Law of Persons
Minority
Faculty of Law
The Effect of Age on Status
• Infans (infants) – children from birth until the age of 7
• Minors – children under the age of 18
• As previously mentioned, all people have passive legal capacity – the
capacity to acquire legal rights and duties
• Capacity to perform juristic acts – only if a person is capable of
understanding the legal nature and legal consequences of his actions
• Irrebuttable presumption that infants can never understand the legal
nature and consequences of their action – no capacity to perform juristic
acts
• Any juristic acts performed by infants will be void and of no legal effect
• No presumption that minors can never understand the legal nature and
consequences of their actions
• H/e their capacity is limited
2
Contracts
• Infants – no capacity to perform juristic acts, therefor no capacity to enter
into contracts
• Any contracts entered into by an infant are void and of no legal effect
• As far as the law is concerned, there is no contract and both parties must
be restored to the position they were in prior to the contract being
entered into
• Infant can acquire rights and obligations if their guardian acts on their
behalf
• Lack of contractual capacity extends even to contracts where the infant
would acquire only rights and no obligations, the guardian would have to
act on their behalf
• Cannot incur contractual liability unless their guardians act on their behalf
but can incur liability on the basis of unjustified enrichment
3
Contracts Continued…
• Minors have limited contractual capacity to enter into contracts
• They can validly conclude contracts unassisted which confer rights but
reciprocal obligations on their part
• When it comes to contracts with minors there are 2 important things to
note :
• 1 – unassisted minors cannot incur binding contractual obligations
• 2 – assisted minors incur binding contractual obligations in the same way
as majors
• The only requirement when it comes to an assisted contract is that the
guardian must have given “informed consent”
• Doesn’t matter where, how or why the minor is entering into the contract
as long as the guardian has given informed consent the contract will be
considered valid and binding
4
Contracts Concluded…
• The consent may be express or tacit
• The guardian will not be deemed to have given consent if he doesn’t
understand what he is agreeing to
• What exactly qualifies as “informed consent”?
• Certain contracts guardians cannot conclude on behalf of a minor, eg an
ANC
• Guardian can also not enter into a contract on behalf of a minor if it will
only come into force once he attains majority
• If the contract will be to the advantage of the minor, the guardian cannot
refuse to give his consent
• Guardians can revoke their consent if the transaction set out in the
contract has not yet taken place
5
Contracts Continued…
• A contract entered into by an unassisted minor is called a limping
contract
• The contract has one strong leg and one weak leg
• The strong leg is the fact that the other party is bound by the contract, the
weak leg is that the minor has no contractual obligations
• The minor cannot be sued for performance
• H/e this can all change if/when this contract is ratified
• A minor who has contracted unassisted is free to withdraw from the
contract and the other party won’t be able to do anything about it
• The minor cannot force the other party to fulfil their obligations w/o
enforcing his own as well
• If the minor wishes to enforce performance, he must fulfil his own
corresponding obligations
6
• If the minor has already performed, he can recover his performance
using a condictio or the rei vindication
• His claim might be reduced if he derived any form of enrichment from the
contract – Baddeley v Clarke
• If the minor repudiates the contract after the major has already
performed, the major has no contractual remedies against the minor, but
may have a claim for unjustified enrichment
• With a claim for unjustified enrichment, the major can only sue for the
amount which they were in fact impoverished, and he can only sue for
the amount by which the minor remains enriched on the day he institutes
action
7
The Assisted Contract
• When minors conclude assisted contracts they are bound by them – not
the guardians who have assisted them
• If the minor doesn’t perform in the way they are supposed to the other
party must sue the minor, they cannot sue the guardian
• There are instances where the guardian can be held liable – h/e they are
not being held liable in terms of the minor’s contract, but in terms of their
own
• Where the guardian stands surety for the minor’s debts
• Where the minor acts as the guardian’s agent
• In some instances the guardian might be held liable on the basis of
unjustified enrichment or negotiorum gestio
8
Assisted Contract Continued…
• While assisted minors are bound by their contracts there is a way in
which they might be able to get out of their contracts
• Restitutio in integrum – places the parties in the position they were in
prior to the contract being concluded
• The contract is cancelled and parties are ordered to return anything they
have received as a result of the contract
• This remedy is available to all contracting parties if the contract was
concluded under duress or induced by fraud
• Requirements for the minor’s special restitutio in integrum:
• Minor was a minor at the time the contract was entered into
• Minor is bound by the contract – assisted contract
• The contract was inherently prejudicial to the minor at the time he
entered into the contract
9
• Ratification – conduct which rectifies an error in a specific juristic act so
that the juristic act retrospectively becomes fully valid and enforceable
• Doing something after the fact to retrospectively fix an error in a juristic
act
• This can happen in 2 way:
• The guardian can give informed consent after the conclusion of the
contract, the contract will then be deemed to have been valid from the
date on which it was entered into
• The minor can ratify the contract himself, upon attaining majority – this
can be done expressly or tacitly
• Former minors can also ratify their contracts through other kinds of
conduct (Stuttaford & Co v Oberholzer)
10
• A fraudulent minor induces someone to contract with them by using
fraudulent misrepresentation
• Fraudulent misrepresentation – lying
• Minor expressly tells the other party that they are older than they are –
major cannot claim to have been deceived by this lie if the minor is
obviously not as old as they pretend to be
• The minor doesn’t have to expressly tell the other that they are a major,
but can take steps to appear older
• Tacit misrepresentation – minor realizes that the other party thinks that
they are dealing with a minor but does nothing to correct this mistaken
belief
• Minors can also lie about being emancipated or having their guardian’s
consent
11
• It is not enough for the minor to have lied, it must have been the reason
