Introduction

South Africa is often hailed for its progressive Constitution, which includes a Bill of Rights as its second chapter, and for the development of an advanced body of human rights jurisprudence by its Constitutional Court (Republic of South Africa [RSA], 1996). It was among the earliest States to sign the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol, on 30 March 2007, followed by ratification.1 Despite this encouraging start, South Africa's dualist legal system is yet to incorporate the Convention into domestic law. By implication, the capacity of adults with intellectual disabilities (ID) to make decisions with legal consequences (i.e. their legal capacity) is still regulated by common law.

From the age of sixty and sixty-five years for women and men respectively, South Africans are protected by the Older Persons Act (No. 13 of 2006) (Department of Justice [DoJ], 2006), while the Mental Health Care Act (No. 17 of 2002) (Department of Health [DoH], 2002) assumes responsibility for the care and property administration of adults with severe and profound ID admitted into institutional care facilities as ‘state patients’. Yet laws that safeguard the interests of groups regarded as vulnerable, like children (the Children's Act (No. 38 of 2005) (DoJ, 2005) or older persons, lack safeguards for adults with ID. For South Africans who may be regarded as vulnerable, protection under the Children's Act expires on their eighteenth birthday; this leaves a major gap in the South African legislative and policy framework. Using life histories from two persons with intellectual disability (PwID), Mike and Cheryl, we will attempt to illustrate the implications of a lack of such statutory legislation.

Despite the protracted Esidimeni tragedy emerging in 2018, a lack of political will to safeguard, monitor, or track adults in communities with any level of ID who require support still remains (Capri et al., 2018a). This history of death, torture, and disappearance arose from a decision by the Gauteng Province Department of Health (the Department) to transfer mental healthcare users from the Life Esidimeni care facility, which provided services under a longstanding contract with the Department. Following contract termination in September 2015, 1,711 service users were transferred to hospitals, non-governmental organizations (NGOs), or familial homes between October 2015 and the end of June 2016.