Child age and legal capacity checker

South African law does not treat childhood as one state that ends at 18. A child acquires legal capacities one at a time, at ages fixed in a dozen different statutes: the capacity to be prosecuted at 12, to consent to medical treatment at 12, to witness a will at 14, to make one at 16, to consent to sex at 16, to hold a learner's licence at 17, and to contract, marry and vote without anyone's consent at 18. This checker takes a child's date of birth and shows which capacities the child has now and the date each of the rest arrives. It is for parents, teachers, social workers and the children themselves, and for anyone who has been told "they're a minor, so they can't" and wants to know whether that is true.

Several of the ages changed in 2022, when the minimum age of criminal capacity rose from 10 to 12, and the checker reads them from a dated rate table so that the next change is applied in one place.

What this calculator works out and who it is for

You enter the child's date of birth and, if you want a date other than today, the date to check. The checker returns the child's age, each capacity the child has already reached with the age it arrived and the statute behind it, and each capacity not yet reached with the date it will arrive. It adds warnings specific to the age: the position of a child under 12 who is involved with the police, the proof the State must bring for a child between 12 and 14, the limits on a minor's contracts, and the marriage ages.

How the calculation works

The checker calculates the child's age in completed years on the date you choose. It holds a list of twelve capacities, each with the age at which it arrives, and splits them into those at or below the child's age and those above. For the ones not yet reached it adds the required age to the date of birth to give the date. The capacities, in age order, are: criminal capacity at 12, medical consent at 12, consent to an HIV test at 12, access to contraceptives at 12, witnessing a will at 14, the presumption of criminal capacity at 14, making a will at 16, consent to sexual activity at 16, a learner's licence for a light motorcycle at 16, a learner's licence for a car at 17, majority at 18, and buying alcohol at 18.

The law behind the numbers

Section 17 of the Children's Act 38 of 2005 fixed the age of majority at 18, down from 21. Below 18 a child is a minor: under the common law a minor under seven has no capacity to act, and a minor from seven to 18 has limited capacity and needs a guardian's assistance to contract, to sue or be sued and to marry, with exceptions for small everyday transactions, for necessaries, and for a minor who has been emancipated by the guardian. A contract made by a minor alone is unenforceable against the minor but binds the other party, which is why banks and landlords will not deal with a 17-year-old. The Children's Act then carves out specific capacities at specific ages. Section 129 allows a child of 12 to consent to their own medical treatment, and to an operation with a parent's assistance, if the child is of sufficient maturity and mental capacity to understand the benefits, risks, social and other implications; section 130 allows a child of 12, or younger if sufficiently mature, to consent to an HIV test; section 134 allows a child of 12 to obtain condoms and, on request and with medical advice, other contraceptives, without parental consent. The Choice on Termination of Pregnancy Act 92 of 1996 allows a girl of any age to consent to a termination, with the practitioner required to advise her to consult her parents but not to insist on it.

The Child Justice Act 75 of 2008 sets the ages of criminal capacity. As amended by the Child Justice Amendment Act 28 of 2019, in force from 19 August 2022, section 7 provides that a child under 12 does not have criminal capacity and cannot be prosecuted, and must be dealt with under section 9 by referral to a probation officer; a child of 12 but under 14 is presumed to lack criminal capacity, and the State must prove beyond reasonable doubt that the child could appreciate the difference between right and wrong and act in accordance with that appreciation; a child of 14 or older is presumed to have capacity like an adult but is still dealt with under the Act, with its assessment, preliminary inquiry and diversion. The guide to what happens if a child is arrested walks through that process.

The Wills Act 7 of 1953 allows a person of 16 to make a will under section 4 and a person of 14 to witness one under section 1. The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 sets the age of consent to sexual activity at 16 in sections 15 and 16; after the Constitutional Court's decision in the Teddy Bear Clinic case and the 2015 amendment, consensual acts between children of 12 to 15, or where one is 16 or 17 and the other within two years, are not prosecuted. The National Road Traffic Regulations allow a learner's licence for a motorcycle up to 125 cubic centimetres at 16 and for a light motor vehicle at 17, with the driving licence test from 18. The Liquor Act 59 of 2003 prohibits the sale of liquor to a person under 18.

