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WHAT IS THE ROLE OF A CURATOR BONIS & HOW IS HE/SHE APPOINTED?

WHAT IS THE ROLE OF A CURATOR BONIS & HOW IS HE/SHE APPOINTED?

A curator bonis is a person (usually an attorney or advocate) appointed by the High Court to manage the financial interests and assets of a person who has been declared to be unable to do so. The reason for his/her inability could stem from mental or physical incapacity.

To illustrate: John has been diagnosed with dementia and can no longer manage to take care of his day to day or long-term financial affairs. In such a case it would be appropriate to appoint a curator bonis, who would be tasked with managing John’s financial affairs optimally.

The appointed curator bonis does not have free reign to make decisions regarding John’s financial affairs as he/she pleases, but is limited to those powers which are granted by the Court.

These powers may include:

  • To sell any property belonging to John;
  • To carry on or discontinue any business or undertaking of his;
  • To invest John’s available funds;
  • To apply any money towards his medical care and maintenance.

The curator bonis, once appointed will also be obliged to provide regular reports and updates to the Master of the High Court and must submit a detailed administration account to the Master at each financial year end, setting out the income received, expenditure incurred etc.

The duties and powers of the curator bonis are therefore monitored by the Master and he/she is also obliged to provide security to the Master, as a guarantee that he/she will execute his/her duties properly. In most cases, an attorney will be appointed as curator bonis, as attorneys are obliged to have Fidelity Fund certificates, which satisfies the Court’s requirement for security.

The process for appointment of a curator bonis can briefly be outlined as follows:

As mentioned, it is an application to the High Court, which application will be supported by an affidavit from the applicant (the person applying to court for the appointment of a curator bonis, for example John’s aged mother, as well as affidavits by two medical practitioners (one of which must be a psychiatrist) who have assessed John’s mental competence and can advise the Court on whether he is incapable of managing his own financial affairs.

Once the curator bonis has been appointed by the Court, he/she will essentially step into John’s shoes in all matters relating to his assets and financial affairs.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

RIGHT TO A FAIR TRIAL

RIGHT TO A FAIR TRIAL

A2After the Oscar Pistorius saga everyone is wondering about the procedures of a murder trial. In this article we will discuss the right to a fair trial.

In the case of Zanner v Director of Public Prosecutions, Johannesburg (107/05) [2006] ZASCA 56, 2002 (2) SACR 45 (SCA); [2006] 2 All SA 588 (SCA), the factory worker threw a tool at a colleague, which ended fatally. In the statement of the accused he alleged that the tool had slipped from his oily hands when he slung his shoulders in a gesture of irritation. The matter could at first not proceed with trial as the witness was missing. Once she had been found, the trial was set down to be heard. However, the charge was withdrawn as representations had been made on behalf of the accused.

After ten years the case had been reopened as the accused had been charged for killing his wife, which was a direct relation to his previous conviction. The accused relied on Section 35 (3) (d) of the Constitution which states that “every accused person has the right to a fair trial, which include the right to have their trial begin without unreasonable delay”.

In this matter the accused believed that his case would suffer prejudice due to the previous murder trial of ten years ago. Furthermore, Section 38 of the Constitution grants a relevant party the right to approach a competent court on the ground that a right in the Bill of Rights has been infringed or threatened and, depending on the circumstances of each particular case, the court may grant appropriate relief, including a declaration of rights. Trial related prejudice refers to prejudice suffered by an accused mainly because of witnesses becoming unavailable and memories fading as a result of the delay, in consequence whereof such accused may be prejudiced in the conduct of his or her trial[1].

Counsel agreed that the delay in prosecution had to be calculated from the date when the accused was first charged with the offence. The judge did not find in favour of the accused; however, he noted that each case is different and the lengthy delay cannot always be seen as an infringement on a right. The circumstances of the unreasonable delay needed to be investigated.

In this matter the accused’s previous conviction trial had been delayed because the witness was missing, the original docket papers were missing and the representations had been made on behalf of the accused. No issues of restricted freedom, stress, anxiety or social ostracism arose. The judge therefore found that the accused was not denied a right and the appeal was dismissed with costs.

[1] S v Dzukudu and others; S v Tshilo 2000 (2) SACR 443 (CC)

This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your attorney for specific and detailed advice. Errors and omissions excepted. (E&OE)

DIE REGSKOSTES STORIE

DIE REGSKOSTES STORIE

A3ab‘n Man stap by ‘n prokureur se kantoor in “Wat is jou fooi vir drie vrae?”

“R1 000” antwoord die prokureur. “Is dit nie ‘n bietjie stewig nie?” Vra die man. “Ja, so wat was jou derde vraag?”

