De Wet NO v Barkhuizen and Others

• Jurisdiction: South Africa
• Citation: 2022 (4) SA 197 (ECG)

De Wet NO v Barkhuizen and Others
2022 (4) SA 197 (ECG)

2022 (4) SA p197

Citation	2022 (4) SA 197 (ECG)
Case No	CA61/2020
Court	Eastern Cape Division, Grahamstown
Judge	Eksteen J, Goosen J and Govindjee AJ
Heard	December 7, 2021
Judgment	December 7, 2021
Counsel	PS Bothma for the appellant.; MP Morgan for the respondents.

Flynote : Sleutelwoorde

Curator — Curator bonis — Powers — May, in anticipation of proceedings to be instituted on behalf of de cujus, validly depose to founding affidavit before issuance of letters of curatorship — Doing so not contrary to Administration of Estates Act 66 of 1965, s 71(1) — Appeal against contrary finding by single judge upheld.

Headnote : Kopnota

The High Court appointed the appellant, Mr De Wet, curator bonis over the property of one C, who had been declared incapable of managing his own affairs. After his appointment, but before the Master had issued him with letters of curatorship (the letters), Mr De Wet decided to apply to set aside C's 2013 sale of the family farm to his niece, the first respondent, Ms Barkhuizen. In anticipation of receiving the letters, Mr De Wet prepared the application and attested to the founding affidavit. Mr De Wet's letters of curatorship were issued three days later and the application made the day after that. At the hearing it was argued on behalf of Ms Barkhuizen that the application lacked foundation because the founding affidavit was void by virtue of s 71(1) of the Administration of Estates Act 66 of 1965, which stated that appointees shall not 'take care of or administer any property belonging to the . . . person concerned, or carry on any business or undertaking of the . . . person, unless he is authorised to do so under letters of . . . curatorship'.

The judge in the court a quo agreed with Ms Barkhuizen that any act performed by Mr De Wet in his capacity as curator before the issue of the letters of curatorship was void under s 71(1), and dismissed the application on that ground only. In an appeal to a full bench —

Held

While it was true that any act performed contrary to s 71(1) was a nullity, its purpose was to protect the interests of the de cujus by preventing conduct by the curator which might have some legal consequence for his or her estate. The preparation and attestation of the founding affidavit, which was no more than a preparatory step taken in anticipation of the later commencement of the application, had no legal consequence and did not place C's property at risk. Any other interpretation would lead to an unbusinesslike result and undermine the purpose of s 71(1). (See [10] – [11].) Nor could the respondents' argument that Mr De Wet had, by deposing to the affidavit, started the application in his capacity as curator, be sustained. The preparation of evidential material could not be equated with the commencement of proceedings. Accordingly, Mr De Wet did not contravene the provisions of s 71(1) of the Act by deposing to the affidavit on 29 June 2018 and the affidavit was admissible as evidence in the application. (See [12].)

Cases cited

Bouwer NO v Saambou Bank Bpk 1993 (4) SA 492 (T): applied

Dave Zick Timbers (Pty) Ltd v Progress Steamship Co Ltd 1974 (4) SA 381 (D): referred to

Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others 2013 (2) SA 204 (SCA) ([2012] ZASCA 49): referred to

2022 (4) SA p198

Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) ([2004] 2 All SA 609): referred to

IGI Insurance Co Ltd v Madasa 1995 (1) SA 144 (TkA): referred to

Legator McKenna Inc and Another v Shea and Others 2010 (1) SA 35 (SCA) ([2008] ZASCA 144): referred to

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dicta in paras [18] – [19] applied

Shea v Legator McKenna Inc [2008] 1 All SA 491 (D): dictum at 497i – j applied

Simplex (Pty) Ltd v Van der Merwe and Others NNO 1996 (1) SA 111 (W): compared

University of Johannesburg v Auckland Park Theological Seminary and Another 2021 (6) SA 1 (CC) ([2021] ZACC 13): dictum in para [65] applied

Van der Merwe v Van der Merwe en Andere 2000 (2) SA 519 (C): compared

Vermaak's Executor v Vermaak's Heirs 1909 TS 679: dictum at 691 applied.

Legislation cited

The Administration of Estates Act 66 of 1965, s 71(1): see Juta's Statutes of South Africa 2020/21 vol 7 at 2-21.

Case Information

PS Bothma for the appellant.

MP Morgan for the respondents.

An appeal against a decision of a single judge in the same division.

Order

1.

The appeal succeeds with costs and the application is remitted back to the court a quo for consideration on its merits.

2.

The order of the court a quo is set aside and replaced with the following:

'1.

The question of law raised in the rule 6(5)(d)(iii) notice is dismissed with costs.

2.

Costs occasioned by Part A of the notice of motion are reserved.'

Judgment

Eksteen J (Goosen J and Govindjee AJ concurring):

[1] Do the provisions of s 71(1) [1] of the Administration of Estates Act 66 of 1965 (the Act) prevent a duly appointed curator bonis from attesting to an affidavit, before the receipt of his letters of curatorship, issued by the Master of the High Court (the Master) pursuant to s 72 of the Act, in support of an application commenced thereafter? The court a quo held that it did and, accordingly, it declared the affidavit to be void ab initio and dismissed the application. It also made a punitive costs order against the curator bonis and his attorney of record in the application. The appeal to this court against the finding of nullity is with leave of the judge a quo, who specifically limited the scope of the appeal to his finding that the founding affidavit had been void ab initio. The appeal against the costs order is with leave granted, on petition, by the Supreme Court of Appeal.

2022 (4) SA p199

Eksteen J (Goosen J and Govindjee AJ concurring)

[2] On 27 February 2018 the appellant, Mr Jan Abraham de Wet, was appointed by the High Court, Eastern Cape Division, Grahamstown, as the curator bonis to the property of Christo Jacobus Kleinhans (Christo), who had been declared incapable of managing his own affairs. He had been given the power, in terms of the court order, among other things, to institute any proceedings which may be necessary in the interest of Christo, and the due and proper administration of his property. After his appointment, but before the Master had issued letters of curatorship, he decided that it would be necessary to institute proceedings in order to set aside the sale by Christo of his farm, Kaalsfontein, in the district of Jansenville in the Eastern Cape. Kaalsfontein had been a family farm which Christo had inherited from his late father, and he had sold it, in 2013, to the first respondent, Ms Maritsa Barkhuizen, who is his niece. Other members of the family contended that Kaalsfontein had been sold under value and that Christo did not have the mental capacity to enter into a legal contract at the time. In anticipation of the issue of his letters of curatorship, Mr De Wet proceeded to prepare the application and attested to the founding affidavit therein on 29 June 2018. Letters of curatorship were issued by the Master on 2 July 2018. Accordingly, on 3 July 2018, Mr De Wet launched the application. The first and second respondents entered an appearance to oppose. The second respondent, Mr Deon van der Merwe, is a duly...