Category Archive: Uncategorized

Appointment of a curator

A practical guide to selecting and appointing a Curator Bonis

Appointing a Curator Bonis. Cape Town Lawyer

The ability to make decisions can be impaired because of diminished mental capacity, resulting from a variety of things, requiring the appointment of a curator. Sometimes the impairment is permanent, such as intellectual disability, brain injury or disease, dementia (Alzheimer’s) or incapacity related to ageing. In other cases the damage can be temporary, such as from serious illness, a stroke where the person recovers function, or mental illness. Mental disability and ageing are the most frequent causes of an inability to make effective decisions. Impairment can come on suddenly, for example following an accident or stroke (in the immediate aftermath), or it can be gradual and often dismissed, as in the case of encroaching dementia. Sometimes it takes a significant event for family members to fully accept that their loved one is slowly losing their grip on reality.

The general rule is that majors (those age 18 and above) are presumed mentally and legally competent to manage their own affairs until it is proved to the contrary. But if you have elderly parents, or if you suffer from a degenerative illness that may affect your decision making in future, you may want to think about how you will administer your parents’ affairs…or who will administer yours…should it become necessary.

Appointing a Curator Bonis

There are two ways in which you can appoint someone, called a Curator Bonis, to administer the estate of an individual who is incapable of managing their affairs. We’ll look at each procedure in turn.

1. Common law procedure – application to the High Court

The High Court may declare a person incapable of managing their own affairs, and may appoint a Curator to manage their affairs and/or property. The procedure for this is set out in Rule 57 of the Uniform Rules of the High Court.

Anyone who wants to apply to the court for such an order must first apply for the appointment of a Curator Ad Litem. This application is by way of notice of motion and must contain:

  • Full particulars of the locus standi (the right to make the application) of the applicant
  • Jurisdiction of the court
  • The age and sex of the person considered incapable, full particulars of their means, and information as to their general state of physical health
  • The relationship between this person and the applicant, and the duration and intimacy of their association (if any)
  • The facts and circumstances provided as evidence that the person is of unsound mind and incapable of managing their affairs
  • The name, occupation and address of the respective persons suggested for appointment by the court as Curator Ad Litem, and subsequently as Curator Bonis of the person’s affairs or property, and a statement that these people have been approached and have indicated that, if appointed, they would be able and willing to act in these respective capacities

The application should be supported by:

  • An affidavit by someone who knows the person well, containing facts and information about the person’s medical condition. The affidavit must also set out the relationship between the deponent (the referee) and the person, and the deponent’s interest in the matter
  • Two recent medical reports by medical practitioners, one of whom should (where practicable) be a psychiatrist, who have conducted recent examinations of the person to determine their medical condition. The reports must contain the facts about the condition and opinions about the nature, extent and likely duration of any mental disorder or defect observed. They must comment on the person’s inability to manage their affairs. The medical practitioners should not be related to the person or have any interest in the matter

The court will then appoint a Curator Ad Litem (usually an advocate of that court) to investigate the matter fully and report to the court and the Master [Rule 57(4) & (5)]. The Curator Ad Litem will interview the person and make any further enquiries necessary. They will then prepare and file a report with the Registrar of the court.

The Master also compiles a report after receiving the Curator Ad Litem’s report, making recommendations to the court regarding the merits of the application, the suitability of the nominated curator, their powers and security [Rule 57(7)]. Upon consideration of the application, the reports from the Curator Ad Litem and the Master, and any other relevant information, the court will issue the order if necessary [Rule 57(10)].

When the High Court appoints a curator to administer someone’s estate, they may not act on that appointment until formally authorised by the Master of the High Court. Section 71 of the Administration of Estates Act 66 of 1965 provides that no one who has been nominated, appointed or assumed as curator may administer any property belonging to the person under care until authorisation is received via letters of curatorship.

2. The procedure for the appointment of an administrator as set out in the Mental Health Care Act, 17 of 2002

In terms of the Mental Health Care Act, the Master of the High Court may, after considering and processing the required application, appoint an administrator to manage the property of a person who has been diagnosed as mentally ill or a person with severe or profound intellectual disability.

