Frequently Asked Questions (FAQ) About Elderly People and the Law in Zimbabwe

1. Is there specific legislation related to elderly persons in Zimbabwe?

The Constitution of Zimbabwe Amendment (No. 20) Act, 2013 recognizes the rights of elderly Zimbabwean citizens. Furthermore, the Older Persons Act [Chapter 17:11] (the Act) which was promulgated on the 17 th September 2012 and came into effect on the 01 st September 2017 through SI 100 of 2017 was established to provide for the well-being of older persons in Zimbabwe. The Act can also be read together with the Social Welfare Assistance Act [Chapter 17:05].

2. What legal steps can I take before a loved one dies?

Death is inevitable. It is important to plan for death and to take steps which can ease the burden of dealing with loss. The most important legal steps to take is consulting with a lawyer with expertise in the Administration of Estates and Wills drafting to provide the right legal advice to resolve issues and queries which might arise.

3. Is it justifiable to seek legal advice concerning an elderly relative?

Most families are starting to seek legal advice concerning the rights and welfare of their elderly relatives in Zimbabwe. It is thus justifiable to seek legal advice concerning an elderly relative.
It is important for individuals and families to set the affairs of the elderly relatives in order. One of the ways in which this can be done is by ensuring that each family member has an up-to-date Last Will and Testament (‘Will’) and that family assets and investments are administered by impartial and independent trustees under a Family Trust. It is also vital to ensure that there is adequate care and protection of their estate i.e., property of elderly / older persons by protecting family assets. It may also be useful to seek legal advice to take of care of issues concerning the health associated with old age.

4. Are old people in Zimbabwe eligible for Social Welfare Assistance?

In terms of section 9 of the Older Persons Act [Chapter 17:11] an application can be made on behalf of a destitute or indigent older person for social welfare assistance in Zimbabwe where the Director for Older Persons Affairs is satisfied that the elderly person:

• (a) Is handicapped physically or mentally; or
• (b) Suffers continuous ill – health; or
• (c) Is a dependent of a person who is destitute or indigent or incapable of looking after himself or herself; or
• (d) Otherwise has need of social welfare assistance.

5. What is the Older Persons Fund?

The Older Persons Fund, is a fund enacted in terms of section 10 of the Older Persons Act [Chapter 17:11] for the purposes of providing social welfare assistance to destitute and indigent older persons. The fund also promotes various programs concerned with the promotion of health, education and development of skills in older persons including the establishment, operation and maintenance of services and facilities.

6. Should I make structural adjustments to my property because I reside with an elderly person?

It is not a strict requirement of law to make structural adjustments to any home, premise which are inaccessible to older persons. However, in terms of section 11 of the Older Persons Act [Chapter 17:11] the Older Persons Board (‘the Board) can serve on any owner of immovable property i.e., home or premises an adjustment order by reason of any structural, physical, administrative or other impediment to such access in which older persons reside or members of the public are generally admitted.
An obligation to comply with an adjustment order is a duty owed to every interested person. Before the Board can issue an Adjustment Order concerning any home, premise, service or amenities which is inaccessible to older persons by reason of structural, physical, administrative or other impediment to such access, the Board is required to serve a notice upon the person concerned:

• (a) Specifying the grounds upon which the adjustment order is to be issued and the nature of the action which the Board considers necessary to rectify the situation which has given rise to the proposed order; and
• (b) Stipulating the maximum period that the Board considers reasonable for the implementation of the action it proposes to order; and
• (c) Calling upon the person concerned, if he or she wishes to make representations, to make them to the Board within thirty days from the date of service of the notice.

Old age homes, hospitals, accommodation, nursing homes and clinics which are administered i.e., operated or managed by the State or registered in terms of the Health Professions Act [Chapter 17:19], the Medical Services Act [Chapter 15:13] and the Private Voluntary Organisations Act [Chapter 17:05] are exempt.

