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When children make adult decisions

When it comes to South African law and legal standing (the ability to sue or be sued), the first question that should be asked is – how old are you?

In terms of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) and the Children’s Act 38 of 2005 (the Children’s Act) all persons under the age of 18 is defined as a child for purposes of legislation and referred to as a minor, whilst all those over the age of 18 is considered an adult and referred to as a major.

If you are over the age of 18, you are free to sue (and be sued) in your own name bar a few exceptions (such as if you are sequestrated). If you are under the age of 18 but over the age of 7, you can sue (and be sued) in your own name with the assistance of a parent or legal guardian. Under the age of 7 – your parent or legal guardian must act on your behalf.

As with all laws, there are always exceptions to the general rule.

A child under 18 can enter into a contract (without the assistance of a parental or guardian) if the contract is about the child acquiring rights but no obligations. If assisted by a parent or guardian, a child under 18 can enter into a contract where he/she acquires both rights and obligations. However, there are certain contracts into which a child under 18 cannot enter, even with the assistance of a parent or guardian (such as an employment contract if under the age of 15).

Children over the age of 16 are free to open their own bank account (Mutual Banks Act 124 of 1993). They enjoy all benefits and responsibilities of such an account similar to a major. At 14 a minor may act as a witness to a Will and at 16 the minor may execute his/her own Will (Wills Act 7 of 1953).

A minor may leave school on the last school day of the year in which the minor turns 15 or is in the ninth grade, whichever occurs first (South African Schools Act 84 of 1996).

Although only allowed to consume alcohol at the age of 18, minor children over the age of 16 may be employed in activities relating to the manufacturing or distribution of liquor if it is for training purposes (Liquor Act 59 of 2003).

At 16, minor children can apply for an Identity Document and also register as a voter, but their name will only appear on the voter’s roll once they turn 18.

A minor between the ages of 16 to 18 is considered mature enough to consent to sex but not with a major. A minor between the ages of 12 and 16 is considered capable but not mature enough to consent to sex. It is a criminal offence for minors in this age group to engage in sexual activities. A minor girl child may terminate a pregnancy at any age without parental consent.

Minor girls over the age of 12 and minor boys over the age of 14 may get married with parental consent, consent of the minor involved, and the minister of home affairs.

Our laws require the utmost protection of minor children but also recognise the need to allow children the freedom to move within our society. A draconian approach to children would result in a blatant disregard of their identities, rights and freedoms protected in the Constitution. Although children should remain children as long as possible, there will come a time when they must make adult decisions. And as adults, we need to be sure that we are aware of their rights and inform them thereof.

Attorneys Somerset West
Attorneys Somerset West


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