Transforming Age-Related Capacity For Fault in Delict

Source:
Journals Collection, Juta's/South African Law Journal, The (2000 to date)/The South African Law Journal/2021 : Volume 138/Part 2 : 219 476/Articles/Transforming
agerelated capacity for fault in delict
URL:
http://jutastat.juta.co.za/nxt/gateway.dll/jelj/salj/1/17/33/35/40?f=templates$fn=default.htm
Transforming agerelated capacity for fault in delict *
2021 SALJ 367
Emile Zitzke†
Senior Lecturer, University of the Witwatersrand
https://doi.org/10.47348/SALJ/v138/i2a5
Abstract
For a wrongdoer to have 'capacity for fault' in the South African law of delict, it is widely accepted that the wrongdoer must possess the
ability to distinguish between right and wrong (cognition) and the ability to act in accordance with that appreciation (conation). One factor
that affects a person's capacity for fault is youthfulness. There are two schools of thought on agerelated capacity for fault in the South
African law of delict. On the one hand, Van der Walt & Midgley are of the view that the common law stipulates the rules regulating this issue.
In terms of this paradigm, the minimum age for capacity for fault is seven years. On the other hand, Neethling & Potgieter were, until very
recently, of the view that the Child Justice Act should apply to the determination of a child's capacity for fault. At the time of Neethling &
Potgieter's earlier writing, the minimum age for capacity for fault under the Act was ten years. Since June 2020, this age has been raised to
twelve. In this article, the tension between these two schools of thought is analysed, and an attempt is made to resolve the tension through a
proposal for a transformative, constitutional development of the common law of delict.
Delict – capacity for fault – age – constitutional development of the common law
I The tension
It is widely accepted that fault is one of the general elements for delictual liability in terms of the South African common law. 1 It is also widely
accepted that the enquiry into fault comprises both a 'prerequisite' and 'substantive' dimension.
Substantively, fault is traditionally said to comprise either 'intention' or 'negligence'. 2 Intention colloquially involves the situation where an
alleged wrongdoer acted on purpose. For purposes of the law of delict, intention
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seems to mean the direction of the will of the wrongdoer towards a harmful result while being conscious of the wrongfulness of that conduct. 3
Negligence colloquially involves a person acting carelessly. Classically, the legal test for negligence in South African law involves weighing up the
wrongdoer's conduct against that of a reasonable person, objectively tested, in terms of reasonable foreseeability and reasonable preventability.
The classical test was laid down in Kruger v Coetzee as follows:
'For the purposes of liability culpa arises if –
(a) a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss;
and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.
This has been constantly stated by this Court for some 50 years.' 4
However, before embarking on the substantive dimension of the fault enquiry, we must deal with a preliminary issue. The prerequisite for fault
questions whether the alleged wrongdoer was doli et culpae capax at the time of the delict. In other words, the question is whether the alleged
wrongdoer could be said to be 'accountable' 5 or, probably more accurately, whether the alleged wrongdoer had 'capacity for fault'. If an alleged
wrongdoer lacks capacity for fault, the question of negligence or intent does not arise at all. South African law tests capacity for fault with
reference to whether the alleged wrongdoer had cognition (that is, the ability to distinguish between right and wrong) and conation (that is, the
ability to act in accordance with that appreciation). 6 Clearly, these factors are highly subjective. Whether an alleged wrongdoer had cognition
and conation can notionally be influenced by various factors. Case law in delict and criminal law shows that capacity can potentially be
influenced by age, 7 mental health, 8 and intoxication. 9 This article will focus on agerelated capacity for fault in the law of delict.
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For many years, delict commentators and courts were of one mind that agerelated capacity in delict would be regulated by the rules found
in the common law. 1 0 Some degree of uncertainty was introduced with the promulgation of the Child Justice Act, 1 1 which alters, among other
things, certain aspects of the common law on agerelated capacity. However, as I will show below, the Child Justice Act is typically thought of
as being legislation that regulates the criminal procedure applied to youths, without typically raising issues of civil law. Consequently, two
schools of thought have emerged on the topic of agerelated capacity in delict in the wake of the Child Justice Act.
On the one hand, authors such as Van der Walt & Midgley have indicated that the common law should continue to be our guiding light in this
part of the law of delict. 1 2 They do not provide any specific reason for following this line of thinking, but it can reasonably be inferred that they
are following the beaten track of the common law for reasons of historical consistency of principle. As will be shown in more detail below, the
commonlaw paradigm sets the upper cutoff age for an irrebuttable presumption of incapacity at seven years. 1 3
On the other hand, Neethling & Potgieter, in the seventh edition of their influential textbook on delict, wrote the following:
'The Child Justice Act 75 of 2008 changed the common law position with regard to the accountability of children. Our law now distinguishes
between three age groups, namely 0–9, 10–13 and 14–18 years. A child who has not completed his ninth year (an infans) is always regarded by
the law as being culpae incapax (lacking capacity). The actual mental ability of the child is irrelevant and there is an irrebuttable presumption that he
is not accountable.' 1 4
Neethling & Potgieter did not say why the statutory route should be taken instead of the commonlaw route. I am mindful of the fact that,
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since the publication of the seventh edition of their book, this view has been recanted by Neethling & Potgieter in such a way that the
commonlaw position Van der Walt & Midgley support has been resuscitated. 1 5 Be that as it may, their earlier position conveyed in the seventh
edition of their book does raise an interesting question about the commonlaw versus the statutory paradigms for capacity for fault. Thus, for
purposes of this discussion, I will reply to Neethling & Potgieter's views as conveyed in the seventh edition of their authoritative textbook.
As is evident from the quote above, the Child Justice Act essentially raised the upper cutoff age for an irrebuttable presumption of
incapacity from seven to ten years. This description of the provisions of the Child Justice Act was correctly captured at the time of writing the
seventh edition of their book in 2015. However, in June 2020, the President signed the Child Justice Amendment Act 1 6 into law, to take effect
upon a date to be proclaimed, which further increases the upper cutoff age for an irrebuttable presumption of incapacity to twelve years.
What is most important for purposes of this discussion is not necessarily the Child Justice Act's amendment. Rather, it is the foundational
divergence between the commonlaw and statutory paradigms on agerelated capacity for fault.
The argument that I intend to develop below is that Van der Walt & Midgley are technically correct if they say that the common law ought to
apply for reasons of consistency in principle, but this position is normatively undesirable. Simultaneously, my argument will be that Neethling &
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Potgieter were technically wrong with their understanding that the Child Justice Act applies to delictual disputes, but they were normatively on
the right track. Navigating a way out of the technical and moral labyrinth created by the tensions between the two paradigms on agerelated
upon a date to be proclaimed, which further increases the upper cutoff age for an irrebuttable presumption of incapacity to twelve years.
What is most important for purposes of this discussion is not necessarily the Child Justice Act's amendment. Rather, it is the foundational
divergence between the commonlaw and statutory paradigms on agerelated capacity for fault.
The argument that I intend to develop below is that Van der Walt & Midgley are technically correct if they say that the common law ought to
apply for reasons of consistency in principle, but this position is normatively undesirable. Simultaneously, my argument will be that Neethling &
Potgieter were technically wrong with their understanding that the Child Justice Act applies to delictual disputes, but they were normatively on
the right track. Navigating a way out of the technical and moral labyrinth created by the tensions between the two paradigms on agerelated
capacity for fault in the law of delict is the business of this article. 1 7
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To understand why I say that both paradigms on this issue perhaps need reimagining, we must explore three issues. First, it must be
determined what the common law of delict says regarding agerelated capacity in the South African law of delict. Secondly, it must be
determined whether the Child Justice Act should apply to delictual disputes involving children, and what the Act says about agerelated
capacity. Thirdly and finally, we must grapple with the question as to what a transformative constitutional approach to this issue would require
in terms of both reasoning and outcome.
II The commonlaw paradigm