why the other party entered into the contract
• Fraudulent minors do not incur contractual liability
• They can however incur delictual liability, if all the elements of the delict
have been satisfied
• In the case of fraud, fault must take the form of intention
• Delictual liability can only arise of the major party has suffered some form
of delictual damage
• The major must prove the causal link between the minor’s
misrepresentation and their damage
• Once this causal link is proven, the onus shifts to the minor to prove that
the other party was not misled by their misrepresentation
12
Acquiring and Alienating Property
• The capacity to receive or give up ownership of a thing does not depend
on whether or not the person has capacity to contract
• A “real agreement” is not a contract
• A valid real agreement has the following requirements:
– The thing concerned must be capable of being owned
– The person giving up ownership has the capacity to pass o/ship
– The person receiving ownership must have the capacity to receive o/ship
– The person giving up o/ship must have the intention to transfer o/ship
– The person acquiring o/ship must have the intention to receive o/ship
• Unassisted minors have the capacity to receive o/ship, h/e they do not
have the capacity to give up o/ship
• Infants cannot receive or give up o/ship in a thing
13
Getting Married
• Children under the legal age of puberty have no capacity to marry (12 for
girls and 14 for boys)
• Children over the age of puberty have the capacity to marry, provided
they have the necessary consent
• The marriages which may be entered into by children under the age of 18
are civil marriages ito the Marriages Act and customary marriages, they
may not conclude civil unions ito the Civil Unions Act
• Consent that is require is that of their guardian, h/e if the guardian is not
present they require the consent of the Commissioner of Child Welfare
• Minors may approach the court if the guardians withholds consent or if
the Commissioner refuses to consent
• Additionally, they require the consent of the Minister of Home Affairs if
they wish to conclude a civil marriage
14
Getting Married Continued…
• All children under the age of 18 require the Minister’s consent to
conclude a customary marriage
• If a minor fails to obtain the necessary consent for a civil marriages, the
marriage is voidable
• The court can annul the marriage upon application by the minor’s parents
• The court can also annul the marriage upon application by the minor
himself
• A civil marriage entered into w/o the consent of the Minister is “null and
void”
• S24 of the Matrimonial Property Act regulates the distribution of marital
property where the marriage was annulled for want of consent
• The Recognition of Customary Marriages Act provides that the Minister
may give consent to a minor’s customary marriage retrospectively
15
Consenting to Medical Treatment
• Somebody must give consent to medical treatments or medical
procedures performed on children under the age of 18 (s129 (1) of the
Children’s Act)
• If the child is over the age of 12 and psychologically competent to give
consent, then the child himself must give consent
• In the case of surgical operations the child must be assisted by a
guardian when giving consent
• Parents and guardians may not withhold consent for reasons only of
religious beliefs
• The superintendent of the hospital may give consent in emergency
situations
• S129 (7) - (9) Provides safeguards where the child or parent either
cannot give consent, assistance or unreasonably refuses to do so
16
Consenting to Medical Treatment Continued…
• The Minister can also give consent if the child unreasonably refuses to
give consent
• S5 of the Choice of Termination of Pregnancy Act provides that a
termination may take place only with the consent of the informed consent
of the pregnant woman, and that no consent other than that of the
pregnant woman herself is required
• The person performing the termination should advise a minor to consult
with their parents, guardians or family members before termination, but
they cannot deny the termination if the minor doesn’t consult with anyone
• A minor of any age may independently terminate a pregnancy
17
Other Forms of Capacity
• Minors over the age of 16 have the capacity to make a will w/o
assistance
• Minors over the age of 14 can be witnesses to a will
• Ito s89(1) of the Banks Act, minors over the age of 16 can have bank
accounts
• Ito s88 of the Mutual Banks Act minors older than 16 may be members of
a mutual bank
• Ito the Postal Services Act deposits made in the name of a minor may be
paid out to them provided that they are 7 and older
• Ito the Basic Conditions of Employment Act children under the age of 15
or under the minimum school-leaving age cannot enter into employment
contracts
18
Capacity to be Held Accountable for Wrongdoing
• Ito common law there is an irrebuttable presumption that infants are
incapable of forming the mental states of intention or negligence –
unaccountable
• Infants cannot be held criminally or delictually liable
• H/e they may be held accountable for delicts that do not require intention
or negligence
• The is a rebuttable presumption that children over the age of puberty are
doli et culpae incapax
• There is a rebuttable presumption that children over the age of puberty
are delictually accountable
• Children below the age of 10 cannot be held criminally liable
• There is a rebuttable presumption that children between the ages of 10
and 14 are criminally accountable
19
Capacity to Litigate
• Ito CL infants have absolutely no capacity to litigate
• GR – minors cannot be parties to civil claims unless they are assisted –
minor is the party to the suit and not the guardian
• Court can appoint a curator ad litem to represent the minor in certain
circumstances
• Court can also grant an older minor the authority to litigate unassisted
• The HC may itself assist the minor in its capacity as upper guardian of all
minor children
20
The Emancipated Minor
• An emancipated minor is still a minor, just with their parent’s consent to
do certain things
• The scope of a minor’s emancipation depends on the circumstances of
the case – what the guardian has consented to
• There are no formalities for the guardian giving consent
• H/e the guardian must actively consent to the emancipation – must apply
their mind to the matter
• Mindless neglect of a child does not amount to emancipation – Sesing v
Minister of Police
• Because emancipation is based on the guardian’s consent, it may be
revoked
21
• The onus of proving that a minor is emancipated rests on the party
alleging the minor is emancipated
• It is proved by looking at all the facts and circumstances of the minor’s
life
• Emancipated minors are still minors and cannot marry w/o consent, nor
can they alienate immovable property w/o consent
• There are 2 ways in which a minor attains majority (minority is
terminated)
– Turning 18 (s17 of the Children’s Act)
– Getting married
22