Can a Child Be Sued? What South African Law Says About Children and Legal Liability

Helen Hayes once said, “Childhood is a short season.” Parents, the world over, will agree that childhood seems to fly by. One minute, your kids are toddlers, and the next, they have transformed into teenagers. Teenagers who want to make their own decisions without the assistance of their parents. But does this mean that your child can still be held responsible for their decisions (whether they be good or bad) in law?

The criteria to answer this question are twofold:

1. How old is your child?
2. What are the consequences of their decision?

How old is your child?

A child under the age of 7 has no capacity to act in law whatsoever. This type of child is referred to as an infant. They cannot acquire responsibilities or rights without assistance from their parents or legal guardians. They also cannot be held responsible for any negligent or criminal acts that they may commit.

A child between the ages of 7 and 18, however, has limited capacity to act. We’ll unpack this a little bit more in this article, so if you’re the parent or guardian of a teenager, keep reading.

When a child turns 18, they are considered to be an adult in law and are able to make the same decisions and acquire rights and responsibilities as their parents without any oversight or supervision whatsoever. This means your 18-year-old can enter into a cell phone contract, buy a car on finance, or start a business – without you being able to assist them and with no remedy available to them to get out of the agreement, because they are young.

But what happens when your little threenager grows up to become a teenager, and wants to go out by themselves, and make more decisions (some more responsible than others) for themselves than ever before? This short guide will help you navigate how you can manage your child’s decision-making (both good and bad) out there in the real world.

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What rights and responsibilities can children have in law?

In law, this is governed by what we call your “status”. And, whilst your teenager might have different ideas about what status means, in law, status allows us to:

• Enter into contracts
• Be sued,
• Be held liable for negligent and/or criminal acts.

Children between the ages of 7 and 18 in law do have a limited capacity to act.

The rule of thumb here is that minors must be assisted when contracting – by their parent or guardians. Before you breathe a sigh of relief, bear in mind that there are, of course, exceptions to the rule.

What are the exceptions?

Certain agreements allow a child full capacity to act without the assistance of their parents or guardians. These agreements occur when a child receives a benefit without a corresponding legal obligation. An example of this is when a minor receives a gift (in law, we call this a donation). An example of this is that your child is gifted a PlayStation console by their cousin. In this case, your child acquires a benefit (the PlayStation) but has no corresponding obligation, as their cousin is expecting nothing in return.

Other agreements, where the child gets both a benefit and an obligation, cannot be concluded by the child without them being assisted by a parent or guardian.

An example of this would be if your child wanted to sell their PlayStation to a friend at school for R1 000.00. In this case, both children acquire both a benefit and an obligation. Your child (the seller) acquires R1 000.00, but has a corresponding obligation to hand over the PlayStation. Your child’s friend (the buyer) acquires a PlayStation and has an obligation to hand over their R1 000.00. For this agreement to be valid in law, your child would require your consent, as would your child’s friend require the consent of their parent.

What about the consequences?

If you are wondering what consequences would come about if your child didn’t make good on their agreement to deliver the PlayStation, let’s take this a step further:

If your child, who agreed with their friend to sell their PlayStation console for R1 000.00, was paid, but then did not deliver the goods, the friend (assisted by a parent) could sue your child for either the money that they paid, or delivery of the PlayStation. This means that your child can also be held liable for the obligations that they must fulfil.

Lastly, considering that a child can be held responsible for their actions if they were negligent (we call this “delict” in law), let’s consider the following:

Your child goes to visit their friend’s house and, whilst playing with the PlayStation, happens to drop the PlayStation on the floor by mistake. The PlayStation is no longer usable as a result. In this example, the friend could sue your child for the loss of the PlayStation.

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Conclusion

If there are only two things to remember after reading this, it’s that if your child only acquires rights, but no obligations, they can enter into an agreement alone.

If, however, they enter into an agreement where there are both rights and obligations, they must have their parent’s or guardians’ consent or assistance for the agreement to be valid and enforceable in law.

 The realisation that a child older than seven can, potentially, enter into an agreement, be held liable and be sued may be a frightening prospect to say the least. As parents, it can be a bit of a shock to the system because many of these examples do away with the cloak of naivety and innocence that you hope your child still has.

Don’t feel like you’re alone, however. If you have a specific question concerning your own child, talk to one of the leading Family Law experts on our team at Witz Inc. You’ll receive advice which considers your personal needs and can trust that your matter will be handled sympathetically, expertly, and with the utmost integrity.