(a) The common factual construction
The case law that we have on the common law of agerelated capacity usually involves a variation on the following facts. 1 8 We are confronted
with a careless driver driving down a road. A careless child is playing near or in the road when they should not be doing so. The driver collides
with the child and the child suffers harm. In these cases, the facts indicate that both the driver and the child have potentially acted
negligently, in the sense defined in the introduction to this article. The driver usually does not deny their negligence and liability, but wishes to
reduce the amount of damages payable to the child by arguing that the child was contributorily negligent in accordance with the Apportionment
of Damages Act. 1 9
In terms of the rules of apportionment, if we say, for example, that the driver was 80 per cent negligent and the child was 20 per cent
negligent, then the driver will only pay for 80 per cent of the child's harm. 2 0
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Practically then, if the child suffered harm in the amount of R100 000, the driver is only liable to pay damages to the amount of R80 000 to the
child. Strategically it then makes sense why the child's lawyers would invariably argue that the child lacked capacity. As explained in the
introduction to this article, if the child lacked capacity, the prerequisite for the substantive forms of fault (negligence or intention) has not been
met. The consequence is that the child could not have acted negligently at all. If the child is legally incapable of acting negligently, there
cannot even be a thought of contributory negligence on the child's part, and so the child is entitled to 100 per cent of the damages from the
wrongdoing driver.
The cases distinguish between three groups of children. Infants (infantes), preteens (impuberes) and teenagers (puberes). These categories
of children are divided according to age, and are each treated differently in terms of the presumptions of capacity.
(b) Infants
In the case of Van Oudsthoorn v Northern Assurance a sixyearold child's contributory negligence was in issue. 2 1 The Appellate Division,
simply endorsing earlier Supreme Court authority, 2 2 held that infants are children below the age of seven years and are irrebuttably presumed
to lack capacity. 2 3 In other words, a child under seven years can never act negligently, regardless of their level of intellectual or emotional
maturity. A fiveyearold might be able to pass my module on the law of delict, create a safe vaccine for COVID19, and win a Nobel prize, but
that is neither here nor there for purposes of this enquiry into capacity for fault. As such, there can be no question of apportionment of
damages, and the wrongdoing driver would be held liable for 100 per cent of the damages owed to the child.
The rule regarding infants can be traced all the way back to the Roman Digest, 2 4 which later made its way into the thinking of the great
Roman Dutch jurist Voet, 2 5 which then arrived on South African shores through the process of colonisation. 2 6
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It is not completely clear what the basis for the irrebuttable presumption is or was. In the matter of Roxa v Mtshayi the Appellate Division
said in passing that the irrebuttable presumption is a legal fiction and thus necessarily artificial. 2 7 Hidden between the lines is perhaps the
underlying rationale of human experience (at the time) that indicated that children under seven years tended to lack the cognitive and conative
abilities required to have capacity. Furthermore, perhaps it could be argued that the irrebuttable presumption serves to protect these
particularly young children.
(c) Preteens
The implication of the case law related to infants is that once a child turns seven, that child moves into a new category for purposes of
determining their capacity for fault. Some confusion reigns in our law about the upper cutoff age for the category of preteens.
In the cases of Jones and Roxa the Appellate Division held that preteens, regardless of sex, are seven years or older but not yet fourteen.
28 In the Weber case, the court flipped to a sexrelated distinction, saying that preteen boys are seven or older but younger than fourteen,
while preteen girls are seven years or older but younger than twelve. 2 9 Since democratisation, the Supreme Court of Appeal has mentioned
only once in passing that the genderbased distinction between boys and girls might be unnecessary and it would endorse the age brackets set
by the Roxa decision. 3 0 It is hoped that the courts will take a clearer stance in this regard in future, guided at all times by the constitutional
commitment to undoing unfair discrimination practices of all kinds. 3 1
32
Be that as it may, the rule for this category of children stipulates that preteens are rebuttably presumed to lack capacity. Importantly,
different
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33
to the situation with infants, the presumption here may be rebutted by showing the presence of all three Jones factors. These are, first, that
the child had the intelligence to appreciate the danger that was meant to be avoided; secondly, that the child had the appropriate knowledge
of how to avoid the harm; and thirdly, that the child was mature enough to control their irrational or impulsive acts. These three factors are
always established with reference to the subjective facts relating to the child.
For example, in the Jones case, the preteen girl grew up in Springs, where she was exposed to motor vehicle traffic nearly every day, she
walked to school, and was taught at school about keeping a proper lookout before crossing a street. As such, the child was held to have
capacity for fault. 3 4 Similarly, in the Roxa case, the evidence showed that the preteen boy was taught by his mother about the rules for
crossing a road. Thus, capacity for fault was present here too. 3 5
However, in the matter of Weber, the preteen boy was asked what his grades were at school and could not give any proper indication of
what they were. Therefore, the court reasoned that the boy was simply not concerned with the types of things with which an adult with
capacity would be concerned. 3 6 The court further emphasised that the third Jones factor must not be forgotten. 3 7 As such, courts must be
careful so that they do not place an 'old head on young shoulders', simply by virtue of the child's schooling or parental instruction. 3 8 Children
sometimes are incapable of controlling their impulses. The child in Weber was held to lack capacity because the presumption was not rebutted,
mostly on account of the third Jones factor. 3 9 In the most recent case of Hendricks, the Supreme Court of Appeal again stressed the
importance of the third Jones factor and found that the child's behaviour in that case indicated that he was overwhelmed with curiosity, was
easily distracted, and could not control his impulses. 4 0 The presumption was not rebutted in the Hendricks case, and the child was held to
have capacity. 41
The rationale behind this presumption is not clearly articulated through the cases, other than an inference of child protection supported by
careful so that they do not place an 'old head on young shoulders', simply by virtue of the child's schooling or parental instruction. Children
sometimes are incapable of controlling their impulses. The child in Weber was held to lack capacity because the presumption was not rebutted,
mostly on account of the third Jones factor. 3 9 In the most recent case of Hendricks, the Supreme Court of Appeal again stressed the
importance of the third Jones factor and found that the child's behaviour in that case indicated that he was overwhelmed with curiosity, was
easily distracted, and could not control his impulses. 4 0 The presumption was not rebutted in the Hendricks case, and the child was held to
have capacity. 4 1
The rationale behind this presumption is not clearly articulated through the cases, other than an inference of child protection supported by
common human experience prevalent at the time. 4 2 Schoeman has argued that the presumption in the case of preteens is rebuttable in nature
because of 'the
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pluralistic nature of South African society and the resulting difference in children's level of maturity and development'. 43
The crux of this discussion on preteens is that they do not have the same strategic advantage that infants have. An infant can never be
contributorily negligent in causing their own injury, while a preteen may be contributorily negligent towards their own injury (on condition that
the presumption of lack of capacity for fault is rebutted), thus being subject to a reduction in the amount of damages claimable from the
wrongdoer. There is thus a material distinction that can be drawn between infants and preteens. This is a crucial point to understand for
purposes of the argument that I will be presenting later on in this article.
(d) Teenagers (and majors)

Due to the uncertainty that still runs free regarding the upper cutoff age for preteens, we cannot be totally sure when a child becomes a
teenager for purposes of the capacityforfault enquiry. However, if the most recent dictum from the Supreme Court of Appeal is anything to go
by (as I think it probably should be, for constitutional reasons for preventing unfair discrimination, until evidence to the contrary can be
presented) a child becomes a teenager upon his/her fourteenth birthday. 4 4
Even though a child would technically cease to carry the labels of 'child' and 'teenager' upon their eighteenth birthday when they become a
major, 4 5 for purposes of the law of delict and the question of capacity for fault, teenagers and majors are treated exactly the same: both
teenagers and adults are rebuttably presumed to have capacity for fault. 4 6 The starting point here is thus the opposite compared to pre
teens. Teenagers and adults have capacity unless it can be shown that they lack capacity for some other reason related to their mental health
or state of intoxication. To rebut the presumption of capacity, it must ultimately be shown that the person lacked either cognition or conation,
as described in the introduction to this article. 4 7 The position regarding agerelated capacity for fault in the Child Justice Act seems to be more
certain, but is different from the commonlaw paradigm, as I explain below.
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III The statutory paradigm

We now turn to the provisions in the Child Justice Act on agerelated capacity for fault. 4 8 Section 7(1) in its original form stated that children
under the age of ten years lack criminal capacity for fault and cannot be prosecuted for any offences. After the 2019 amendment takes effect,
children under the age of twelve years will lack criminal capacity for fault and cannot be prosecuted for any offences. Traditionally, we could
refer to this category of children as infants but, in terms of ordinary speech, the term 'infants' here makes little sense in this context.
Section 7(2) in its original form provided that children who are ten years and older but not yet fourteen years old are rebuttably presumed to
lack criminal capacity for fault. After the 2019 amendment, the minimum age for criminal responsibility will be increased to twelve years, while
the upper cutoff age of fourteen years remains intact. This category of children would traditionally be called preteens but, in terms of ordinary
speech, the term preteens makes little sense in this context.
These sections imply that children older than fourteen years (teenagers) are treated the same as adults and are rebuttably presumed to
have criminal capacity for fault. Furthermore, s 7(3) stipulates that the common law of criminal capacity is explicitly amended. The latter
section was necessary because, before the Child Justice Act in its original form came into effect, the common law set the ages for criminal
capacity for fault similar to the rules regarding the common law of delict as described above. 4 9
Strikingly, the three subsections of s 7 specifically refer to criminal capacity for fault. Nothing is said about delictual capacity for fault.
Holistically, reading the Act purposively, one observes that the entire statute is geared towards the reform of the juvenile criminal justice
system. The long title of the Act explains that the purpose of the Act is as follows:
'To establish a criminal justice system for children, who are in conflict with the law and are accused of committing offences, in accordance with the
values underpinning the Constitution and the international obligations of the Republic; to provide a mechanism for dealing with children who lack
criminal capacity outside the criminal justice system; to make special provision for securing attendance at court and the release or detention and
placement of children; to make provision for the assessment of children; to provide for the holding of a preliminary inquiry and to incorporate, as a
central feature, the possibility of diverting matters away from the formal criminal justice system, in appropriate circumstances; to make provision
for child justice courts to hear all trials of children whose matters are not diverted; to extend the sentencing options available in respect of
children who
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have been convicted; to entrench the notion of restorative justice in the criminal justice system in respect of children who are in conflict with the
law; and to provide for matters incidental thereto.'
Nothing in this long title alludes to the Act's possible reach into other areas of law, such as the law of delict. Section 2 of the Act sets out the
objects of the Act. The Act is essentially dedicated to protecting children from the harsh effects of the criminal justice system by having due
regard for their rights, the spirit of ubuntu, and a commitment to restorative justice. 5 0 Section 4 of the Act makes it plain that the Act applies
to children who commit offences. Beyond these background provisions, the detailed provisions of the Act also clearly strike at the criminal acts
of children.
For example, infants who commit crimes must be dealt with in terms of s 9 of the Act. This section stipulates that offending infants may not
be arrested. 5 1 Probation officers must be appointed to deal with their cases. 5 2 Among other things, the probation officer must contrive
detailed plans for dealing with the infant's misbehaviour. 5 3 The need for this process is selfevident in criminal matters. An infant who has
stabbed another one probably needs extensive interventions in his or her life. However, a child who falls within the classic factual construction
for agerelated capacity issues in the law of delict probably does not require the same interventions: an infant who stepped into the road and
who collided with the vehicle of a careless driver probably does not need the same correction as a murderous infant.
When preteens have committed crimes, they may be subject to a diversion process, which is aimed at keeping them out of the formal court
system with a specific focus on rehabilitation. 5 4 The consequences of agerelated capacity in terms of the Act are thus not aimed at imposing
fullblown criminal responsibility on children. Instead, there is an emphasis on restorative justice and attempting to fix what is broken in the
children's
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55
lives. The rest of the Act sets out a number of special criminal procedural steps to be taken in cases related to children.
In short, then, the Child Justice Act was not ever intended to apply to delictual disputes or to amend the common law of delict on age
related capacity. 5 6 This is why I argue that Neethling & Potgieter were technically wrong when they said that the Act had amended the
common law of delict in this regard. 5 7 However, there is something normatively intriguing about the suggestion that the upper cutoff age for
infants ought to be raised from seven years to meet the statutory equivalent at criminal law, which will soon be twelve years. There is also
something normatively desirable about bringing certainty about the upper cutoff age for the preteen category in the common law of delict to
fourteen years, regardless of the child's sex.
As I will show in the discussion below, I believe that there is a way to bridge the gap between Van der Walt & Midgley's technical correctness
about the common law's regulation of agerelated capacity for fault, and Neethling & Potgieter's earlier normatively sound proposal for expanding
the category of infants and bringing certainty to the category of preteens.
infants ought to be raised from seven years to meet the statutory equivalent at criminal law, which will soon be twelve years. There is also
something normatively desirable about bringing certainty about the upper cutoff age for the preteen category in the common law of delict to
fourteen years, regardless of the child's sex.
As I will show in the discussion below, I believe that there is a way to bridge the gap between Van der Walt & Midgley's technical correctness
about the common law's regulation of agerelated capacity for fault, and Neethling & Potgieter's earlier normatively sound proposal for expanding
the category of infants and bringing certainty to the category of preteens.
IV Resolving the tension through transformation

