Minor children

This article discusses minors, majority and the rights of minors

Minor children

 ‘A child’s best interests are of paramount importance in every matter concerning the child’.
(Section 28(2) of the Constitution).

Who is a minor?

A minor is a child under the age of 18. S/he lacks full legal capacity and cannot litigate or enter into a contract without the assistance of a guardian. The guardian is:

  • the father under common law; or
  • the mother as an equal guardian in terms of the Guardianship Act, or
  • the person (tutor) nominated by will and appointed by the Master.


Termination of minority

A minor becomes a major when he or she:

  • turns 18;
  • enters into a valid marriage. (If the marriage is dissolved either by death or divorce before the person reaches the age of 18, s/he retains full capacity to act);
  • is younger than 18 and applies to the High Court under The Age of Majority Act to be declared a major (emancipated) for all purposes.
  • is tacitly emancipated.



  • In terms of South African law, when you turn 18 you are free to contract and conduct your own affairs without assistance from your guardian.
  • A minor needs no assistance by a guardian to acquire assets through inheritance, donation, or an award for damages.
  • Children under the age of seven have no contractual capacity; a natural or legal guardian will have to contract on their behalf.
  • After children have turned seven, the general rule is that a contract will not be enforceable without their guardians’ consent. Exceptions to this rule are created by acts of parliament. The following are some instance where the consent of a guardian is not needed:

o        From the age of 16 a minor may become a depositor with a bank and control his funds in that account unassisted (s 87 of the Banks Act 94 of 1990).

o        A minor of 14 years of age or older that is competent to give evidence in a court of law is allowed to witness a legal document, for example, a will.

o        Under the Insurance Act, 1943, a minor of 18 years or older does not need a guardian’s consent to take out a personal life insurance policy and to pay premiums on it with earnings from a job or ‘any other money at [his or her] disposal’.

o        Under the Friendly Societies Act, 1956, a minor who has turned 16 may become a member of a friendly society, such as a medical aid society, if its rules permit, although he or she may not manage it or be its principal officer;

o        Under the Post Office Act, 1958, any deposits in the Post Office Savings Bank made by, or for the benefit of, a minor, as well as National Savings Certificates issued in the minor’s favour, may be repaid to him or her upon reaching the age of seven.


The following has been sourced from Reader’s Digest’s: You and your rights

Warning – When no consent is given

If a minor enters into a contract without his or her guardian’s consent, the other party is bound but the minor is not.

The minor can elect to go on with or repudiate the contract, but cannot be forced to perform any obligation apparently agreed to.

The guardian (and the minor, after reaching the age of majority) can recover any money or property made over – subject to the minor restoring what he or she received. Therefore, a person who sells a motorcycle to a minor without the guardian’s consent must return the money if the minor or the guardian hands back the motorcycle.

What if a minor deliberately misleads another party into believing he or she is over 18, or has the consent of the guardian? This question has not been unanimously decided by the courts. As a result, legal writers hold different views on the matter.

As a penalty, a court may well refuse to allow the minor to repudiate an illegal contract. Alternatively, the minor may be ordered to pay damages for fraud. However, it may be difficult for the other contracting party to prove that the minor is liable.

A person who contracts with a minor in the mistaken belief that the child is old enough to enter into contracts does not have a case.

Where the guardian gives consent

A guardian may give a minor a general consent to contracts falling within a stated sphere such as education at a university or carrying on a business. Alternatively, a guardian may consent only to a particular transaction, such as buying a motorcycle. If the minor buys the motorcycle without prior consent, the guardian can give the necessary consent retroactively by ratifying the contract of sale. The guardian may also contract on behalf of the minor. Although only the minor would be bound by such a contract, the guardian may not:

  • Authorise a ward to enter into a contract to transfer or mortgage land belonging to the ward;
  • Enter such a contract on behalf of the ward without the permission of a court;
  • Enter such a contract on behalf of the ward without the permission of the Master of the Supreme Court (if the value does not exceed R100000).

If a guardian, acting in bad faith or unreasonably, refuses to give consent to a contract that would be advantageous to the minor, the court can give its consent on the minor’s behalf.

Whenever a minor contracts with the consent of a guardian, or the guardian contracts on the minor’s behalf, the contract is binding and can be enforced against the minor with the limitation that the minor can have an inherently prejudicial transaction set aside by the court. This remedy has the effect of restoring the minor and the other party to the contract to their pre-contractual positions.

Setting aside an assisted contract

Even a contract entered into with the consent of a guardian or later ratified by the guardian can be set aside if it causes the minor serious loss. The transaction must have been inherently prejudicial to the minor, not simply through subsequent accident or mishap. For example, the sale of a defective motorcycle to a minor could be set aside, but not of a motorcycle later damaged in an accident.

Generally, the guardian must approach the court on the minor’s behalf. If the guardian is not the appropriate person because, for example, he or she bought a house for the ward at an excessive price, an official known as a curator ad litem may have to be appointed to represent the minor.

If the court sets aside a contract, each party must return what they received, as well as any enrichment derived from the other party’s performance. If full restoration cannot be made, for example, because of damage to goods, the shortfall must be made up by financial compensation.

