Law of Persons LWPLA1-B22 PDF

Law of Persons LWPLA1-B22 Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered w ith the Department of Higher Education and Training as a private higher education...

Law of Persons LWPLA1-B22 Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered w ith the Department of Higher Education and Training as a private higher education institution under the Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008 Week 4: Lesson 11 What will be covered in today’s? Other factors affecting status and capacity Learning Outcomes: 1.9 Identify the impact of sex and gender on a person’s status and capacity. DONE 1.10 Identify and describe factors, other than age, that may influence a person’s capacity. 3.1 Apply knowledge during summative assessments in the form of online tests. 3.2 Explain certain concepts, legal principles and legal theory. 3.3 Apply the legal theory and principles to a set of facts. Case Study Mluleki and Xoliswa have been together as a couple for twenty-five years but married for only fifteen years. They have three children: Jabu (19) and Pumzile (22) were born out of their relationship, while Lesego (14) was adopted when she was 10-years old. Mluleki works for the Department of Home Affairs; Xoliswa is a part-time university lecturer. Three years ago Pumzile was injured in a car accident. She sustained brain damage and requires full-time care. The family employs a carer to look after Pumzile during the week. Over weekends, Xoliswa takes responsibility for her care. The cost of the carer is draining the financial resources of the family, as the medical aid pays only part of it. Jabu was diagnosed as suffering from a mental illness in his early teens, following an attempted suicide. He is treated with strong medication that prevents him from attending school. He recently attacked his mother at home, which was not reported to the police for fear that Jabu would be arrested. During a recent manic episode, Jabu took his mother’s laptop without permission and sold it to a friend. He used this money as a deposit for a flat screen TV from Dion Wired. Mluleki was under medical treatment for alcoholism, but recently relapsed. He now regularly stays away from work, spending his days at the horse racetrack. In a state of drunkenness, he sold his car at well below market value. The situation is so bad that the family has become dependent on the financial assistance of Xoliswa’s parents. Xoliswa is fed up and is threatening to divorce Mluleki. Source: Prescribed textbook, page 91.  Activity In groups, identify the other factors, besides age, that affect the status and capacity of a person. Other factors that affect status and capacity “Status” = a person’s “standing” in the law determined by attributes a person has / condition she finds himself to which the law attaches legal consequences. Factors: 1. Domicile 2. Extra-marital birth 3. Youth 4. Physical disability or illness 5. Mental illness or incapacity 6. Intoxication 7. Prodigality 8. Insolvency Status is aggregate of person’s capacities & determines her capacities. 1. Mental Illness Mental Illness Constitution – Section 9 Legislation e.g. Mental Health Care Act 17 of 2002. SOURCES OF RULES RELATING TO Common law – most rules MENTAL ILLNESS International rules e.g. the declaration on the rights of mentally retarded persons Mental Illness continued... What is Mental Illness ? PRIVATE LAW TEST: A person is mentally ill when he/she is unable to understand the nature and consequences of his or her acts. Lange v Lange 1945 AD 332 - Extended definition to include: A person will be mentally ill even if that person understands the nature and consequences of their acts but is motivated to perform the acts by delusions caused by mental illness. The law will NOT attach consequences to the Effect: acts or expressions of will of a person who is mentally ill. Mental Illness continued... Mental Health Care Act 17 of 2002: 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”. The Act deals mainly with the care, treatment and rehabilitation of mentally ill persons – and therefore should be clearly distinguished from issues dealing with capacity. Effect of Declaration of Mental Illness ILLNESS / RECEPTION (in terms of Mental Health Care Act) It is not conclusive proof of mental illness at QUESTION OF FACT – the time of performance of juristic act BUT it The court will make a decision based on shifts the ONUS OF PROOF! medical, psychological and other ONUS rests on person who alleges that evidence. medically certified person experienced a lucid interval. E.g. Mr. Lange hearing voices at the time HOW IS MENTAL of his wedding (Lange v Lange) ONUS: WHO NEEDS TO DISPROVE ILLNESS PROVED? Each transaction assessed on its own THE PRESUMPTION? merits. What was person’s state of mind -On the person alleging PRESUMPTION – - at the time of the act? incapacity because of Everybody is presumed to What if mentally ill person concludes a mental illness. be in full possession of his contract while having a LUCID interval / or her mental faculties and lucidum intervallum / moment of clarity? BURDEN OF PROOF? to have capacity to act, till i.e. the person was aware of the nature - Balance of probabilities. the opposite is proven. and consequences of their actions. REBUTTABLE PRESUMPTION = IT CAN BE DISPROVED! IMPACT OF MENTAL ILLNESS ON CAPACITY CAPACITY TO PERFORM No capacity if mentally ill (i.e. does not understand the nature and consequences of their action, JURISTIC ACTS but is motivated by delusions. Conclusion of contracts? No contractual capacity. VOID contract Returning any performances