De Kok v Van Niekerk (1614/2020) [2021] ZAFSHC 140 (21 May 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 1614/2020

In the matter between:

ALETTA

JOHANNA DE KOK Applicant

and

JAN

VAN NIEKERK 1st Respondent

FIRST

RAND LIMITED 2nd Respondent

THE MASTER OF THE HIGH COURT,

BLOEMFONTEIN 3rd Respondent

JUDGMENT BY: MHLAMBI J,

HEARD ON: 25 FEBRUARY 2021

DELIEVERED ON: 21 MAY 2021

MHLAMBI, J

[1] This application is brought to have the first respondent placed under curatorship on the basis that the first respondent is incapable of managing his own affairs. An order is also sought preventing the second respondent from effecting payments to the first respondent relating to investments held on his behalf until the hearing of an action instituted under case number 1614/2020 by the applicant.

[2] The application is opposed by the first respondent and not by the other respondents on the basis set out in paragraph 10 of the first respondent’s answering affidavit which reads as follows:

“10. Die Applikant het gedurende Mei 2020 ‘n dagvaarding uitgereik onder dieselfde saaknomer as hierdie aansoek waarin sy van my eis onder andere die helfte van may boedel, onderhoud van R 7 500.00 (Sewe Duisend Vyf Honderd Rand) per maand en betaling van ‘n skuld van R 15 000.00 (Vyftein Duisend Rand). My regsverteenwoordiger het op 26 Julie 2020 ‘n verweerskrif in gemelde aksie geliasseer en is my verweer teen die eis van die Applikant daarin uiteengesit. Vir die Hof se gerief herhaal ek in breë trekke my verweer naamlik dat:

10.1. Ek en die Applikant nooit getroud is nie, dat daar nie ‘n ooreenskoms was dat ‘n gesamentlike boedel sou onstaan nie, dat daar nie ‘n vennootskap tussen my en die Applikant onstaan het nie en dat ek en die Applikant nooit ‘n oogmerk gehad het om wins te maak uit ons saamwoonverhouding nie.

10.2. Ek is geadviseer dat die Applikant in die hoof aksie sal moet bewys dat daar ‘n universele vennootkap tuseen my en haar ontstaan het en at say eers geregtig is op enige gedeelte van my boedel indie sy so ‘n vennootskap kan bewys en wanneer die Hof so ‘n bevel maak.”

[3] At the outset of the hearing, argument was presented surrounding the late filing of the first respondent’s opposing affidavit, which was filed a day late outside the prescribed time limits. Having perused the affidavits and listened to the arguments, I was satisfied that condonation should be granted as no party would have been prejudiced by the late filling of the opposing affidavit. It was obvious that the first respondent was at all times intent on defending this matter from the onset as indicated by his letter dated 30 December 2020 to the applicant’s attorneys in response to the notice of motion which was served on him. As at this stage, the first respondent was unrepresented.

[4] The applicant issued summons against the first respondent on 25 May 2020 for the payment of R 2 000 000.00, alternatively 50% of the value of the first respondent’s estate as at end October 2019; maintenance in the amount of R 7 500.00 per month; payment of the amount of R 15 000.00 and costs of suit. The applicant and the first respondent had a romantic relationship and lived together since 1989. It would appear that the relationship soured during 2019 as the applicant blamed the first respondent for spending his time with prostitutes and had lost interest in their love relationship. Even though the first respondent was a hard drinker, his intake of alcohol had tripled on a daily basis since he got involved with prostitutes. The parties no longer shared the same bedroom as the first respondent relocated and stayed in the garage. The applicant was of the view that the first respondent was being manipulated and needed assistance. As a previous bookkeeper, the first respondent did not behave like a reasonable person. His conduct and the fact that the first respondent was busy alienating and giving his estate to prostitutes, was prejudicial to the applicant. The applicant alleged that she is aware of two prostitutes that the respondent spent his time with: a certain Chris and another one that stayed in Sasolburg.

