Bouwer and Another NNO v Master of the High Court, Pretoria (916/2022) [2023] ZASCA 135 (19 October 2023)

Bouwer and Another NNO v Master of the High Court, Pretoria (916/2022) [2023] ZASCA 135 (19 October 2023)

The Supreme Court of Appeal held that the relevant regulations under the Administration of Estates Act are clear and mandatory: once capital assets are realised, they must be reflected as income in the curator's annual account, not as capital. The regulations provide only two categories—income and capital—and do not allow for a third category. The curator is entitled to a 6% fee on all funds reflected in the income account, regardless of their origin, as the 2% tariff applies only upon termination of curatorship. The respondent's interpretation would unjustly deprive curators of remuneration. The respondent's conduct in the proceedings, including delays and unfounded allegations,...

Citation
[2023] ZASCA 135
Parties
Appellant: Willem Francois Bouwer NO; Appellant: Annali Christelle Basson NO; Respondent: Master of the High Court, Pretoria
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
19 October 2023
Case Number
916/2022
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal upheld with costs, including costs of two counsel. High court order set aside and replaced with declaratory relief in favour of appellants.
Judges
Saldulker, Mbatha, Carelse, Nhlangulela, Windell
Legal Topics
Administration of Estates Act, Curatorship, Remuneration of Curator, Declaratory Relief
Administrative Law Civil Procedure Administration of Estates Act Curatorship Remuneration of Curator Declaratory Relief

Case Brief

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Parties

Willem Francois Bouwer NO

Appellant

Annali Christelle Basson NO

Appellant

Master of the High Court, Pretoria

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether the proceeds of realised capital assets should be reflected as income or capital in the curator's annual account.
  2. 2 Whether a curator bonis is entitled to a 6% fee on all funds reflected in the income account, regardless of the origin.
  3. 3 Whether the respondent's conduct in opposing the application justifies a costs order against a public official.

Ratio Decidendi

The Supreme Court of Appeal held that the relevant regulations under the Administration of Estates Act are clear and mandatory: once capital assets are realised, they must be reflected as income in the curator's annual account, not as capital. The regulations provide only two categories—income and capital—and do not allow for a third category. The curator is entitled to a 6% fee on all funds reflected in the income account, regardless of their origin, as the 2% tariff applies only upon termination of curatorship. The respondent's interpretation would unjustly deprive curators of remuneration. The respondent's conduct in the proceedings, including delays and unfounded allegations,...

Court Disposition

Appeal upheld with costs, including costs of two counsel. High court order set aside and replaced with declaratory relief in favour of appellants.

Orders

  • The appeal is upheld with costs, including costs of two counsel where so employed.
  • It is declared that the proceeds of the Absa current account, the sale of the vehicle, and the debt collected from Dr Rita Nel, as reflected in the First Annual Curator's Account in respect of the patient J H J van Dyk (Ref: MC751/2017), are correctly reflected as income and are not capital assets in the patient's...