Tibshraeny v Tibshraeny [2025] ZAWCHC 117
The applicant (DT) brought an application for the appointment of a curator ad litem and a curator(s) bonis et personae for his father (JT). The application was opposed by JT as the respondent and he was strongly supported by DT’s sister, NB. JT is a well-known Cape Town restaurateur and the founder and owner of Willougby’s in the Cape Town Waterfront who, according to DT’s application, is suffering from dementia and became incapable of managing the business and his investments, including some fixed properties. DT also alleged that he was prevented from seeing his father by NB and their uncle and aunt, who came to stay with JT and his spouse to assist and care for them. According to DT the uncle and aunt, as well as NB, took advantage of JT’s generosity. Substantial evidence of JT’s erratic behaviour with regard to rental properties and his inability to keep a proper eye on the business was part of DT’s case. When JT was taken to see a physician, the doctor noted that JT suffers from memory loss and arranged for him to be seen by a psychiatrist. The psychiatrist’s report diagnoses JT with a Major Neurocognitive Disorder, advised support and protection with respect to financial matters, and noted that the appointment of a curator may be necessary. This report was withheld from DT and he only obtained a copy almost nine months later. A follow-up visit to the psychiatrist arranged for JT was cancelled and NB and other family members, together with JT, turned up at the psychiatrist’s consulting rooms without an appointment and demanded JT’s medical records, which they then took with them. When DT obtained a copy of the psychiatrist’s report, he started the process to bring the application. JT’s case is that DT wants to take the management of the business and JT’s investments away from JT for his, DT’s, own aims and benefit. In opposing the application NB submitted the affidavit of a Johannesburg psychiatrist who criticised his Cape colleague’s diagnosis and stated that many more tests should have been done. JT’s own view was that he is capable of managing his own affairs and that he has surrounded himself with a support structure to help him look after his affairs in old age.
The court (Da Silva Salie J) appointed an independent expert, Professor Niehaus, to assess the Cape psychiatrist’s report as well as his Johannesburg colleague’s criticism thereof. The court found that, on a balance of probabilities, DT has proved that JT is incapable of managing his substantial business interests and that a curator(s) should be appointed to manage his affairs. In the fairly lengthy judgement the court also points out that the evidence of experts cannot merely be slavishly followed by a court, but that the court should investigate the supporting evidence on which the expert bases the opinion. The court also found that there is no logic in the argument that DT wanted the curator(s) appointed for his benefit, as the care and oversight of the curator would prevent exploitation of JT’s financial interests by any of the parties. The court ordered the appointment of a curator ad litem and that this curator should make recommendations as to the identity and number of the curator(s) bonis. Costs are to stand over until the final order for the appointment of the curator(s) bonis.