Bouwer and Another NNO v Master of the High Court, Pretoria

On 8 June 2018, Ms J H J van Dyk was declared to be of unsound mind and incapable of managing her affairs in terms of rule 57 of the Uniform Rules of Court. On 13 June 2018, Mr W F Bouwer (an attorney) and Annali Christelle Basson (a Judge of the Gauteng Division) were appointed as co-curators bonis of the patient. The second appellant is the daughter of the patient. On 1 July 2019, the first appellant lodged the first curator's account for 2018/2019 with the Master of the High Court, Pretoria. The income account included proceeds from realised capital assets: an Absa current account, the sale of a vehicle, and a debt collected from Dr Rita Nel, totaling R423,084.60. The total income collected was R1,311,392.94, upon which the curators claimed 6% remuneration (R78,683.58) in terms of regulation 8(3)(a). The Master disputed that the realised assets should be reflected as income collected and instructed the curators to amend the account to exclude the R423,084.60, limiting the fee calculation to R885,503.41. The Master contended that the 6% fee would only accrue on interest earned when the proceeds were invested. The curators sought declaratory relief, which was dismissed by the high court.

• Whether proceeds of realised capital assets should be reflected in the income and expenditure section or as capital assets in a curator's annual account
• Whether a curator bonis is entitled to 6% remuneration on proceeds of realised capital assets as 'income collected' under regulation 8(3)(a)
• Whether the applicable tariff for remuneration on realised capital assets is 6% (on income collected) or 2% (on capital assets at termination of curatorship)
• The interpretation of sections 83 and 84 of the Administration of Estates Act 66 of 1965 read with regulations 7 and 8

The appeal was upheld with costs, including costs of two counsel where so employed. The high court's order was set aside and replaced with: (1) a declaration that the proceeds of the Absa current account, vehicle sale, and debt collected are correctly reflected as income and are not capital assets in the patient's estate; (2) a declaration that a curator bonis is entitled to 6% fee on all funds reflected in the income account as collected or actually collected, regardless of origin; (3) an order that the Master pay the costs of the application, including costs of two counsel where so employed.

The binding legal principles established are: (1) Once capital assets are realised by a curator bonis, they lose their identity as capital assets and the proceeds thereof become 'income actually collected' which must be reflected in the 'income and expenditure account' in terms of regulation 7(3)(b) of the Estates Regulations. (2) A curator bonis is entitled to remuneration at the rate of 6% on all income collected during the existence of the curatorship, including proceeds from realised capital assets, in terms of regulation 8(3)(a) read with section 84(1)(b) of the Administration of Estates Act 66 of 1965. (3) The 2% tariff provided in regulation 8(3)(b) applies only to capital assets upon termination of the curatorship when assets are distributed, delivered or paid out, and has no application during the subsistence of the curatorship. (4) The regulations provide for only two categories of accounts (income and expenditure account, and capital account), not a third category for the origin of income.

The Court made several non-binding observations: (1) If the Master has concerns that the 6% tariff is disproportionate, the remedy lies in section 84(2)(a) or (b) of the Act, which allows the Master to reduce, increase, or disallow a curator's remuneration where there are 'special reasons' for doing so. (2) The Court reaffirmed the general principle that statutory, quasi-judicial bodies and public officials acting bona fide should generally not have costs awarded against them, even if mistaken. However, this principle is subject to qualification where conduct is mala fide, grossly irregular, or otherwise warrants cost sanctions. (3) The Court expressed concern about unfounded scandalous allegations made against officers of the court (an attorney and a Judge), stating it has a duty to protect the integrity of the legal system and dissuade unwarranted attacks that undermine the administration of justice. (4) The Court noted that in extraordinary cases involving long delays, flimsy explanations, unfounded allegations, and unhelpful opposition, costs can properly be awarded against public officials acting in their official capacity, and it would be unjust for costs to be borne by the patient's estate in such circumstances.

This case provides important clarification on the administration of curators' accounts and remuneration in South African estates law. It establishes the correct treatment of realised capital assets in annual curator's accounts and confirms the applicable tariff structure for curator remuneration. The judgment reinforces that the legislative scheme under the Administration of Estates Act and the Estates Regulations is clear and does not require creative interpretation. It also demonstrates the court's willingness to award costs against public officials where their conduct goes beyond bona fide error, including making unfounded allegations and causing unnecessary delays. The case serves as guidance for curators bonis, Masters of the High Court, and practitioners on the proper administration and accounting requirements for curatorship estates.