1. Compiled by: Lize de la Harpe, Legal Advisor: Glacier by Sanlam
This publication is intended for use by intermediaries.
As previously discussed, no person is by nature able to act on behalf of another - he or she must have the necessary
authority to do so. This authorisation is commonly given in the form of a power of attorney, which is a formal document
by which a person (“the principal”) empowers/authorises another (“the agent”) to conclude juristic acts on his or her
behalf.
South African law of agency is based upon the principle that an agent cannot do that which his principal has no
capacity to do himself. In other words, one cannot authorise someone else to perform acts that you yourself do not
have the capacity to perform.
The problem therefore arises when the principal’s mental capacity starts to diminish and he/she loses the capacity to
act. South African common law determines that a power of attorney terminates once the principal becomes mentally
incapacitated. In other words, when a principal is no longer able to perform the act in question himself, the agent can
no longer do it for him. A validly concluded power of attorney therefore automatically lapses as soon as the principal
loses the legal capacity to act.
The dilemma: the agent is all of a sudden left with no authority to act on behalf of the principal and the principal cannot
act either since he/she is mentally incapacitated. If the agent continues to act on the void power of attorney, he
exposes himself to personal liability for any losses suffered by a third party as a result of transactions arising from the
void power of attorney.
Currently, the only legal solutions are either to approach the court for the appointment of a Curator, or applying to the
Master for the appointment of an administrator, depending on the circumstances.
In this article we explore these two options.

2. 1. Types of appointments
An application may be made to court for the appointment of a curator to look after the property of a person who, by
reason of mental illness or otherwise, is incapable of managing his or her own affairs. There are three “types” of
curators in South African law:
a) A curator ad litem is appointed to assist with litigation – he/she will (during legal proceedings) act as the legal
representative appointed by a court to represent the best interests of a person who lacks the mental capacity
to make decisions for themselves.
b) A curator bonis is appointed to look after the patrimonial interest (the property) of a person and supplements
the person’s lack of capacity to contract. “Curator bonis” means the curator for the “things, possessions and
goods” of a person and is thus responsible for administering the estate of the person over whom he has been
appointed.
c) A curator personae is appointed to look after the personal welfare of a person. He/she will be responsible for
making decisions such as suitable accommodation for the patient or providing consent for an operation.
2. Application to court
Rule 57(1) of the Uniform Court Rules deals with the appointment of curators and sets out the procedure to
follow.
The application is brought ex parte (i.e. by one party alone) and is usually made by a relative or member of the
patient’s family. The court where the application is brought must have jurisdiction over the person (herein after
referred to as the “patient”).
Rule 57(2) sets out exactly what this application must contain, inter alia:
a) The grounds on which the applicant claims locus standi (i.e. the right or capacity to bring an action or to
appear in a court) to make such application;
b) The grounds on which the court has jurisdiction over the patient;
c) The patient’s age, sex, particulars of his means and information on their general state of health;
d) The relationship between the applicant and the patient (if any);
e) The facts and circumstances relied upon to show the patient is of unsound mind and incapable of managing
his own affairs;
f) The name, occupation and address of the person suggested for appointment as curator ad litem and
subsequent curator bonis and/or curator personae.
In effect, the applicant asks the court for three things, namely (i) to declare the patient incapable of managing
his/her own affairs; (ii) to appoint a curator ad litem; and (iii) to appoint a curator bonis or curator personae or
both. Bear in mind, it is not essential that a person be declared mentally ill in terms of the Mental Health Care Act
before a curator can be appointed by a High Court.
Rule 57(1) specifically states that the appointment of a curator for the person or property of the patient shall be
preceded by the appointment of a curator ad litem (since the patient cannot represent himself). The court may
dispense with this requirement if the circumstances justify it.
The application must be supported by an affidavit of at least one person to whom the patient is well known and
containing such facts and information (in the deponent’s own knowledge) concerning the patient’s mental

