Mbhele v Mbhele (AR 118/10) [2010] ZAKZPHC 29 (3 June 2010)

Mbhele v Mbhele (AR 118/10) [2010] ZAKZPHC 29 (3 June 2010)

The court held that the solution to the impasse regarding the administration of maintenance funds for a disabled major child lies in the common law, specifically through the appointment of a curator bonis if evidence shows incapacity to manage affairs. The Guardian's Fund is not necessarily the appropriate vehicle for such payments, especially in the absence of evidence regarding the major child's incapacity and without notice to all respondents. The court declined to make any order affecting the status quo but directed that the R50,000.00 be retained in trust pending further application for appointment of a curator bonis or a competent court order. The judgment is fact-specific and not a...

Citation
[2010] ZAKZPHC 29
Parties
Applicant: Z. H. Mbhele; Respondent: Z. M. Mbhele; Respondent: Standard Bank; Respondent: Master of the High Court
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
3 June 2010
Case Number
AR 118/10
Procedural Posture
Special Review / Full Bench Review Following Referral From Magistrate
Outcome
Application for immediate payment of maintenance funds denied; funds to be retained in trust pending further application.
Judges
K. Swain, K. Pillay, P. Koen
Legal Topics
Maintenance of Major Child, Curator Bonis Appointment, Guardians Fund, Trust Funds, Procedural Irregularity
Family and Children Civil Procedure Maintenance of Major Child Curator Bonis Appointment Guardians Fund Trust Funds Procedural Irregularity

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Parties

Z. H. Mbhele

Applicant

Z. M. Mbhele

Respondent

Standard Bank

Respondent

Master of the High Court

Respondent

Procedural Posture

Special Review / Full Bench Review Following Referral From Magistrate

Legal Issues

  1. 1 Whether a lump sum for maintenance of a major child can be held in trust and paid out periodically.
  2. 2 Whether the Guardian's Fund or Magistrates' Court trust account is an appropriate vehicle for such payments.
  3. 3 Whether appointment of a curator bonis is necessary for administration of funds for a disabled major child.

Ratio Decidendi

The court held that the solution to the impasse regarding the administration of maintenance funds for a disabled major child lies in the common law, specifically through the appointment of a curator bonis if evidence shows incapacity to manage affairs. The Guardian's Fund is not necessarily the appropriate vehicle for such payments, especially in the absence of evidence regarding the major child's incapacity and without notice to all respondents. The court declined to make any order affecting the status quo but directed that the R50,000.00 be retained in trust pending further application for appointment of a curator bonis or a competent court order. The judgment is fact-specific and not a...

Court Disposition

Application for immediate payment of maintenance funds denied; funds to be retained in trust pending further application.

Orders

  • The applicant may launch an application for appointment of a curator bonis to administer S M's affairs with appropriate powers.
  • The Area Court Manager for Pietermaritzburg Magistrates' Court is directed to retain R50,000.00 in trust pending appointment of a curator bonis or competent court order.