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Background

The South African Law Commission is currently involved in an investigation on the need for measures to protect the interests of adults whose capacity to act and to litigate has for some reason been diminished. The investigation is aimed at enhancing such diminished capacity or dealing with it in ways that will assist such persons, their families and caregivers.

This investigation does not deal with the care (including reception and detention in institutions), treatment and rehabilitation of mentally ill persons. These issues are regulated by the Mental Health Act, 1973 (Act 18 of 1973 [the Mental Health Act]) which is in the process of being updated and replaced by the Mental Health Care Bill, 2001 (B 69-2001 [the Mental Health Care Bill]), currently before Parliament. The investigation is also not concerned with the rights of the elderly in general. Draft legislation on the status of the elderly, following on the Report of the Ministerial Committee on Abuse, Neglect and Ill-treatment of Older Persons published in February 2001, is currently being developed by the Department of Social Development. These developments have been noted and will be taken into account in the course of the Commission’s investigation. The investigation is limited to “adults”: for purposes of this investigation persons of 21 years and above – the age at which the law currently confers full capacity to act and to litigate. The Commission is currently considering the protection of the rights of children in general under its review of the Child Care Act, 1983 (Act 74 of 1983). A Discussion Paper in this regard is currently being prepared.