Contentions by the parties

[5] The applicant submitted that the amount of R 3 000.00, spent by the first respondent on a monthly basis on alcohol, contributed to the first respondent’s bad judgment and the diminishing of his estate. It was worrying that he spent R 10 000.00 on a girlfriend and her daughter and the other person at Sasolburg. The court should make a negative inference in the first respondent’s refusal to disclose his credit card statements as which included the Samba statements. The production of such statements would indicate that the monthly expenses by the first respondent exceeded those expenses that he was willing to disclose. On his version the first respondent conceded that his expenses exceeded his monthly income. The only conclusion it was submitted, was that once the cash component of the estate is depleted, the first respondent would start to alienate his fixed property. It was therefore imperative that the court should interfere and appoint a curator.

[6] It was contended on behalf of the first respondent that he did not spend his estate irresponsibly. His financial position was as revealed by the bank statements attached to the opposing affidavit. He conceded that he spent R 3 000.00 per month on liquor, but that he had done so for the most part of his life. Since he met the applicant, he used to frequent a local pub. He had of late, since the start of the Covid-19 pandemic, consumed his liquor at home. His alcohol drinking patterns had not changed. He was not as reckless or wasteful as suggested by the applicant.

[7] He admitted that he spent more than his income but that this was not out of the ordinary. He considered his girlfriend and her daughter as special and wanted to contribute financially towards their well-being. He did not neglect to contribute to the applicant’s financial needs and continued to do so as he always did for the last 30 years. As a 68-year-old semi-retired bookkeeper, he met a friend with whom he has a sexual relationship and for whom he cares. He no longer had an intimate relationship with the applicant and has not done so for the past 20 years. The relief requested by the applicant should only be granted in the “clearest case”. Should he be declared a prodigal and a curator bonis is appointed, would be one of the most drastic remedies in the law for the protection of a major person which had the potential to impact on a his constitutionally protected rights such as dignity, privacy and freedom. It was submitted on his behalf that the applicant had failed to prove that his ability to make choices or fully informed choices were impaired.

Master’s Report

[8] The master did not oppose the application but chose to abide by the court’s decision. Even though she had no further information save for the first respondent’s financial position as stated in paragraph 14 of the applicant’s founding affidavit, the master was of the opinion that the assets of the first respondent justified the appointment of the curator bonis[1]. The master stated that the generally accepted approach is to appoint a curator bonis in those instances where the person is found to be a person as described in Sub-Rule 57(1).[2] The court may also make an order in terms of Sub-Rule 57(4).

The applicable law

[9] Rule 57(1) of the Uniform Rules of Courts provides that any person desirous of making application to the court for an order declaring another person (hereinafter referred to as the patient) to be of unsound mind and as such incapable of managing his affairs, and appointing a curator to the person or property of such patient shall in the first instance apply to the court for appointment of a curator ad litem to such patient. The application shall as far as possible be supported by an affidavit by at least one person to whom the patient is well known and containing such facts and information as are within the deponent’s own knowledge concerning the patient’s mental condition.[3] Furthermore, the application shall be supported by affidavits by at least two medical practitioners who have conducted recent examinations of the patient with a view to ascertaining and reporting upon his mental condition. They shall state all such facts they observed at such examinations in regard to such condition and the opinions they found relating to the nature, extent and probable duration of any mental disorder or defect observed. They must state their reasons and advise whether the patient is, in their opinion, incapable of managing his affairs.[4]

[10] Sub-Rule 57(13) states that, save to such an extent as the court may on application otherwise direct, the provisions of sub-rules 1 to 11 shall, mutatis mutandis, apply to every application for the appointment of a curator bonis to any person on the ground that he is by reason of some disability, mental or physical, incapable of managing his own affairs.

[11] The applicant failed to act in accordance with Rule 57(3) and/or Rule 57(13). In Modiba o.b.o Ruca; in Re: Ruca vs. Road Accident Fund,[5] it was stated that whenever there is a credible allegation that a patient is in need of a curator to his personal property ( the onus to establish this circumstance rests upon the applicant), the provisions of Rule 57 cannot be ignored and may only be dispensed with by reason of urgency, special circumstances or otherwise as envisaged in Sub-Rule 57(4). The failure to observe the Rule renders an application defective to the extent that such application cannot and should not be entertained at all. The provisions of Rule 57(3) and 57(13) are couched in imperative terms. In David Sean Scott and Others v William John Desmond Scott and Another,[6] the court[7] stated that it was not an absolute requirement that the application in terms of Uniform Rule 57(3)(b) should be supported by affidavit, but all reasonable attempts should be made to obtain the affidavits. In the absence of obtaining them, the attempts made should be disclosed to the court in the founding affidavit or a supporting affidavit to the application.