 

Wanneer jy jouself in ‘n prokureur se kantoor bevind, is jy daar omdat jy ‘n probleem het. Iets het gebeur of iets moet gebeur en jy het hulp nodig om jou regte te beskerm. Heel waarskynlik, is dit jou laaste uitweg.

Dit is belangrik om te besef dat die advies van ‘n prokureur kom teen ‘n prys, soms ‘n baie hoë prys. Goedkoper beteken nie noodwendig beter as dit kom by jou regsverteenwoordiging nie. ‘n Senior, ervare of gespesialiseerde prokureur sal meer geneig wees om ‘n saak, hoe kompleks ookal, makliker en moontlik vinniger op te los.

Die onmisbare vertrekpunt is dat ‘n prokureur (of advokaat) net een ding het om aan jou te verkoop, en dit is sy of haar tyd.

Wanneer jy soek na regsdienste, is dit binne jou reg om vir prokureurs te vra om hul fooistruktuur aan jou te verduidelik. Kry ‘n skriftelike fooireëling in plek gedurende jou eerste konsultasie, en onthou dat volgens die Prokureurswet jy geregtig is op ‘n uiteengesette kosterekening.

Prokureurs mag ‘n deposito vra om die eerste konsultasie en die aanvanklike uitgawes te dek. Hierna kan jy jouself voorberei om te betaal vir elke minuut wat aan jou saak spandeer word. Antwoord ‘n e-pos? Ja. ‘n Oproep? Beslis!

Tyd is geld in hierdie besigheid en jy as kliënt moet verstaan ​​hoe jy kan help om jou regskostes so laag moontlik te hou :

  1. Jou eerste konsultasie met jou prokureur is baie belangrik, en soms, die enigste konsultasie wat jy nodig sal hê. Verskaf duidelike en bondige instruksies, hou tot die punt en wees voorbereid, bring al die nodige dokumente saam met jou;
  2. Hou alle konsultasies en korrespondensie met jou prokureur kort en tot die punt! Elke keer as jou prokureur ‘n 17 bladsy e-pos moet lees oor onbenullighede, betaal jy vir die tyd wat hy of sy daaraan bestee het;
  3. Moenie konsultasies met jou prokureur reël wat nie absoluut noodsaaklik is nie. As ‘n navraag telefonies bespreek of per e-pos hanteer kan word, volg eerder daardie roete en bespaar tyd (en geld);

Deur te voldoen aan die bogemelde punte behoort jou volgende uitstappie na jou prokureur ligter op jou sak te wees.

Geskryf deur Kestrel Carstens, Kandidaat Prokureur, MHI Prokureurs.

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies.(E&OE)

THE LEGAL FEE STORY

THE LEGAL FEE STORY

A3bA man runs into an attorney’s office. “What do you charge for three questions?”

“R1 000” replies the attorney. “Is that not a bit steep?” asks the man. “Yes, now what was your third question?”

 

When you find yourself at an attorney’s office, you’re there because you have a problem. Something has happened or something needs to happen and you need assistance to protect your legal rights. More than likely, this is your last resort.

It is important to realise that working with an attorney comes at a price, sometimes a very high price. Cheaper does not necessarily mean better when it comes to your legal representation. A senior, experienced or specialised attorney will more likely be able to resolve a matter, however complex, easier and possibly quicker.

The indispensable point of departure is that an attorney (or advocate) has one thing to sell to you and that is his or her time.

When browsing for legal services, always ask attorneys to explain their fee and billing structure to you. During your first consultation, get a fee arrangement in writing and remember that the Attorney’s Act states that you are entitled to a detailed itemised bill of costs at all times.

Attorneys are entitled to request a deposit from you to cover the first consultation and initial disbursements. Hereafter, be prepared to be charged for every minute of your attorney’s time spent on your file. Reply to an e-mail? Yes.  A phone call? Definitely!

Time is money in this business and you as a client need to understand how you can assist in keeping your legal bill as low as possible:

  1. Your first consultation with your attorney is very important, sometimes, the only consultation you will need to have. Provide clear and concise instructions, keep to the point and be prepared, bring all the necessary documents with you.
  2. At all times when consulting or corresponding with your attorney, keep the communication short and to the point! Every time your attorney has to read a 17 page e-mail dealing with non-essential matters you are paying for that time spent;
  3. Do not arrange consultations with your attorney that are not absolutely necessary, if a query can be clarified over the phone or over e-mail rather follow that route and save time (and money);

By adhering to the points outlined, you should reach a satisfied outcome without surprising legal costs.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Written by Kestrel Carstens, Candidate Attorney, MHI Attorneys.