L.M.G v D.J.M (22730/2017) [2021] ZAGPPHC 396; 2021 (5) SA 607 (GP) (15 June 2021)

L.M.G v D.J.M (22730/2017) [2021] ZAGPPHC 396; 2021 (5) SA 607 (GP) (15 June 2021)

The court held that, although common law generally prohibits a curator bonis from instituting divorce proceedings on behalf of an incapacitated person due to the personal nature of marriage, the interests of justice may require development of the common law in exceptional circumstances. In this case, the patient was permanently incapacitated and unable to make decisions regarding the marriage. The court order expressly authorised the curator bonis to institute matrimonial proceedings, and such an order must be obeyed until set aside. However, the court order also made the exercise of these powers subject to the approval of the Master of the High Court. The respondent/plaintiff failed to...

Citation
[2021] ZAGPPHC 396
Parties
Defendant: L M[...] [G...]; Plaintiff: D J M[...]
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 June 2021
Case Number
22730/2017
Procedural Posture
Exception Application / Judgment on Exception
Outcome
Exception upheld; respondent/plaintiff's claim dismissed; no order as to costs.
Judges
E.M Kubushi
Legal Topics
Curator Bonis Powers, Locus Standi, Divorce Proceedings, Master Approval, Irretrievable Breakdown, Court Order Compliance
Family and Children Civil Procedure Curator Bonis Powers Locus Standi Divorce Proceedings Master Approval Irretrievable Breakdown Court Order Compliance

Case Brief

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Parties

L M[...] [G...]

Defendant

D J M[...]

Plaintiff

Procedural Posture

Exception Application / Judgment on Exception

Legal Issues

  1. 1 Whether a curator bonis has locus standi to institute divorce proceedings on behalf of an incapacitated person.
  2. 2 Whether the curator bonis must obtain the approval of the Master of the High Court before instituting such proceedings.

Ratio Decidendi

The court held that, although common law generally prohibits a curator bonis from instituting divorce proceedings on behalf of an incapacitated person due to the personal nature of marriage, the interests of justice may require development of the common law in exceptional circumstances. In this case, the patient was permanently incapacitated and unable to make decisions regarding the marriage. The court order expressly authorised the curator bonis to institute matrimonial proceedings, and such an order must be obeyed until set aside. However, the court order also made the exercise of these powers subject to the approval of the Master of the High Court. The respondent/plaintiff failed to...

Court Disposition

Exception upheld; respondent/plaintiff's claim dismissed; no order as to costs.

Orders

  • The exception is upheld.
  • The respondent/plaintiff’s claim is dismissed.