Law of Persons
1
, Chapter 4 - Effect of age on status
Effect of age on status in private law
The influence of age is unique in that it has a continued effect on a
person’s status
o Other factors such as drunkenness influence a person’s status for
the duration of the relevant condition.
Infans (0 – 7 Minor (7 – 18 years) Major
years)
- Comes into No longer an infans minor At the age of 18
existence at Enter into certain contracts with the years all person’s
birth with consent of his or her parent guardian. attain majority
limited legal Rebuttable presumption in private law and all
capacity. that he or she is not accountable or limitations based
- Without criminally responsible. on age which
capacity to From the age of 10 years a child must previously
act consent to his or her own adoption. affected that
- No capacity From the age of 12 years a minor can person’s status
to litigate receive medical treatment without the fall away.
personally consent of a parent / guardian provided Other factors
- No criminal that the child is mature enough and has such as mental
responsibilit the mental ability to comprehend the disability and
y advantages, risks and implications of the drunkenness can
particular treatment. still have an
Age of puberty (12 for girls & 14 for boys) effect on a
– age they can with consent of parents and person’s status.
Minister of Home Affairs conclude a valid
marriage (Children’s Act)
From the age of 14 a minor can be a
witness to a will. (Wills Act)
From 15 for girls and 18 for boys no
longer require consent of the Minister of
Home Affairs to enter into marriage.
From 16 years minor may execute a will.
From1 6 minor may without assistance of
parents or guardian, become a member of
or depositor at a financial institution.
Classification of persons according to age
- A person should have capacity to act only if he or she is in possession of a
reasonable will and judgement.
- The person must be able to comprehend the nature, extent and
consequences of his or her acts before the law can confer capacity to act on
him or her.
o Needs to be a degree of legal certainty when allocating capacity.
- Ability to judge:
o Ability to appreciate properly the consequences of one’s conduct
2
, o Something for which a person needs a certain degree of maturity
and experience.
- The law grants full capacity to act only to those who are in possession of
both
o Intellectual ability
o Ability to judge
- According to s17 of the Children’s Act every person reaches the age of
majority at the age of 18 years.
- Full capacity can be granted to a person even though such a person has not
yet reached the age of 18 years.
Meyer v The Master [ mondig versus majority]
Court had to decide whether ‘mondigheid’ [capacity to act not reached age
of majority] and majority have the same meaning in South African law.
The applicant who was 14 years and 4 months old inherited a sum of money
from his mother.
o In terms of a stipulation in his mother’s will, the money had to be
deposited with the Master of the High Court until her children
reached ‘majority’.
o The father made his son go through a marriage ceremony with a
girl whom the applicant never saw again.
o The applicant claimed he had reached majority on the grounds of
his marriage.
The court dismissed the application and found that the applicant became
‘mondig’ by way of the marriage, that he was not a major and that, in terms
of the stipulations of the will, he could receive the money only when he
turned 21 – age of majority prior to July 2007.
Date of birth unknown
Births and Deaths Registration Act 51 of 1992 every living birth must be
registered.
Every birth certificate that is issued is prima facie evidence of the details set
out in it.
In the event of these details not been available
o Teeth can be examined.
o X-Rays to determine ossification of the bones.
If it is to a person’s advantage
o Also be important to establish the PRECISE moment when a person
has reached a certain age.
In South African law: majority is reached immediately after midnight on the
day on which such a person’s eighteenth birthday dawns.
Children’s rights
Come from an age where parental rights where central being a
paradigm shift.
To an age where children’s rights are more important.
3
, o UNCRC United Nations International Convention of the Rights
of the Child
o Inception of: the Constitution of the Republic of South Africa.
o The African Charter on the Rights and Welfare of the Child –
specifically deals with the protection of children.
S28 of the Constitution specifically protects the rights of the child –
entrenched. Is read in addition to the Chapter 2 of the Constitution – the Bill of
Rights.
S28 gives every child the right:
o To a name and a nationality from birth
o To family care, parental care, or appropriate alternate care when
removed from the family environment.
o To be protected from maltreatment, neglect, abuse, or
degradation.
S28(2) the very important provision that: the child’s best interest is of
paramount importance in every matter pertaining to the child.
o It is now crucial that the best interests standard be the decisive
factor in every matter concerning the child.
Previously this ‘best interests of the child standard’ was recognised by
our common law but was primarily limited to family law matters.
Minister of Welfare and Population Development v Fitzpatrick
Section 28(1) of the Constitution is not a numerous clauses (closed list) of
children.
But that the reach of section 28(2) extends beyond those provisions and
creates rights independent of those specified in section 28(1).
This approach has been followed by the courts to justify an expansive
interpretation of the High Court’s review jurisdiction of
o Protection orders – Domestic Violence Act 116 of 1998
o Maintenance matters
o Law of succession matters
o Decisions regarding a minor’s participation in religious activities in
a particular church.
Laerskool Middelburg v Departementshoof, Mpumalanga Departement van Onderwys.
Where several constitutional rights are vying for position and consequent
protection, section 28 of the Constitution of the Republic of South Africa
protects the fundamental rights of a child so that the rights of a child will
always take preference.
Constitutional court
Laid down some guidelines:
o A fine balance exists which requires that all the relevant
circumstances must be considered.
