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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2014-09-26
In this issue we look at the role of tutors (in relation to minors) and under what circumstances they may be appointed.

Source: Department of Justice and Constitutional Development

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.

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.

Testamentary appointed Tutor

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

  1. 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.
  2. The mother of an illegitimate minor, who has not been deprived by the Court of guardianship of such minor.
  3. The parent to whom the sole guardianship of the minor has been granted by the court.

Court appointed Tutor

The High 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.

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 lodgesa written application with the Master.

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