(a) Argument blueprint
To recapitulate, the commonlaw paradigm on agerelated capacity for fault in the law of delict is supported by Van der Walt & Midgley,
probably for the sake of historical integrity. Infants at common law are children under seven years who lack capacity for fault in absolute terms.
Preteens are children between seven and (probably) fourteen years who rebuttably lack capacity. Teenagers are fourteen years and older and
rebuttably have capacity. The Child Justice Act position was supported by Neethling & Potgieter, without clear explanation why. Infants in terms
of the statutory
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paradigm are children under twelve years who absolutely lack capacity. Preteens (definitely) fall between twelve and fourteen years who
rebuttably lack capacity. Teenagers are fourteen years and older who rebuttably have capacity.
The core difference therefore lies in how we define infants in terms of the relevant cutoff ages. We could refer to the upper cutoff age for
infants, in both criminal law and the law of delict, as the 'minimum age for capacity for fault'. The present tension between the common law and
statute could potentially have material consequences for children who get lost in the gap between the commonlaw and statutory cutoff ages.
The affected children are those who are seven years or older but are not yet twelve years old. It may seem like a marginal group of children
who are affected, but surely those children are not insignificant for purposes of thinking about the law's protection. This brings me to a
transformative argument about what we ought to do with the commonlaw and statutory tension, and accompanying uncertainty.
The argument that I intend to make here is that the common law of delict on agerelated capacity for fault ought to be developed, along
constitutional lines. This argument could be described as being 'transformative' in the sense that it promotes the idea of transformative
constitutionalism. Klare famously defined transformative constitutionalism as follows:
'[A] longterm project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context
of conducive political developments) to transforming a country's political and social institutions and power relationships in a democratic,
participatory, and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing largescale social change through
nonviolent political processes grounded in law. I have in mind a transformation vast enough to be inadequately captured by the phrase "reform,"
but something short of or different from "revolution" in any traditional sense of the word. In the background is an idea of a highly egalitarian,
caring, multicultural community, governed through participatory, democratic processes in both the polity and large portions of what we now call the
"private sphere."' 5 8
The short version of transformative constitutionalism is that the Constitution is the guiding light that leads the way for all legal development in
our constitutional democracy, with the hope that society can be improved when the law more boldly embodies the aspirations of the
Constitution. Using the Constitution, I will argue that a modest approach to development would involve bringing the commonlaw rules of delict
on agerelated capacity for fault in line with the criminallaw rules taken up in statute. A more robust approach to development would involve
bringing
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the commonlaw rules of delict in line with international standards and trends which even surpass our current criminallaw framework.
To construct this argument, I will first canvass the relevant constitutional provisions that entitle courts to develop the common law, as well
as case law and academic commentaries that have interpreted these development clauses in the Constitution. Thereafter, I will show that
various constitutional rights could be used to justify commonlaw development in this area of law. Furthermore, it will be shown that
international law, foreign law, and academic commentaries all point in the direction of delict's development in this respect.
(b) The development clauses

