Appointment of an administrator - response

I refer to Allen West's discussion, in Appointment of an Administrator, and agree (a) that section 65 of the Mental Health Care Act, 17 of 2002, ("the MHC Act"), provides for the applicability of sections 75, 78, 79, 83, 84 and 85 of the Administration of Estates Act, 66 of 1965, ("the AOE Act"), subject to the necessary changes, to any administrator appointed in terms of the MHC Act and (b) that it is important to note that section 79 (2) of the AOE Act makes reference to section 80 of the AOE Act.

Further, Allen West observes, however, that "the provisions of section 63(4)(a) of the Mental Health Care Act must be complied with in respect of the alienation or mortgage of immovable property of a mentally ill person". To me, the problem with the latter observation is that the implies that section 63 (4) (a) of the MHC Act prevails over section 65 of the MHC Act, to the extent that section 65 of the MHC Act provides for the applicability of section 79 (2) of the AOE Act and section 79 of the AOE Act makes reference to section 80 of the AOE Act. In simple terms, the said observation implies that section 63 (4) (a) of the MHC Act must, but section 80 of the AOE Act must not, "be complied with in respect of the alienation or mortgage of immovable property of a mentally ill person". I cannot agree. In my opinion, the provisions of both sections must be complied with.

Section 65 of the MHC Act provides that: "In addition to this Chapter the provisions of sections 75, 78, 79, 83, 84 and 85 of the Administration of Estates Act, 1965 (Act 66 of 1965), with the necessary changes, apply to any administrator appointed in respect of a mentally disabled person." In my opinion, the words "In addition to this Chapter", in section 65 of the MHC Act, make it abundantly clear, amongst other things, that section 63 (4) (a) of the MHC Act and section 79, which refers to section 80, of the AOE Act, are intended to complement each other and must, therefore, be read together. Incidentally, the said sections do not conflict with each other in any way, are not incompatible and are not mutually exclusive. On the contrary, they are harmonious and ensure uniformity.

By way of summary, I conclude, therefore, that, in terms of the provisions of section 65 of the MHC Act, section 80 of the AOE Act, referred to in section 79 (2) of the AOE Act, applies to any alienation or mortgage, of immovable property belonging to a mentally disabled person, by any administrator appointed in terms of section 59 of the MHC Act.

In the result, the documentation/proof, to be submitted to a Registrar of Deeds, in respect of an administrator, does not differ from that in respect of a curator bonis.

Thabo Nqhome
13 November 2009

Note
Allen West would like to draw readers' attention to the implication of Chief Registrar's Circular of 2008 and its applicabilty to section 63(4)(a) of the Mental Health Act.