ad litem should be an advocate who was completely independent and outside the range of local influence.

Held, further, that the question of the costs of the second applicant H should be dealt with by the Court dealing with the application by the first applicant for the appointment of a curator bonis.

Held, further, that the first application should be put in order by the filing of an affidavit by a second medical practitioner, as prescribed by Rule of Court 57 (3) (b), before any order issued in the matter.

Case Information

Application for the appointment of a curator ad litem. The facts appear from the reasons for judgment.

R. M. Marais, for the first applicant.

W. G. Burger, for the second applicant.

1968 (4) SA p131

Cur adv vult.

Postea (July 23rd).

Judgment

A Corbett, J.:

These two applications give rise to a situation which, so far as I am aware, is unique in this Division. Each asks for the appointment of a curator ad litem as a preliminary step to an application for an order declaring one Catharina Maria Jacoba Maritz, a widow, of Fraserburg, Cape Province (hereinafter referred to as 'the patient') to be incapable of managing her own affairs and appointing a curator bonis to her property. What I shall term the 'first application' B is moved by one Gerrit Jacobus Maritz (hereinafter referred to as the 'first applicant'), a son of a deceased brother of the patient's late husband. What I shall term the 'second application' is moved by one Catharina Maria Jacoba de Klerk (hereinafter referred to as the 'second applicant'), the daughter of a deceased daughter of the patient.

C It appears from both of these applications that the patient is presently 92 years of age and it is alleged that physically and mentally her condition is so poor that she is incapable of managing her own affairs. From the medical evidence placed before the Court on affidavit (and upon which I shall make further comment in due course) it would appear that the patient is suffering from extensive cerebral D arterioscelerosis and that this condition is the cause of her poor state of mental and physical health. At present she lives in Fraserburg with two daughters, Mrs. E. H. Olivier, a widow aged 61 years, and Miss M. M. Maritz, aged 63 years. The patient is possessed of a considerable estate. According to the information contained in the first application E it consists of R74,300, invested in various financial institutions, and R4,140 held in trust by a local firm of attorneys, Messrs. Strobos and Louw, of Fraserburg, making in all a total estate of R78,440. In the second application the information regarding the sum of R74,300 is confirmed but no mention is made of the amount of R4,140 alleged to be held in trust.

F In the first application Mr. W. van H. van der Walt, an attorney practising at Williston. Cape Province, is suggested as curator ad litem and it is indicated that ultimately the Court will be asked to appoint the applicant, either alone or jointly with some other person, as curator bonis to the property of the patient. In the second application Adv. J. P. van Niekerk is suggested as curator ad litem and Mr. Attorney G J. W. Louw, of the firm Strobos and Louw, is the proposed curator bonis.

The reason for these two competing applications appears to lie in certain differences which have arisen between members of the patient's family and also between the patient and certain of her relatives, on the H one hand, and the firm of Strobos and Louw, on the other hand. Since about 1943 the patient's affairs have been looked after by the firm of Strobos and Louw and this firm has also attended to the investment of her money. Mr. J.E. Louw, to whom the patient originally entrusted the administration of her financial affairs, died during 1967 and since then his son, Mr. J. W. Louw, has been in sole control of the firm. It is alleged by the first applicant, who is a retired farmer and has been living in Fraserburg for the last six years, that since February, 1968 the patient has expressed serious concern and dissatisfaction as to the manner

1968 (4) SA p132

Corbett J

in which her financial affairs are being administered. Particular reasons for dissatisfaction mentioned are (i) that Mr. J. W. Louw has, despite repeated requests, refused to visit the patient or to account to A her for his administration of her moneys; (ii) that it would appear from a rough statement emanating from Mr. Louw that an amount of R4,140 is being held in a non-productive state in Mr. Louw's...