On becoming a major, a former minor may ask the court to set aside a prejudicial contract. This must be done within three years of attaining majority. However, the former minor must not have waived the right to have the contract set aside after reaching the age of majority.

Liability for criminal offences

A child under the age of seven years is absolutely exempt from liability for a crime because at this age a child is incapable of distinguishing between right and wrong in the eyes of the law. There are no exceptions to this rule.

Between the ages of seven and 14 a child is, in general, held to be incapable of committing a crime; but exceptions can be made if suitable evidence is produced.

This evidence, which should include the nature of the crime and the circumstances under which it was committed, must show that the child knew that the act was wrong, but had acted in accordance with this knowledge.

In the case of Rex v Smith (1922), where a child of 10 years was accused of stealing a bicycle, the court took into consideration the child’s intelligence, his social background and his upbringing and decided that he was aware that what he had done was wrong. Accordingly, he was found guilty of theft.

If a child under the age of 14 commits a crime in the presence of an older person, the presumption that he or she lacks criminal capacity is normally difficult for the prosecution to rebut. As a a rule, it will be assumed that the child acted on the instructions or under the influence of the older person. The child will probably be found not guilty under the circumstances.

Upon reaching the age of 14, a child is regarded to have the same criminal capacity as that of an adult. However, the courts will take youth into account when deciding on punishment.

Generally, the courts are unwilling to stamp a child below the age of 18 as a criminal. Therefore, instead of imposing punishment, it may order the child to be placed under the supervision of a probation officer, sent to a reform school or committed to the care of a suitable person.

A person under 18 who is convicted of a crime (other than the murder by a woman of a new-born child), may, instead of being punished, be ordered by the court to be placed under the supervision of a probation officer or sent to a reform school.

At what age may be a child…

A minor who reaches the age of 15 and who is not required by law to attend any school may, with the assistance of his or her natural or legal guardian, enter into a contract of service as an employee or apprentice.

Although parents have no general right to a child’s earnings, they may use such earnings for the maintenance of the child.

If the parents use the child’s earnings without providing corresponding maintenance, they must refund the money to the child.

…watch entertainment and films?

Certain films have an age restriction for minors.

…possess a firearm?

A minor of 16 years or older may obtain a licence to possess a firearm. Anyone who has control over a minor under the age of 16 will be guilty of an offence if the child is found in possession of a firearm, unless it can be proved that there was no way that the minor could have been prevented from obtaining it.

…get married?

Boys over the age of 18 and girls over the age of 15 are allowed to marry with the consent of their parents. If they are under the permissible age, they may apply to the Minister of Home Affairs, who has the power to give permission. In such a case, however, parental consent is still needed.

…drink alcohol?

A minor who has reached the age of 18 may be supplied with liquor on licensed premises.

…handle financial transactions?

At the age of seven a child may draw on a Post Office savings account and redeem National Savings Certificates. A child over 16 years of age is entitled to be a depositor with a bank or other deposit-taking financial institution and has full power, without the consent of a guardian, to deal with the deposit as deemed fit, including ceding, pledging and borrowing against it, and executing all the necessary documents.

...donate blood?

A minor under the age of 14 may not give blood, except with written parental permission. Upon reaching the age of 14, the child no longer needs the permission of the parents to donate blood, provided he or she is competent to give evidence in a court of law.

…take out an insurance policy?

On reaching the age of 18 years, a minor may take out an insurance policy on his or her own life and exercise all rights in regard to it without the guardian’s consent – except for ceding, pledging or surrendering it before he or she has reached the age of 21.

…drive a vehicle?

A minor aged 18 who has passed the necessary tests, qualifies for a driver’s licence.

Civil wrongs

In the case of a delict (civil wrong), a child younger than seven years is held to be incapable of intentional acts of negligence and therefore cannot be liable to pay damages to someone whom he or she has injured or has caused financial loss.

In dealing with a child aged seven or older, the court will try to ascertain whether he or she is mature and intelligent enough to realise the consequences of the act, and able to control compulsive and irrational acts. A child found to be sufficiently mature will be held liable for any damage he or she may have caused.

A minor who defrauds someone into believing that he or she is of full age when entering into a contract may still be liable for any damage that failure to honour the contract may have caused the other party.

Court proceedings

A minor has no legal capacity in the eyes of the law and cannot therefore start or defend any legal proceedings. However, a minor can sue or be sued when assisted by a guardian; if there is no guardian, the court will appoint someone (a curator ad litem) to assist.

A child of any age can give evidence in court as long as the court is satisfied that he or she understands the meaning and importance of telling the truth. Evidence given by young children will be carefully scrutinised by the court, and is usually required to be corroborated in some way. A child who understands the nature of an oath will give sworn evidence. If not, the judicial officer will admonish the child to speak the truth.

If a child is too young to give evidence at all, what he or she told another person cannot be used as evidence.

Minors below the age of 18 will be protected from publicity and having their identities disclosed when they appear in criminal, civil or children’s courts, as parties or as witnesses.

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