LAW OF PERSONS IN



LAW OF PERSONS IN

SOUTH AFRICA

Ancillary Questions

Chapter 10: Mental illness, physical disability, and the influence of alcohol and drugs on capacity

Questions

0. What is the burden of proof when it has to be determined whether a person is mentally ill?

0. Under which circumstances is a person regarded as mentally ill for purposes of determining capacity? Refer to authority for your answer.

0. What do you understand by the concept lucidum intervallum.

0. Legal acts performed by a person during a lucidum intervallum are regarded as __________ (fill in the missing word).

0. How is mental illness defined in the Mental Health Care Act 17 of 2002?

0. Although the Criminal Procedure Act 51 of 1977 makes use of the terms “mental illness” and “mental defect”, the Act does not define or explain the difference between them. Snyman offers a possible explanation of the terms. What is his explanation?

0. Briefly explain how mental illness affects a person’s legal capacity.

0. Can a mentally ill person conclude a valid marriage? Refer to authority for your answer.

0. Give three examples of statutory limitations on the capacity to act of mentally ill persons.

0. Briefly explain the effect of mental illness on a person’s criminal accountability.

0. List and briefly explain the functions of the three types of curators who can be appointed to represent a mentally ill person.

0. With reference to authority, briefly explain how alcohol affects a person’s capacity to act.

0. How does intoxication affect a person’s criminal liability?

0. What is the effect of intoxication on a person’s delictual liability?

0. List four examples of circumstances in which incapacity arising from physical disability resulted in the appointment of a curator.

0. What test will be used to determine whether a curator bonis should be appointed for a person who has been incapacitated by physical disability?

0. Briefly explain how physical disability affects the person’s capacity to act.

Answers

1. The question whether a person is mentally ill is always one of fact and must be determined on a balance of probabilities (para 10.2.2).

2. For purposes of determining capacity, a person is mentally ill if he or she cannot understand what he or she is doing and is not able to appreciate the consequence of his or her legal actions. A court will also find a person to be mentally ill where an action or decision is motivated or influenced by delusions caused by mental illness. This was decided in Lange v Lange 1945 AD 332 (para 10.2.3).

3. A lucidum intervallum can be described as a clear moment, a moment when the mentally ill person can understand and act accordingly (para 10.2.3).

4. The missing word is valid (para 10.2.3).

5. The Mental Health Care Act 17 of 2002 defines mental illness as “a positive diagnosis of a mental health-related illness in terms of accepted diagnostic criteria made by a mental health practitioner authorised to make such diagnosis” (para 10.2.4).

6. Snyman offers the following possible explanations of the terms “mental defect” and “mental illness” (para 10.2.5):

A mental defect is normally characterised by an abnormally low intellect which is usually evident at an early stage and is of a permanent nature

A mental illness usually manifests itself later in life and is not necessarily of a permanent nature.

7. Because of the fact that the law does not attach consequences to the expressions of the will of a mentally ill person, the mentally ill person cannot occupy certain offices such as being the curator of an insolvent estate, the executor of a will and the director of a company. Mental illness does not terminate a person’s parental responsibilities and rights automatically, but an application to court can alter this position (para 10.2.6.2).

8. As is clear from the case of Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669, a person is incompetent to marry where he or she is, owing to a mental illness or defect, unable to understand the nature of the marriage agreement and its attendant duties and responsibilities. As is clear from Lange v Lange, a person is also incompetent to marry where he or she is influenced or motivated to enter into the marriage by insane delusions (para 10.2.6.3).

9. See para 10.2.6.3 in this regard.

10. In terms of section 78 of the Criminal Procedure Act 51 of 1977, a person cannot be held criminally responsible for his or her act or omission where that person suffers from a mental illness or defect at the time of the alleged offence that makes him or her incapable:

Of appreciating the wrongfulness of his or her act or omission; or

Of acting in accordance with an appreciation of the wrongfulness of his or her act or omission (para 10.2.6.4).

11. See para 10.2.7 in this regard.

12. For alcohol to have any effect on a person’s capacity to act, the consumption of the alcohol must have deprived the person to such a degree that he or she either did not know that he or she was entering into a transaction, or had no idea of its provisions. Therefore, the mere influence of drink in entering into a contract is not enough to negate capacity (Goodman v Pritchard (1907) 28 NLR 227) (para 10.3.1).

13. The excessive consumption of alcohol or the taking of drugs may deprive a person of the capacity to appreciate the wrongfulness of his or her conduct or the capacity to act in accordance with such appreciation. However, in terms of section 1 of the Criminal Law Amendment Act 1 of 1988, the position of the intoxicated person has been qualified: it sets out that a person who consumes or uses any substance which impairs his or her faculties to appreciate the wrongfulness of his or her acts or to act in accordance with that appreciation, while knowing that such substance has that effect and who commits an illegal act while such faculties are thus impaired, is guilty of an offence punishable by the penalty which may be imposed in respect of the commission of that act. Thus, even though a person is intoxicated to such a degree that he or she did not know what he or she was doing, they may still be liable in criminal law (para 10.3.3).

14. The fact that a person is intoxicated to such a degree that he or she did not know what he or she was doing will not usually excuse the person from delictual liability. This is because negligence is usually sufficient to hold a person liable. In other words, if it can be established that the person was negligent in performing the act in question while not in a fit state to do so, he or she will be held liable (para 10.3.3).

15. See para 10.4 in this regard.

16. The test is whether the person is capable of managing his or her affairs – if not, a curator bonis should be appointed (para 10.4).

17. If the particular person is not capable of managing his or her affairs, a curator bonis will be appointed for him or her. However, the fact that a curator has been appointed to a person does not mean that the person has been deprived of the capacity to act. Someone who has been placed under curatorship because of an inability to manage his or her own affairs can enter into a valid legal transaction if, at that particular moment, he or she is physically and mentally able to do so (para 10.4).

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Chapter 10: Mental illness, physical disability, and the influence of alcohol and drugs on capacity

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Chapter 10: Mental illness, physical disability, and the influence of alcohol and drugs on capacity

Ancillary Questions

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