The Case of Mentally Incapacitated Persons -

In Zimbabwe mental health is governed by the Mental Health Act (Chapter 15:12). The term used in this Act is “mentally disordered or intellectually handicapped”. The definition of this term is provided in section 2 of the Act as follows;

‘in relation to any person, means that the person is suffering from mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of the mind’

The case of a person being mentally ill is relevant in both criminal and civil matters. In criminal matters it is relevant inter alia in determining the criminal liability of the accused person and the competence of a complainant/ witness to give evidence in court. This article only focuses on mental incapacity in relation to some aspects of civil law and is obviously not exhaustive.

A person who is mentally ill to such an extent that he is a danger to him/herself may require detention and/ or supervision, treatment and control in terms of the Mental Health Act. There are however those who may be mentally disordered or intellectually handicapped but not in detention or in a mental health institution. The bottom line is that these persons may not be able to manage their own affairs in particular their estate. They may for example dispose of their property to their own detriment and that of their dependants. A few case law examples would be useful.

In Susan Taurai Mapunde Dube NO V Robert Matoka & Ors HH212/14 the court summarized the Applicant’s contention as follows;

‘It is the applicant’s case that the deceased suffered from mental illness from 2006 to the time of his death that is on 3 July 2012. It is on this basis that applicant seeks to have the agreement of sale entered into between the deceased and first respondent to be declared null and void and set aside due to lack of compos mentis on the part of the deceased on the time of the transaction’.

In Basil Matanga v Firomina Denhure & Anor HH87/08 the court stated as follows,

‘Section 4 of the Wills Act [Cap 6:06] provides that any person over the age of 16 years may make a will provided that at the time of making the will he is mentally capable of appreciating the nature and effect of his act’. (Underlining my own)

What is clear is that mental incapacity is a question of fact. The question is whether the person was normal or mentally deficient at the moment of executing the transaction. Thus facts should be pleaded from which it can be concluded that the person was mentally incompetent when the transaction was executed. In Hindoga v Predictive Maintenance (Pvt) Ltd &Anor 2000 (2) ZLR 109 (SC) the court held as follows;

The appellant relied upon the contents of this report for the contention that he was mentally incompetent at the time the sale agreement was concluded in March or April 1991. I do not think that the report supports that contention. In addition, I do not find the report helpful. It was compiled in September 1993 from what the appellant  told the doctor. There was no other source of information to assist the doctor in assessing the appellant’s mental condition. In my view, a more thorough investigation was necessary. For example, the appellant’s medical records should have been checked. 

In the case of Ngwenya v Ngwenya & Ors 2000 (1) ZLR 117 the court stressed the need for

medical evidence in cases where a will is being challenged on the basis of mental incapacity. However, the opinion evidence of a doctor only becomes relevant if it relates to the matter for which the court cannot, on its own, make a determination upon.

A judge has the power to declare a person mentally disordered or intellectually handicapped in terms of section 7 of the Mental Health Act. This will be upon consideration of a reception order and other documents. However, in terms of section 92 of the Mental Health Act where any person is of the view that a person is mentally disordered or intellectually handicapped (even in cases where there is no reception or detention order), they can make an application to a judge in chambers for the appointment of a curator. The application can also be made in terms of the common law. If the judge is satisfied then he/she will make an order for the appointment of a curator and the maintenance of that person, his spouse, children and dependants, if any. From this point it is the curator who manages the person’s proprietary interests (curator bonis); conduct civil litigation on behalf of the person (curator ad litem) or to look after the personal affairs of the person.

The certification of a person as mentally deficient or the appointment of a curator has the effect on the burden of proof since it creates a presumption that the person has no capacity to act or to manage his affairs. It is therefore advantageous to have a person declared mentally disordered or intellectually handicapped and to have a curator appointed. This to a larger extent will protect the person’s estate to the advantage of him/herself, his/her spouse, children and dependants

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2018


  1. Tamary Zaranyika

    I would like to find out in the case where the incapacitated person has children over 18 and a relative gets curatorship bonis.

    How do the children overide this .

    And take back their control over their parent who has mental illness .

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