On 21 September 2026, Africa Daily reported on developments in a court case handed down in relation to the late Honourable Mosiuoa “Terror” Lekota (https://africadaily.co.za/lekotas-nyatsi-scores-major-court-victory/?utm_source=chatgpt.com). The case sheds light on an area of our law that requires urgent attention. The dispute, which pertains to his cognitive decline prior to his passing, raises questions about who should be entitled to manage a person’s affairs when one is experiencing cognitive impairment.
Dementia, Alzheimer’s and other cognitive impairments have been on the rise within the past decade. Our law is not optimal to cater for an instance where a person, especially a breadwinner, experiences cognitive decline. This issue is important in our country, where the wellbeing of a breadwinner generally has a significant impact on immediate and, oftentimes, extended family. It is also not uncommon in a country like ours for the breadwinner to be the first to lift his or her family out of poverty in the democratic era.
It could be devastating to a family if management of such a person’s affairs falls into the wrong hands. It is therefore important that our law caters adequately for this situation, especially considering that all families may not be in a position to resort to the courts for assistance.
Currently, if your mental abilities have declined to the stage where you need assistance in managing your affairs, a curator or administrator is appointed to manage them. An administrator or curator bonis is appointed to manage the estate or property of an incapacitated person, while a curator personae can be appointed to take decisions regarding the welfare of a person, including decisions relating to medical treatment. A curator is appointed by the relevant High Court, and an administrator is appointed by the Master of the High Court.
Practical disputes can arise among family members regarding who should be appointed to manage such affairs. Ideally, you should be able to choose in advance who will manage your affairs when you are lucid enough to do so. This is particularly important where your estate is large and the family dynamics are complex.
Our law is suboptimal in this regard. A person (a “principal”) can generally grant a power of attorney to another person (“an agent”) to act and/or transact on the principal’s behalf. However, a power of attorney only remains valid for as long as the principal is capable of making his/her own decisions. In other words, a power of attorney in South Africa cannot give more capacity and authority to an agent than a principal has at any one time. Therefore, if a person is incapacitated, the power of attorney will not endure and a curator or administrator must be appointed by the High Court or the Master of the High Court to manage the incapacitated person’s affairs.
There have long been discussions about whether an enduring power of attorney should be lawfully enforceable in South Africa. An enduring power of attorney is one that allows you to appoint someone in advance to manage your affairs, for example, a spouse. An enduring power of attorney drafted correctly would stay in force after you have become incapacitated. The South African Law Reform Commission has, for more than 30 years, published discussion papers and reports making the case for an enduring power of attorney to be legislated.
An obvious practical consideration would entail authentication of such a document, which could be treated the same as a will. The appointment of the person in such a power of attorney may still need to be confirmed by an official, for example, the Master of the High Court. However, at least the person granting the enduring power of attorney would have comfort that a desirable person would have control of his/her affairs, especially financial affairs.
Many voices have called for this issue to be addressed for decades. It is worth drawing attention to it again when the family of one of our past lawmakers and politicians has been so publicly affected by it. Where less cumbersome processes are available for families in already difficult situations, and we have decades of research with examples in other jurisdictions, it is curious why our law remains vacuous in this way.