The starting point for this discussion is that s 2 of the Constitution declares the Constitution to be the supreme law of the Republic and that all
laws must be constitutionally compliant. If other laws do not comply with the Constitution, s 172 empowers courts to invalidate those laws. This
logically includes the common law of delict. However, the constitutional drafters thought it wise to include more specific provisions that relate to
the common law. The relevant parts of s 8 of the Constitution (the application clause) state the following:
'(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of
the right and the nature of any duty imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court –
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not
give effect to that right; and
(b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36 (1).'
Even though classically liberal constitutions tend to apply to disputes between a state and its citizens, what s 8(2) of our Constitution makes
plain is that constitutional rights can have horizontal effect, meaning that the Constitution can apply to disputes between nonstate actors
inter se. 5 9 Section 8(3) further clarifies that the Constitution will operate through the instrumentality of legislation or common law. When a
right of a nonstate actor has been infringed by another nonstate actor, the first port of call is to consider whether legislation gives effect to
the right in question.
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If it does, that legislation ought to apply. If legislation does not govern the dispute, the common law is the fallback option (and, one could
argue, customary law in its stead, if the customary law applies). 6 0 Notably, for purposes of this discussion, s 8 envisions that the common law
could be applied or developed by a court to give effect to a constitutional right. This idea that the common law can give effect to rights is not
brand new.
In 1971, Neethling wrote that private common law (and the common law of delict in particular) serves to protect the human rights of
individuals. 6 1 If we think about the common law of delict in democratic constitutional terms today, we might say that the entire enterprise of
the common law of delict aims to protect constitutional rights for the following reasons. The rules for Aquilian liability arguably protect a very
broad constitutional entitlement to property found in s 25 of the Constitution. 6 2 The rules derived from the action for pain and suffering
arguably aim to protect the constitutional rights to bodily integrity (s 12) and to a large extent dignity (s 10) as well. 6 3 The adapted rules of
the historic actio iniuriarum arguably serve to protect the constitutional rights to dignity (s 10), 6 4 bodily integrity and freedom (s 12), 6 5
privacy (s 14), 6 6 and so forth. While giving effect to constitutional rights might be (or perhaps should be) the overarching aim
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of the common law of delict, the actual provisions of the common law of delict do not always, as a matter of necessity, adequately or optimally
protect these constitutional rights. As such, the rules of the common law of delict are subject to constitutional scrutiny and development.
If s 8 is not clear enough that courts are entitled to develop the common law as it applies to nonstate actors, two other constitutional
sections shine more light onto this issue. Section 173 of the Constitution confers on South African superior courts 'the inherent power . . . to
develop the common law, considering the interests of justice'. Section 39(2) of the Constitution enjoins a court, tribunal or forum to 'promote
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These provisions indicate that the drafters of the South African Constitution had a very clear and unequivocal vision that courts in the new
protect these constitutional rights. As such, the rules of the common law of delict are subject to constitutional scrutiny and development.
If s 8 is not clear enough that courts are entitled to develop the common law as it applies to nonstate actors, two other constitutional
sections shine more light onto this issue. Section 173 of the Constitution confers on South African superior courts 'the inherent power . . . to
develop the common law, considering the interests of justice'. Section 39(2) of the Constitution enjoins a court, tribunal or forum to 'promote
the spirit purport and objects of the Bill of Rights' when developing the common law.
These provisions indicate that the drafters of the South African Constitution had a very clear and unequivocal vision that courts in the new
democratic dispensation had to be obliged to infuse constitutional principles into private law in robust ways, especially when compared to other
jurisdictions. 6 7 Even before the introduction of constitutional democracy, South African courts have historically been developers of the common
law, introducing brandnew rules at times, 6 8 other times striking its provisions down where they no longer reflect the needs of contemporary
society. 6 9 The ideological shift that the Constitution brought about in this regard is to steer the development of the common law in the
direction of the Constitution's supremacy, and the democratic values and principles that it contains.
There have been great debates about the technical interactions between the different constitutional provisions on commonlaw
development. 7 0 I do not wish to enter the arena of that debate here because, the technicalities of the debates aside, our courts have a very
clear purposive reading of the development clauses that can be captured by the simple idea that, regardless of which specific constitutional
section we rely on,
2021 SALJ 383
the common law is subject to a constitutional audit. This was the stance taken by the Constitutional Court in the first case on constitutional
commonlaw development under the 1996 Constitution, namely Carmichele v Minister of Safety and Security. 7 1 In Carmichele, the court listed
all of the constitutional developmental clauses and reduced them to the following proposition: 'It follows implicitly that where the common law
deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation.' 7 2 As to
the methodology for commonlaw development, the Constitutional Court said the following:
'It was implicit in the applicant's case that the common law had to be developed beyond existing precedent. In such a situation there are two
stages to the inquiry a court is obliged to undertake. They cannot be hermetically separated from one another. The first stage is to consider
whether the existing common law, having regard to the section 39(2) objectives, requires development in accordance with these objectives. This
inquiry requires a reconsideration of the common law in the light of section 39(2). If this inquiry leads to a positive answer, the second stage
concerns itself with how such development is to take place in order to meet the section 39(2) objectives.' 7 3
In Carmichele, the legal question was whether the state could be held delictually liable for its failure to keep a dangerous criminal behind bars,
who had then attacked the victim. More specifically, under the wrongfulness enquiry, the question was whether the state bore a duty to
protect the victim in this case. 7 4 The courts below the Constitutional Court thought that the state was not burdened with a duty. 7 5 The
Constitutional Court came to a different conclusion. It considered the victim's constitutional rights to bodily integrity, dignity and equality. 7 6
The Constitutional Court also considered the way in which the state is dutybound to its citizens to protect those rights in various ways, under
the Constitution, 7 7 governing legislation, 7 8 foreign law, 7 9 and international law. 8 0 In the end, it was found that the state was dutybound to
protect
2021 SALJ 384
the victim in this case, largely for constitutional reasons. 8 1 Thus, if it was true that the common law did not provide a mechanism for the state
to be held accountable for its malfeasance in Carmichele's case, 8 2 the common law had to be developed to the extent that it failed to meet
the constitutional aspiration of state accountability. 8 3
In this way, the wrongfulness enquiry was developed so that constitutional considerations would now play into the flexible criterion of the
'legal convictions of the community', which is used to determine whether an alleged wrongdoer bore a legal duty not to act negligently and/or
not to cause harm to the victim. 8 4 On another occasion, the constitutionally inspired reading of wrongfulness led to the effective abolition of a
claim that existed for many years at common law, namely the claim for hurt feelings flowing from adultery. 8 5
A similar constitutionally nuanced approach to the rules for vicarious liability was introduced in the case of K v Minister of Safety and
Security. 8 6 In that case a woman was raped by three police officers in uniform and on duty. The courts below the Constitutional Court held
that the relevant government minister would not be held liable for the conduct of the policemen, because the rules for vicarious liability would
not regard the policemen's conduct as falling within the course and scope of their employment. 8 7 The argument in the Constitutional Court on
behalf of the victim was that the extant common law of vicarious liability did not provide an effective mechanism for the vindication of the rights
of the victim who had been raped by a police officer. 8 8 The Constitutional Court introduced a new list of criteria for determining whether
employees act 'within the course and scope of their employment', as one of the constitutive elements for the operation of vicarious liability. 8 9
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This development, the court ultimately reasoned, would provide a better vindication of the constitutional rights of delict victims. 90
Even though the above two influential cases related to delicts committed by state functionaries, the Constitutional Court has been
abundantly clear about the fact that the Constitution can apply to delictual disputes between nonstate actors too. In Khumalo v Holomisa, 9 1
a defamation case, the alleged wrongdoer argued for a development of the common law. 9 2 The elements for defamation have historically been
(i) a publication (ii) about the plaintiff (iii) that is defamatory, made with the requisite (iv) intention and (v) the presence of wrongfulness. 9 3
The alleged wrongdoer in Khumalo intended to argue that the right to freedom of expression requires the introduction of a sixth element of
defamation, namely (vi) that the publication was made falsely. 9 4 The Constitutional Court was willing to consider this possibility of adding a new
element for liability. It carefully analysed the rights to dignity 9 5 and freedom of expression, 9 6 in comparative perspective, to reach the
conclusion that the extant common law effectively balanced the two rights at stake, without the need for development. 9 7
The takehome message from the three cases just discussed can be summarised as follows. When the common law fails in some way to give
effect to the rights and values in the Constitution, it ought to be developed by a court so that the common law is consonant with the
Constitution. In this process, courts must have due regard for relevant competing constitutional rights, other constitutional provisions,
applicable legislation, foreign law, and international law. The development in question might just be a slight variation on existing principles, the
introduction of a new set of criteria to consider when applying an existing rule, the introduction of new requirements for liability, and even the
effective abolition of certain claims. Surely there can be other notional possibilities too. 9 8
More recently, in a contractual dispute, the Constitutional Court refined the rudimentary formulation of the twostep methodology to be
employed in the commonlaw development enterprise originally laid
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down in Carmichele. In Mighty Solutions t/a Orlando Service Station v Engen Petroleum the Constitutional Court's more modulated methodology
was laid out as follows:
'Before a court proceeds to develop the common law, it must (a) determine exactly what the common law position is; (b) then consider the
underlying reasons for it; and (c) enquire whether the rule offends the spirit, purport and object of the Bill of Rights and thus requires
development. Furthermore, it must (d) consider precisely how the common law could be amended; and (e) take into account the wider
consequences of the proposed change on that area of law.' 9 9
The discussion about the common law of agerelated capacity for fault above aimed to comply with steps (a) and (b) of the Mighty Solutions
formulation. I still need to demonstrate that the common law is not constitutionally compliant as it stands, exactly what the proposed change
ought to look like, and what the knockon effects of such a development might be.
(c) The constitutional rights at stake

