PRL5902
ASSIGNMENT 3
DUE DATE: 15 OCTOBER 2026
,PRL5902 ASSESSMENT 3 2026
DUE 15 OCTOBER 2026
QUESTION 1
(a) Can the children be held criminally liable? Discuss the criminal capacity of each
of the four children in a paragraph and refer to the relevant authority in your
answer.
(a) Criminal capacity of the four children
Under the Child Justice Act 75 of 2008 (as amended by the Child Justice Amendment Act
28 of 2019, effective 19 August 2022), criminal capacity is governed by section 7. A child
under the age of 12 years has no criminal capacity and cannot be prosecuted; such a
child must be dealt with outside the criminal justice system in terms of section 9 (referral
to a probation officer and possible children’s court intervention). A child who is 12 years or
older but under 14 years is presumed to lack criminal capacity unless the State proves
beyond reasonable doubt that the child had the capacity to appreciate the difference
between right and wrong and to act in accordance with that appreciation at the time of the
offence (s 7(2) read with s 11). A child of 14 years or older is presumed to have full
criminal capacity.
Andy (6 years old) has no criminal capacity. He cannot be prosecuted for trespassing,
theft or malicious damage to property. Any intervention must occur through the
children’s court or social services under section 9 of the Child Justice Act.
Jason and Kevin (12-year-old twins) fall within the 12–under-14 category. They are
presumed doli incapax. The State would have to prove beyond reasonable doubt that
each twin appreciated the wrongfulness of entering the neighbour’s property, skinny-
, dipping, and destroying vegetation and fruit trees, and that they could act in
accordance with that appreciation. Given their age and the mischievous, group nature
of the conduct, rebutting the presumption may be difficult, but it remains a factual
enquiry for the child justice court.
Freddy (14 years old) is presumed to have full criminal capacity. He can be held
criminally liable for the common-law offences of trespass, theft and malicious injury to
property, subject to the ordinary principles of criminal liability and the diversion and
sentencing provisions of the Child Justice Act that favour children.
These age thresholds replace the common-law rules and must be applied strictly.
(b) Delictual liability
Delictual accountability (culpae capacitas) is still governed by the common law and differs
from criminal capacity. An infans (child under seven) is irrebuttably culpae incapax and
cannot be held delictually liable on the basis of fault. A child between seven and fourteen
years is rebuttably presumed culpae incapax; the presumption may be rebutted by
evidence that the particular child had the mental capacity to distinguish right from wrong
and to act accordingly in the specific circumstances. A child of fourteen or older is
rebuttably presumed culpae capax.
Andy (6) is irrebuttably culpae incapax and cannot be held delictually liable.
Jason and Kevin (12) are rebuttably presumed culpae incapax. Mr Bean would have to
prove that each twin had the necessary insight and self-control at the time of the
damage.
Freddy (14) is presumed culpae capax. Liability would turn on whether his conduct was
negligent according to the objective standard of the reasonable person (once capacity
is established).
ASSIGNMENT 3
DUE DATE: 15 OCTOBER 2026
,PRL5902 ASSESSMENT 3 2026
DUE 15 OCTOBER 2026
QUESTION 1
(a) Can the children be held criminally liable? Discuss the criminal capacity of each
of the four children in a paragraph and refer to the relevant authority in your
answer.
(a) Criminal capacity of the four children
Under the Child Justice Act 75 of 2008 (as amended by the Child Justice Amendment Act
28 of 2019, effective 19 August 2022), criminal capacity is governed by section 7. A child
under the age of 12 years has no criminal capacity and cannot be prosecuted; such a
child must be dealt with outside the criminal justice system in terms of section 9 (referral
to a probation officer and possible children’s court intervention). A child who is 12 years or
older but under 14 years is presumed to lack criminal capacity unless the State proves
beyond reasonable doubt that the child had the capacity to appreciate the difference
between right and wrong and to act in accordance with that appreciation at the time of the
offence (s 7(2) read with s 11). A child of 14 years or older is presumed to have full
criminal capacity.
Andy (6 years old) has no criminal capacity. He cannot be prosecuted for trespassing,
theft or malicious damage to property. Any intervention must occur through the
children’s court or social services under section 9 of the Child Justice Act.
Jason and Kevin (12-year-old twins) fall within the 12–under-14 category. They are
presumed doli incapax. The State would have to prove beyond reasonable doubt that
each twin appreciated the wrongfulness of entering the neighbour’s property, skinny-
, dipping, and destroying vegetation and fruit trees, and that they could act in
accordance with that appreciation. Given their age and the mischievous, group nature
of the conduct, rebutting the presumption may be difficult, but it remains a factual
enquiry for the child justice court.
Freddy (14 years old) is presumed to have full criminal capacity. He can be held
criminally liable for the common-law offences of trespass, theft and malicious injury to
property, subject to the ordinary principles of criminal liability and the diversion and
sentencing provisions of the Child Justice Act that favour children.
These age thresholds replace the common-law rules and must be applied strictly.
(b) Delictual liability
Delictual accountability (culpae capacitas) is still governed by the common law and differs
from criminal capacity. An infans (child under seven) is irrebuttably culpae incapax and
cannot be held delictually liable on the basis of fault. A child between seven and fourteen
years is rebuttably presumed culpae incapax; the presumption may be rebutted by
evidence that the particular child had the mental capacity to distinguish right from wrong
and to act accordingly in the specific circumstances. A child of fourteen or older is
rebuttably presumed culpae capax.
Andy (6) is irrebuttably culpae incapax and cannot be held delictually liable.
Jason and Kevin (12) are rebuttably presumed culpae incapax. Mr Bean would have to
prove that each twin had the necessary insight and self-control at the time of the
damage.
Freddy (14) is presumed culpae capax. Liability would turn on whether his conduct was
negligent according to the objective standard of the reasonable person (once capacity
is established).
