Legal Capacity – Do you know what what the law says about this?
DID YOU KNOW – LEGAL CAPACITY
In terms of the South African law, legal capacity is determined by looking at two components, which are Age and Status of the individual.
1. Age: the age component is determined by law, which would confer certain rights and obligations on individuals. Full legal capacity in South Africa is 18 years. A minor does not have full legal capacity and can only enter into a contract with the assistance of his or her legal guardian.
A minor can become a major and obtain full legal capacity when he or she:
1. Turns 18 years
2. Enters into a valid marriage
3. Is younger than 18 and applies to the High Court to be declared a major.
4. Is tacitly emancipated.
Note: if the minor has no full capacity, you must ensure that the legal guardian has
consented for the minor to enter into contractual agreements.
Should the consent not be granted by the Guardian the legal standing is:
1. If a minor enters into a contract without his or her guardian’s consent, the other party is
bound but the minor is not.
2. The minor can elect to go on with or repudiate the contract, but cannot be forced to perform
any obligation apparently agreed to.
3. The guardian can recover any money or property 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
4. 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.
Can a minor give evidence in the court of law?
A minor has no legal capacity in the eyes of the law and thus cannot start any legal proceedings. However, a minor can sue or be sued with the assistance of a guardian. If there is no guardian, the court will appoint someone to assist the minor (curator ad litem) A child of any age can give evidence in court, provided that the court is satisfied that the child understands the meaning and importance of telling the truth. Evidence given by children will be required to be corroborated in some way by the court. 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 years 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. 2. Status: The status of the individual always determines if one has legal capacity or not. It is understood that if an individual understands the nature of his/ her act, he/ she is deemed to have legal capacity. However, the principle excludes Minors and Mentally ill persons.
In Criminal Capacity:
A person is deemed to have criminal capacity if the person is able to understand the nature of his actions and has acted in accordance with such appreciation. Capacity is fundamental to all criminal liability and there are no exceptions. Although our law requires strict liability in the sense that fault is required in some form (Negligence or Intention), capacity excludes the requirement of fault.
The common-law position is that a minor:
1. Under seven (7) years of age is presumed to lack criminal capacity. Therefore, a child under the ages of seven is absolutely exempted from criminal liability because he is incapable of distinguishing between right and wrong in the eyes of law and there is no exemption to this rule.
2. Seven to fourteen years of age is presumed to lack criminal capacity. It is held that a child between seven and fourteen is incapable of committing a crime but exceptions can be made if suitable evidence is produced. The evidence must include the nature of the crime and the circumstances it was committed. It must further show that the child knew that the act was wrong but acted in accordance with this knowledge.
3. A child over fourteen (14) years enjoys the same criminal capacity as adults, without any presumption of a lack of capacity. However, the courts will take youth into account when deciding on punishment. The courts may order the child to be placed under the supervision of a probation officer, or send the child to a reform school or committee in the care of a suitable person.
The Child Justice Act 75 of 2008
The purposes of the Act is:
1. To provide for the minimum age of criminal capacity of children; and
2. To provide a mechanism for dealing with children who lack criminal capacity outside the criminal justice system.
In terms of section 7, dealing with the minimum age of criminal capacity,
1. A child who commits an offense while under the age of ten years does not have criminal capacity and cannot be prosecuted for that offense, but must be dealt with in terms of section 9, so there is an irrebuttable presumption that the child lacks capacity
2. A child who is ten years or older, but under the age of fourteen years, and commits an offense, is presumed to lack criminal capacity unless the State proves that he or she has criminal capacity in accordance with section 11, so there is a rebuttable presumption of lack of capacity.
Note: the common law pertaining to the criminal capacity of children under the age of fourteen years was thereby amended.
In terms of section 11, dealing with proof of criminal capacity, the State must prove, beyond reasonable doubt, that a child who is ten (10) years or older, but under the age of fourteen years, had the capacity
1. To appreciate the difference between right and wrong at the time of the commission of an alleged offense; and
2. To act in accordance with that appreciation
Section 77 to 79 of the Criminal Procedure provides two questions to consider in respect of mental incapacity:
1. Is the accused fit to stand trial? This is a preliminary issue
2. Did the accused have the requisite capacity when he committed the unlawful act?
The meaning or definition of “mental illness” or “mental defect” is “a pathological disturbance of the accused’s mental capacity, not a mere temporary mental confusion which is attributable to external stimuli such as alcohol, drugs or provocation. “An affliction or disturbance is pathological if it is the product of a disease.
Section 78(1) of the CPA provides that a person whose act or omission constitutes an offense, and who suffers at the time of a mental illness or defect which makes him incapable:
1. Of appreciating the wrongfulness of his act or omission; or
2. Of acting in accordance with that appreciation.
1. Criminal Procedure Act 51 of 1977
2. Child Justice Act 75 of 2008