A person who is a minor is generally regarded as being not competent to manage his/her own affairs. The same applies to a person who is under disability, mental or otherwise (which renders him/her incapable of administering his/her own property). The major issue arises when the parent/guardian of a minor or a person looking after the property of a person under disability wishes to alienate the property. The parent/ guardian is conflicted and therefore his/her consent is not enough. The consent of the High Court as the upper guardian is required. In this case the provisions of Order 32 Rule 249 of the High Court Rules, 1971 are mandatory. The rule provides as follows;
- Applications involving persons under disability or minors
(1) In the case of any application in connection with-
- a) the estate of a person alleged to be prodigal or under any disability, mental or otherwise, or
- b) a minor
A chamber application, annexing the written consent of the person to be so appointed shall first be made for the appointment of a curator ad litem.
(2)…
(3) After the appointment of a curator ad litem following a chamber application in terms of sub rule (1), a copy of the substantive application shall be served on him and, after he has conducted such investigation as may be necessary, he shall prepare a written report which shall be filed with the registrar and a copy served on the applicant and all other interested parties.
In terms of the above cited provisions, if one wants to sell or dispose a property belonging to a minor or a person under disability, the first step is to make a chamber application for the appointment of a curator ad litem. A curator ad litem is a person who is appointed by the court to represent the interests of a minor or a person under disability during proceedings before the court. In the application proof should be attached that the person is a minor mainly in the form of a birth certificate or that he/she is under disability (usually in the form of an affidavit by a medical practitioner). There should also be attached written consent of the person proposed to be appointed as curator ad litem. The application should be served on the Master of High Court who shall make a written report to the judge. A judge in chambers will consider the application and where it satisfies the requirements, grants it.
Upon the appointment of a curator ad litem, the main application seeking the consent of the High Court to sell the property is made and served on the curator. As stated above the work of the curator ad litem is to protect the interests of the minor child or person under disability. The curator ad litem should therefore interrogate whether it is in the interests of the minor child or person under disability to sell the property. This may involve carrying out interviews and making visits. He/she should then compile a comprehensive report to be served on the registrar of High Court and all interested parties. The court is guided but not bound by the curator ad litem’s report. If satisfied that it is in the best interests of the minor child or person under disability to have the property sold, the court will grant its consent.
There is no short cut to this procedure and where one sells a property belonging to a minor or a person under disability without following the above procedure then such contract is void and of no force or effect. Commenting on Order 32 Rule 249 of the High Court Rules, 1971, the court in Sambadzi & Anor v Registrar of Deeds HH333/2013 had this to say;
‘In this particular case, none of the law’s provisions were followed. The necessary information that the curator ad litem would have gathered and placed before the Court in order for it to determine whether it would have been in the best interests of the minor children, Chipo and Zvikomborero to have their property sold, did not happen because no one was appointed to represent their interests. If a curator ad litem had been appointed as required by the law, then given their fiduciary nature which requires them to deal with the property with the same caution as if they were dealing with their own, they would have been able to investigate all facts and gather the necessary explanations which they would have placed in their report for the Court to make its decision regarding the sale of the property. Questions and anomalies would have been brought to the fore…
This correct statement of the legal position by the Master that where a sale takes place without following the necessary procedures then the sale is invalid has consistent and unwavering support in our law for an obvious commonsensical reason besides the law itself. In light of the Courts’ role as upper guardian of all minors it cannot and should not sanction illegalities which deprive minors of their rights in property’
A curator bonis can also not sell property of a minor child or person under disability without the consent of the High Court. A curator bonis is a person appointed by the court to manage the estate of a minor or a person under disability. A curator bonis can also be appointed by the Master of High Court in respect of a deceased estate (see section 22 of the Administration of Estates Act, Chapter 6:01). Section 91 of the said Act actually prohibits the alienation of immovable property belonging to a minor by a curator bonis without the authorisation of the High Court or judge.
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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