Cloete and Another v Moeller and Another (75 of 2012) [2012] NAHC 140 (4 June 2012)

Cloete and Another v Moeller and Another (75 of 2012) [2012] NAHC 140 (4 June 2012)

Given the patient's severe incapacity, poor prognosis, and the agreement of all parties and medical experts, there is a real need for the appointment of a curator personae. The first applicant is suitable, but her powers must be exercised jointly with the first respondent, with Dr Roberts as final arbiter in case of disagreement. The first respondent, being married in community of property to the patient, is the appropriate curator bonis. Costs are to lie where they fall due to mutual miscommunication and the financial strain on the common estate.

Citation
[2012] NAHC 140
Parties
First Applicant: Zenobey Cloete; Second Applicant: Didi De Klerk; First Respondent: Luke Moeller; Second Respondent: Michelle Group Trust Home and Care Centre; Patient: Sybille Bianca Möller
Court
High Court
Jurisdiction
Namibia
Judgment Date
4 June 2012
Case Number
75 of 2012
Procedural Posture
Application / Judgment After Hearing and Interlocutory Orders
Outcome
Application granted in terms of amended prayers; each party to pay its own costs.
Legal Topics
Curatorship, Appointment of Curator Personae, Appointment of Curator Bonis, Urgent Applications, Costs Orders
Source Language
English
Mental Health Law Civil Procedure Curatorship Appointment of Curator Personae Appointment of Curator Bonis Urgent Applications Costs Orders

Case Brief

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Parties

Zenobey Cloete

First Applicant

Didi De Klerk

Second Applicant

Luke Moeller

First Respondent

Michelle Group Trust Home and Care Centre

Second Respondent

Sybille Bianca Möller

Patient

Procedural Posture

Application / Judgment After Hearing and Interlocutory Orders

Legal Issues

  1. 1 Whether Sybille Bianca Möller should be declared of unsound mind and incapable of managing her affairs
  2. 2 Whether a curator personae and/or curator bonis should be appointed and who should be appointed
  3. 3 Whether interim relief regarding custody and care should be granted

Ratio Decidendi

Given the patient's severe incapacity, poor prognosis, and the agreement of all parties and medical experts, there is a real need for the appointment of a curator personae. The first applicant is suitable, but her powers must be exercised jointly with the first respondent, with Dr Roberts as final arbiter in case of disagreement. The first respondent, being married in community of property to the patient, is the appropriate curator bonis. Costs are to lie where they fall due to mutual miscommunication and the financial strain on the common estate.

Court Disposition

Application granted in terms of amended prayers; each party to pay its own costs.

Orders

  • Order in terms of Prayers 1, 2, 3, 4 and 5 of the amended Notice of Motion granted.
  • Paragraph 3 of the order of 26 April 2012 incorporated by agreement.