Ex Parte Oppel Case Summary PDF

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A case summary of the private law case, Ex Parte Oppel Case...

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Case name: Ex Parte Oppel and Another 2002 (5) SA 125 (C) Case No: 2616/2001 Court: Cape Provincial Division Judge: Ngwenya J Heard: May 2001 Judgement: September 2001 Facts:  This is an application for the appointment of a curator ad litem with a view to preparing a report to the Court regarding the need to appoint a curator bonis or trustee to the estate of Dowayne Oppel (the minor, born 1984, whom is now 14 years old).  The management of a minor's property is, generally, the preserve of his or her guardian.  The appointment of a curator bonis to the minor's (Dowayne Oppel) estate would remove the guardian's powers in this regard. Because of the inroads (instance of something being encroached on or reduced by something else) made into the relationship between the minor and guardian a Court should not lightly grant an application for the appointment of a curator bonis to a minor's estate UNLESS it is satisfied that the guardian is not capable of managing the minor's estate.  Basically, the court did not want to encroach upon the parental rights and responsibilities by appointing a curator bonis or ad litem  Whether or not the guardian is capable of managing the minor's estate is a question of fact.  Applicants: The parents and guardians of a minor son who, as a result of an accident, sustained permanent head injuries.  On 29 January 1995, as a result of the accident, he sustained serious head injuries. Applicants, on behalf of the minor, subsequently filed a claim with the Road Accident Fund, claiming damages. On 20 February 2001 a settlement was reached with the RAF for the payment of a total sum of R861 338. In this amount is included the cost of the curator if he/she were to be appointed. This offer was subject or conditional to the appointment of a curator bonis to the estate of the minor. It is for this reason that this application is brought.  The applicants applied for the appointment of a curator ad litem to investigate the need to appoint a curator bonis to their son's estate.  Their evidence was that the first applicant's (the father's) formal education had terminated after standard 4. The second applicant had qualified as a nursing sister after matriculating. She had worked full time as a nursing sister until she resigned in 1999 in order to look after her son on a fulltime basis. The applicants were of the opinion that neither of them possessed the expertise to manage and invest their son's estate and feared that, through ignorance, they might make decisions or investments detrimental to its long-term interests.  Held, that neither of the applicants suffered from any disability. Mere fear that they might take ignorant decisions was insufficient to warrant the relief sought. It was not expected of them that they have specialised knowledge of financial and investment affairs. What was expected was at least the acknowledgment of their shortcomings and that they seek proper professional advice.  This they had done: when their son was injured they had taken him to hospital for treatment; they had sought and obtained legal advice to claim compensation on his behalf; and when they realised that he had suffered permanent injury and disability,

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the second applicant had resigned her job, which had enabled their son to have fulltime professional care free of charge. The second applicant sacrificed her career and is the most qualified person to look after the minor. No doubt her skills are not wasted. In short, therefore, the case made by the applicants here is the antithesis (exact opposite) of the relief sought. o Basically, they’ve actually made a case against the relief that they were seeking Held, further, that, since the duty to administer the estate of a minor, whether the minor was physically or mentally disabled or not, fell within the realm of guardianship, the disabilities of the minor concerned would not, generally, warrant the appointment of a curator, whether ad litem or bonis. It was held by the court that for a curator bonis to be appointed in the instance of a guardian whom is meant to be administering a minors’ estate, they would need to be suffering the same handicap as in the situation where the Court would appoint a curator bonis to any other major The legal position is: it is not a condition precedent to the appointment of a curator to a patient's property that the Court should declare him to be mentally incapacitated. The court then referred to a few cases. Secondly, the Court would not generally appoint a curator to the property of a minor where there is a guardian available. The court relied on a few cases again, here. o The Court can only in exceptional circumstances, in the exercise of its discretion, appoint a curator to the property of a minor where there is a guardian available. However, in cases mentioned none of them has clearly set out under what circumstances the Court will appoint a curator ad litem to the estate of a minor where there is a guardian available. The appointment of a curator bonis to the property of a minor who has a guardian overlaps and sometimes creates tension with guardianship. The management of the minor's property is the preserve of his guardian. Upon the appointment of a curator bonis in this regard the guardian's powers to manage his child’s estate are taken away. Because of the nature of the encroachment upon the PRR’s that results from curatorship, the Court should not lightly grant this application unless satisfied that the guardian is not capable of looking after the minor's estate. As to when the Court will be so satisfied depends on each case. o This is a question of fact. The duty to administer the estate of a minor, whether mentally or physically disabled or not, falls within the realm of guardianship. The disabilities of the minor will not generally warrant the appointment of a curator, be it bonis or ad litem. Only in exceptional circumstances will the Court appoint a curator ad litem where there is a guardian alive and available. These would be: o The guardian refuses to act, where the minor litigates against the guardian or where there is a clash of interests between that of the minor and that of the guardian. In the present case the appointment of a curator ad litem sought is not to assist the minor in any impending litigation. It is solely to investigate whether it would be necessary or not to appoint a curator bonis to the estate of the minor. Neither are there any grounds as to why a curator ad litem should be appointed here. As I have said earlier on in this judgment, it is not a condition precedent for the appointment of a curator bonis to the property of another that the Court