Earlier in this article, I explained that the common factual construction for agerelated capacity for fault in delict usually relates to a child who
is driven over by a negligent driver. That driver argues that the child was contributorily negligent but, for the driver's argument to succeed, it
must be shown that the child had the necessary capacity to be negligent. Following this common factual construction, the child victim's
constitutional rights to bodily integrity and property are at stake. The child might endure pain and suffering because of the collision, and the
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optimally protects these rights of child victims in delict. With that said, it is significant that we are dealing with children in this regard, because
(c) The constitutional rights at stake
Earlier in this article, I explained that the common factual construction for agerelated capacity for fault in delict usually relates to a child who
is driven over by a negligent driver. That driver argues that the child was contributorily negligent but, for the driver's argument to succeed, it
must be shown that the child had the necessary capacity to be negligent. Following this common factual construction, the child victim's
constitutional rights to bodily integrity and property are at stake. The child might endure pain and suffering because of the collision, and the
child could incur medical expenses, loss of future earning capacity, and so forth. The overarching question is whether the extant common law
optimally protects these rights of child victims in delict. With that said, it is significant that we are dealing with children in this regard, because
s 28(2) of the Constitution states that the best interests of the child are of 'paramount importance' in every matter concerning the child. 100
The bestinterestsofthechild standard has been used in various ways by our courts to ensure that children's rights are optimally
protected. Friedman, Pantazis & Skelton explain that s 28(2) has at least three practical manifestations. 101
2021 SALJ 387
The first manifestation of s 28(2) is that it obliges the state to take measures to ensure compliance with parental rights and responsibilities
towards children. 102
The second manifestation of s 28(2) is that it can be used to delineate the scope of other rights. 103 For example, even though the viewing
and possession of pornography is generally allowed under South African law in terms of the constitutional right to privacy (s 14), 104 child
pornography is prohibited — ultimately because of the right that children have to have their best interests regarded as paramount in all matters
pertaining to them, and child pornography is always exploitative in nature. 105
The third manifestation of the best interests of the child is a substantive, standalone right that can be used during the process of judicial
review. 106 Friedman, Pantazis & Skelton explain that if a statute stands in the way of children's flourishing, it could be declared
unconstitutional to the extent that the statute violates s 28(2). 107 However, as the Constitutional Court said in S v M (Centre for Child Law as
Amicus Curiae), 108 the paramountcy of the bestinterests principle does not mean that it is an absolute right that children have that trumps all
other rights and legal provisions; the right embodied in s 28(2) may be limited just like any other right.
I would argue that the third manifestations of s 28(2) identified by Friedman, Pantazis & Skelton could assist us in arguing for a development
of the common law of delict on agerelated capacity for fault. Surely it can be said that it is in the best interests of children to give them the
fullest possible protection of their bodily integrity and property, given their vulnerability towards an adult wrongdoer. This is certainly the
implication of the case of De Reuck — the child pornography matter — as outlined above. Therefore, in a rudimentary sense, my argument is
that it would be in the best interests of children if the cutoff age for the irrebuttable presumption of a lack of capacity is raised from seven to
at least ten years, congruent with the statutory criminal law. This crude, abstract proposition can be supported with reference to international
law, foreign trends, and psychological evidence.
2021 SALJ 388
In terms of s 39(1) of the Constitution, when interpreting a right in the Constitution, courts are enjoined to promote democratic values,
having due regard for binding international law and nonbinding comparable foreign law. As such, our interpretation of s 28(2) of the Constitution
and its implications for the issue of agerelated capacity for fault can be enriched with reference to international and foreign law.
On the internationallaw front, the starting point for linking the best interests of children and agerelated capacity for fault is the United
Nations Convention on the Rights of the Child. Article 40(3)(a) of the Convention requires signatory states to set up special criminal procedural
laws for child offenders, including the 'establishment of a minimum age below which children shall be presumed not to have the capacity to
infringe the penal law'. This provision is mirrored in art 17(4) of the African Charter on the Rights and Welfare of the Child. 109
More detailed guidance has been provided by the United Nations Committee on the Rights of the Child in their General Comment 10 of 2007.
110
Article 30 of the General Comment stipulates that some states have a 'very low' minimum age for criminal capacity set at seven years, while
other states have a 'commendabl[y] high' minimum age of fourteen to sixteen years. However, the Committee recommends in art 32 that the
minimum age for criminal capacity should not be lower than twelve years. In fact, the Committee goes further to say it would be internationally
unacceptable for the minimum age for criminal capacity to be set below twelve years. After meeting this international standard, states are
encouraged to increase progressively the minimum age over time. The suggestion is very strongly, in art 33, that fourteen to sixteen years
would be more fully compliant with international law. Even though General Comments of the Committee are not strictly speaking binding
international law, Skelton draws our attention to the fact that the South African Constitutional Court has referred to these as persuasive
authority in the past. 111 Thus, for years, commentators in the criminallaw context had suggested increasing the Child Justice Act's original
minimum age for criminal capacity beyond the age of ten, at least to the age of twelve. 112
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As noted earlier in this article, the increase of the minimum age for criminal capacity to twelve years did in fact take place in the 2019
amendment.
It should be clear that the internationallaw provisions on agerelated capacity for fault directly speak to criminal law, but are silent on the
law of delict. Some might argue that this means that the law of delict does not need to comply with these international trends. Moreover, one
might be tempted to say that the stakes are much higher in criminallaw matters (in the sense that a criminal record and imprisonment might be
the consequence for criminal liability) and so it is justifiable for criminal law to set the bar for absolute lack of capacity for fault a few years
higher compared to the law of delict. This is the gist of Jansen & Neethling's more recent argument in favour of keeping the common law of
delict separate from the statutory criminal law on capacity. 113 However, I would argue that sight should not be lost of the fact that the test
for capacity for fault is the same in criminal law and the law of delict in that cognition and conation must be present. 114 Whether these twin
requirements are present in a particular case is a factual question, the answer to which should be the same whether the child is a criminal
perpetrator or a delictual wrongdoer. The test for capacity is not determined with reference to the consequence of liability. In our law, capacity
for fault has been, and still is, determined with reference to the presence of cognition and conation only, not the consequences of liability on
the perpetrator.
Additionally, I would support Kehrhahn's argument that the Beijing Rules (which were adopted by the United Nations General Assembly in
1985) stipulate in rule 4 that the minimum age for criminal capacity should set the tone for 'other social rights and responsibilities' of children
and, as such, that delict and criminal law should speak the same language in this regard. 115
If this can be accepted, then the logical point would be that the minimum age for capacity for fault in delict cannot stay at seven years. It
would be out of step with international law. 116 At the very least, it ought to be increased to twelve years to meet the criminallaw minimum
age. At best, the criminallaw minimum should be increased to fourteen or even sixteen years, and delict ought to follow suit. After all, South
Africa should not just be realizing the bare minimum standard of human rights — we should, ideally, be situating ourselves on the 'highly
commendable'
2021 SALJ 390
end of the scale. The argument for twelve years is probably the easiest to make, as Skelton argues, because that age is already deeply
entrenched as the age at which children are regarded as being capable of making empowering decisions about their lives. 117 For example,
children can consent to medical treatment by themselves at twelve years, 118 and they can also consent to sexual activity at twelve years. 119
Turning to comparative law, it is most interesting to see how the law in this regard has developed in the Netherlands, because the South
African common law of delict developed from the springboard of RomanDutch delictual liability. 120 In the Netherlands, the minimum age for
criminal capacity for fault is twelve years, which mimics the current South African legal position. 121 In the Dutch law of delict, the minimum age
is fourteen years, a whopping seven years older than in South African law. 122 The Dutch legislature clearly thought that the minimum age of
seven, supported by the great Dutch jurists of the seventeenth century whose thinking influenced the South African common law, was too low.
It is also significant that the Dutch delictual cutoff age is higher than the Dutch criminal cutoff age. But my argument is not that the delictual
minimum age for capacity for fault should be higher than our criminallaw threshold. My argument is that the two areas of law should be aligned.
This is so because the Dutch Council for the Administration of Criminal Justice and Protection of Juveniles has recommended to the Dutch
123
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Among other reasons, this amendment to the criminal law was suggested to bring the criminal law and the law of delict in line with each other,
124
seven, supported by the great Dutch jurists of the seventeenth century whose thinking influenced the South African common law, was too low.
It is also significant that the Dutch delictual cutoff age is higher than the Dutch criminal cutoff age. But my argument is not that the delictual
minimum age for capacity for fault should be higher than our criminallaw threshold. My argument is that the two areas of law should be aligned.
This is so because the Dutch Council for the Administration of Criminal Justice and Protection of Juveniles has recommended to the Dutch
government that it supports an increase in the criminallaw minimum age to at least fourteen years, up to a maximum of sixteen years. 123
Among other reasons, this amendment to the criminal law was suggested to bring the criminal law and the law of delict in line with each other,
for the sake of consistency in principle; 124 or, as I have explained it above, for the sake of appreciating the logical point that the test for
capacity for fault is the same in criminal law and in the law of delict.
The general trend in international law is that the age for capacity for fault must be increased rather than decreased. The trend in Dutch law
is
2021 SALJ 391
that fourteen years might be the appropriate goal to aim for in terms of the minimum age for capacity for fault in both criminal law and delict.
