Since the coming into operation of the Mental Health Care Act, 17 of 2002, (hereinafter referred to as "the Act") on 15 December 2004, confusion has reigned between the appointment of an administrator in terms of the Act, and a curator appointed in terms of the common law.
To eradicate any further confusion, the appointment and powers of the administrator and curator are now discussed.
Appointment of an Administrator
Section 59(1) of the Act states that the Master of the High Court may appoint an administrator to care for and administer the property of a mentally ill person or person with severe or profound intellectual disability.
Powers of the Administrator
In terms of section 63(4)(a) of the Act an 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.
Section 65 of the Act provides for the applicability of sections 75, 78, 79, 83, 84 and 85 of the Administration of Estates Act, 1965 (Act No. 66 of 1965), subject to the necessary changes, to any administrator appointed in terms of the Act. The sections of Act 66 of 1965 that concern the deeds controller and conveyancer, are sections 79 and 85:
Section 79 of Act 66 of 1965 for the sake of completeness, reads as follows:
"79. Returns by Masters to registration officers of immovable property included in inventory. -
The Master shall forthwith after receipt by him of an inventory under section seventy-eight in which immovable property has been included, furnish to the .registration officer concerned a return specifying the name of the minor or other person concerned and of the tutor or curator and particulars of such property.
- No registration officer who has been furnished with such a return, shall register any transaction in respect of such property entered into by the tutor or curator concerned, except in pursuance of any will or written instrument by which that tutor or curator has been nominated or in pursuance of any authority granted under section eighty."
The practical effect of this section, in relation to an administrator appointed in terms of the Act, is that the Registrar of Deeds must note the return referred to in section 79(1 ) of Act 66 of 1965 as a caveat against the name and property of the mentally ill person mentioned therein.
It is important to note that section 79(2), of Act 66 of 1965 I quoted above, makes reference to section 80 of the same Act. However, the provisions of section 63(4)(a) of the Mental Health Care Act must be complied with in respect of the alienation or mortgage of immovable property of a mentally ill person.
Section 85 of Act 66 of 1965, for the sake of completeness, reads as follows:
"85. Application of certain sections to tutors and curators. -
Sections 24, 26, 28 and 36, subsection (2) of section 42, sections 46 and 48, subsection (2) of section 49 and sections 52, 53, 54 and 56 shall mutatis mutandis apply with reference to tutors and curators. Provided that any reference in any of the said sections of a will shall, for the purposes of its application under this section, include a reference to any written instrument by which the tutor or curator concerned has been nominated."
The only section of Act 66 of 1965 mentioned in the above quoted section that concerns the Deeds Registry is section 42(2).
Whenever an executor desires to effect transfer of any immovable property in pursuance of a sale, the said section 42(2) provides for the lodgement of a Master's certificate to the effect that no objection to such transfer exists.
The practical effect of this, in relation to immovable property registered in the name of a mentally ill person, is that a section 42(2) certificate must be lodged whenever the administrator of such property wishes to effect transfer of the same in pursuance of a sale.
Appointment of a curator
There are three types of curators, namely, curator personae, curator bonis and curator ad litem. Each are now briefly alluded to:
A curator personae is appointed to see to the personal needs of the person over whom he is appointed. A curator personae is usually appointed where a person is found to be incapable of managing his personal and health affairs.
A Curator bonis is appointed to look after the patrimonial interest of the person under curatorship. A Curator bonis supplements the person's lack of capacity to contract and is typically appointed when a person is found to be incapable of handling his own financial or property affairs.
The Master of the High Court may grant a letter of curatorship to a curator appointed by the court or a judge (section 2(1)(d) of Act 66 of 1965) and therein confer upon the curator such powers as will give effect of the terms of the appointment by the court or the judge (section 76(2)(a) of Act 66 of 1965).
Powers of the curator bonis
When a person is declared mentally incapacitated by the court, the court may appoint a Curator bonis to perform or execute a particular act on his/her behalf in respect of his/her property or to manage or look after such person's property.
A curator only has the powers conferred upon him/her by the court in his/her letter of appointment (Ward NO v Lockhat Ltd 1928 AD 279 at 284). He/she may not exceed those powers and if he/she wishes to do as such he/she must obtain the necessary authority from the court (Ex parte De Lange 1939 EDL 186).
Regarding immovable property of the mentally incapacitated person, section 80 of the Administration of Estates Act clearly prescribes that the curator shall not alienate or mortgage any property that he/she has been appointed to administer unless he/she has been authorised thereto
- by any will or written instrument by which he/she has been appointed as executor; or
- by the Master of the High Court where the value of the particular property to be alienated does not exceed the amount determined by the Minister from time to time by notice in the Government Gazette and if the alienation would be in the interest of the mentally incapacitated person (section 80(2)(a) of Act 66 of 1965); or
- by the High Court where the value of the immovable property concerned exceeds the amount determined by the Minister from time to time by notice in the Government Gazette.
Proof of the authorisation of the Master of the High Court (para (b) supra) must be submitted by means of an endorsement on the power of attorney to give transfer, in terms of section 80(1) of Act 66 of 1965, and the court order must be lodged to prove the authorisation of the High Court (para (c) supra).
N.B.: The amount is currently fixed at R100 000.
Where it is averred that a curator is acting by virtue of the capacity granted to him/her in terms of the will or written instrument, a copy of such will or written instrument, certified and accepted by the Master, must be lodged with the deed so that the curator's competency may be verified. A certificate in terms of section 42(2) of Act 66 of 1965, which states that no objection to the transfer exists, must be furnished by the Master (section 85 of Act 66 of 1965).
It is imperative that from a conveyancing aspect one does not confuse the administrator and the curator bonis, as the documentation/proof to be submitted to a Registrar of Deeds differ.
It is trusted that the above has shed more light on the possible confusion between the curator bonis and administrator.
Republished with permission from SA Deeds Journal