Law of Persons

Inability to administer affairs owing to

reasons other than mental illness
 Inability to administer affairs owing to
reasons other than mental illness
Introduction
In terms of our common law, the High Court also has the power to appoint a curator to a
person who is not mentally ill but is incapable of managing his or her affairs for another
reason, such as a physical or intellectual (that is, a mental) disability. The objective of the
appointment of a curator to a person is to protect the person from exploitation.
Applying to have a curator appointed for a person who is unable to administer his
or her affairs
• curator bonis are appointed to persons unable to manage their affairs as a result of a
serious illness or the .after-effects of a serious illness;' physical or intellectual
disability.
• Advanced age sometimes causes serious illness and physical or intellectual
impairment which may result in the need to appoint a curator.
• Apart from appointing a curator bonis, the court may also appoint a curator personae
and/or a curator ad litem for a person who is unable to manage his or her affairs.
• The court in whose area the person is domiciled or owns immovable property has
juris diction to declare him or her incapable of managing his or her affairs and to
place him or her under curatorship.
 Contii
Legal status of a person who is unable to administer his or her affairs
• A person who has been declared incapable of administering his or her
affairs and to whom a curator has been appointed has the capacity to
conduct his or her affairs whenever he or she is in fact mentally and
physically able to do so.
• This means the fact that a curator bonis has been appointed in respect of a
person's estate does not mean that the person has been deprived of
capacity to act and litigate, nor does it mean that the person is incapable of
being held accountable for crimes and delicts. (Check the case of Pienaar
v Pienaar’s curator in the casebook/textbook)
• It is important to note that, someone who has been placed under
curatorship because of inability to manage his or her affairs can enter into a
valid legal transaction with its normal consequences if, at that moment, he
or she is physically and mentally able to do so.
• If it is found that the person lacked the capacity to understand the nature or
consequences of a particular transaction when he or she entered into it, he
or she is not bound by the transaction and the transaction is void because
of the lack of capacity.
Law of Persons

Influence of alcohol and drugs

• Intoxication can affect a person's legal status. The issue of the effect
of intoxication on status normally arises in the context of a person's
capacity to act or his or her capacity to be held accountable for
crimes and delicts.
• The rules relating to intoxication apply not only to the effects of
alcohol but also to those of any drug. The influence of alcohol or
drugs affects capacity to act only for as long as it lasts. Thus, it
usually results in only a temporary loss of capacity to act.
• If a person becomes incapable of managing his or her affairs
because of continuous abuse of alcohol or drugs, he or she may be
placed under curatorship.
 Conti…

• With regard to the degree of the influence of alcohol or drugs that is

required for the Law to consider a person's capacity to act to be affected,
Judge Rumpff held in Van Metzinger v Baden horst' that it is insufficient if
the person was merely more easily persuadable or more willing to enter into
a transaction. What is required is that the person must have been unaware
that he or she was entering into a transaction or must have had no idea of
its provisions. Accordingly, the mere fact that a person is under the influence
of alcohol or drugs or is rendered reckless by his or her consumption of
alcohol or drugs does not mean that the transaction is not legally binding.
The influence of alcohol or drugs must be such as to deprive the person of
his or her powers of reasoning. A transaction which is concluded under
these circumstances is void ab initio and cannot be ratified. The onus of
proof is on the party who alleges that the person was under the influence of
alcohol or drugs.
• Since the influence of alcohol or drugs often diminishes a person's ability to
appreciate the consequences of his or her actions, it can affect his or her
capacity to be held accountable for delicts and crimes
Law of Persons

Prodigality
 Prodigality
• Prodigals are persons with normal mental ability who squander their
assets in an irresponsible and reckless way due to some defect in
their power of judgement. To protect such people and their families
from their prodigal tendencies their status can be restricted by an
order of court.
• The reason for a person's prodigality is of no real importance, but
from the case law it appears that prodigality often goes together with
alcoholism, drug addiction and/or gambling.
• Unlike mental illness, prodigality as such does not affect a person's
status. It is only once the person has been declared a prodigal and
has been prohibited (interdicted) from managing his or her affairs
that his or her capacities are restricted.
• Any interested party (including the prodigal personally) may apply to
court for an order declaring the person to be a prodigal, interdicting
the person from administering his or her estate, and requesting the
appointment of a curator bonis to administer the person's estate.
 Contii
Legal capacity
• The limitations on an interdicted prodigal's legal capacity relate to his or her
participation in commercial dealings and handling finances. For example, an
interdicted prodigal is barred from being a director of a company or a trustee
of an insolvent estate.

