Critiquing the inconsistencies in the application of prodigality and limitations thereof.

Abstract

Generally, due to its subjectivity, it is difficult to measure the appropriate extent to
which individuals can allow legal concepts to influence or even govern their
innermost personal lives. According to the Constitution of the Republic of South
Africa, South Africans have the right to have autonomy over themselves and how
they chose to live their lives (this is inferred from the Bill of Rights, Chapter 2 of the
Constitution), this therefore includes how people choose to manage their own estate.
One of the most pressing questions is whether the declaration of prodigality
invasively strips the prodigal of the ability to exercise their commercial rights and
what implications this has on their human dignity. It is understood that the law has
the duty to protect all citizens, especially children (contained in 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, a question of whether
the means of the State, which is granting an interdict, thus limiting a prodigal’s
capacity to act as well as further appointing a curator bonis to administer the estate,
are reasonable and to what extent should individuals 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 over their life. This paper seeks to reveal how
outdated the law of prodigality is and how it needs to be developed so that in application, it does not infringe on a person’s right to human dignity and effectively protects the interests of children.