Equal recognition and legal capacity for Persons with Disabilities: Incorporating the principle of proportionality
Authors Willene Holness
Affiliations: Lecturer, University of KwaZulu-Natal, Durban
Source: South African Journal on Human Rights, Volume 30 Issue 2, 2014, p. 313 – 344
The new approach to legal capacity legislation promoted by the Convention on the Rights of Persons with Disabilities is that all persons with disabilities have full legal capacity on an equal basis with others, but may require support in making certain decisions. Any restrictions on legal capacity must accordingly incorporate safeguards in line with art 12(4) of the Convention, including that the restriction must be tailored to the individual’s circumstances and must be proportional to his or her needs. The South African Law Reform Commission has embarked on law reform in this regard and has recommended the Assisted Decision-making Bill to provide for support measures as an alternative and parallel measure to the current curatorship system. Proportionality is not only a standard of judicial review to ascertain whether a legislative measure justifiably limits the right to equality and legal capacity. It is also a principle that must guide any person that provides support to a person with a disability who cannot make decisions independently to ensure that whatever support is provided to him or her to come to a decision regarding his or her welfare or finances, remains proportional to his or her circumstances and needs. The support must not be overbroad, must not negate the autonomy of the person, and even in hard cases, the will and preferences of the person must be sought. The Assisted Decision-making Bill does not sufficiently incorporate the principle of proportionality and other safeguards and will require revision.