While the common law application is appropriate for any situation where the person is incapable of managing their own affairs, this application is only relevant in the case of mental illness or severe or profound disability. The diagnosis will have to be confirmed by medical certificates or reports by a mental health care practitioner duly authorised to make such a diagnosis.

Because no High Court application is required for the appointment of an administrator, the procedure is far less costly than the common law appointment of a Curator Bonis. The application can be lodged directly with the Master of the High Court in the relevant jurisdiction (where the person needing the administrator resides). The applicant does not need to use an attorney, although a good family lawyer’s assistance in lodging the application with the Master can make the task much easier.

The application procedure for the appointment of a curator in terms of the Mental Health Care Act is set out in section 60 of the Act and provides as follows:

  • Any person over the age of 18 may apply to a Master of a High Court for the appointment of an administrator for a mentally ill person or person with severe or profound intellectual disability.
  • The application must be made in writing, under oath or solemn affirmation and must:
    1. Set out the relationship of the applicant to that person
    2. State the reason why the spouse or next of kin did not make the application, if the applicant is not a spouse or next of kin of that person
    3. Describe the steps taken to establish the whereabouts of the next of kin before making the application, if they are not available to make the application
    4. Include all available mental health-related medical certificates or reports relevant to the mental health status of that person and to their incapacity to manage their property
    5. Set out the grounds on which the applicant believes the person is incapable of managing their property
    6. State that, within seven days immediately before submitting the application, the applicant had seen the person
    7. State the particulars of the person and their estimated property value and annual income
    8. Give the particulars and contact details of anyone who may provide further information relating to the mental status of the person
  • The applicant must attach proof that a copy of the application has been submitted to the mentally ill person.

Powers of a curator

The powers and responsibilities of a curator or administrator are primarily to administer the estate of the person who is incapable of managing their own affairs, including the following:

  • To receive, take care of, control and administer all the assets
  • To carry on/or discontinue, subject to any law which may be applicable, any trade, business or undertaking
  • To acquire, whether by purchase or otherwise, any property, movable or immovable, for the benefit of the estate
  • To apply any money for the maintenance, support or towards the benefit of the person; to invest or re-invest any funds etc.

These powers are usually subject to the prior consent and approval of the Master.

Contact a specialist family lawyer

While an attorney may not be explicitly required under the second procedure above, in both cases a family lawyer experienced in estate planning and management will make a complex and difficult situation easier to understand and manage. There are multiple steps in the process of appointing a curator, and it is important to ensure nothing is left out. There may be other considerations, too, such as a will and life insurance provisions. Don’t put the financial wellbeing of your loved one at risk. Contact family lawyer Cape Town for a consultation. Speak to Simon on 086 099 5146 or simon@sdlaw.co.za today for more information or to make an appointment.

 

Use our handy checklist to make sure you have everything you need.

Read our blog post on the different types of curatorships and administrators.

 

 

 

 

Read More

Criminal record? Wipe it clean

Make a fresh start

Expungement of criminal record

If you have a criminal record, no matter how minor the offence, your chances of getting a job are slim. But there is good news. If it’s been 10 years or more since the conviction, you can apply to have your criminal record wiped clean. This is known as “expungement”.

What is expungement of a criminal record?

Expungement of a criminal record is a legal process through which you can apply to the Department of Justice to remove any record of previous minor criminal offences from the criminal record database of the South African Police Service (SAPS).

This process came into effect in 2009 as a result of changes to the Criminal Procedure Act, 1977 (Act 51 of 1997) which made it easier for people to clear their name of a minor offence so that the past was no longer an obstacle to future employment opportunities. The Act was also designed to assist anyone convicted of apartheid era crimes.

Note that expungement of criminal records differs from restorative justice.

Are you eligible to have your criminal record wiped clean?

According to Section 217B(1) of the Criminal Procedure Act, you can apply to have your criminal record expunged if:

  • It has been 10 years since the date of your conviction (if you were 18 or younger when you were convicted you can apply after five years).
  • It was a minor offence, such as petty theft or shoplifting.
  • You were not convicted of any other offence and were given the option of a fine rather than imprisonment.
  • You were told that by paying a fine you would not receive a criminal record and you’ve subsequently discovered that you indeed have a record.
  • You were fined less than R20 000.
  • You received a suspended sentence.
  • Your name has been removed from the National Register of Sex Offenders or the National Child Protection Register, if relevant.

