Jansen Van Rensburg NO v Cornelius
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Le Grange ADJP, Cloete J and Savage J |
| Judgment Date | 07 August 2023 |
| Citation | 2023 JDR 2921 (WCC) |
| Hearing Date | 18 July 2023 |
| Docket Number | A31/2023 |
Savage J (Le Grange ADJP and Cloete J concurring):
Introduction
This appeal, with leave granted on petition by the Supreme Court of Appeal, is against the judgment and orders of the Court a quo per Nyathi AJ on 17 February 2022 in terms of which it was declared that Ms Carmelita Cornelius (“the patient”) is not of unsound mind and is capable of managing her affairs and is released from curatorship. The Master of this Court was consequently directed to retract the letters of curatorship issued in favour of the appellant, Mr Leon Jansen van Rensburg N.O., as curator bonis, following receipt of his final accounts which were to be furnished within 14 days. It was ordered further that the funds held in trust by the appellant were to be transferred to the patient’s bank account within 14 days, with each party ordered to pay their own costs.
The patient was seriously injured in a motor vehicle accident on 2 August 2008. On 13 February 2017, following the appointment on 3 December 2014 of Mr Brendan Atkins, a practising advocate, as curator ad litem, the patient succeeded in a claim for general damages against the Road Accident Fund in the amount of R2,28 million.
On 13 October 2017 Andrews AJ declared the patient incapable of managing her affairs and the appellant was appointed curator bonis to the property of the patient. This followed the recommendation of the curator ad litem that the patient was unable to manage her own affairs and that the interests of justice required the appointment of a curator bonis. In recommending as much, the curator ad litem noted that a curatorship need not be a permanent feature of the patient’s life as she was not of unsound mind and may in due course become financially literate.
In support of the appointment of a curator bonis, reliance was placed by the curator ad litem on the report of Dr Cora de Villiers, a neuropsychologist who examined the patient, who supported the appointment of a curator bonis to the patient’s property. Dr De Villiers
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Savage J (Le Grange ADJP and Cloete J concurring)
found that the patient’s functional illiteracy was unrelated to the motor vehicle accident of 2008 and that her composite score for orientation, attention and working memory fell within the second percentile, while her score for conceptual reasoning was “profoundly low” at under the first percentile. In a second assessment by Dr De Villiers, it was reported that the patient would struggle with financial agreements and contracts.
The curator ad litem also relied upon the findings of Dr Chris George, a psychiatrist who had examined the patient and also supported the appointment of a curator bonis to the property of the patient. Dr George reported that the patient was partially literate and distinguished between the patient’s ability to manage small and large amounts of money. In a second assessment undertaken, Dr George noted that the patient would need assistance to manage large amounts of money and evaluate financial advice, and that she would probably not be able to resist giving away her money to family members. The patient, in an affidavit signed on 3 October 2017, supported the appointment of a curator bonis over her estate, recording that her affidavit could be used in support of such application.
In the Court a quo
The respondent, the patient’s daughter, was the applicant in proceedings before the Court a quo. Although Andrews AJ did not find the patient to have been of unsound mind, the respondent approached the Court seeking a declaration that the patient is “no longer of unsound mind and incapable of managing her own affairs”. Orders were further sought that the patient be released from curatorship; that the appointment of the appellant as curator bonis be set aside, with the Master directed to terminate and retract the letters of curatorship granted in favour of the appellant; and that the amount held in trust by the appellant be transferred to the trust account of the applicant’s attorneys of record.
In her founding affidavit the respondent set out that the application was brought in terms of Uniform 57(14) on the basis that as the patient’s
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Savage J (Le Grange ADJP and Cloete J concurring)
daughter she is “sufficiently close to the patient and [has] a real concern for her welfare as well as a legally recognised interest in her ability to manage her own affairs”. She recorded that the patient had consulted with a specialist psychiatrist, Dr Naz Daniels, “who confirmed that she has sufficiently recovered from the accident to effectively take charge of her own affairs”. In addition, the respondent recorded that the patient “is against the continuation of the curatorship in general as she is sufficiently functional mentally and physically to properly coordinate and conduct her personal and financial affairs”. It was stated that “the patient has consistently complained that the curatorship negatively affects her life, status and dignity as she is treated like an imbecile. This is also evident in the letters she wrote to the curator bonis complaining about a variety of issues relating to the limitations imposed on her, occasioned by the curatorship.” The report of Dr Daniels was filed in support of the application. In it, Dr Daniels recorded that the patient had “sufficiently recovered. . .to effectively take charge of her own affairs” and the patient’s release from curatorship was supported.
The patient was not a party to the application, apparently on the basis of legal advice received that she could not launch such proceedings given that she had been placed under curatorship. She nevertheless deposed to a confirmatory affidavit in which she confirmed her support for the relief sought in the application.
On 18 January 2021, by agreement between the parties, Mr Atkins was once again appointed as curator ad litem to furnish a report concerning the respondent’s application for the release of the patient from curatorship. In his report of 11 March 2021 the curator ad litem noted that the patient remained vulnerable and recommended that she be reassessed by a suitably qualified clinical neuropsychologist to give guidance on whether the patient’s “present socio-economic/financial position/level of literacy/level of education/potential vulnerability meets the requirements” for release from curatorship. He noted that this view was supported by all relevant parties, including the patient and Dr
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Daniels. The curator ad litem recorded that if the patient refused to be reassessed, he recommended it to be in the interests of justice and in the patient’s best interests that she remain under the curatorship of the appellant, or any other person the Court may deem appropriate.
The appellant opposed the respondent’s application before the Court a quo on the basis that there had been no material change in the reasons which had justified the curatorship imposed, that the patient had not become financially literate and remained incapable of managing her own affairs. The appellant...
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