Misapplied and Misunderstood: The Disparities in the Use of Prodigality and its Limits

Abstract

Due to the fact that people have subjective existence, it is difficult to determine the extent to which they should allow legal concepts to influence or govern their innermost personal lives. It may be inferred from the Bill of Rights in the Constitution of the Republic of South Africa that South Africans have the right to autonomy over themselves and how they choose to lead their lives, including how they manage their own estates. A pressing issue in this regard is whether the declaration of prodigality invasively strips the prodigal of the ability to exercise his or her commercial rights and what implications this has for his or her human dignity. The state has the duty to protect all citizens, especially children (as per section 28 of the Constitution as well as the Children’s Act), and, through reasonable means, intervene when individuals fail to protect themselves. There is, however, the question of whether the state, in granting an interdict to limit a prodigal’s capacity to act and in appointing a curator bonis to administer the estate, is employing reasonable means and whether, or to what extent, individuals should allow the state to govern their personal habits. Some believe that the appointment of a curator bonis is invasive of one’s dignity, freedom, and control of one’s life. Indeed, this article argues that the law of prodigality is
outdated and needs to be developed such that its application does not infringe on a person’s right to human dignity and yet is efficacious in protecting the interests of children.