7. Is it illegal to deny an elderly person access to public premises, services and amenities in Zimbabwe?

Section 12 of the Older Persons Act [Chapter 17:11] (the Act) deals with age discrimination with regards to access to public premises, services and amenities to elderly persons within Zimbabwe. In terms of the Act, no elderly persons should on the ground of his or her age alone be denied:

• (a) Admission into any premises to which members of the public are ordinarily admitted, unless such denial is motivated by a genuine concern for the safety of the older person concerned;
• (b) The provision of any service or amenity ordinarily provided to members of the public; unless such denial is motived by a genuine concern for the safety of the older person;
• (c) Access to social and legal services to enhance his or her autonomy, protection and care to which members of the public are ordinarily granted access; and
• (d) Access to schemes, projects or income – generating opportunities to which members of the public are generally granted access.

8. What to do when a close relative has lost his / her capacity to make decisions?

In the event that a spouse, child or close relative loses their mental capacity through insanity or dementia it is important to take steps for the protection of their property and the maintenance of their dependents. It is therefore important to seek legal advice from a specialist law firm or legal practitioner.

9. How do I know if a close relative, child or spouse has lost their mental capacity?

What constitutes lack of capacity is also referred to as lack of corpus mentis. Not everyone is capable of managing their own affairs. It can also be said, that not everyone is capable of managing their own affairs at all time. The Supreme Court in Executive Hotel (Pvt) Ltd v Bennet N.O. 2007 (1) ZLR 343 (S) set out three principles for testing the existence or otherwise of corpus mentis which are summarized as follows:

• (a) Was the state of mind of the contracting party whose capacity is at issue such that he was incapable of estimating what was or what was not a fair and beneficial bargain?
• (b) Was the state of mind of the contracting party whose capacity is at issue such as would in common honestly not make him liable or responsible for such act or contract?; and
• (c) Whether the contracting party whose capacity is at issue was of such unsound mind as to be incapable of understanding and appreciating the transaction into which he purported to enter.

10. Does the law in Zimbabwe recognize Mental Health?

Several people in Zimbabwe are suffering from anxiety, panic attacks and depression. The legislature in Zimbabwe recognizes different mental health conditions. It is for this reason that the Mental Health Act [Chapter 15:12] was promulgated in Zimbabwe to consolidate the law relating to the care, detention and after – care of persons suffering from mental illness.

11. Is the term ‘Mental illness offensive in Zimbabwe?

The word ‘mental illness’ appears discriminatory, offensive and insensitive to vulnerable members of society. However, it is a term which is derived from statute. It is also important to note that the law requires that everyone be treated with humanity and respect for their inherent dignity.
The High Court in S v Muzondo HH 236-23 held that:
“But before we begin this judgment and in passing we wish to point out that we use language that may appear insensitive to people experiencing different mental health conditions. What is poignant however is that the language is extracted differently from the Mental Health Act [Chapter 15:12] (the MHA) and the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) both of which govern the defence of mental disorder. Courts cannot circumvent the language used in a statute. If they do the likely outcome is a misinterpretation of the legal provisions. We can only therefore do no more than urge parliament to revise not only these two statutes but a host of others which insinuate discrimination or insensitivity to members of vulnerable groups of our society. Language is dynamic. What may have been previously acceptable can become clearly insensitive in the wink of an eye. It is the reason why words such as imbecile or idiot which used to be common features of our mental health law were struck down from the statutes.”

12. Is it possible to nullify transactions entered into by a relative on the basis of mental incapacity in Zimbabwe?

Yes. It is possible. Where you seek to have a close relative excused from the consequences of a contract which they may have entered into on the basis of mental incapacity, it is necessary to prove that the relation has an incapacity. Everyone is presumed to be sane in Zimbabwe until they have been declared mentally ill in terms of the Mental Health Act [Chapter 15:15].
It is thus incumbent on any person who claims to be excused from liability by reason of mental illness to prove that he / she did not understand or appreciate the nature of the transaction, or that the consent was by a delusion. In Matanga v Denhure & Another HH 87-08 the court in dealing with a case involving a challenge of a will on the grounds of mental incapacity held that, there was need for medical evidence from those present at the time of writing the will and furthermore the need of an expert where allegations of forgery were made.

13. Is medical evidence required to show mental incapacity in a Zimbabwean court?

In the case of Baeck v Brighton NO & Another 1983 (1) ZLR 270 (H) and Ngwenya v Ngwenya & Others 2000 (1) 117 (H) the courts held that the onus of proving the incapacity of a person rests on the person who alleges it. The inquiry into the mental state of a contracting party in Zimbabwe is a matter of fact to be decided by the courts. The courts have stressed the need for the production of medical evidence in cases where any transaction, contract or will is being challenged on the basis of mental incapacity, in addition to any other evidence from the person’s relatives, showing that he or she was indeed incapacitated.

