oa Comparative and International Law Journal of Southern Africa - Legal capacity of mentally ill persons in African societies

Volume 36, Issue 1
  • ISSN : 0010-4051



Mental illness has in recent years become more topical than ever before. Scientists have made dramatic advances in the diagnosis, symptomatic treatment and cure of different forms of mental illness. At the same time, there is an increasing interest in dealing with a demented person from an ethical and legal point of view. The South African parliament has recently passed a new Health Care Act that approaches the condition from a highly sophisticated, scientific angle. At the same time the South African Law Commission has embarked on a research project aimed at rationalising the law on the legal capacity of adults with impaired mental capabilities. These developments prompted the authors to examine the way in which African societies regard and deal with the mentally insane. They point out that while some forms of mental deviation are caused by ancestral veneration, others can be ascribed to witchcraft or spirit possession. However, Africans clearly distinguish between the aforementioned conditions. Unfortunately non-scientific approaches may lead to serious misconceptions - even the killing of those suspected of practising witchcraft. Then again, Africans are rather accommodating towards the mentally competent. It is said that they do not suffer alone, but that the corporate group suffers with them. The authors also deal with some typical customary law principles that have been developed to regulate cerain legal issues arising from mental illness.

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