3. condition, as well as affidavits by at least two medical practitioners who have conducted recent examinations of
the patient in order to ascertain and report on the mental condition of the patient. The medical practitioners have
to (as far as possible) be unrelated to the patient and without any personal interest in the matter.
After considering the application, the court usually appoints the suggested person or another suitable person to
act as curator ad litem to the patient. Rule 57(5) states that upon his/her appointment, the curator ad litem (who is
usually an advocate or an attorney) must interview the patient to explain the nature of the appointment, make
such enquiries as the case appears to require and then draw up a report on the patient’s mental condition. This
report is filed with the Registrar of the High Court and a copy is sent to the applicant.
The applicant is responsible for submitting a copy of the report (together with a copy of the application itself) to
the Master. The Master will then, in turn, compile a report in which he will provide comment on the patient’s
means and circumstances, the suitability or otherwise of the person who has been nominated as curator bonis or
curator personae and will also make further recommendations (for example, the powers to be conferred upon
such curators, as well as the furnishing of security and rendering of accounts).
Once the applicant receives the report from the Master he/she can place the matter on the court roll for hearing to
obtain an order declaring the patient of unsound mind and incapable of managing his her own affairs and for the
appointment of a curator bonis and/or curator personae.
3. Powers and duties of a curator
In terms of the Administration of Estates Act 66 of 1965 the Master is obliged to confer such powers on the
curator as are required to give effect to his/her appointment. The court is empowered to appoint a curator on
such terms it deems fit.
4. Costs of a curator
A curator is entitled to remuneration for these services from the income derived from the property concerned or out
of the property itself. The court may fix the remuneration. If it does not, it must be assessed according to a
prescribed tariff and is taxed by the Master.
The Mental Health Care Act 17 of 2002 regulates the procedures regarding the appointment, duties, powers, functions
and termination of the appointment of an administrator appointed for the property of a person who is mentally ill or with
severe or profound intellectual disability.
Let’s first look at some key definitions as set out in section 1 of this act:
a) “Administrator” is defined as a person appointed in terms of section 59 to care for, and administer the property of a
mentally ill person and, where applicable, includes an interim administrator;
b) “Mental illness” is defined as a positive diagnosis of a mental health related illness in terms of accepted diagnostic
criteria made by a mental health care practitioner authorised to make such diagnosis;
c) “Severe or profound intellectual disability” is defined as a range of intellectual functioning extending from partial self-
maintenance under close supervision, together with limited self-protection skills in a controlled environment through
limited self-care and requiring constant aid and supervision, to severely restricted sensory and motor functioning
and requiring nursing care.

4. 1. Application to Master
Section 59 of this act empowers the Master of a High Court to appoint an administrator on consideration of an
application as submitted in terms of section 60, or upon an order made by a High Court after an appeal or an
enquiry referred to in section 60 or 61, respectively, stating that such person is incapable of managing his or her
property and requesting that an administrator be appointed.
Accordingly, an administrator may only be appointed in respect of the property of a mentally ill person or a person
with severe or profound intellectual disability if the procedures set out in sections 60 or 61 have been complied
with.
2. The process – Section 60
Section 60 of the Act empowers any person over the age of 18 to apply to the Master for the appointment of an
administrator for a mentally ill person or a person with severe or profound intellectual disability.
The application must be made in writing under oath and must set out the following:
a) The relationship between the applicant and such person;
b) Include all relevant mental health related medical certificates/reports relevant to the mental health status and
to that person’s incapability to manage his/her property;
c) set out the grounds on which the applicant believes that such person is incapable of managing his or her
property;
d) a statement that, within seven days immediately before submitting the application, the applicant had seen that
person;
e) the particulars of that person and his or her estimated property value and annual income; and
f) the contact details of persons who may provide further information relating to the mental health status of such
person.
The application is typically brought by the spouse or next of kin – section 60(2)(a) actually states if the application
is brought by someone else they will need to set out the reasons why the application was not brought by the spouse
or next of kin.
The Master will consider the facts as set out in the application, whereafter he may either:
a) appoint an interim administrator pending the outcome of an investigation referred to in section 60(5); or
b) appoint an administrator without conducting an investigation, if-
i. the estimated property value and annual income of that person is below the prescribed amount (currently
an estate of less than R200 000 or an annual income of less than R24 000); and
ii. satisfied that sufficient good grounds exist to make the appointment.
Section 60(5) states that an investigation must be launched (within 30 days of receipt of the application) if there is
a need to confirm certain allegations made in the application, if further information is required to support the
application, or in the instance where the estimated property value and annual income of that person is above the
prescribed amount. One thus has to bear the following in mind: if the estate/annual income exceeds the limits as
set out above, the Master must cause an investigation to be conducted.
The person conducting the investigation has 60 days (or such extended period as granted by the Master) within
which to confirm all allegations and facts set out in the application and submit his findings in a report to the Master
of the High Court.