Capacity to act
• Declaring someone to be a prodigal is not enough to limit the person's
capacity to act. The declaration must be coupled with an order restraining
the person from administering their estate.
• The effect of an order that interdicts a prodigal from administering their
estate is that the prodigal's legal position becomes analogous to that of a
minor, rather than that of a mentally ill person. Like a minor, an interdicted
prodigal has limited capacity to act and may not independently enter into
juristic acts by which he or she incurs obligations.
• An interdicted prodigal can either enter into transactions assisted by his or
her curator or the curator can act on their behalf.
 Contiii
• An interdicted prodigal's curator must honour transactions the
prodigal validly concluded before being interdicted. This is because
up until then, the prodigal had full capacity to act.
• If an interdicted prodigal enters into a legal transaction with a third
party in disregard of the court order interdicting him or her from
dealing with his or her estate, he or she may be prosecuted for
contempt of court.
• ln respect of the validity of the particular transaction, the position is
the same as in the case of a minor. The prodigal's curator may ratify
or repudiate it.
• If the transaction is ratified, it is binding. lf repudiated, the other
party must return whatever the interdicted prodigal has delivered or
paid but may hold the interdicted prodigal liable on the basis of
unjustified enrichment.
 Contiii
Capacity to litigate
• In principle, an interdicted prodigal may not embark on litigation
without his or her curator's consent. This is because, through such
litigation, he or she might incur liability for costs which would lead to
a disposition of his or her estate and would therefore be in breach of
the interdict prohibiting him or her from administering his or her
estate.
• An interdicted prodigal may, however, sue unassisted for divorce,
and for an order to have his or her curator dismissed, or the
curatorship set aside.
Capacity to be held accountable for crimes and delicts
• Prodigality and an order interdicting a prodigal from administering
his or her estate do not affect the prodigal's capacity to be held
accountable for crimes and delicts he or she commits.
Law of Persons

Insolvency
 Insolvency
• A person is insolvent if his or her liabilities exceed his or her assets (in other
words, when he or she has more debts than assets).
• If the person's estate is sequestrated by the High Court as a result of this
state of affairs, the sequestration affects the person's legal capacity,
capacity to act and capacity to litigate.
• When a person is declared insolvent and his or her estate is sequestrated,
he or she is divested of the estate, which then vests in the Master of the
High Court until such time as a trustee is appointed. When the trustee is
appointed the insolvent estate vests in the trustee.
• In the case of spouses or civil union partners whose marriage or civil union
is subject to community of property, the joint estate is sequestrated, and
both of the spouses or civil union partners are rendered insolvent by the
sequestration order. Even if the order refers only to sequestrating the joint
estate, all assets of both of the spouses or civil union partners fall into the
insolvent estate.
 Conti…
Assets that falls outside the insolvent estate
(a) Earnings the Master of the High Court has allowed the insolvent to
keep for his or her own and his or her dependants' support.
(b) Pension money.
(c) Compensation the insolvent receives for loss or damage as a result
of defamation or personal injury.
(d) Certain personal belongings such as clothes, bedding, household
furniture, tools and other essential means of subsistence.
(e) Certain life insurance policies.
Legal capacity
An insolvent person's legal capacity is influenced by the sequestration
of his or her estate as there are certain offices he or she cannot hold.
For example, an insolvent person may not be a director of a company
or mutual bank," or a trustee."
 Contii
Capacity to act
• Even though the trustee of an insolvent estate administers the estate, this
does not mean that the insolvent loses all capacity to act. The insolvent may
still enter into contracts, provided that he or she does not thereby purport to
dispose of property of the insolvent estate. However, the insolvent needs
the written consent of the trustee to enter into a contract which adversely
affects or is likely to adversely affect the insolvent estate.

• If the insolvent enters into a contract in breach of these provisions, the

contract is nevertheless valid if the following requirements are met:
(a) he property the insolvent disposed of was acquired after
sequestration.
(b) The disposition was for valuable consideration.
(c) The person with whom the insolvent transacted was unaware and
had no reason to suspect that the estate was under
sequestration.
• With regard to other contracts in breach of the limitations are voidable at the
instance of the trustee
 Contiii

Capacity to litigate
• The insolvent does not lose all capacity to litigate when
his or her estate is sequestrated. Upon sequestration, all
civil proceedings by or against the insolvent are stayed
until a trustee is appointed to act on behalf of the
insolvent estate.
• Once the trustee is appointed, the trustee institutes
claims on behalf of the insolvent estate and defends
claims instituted against it. In respect of claims that do
not relate to the insolvent estate, the insolvent retains
locus standi in iudicio (capacity to litigate).
• Take note that the insolvent may, in particular, in his or
her own name and without the trustee's consent or
cooperation, sue or be sued when coming to other
matters. (check the textbook)
 Contii

Capacity to be held accountable for crimes and delicts

Insolvency does not affect the insolvent's capacity to be held
accountable for crimes and delicts. However, if the insolvent commits a
delict after sequestration, the compensation must be paid out of those
assets the insolvent acquired after sequestration that fall outside the
insolvent estate.

Rehabilitation
The legal limitations sequestration places on the capacity of an
insolvent person come to an end when he or she is rehabilitated by an
order of the High Court or once ten years have elapsed since the
sequestration. Rehabilitation also discharges all debts the insolvent
incurred prior to sequestration.