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Summary Other factors affecting status and capacity
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The basic terms of the law of persons used by LLB law students, it is summarised and simple.
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CHAPTER 6 – OTHER FACTORS AFFECTING STATUS AND CAPACITYMENTAL ILLNESS – WHAT THE LAW SAYS
• Most rules governing the capacity of the mentally ill come from the common law; these rules
have not been replaced by legislation.
SOURCES OF LAW APPLICABLE TO MENTAL ILLNESS AND MENTAL DISABILITY
• The constitution and its values permeate every aspect of law, the common law principles
dealing with mental illness and disability does not exempt.
WHAT IS MENTAL ILLNESS
• A person is mentally ill when he or she is unable to understand the nature and legal
consequences of acts.
• Extend of the definition – person will be mentally ill even if that person doesn’t understand the
nature and legal consequences of their acts, but is motivated to perform the acts by delusions
caused by mental illness
• The law doesn’t attach any consequences to the acts or expressions of will of a person who is
mentally ill.
HOW IS MENTAL ILLNESS PROVED
• General rule – everyone is presumed to be in full possession of their mental facilities and to
have full capacity to act until the contrary is proved.
• This is a rebuttable presumption.
• The onus rests on the person alleging incapacity because of mental illness to prove such
illness at the time of the performance of the act.
• The burden of proof is a balance of probabilities – law stipulates transaction or action should
be assessed on its own merits and so the relevant question is the person’s state of mind at the
time that they performed the act in question.
• It is important the mental state of the person at the time of the relevant act.
CAPACITY TO LITIGATE
• A person who is mentally ill has no capacity to incur binding contractual obligations – anything
that has been made is void and of no legal effect.
• The parties must be returned to the position that they were in immediately before the contract
was concluded.
• Marriage concluded by mentally ill people is void.
CAPACITY TO LITIGATE
• A person who is unable to understand the nature of proceedings has no capacity to litigate.
• A curator ad litem is usually appointed to litigate on behalf of the mentally ill person.
• Court proceedings are conducted in the name of mentally ill person – where they experience a
lucidum intervallum the mentally ill person has the capacity to litigate for the duration of lucid
interval.
, CAPACITY TO HOLD OFFICE
• Cannot hold certain office:
o Curator of an insolvent estate
o Executor of a deceased estate
o Director of a company
o Membership of certain statutory councils constituted in terms of legislation.
• Because legal capacity to hold an office is so closely linked too capacity to act in instances
where there is no capacity to act.
OTHER STATUTORY LIMITATIONS IMPOSED ON MENTALLY ILL PERSONS
• Impose limitations:
o Inability to consent to sexual act.
o Inability to acquire a domicile of choice.
• Incurable mental illness is a ground for divorce.
CURATORSHIP AND ADMINISTRATION
• The role of curatorship is to look after the interests of the mentally ill person.
• The standard required is that of bonus paterfamilias.
• Common law a curator is appointed by High Court
• Courts are unwilling to appoint a curator for a person unless the person consents to the curator.
CURATOR PERSONAE
• Personal curator.
• If curator is general who is responsible for making decisions regarding the personal
circumstances and well-being of mentally ill person other than financial matters.
• Where the person lives, health matters etc.
CURATOR BONIS
• Curator of property – if a general curator is appointed, they are responsible for all aspects of
the patrimonial interests of the mentally ill person. Includes managing and administering the
property of the mentally ill person.
• All acts must be performed for the benefit of the person under curatorship.
• The lucidium intervallum exception applies to curatorship – if person experience a lucid interval
they have the capacity to manage their own affairs and take decisions without the assistance or
supervision of a curator.
• Curators cant exercise parental rights and responsibilities – cant institute divorce proceedings
and cant make a will on behalf of the mentally ill person.
CURATOR AD LITEM
• Is to act on behalf of anybody who is unable to understand and appreciate court proceedings.
• Application can be made to the High Court.
• Curator is usually an advocate or an attorney but advocate is preferable.
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