May 20, 2021

The following questions will provide clarity on some of the legal terms you will encounter throughout this WiseUp Newsletter.

Question: When will a child's opinion be taken into account?

Answer: >    The Constitution, read with the Children's Act 38 of 2005, clearly provides that the best interests of a child is of paramount importance in all matters that concern the care, protection and well-being of a child.

>     A child's opinion does matter and section 10 of the Children's Act provides that due consideration must be given to the views and wishes of a child and that a child has a right to participate in matters concerning him/her. However, this will depend on the child's age, maturity and stage of development.

>     For example, a child's views and wishes must be considered before a person holding parental responsibilities and rights, such as a parent, may take a major decision involving the child. 

>     Major decisions involving a child include the following:

-      The child's marriage, adoption, departure and removal from South Africa.

-      Decisions that would affect contact between the child and a co-holder of parental responsibilities and rights.

-      The assignment of guardianship and care in respect of the child to another person in the event of the death of a parent.

-      Any other decision that will likely have a significant impact on the child's living conditions, education, health and so on.

>     These provisions of the law provide a child with a voice and for his/her opinions to be taken into account.

Question: What decisions can a child make without his/her parents' consent?

Answer: > The Constitution and the Children's Act define a “child” as a person under the age of 18 years. Generally, a child does not have the legal capacity to act in his/her own capacity and requires the assistance of his/her parents or legal guardians.

> There are exceptions to the general rule and below is a list of some of the things that a child can consent to on his/her own:

-      Apply for an identity document (16 years and older).

-      Open a bank account (16 years and older).

-      Draft their own Will (16 years and older).

-      Leave school (age 15 or ninth grade).

-      Consent to his/her own medical treatment (12 years and older).

-      Get an abortion/terminate a pregnancy (any age).

>     It should be reminded that although a child can act without assistance in some instances, s/he must still have the necessary maturity and mental capacity to understand the consequences of his/her actions.

Question: Who is responsible for damages and deaths caused during protest action?

Answer: > Section 17 of the Constitution allows everyone a right to peaceful and unarmed protests. Unfortunately, not all protests are conducted in a peaceful manner and it may lead to bystanders suffering what is known as “riot damages”.

> Riot damages refer to any loss suffered due to physical damages caused to property (for example, where a vehicle is thrown with rocks) or due to the injury or death of someone as a result of the protest.

> Section 11(1) of the Regulation of Gatherings Act 205 of 1993 (“Act”) provides that any person participating in the protest or organisation responsible for the protest might be held liable for any “riot damages” caused during a protest.

> In terms of section 11(2)(b) of the Act, no liability exists when it can be proved that the conduct leading to the damages did not fall within the scope of the objectives of the protest and that it was not reasonably foreseeable.

> The circumstances of each matter may have an impact on the liability for damages, however, it is important to note that someone who participates in a protest that is not peaceful, may be held liable for damages through participating in the protest.

>     In the event where a death occurred as a result of police action, a complaint can be lodged at the Independent Police Investigative Directorate (“IPID”).

Did you know… There are instances where children can act without parental assistance.

How can LegalWise assist you? Should you require an explanation of your rights on these topics, please contact your nearest Branch.