4
1
, Chapter 4 - Effect of age on status
Effect of age on status in private law
The influence of age is unique in that it has a continued effect on a
person’s status
o Other factors such as drunkenness influence a person’s status for
the duration of the relevant condition.
Infans (0 – 7 Minor (7 – 18 years) Major
years)
- Comes into No longer an infans minor At the age of 18
existence at Enter into certain contracts with the years all person’s
birth with consent of his or her parent guardian. attain majority
limited legal Rebuttable presumption in private law and all
capacity. that he or she is not accountable or limitations based
- Without criminally responsible. on age which
capacity to From the age of 10 years a child must previously
act consent to his or her own adoption. affected that
- No capacity From the age of 12 years a minor can person’s status
to litigate receive medical treatment without the fall away.
personally consent of a parent / guardian provided Other factors
- No criminal that the child is mature enough and has such as mental
responsibilit the mental ability to comprehend the disability and
y advantages, risks and implications of the drunkenness can
particular treatment. still have an
Age of puberty (12 for girls & 14 for boys) effect on a
– age they can with consent of parents and person’s status.
Minister of Home Affairs conclude a valid
marriage (Children’s Act)
From the age of 14 a minor can be a
witness to a will. (Wills Act)
From 15 for girls and 18 for boys no
longer require consent of the Minister of
Home Affairs to enter into marriage.
From 16 years minor may execute a will.
From1 6 minor may without assistance of
parents or guardian, become a member of
or depositor at a financial institution.
Classification of persons according to age
- A person should have capacity to act only if he or she is in possession of a
reasonable will and judgement.
- The person must be able to comprehend the nature, extent and
consequences of his or her acts before the law can confer capacity to act on
him or her.
o Needs to be a degree of legal certainty when allocating capacity.
- Ability to judge:
o Ability to appreciate properly the consequences of one’s conduct
2
, o Something for which a person needs a certain degree of maturity
and experience.
- The law grants full capacity to act only to those who are in possession of
both
o Intellectual ability
o Ability to judge
- According to s17 of the Children’s Act every person reaches the age of
majority at the age of 18 years.
- Full capacity can be granted to a person even though such a person has not
yet reached the age of 18 years.
Meyer v The Master [ mondig versus majority]
Court had to decide whether ‘mondigheid’ [capacity to act not reached age
of majority] and majority have the same meaning in South African law.
The applicant who was 14 years and 4 months old inherited a sum of money
from his mother.
o In terms of a stipulation in his mother’s will, the money had to be
deposited with the Master of the High Court until her children
reached ‘majority’.
o The father made his son go through a marriage ceremony with a
girl whom the applicant never saw again.
o The applicant claimed he had reached majority on the grounds of
his marriage.
The court dismissed the application and found that the applicant became
‘mondig’ by way of the marriage, that he was not a major and that, in terms
of the stipulations of the will, he could receive the money only when he
turned 21 – age of majority prior to July 2007.
Date of birth unknown
Births and Deaths Registration Act 51 of 1992 every living birth must be
registered.
Every birth certificate that is issued is prima facie evidence of the details set
out in it.
In the event of these details not been available
o Teeth can be examined.
o X-Rays to determine ossification of the bones.
If it is to a person’s advantage
o Also be important to establish the PRECISE moment when a person
has reached a certain age.
In South African law: majority is reached immediately after midnight on the
day on which such a person’s eighteenth birthday dawns.
Children’s rights
Come from an age where parental rights where central being a
paradigm shift.
To an age where children’s rights are more important.
3
, o UNCRC United Nations International Convention of the Rights
of the Child
o Inception of: the Constitution of the Republic of South Africa.
o The African Charter on the Rights and Welfare of the Child –
specifically deals with the protection of children.
S28 of the Constitution specifically protects the rights of the child –
entrenched. Is read in addition to the Chapter 2 of the Constitution – the Bill of
Rights.
S28 gives every child the right:
o To a name and a nationality from birth
o To family care, parental care, or appropriate alternate care when
removed from the family environment.
o To be protected from maltreatment, neglect, abuse, or
degradation.
S28(2) the very important provision that: the child’s best interest is of
paramount importance in every matter pertaining to the child.
o It is now crucial that the best interests standard be the decisive
factor in every matter concerning the child.
Previously this ‘best interests of the child standard’ was recognised by
our common law but was primarily limited to family law matters.
Minister of Welfare and Population Development v Fitzpatrick
Section 28(1) of the Constitution is not a numerous clauses (closed list) of
children.
But that the reach of section 28(2) extends beyond those provisions and
creates rights independent of those specified in section 28(1).
This approach has been followed by the courts to justify an expansive
interpretation of the High Court’s review jurisdiction of
o Protection orders – Domestic Violence Act 116 of 1998
o Maintenance matters
o Law of succession matters
o Decisions regarding a minor’s participation in religious activities in
a particular church.
Laerskool Middelburg v Departementshoof, Mpumalanga Departement van Onderwys.
Where several constitutional rights are vying for position and consequent
protection, section 28 of the Constitution of the Republic of South Africa
protects the fundamental rights of a child so that the rights of a child will
always take preference.
Constitutional court
Laid down some guidelines:
o A fine balance exists which requires that all the relevant
circumstances must be considered.
4
