The Children's Act lowers the age of majority to 18 years. This did not happen overnight. The age of majority has for some time been a contentions issue. The former South African Law Commission lodged an investigation into the desirability of lowering the age in 1985, but in the end recommended that it should remain at 21 years.
The Children’s Act lowers the age of majority to 18 years.
This did not happen overnight. The age of majority has for some time been a contentions issue. The former South African Law Commission lodged an investigation into the desirability of lowering the age in 1985, but in the end recommended that it should remain at 21 years.
Since then the matter has not been settled and the dichotomy in our law even seemed to get worse.
In contrast, international law is clear on the question when childhood comes to an end.
Article one of the United Nations Convention on the Rights of the Child states that ‘child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”.
It states that majority is therefore attained when a child reaches the age of 18 years or even earlier if the law applicable to the child specifies an earlier age for the attainment of majority.
Similarly, the African Charter on the Rights and Welfare of the Child recognises only one age as the age of majority, 18 years. Article two defines a child as ‘every human being below the age of 18 years”. The South African Constitution followed international law guidelines in this regard by stating in section 28(3) that ‘child” means a person under the age of 18 years. Various statutes also defined children—minors—as people under the age of 18 years.
In practice the position prior to the passing of the Children’s Act was that a child was a person under the age of 18 years.
Once a person turns 18 he or she was able to acquire his or her own place to live, vote in an election and lost the special protection afforded to children by section 28 of the Constitution. On the other hand, with the Age of Majority Act 57 of 1972 still intact, young adolescents above the age of 18 but below the age of 21 years still required their parent’s or guardian’s assistance when entering into a contract.
The dichotomy meant that a 19-year-old was old enough to decide where to stay and could be locked up in a police cell with adults, but needed a parent’s assistance to become a member of the local gymnasium or sports club.
Lowering the age of majority to 18 deprives young people between 18 and 21 of the protective and supportive measures of our common law. For instance, it is no longer the case that an agreement entered into by the child without parental assistance or consent is not enforceable against the child. The child no longer has a special escape that was available to minors when entering into a contract that is to their detriment at the moment when the contract is concluded.
The implication is also that young adolescents above the age of 18 years have sufficient ability to judge to choose their own life partners without parental consent. Logic requires that if 18 years is old enough to be an adult in terms of the Constitution, which is the supreme law, then surely 18 is old enough in all the areas of private law as well.
Section 17 of the Children’s Act, which deals with the age of majority, came into effect on July 1 this year.
Professor Trynie Davel is director of the centre for child law, University of Pretoria