Curator Ad Litem vs Curator Bonis in South Africa | What Is The Difference?

A curator ad litem and a curator bonis are both court- or Master-appointed figures who act on behalf of someone else, but the resemblance ends at the title. A curator ad litem is appointed to represent a person in specific litigation they cannot bring or defend themselves — most commonly a minor, an unborn heir, or a person under legal disability — and the appointment ends when that litigation ends. A curator bonis, by contrast, is appointed to administer the property or financial affairs of a person who is incapable of managing their own affairs, typically through mental incapacity, minority in certain property contexts, or absence, and the appointment continues until the Master of the High Court or the High Court itself discharges it. The appointing bodies differ too: curator ad litem appointments are made by the court before which the proceedings are pending, while curator bonis appointments run through the Master of the High Court, with the High Court retaining jurisdiction in contested or unusual matters.

The Two Roles at a Glance

Both roles are curators, but neither is the same as a tutor, executor, or administrator, even though the four overlap conceptually. They share three things in common: each is court- or Master-appointed; each stands in a fiduciary position to the person they represent; and each must act in that person’s interests rather than their own. That shared framework is precisely why the confusion exists in the first place. The question worth answering is not “what is a curator” but rather “what kind of curator, appointed by whom, to do what, for how long, reporting to whom.”

Think of it this way: a curator ad litem is a procedural appointment, narrowly tailored to a specific case, while a curator bonis is a substantive appointment that runs as long as the underlying incapacity or absence persists.

Curator Ad Litem: Definition, When It Applies, and What the Curator Does

A curator ad litem is appointed by a court to represent a party to litigation who cannot represent themselves. The most common subjects are minors, unborn or unascertained heirs, persons under legal disability, and any other party whose interests the court considers unrepresented in the proceedings.

Three features define the role:

• Limited scope. The curator has authority to bring, defend, or settle that litigation on the represented person’s behalf, but no authority over the person’s affairs outside it.
• Court-appointed. The appointment is made by the court seised of the matter, usually on motion or by formal application supported by an affidavit setting out why the proposed represented person cannot act for themselves and why the proposed curator is suitable.
• Fiduciary duty to the represented person. The curator must act in that person’s best interests, not on instructions from a third party (including the applicant for the appointment) where those instructions conflict with the duty.

The appointment terminates automatically when the litigation concludes — by settlement, judgment, withdrawal, or abandonment — unless the court extends it for residual steps such as enforcement or appeal.

Curator Bonis: Definition, When It Applies, and What the Curator Does

A curator bonis is appointed to administer the property or financial affairs of a person who is incapable of managing their own affairs — typically because of mental incapacity, ongoing minority in a property context where the Children’s Act does not otherwise provide, or absence.

The role is ongoing and substantive, not procedural. The curator takes control of the person’s property, collects income, makes payments, maintains records, and accounts to the Master of the High Court for the administration. The Master’s own categorisation of curatorship work covers this directly: under the Master’s published framework, the Master appoints an Administrator under the Mental Health Care Act 17 of 2002 for persons with mental illness or severe or profound intellectual disability, a Curator Dative for absent persons whose property requires administration, and a Curator Bonis (among other categories).

Three practical requirements follow from the substantive nature of the role:

• Security. The curator must furnish security to the satisfaction of the Master before appointment is confirmed — typically a bond or guarantee using the Master’s prescribed Form J262, accompanied by a preliminary inventory on Form J243.
• Separate accounting. The curator must open a separate account for the person’s estate and report and account to the Master periodically, with the Master’s prescribed fees being 6% on annual income and 2% on capital assets at termination.
• Continuity until discharge. The appointment continues until the Master (or the High Court on review) discharges the curator — typically because the underlying incapacity has resolved, the estate has been finally administered, or the curator has died, resigned, or been removed.

Statutory and Common-Law Framework: Where Each Role Sits

The two roles are not interchangeable in statute. They sit in different parts of the South African legal framework.

Curator Ad Litem — Rules of Court and Statute-Specific Provisions

The curator ad litem sits primarily in the rules of court and in statute-specific provisions for particular kinds of proceedings. The Uniform Rules of Court govern representation of minors and unborn heirs in motion proceedings; the Children’s Act 38 of 2005 governs representation of children in family-law and protection matters; and the common law governs representation of persons under disability in general civil litigation. Where the Children’s Act applies, its representation provisions override the common-law position for the matters it covers.

