Master of the High Court: 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.

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