|The Children's Act was gazetted on 19 June 2006 with the date for its commencement yet to be announced by the President. It is therefore not yet in force. |
The Act, according to an article by Deborah Dees in the Shepstone & Wylie Attorneys September e-mail flyer, deals with a number of issues relating to the care, protection and maintenance of children to give effect to the rights of the child enshrined in the Constitution. The Act also subscribes to the principles of international conventions and protocols seeking to prevent abduction and trafficking of children.
Amid these laudable provisions is a short clause,. which rewrites the law on contractual capacity with regard to age. Clause 17 reads "A child, whether male or female, becomes a major upon reaching the age of 18."
The current age of majority is 21 years for both males and females. The general rule, says Dees, is that no person under that age may enter into any contract or perform a legal act without the assistance, on each occasion, of his or her parent or legal guardian. The reduction of the age of majority can be seen as the law catching up with reality,
children mature sooner.
Dees says it also brings the contractual age into line with the age at which a person is allowed to drink alcohol, drive and vote and purchasing property and qualifying for a homeloan. “Obviously the credit-worthiness of the applicant would still have to be considered but, if successful, the applicant can sign the bond without requiring the assistance of his/her parents.”
It also addresses the practical difficulties of obtaining parental assistance where "children" become independent of their parents before they turn 21 and may live or work in another city.
The change in the age of majority means that, from the age of 18, a person may enter into a contract without parental assistance and will be bound by it. For the other
contracting party this means greater certainty that their contract will be valid and enforceable.
For the 18 year-old, this means that, regardless of the sophistication of the individual, he/she is considered by the law to be sufficiently mature to be able to bind him/herself to perform in terms of that contract. This could have unforeseen onerous financial or other implications for the unwitting 18 year-old and the other contracting party can enforce performance of the contractual terms through the courts and/or claim damages for breach of contract.