The Three Bands
The Milestones
Three age bands set capacity.
The bands
- Infans (under 7) — NO capacity to act
- Minor (7 to under 18) — LIMITED capacity
- Major (18+) — FULL capacity
The statute
The Children's Act 38 of 2005 (s 17) sets majority at 18 (it replaced the old age of 21). Constitution s 28 makes the child's best interests paramount.
Key Rule
Infans (0–<7): no capacity. Minor (7–<18): limited. Major (≥18): full. Constitution s 28: best interests paramount.
Common Mistake
Citing the old age of majority (21). Since 1 July 2007 it is 18.
Under 7
Infans Crossing
No active capacity
An infans has no capacity to act at all — it cannot conclude even a beneficial transaction personally. The guardian acts entirely on the child's behalf.
What is retained
The infans keeps passive capacity — it can hold rights, own property and inherit (through the guardian). It cannot litigate and is not delictually or criminally accountable.
Key Rule
An infans has no active capacity. A contract is VOID (not voidable) — there is nothing to ratify. Passive capacity is retained.
Common Mistake
Saying an infans's contract is 'voidable' or 'limping'. It is VOID.
7 to 18
The Limping Bridge
The minor's unassisted contract 'limps'.
Assisted vs unassisted
With a guardian's consent/assistance, the minor is fully bound. Without it, the rule protects the minor: the minor may validly acquire rights but cannot bind itself to duties.
The limping contract
An unassisted contract imposing obligations is a limping contract (negotium claudicans) — unenforceable against the minor but binding on the other party. The protection runs one way.
Enrichment
If the minor received a benefit, it may be liable in enrichment — but only to the extent it is still enriched.
Key Rule
Assisted minor = bound. Unassisted = limping contract — binds only the major; the minor's enrichment liability is limited to remaining enrichment.
The fraudulent minor & estoppel
Even if a minor lies about being a major, the contract still does not bind the minor — the protective rule stands, and estoppel cannot be used to enforce a contract the minor was never bound to. The other party's remedy lies in delict: the minor commits a fraudulent misrepresentation and answers for the loss it causes (Louw v M J & H Trust) — provided the lie actually induced the other party to contract (Pleat v Van Staden).
Common Mistake
Thinking a minor who lied about their age is now bound to the contract by estoppel. They are not — the contract is still unenforceable against the minor; the claim is in delict, not contract.
Leading Cases
Edelstein v Edelstein1952 (3) SA 1 (A)Foundational on the minor's unassisted contract; rejected the 'benefit theory'; antenuptials cannot be ratified after the wedding.
Facts. A minor concluded contracts (including an antenuptial contract) without proper assistance, and the question of binding effect arose.
Legal question. Is a minor's unassisted contract binding, and can an antenuptial contract be ratified after the wedding?
Judgment. The court held the unassisted minor was not bound and rejected the benefit theory.
Significance. Foundational authority on the minor's unassisted contract, rejection of the benefit theory, and the enrichment measure. Also rules antenuptial contracts unratifiable after marriage.
Exam tip. Cite to reject the 'benefit theory' and for the antenuptial timing rule. Remember: enrichment = lesser of minor's remaining gain or major's remaining loss.
Pleat v Van Staden1921 OPD 91Fraudulent minor — the lie must actually have induced the contract.
Facts. A minor misrepresented their age/status to induce the other party to contract.
Legal question. When is a fraudulent minor bound by a contract induced by their lie?
Judgment. The court examined whether the misrepresentation in fact induced the contract.
Significance. Clarifies the inducement requirement for the fraudulent-minor scenario.
Exam tip. Test causation — did the lie actually induce the contract?
Louw v M J & H Trust1975 (4) SA 268 (T)Delictual liability of the fraudulent minor.
Facts. A minor fraudulently misrepresented their status, causing loss to the other party.
Legal question. Is a fraudulent minor liable in delict for the loss caused?
Judgment. Delictual liability of the fraudulent minor was recognised.
Significance. Confirms the delictual route against a fraudulent minor where contract fails, and that the Aquilian action requires dolus.
Exam tip. Contract fails, but the Aquilian action (delict) may succeed — keep the two separate. Must prove dolus.
Common Mistake
Calling the limping contract 'void'. It is not — the major is bound; the limp is on the minor's side only.
Consent & Cure
The Hall of Consent
Consent, assistance, ratification
Consent may be express, tacit or general (e.g. pocket money). Assistance = acting together; consent = permission before/at the act; ratification = approval after the act (by the guardian, or by the minor on reaching majority) — validating it retrospectively.
Restitutio in integrum
Where a bound minor's contract was inherently prejudicial, the court may set it aside by restitutio in integrum — restoring the status quo ante.
Key Rule
Consent (before/at) and ratification (after) both bind. Restitutio in integrum sets aside an inherently prejudicial contract.
Leading Cases
Wood v Davies1934 CPD 250Restitutio granted — the house was unsuitable for the minor.
Facts. A minor (assisted/bound) had entered a contract for a house that proved unsuitable for the minor's needs.
Legal question. Will restitutio in integrum be granted to a bound minor where the contract was prejudicial?
Judgment. Restitutio was granted — the house was unsuitable for the minor.
Significance. A successful example of restitutio in integrum for a prejudiced minor. Establishes that prejudice is judged at the time of contracting.
Exam tip. Use as the 'granted' example; contrast with Fouché (fraud) and Skead (later prejudice).
Fouché v Battenhausen1939 CPD 228Restitutio refused — fraud disqualifies the remedy.
Facts. A minor sought restitutio but had been fraudulent in concluding the contract.
Legal question. Is restitutio in integrum available to a minor who acted fraudulently?
Judgment. Restitutio was refused because of the minor's fraud.
