De Wet N.O v Barkhuizen and Others (2330/2018) [2019] ZAECPEHC 25 (30 April 2019)

De Wet N.O v Barkhuizen and Others (2330/2018) [2019] ZAECPEHC 25 (30 April 2019)

The court found that the applicant, as curator bonis, deposed to the founding affidavit before receiving written authority from the Master, in contravention of section 71(1) of the Administration of Estates Act. The powers conferred by the court order were conditional upon the Master's approval and did not operate retrospectively. Acts performed by a curator bonis prior to receiving letters of curatorship are nullities and cannot be validated after the fact. The founding affidavit was therefore null and void ab initio, and the application had to be dismissed. Furthermore, the applicant and his attorney failed to comply with the rules regarding urgency and acted negligently or unreasonably...

Citation
[2019] ZAECPEHC 25
Parties
Applicant: Jan Abraham De Wet N.O.; Respondent: Maritsa Barkhuizen; Respondent: Deon van der Merwe; Respondent: The Master of the High Court; Respondent: The Registrar of Deeds (King Williams Town); Respondent: The Registrar of Deeds (Cape Town)
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
30 April 2019
Case Number
2330/2018
Procedural Posture
Civil Application / Opposed Motion; Judgment on Merits and Costs
Outcome
Application dismissed; costs awarded de bonis propriis against applicant and his attorney jointly and severally on an attorney-client scale.
Judges
Rugunanan
Legal Topics
Curatorship Authority, Administration of Estates Act, Nullity of Affidavit, Costs De Bonis Propriis, Sale of Immovable Property
Civil Procedure Land and Property Curatorship Authority Administration of Estates Act Nullity of Affidavit Costs De Bonis Propriis Sale of Immovable Property

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Parties

Jan Abraham De Wet N.O.

Applicant

Maritsa Barkhuizen

Respondent

Deon van der Merwe

Respondent

The Master of the High Court

Respondent

The Registrar of Deeds (King Williams Town)

Respondent

The Registrar of Deeds (Cape Town)

Respondent

Procedural Posture

Civil Application / Opposed Motion; Judgment on Merits and Costs

Legal Issues

  1. 1 Whether the applicant's founding affidavit is null and void ab initio for contravening section 71(1) of the Administration of Estates Act.
  2. 2 Whether the curator bonis had authority to institute proceedings prior to receiving letters of curatorship from the Master.
  3. 3 Whether the sale and transfer of the farm to the first respondent should be set aside.

Ratio Decidendi

The court found that the applicant, as curator bonis, deposed to the founding affidavit before receiving written authority from the Master, in contravention of section 71(1) of the Administration of Estates Act. The powers conferred by the court order were conditional upon the Master's approval and did not operate retrospectively. Acts performed by a curator bonis prior to receiving letters of curatorship are nullities and cannot be validated after the fact. The founding affidavit was therefore null and void ab initio, and the application had to be dismissed. Furthermore, the applicant and his attorney failed to comply with the rules regarding urgency and acted negligently or unreasonably...

Court Disposition

Application dismissed; costs awarded de bonis propriis against applicant and his attorney jointly and severally on an attorney-client scale.

Orders

  • The application is dismissed.
  • The costs in respect of Part A and Part B of the notice of motion are to be paid by the Applicant and Ms Johannie Lötter jointly and severally, de bonis propriis on an attorney-client scale, the one paying the other to be absolved.