given. Unjustified enrichment could be applicable – as it arises automatically by operation of law. Conclusion of marriage? Marriage is VOID. Persons are NOT married and matrimonial property regime not effective. Statutes limiting capacity: Wills Act – Mentally ill person older than 16 years cannot make a will, if mentally ill at the time of acting. CAPACITY TO LITIGATE No capacity to litigate – needs curator ad litem, unless lucid interval. CAPACITY TO HOLD Cannot hold certain offices e.g. be a curator of an insolvent estate; executor of a deceased OFFICE estate; director of a company; member of certain statutory councils. Other statutory limitations Grounds for divorce and mentally ill spouse cannot administer the joint estate Inability to consent to a sexual act Inability to acquire a domicile of choice  CURATORSHIP & ADMINISTRATION: The curator looks after interest of 3 TYPES OF CURATORS: mentally ill person. As a bonus paterfamilias (a reasonable person). CURATOR PERSONAE CURATOR BONIS Activity: CURATOR In groups, discuss how and why a curator is appointed. AD LITEM  3 Types of Curators: a. Curator personae: appointed to care for the personal well-being of the mentally ill person makes decisions on matters related to the mentally ill person’s regimen, such as where the person should live (in or out of institution), his/her heath, etc. the Curator personae is responsible for all decisions where money is not directly involved. b. Curator bonis: Looks after the patrimonial (money) interests of a person who lacks the ability to manage his/her affairs whether as a result of mental illness or not. Because functions of Curator bonis are usually restricted to the patrimonial interests, the Curator bonis cannot deal with acts of an intensely personal nature such as: o instituting divorce proceedings, o Exercising parental responsibilities and rights, o the annulment of a marriage, o Making a will As with the Curator personae, the Curator bonis is appointed by the court for a specific purpose only/ several matters. c. Curator ad litem In legal proceedings, a mentally ill person must be assisted by a curator ad litem - locus standi is denied to someone who is unable to understand the proceedings A Curator ad litem assists mentally ill person in litigation and is responsible for litigation only.  Mental Illness and the Commission of Delicts and Crimes: Can they distinguish IS THE PERSON between right and wrong BLAMEWORTHY? and act in accordance with that understanding? (i.e. not Presumption: Every person appreciate the wrongfulness of is presumed to be in their action) command of his or her mental faculties, unless disproved. Onus: On he / she who alleges it. LACKS ELEMENT OF Lucid interval FAULT I.E. not LIABLE! Fit to stand trial?  Lucidum Intervallum = periods of mental soundness (a.k.a lucid intervals) If it can be proved that the juristic act occurred during a moment of mental soundness or a lucid interval, the juristic act of the usually mentally ill person is valid and enforceable. In the case of a person who is mentally ill, the person who wishes to rely upon the validity of the juristic act must prove that the juristic act occurred during a lucid interval. 2. Intoxication  TEST : Where the influence of drugs or alcohol is so strong Onus of proof…? as to make a person of unsound mind i.e. to understand and The person who appreciate consequences of their actions. NOT just alleges intoxication reckless, pliable or willing must prove it. When…? Temporary… loss of capacity to act. Effect…? Contract is void Van Metzinger v Badenhorst ab initio. Alcohol/ drugs must deprive a Restoration person of their powers of reasoning. CANNOT be Contract: Person must be ratified. UNAWARE of entering into contract and of PROVISIONS of contract. Delict / crime? Affects capacity to be held accountable. QUESTION OF FACT: At the time IMPACT OF INTOXICATION CAPACITY TO No capacity if intoxicated to such an extent that not of sound mind (i.e. does PERFORM not understand the nature and consequences of their action. JURISTIC ACTS Conclusion of contracts? No contractual capacity. VOID contract Returning any performances given. CAPACITY TO No capacity to litigate – no capacity for duration of intoxication. LITIGATE Needs curator ad litem – but usually it is only a temporary condition, so perhaps in exceptional circumstances can be put under curatorship. CAPACITY TO HOLD Cannot hold certain offices where the holding of office relates to OFFICE performing of juristic acts. For the duration of intoxication the person is prohibited. Intoxication and the Commission of Delicts and Crimes: IS THE PERSON Delict – negligence to get BLAMEWORHTY? so drunk / drugged, and usually not an excuse. can they distinguish between right and wrong Criminal Law and Amendment Act 1 Crime – a person can act in accordance with of 1988 escape criminal liability if that understanding? (i.e. Effect? so intoxicated that cannot not appreciate the understand and appreciate wrongfulness of their the unlawfulness of his action) action. (S v Chretien) lacks element of fault i.e. not liable! 3. Prodigality Definition… Person with normal mental capacity, who squanders their assets, in an irresponsible and reckless way, due to a defect in their power of judgment. Procedure: Threatens to reduce himself or Court application by notice of dependents to destitution. motion; Respondent notified. How & by whom…? Sometimes rule nisi is asked for. Court application by “any interested Court order must be published. party” (including prodigal) Legal position? Must be assisted by Ask for: Court order for a declaration curator. as prodigal (appointing a curator bonis) AND interdict prohibiting him How does he get his powers from managing his own affairs. back? Publication: Government Gazette & Court order that discharges him local newspaper. from curatorship.  