De Wet NO v Barkhuizen and Others (CA61/2020) [2021] ZAECGHC 113; 2022 (4) SA 197 (ECG) (7 December 2021)

De Wet NO v Barkhuizen and Others (CA61/2020) [2021] ZAECGHC 113; 2022 (4) SA 197 (ECG) (7 December 2021)

The court held that section 71(1) of the Administration of Estates Act does not prohibit a curator bonis from deposing to an affidavit prior to the receipt of letters of curatorship, as such an act is merely preparatory and does not amount to administering property or carrying on business of the patient. The legal...

Source-derived case information.

Citation
[2021] ZAECGHC 113
Parties
Applicant: Jan Abraham De Wet NO; Respondent: Maritza Barkhuizen; Respondent: Deon van der Merwe; Respondent: The Master of the High Court; Respondent: The Registrar of Deeds (King William’s Town); Respondent: The Registrar of Deeds (Cape Town)
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
7 December 2021
Case Number
CA61/2020
Procedural Posture
Civil Appeal / Appeal From High Court Decision; Costs Order and Nullity Finding Challenged
Outcome
Appeal upheld; order of nullity and punitive costs set aside; application remitted for consideration on merits.
Judges
J W Eksteen, G G Goosen, A Govindjee
Legal Topics
Curatorship, Administration of Estates Act, Locus Standi, Nullity of Affidavit, Costs De Bonis Propriis
Civil Procedure Land and Property Curatorship Administration of Estates Act Locus Standi Nullity of Affidavit Costs De Bonis Propriis

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Parties

Jan Abraham De Wet NO

Applicant

Maritza Barkhuizen

Respondent

Deon van der Merwe

Respondent

The Master of the High Court

Respondent

The Registrar of Deeds (King William’s Town)

Respondent

The Registrar of Deeds (Cape Town)

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Decision; Costs Order and Nullity Finding Challenged

Legal Issues

  1. 1 Does section 71(1) of the Administration of Estates Act prevent a curator bonis from attesting to an affidavit before receiving letters of curatorship?
  2. 2 Is an affidavit deposed to by a curator bonis prior to receipt of letters of curatorship void ab initio?
  3. 3 Was the punitive costs order against the curator bonis and his attorney justified?

Ratio Decidendi

The court held that section 71(1) of the Administration of Estates Act does not prohibit a curator bonis from deposing to an affidavit prior to the receipt of letters of curatorship, as such an act is merely preparatory and does not amount to administering property or carrying on business of the patient. The legal consequence only arises when the application is launched, which occurred after the letters were issued. Therefore, the founding affidavit was admissible and not void ab initio. The punitive costs order was unjustified, as the procedural shortcomings did not amount to serious negligence or bad faith, and the delay in launching the application was not self-created. The appeal...

Court Disposition

Appeal upheld; order of nullity and punitive costs set aside; application remitted for consideration on merits.

Orders

  • The appeal succeeds with costs and the application is remitted back to the court a quo for consideration on its merits.
  • The order of the court a quo is set aside and replaced with: (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.