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I do not know what need the appointment of a curator ad litem in this case will serve. Even if the Court were approached to declare the minor mentally disordered, nothing would turn on that as long as the guardian is available. The ONLY instance where the Court will interfere with the guardian's rights and duties visàvis the minor's estate is when the guardian is unable to manage the affairs of the minor. o It is thus required of the applicant who seeks to have a curator bonis appointed to the property of the minor where there is a guardian available to show good reasons why this must be done. I find it difficult to understand how in one breath the guardian could be suitable to do everything expected of him or her visàvis the minor but his estate. Yet, in the same breath it being contended that he or she is unable to manage the property of the minor. I have said already that the applicants have made a strong case against the relief they seek. In my view, they were illadvised The application was thus dismissed.

Legal Question  Should the court appoint a curator ad litem?  Under what circumstances should a curator ad litem be appointed to a minor, when guardians are available? Ratio Decidendi  It is not a condition precedent to the appointment of a curator to a patient's property that the Court should declare him to be mentally incapacitated.  Secondly, the Court would not generally appoint a curator to the property of a minor where there is a guardian available o The Court can only in exceptional circumstances, in the exercise of its discretion, appoint a curator to the property of a minor where there is a guardian available.  Ex parte Klopper: In re Klopper 1961 (3) SA 803 (T), where the court held: '[a]s I read the authorities 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'.  Ex parte Herzberg and Another 1950 (2) SA 62 (C): '(w)hile it is true that Searle J was dealing with an application for the appointment of a curator bonis whereas what is sought in the present matter is an ad hoc appointment of a curator ad litem, there is no real difference in principle. In both cases the Court is asked to interfere with the right of an adult to control his own affairs. Before it does so it must be satisfied, on proper enquiry, that the mental condition of that person is such as to justify interference of this kind.'  Because of the nature of the encroachment upon the PRR’s that results from curatorship the Court should not lightly grant this application unless satisfied that the guardian is not capable of looking after the minor's estate.  The disabilities of the minor will not generally warrant the appointment of a curator, be it bonis or ad litem.  Only in exceptional circumstances will the Court appoint a curator ad litem where there is a guardian alive and available. These would be:

o The guardian refuses to act, where the minor litigates against the guardian or where there is a clash of interests between that of the minor and that of the guardian. o In the present case the appointment of a curator ad litem sought is not to assist the minor in any impending litigation. It is solely to investigate whether it would be necessary or not to appoint a curator bonis to the estate of the minor. o Neither are there any grounds as to why a curator ad litem should be appointed here. As I have said earlier on in this judgment, it is not a condition precedent for the appointment of a curator bonis to the property of another that the Court o Even if the Court were approached to declare the minor mentally disordered, nothing would turn on that as long as the guardian is available. Judgement     

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In the present case the appointment of a curator ad litem sought is not to assist the minor in any impending litigation. It is solely to investigate whether it would be necessary or not to appoint a curator bonis to the estate of the minor. Neither are there any grounds as to why a curator ad litem should be appointed here. As I have said earlier on in this judgment, it is not a condition precedent for the appointment of a curator bonis to the property of another that the Court I do not know what need the appointment of a curator ad litem in this case will serve. Even if the Court were approached to declare the minor mentally disordered, nothing would turn on that as long as the guardian is available. The ONLY instance where the Court will interfere with the guardian's rights and duties visàvis the minor's estate is when the guardian is unable to manage the affairs of the minor. o It is thus required of the applicant who seeks to have a curator bonis appointed to the property of the minor where there is a guardian available to show good reasons why this must be done. I find it difficult to understand how in one breath the guardian could be suitable to do everything expected of him or her visàvis the minor but his estate. Yet, in the same breath it being contended that he or she is unable to manage the property of the minor. I have said already that the applicants have made a strong case against the relief they seek. In my view, they were illadvised The application was thus dismissed....