14. What is a Curator Bonis?

A curator bonis is an individual (usually a legal practitioners) who is appointed by the High Court to assist persons who have full capacity to act, but who, for some reason or another, such as physical disability through old age and the like (see Ex parte Comins 1951 (2) SA 249 (W) 252) or mental disability, are unable to care, administer and manage their own property.
In Simango v Simango HH 79-11 the court held that, the rights and obligations of curators are mutatis mutandis, the same as those of guardians except, that they only relate to the property of the person under curatorship and not to his / her person. Thus, a curator bonis is expected by operation of law, to take custody and control of the property of a person under curatorship

15. What is a Curator Bonis authorised or required to do in Zimbabwe?

In terms of section 88 of the Mental Health Act [Chapter 15:15], a curator may be authorized or required to do certain things, which include but are not limited to:

• (a) Acquire any property in the patient’s name;
• (b) Carry on or discontinue any trade or business of the patient;
• (c) Continue such charitable or benevolent acts exercised or promised to be exercised by the patient;
• (d) Dissolve any partnership of which the patient is a member;
• (e) Institute, defend, settle such legal proceedings as are necessary in the interests of the patient or the proper administration of his / her estate;
• (f) Maintain or improve any of the patient’s property or any property of his spouse;
• (g) Perform any contract relating to the patient’s property which the patient had entered before he or she become mentally ill;
• (h) Provide for the patient’s present or future maintenance;
• (i) Provide for the maintenance, education or advancement of the patient’s spouse, children or dependents;
• (j) Sell, let on hire, exchange, partition, mortgage or dispose of any patient’s property, and give or receive any money in consideration for such transaction.

16. Is there a distinction between a Foreign Trustee and Curator in Zimbabwe?

There is no distinction between a foreign trustee and a foreign curator in Zimbabwe. Where however, a foreign representative, such as an executor, curator, liquidator, trustee or receiver wishes to deal with assets whether movable or immovable in Zimbabwe in his / her representative capacity and by virtue of his / her foreign authorization he or she would have to first be recognized by the Zimbabwean courts. This is done by application to the High Court. see Liquidator Rhodesian Plastics (Pvt) Ltd v Elvinco Plastic Products (Pty) Ltd 1959 (1) SA 868 (C).

17. Are Foreign Curators recognized in Zimbabwe?

The courts in Zimbabwe have the power under the common law, at their discretion, to recognize the appointment of foreign curators and to allow a foreign order for the appointment of a curator bonis to operate upon local assets, whether movable or immovable in Zimbabwe. see MTD (Mangula) Ltd v Frost and Power, NO; Ex Parte Power, NO 1966 (2) SA 713 (R).

18. What steps can be taken to protect a patient’s property prior to the appointment of a curator?

A patient’s spouse, or failing the patient’s spouse, any child of the patient who is over the age of eighteen (18), or failing any child of the patient over the age of 18, any other of the patient’s close relatives, or failing any of the patient’s close relatives, the person who had charge or control of the residence i.e., house or place where the patient was living when he or she was removed to an institution, special institution or other place, is vested with authority in terms of the law, to take charge of all property whatsoever description belonging to the patient and to retain such property in his or her custody until the delivery of the property is demanded by a curator de bonis or by any other person lawfully entitled to receive it.

19. Can I grant someone a Lasting Powers of Attorney (LPA) in Zimbabwe?

No. The law in Zimbabwe unfortunately does not recognize Lasting Powers of Attorney (‘LPA’), also known as Enduring Powers of Attorney (‘EPA’). However, this does not mean that the law does not provide recourse. In terms of common law, a close relative to a patient, which includes (a) the patient’s grandparent, parent, brother, sister, child or grandchild, whether such relationship arises through blood or adoption; (b) the patient’s step-grandparent, step-parent, step-brother, step-sister, step-child or step-grandchild; or (c) where the patient is married, his spouse or his spouse’s grand-parent, parent, brother or sister can make a Chamber Application for the Appointment of a Curator in the High Court of Zimbabwe for the care and administration of a patient’s estate.