Curator Bonis — Administration of Estates Act, Mental Health Care Act, and Common Law

The curator bonis sits primarily in the Administration of Estates Act 66 of 1965 (which gives the Master of the High Court authority over curatorships), the Mental Health Care Act 17 of 2002 (which governs the management of mentally incapacitated persons’ property and personal care), and the common law as supplemented by those statutes.

The Master’s Office is the central administrative body: it supervises curatorships, requires accountings, and can remove curators for non-performance. Where the Mental Health Care Act applies, the Master’s jurisdiction overlaps with the new mental health care regime introduced by that Act, and practitioners should verify which framework governs a specific appointment before lodging.

Process of Appointment: Step by Step

1. Identify the correct role. Confirm whether the matter requires a curator ad litem (litigation-only representation) or a curator bonis (ongoing administration of property or affairs). Getting this wrong wastes both time and cost, because the supporting affidavits, forms, and reporting obligations are different.
2. Curator ad litem — court application. Prepare an application to the court in which the proceedings are pending, setting out the represented person’s identity, the reason they cannot act for themselves, and the proposed curator’s suitability. Serve on all interested parties and lodge with the registrar.
3. Curator bonis — Master’s Office application. Lodge an application with the Master of the High Court having jurisdiction (typically where the proposed represented person resides), supported by medical affidavits (for incapacity), the proposed curator’s written acceptance, security arrangements, and the Master’s prescribed forms (Form J197 for the application, Form J243 for the preliminary inventory, Form J262 for the bond of security).
4. Furnish security. For a curator bonis, the bond or guarantee amount and form are fixed by the Master and must be in place before the Master issues a letter of appointment.
5. Receive the appointment. For a curator bonis, the Master’s letter of appointment authorises the curator to act from the date stated. For a curator ad litem, the court’s order has the same effect.
6. Account and report. For a curator bonis, lodge administration accounts with the Master at intervals and on termination. For a curator ad litem, report to the appointing court on the conclusion of the litigation as the court directs.

Key Differences, Side by Side

Dimension	Curator Ad Litem	Curator Bonis
Appointed by	The court before which the proceedings are pending	The Master of the High Court (High Court retains jurisdiction in contested matters)
Purpose	To represent a party in specific litigation	To administer the property or financial affairs of an incapacitated or otherwise unable person
Duration	Until the litigation concludes	Until the Master or High Court discharges the curator
Authority	Limited to the proceedings in question	General administration of the person’s property and affairs
Security	Not typically required	Required (bond or guarantee to the Master’s satisfaction)
Reporting	No periodic accounting to the Master; reporting only as the court requires	Periodic accounting to the Master and accounting on termination
Statutory base	Uniform Rules of Court, Children’s Act 38 of 2005, common law	Administration of Estates Act 66 of 1965, Mental Health Care Act 17 of 2002, common law
Typical trigger	Minor, unborn heir, or person under disability who is a party to litigation	Mental incapacity, absence, or other ongoing inability to manage one’s own affairs

Who Can Serve as Curator

For a curator ad litem, the role is typically filled by a practising attorney who is independent of the parties and has no conflict of interest. The court may also appoint a senior family member or the proposed represented person’s next friend where appropriate, but independence from the litigation’s outcome is the touchstone.

For a curator bonis, the role is typically filled by a trusted family member, a practising attorney, or a professional fiduciary. The Master takes suitability seriously and may reject a proposed curator for conflict, incapacity, or unsuitability. In every case the proposed curator must accept the appointment in writing, and for a curator bonis they must be able to furnish the security the Master requires.

Costs and Remuneration

For a curator ad litem, fees are typically taxed as part of the litigation costs, with the party liable for costs in the underlying matter bearing them. The curator’s fees are usually charged on a time-and-disbursements basis, and the taxing master or the court oversees reasonableness. For a curator bonis, fees are paid from the administered estate and must reflect the work reasonably done; the Master’s prescribed tariffs apply unless the Master adjusts them for special reasons, and the Master can scale fees that are out of proportion to the work performed.

In both cases the fee conversation should happen at engagement, not at the end — the curator’s role is fiduciary and the court or Master will scrutinise disproportionate charges. Security costs for a curator bonis are also paid from the estate.