Marriage is the capacity in flux. The Marriage Act 25 of 1961 requires a minor to have the consent of both parents or guardians, or of the Children's Court, to marry, and section 26 requires the Minister's written consent for a boy under 18 or a girl under 15. The Children's Act prohibits a child below the minimum age for a valid marriage from being given out in marriage. The Marriage Bill before Parliament would set 18 as the minimum age for everyone, in line with the Recognition of Customary Marriages Act's position and the Constitutional Court's concern about child marriage; until it is enacted the 1961 Act's ages stand, and the checker says so.

The ages are the law's floor. A child's actual maturity, the parents' views, and the best interests of the child under section 28(2) of the Constitution and section 9 of the Children's Act bear on how each capacity is exercised in practice, and the guide to custody and guardianship explains who decides for a child who cannot yet decide alone.

Worked example

Kagiso was born on 1 June 2013. His mother is checking on 15 October 2026, when he is 13.

The checker shows four capacities reached: criminal capacity from 12, so he can be prosecuted but the State must prove he knew right from wrong because he is under 14; consent to his own medical treatment from 12 if he is mature enough, with a parent's assistance for an operation; consent to an HIV test from 12; and access to contraceptives from 12. It shows eight not yet reached with their dates: witnessing a will and the presumption of criminal capacity from 1 June 2027; making a will, consenting to sex and a motorcycle learner's licence from 1 June 2029; a car learner's licence from 1 June 2030; and majority and buying alcohol from 1 June 2031. It warns that between 12 and 14 the State carries the burden on capacity, that he cannot contract or litigate without a guardian until 18, and about the marriage ages.

Had Kagiso been born in 2010 he would be 16, with nine capacities reached, including making a will and consenting to sex, and the warning about the State's burden would fall away because at 14 and over he is presumed to have capacity. Had he been born in 2016 he would be ten, with none reached, and the first warning would be that a child under 12 cannot be arrested or charged and must be handed to a parent and referred to a probation officer.

What the calculator does not include

It does not assess maturity. The medical consent capacities at 12 depend on the child being of sufficient maturity and mental capacity, which the practitioner judges; the checker shows the age at which the question arises.

It does not deal with emancipation, under which a guardian allows a minor to live independently and contract within that independence, or with the capacity of a married minor, who is treated as a major for most purposes.

It does not cover the capacities of a child with a disability, where curatorship and the Mental Health Care Act may apply beyond 18.

It does not deal with school attendance, which is compulsory from the year the child turns seven to the year the child turns 15 or completes grade 9 under the Schools Act, or with employment, which the Basic Conditions of Employment Act prohibits under 15.

It does not deal with the age at which a child may be left alone, which the law does not fix, or with the age at which a child's views carry weight in family proceedings, which is a question of maturity under section 10 of the Children's Act.

When to get advice

If a child under 14 is involved with the police, get a lawyer or Legal Aid immediately, because the capacity question is decided early and badly handled assessments follow the child. If a practitioner is refusing treatment a child of 12 or older has consented to, or giving it against a parent's wishes, the Children's Act sections above decide it and a hospital's legal department will know them. If a minor has signed a contract, a lease or a credit agreement, the contract is unenforceable against the minor and a letter saying so usually ends it. If a marriage of a person under 18 is proposed, get advice before any ceremony, because the law is changing and a marriage without the required consents is voidable. For disputes about what a child may decide and who decides for them, the Children's Court is designed to be approached without a lawyer.

Frequently asked questions

At what age can a child be charged with a crime in South Africa? From 12, under the Child Justice Act as amended in 2022. Under 12 a child has no criminal capacity and is referred to a probation officer. From 12 to 13 the State must prove the child could tell right from wrong; from 14 capacity is presumed.

At what age can a child consent to medical treatment? From 12, under section 129 of the Children's Act, if the child is mature enough to understand the treatment. An operation also needs a parent's assistance. A child of 12 can also consent to an HIV test and obtain contraceptives.

At what age can a child make a will? From 16, under section 4 of the Wills Act. A child of 14 can witness a will.

At what age can a child get a learner's licence? At 16 for a motorcycle up to 125 cc and at 17 for a car. The driving licence test is from 18.

Can a minor sign a contract? Not alone, except for small everyday transactions and necessaries. A contract signed by a minor without a guardian's assistance is unenforceable against the minor, though it may bind the other party.

At what age can a child marry? Under 18 only with the consent of both parents or the Children's Court, and under the Marriage Act the Minister's consent is needed for a boy under 18 or a girl under 15. The Marriage Bill would make 18 the minimum for everyone; until it is law, these are the ages.

When does a child become an adult? At 18, under section 17 of the Children's Act. From then the person may contract, sue, marry and vote without anyone's consent.