LOPF 4

• Age and status


  Most significant factor affecting status
• Groups by age


  • Infants (birth - 6)
  • Minors (7 - 17)
• Passive legal capacity


  Merely to have legal rights and duties
• Active legal capacity


  Capacity to perform Juristic acts (acts intended to have legal consequences)
• Infants have an irrebuttable presumption that they can never understand the legal consequences of their acts, so any acts performed are void
• Minors


  No presumption, generally cannot worsen their legal position unless assisted by their guardian, but can improve it without assistance
• Infants' contracts


  Void ab initio, parties restored to original positions
• Infants can acquire rights and duties if performed by their guardian on their behalf


  The infant acquires the rights and duties, not the guardian
• Infants can incur liability on the basis of unjustified enrichment


  As this arises by operation of law, and is not based on whether the infant was able to understand the nature of their acts
• Minors' contracts


  Limited capacity, can conclude a contract without assistance if it confers rights only and does not impose obligations, cannot incur binding contractual obligations unless assisted by guardian
• Unjustified enrichment


  To restore economic benefits to the plaintiff, at whose expense they were obtained, and for the retention of which by the defendant there is no legal justification
• Restitutio in integrum


  Remedy for releasing assisted minors from their contractual obligations, places parties in the position they would have been had no contract been entered
• Two ways for minor's contract to become binding

  1. Guardian can give informed consent after minor has entered into the contract (retroactive operation, fully binding from date of signature)

  2. Minor can ratify once they attain majority (retrospective effect, express or by implication)
• Fraudulent minor


  Minor lies about age or permission, fraudulent misrepresentation, tacit misrepresentation, must have induced the contract
• Unassisted minors are not bound by their contracts and can just repudiate them
• Delictual liability of minors

  Minors can be liable in delict if all elements of the delict are met, even if they lack intention or negligence
• The Children's Act (No. 38 of 2005) deals directly with HIV testing, consent, disclosing status, and access to contraceptives for children
• Provisions on access to contraceptives in the Children's Act

  • No person may refuse to sell condoms to a child over 12 or provide them free of charge
  • Contraceptives other than condoms may be provided to a child 12+ without parental consent if proper medical advice is given and an examination is carried out
  • A child who obtains contraceptives or advice is entitled to confidentiality, subject to section 105
• Infants' delictual liability


  Irrebuttable presumption that they lack intention or negligence, so unaccountable, but can be liable for delicts that don't require those mental states
• Minors' delictual liability


  Rebuttable presumption of unaccountability under puberty (girls under 12, boys under 14), onus on plaintiff to disprove, after puberty rebuttable presumption of accountability
• Minors' capacity to litigate

  Infants have no capacity, guardians must litigate on their behalf, minors must be assisted by guardians who can represent them in court
• Emancipated minor


  Still a minor, cannot marry or alienate immovable property without guardian's consent, scope of emancipation depends on circumstances and guardian's consent
• WHAT DOES THE LAW SAY?
• Infants


  Children from birth until the age of seven
• Minors


  Children under the age of 18
• Very young children like Molly have almost no capacity to do anything in the eyes of the law. As a rule, their legal acts have no standing in law.
• Teenagers are in a different position, but even their capacity to act is limited.
• Capacities affected by age

  • Passive legal capacity
  • Capacity to perform juristic acts
  • Capacity to be held accountable for wrongdoing (crimes and delicts)
  • Capacity to litigate
• There is an irrebuttable presumption in our law that infants can never understand the legal nature and legal consequences of their acts. For this reason, infants have no capacity to perform juristic acts, and any acts which they purport to perform will be void and of no legal effect.
• Minors of seven years and older are treated differently from infants. There is no presumption that they can never understand the legal nature and consequences of their acts-certainly, older teenagers are often able to do so. However, the law still limits the capacities of minors to perform juristic acts to protect them against their immaturity of judgment.
• The general rule is that minors cannot worsen their legal position (by acquiring debts or giving up rights) unless they have the assistance and guidance of their guardian. However, they can usually improve their legal position (by acquiring rights or terminating obligations) without assistance.
• Guardian


  Almost always, the child's parents are its guardians
• Infants have no capacity to perform juristic acts of any kind. This means that infants have no capacity to conclude contracts. If an infant purports to conclude a contract the contract will be void and of no legal effect.
• Infants can acquire rights and duties in terms of contracts if their guardian concludes a contract on their behalf.
• Infants cannot incur any form of contractual liability unless their guardian contracts on their behalf. However, infants can incur liability on the basis of unjustified enrichment even when they act on their own behalf.
• Minors who are seven years and older have limited capacity to enter into contracts. They can validly conclude contracts without assistance if the contract confers rights and imposes no obligations (for example, contracts of donation or contracts which release them from debts).
• Unassisted minors


  Minors who enter into contracts without the assistance of their guardian
• Assisted minors


  Minors who enter into contracts with the assistance of their guardian
• Unassisted minors cannot incur binding contractual obligations.
• Assisted minors incur binding contractual obligations in the same way as majors.