Law of persons

LECTURE 12 MENTAL ILLNESS AS STATUS DETERMINING

FACTOR
Learning outcomes:
After completion of this unit, the student should be able to:

1. Explain what is meant by the term “mental illness” of a person, as the term is applied in
South African law.
2. Discuss the capacity to act of a mentally ill person.
3. Discuss the capacity to litigate of a mentally ill person.
4. Discuss the legal capacity of a mentally ill person.
5. Discuss the onus of proof in case of allegations of mental illness.
 1.Introduction
•Mental condition has close link to capacity to act, capacity to litigate and legal capacity.
• Law attaches no consequences to the expression of the will of a mentally ill person.
• Mentally ill person: Person cannot understand what he/she is doing and is not able to appreciate the consequences of his/her legal
actions.

•Section 1 Mental Health Care Act 17 of 2002 states that:

• “Mental illness” refers to a Positive Diagnosis of a mentally-related illness made in terms of accepted diagnostic criteria by a
practitioner with the authority to do so.

•Pheasant v Warne 1922 AD 481: Test for mental illness was defined as
• “whether or not the person’s mind was such that he could understand and appreciate the transaction into which he purported to
enter”
• The court held that a person will not only be considered mentally ill if he/she cannot understand the nature of the transaction,
• but also if such person does indeed understand the nature and consequences of his/her juristic acts but is motivated or influenced to
perform these acts be delusions of mental illness.

•See also Lange v Lange 1945 AD 332.

 2. Common law provisions regarding mental incapacity
•Grotius confirms that mental illness is not necessarily a permanent condition.
•Therefore, the question in common law did not relate to whether the person was mentally ill, but if said
person at the time of performing a certain act understood the nature of such act.
• If the answer to this question was negative, then the transaction in question was considered void.
•Two important common law provisions with regards to mental illness deserve mentioning:
• Firstly, although Roman Dutch law prescribed that a person who was mentally ill possessed no capacity to act, that
system of law did however accept that a person whom in good faith had spent money on the mentally ill person, had
to be remunerated for such on considerations of equity.
• Secondly, Roman Dutch law stated that in a situation wherein an agent had acted on behalf of a mentally ill person by
virtue of a power of attorney, a third party who had been oblivious to the principal’s mental incapacity at the time of
dealing with the agent, could rescind from the transaction at hand. This rule was derived from the Digest of Roman
law.
 3.Effect of mental illness on capacity to act
Similar to infans: Has no capacity to act alone.
• Any legal action: void ab initio and cannot be ratified at a later stage.
• Reason: Person is not aware of the nature, scope or consequences of his or her actions.

Mentally ill person can be a party to juristic act if it is performed on his/her behalf by a curator (same as
infans). Such juristic act is valid and enforceable- see Minister of the Interior v Cowley 1955 1 SA 307 (N).

Mental condition at time of juristic act is deciding factor.

• Lucidum intervallum: Mentally ill person finds him or herself mentally sound for a period of time. If contract is
concluded by mentally ill person during lucidum intervallum, the contract will be valid.
• Question regarding lucidum intervallum is one of fact, and depends on the circumstances of each case.
• Medical and psychological evidence will normally be depended upon to determine same.
 3.Effect of mental illness on capacity to act
Mental incapacity my play a prominent role in the granting of a divorce order by a Court.
• If such Court is, for instance, certain that the respondent in a divorce action is
• a patient who has been committed to an institution by order of a Court,
• is being detained as a State patient in any institution or similar place as specified by the
Minister of Correctional Services,
• or being detained as a convicted mentally ill inmate,
said Court may grant a divorce order on any of the mentioned grounds.

• There are, however, further prerequisites for granting such an order.

 3.Effect of mental illness on capacity to act
•The Court in question must be convinced that the respondent in question has for an uninterrupted period of two years prior to the
commencement of the divorce action not been
• Unconditionally discharged as patient or
• State patient or
• released as prisoner.

•Furthermore, the Court will only grant a divorce order if at least

• Two psychiatrists (one of whom has been appointed by the Court)
• has provided evidence that the respondent in the divorce action is indeed mentally ill,
• and that there exists no reasonable expectation of recovery.

•If a respondent in a divorce matter is in a continuous state unconsciousness due to a physical ailment,
• a Court may also on this ground grant a divorce order,
• provided the respondent’s unconsciousness has been continuing for an uninterrupted period of six months prior to the commencement of the divorce
action,
• and when at least two medical practitioners, one of which is either a neurologist or neurosurgeon, have testified that there is no reasonable expectation
that the respondent will regain consciousness.

•If divorce proceedings are instituted on the ground of alleged mental incapacity of the respondent,
• the Court may appoint a legal representative for said respondent
• and order the plaintiff to carry the former’s legal costs.
4. Effect of mental illness on capacity to litigate
•No capacity to litigate alone.

•Curator can litigate for and on behalf of mentally ill person, but latter is seen as litigating party.
• Njikelana v Njikelana 1980 (2) SA 808 (SEC).

•A person receiving care, treatment or rehabilitative services because of mental illness,

• is entitled to legal representation if such a person should bring a Court application, appeal, or appear
before a magistrate, judge or Review Board.
• Said person is also entitled to State funded legal aid.
5.Effect of mental illness on legal capacity
Mentally ill persons are often not able to hold certain offices. The reason is because the holding of these
offices often requires performing juristic acts.

If, for example, a person does not have the capacity to make a will, he/she will not be able to hold office of
testator.

Legislation that prohibits mentally ill persons from holding certain offices:
• Sections 55(c) and 58(b) of Insolvency Act 24 of 1936: Cannot be curator of insolvent estate.
• Section 54(1)(b)(iv) of Administration of Estates Act 66 of 1965: Cannot be executor of deceased estate.
• Section 72(1)(e) of Administration of Deceased Estates Act: Cannot be a statutory guardian.
• Section 218(1)(b) of the Companies Act 61 of 1973: Cannot be director of a company.
• Cannot be member of certain statutory councils, either.
5.Effect of mental illness on legal capacity
•High Court as upper guardian of all minors
• can make an appropriate order in respect of the guardianship and custody of mentally ill person’s
children or
• interfere with the person’s parental authority if it is in the best interest of the child.

•The head of a healthcare institution may place a restriction on intimate relationships of persons
under mental care, treatment and/or rehabilitation.
• This may only be done, however, if the relevant patient’s ability to consent to said relationships has
been diminished.
 6.Onus of Proof
•Lange v Lange: Mental illness must be proven on balance of probabilities.

•In South Africa: Rebuttable presumption that every person is mentally sound. See case law on this regard.

•Depends on whether the person in question has been admitted to a health establishment by court order.

•If person has not been admitted to a health establishment for treatment of mental illness by a court order,
• onus of proof is on party who alleges that the person is mentally ill to prove this.

•If person has been admitted to a health establishment, person is rebuttably presumed to be mentally ill.
• Onus shifts.
See you in our next lecture.