Constitutional…? Legal capacity…? Controversy Participation in commercial Probably not… (Heaton) dealings AND The duty to support is probably an Handling finances. insufficient I justification for infringing on the prodigal’s rights Capacity to perform juristic Delicts and crimes…? act…? Liable Legal position = like a minor Need to be assisted by his Capacity to hold office? Cannot be director of company, curator. If prodigal acts without executor of deceased estate or trustee of insolvent estate. curator = in contempt of Court AND contract Capacity to litigate? VOIDABLE at instance of No, not usually without curator if it relates to curator. their estate. See also marriage and wills Yes, for divorce OR having prodigality court in textbook. order set aside.  ACTIVITY 1 QUESTION 1: Lerato has been married to Thato for ten years. They are married in community of property. Lerato is addicted to gambling and spends most evenings and weekends in casinos across the country. Lerato is unfortunately not a very lucky gambler, and she and Thato are in a lot of debt due to her gambling. A few months ago. Thato went to the High court and had Lerato declared a prodigal. Lerato does not fully understand the legal implications of this declaration and approaches you for advice on the following: 1.1. Explain what a prodigal is. (4) 1.2. Explain exactly what kind of relief Thato has to ask the court for AND the effect that will have on Lerato’s capacity to act. (4) You have 10 minutes in groups of 4.  ACTIVITY 1 ANSWER QUESTION 1.1: Prodigals are persons with normal mental ability (1) who squander their assets (1) in an irresponsible and reckless way (1) due to some defect in their power of judgment (1). ANSWER QUESTION 1.2: Merely declaring someone to be a prodigal is not enough to deprive the person on capacity to act (1). The declaration must be coupled with an order restraining the person from administering his or her estate (1). The effect of the interdicts is that the prodigal’s legal position becomes analogous to that of a minor (1). The prodigal has limited capacity to act (1) and may consequently not independently enter into juristic acts by which he or she incurs obligations (1). An interdicted prodigal can enter into transactions assisted by his or her curator or the curator can act on his or her behalf (1). [MAX 4 MARKS TO BE AWARDED]  Activity 2 QUESTION 2: Niyaaz, a married man, was recently declared a prodigal by the court and was interdicted from administering his estate. He wants to know from you what a prodigal is and what the effect of the order is. Explain these matters to him. You have 5 minutes in groups of 4. ANSWER QUESTION 2: A prodigal is someone with normal mental ability who is incapable of managing his or her own affairs because he or she squanders his or her assets in an irresponsible and reckless way due to some defect in his or her power of judgment or character. Because he was also interdicted from administering his estate, Gerhard's legal position is analogous to that of a minor. A curator bonis is appointed to administer his estate. Gerhard can therefore only enter into a transaction if he is assisted by his curator or if the curator acts on his behalf. (5 marks) 4.  Ends… Definition… Upon rehabilitation by an order A person whose liabilities of the High Court. exceeds his assets = Capacity… sequestrated by High Court. Capacity to perform juristic acts – Estate = Sequestrated With written consent of trustee. If Turned over to the not = VOIDABLE Master of the High Court Section 23(2) of Insolvency Act UNTIL… Section 23(3) – needs permission for A trustee is appointed. certain professions /occupations Temporary management Capacity to litigate – may sue or be What types of property sued, as long as not a matter affecting vests in trustee? estate (See par. 9.2 (See textbook par. 9.3.3) (textbook). Capacity to hold office – cannot hold Capacity in general? certain positions. Generally, does have full capacity to Accountable for delicts and crimes – act – has ability to understand the still has this capacity nature and legal consequences of acts. Activity 3 IMPACT OF INTOXICATION CAPACITY TO PERFORM JURISTIC ACTS CAPACITY TO LITIGATE CAPACITY TO HOLD OFFICE *You have 10 minutes to complete the above exercise in groups. 5. Physical Disability Who? Legal capacities? Physically disabled – knows and understands the nature and Does not in itself affect the consequences of their actions. person’s capacity to act or other capacities. E.g. deaf, dumb and those with Curator’s role is to ASSIST chronic diseases / serious illness; when such person finds it epilepsy; old age; mental weakness or difficult or impossible to handle retardation (but not mental illness). his or her affairs. VALID transaction – if person capable of performing legal transaction. Question of fact – depends on the actual capacities at the time of acting. Curator: Common law – our courts do have power to appoint a curator. For those who due to bodily defect are unable to take charge of their affairs. High Court still appoints curators today. Court ASKS whether person has consented – as such person is perfectly able to understand the nature and consequences of their actions. Ex parte Wilson: In re Morrison – court dismissed application for appointment for curator bonis for 90-year-old lady. What Happens Next? Week 5, you will learn about Domicile in Chapter 7.