Pretoria - A court on appeal stepped in to safeguard the R2.28 million a woman had received from the Road Accident Fund after she was involved in an accident.
The woman indicated that she had planned on dishing out at least R1m of the payout to her family and friends.
The woman, who is not being identified due to her circumstances, was earlier declared unfit by a court to manage her own financial affairs, as she is illiterate and unable to understand and interpret financial advice.
A neuropsychologist who examined her supported the appointment of a curator. It was found that her functional illiteracy was unrelated to the car accident.
The court at the time appointed an advocate to act in her best interests and to make decisions regarding her financial affairs. It was noted that a curatorship need not be a permanent feature of her life as she was not of unsound mind and may in due course become financially literate.
The advocate had assisted her in launching her claim successfully against the RAF and ensured that her money was used wisely and to her advantage through a trust.
But the woman’s daughter turned to the Western Cape High Court to have her mother released from her curatorship, so that she could do with her money as she wished. The daughter told the court that her mother was of a sound mind and could thus decide what to do with the money as she wished.
The daughter told the court that she was close to her mother and she had a “real concern” for her welfare. She said a specialist who examined her mother recently said that she had recovered from the accident, thus, according to the daughter, she was now ready to handle her own financial affairs.
She also said her mom was fed up with the curator whose curatorship “negatively affects her life, status and dignity as she is treated like an imbecile”.
The mother was not a party to that application, on the basis of legal advice received that she could not launch such proceedings given that she had been placed under curatorship.
The curator opposed that application and said there had been no material change in the reasons which had justified the curatorship imposed, that she had not become financially literate and remained incapable of managing her own affairs.
He told the court that she intended to give away more than R1m to family and friends, without any understanding of the concept of donations tax and that she intended to invest R1.2m, but was unable to explain how she would do so.
She was also unhappy because he had refused her access to large amounts to pay for coffins and funeral costs for family and non-family, including R35 000 for a coffin for her mother.
A judge at the time ruled in favour of the daughter as he found she had the best interests of her mom at heart.
He also said that the mother did not want the curatorship to continue and asked whether it was “fair to disregard her wishes and continue to subject her to the standards and expectations of people who are better educated or have higher levels of intelligence” than her.
The court considered it “unpalatable” to require the mother to undergo a psychiatric test to determine her “sophistication level”. It was found to be her right as an adult not to accept the benefits of the curatorship when she was of sound mind.
The judge said: “To continue subjecting the patient to curatorship … would be tantamount to endorsing the unfortunate and unfounded belief that only those who are sufficiently schooled in the Western ways of doing things have an inherent right and can be trusted to properly manage large estates. In our country, Africa, where people have a culture of living communally, it would not be fair to condone this kind of attitude. A cultural misplacement should neither be allowed nor promoted.”
The judge added that “the courts must be alive and adept enough to put a halt on pure commercial tendencies from undermining the working and established practices of people who do not conform to the popular Western expectations.”
According to the judge a coffin costing R35 000 would have amounted to a lasting token of her appreciation for her mother and the patient had the right to make such a choice.
But, on appeal, three judges held a different view. They said the remarks by the judge that such protections reflect the imposition of “Western ways” imposed on “people who do not conform to the popular Western expectations” were without merit.
In terms of the latest order she will remain under curatorship until further neuropsychological reports suggest she is capable of handling her own affairs.
Pretoria News