The Western Cape High Court has ordered that a curator be appointed to popular restaurateur and owner of Willoughby’s, Jens Tibshraeny, owing to his ailing mental capacity and to guard against financial exploitation.

This comes Tibshraeny's son applied to the high court who averred that he noticed significant cognitive decline in his father, leading to concerns about his capacity to manage his affairs.

Darren Tibshraeny said he was concerned over his 79-year-old father, who has significant assets including the well-known Cape Town Waterfront restaurant, Willoughby’s, conducted through Willoughby’s (Pty) Ltd.

Darren averred that he was concerned that his sister Natalie and aunt are financially exploiting his father after he has been afforded limited communication, while he lives with his family in the USA.

According to court documents, Natalie and her husband recently temporarily moved into the Fresnaye residence of their parents.

Natalie and her husband, who lived permanently in the USA, moved to the Fresnaye property whereafter, Darren alleges, his sister and her husband have effectively taken control of their parental home and vehicles and restricted his communications with their parents.

Meanwhile, Jens’s sister and her husband also moved into the home - having moved from their Jeffrey’s Bay home.

Jens lives in the home with his 80-year-old wife and has vehemently denied that his support structure, particularly in the form of his daughter, Natalie, and sister, Angela are taking advantage of him.

In judgment, Judge Gayaat Salie-Da Silva noted: “Over the past several years, it had become evident that (Jens) is increasingly unable to manage his personal affairs, handle his financial responsibilities or ensure his own safety effectively. The deterioration in his cognitive abilities has been noted by Darren and subsequently confirmed by healthcare providers, who have observed a marked decline in his memory, reasoning and problem-solving capabilities.

“This impairment, Darren avers, has reached a point where his father’s ability to make informed decisions is severely compromised, thereby posing a significant risk to his financial security and to the conduct of his business. With the passage of time, Jens’s mental health challenges have become gradually worse. Darren set out incidents where Jens had acted contrary to his normal nature and posing risk to himself,” the court documents read.

Darren further argued his father’s deteriorating cognitive abilities and said he became completely reliant on the ability of others to perform the tasks which he was once able to do. In particular, this included the management of the restaurant which has since been handed over to Jens’s nephew - who Darren alleged had been drawing a salary “far in excess of what is reasonable and exploits his position and the vulnerability of (Jens)”.

According to Darren, his father requires a level of care and oversight that goes beyond what can be provided without formal legal authority.

Salie-Da Silva said: “(Jens’s) assertion that he had created an adequate infrastructure must be juxtaposed with some relevant facts, inter alia, that his previous and long-term advisor, had abruptly been replaced by the attorney or close associate of his daughter, Natalie. It is significant a fact to me that she forms part of the respondent’s trusted infrastructure. This may potentially create a conflict of interest…

“It is worthy of mention and of concern to this Court that the follow-up appointments with Dr Mason, a registered psychiatrist, were cancelled by the respondent’s trusted support network, a strong suggestion that their actions appear to be driven by a desire to avoid the scrutiny and medical attention to the respondent.

“It also concerns me that it is mostly likely done to avoid oversight which a curatorship would bring. This raises concern about the motivations of the members of the trusted support network, the potential for undue influence and gatekeeping of the respondent’s affairs and health. It points this Court in the direction of the need for the appointment of a curator,” said Salie-Da Silva.

Enquiries to counsel had not been answered by deadline.

chevon.booysen@inl.co.za

financial exploitation

High court steps in to safeguard the interests of Willoughby’s owner, Jens Tibshraeny