[12] The onus is on the applicant to establish that a patient is in need of a curator to his person or his property and the provisions of Rule 57 cannot be ignored.[8] A court will not appoint a curator bonis until it is absolutely satisfied that the patient has to be protected against loss which would be caused because the patient is unable to manage his affairs.[9]The appointment of a curator constitutes an interference with the right of the person concerned to manage his own affairs. The right should not lightly be interfered with, especially not on the basis of what amounts to no more than vague and unsubstantiated allegations.[10]A proper enquiry into the mental condition of the alleged patient should be held before a court could interfere with the right of an adult to control his own affairs.

[13] A prodigal is a person who, through some defect of character or will, squanders his or her assets with such abandon that he or she threatens to reduce himself or herself and/or her dependents to destitution.[11]the reason for interdicting a prodigal from the administration of his/her estate was to protect family wealth for the benefit of succeeding generations.[12]The learned authors[13] hold the view that the restrictions the interdict places on the prodigal’s rights to dignity and privacy may well be unconstitutional in that it bars a person from spending his or her own money as he or she sees fit merely because his or her views as to its proper application are not shared by the more frugal members of society. The court may accept this argument if it is raised by an unmarried prodigal who has no dependents and may hold that the restrictions placed on him or her are unconstitutional.[14]

Discussion

[14] The main thrust of the applicant’s case is based on the first respondent’s alleged abuse of alcohol and drugs and his being a spendthrift. On a proper analysis of the contents of the affidavits, it is clear that no real factual basis was laid to justify the granting of the relief sought. The applicant spoke of prostitutes but did not provide sufficient and reliable evidence to support such allegations. She required of the first respondent to present proof that he was not a spendthrift. The first respondent does not bear the onus to do so. In argument and in answer to the court’s question, the applicant’s legal representative conceded that the applicant had no knowledge of the first respondent’s financial position and what the latter did with his assets.

[15] In Scott[15], the court, with reference to RE: Freedman[16]stated that practical questions should be considered and that not an abstract one of whether the respondent is suffering in any way from unsoundness of mind. Main eccentricities of conduct are to be found amongst a number of people, which indicate to a certain extent unsoundness of mind, but which certainly do not justify in themselves the interference of the court. I agree with this view. I am therefore not persuaded that the applicant presented sufficient evidence to be granted the relief sought.

[16] It is trite that the successful party is entitled to the costs. The applicant is also entitled to the costs which stood over for later adjudication on 21 January 2021 as the matter was prematurely set down for hearing by the applicant.

[17] I therefore make the following order.

Order:

The application is dismissed with costs which shall include the costs of postponement of 21 January 2021.

JJ MHLAMBI, J

Counsel for Plaintiff: Mr AW Hechter

Instructed by: Andrie Hechter Prokureurs

7 Brill Stree

Westdene

Bloemfontein

Counsel for 1st Defendant: Mr CM Du Plooy

Instructed by: Du Plooy Attorneys

49 Parfitt Avenue

WestPark

[1] Paragraph 8 of the report.

[2] Of the Uniform Rules of Court.

[3] Rule 57(3)(a).

[4] Rule 57(3)(b).

[5] (1261/2013: 73012/13) [2014] ZAGPPHC 1071 (27 January 2014)

[6] Case no. D5946/2019 (KZD) [29 August 2020].

[7] Referring to DE van Loggerenburg Erasmus:Superior Court Practice OS, 2015, D1-721.

[8] Judin v Wedgewood & Another 2003 (5) SA 472 (W).

[9] Ex Parte Klopper: In re 1961(3) SA 803 (T).

[10] Ex Parte Futter; In re: Road Accident Fund and Another [2016] JOL 35335 (ECP).

[11] Boberg’s Law of Persons and the Family 2nd ed. Belinda Van Heerden et al 146.

[12] Boberg,supra.

[13] Boberg,supra.

[14] Boberg,159-160.

[15] Supra.

[16] 1907 TS 1088 at 1089.