However, we should not simply follow international trends for the sake of doing the popular thing; we should only follow international trends if
they are both normatively and logically justifiable. 125 The international trends might set the tone for the normative desirability of increasing the
minimum age for capacity for fault because, in an abstract sense, it would appear to promote the best interests of children. To determine the
rationality of such an increase, and the exact parameters of an increase, reference can next be made to psychological research that has
interrogated the South African law on the minimum age for capacity for fault
(d) The proposed development and its knockon effects

Before the Child Justice Act came into operation, the criminologist Badenhorst set out to determine whether the Act, and specifically its
provision on agerelated capacity for fault in criminal matters, was regarded as defensible by various stakeholders who work with children who
come into conflict with the law. 126 She interviewed 49 respondents comprising lawyers, criminologists, psychologists, and social workers who
were registered with the South African Professional Society on the Abuse of Children who have worked with children. 127 From her interviews
she concluded that most professionals agree that, according to their experience in the field, the criminal commonlaw age of seven years was
too low as a minimum age for capacity for fault, 128 and the Child Justice Act's (then) minimum age of ten years gives a better reflection of
reality. In other words, the common experience of various professionals is that children under ten years tend to lack cognition and conation as a
general observation. 129 Thus, her argument at the time was that the irrebuttable presumption of lack of capacity for fault as found in the
original version of the Child Justice Act was rationally more defensible than the rules at common law.
In a more recent study, 130 KramersOlen has argued that psychology and neuroscience indicate that children tend to develop cognitive and
conative abilities any time from the age of twelve years, 131 but it is a safer conclusion
2021 SALJ 392
to make that children of fourteen years and older might have the ability of cognition and conation. 132 It is important to note that she says
teenagers over fourteen years might have the requisite capacity before they reach adulthood. By saying this, she suggests that a rebuttable
presumption of incapacity should probably operate for teenagers. 133 Pillay is also broadly in agreement with the contention that the sciences
indicate that the human's ability for taking moral responsibility only develops much later on than the time which the common law currently
stipulates. 134
The international legal trends and the sciences thus point in the same direction, namely that the age of seven years should not be the
minimum age for capacity for fault. 135 Indeed, this age must be increased. Even though the Child Justice Act's original increase of the minimum
age for capacity to ten years might enjoy popular support from South African professionals (as Badenhorst found), the sciences actually
indicate that ten years might be too low for the irrebuttable presumption to withstand full rational scrutiny (as KramersOlen and Pillay found).
Therefore, the recent amendment to the Child Justice Act, increasing the minimum age for capacity for fault in criminal law to twelve years, is a
great step in the right direction.
In an ideal world, Parliament will, in time, intervene and raise the bar for agerelated capacity for fault to at least fourteen years, for both
criminal law and the law of delict. Alas, we do not live in the ideal world. It is worth remembering that in the year of the Child Justice Act's fifth
anniversary, despite multiple calls to increase the minimum age for capacity for fault from ten to twelve years, Parliament decided to keep the
age at ten years. Ultimately it took, quite poetically, twelve years for the twelveyear minimum age to be adopted by Parliament.
As such, the chances are that courts will be confronted with the difficult task of effecting law reform in this respect. The truth is that if a
criminal case of a child perpetrator of, say, thirteen years, is brought before a court, and the child's counsel argues that the Child Justice Act is
unconstitutional
2021 SALJ 393
in so far as the cutoff age of twelve years is too low given international law trends, that court might be willing to 'read in' a new minimum age
for capacity, or direct Parliament to amend the legislation accordingly, to, say, fourteen. 136 However, that court would probably not deal with
the issue of the law of delict's rules on agerelated capacity, because the law of delict would almost certainly not be directly relevant to the
dispute at hand.
The corollary is that if a delictual matter had to make its way to a court where the capacity of a child between the ages of seven and
twelve years was brought into question, a court could justifiably be petitioned to bring about a development to the common law, in light of the
development clauses in the Constitution, the international law, foreign law, and psychological evidence discussed above. However, it would not
be open to that court to declare the Child Justice Act to be inconsistent with the relevant legal norms, because that issue would not be directly
relevant to the dispute at hand. It would also be odd for the court to declare that the common law of delict should increase its minimum age for
capacity for fault to fourteen years or higher, while the criminal law would then lag behind.
Abolishing the commonlaw distinction between preteens and teenagers might also be too big of an ask for a court to undertake.
Understandably, a court might feel trepidatious about a complete overhaul and restructuring of the law on agerelated capacity. If the court
holds the strong view (as I do) that the delictual and criminal minimum ages for capacity for fault ought to be increased, and a complete
overhaul of this area of law is needed to protect better the constitutional rights of children in accordance with international norms and science,
it would of course be open to a court to instruct Parliament to fix this interdisciplinary muddle. The Constitutional Court did something similar in
the samesex marriages case, where it did not want to legislate an area of law that really needed a carefully refined development of legal rules.
137 There the Constitutional Court gave Parliament twelve months to fix the constitutional defects in the commonlaw definition of marriage
which was heteronormative in nature and flew in the face of the constitutional right to equality, among others. 138
However, in the end, the minimum recourse that I would support on this issue, in the context of the development of the common law of
delict, is that the commonlaw minimum age of seven years should be raised
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to meet the criminal age of twelve years. Davel 139 and Kehrhahn 140 also suggest that the common law of delict should be brought in line with
the criminal law. However, their argument is that this change should be brought about through statutory intervention. Even though this is a
proposition with which I can agree, I am less hopeful than they are that Parliament will bring about this necessary legal reform spontaneously, of
its own accord, without judicial instruction. That is why I punt the idea of a curial commonlaw development in this regard. If the common law
of delict's rules on agerelated capacity are developed to reflect the criminal law's rules on the same point, and the Child Justice Act is
eventually amended to increase the minimum age for capacity for fault to fourteen years or higher, then the common law of delict can once
again be developed to meet its criminallaw counterpart.
The knockon effects of this development will probably not result in an uncontrollable opening of the floodgates of litigation. After the cases
of Weber and Hendricks, most children who fall in the category of preteens will in any case be found to lack capacity for fault. However, what
the development of the common law of delict on agerelated capacity will do is to bring extra security and protection to children between the
ages
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The counterargument that objectors would raise is that my suggestion allows children to get away with too much. In the criminallaw
again be developed to meet its criminallaw counterpart.
The knockon effects of this development will probably not result in an uncontrollable opening of the floodgates of litigation. After the cases
of Weber and Hendricks, most children who fall in the category of preteens will in any case be found to lack capacity for fault. However, what
the development of the common law of delict on agerelated capacity will do is to bring extra security and protection to children between the
ages of seven and twelve years.
The counterargument that objectors would raise is that my suggestion allows children to get away with too much. In the criminallaw
context, even if perpetrating children lack capacity, they are subject to a number of reformatory and rehabilitative processes. So criminal
children do not simply get away with murder. Serious interventions are made in their lives, even though they do not end up in an adult prison.
The argument would go that the law of delict does not offer the same rehabilitative interventions for contributorily negligent children, and would
allow them to escape liability without consequence. However, I think, a contributorily negligent child who has been driven over by a negligent
driver has probably learned a lesson already. This is so because they are simultaneously victims of a delict and contributors to the commission of
a delict. The physical pain and trauma of the ordeal has probably already effected the correction needed in the child, so that they know to take
better care in future. 141
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Even though the child would be awarded a sum of money for their pain and suffering and other harms suffered, I cannot imagine that a car
accident — in the common factual construction in cases of this nature — does not forever alter the life and thinking of the child victim.
With that said, I am of the view that the rebuttable presumptions that exist in the preteen and teenager phases can be defended on
normative grounds. As Skelton says, children need to be taught to be responsible. 142 Yet, children do not magically wake up one birthday
morning with their minds filled with the philosophy of moral responsibility. Over time, children must learn the importance and value of taking care
and being responsible moral agents in the world, or, as someone interested in the law delict might suggest, learning to be 'reasonable people' in
the cultural tradition of Kruger v Coetzee. In my view, the rebuttable presumptions serve this important function of incrementally introducing
children to what it means to live responsible lives, at age and developmentappropriate moments.
I would concede, though, that perhaps the development that I have proposed here could be limited to the issue of apportionment of
damages only, for the moment. If we take the rising prevalence of socialmedia bullying as one example, we might not want an elevenyearold
to get away with the cybersmear of another child, without the possibility of a court instructing the wrongdoing child to remove the offending
post because of a lack of that child's capacity. The considerations at play in this cyberbullying example are clearly different to those of the child
who meets a car's bumper at considerable speed.
Overall, the really valuable knockon effects of the development proposed here would involve a common law of delict of agerelated capacity
that is more: (i) constitutionally 'woke'; (ii) caring, compassionate and thus transformative; (iii) scientifically and rationally defensible; and (iv)
consistent with international trends that are normatively defensible in a South African context. This development would not be out of step with
the fact that the common law in this area has been subject to much fluctuation over time to meet the needs of an everchanging and ever
learning world.
V Towards the transformation of agerelated capacity for fault in delict

