Get more Mail & Guardian
Subscribe or Login

The Mental Health Care Act and the art of patient care corruption

The Mental Health Care Act (No 17 of 2002) was supposed to be a progressive reform. Its intentions were unimpeachable — to create a fair, humane way to protect the interests of people who are unable to take care of themselves. It was all about safeguarding the vulnerable and protecting them from discrimination on account of intellectual disabilities.

Unfortunately, the Act has a dark side. For greedy relations, unscrupulous lawyers and other “experts”, it can be a license to plunder the unfortunate. Even a temporary illness or incapacity opens an individual to a world of risks and can plunge the unwary into a nightmare of powerlessness and dispossession.

It all sounds rational and fool proof. Since mental disorders affect people’s decision-making capacities, a person with a profound intellectual disability is not considered competent to manage their own financial affairs. A Master of the High Court can then appoint an administrator to care for the property of anyone duly certified as suffering from a profound intellectual disability.

On paper, the Master’s duty, in respect of the Act, is to provide efficient, cost-effective and, above all, honest services of supervision, custodianship and arbitration to safeguard the estates of people with profound intellectual disabilities.

In the real world, however, there are spouses, siblings, and other “loved ones” who are more interested in looking after themselves and unscrupulous professionals, and even state officials who know exactly how to game the system.

Together they have developed sophisticated ways to swindle those they were supposed to care for using the very Act designed to protect their victims. In their pitiless hands, people with profound intellectual disabilities lose their rights, property, and freedom.

More shocking still, even people who do not have any intellectual disabilities can find themselves reduced to poverty and helplessness because of flaws inherent to the administration of properties under the Mental Health Act.

Incredibly, these types of cases, which amount to a form of legal kidnapping, are rarely contested in South Africa and seldom come to the attention of the public. I recently came across such a case when a client, after recuperating from a serious physical illness, found himself blocked from access to his bank accounts on the basis that his physical illness had by some miracle morphed into an intellectual disability. While my client lay unconscious for a brief period after a complicated operation, his estranged wife had managed to get herself appointed as interim administrator by the Master of the High Court and had lost no time in appropriating his assets.

This happened where it was very clear that medical reports in support were dubious and, more so, whether there was a valid application for administratorship to begin with. Further, his estranged wife was made administrator despite the fact that he had named his siblings as next of kin when he was admitted to hospital. The unfortunate gentleman only discovered that the wife he had been in the process of divorcing after years of being abused emotionally and physically by her was now the legal overseer of his financial affairs when, after finally recovering from his illness, he tried to use one of his credit cards.

It was one of the most egregious cases I had seen in many years of practice, but even with all the facts on his side, it was far from easy to recover his properties and reassert control over his own life. During the process of fighting the case, there was a shocking lack of transparency from the Master’s office, with various attempts to derail the case emanating from that office. An investigator with the Master’s office even forged letters in an attempt to discredit the man.

The case raises serious reputational questions about the conduct of the Master’s office. Just last year, all 15 Master’s offices nationwide were closed while a Special Investigation Unit probed numerous allegations of fraud and malfeasances involving the assets of minors and the deceased as well as people alleged to have intellectual disabilities. I know for a fact that what happened in this case both in the way my client was defrauded and in the way we were treated when he contested the injustice involved gross malfeasance at the Master’s office.

After contesting and questioning how the issue was handled, my client’s property and dignity were eventually restored but one can only imagine the tragedy of victims who cannot afford legal representation or are genuinely not competent to act. Victims in such circumstances are effectively at the mercy of ruthless relatives and unscrupulous officials. They have nowhere to turn. There are very few accessible resources out there that the public can refer to for advice.

In a rapidly changing world, mental health has been a growing concern for some time, but the impacts of the Covid-19 pandemic, with its losses and lockdowns, has triggered a mental health crisis of global proportions. Increasing numbers of people are breaking down under these stressors.

The legal community urgently needs to zero in on the complexities of how the law can deal with mental health issues. Of particular concern is administratorship of the estates of vulnerable individuals who become temporarily or permanently incapable of looking after their affairs.

Vote for an informed choice

We’re dropping the paywall this week so that everyone can access all our stories for free, and access the information they need in the run up to the local government elections. To follow the news, sign up to our daily elections newsletter for the latest updates and analysis.

If our coverage helps inform your decision, cast your vote for an informed public and join our subscriber community. Right now, you can a full year’s access for just R510. Subscribers get access to all our best journalism, subscriber-only newsletters, events and a weekly cryptic crossword.

Benedict Phiri
Reitumetse Benedict Phiri is a practicing attorney and founder of bespoke law firm IusPrudentia Specialist Counsel. He provides strategic litigation and dispute resolution leadership and ongoing legal counsel in transactions which now exceed R300-billion in various industries across Africa and for multinational clients. He is a regular contributor of legal analysis on South African broadcast media. Prior to founding IusPrudentia, he was previously employed at leading international law firms, Dewey & LeBoeuf and Fasken Martineau DuMoulin, and has additional in-house general counsel experience having led management consulting giant McKinsey & Company’s Africa legal support function for five years.

Related stories


Already a subscriber? Sign in here


Latest stories

Malema: ANC will use load-shedding to steal votes

While on the campaign trail in the Eastern Cape, EFF leader Julius Malema, without evidence, claimed the ANC was planning to use rolling blackouts to ‘steal votes’

Khaya Koko: The looting isn’t over until the fat belly...

A song about Eastern Cape Premier Oscar Mabuyane preventing looting was way off the mark in a province riddled with corruption and theft

Eskom will try to avoid blackouts during local government elections

Chief operating officer Jan Oberholzer said the ailing state power utility’s staff would be on standby as South Africans cast their votes on 1 November

‘Terribly scary’: Dysfunctional municipalities are a threat to South Africa’s...

The country’s local governments are a drag on investment, a strain on the fiscus and pose a critical sovereign risk

press releases

Loading latest Press Releases…