LOPF 5 AND 6

• Constitutional democracy


  Human rights are universal and inalienable
• Equality or equal treatment under the law

  Unfair discrimination is forbidden on certain grounds, namely - sex and gender
• Limitation of rights


  Permitted under limitations clause, provided they are 'reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom'
• Can discriminate (treat people differently) provided it is fair
• Sex


  Biological term - physical differences between us
• Gender


  Social construct, male and female roles assumed by men or women in terms of social or cultural norms
• Births and Deaths Registration Act: Notice to HA within 30 days. Child's sex is filled in here
• Discrimination on the grounds of sex is a thing of the past
• Exceptions

  • Guardianship of a baby when parents are unmarried
  • Age of puberty - girls are marriageable at 12, boys 14. Is this unfair discrimination?
• Genitalia, gonads and chromosomes differentiate between the sexes


  Despite displaying physical characteristics belonging to one sex, psychological may feel they are a member of the opposite sex
• Divorce case of W v W: Court refused to accept the altered description of their sex on their birth certificate


  1976
• Ormod test


  Sexual constitution is set at birth and cannot be altered by medical or surgical means
• As a result of cases, s 7B of Births, Marriages and Deaths Registrations Act was repealed and people who had had sex change operations could not apply for an amended birth certificate
• Human Rights Commission concluded that these rules are unconstitutional as an infringement of privacy and dignity
• Parliament enacted The Alteration of Sex Description and Sex Status Act 2003: Can apply to change your sex on formal documents
• Births and Deaths Registration Act also amended to this effect (s27A)
• If a person does not understand the nature and consequences of a juristic act, the law will not attach legal consequences to the act


  Capacity to act of people suffering from mental illness or under the severe influence of drugs or alcohol = not recognised
• Mental illness


  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
• When is a person mentally ill for the purposes of private law?

  Unable to understand the nature and legal consequences of his or her acts, or if they are "motivated to perform the acts by delusions caused by mental illness" they will be considered mentally ill
• Will not be accountable in law for act or consequences
• How is mental illness proved?

  Question of fact, what is the state of mind at the time of performing the act? General rule: everyone presumed to be of sound mind and have full capacity to act, until the contrary is proved. Onus rests on person alleging incapacity - must be at the time of the act. Burden of proof: balance of probabilities.
• Lucidum intervallum: lucid interval
• Previous declaration of mental illness by a court or a reception order in terms of Mental Health Care Act - shifts burden of proof - rests on person alleging that the mentally ill person had experience a lucid interval

  Both presumptions are rebuttable
• Impact on capacity


  Capacity to perform juristic acts negated by mental illness. No capacity if you are unable to understand the nature and consequence of their acts, therefore: no capacity to incur binding contractual obligations.
• Focus is on 2 private law transactions


  • Concluding a contract
  • Concluding a civil marriage
• Contracts (including marriage!) will be void and parties will be restored to their previous positions
• Wills Act 1953


  Person over 16 is competent to make a will, unless they are mentally ill at the time of making the will and unable to understand the nature and consequences of the will making act
• Capacity to litigate


  No capacity to litigate (unable to understand court proceedings). Curator ad litem appointed. Proceedings conducted in the name of the mentally ill person. Lucid interval? Has capacity for the duration of the interval.
• Capacity to hold office

  • Cannot hold certain offices: Curator of an insolvent estate, Executor of a deceased estate, Director of a company, Certain statutory councils constituted in terms of legislation
• Cannot consent to a sexual act (Criminal Law Amendment Act 2007)
• Cannot acquire a domicile of choice (Domicile Act 1992)
• Consequences in marriage or civil partnership

  Incurable mental illness is a ground for divorce, On application, a court can order that a mentally ill spouse cannot administer the joint estate or order division of joint estate (ICOP) or order immediate division of the accrual (OCOP with accrual)
• Curator


  Mentally ill can be assisted by a curator. Curator must: Meet the standard of bonus paterfamilias (reasonable/prudent man), Be appointed by the High Court (once person has consented - only a factor), Powers and duties determined by the Administration of Estates Act of 1965, Special powers specified in letters of curatorship, Master of HC ensures curator is given necessary authority, Curator must provide security to satisfaction of Master to carry out duties (certain exemptions)
• Types of curators


  • Curator personae - 'curator of the person', personal curator (general or specific purpose)
  • Curator bonis - curator of property (general or specific)
• Curator bonis


  Responsible for all aspects of the patrimonial interests of the mentally ill person, including managing and administering the property, including financial affairs, entering into contracts. Immovable property cannot be sold or mortgaged without the consent of the Master or court order. Money not needed for the administration of the estate must be paid to Master, unless court had ordered otherwise. Curator submits an annual report of curatorship to the Master.
• Lucidum intervallum


  Mentally ill person can manage their own affairs and make decisions without supervision of the curator. Question of fact.
• Curator ad litem


  Appointed for somebody who is unable to understand the nature of court proceedings (including the mentally ill). Can either apply to HC or HC will appoint. Normally an advocate or attorney. Normally precedes a curator bonis appointment.
• Administrator in terms of Mental Health Care Act 2002


  Takes care of and administers the property of the mentally ill person, or a person with severe intellectual disability. Includes carrying on business matters. Similar to curator bonis but does not replace it (supplementary to it). Difference is in the appointment procedure - can be appointed by the Master of the HC (not judge) - but Master can refer it to a judge in chambers. Application can be made by any person over 18, usually spouse or next of kin.
• Mental illness: crimes and delicts

  Can only have a blameworthy state of mind if you are able to understand right from wrong and act accordingly. If you are mentally ill, you are unable to distinguish right from wrong (or unable to act on it) and therefore not accountable. Would not fulfill fault element. Lucid interval - will be accountable. Presumed sane, therefore must allege and prove insanity if you seek to rely on it. Same in delict.
• Criminal Procedure Act 1977


  Sets criteria for determining if mentally ill are accountable and whether person can stand trial.