In conclusion, the overall point that I have tried to make here is this: the uncertainty created by academic commentaries on the tension
between the common law and statutory paradigms on agerelated capacity for
2021 SALJ 396
fault can quite easily be remedied by a judicial commonlaw development of some kind based on the constitutional bestinterestsofthechild
standard. I have argued that Van der Walt & Midgley are halfright when they say that the correct answer for the minimumageforcapacity
forfault question lies in the common law of delict, but they are wrong that the answer lies in the common law as we know it today. Neethling &
Potgieter were halfright when they said that the answer perhaps lies in the Child Justice Act, but they were wrong that the answer lies in the
application of the statute itself. Instead, in my view, the most defensible answer perhaps lies in a symbiosis of sorts between the common law,
statute, and the Constitution. At the very least, the common law of delict's minimum age for capacity for fault (modestly, in so far as it relates
to the apportionment of damages) should be increased to twelve years through a development of the common law, to be aligned with the
current minimum age for capacity for fault set by the criminal law. At best, both areas of law need reform to increase the minimum age for
capacity for fault to fourteen years or higher, as long as both systems contain the same criteria. The effect would be that different areas of law
in the South African legal system speak the same constitutional language. And that is what I think a transformative approach to South African
law is partly about.
* An earlier draft of this article was presented at the Private Law and Social Justice Conference held at Nelson Mandela University on 19–20 August 2019.
Helpful comments were received by various conference participants at that event. I have also had meaningful discussions about this topic with and/or feedback
on this article from Cornelius Visser, Andrea Weideman, Gareth Sleigh, Nicola Soekoe and Carron Fick. With that said, I am the factual and legal cause of all
mistakes.
† LLB LLD (Pretoria).
1 This is unequivocally acknowledged by J Neethling & J M Potgieter Law of Delict 8 ed (2020) 4 and Max Loubser & Rob Midgley (eds) The Law of Delict in
South Africa 3 ed (2017) 24. There is a more reluctant acceptance of the existence of a coherent doctrine of fault by Anton Fagan Aquilian Liability in the South
African Law of Delict (2019) 4.
2 Fagan op cit note 1 at 4; Neethling & Potgieter op cit note 1 at 155; and Loubser & Midgley op cit note 1 at 138.
3 See Dantex Investment Holdings v Brenner1989 (1) SA 390 (A) at 396C–E, the correctness of which is questioned by Fagan op cit note 1 at 132ff.
4 Kruger v Coetzee1966 (2) SA 428 (A) at 430E–F.
5 Neethling & Potgieter op cit note 1 at 157; and Loubser & Midgley op cit note 1 at 139.
6 In the context of the law of delict see Weber v Santam1983 (1) SA 381 (A) at 398H; Neethling & Potgieter ibid at 157; and Loubser & Midgley ibid at 139. In
the context of criminal law see Jonathan Burchell Principles of Criminal Law 5 ed (2016) 251ff; and C R Snyman Criminal Law 6 ed (2014) 155ff.
7 See the authorities discussed in part II below.
8 S v Mahlinza1967 (1) SA 408 (A) at 414G–415H; S v Stellmacher1983 (2) SA 181 (SWA) at 182G–183A; and S v Laubscher1988 (1) SA 163 (A) at 166F–
167C.
9 S v Chretien1981 (1) SA 1097 (A) at 1106B–C.
10 This has been the historical position: N J van der Merwe & P J J Olivier Die Onregmatige Daad in die SuidAfrikaanse Reg 2 ed (1970) 104ff; R G McKerron
The Law of Delict 7 ed (1971) 82–3; P Q R Boberg The Law of Delict: Aquilian Liability (1984) 659ff (interestingly discussed in the context of contributory
negligence and not the doctrine of fault as a broader concept) which laid the foundation for Rayelene Keightley 'Capacity to be held accountable for wrongdoing'
in Belinda van Heerden et al (eds) Boberg's Law of Persons and Family 2 ed (1999) 855ff. The same historic view is taken in the more recent text by Trynie
Boezaart Law of Persons 6 ed (2016) 49ff.
11 Act 75 of 2008.
12 J C van der Walt & J R Midgley 'Delict' in W A Joubert (founding ed) The Law of South Africa vol 4 3 ed (2016) para 136.
13 Van der Walt & Midgley ibid para 136; cf Loubser & Midgley op cit note 1 at 105.
14 J Neethling & J M Potgieter NeethlingPotgieterVisser Law of Delict 7 ed (2015) 131.
15 First, Neethling teamed up with his colleague from the University of the Free State to renounce the position conveyed in the seventh edition in RM Jansen &
J Neethling 'Delictual capacity and (contributory) negligence of minors' (2017) 80 THRHR 474. I will deal with their argument in more detail below. Thereafter,
Neethling & Potgieter published the eighth edition of their textbook, which endorses the propositions conveyed in the piece by Jansen & Neethling. See in this
regard Neethling & Potgieter op cit note 1 at 158.
16 Act 28 of 2019.
17 The issue of the difference between the age brackets for delictual versus criminal capacity for fault has been addressed before by Ferdinand Heinrich
Hermann Kehrhahn Delictual Accountability and Criminal Capacity of a Child: Why the Age Difference? (unpublished LLM dissertation, University of Pretoria,
2017). However, the tension between the common law of delict on agerelated capacity for fault and the Child Justice Act's potential application to delictual
disputes is a problem that still deserves specific attention. Interestingly, a similar tension exists between the common law of contract and provisions in the
Consumer Protection Act 68 of 2008 in so far as the contractual capacity of children is involved. The tension in the law of contract is identified by Deeksha Bhana
& C J Visser 'The capacity of a minor to enter into a consumer contract: A reconciliation of section 39 of the Consumer Protection Act and the common law'
(2014) 77 THRHR 177. I draw inspiration from their ideas later on in this article.
18 It is of course possible for children to cause harm in other ways to other people, for example throwing rocks through car windows. Even if the child is found
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their child. However, if the child has acted with fault, creative arguments can be made about why the parents ought to be held vicariously liable for the misdeeds
2017). However, the tension between the common law of delict on agerelated capacity for fault and the Child Justice Act's potential application to delictual
disputes is a problem that still deserves specific attention. Interestingly, a similar tension exists between the common law of contract and provisions in the
Consumer Protection Act 68 of 2008 in so far as the contractual capacity of children is involved. The tension in the law of contract is identified by Deeksha Bhana
& C J Visser 'The capacity of a minor to enter into a consumer contract: A reconciliation of section 39 of the Consumer Protection Act and the common law'
(2014) 77 THRHR 177. I draw inspiration from their ideas later on in this article.
18 It is of course possible for children to cause harm in other ways to other people, for example throwing rocks through car windows. Even if the child is found
to have acted without fault on account of a lack of capacity, in such a case liability might lie against the parents for their negligent and wrongful failure to control
their child. However, if the child has acted with fault, creative arguments can be made about why the parents ought to be held vicariously liable for the misdeeds
of their children. See in this regard J M Potgieter 'Preliminary thoughts on whether vicarious liability should be extended to the parentchild relationship' (2011)
32 Obiter 189 at 193ff.
19 Act 34 of 1956. Section 1(1)(a) reads: 'Where any person suffers damage which is caused partly by his own fault and partly by the fault of any other
person, a claim in respect of that damage shall not be defeated by reason of the fault of the claimant but the damages recoverable in respect thereof shall be
reduced by the court to such extent as the court may deem just and equitable having regard to the degree in which the claimant was at fault in relation to the
damage.'
20 This simple but reliable method for apportionment was applied in South British Insurance v Smit1962 (3) SA 826 (A) at 838A–F and AA Mutual Insurance
Association v Nomeka1976 (3) SA 45 (A) at 56D–E. Comparable but distinct methods for apportionment featured in Jones NO v Santam1965 (2) SA 542 (A) at
555D–556D; General Accident Versekeringsmaatskappy v Uijs1993 (4) SA 228 (A) at 235B–I; and Transnet t/a Matro [sic] Rail v Tshabalala 2006 JDR 0225
(SCA) para 9.
21 1963 (2) SA 642 (A).
22 De Bruyn NO v Minister van Vervoer1960 (3) SA 820 (O).
23 Van Oudtshoorn supra note 21 at 648H–649A.
24 D 9 2 5 2.
25 Voet Commentarius ad Pandectas 9 2 29.
26 De Bruyn supra note 22 at 825A–H.
27 1975 (3) SA 761 (A) at 765H.
28 Jones supra note 20 at 552B; Roxa supra note 27 at 765H.
29 Weber supra note 6 at 390B–C.
30 Eskom v Hendricks2005 (5) SA 503 (SCA) para 16.
31 C J Davel 'The delictual accountability and criminal capacity of a child: How big can the gap be?' (2011) 34 De Jure 604 at 607 writes that 'it is unthinkable
that accountability in delict could depend on a person's gender: If we adhere strictly to the common law then a girl of thirteen will be presumed to be culpae
capax whereas a thirteen year old boy will be presumed culpae incapax. Hopefully we have reached the stage where it is accepted that sexual maturity has
nothing to do with accountability and that the age limit is fourteen years for both girls and boys. . . . It has already been pointed out that differentiation in this
regard would amount to discrimination based on gender . . . .
32 Weber supra note 6 at 399G; and Hendricks supra note 30 para 16. The question was originally theoretically left open in Jones supra note 20 at 553B and
the Roxa supra note 27 at 765H–766A, although those cases implicitly and practically already applied a rebuttable presumption.
33 Jones supra note 20 at 554A–B.
34 Ibid at 554C–F.
35 Roxa supra note 27 at 768A–B.
36 Weber supra note 6 at 402F.
37 Ibid at 400B–D.
38 Ibid at 400F.
39 Ibid at 402F–G.
40 Hendricks supra note 30 paras 19–22.
41 Ibid para 22.
42 Weber supra note 6 at 399C.
43 Marelize Isabel Schoeman 'Determining the age of criminal capacity' (2016) 57 SA Crime Quarterly 35 at 36.
44 Hendricks supra note 30 para 16.
45 Section 17 of the Children's Act 38 of 2005.
46 Van der Walt & Midgley op cit note 12 para 126.
47 Weber supra note 6 at 398H.
48 See generally Michelle Karels & Letitia Pienaar 'Determination of criminal capacity for child offenders — Interfacing the procedural requirements of the Child
Justice and Criminal Procedure Act' (2015) 36 Obiter 57 at 58–60.
49 Kehrhahn op cit note 17 at 17–18.
50 See J SlothNielsen & J Gallinetti 'Just say sorry? Ubuntu, Africanisation and the child justice system in the Child Justice Act 75 of 2008' (2011) 14 PELJ 63 at
70–1; Annette van der Merwe 'A new role for crime victims? An evaluation of restorative justice procedures in the Child Justice Act 2008' (2013) 46 De Jure 1022
at 1024–5.
51 Section 9(1).
52 Section 9(2).
53 Section 9(5).
54 Section 10(2)(a). The detailed provisions of the diversion process are laid out in chap 6 of the Act. See generally in this regard Charmaine Badenhorst
'Diversion provisions in terms of the Child Justice Act 75 of 2008' (2013) 26 SACJ 302; and Jamil Ddamulira Mujuzi 'Diversion in the South African criminal justice
system: Emerging jurisprudence' (2015) 28 SACJ 50. Neither Badenhorst nor Mujuzi mention the possible application of the diversion process to delictual
disputes.
55 See generally S S Terblanche 'The Child Justice Act: Procedural sentencing issues' (2013) 16 PELJ 321, who discusses special arrangements made for child
offenders in terms of presentencing reports (322), victim impact statements (330), and appeal and review procedures (333). The word 'delict' does not appear
in that contribution even once.
56 Michelle Karels 'Financial liability and child offenders in South Africa' (2017) 38 Obiter 74 at 76 notes that the Child Justice Act makes provision for
'compensation orders' in terms of s 53(3)(p). However, such an order is said to be ancillary to the commission of an offence and should not be understood to
create a statutory delict per se.
57 A similar line of reasoning is followed by Jansen & Neethling op cit note 15 at 476 and Trynie Boezaart 'Toerekeningsvatbaarheid van kinders in die Suid