You do not qualify for expungement if:

  • It has not been 10 years since the conviction.
  • Your name is either listed in or has not been removed from the National Register for Sex Offenders or the National Child Protection Register.
  • You were sentenced to prison without the option of a fine.
  • You received a fine of more than R20 000.
  • You were convicted of a serious crime such as murder, rape other sexual offences, or violent crimes.

Getting the ball rolling – steps in the expungement process

  1. First obtain a clearance certificate from the Criminal Record Centre of the SAPS proving that 10 years has elapsed since your conviction. This certificate must be attached to your application.
  2. Complete the expungement application forms (Part II and Part III) and, together with the clearance certificate, post or hand deliver them to the Department of Justice and Constitutional Development in Pretoria.
  3. If you meet the requirements set out in section 271B(1) of the Act, you will be notified in writing that your application was successful and that your crime has been expunged. You will likewise receive written notification if your application is denied together with the reasons for this decision. The process usually takes about three months.

The employment landscape

One of the biggest challenges facing South Africa is high unemployment, coupled with widespread poverty, high inequality and poor economic growth. The country’s official unemployment rate for job-seekers is 27.2% (Stats SA), but if we accept the broad definition, which includes those who have given up trying to find a job, the true level of unemployment is probably closer to 50%.

Finding a job is hard enough without the added barrier of a criminal record. Since more and more employers are running background checks on potential employees and are entitled to refuse or terminate employment because of a previous crime, even a minor one, it makes sense to apply for expungement. Any future background checks will not reflect prior convictions.

Given the gloomy landscape, job seekers must be able to “put their best foot forward”. Don’t let a past mistake determine your future.

Let our law firm help you

Cape Town Attorneys, SD Law & Associates Inc. are criminal attorneys and bail lawyers. Speak to us to find out more about having your criminal record wiped clean or about any other aspect of criminal law. Call Cape Town Lawyer Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

 

Further reading:

 

 

Read More

Wounding Words

Law firm Cape Town

by Simon David Dippenaar

As children, we were raised hearing the old adage that ‘sticks and stones may break one’s bones, but words can never harm one.’

However, one soon comes to the stark realisation that this is not actually true. This is particularly so, for example, when one considers all those that have committed suicide as a result of words.

Words are powerful. They can bring down governments, they can start wars, and they can destroy lives. The reality is that words can hurt more than broken bones in many cases. Some people actually bear the physical marks on their body from someone else’s words.

Too often we use words without considering their impact.

What we need is a society that is cognisant of the impact of words and a desire to temper them so that they are a force for good, and not for destruction.

This post was prompted by a very recent client who was repeatedly called a “moffie” and even beaten up by his neighbour because he is gay. “Moffie” is a word that has often been used to degrade gay men and is riddled with negative connotations.

More often than not, individuals choose to ignore the discrimination, but it can sometimes cause so much pain and make it impossible for some to break out of the psychological torture. This is one of those pillars of prejudice that has to be toppled in the creation of a non-sexist society.

The South African Constitution protects everyone in the country, irrespective of whether they are citizens or not, and all have the right to dignity and equality. The Constitution specifically provides that the right to freedom of expression does not extend to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

It is important to note, however, that ‘hate speech’ does not refer to words that are merely hurtful, insulting or upsetting. For words to amount to hate speech, they must be regarded as advocating hatred and must constitute an incitement to cause harm to that person or group of persons.

Social ambiguity about men being abused is a factor in their not speaking up; they also run the risk of not being believed. In situations where individuals have experienced discrimination, there are various legal avenues that can be pursued.

Cape Town Lawyers at SD Law South Africa, we understand the pain caused by words that are intended to hurt and destroy. You need not suffer in silence. We can help so that you can walk tall and hold your head up high. We can ensure that your rights are protected, whether through alternative dispute resolution, litigation or other avenues.

Get in touch with me if you have a matter you would like to discuss.

Read More