Termination, Removal, and Discharge

A curator ad litem terminates automatically when the litigation ends. The court may also discharge the curator earlier for good cause — for example, where a conflict emerges that the curator did not disclose at appointment, or where the curator fails to act on the represented person’s behalf.

A curator bonis terminates on discharge by the Master or the High Court, on death of the represented person (followed by estate administration under the Administration of Estates Act), or on the curator’s own death, resignation, or removal. The Master can remove a curator bonis for misconduct, failure to account, mismanagement, or unsuitability, and exercises this power actively where an accounting is overdue or the administration is being neglected.

Practical Pointers if You Think You Need One of These Appointments

Four pointers that practitioners routinely see trip up first-time applicants:

• Identify the right role first. Confirm whether you need someone to act for the person in a specific case (ad litem) or to manage the person’s ongoing affairs (bonis). Getting this wrong wastes both time and cost.
• Mind the Mental Health Care Act overlap. For ongoing mental incapacity, the Mental Health Care Act process and the curator bonis process overlap, and a family practitioner familiar with both should be consulted before either application is lodged.
• Remember the Master’s Office is administrative, not judicial. Contested appointments are escalated to the High Court, which is slower and more expensive.
• Keep good records from day one. The Master’s periodic accounting requirement for a curator bonis is enforced, and poor record-keeping is the single most common reason curators are removed.

Burger Huyser Attorneys’ Wills & Estates practice handles curator bonis applications as part of its deceased estate and incapacity-administration work, and the firm’s head office at 49 First Avenue, Linden, Randburg, is the practical intake point for curator-related instructions across the firm’s Gauteng branch network. Initial conversations are booked through the head office on 011 888 0246 or the after-hours line on 061 516 6878.

Curator Appointments in Gauteng: Filing Through the Master’s Office at the Gauteng Division

Frequently Asked Questions

Is a curator the same thing as an executor or a tutor?

No. An executor administers a deceased estate; a tutor assists a minor in a family-law or guardianship context; a curator (whether ad litem or bonis) is a court- or Master-appointed fiduciary for someone who cannot act or manage for themselves. The roles can overlap in practice — a curator bonis to an incapacitated person is sometimes the same person who later becomes executor of that person’s estate on death — but they are distinct legal appointments with distinct authority and reporting lines.

Who can apply for the appointment of a curator?

For a curator ad litem, any party to the litigation or the court itself can raise the question of representation, and the proposed curator typically applies by motion supported by affidavit. For a curator bonis, any interested person — usually a family member — can apply to the Master of the High Court, supported by medical evidence and the Master’s prescribed forms; the proposed curator must also accept in writing.

How long does a curator bonis appointment last?

Until the Master (or the High Court) discharges the curator. In practice that means until the underlying incapacity resolves (rarely, in cases of severe mental incapacity), the estate is fully administered, or the curator is removed for cause. There is no automatic expiry — the appointment continues until actively terminated.

Does a curator ad litem get paid?

Yes — the curator’s fees are usually taxed as part of the costs of the underlying litigation, paid by the party liable for costs in that matter (which can be the represented person’s estate, the opposing party on a costs order, or the curator’s appointing party, depending on how the litigation is funded). The fees should be agreed and recorded at engagement.

Can a curator be removed?

Yes. A curator ad litem can be discharged by the court that appointed it for good cause. A curator bonis can be removed by the Master or by the High Court for misconduct, failure to account, mismanagement, conflict of interest, or unsuitability — the Master’s power of removal is exercised actively where an accounting is overdue or the administration is being neglected.

Curator appointments are not routine, and the wrong application lodged in the wrong forum can cost months and unnecessary expense. Burger Huyser Attorneys’ Wills & Estates practice handles curator bonis applications as part of its deceased estate and incapacity-administration work and can advise on whether a curator ad litem or a curator bonis is the correct appointment in your circumstances. The firm’s head office is at 49 First Avenue, Linden, Randburg (011 888 0246, after-hours 061 516 6878), and it serves clients across Gauteng from its Randburg, Sandton, Roodepoort, Pretoria, Centurion, Bedfordview, Alberton, and Midrand branches. Initial conversations are booked through the head office or the nearest branch.