Significance. Shows the equitable limits of restitutio in integrum; fraud bars the remedy.
Exam tip. Fraud bars restitutio — pair with Wood (granted) and Skead (timing).
Skead v Colonial Banking1924 TPD 497Restitutio refused — prejudice arose only after the contract.
Facts. A minor sought to set aside a contract, but the prejudice complained of arose only after the contract was concluded.
Legal question. Can restitutio be granted where prejudice arose only after the contract?
Judgment. Restitutio was refused — the prejudice arose only afterwards.
Significance. Fixes the timing of the prejudice enquiry for restitutio in integrum.
Exam tip. The prejudice must exist at conclusion, not merely emerge later.
Stuttaford & Co v Oberholzer1921 CPD 855Ratification by post-majority conduct.
Facts. A person who had contracted as a minor continued to perform/act on the contract after reaching majority.
Legal question. Can a contract concluded during minority be ratified by conduct after majority?
Judgment. The post-majority conduct amounted to ratification.
Significance. Illustrates ratification by conduct on reaching majority.
Exam tip. Watch for conduct after the 18th birthday that affirms the deal.
Independence
The Emancipation Path
Tacit emancipation
A guardian may give a minor such economic independence that it gains wider contractual capacity within that sphere. Factors: Living apart · Independent income · Business/trade · Acquiescence of the guardian. The onus is on the party alleging it (Dickens v Daley).
The key element
Economic independence alone is not enough — the decisive element is the guardian's active consent. Mindless neglect is not emancipation (Sesing).
Statutory capacities
- Bank account from 16 (Banks Act s 87(1))
- Make a will from 16 (Wills Act 7 of 1953)
- Consent to medical treatment from 12 with maturity (Children's Act s 129)
- Consent to termination at any age (CTOP Act)
Marriage of a minor
Below puberty a marriage is void. Over puberty a minor may marry only with the guardian's consent (plus the Minister's written consent for a girl under 15 / boy under 18, s 26 Marriage Act 25 of 1961). Without the required consent the marriage is voidable. A valid marriage confers majority — retained even if it later ends. Caveat: the sex-differentiated ages in s 26 are constitutionally suspect under s 9 and are a live reform target — the proposed consolidated Marriage Bill would set a uniform minimum age of 18. State the statute, but flag the equality problem.
Wills & medical consent
Wills: testamentary capacity from 16, unassisted (Wills Act 7 of 1953). Medical (Children's Act s 129): treatment from 12 with sufficient maturity; surgery from 12 with a parent's assistance; HIV testing and contraceptives from 12. Termination — a pregnant female of any age may consent herself (CTOP Act 92 of 1996).
Key Rule
Tacit emancipation expands capacity within its scope; the key is the guardian's active consent. Statute grants specific capacities (banking 16, wills 16, medical 12, TOP any age).
Leading Cases
Dickens v Daley1956 (2) SA 11 (N)Emancipation factors — job, financial independence, duration, living independently; onus on the alleger.
Facts. A minor with a job and independent living arrangements was alleged to be emancipated.
Legal question. What factors establish tacit emancipation, and who bears the onus?
Judgment. The court weighed the emancipation factors on the evidence.
Significance. The leading factors-and-onus authority for tacit emancipation.
Exam tip. Run the L·I·B·A factors and place the onus on the alleger.
Sesing v Minister of Police1978 (4) SA 742 (W)Mindless neglect is not emancipation — active consent is required.
Facts. A minor lived with little parental control; the question was whether this amounted to emancipation.
Legal question. Does a guardian's neglect, without active consent, amount to tacit emancipation?
Judgment. Emancipation was not established on mere neglect.
Significance. Pins the key element of emancipation on the guardian's active consent.
Exam tip. Look for active consent, not just absence of supervision.
Delict · Crime · Marriage
The Accountability Gate
Delict
Under 7 — irrebuttably doli/culpae incapax. 7 to puberty — rebuttable incapacity, plaintiff bears the onus. Puberty to 18 — rebuttable, the child bears the onus. Jones NO v Santam nudges toward a subjective, case-by-case assessment.
Crime
Under 12 — irrebuttable doli incapax. 12 to <14 — rebuttably presumed to lack capacity; the State must prove capacity beyond reasonable doubt. 14+ — capacity is presumed, with no reverse onus: the State always bears the burden of proof. (Child Justice Act 75 of 2008; floor raised from 10 to 12 by the Child Justice Amendment Act 28 of 2019, in operation 19 August 2022.)
End of minority
Minority ends at 18, or on a valid pre-18 marriage — and that majority is retained even if the marriage later ends by death or divorce.
Holding office & litigation
Minors are generally disqualified from offices reserved for majors — director, trustee, executor, curator. A minor litigates only with the guardian's assistance (or the guardian acts for them); where there is no guardian, or a conflict of interest, the court appoints a curator ad litem. An infans (under 7) can never litigate personally — it must always be represented.
Key Rule
Delict floor 7 (rebuttable). Crime floor 12 (Child Justice Act, since 19 August 2022). Majority at 18 or valid marriage — retained even on divorce.
Leading Cases
Jones NO v Santam Bpk1965 (2) SA 542 (A)Modern subjective approach to a child's delictual accountability.
Facts. A child caused harm and the question was the standard for the child's delictual accountability.
Legal question. How is a child's delictual accountability assessed?
Judgment. The court favoured a subjective assessment of the particular child.
Significance. The leading authority on children's delictual accountability. Establishes both the subjective test for capacity and the reasonable-adult standard once capacity is found.
Exam tip. Assess the actual child's maturity, not just the age band. If culpae capax: use the reasonable-adult standard.
Common Mistake
Thinking divorce 'restores' minority. It does not — majority gained by marriage survives.