Afrikaanse deliktereg' in Patrick O'Brien & Engela Schlemmer (eds) Liber Amicorum JC Sonnekus (2017) 68 at 74–6.
58 Karl E Klare 'Legal culture and transformative constitutionalism' (1998) 14 SAJHR 146 at 150.
59 See Stuart Woolman & Dennis Davis 'The last laugh: Du Plessis v De Klerk, classical liberalism, creole liberalism and the application of fundamental rights
under the interim and final constitutions' (1996) 12 SAJHR 361 at 382ff.
60 See N Ntlama 'The application of section 8(3) of the Constitution in the development of customary law values in South Africa's new constitutional
dispensation' (2012) 15 PELJ 24 at 38–9.
61 J Neethling 'Enkele gedagtes oor die juridiese aard en inhoud van menseregte en fundamentele vryhede' (1971) 34 THRHR 240 at 248–9.
62 This point is most clearly and explicitly made by Deeksha Bhana & C J Visser 'The concurrence of breach of contract and delict in a constitutional context'
(2019) 35 SAJHR 94 at 112, and was also implicitly endorsed by the Constitutional Court in Loureiro v iMvula Quality Protection2014 (3) SA 394 (CC) para 56.
63 I have made the link between these constitutional rights and the common law before in Emile Zitzke 'Critiquing the Komape decision' 2019 TSAR 814 at
825, and the Supreme Court of Appeal recently also implicitly endorsed this constitution/commonlaw interface in Komape v Minister of Basic Education2020 (2)
SA 347 (SCA) para 59.
64 This was authoritatively laid down in Khumalo v Holomisa2002 (5) SA 401 (CC) para 27. See also François du Bois 'Punishment, reparation and the
evolution of private law: The actio iniuriarum in a changing world' 2019 Acta Juridica 229 at 259; and Jonathan Burchell 'Protecting dignity under common law
and the Constitution: The significance of crimen iniuria in South African criminal law' (2014) 27 SACJ 250 at 252.
65 Ex parte Minister of Safety and Security: In re S v Walters2002 (4) SA 613 (CC) para 30; and Zealand v Minister of Justice and Constitutional
Development2008 (4) SA 458 (CC) para 22. See also Johan Scott 'Wrongful arrest: A brief survey of the impact of the constitution in recent case law' (2009) 30
Obiter 724 at 724–5.
66 NM v Smith (Freedom of Expression Institute as Amicus Curiae)2007 (5) SA 250 (CC) para 29. See also Glenn Penfold & Dario Milo 'Media freedom and law
of privacy' (2008) 1 Constitutional Court Review 311 at 315.
67 See eg Hannes Rösler 'The relationship of constitutional and private law in Germany' (2009) 24 SAPL 407 at 431.
68 A notable example relates to the proliferation of rules related to the actionability of omissions in the law of delict. See in this regard Duard Kleyn & Emile
Zitzke 'The omissions in Oppelt' (2018) 24 Fundamina 58 at 67ff.
69 A classic example is the abrogation of the crime of adultery in Green v Fitzgerald1914 AD 88 at 103.
70 Anton Fagan 'The secondary role of the spirit, purport and objects of the Bill of Rights' (2010) 127 SALJ 611 at 621–2; Dennis Davis & Karl Klare
'Transformative constitutionalism and the common and customary law' (2010) 26 SAJHR 403 at 428; Dennis Davis 'How many positivist legal philosophers can be
made to dance on the head of a pin? A reply to Professor Fagan' (2012) 129 SALJ 59; Deeksha Bhana 'The horizontal application of the Bill of Rights: A
reconciliation of sections 8 and 39 of the Constitution' (2012) 28 SAJHR 351 at 373–4; and Nick Friedman 'The South African common law and the Constitution:
Revisiting horizontality' (2014) 30 SAJHR 63 at 74.
71 Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening)2001 (4) SA 938 (CC).
72 Ibid para 33.
73 Ibid para 40.
74 Ibid para 43.
75 Ibid paras 37–8.
made to dance on the head of a pin? A reply to Professor Fagan' (2012) 129 SALJ 59; Deeksha Bhana 'The horizontal application of the Bill of Rights: A
reconciliation of sections 8 and 39 of the Constitution' (2012) 28 SAJHR 351 at 373–4; and Nick Friedman 'The South African common law and the Constitution:
Revisiting horizontality' (2014) 30 SAJHR 63 at 74.
71 Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening)2001 (4) SA 938 (CC).
72 Ibid para 33.
73 Ibid para 40.
74 Ibid para 43.
76 Ibid para 29.
77 Ibid para 44.
78 Ibid para 61.
80 Ibid paras 48–9, 73.
81 The Constitutional Court referred the matter back to the courts below it to reconsider the matter in light of the Constitution with proper evidence being led.
The final word on the element of wrongfulness in this case culminated with the judgment in Minister of Safety and Security v Carmichele2004 (3) SA 305 (SCA)
paras 29–44. See also J Neethling 'Die Carmichelesage kom tot 'n gelukkige einde' 2005 TSAR 402.
82 See however the doubt expressed by Johan van der Walt 'Horizontal application of fundamental rights and the threshold of the law in view of the Carmichele
saga' (2003) 19 SAJHR 517 at 519 as to whether the common law was really irreparably out of step with the Constitution.
83 Carmichele supra note 71 para 37.
84 See the Constitutional Court decisions in Loureiro supra note 62 para 53; Oppelt v Department of Health, Western Cape2016 (1) SA 325 (CC) para 51; and
Mashongwa v Passenger Rail Agency of South Africa2016 (3) SA 528 (CC) para 23.
85 DE v RH2015 (5) SA 83 (CC) paras 16–21 read with para 65.
86 2005 (6) SA 419 (CC).
88 Ibid para 14.
90 Ibid para 44. Whether the Constitutional Court properly understood the common law on vicarious liability is a question for another day. In the meantime,
see Anton Fagan 'The confusions of K' (2009) 126 SALJ 156.
91 2002 (5) SA 401 (CC).
92 Ibid para 2.
93 Ibid para 18.
94 Ibid para 35.
97 Ibid para 45.
98 See in this regard Alistair Price 'The influence of human rights on private common law' (2012) 129 SALJ 330 at 338ff.
99 mighty Solutions t/a Orlando Service Station v Engen Petroleum2016 (1) SA 621 (CC) para 38.
100 Bhana & Visser op cit note 17 at 187ff also argue that the bestinterestsofthechild standard ought to be used to resolve the tension between agerelated
contractual capacity at common law and in the Consumer Protection Act. They also suggest a development of the common law to meet the statutory criteria.
101 Adrian Friedman, Angelo Pantazis & Ann Skelton 'Children's rights' in Stuart Woolman & Michael Bishop (eds) Constitutional Law of South Africa (Revision
Service 1, 2008) 4740.
102 Ibid at 4740 to 4741, relying on Bannatyne v Bannatyne (Commission for Gender Equality as Amicus Curiae)2003 (2) SA 363 (CC) paras 26–8 as
authority for this proposition.
103 Ibid at 4741 to 4742.
104 Case v Minister of Safety and Security; Curtis v Minister of Safety and Security1996 (1) SACR 587 (CC) paras 91 and 97.
105 Ibid paras 105–7; and De Reuck v Director of Public Prosecutions, Witwatersrand Local Division2004 (1) SA 406 (CC) paras 89–91.
106 Friedman, Pantazis & Skelton op cit note 101 at 4741 to 4743.
107 Relying on Minister for Welfare and Population Development v Fitzpatrick2000 (3) SA 422 (CC) para 20.
108 2007 (2) SACR 539 (CC) paras 25–6.
109 See also Ann Skelton 'Proposals for the review of the minimum age of criminal responsibility' (2013) 26 SACJ 257 at 271.
110 Davel op cit note 31 at 607.
111 Skelton op cit note 109 at 272.
112 Lorenzo Wakefield 'The CRC in South Africa 15 years on: Does the new Child Justice Act 75 of 2008 comply with international children's rights
instruments?' (2011) 62 Northern Ireland Legal Quarterly 167 at 181–2; Skelton ibid at 273 and Kehrhahn op cit note 17 at 72 make strong arguments in this
regard. S N Chisora The Criminal Capacity of Child Offenders in South Africa Revisited (unpublished LLM dissertation, North West University, 2016) 61 merely
hints at this.
113 Jansen & Neethling op cit note 15 at 476. See also Boezaart op cit note 57 at 74–6.
114 This point is made most explicitly by Shelley Walker 'The requirements for criminal capacity in section 11(1) of the new Child Justice Act, 2008: A step in
the wrong direction?' (2011) 24 SACJ 33 at 36.
115 Kehrhahn op cit note 17 at 40–1.
116 See also Chisora op cit note 112 at 51.
118 Children's Act 38 of 2005, ss 129 and 134.
119 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, ss 15–16.
120 Van der Walt & Midgley op cit note 12 paras 7–18; Neethling & Potgieter op cit note 1 at 8–17; and Loubser & Midgley op cit note 1 at 18–20.
121 Dutch Code of Criminal Procedure, s 486.
122 Dutch Civil Code, s 6:164.
123 Raad voor Strafrechtstoepassing en Jeugdbescherming Verhoging Strafrechtelijke Minimumleeftijd in Context (2017) 27, available at
https://www.rsj.nl/documenten/rapporten/2017/12/20/adviesverhogingstrafrechtelijkeleeftijd, accessed on 6 November 2020.
124 Ibid.
125 See Emile Zitzke 'A brief note on the primacy of the Constitution in the common law's development' (2016) 31 SA Public Law 232 at 237–8.
126 Charmain Badenhorst Criminal Capacity of Children (unpublished DLitt et Phil thesis, Unisa, 2006).
127 Ibid at 3–4.
128 Ibid at 148.
129 Ibid at 149.
130 Anne L KramersOlen 'Neuroscience, moral development, criminal capacity, and the Child Justice Act: Justice or injustice?' (2015) 45 SA Journal of
Psychology 466.
131 Ibid at 467.
132 Ibid at 475.
133 Ibid at 475.
134 Anthony L Pillay 'Deliberating the minimum age of criminal responsibility' (2015) 45 SA Journal of Psychology 143 at 145.
135 Cf Jansen & Neethling op cit note 15 at 482, who instead suggest that we should perhaps do away with the irrebuttable presumption of incapacity for
infants, saying that even children under seven years should potentially be able to be found to have capacity for fault if they meet the classical criteria of
cognition and conation. Even though this could be a doctrinally sound approach if our aim is to pledge unequivocal allegiance to those two criteria, it seems to me
that the international and comparative law canvassed above points in the opposite direction of weighing the protection of children heavier than turning cognition
and conation into lodestar requirements.
136 The former would be done through s 39(2), and the latter would be done through s 172, of the Constitution.
137 Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs2006 (1) SA 524 (CC).
138 Ibid para 156.
139 Davel op cit note 31 at 609 and her more recent take in Boezaart op cit note 57 at 80–1.
140 Kehrhahn op cit note 17 at 71.
141 I do not want to be misunderstood as saying that children should learn via physical pain only. I am a supporter of the abolition of corporal punishment in
all contexts as laid down in Freedom of Religion South Africa v Minister of Justice and Constitutional Development2020 (1) SA 1 (CC). However, it is probably
accurate to suggest that children who make bad decisions that lead to accidental pain will potentially learn a lesson from it. Children who climb a shaky tree that
they were told not to, and then fall and hurt an arm, are unlikely to make the same mistake again. In some ways, I guess we all learn something from hurt,
whether we are children or adults.
all contexts as laid down in Freedom of Religion South Africa v Minister of Justice and Constitutional Development2020 (1) SA 1 (CC). However, it is probably
accurate to suggest that children who make bad decisions that lead to accidental pain will potentially learn a lesson from it. Children who climb a shaky tree that
they were told not to, and then fall and hurt an arm, are unlikely to make the same mistake again. In some ways, I guess we all learn something from hurt,
whether we are children or adults.

Transforming Age-Related Capacity For Fault in Delict

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Transforming age­related capacity for fault in delict *

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II The common­law paradigm

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(d) Teenagers (and majors)

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III The statutory paradigm

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IV Resolving the tension through transformation

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(b) The development clauses

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(c) The constitutional rights at stake

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(d) The proposed development and its knock­on effects

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Transforming agerelated capacity for fault in delict *

II The commonlaw paradigm

(d) The proposed development and its knockon effects

V Towards the transformation of agerelated capacity for fault in delict