5. The Master must, within 14 days after considering the report, either appoint an administrator, decline to appoint an
administrator or refer the matter for consideration by a High Court judge in chambers.
The Master will then inform the applicant and the mentally ill person or person with severe or profound intellectual
disability of his decision and the reasons therefor, in writing.
3. The process – Section 61
Section 61 of the Act in turn deals with instances where an application for an administrator is brought on the
recommendation of the High Court. This would typically be the instance where, during the course of an enquiry or
any legal proceeding before court, the High Court (i.e. the judge) has reason to believe that the person in respect
of whom the enquiry or legal proceeding is held or conducted, is incapable of managing his/her own property.
Section 61 empowers the High Court, as part of that enquiry or proceeding, to initiate an investigation into the
mental health status of that person and his or her capacity to manage his or her property. The High Court may,
when conducting such investigation, request for further information from any relevant person as may be necessary
for purposes of establishing the mental health status of the person concerned, and the capacity of that person to
manage his or her property.
If, on completion of the investigation, the High Court finds such person incapable of managing his or her property,
the High Court may recommend that an administrator be appointed. The court will notify the person and the
Master of the finding and the reasons therefor.
The Master of the High Court must, in turn (within 60 days from the notice of the High Court), cause an
investigation to be conducted into the estimated property value and annual income of the person concerned, and
determine a suitable candidate to be appointed as administrator for that person, or appoint an administrator (if the
estimated property value and annual income is below the prescribed amount).
4. Who pays for conducting the investigation?
The costs are either paid from the estate or by the applicant. Section 60(14) empowers the Master and the High
Court Judge (in chambers) to order that, if the application was trivial or vexatious, the applicant be held accountable
for the costs incurred.
The costs are determined by the Master after consultation with the person conducting the investigation.
5. Power and duties of the administrator
The powers and functions of an administrator are set out in section 63 of the act and can be summarised as follows:
a) Before the Master of the High Court signs an official notice of appointment, the administrator must lodge
security of an amount to be determined by the Master. The Master can however, on good cause shown, reduce
the amount required or dispense with this requirement.
b) An administrator has powers and functions to take care of, and administer the property of the person for whom
he or she is appointed, and perform all functions incidental thereto, and to carry on any business or undertaking
of that person, subject to any other law.
c) The administrator may not alienate or mortgage any immovable property of the person for whom he or she is
appointed unless authorised to do so by a court order or with the consent of the relevant Master of the High
Court.
d) The administrator must, immediately after his appointment, pay all moneys received to the Master, unless:
i. the Master directs otherwise;
ii. a legal document of that person made before the administrator was appointed, authorises otherwise, or

6. iii. the money is required to:
- repay any debt;
- pay expenses relating to the safe custody of the property of that person;
- maintain or educate that person or his or her dependants; or
- pay for the current expenditure of the business or undertaking of the person.
Section 65 also states that, in addition to the provisions of the Mental Health Care Act, certain provisions of the
Administration of Estates Act 66 of 1965, with the necessary changes, apply to any administrator appointed in
respect of a mentally disabled person.
6. Can the appointment of an administrator be appealed?
Yes, section 60(10) empowers the applicant, mentally ill person or person with profound or severe intellectual
disability to, within 30 days of receipt of the written notice, appeal against the decision of the Master by submitting
a written notice of appeal to a High Court Judge in chambers and a copy to the Master setting out the grounds of
the appeal.
As we can see from the above, the process for appointing a curator has various obstacles. It involves a formal High
Court application by way of a Notice of Motion, which is an expensive and lengthy process, not to mention complicated.
The process necessitates the appointment of attorneys and/or advocates which is often not financially viable for most.
The size of the estate might also not justify the cost.
Appointing an administrator in terms of the Mental Health Care Act 17 of 2002 appears somewhat less complicated
since it doesn’t involve an application to the High Court - the Master has the authority to appoint an administrator. The
application is thus made directly to the Master and the process as set out in sections 60 and 61 is fairly simple, with set
times lines.
Interesting to note: countries such as the UK, Canada, USA, New Zealand and Australia have already introduced
enduring powers of attorney that remain in force despite the mental incapacity of the principal. The principal – while still
mentally competent – executes a power of attorney which explicitly states that the power of attorney is to remain valid
despite a decrease of capacity which the principal may experience in the future.
The possibility of introducing such a system in South Africa has been investigated by the South African Law Reform
Commission. Recommendations were made in a report titled “Assisted Decision-making: Adults with Impaired Decision-
making Capacity” Discussion Paper 105 (January 2004)” which included a draft bill. Years later the matter has yet to be
taken further.