Curators and Tutors

This division of the Master's office supervises the administration of the affairs of persons whose property is, for various reasons described in this section, under the control of another person called a curator or tutor.  Click on the links below for more information of various aspects.

The new Mental Health Care Act 17 of 2002 was promulgated on 15 December 2004. The new act will replace the 1973 one. The new act came into immediate effect as from Wednesday 15 December 2004.

The various appointments set out above as well as the requirements for each appointment will be dealt with separately.

Curators

Appointment of Curators: Assets attached by the Asset Forfeiture Unit

In terms of the Prevention of Organised Crime Act, 121 of 1998, the High Court may issue an order authorizing the seizure of property subject to a restraint or preservation order, or may issue an asset forfeiture order, where the court is satisfied that there are reasonable grounds to believe that the property concerned, or the proceeds thereof, was derived, received or retained, directly or indirectly, in connection with, or as a result of, any unlawful activity.

Where the court has authorized the attachment of such assets by the Asset Forfeiture Unit, it appoints a curator to administer the assets. The appointed curator, however, has no authority to act as such until duly authorized by the Master. Authorization takes the form of letters of appointment issued by the Master.

Requirements for an Appointment:

  • Copy of the court order;
  • An inventory - form J243 which reflects the assets to be administered
  • Undertaking and bond of security - form J262 by the court appointed curator;
  • Application for appointment as curator- form J197.

Appointment of Curators: Absentee

If it comes to the knowledge of the Master that any absentee is the owner of property in the Republic of South Africa, and he is satisfied that the said property should be cared for or administered on behalf of the absentee, he may appoint a curator dative. The appointment of a curator is usually initiated by an interested party who lodges a written application with the Master.

Requirements for an Appointment:

  • Written application to the Master;
  • A preliminary inventory - form J243 which reflects the assets of the absentee;
  • Nominations of a suitable person to be appointed as curator, by interested parties (these nominations are usually obtained during a meeting convened by the Master for this purpose);
  • Undertaking and bond of security - form J262 by the nominated curator
  • Application for appointment as curator - form J197

Tutors

The appointment of a tutor over the affairs of a minor can have a dual purpose.  It can be:

  • to administer the property of a minor;  or/and
  • to take care of the person of the minor.

According to South African law a minor is a person under the age of 21 years, who has not yet been emancipated by marriage or order of court.

A tutor is usually appointed over the estate and/or person of a minor who no longer has a natural guardian.  In exceptional circumstances the court may however appoint a tutor or curator over the property of a minor, notwithstanding the existence of a natural guardian.

Who may nominate or appoint a Tutor?

 One must distinguish between three scenarios, namely

  • testamentary appointed tutors;
  • court appointed tutors;  and
  • Tutor dative, appointed by the Master

Although a tutor may be nominated or appointed by will or the court, the nominee/appointee has no authority to act as tutor until duly authorized by the Master.   Authorization takes the form of letters of appointment issued to the designated person.

The three scenarios set out above as well as the requirements for each appointment will be dealt with individually.

Testamentary appointed Tutor

Only the following persons may validly nominate a tutor in their will:

  • The sole natural guardian (surviving parent) of a legitimate minor, who has not been deprived of his/her guardianship over such minor by the court.
  • The mother of an illegitimate minor, who has not been deprived by the Court of guardianship of such minor.
  • The parent to whom the sole guardianship of the minor has been granted by the court.

Requirements for an appointment

  • The will in which the tutor has been nominated must be properly registered and accepted by the Master;
  • A preliminary inventory – form J243 which reflects the assets of the minor;
  • A declaration by the nominated tutor wherein he/she declares that the person who nominated him or her in the will was legally competent to do so;
  • Undertaking and bond of security – form J262 by the nominated tutor, unless the tutor has been exempted from furnishing security in the will.
  • Application for appointment as tutor – form J197.

Court appointed Tutor

The court as the upper guardian of all minors may appoint a person as tutor of a minor to take care of the person of the minor and to administer the property of the minor.

It is usually an interested party who lodged the application to Court by way of Notice of Motion. On receipt of the application the court will usually appoint a curator-ad-litem to protect the interests of the minor and to investigate the merits of the application. Both the curator-ad-litem and the Master must lodge reports to the court

Once the court has granted the application and appointed a tutor, the Master must give effect to the court order by issuing letter of tutorship and thereby authorizing the appointed tutor to act.

Requirements for an appointment:

  • A copy of the application to court together with the reports by the curator-ad-litem and the Master;
  • The court order appointing the tutor;
  • A Preliminary inventory – form J243, which reflects the assets of the minor;
  • Undertaking and bond of security – form J262 by the nominated tutor, unless the tutor has been exempted from furnishing security by the court.
  • Application for appointment as tutor – form J197.

Tutor dative appointed by the Master

If it comes to the knowledge of the Master that any minor is the owner of property in the Republic of South Africa, which is not under the care of any guardian, tutor or curator, and he is satisfied that the property should be cared for or administered on behalf of such minor, he may appoint a tutor dative. (The Master cannot appoint a tutor dative over the person of a minor.) 

The appointment of a tutor dative is usually initiated by an interested party who lodges a written application with the Master. 

Requirements for an appointment: 

  • Application to the Master; 
  • A preliminary inventory – form J243 which reflects the assets of the minor;
  • Nominations of a suitable person to be appointed as tutor by the next-of-kin of the minor (these nominations are usually obtained during a meeting convened by the Master for this purpose);
  • Undertaking and bond of security – form J262 by the nominated tutor; 
  • Application for appointment as tutor – form J197.