Legal Capacity

Question 1

What is Legal Capacity?

Answer 1

• the capacity to be the bearer of rights and duties.
• all legal subjects have legal capacity.
• factors such as age and mental health play a role in determining a persons capacity.
• includes capacity to act, capacity to be accountable and capacity to litigate.

Question 2

1. Capacity to Act

Answer 2

• refers to the capacity to perform juristic acts ( acts that have legal consequence attached to them ).
• there is Full capacity, limited capacity and no capacity to act.

Question 3

1.1 Full capacity to Act

Answer 3

• most major persons (18 and above or below 18 and married).
• may perform all juristic acts with some limitations.
• some major persons may not have this capacity if they have a mental disability or are in a coma.

Question 4

1.2 Limited Capacity to Act

Answer 4

• Minors between 7-18 years old.

- may perform some juristic acts themselves but require the permission of their guardians/parents to perform others.

Question 5

1.3 No Capacity to Act

Answer 5

• Children below 7 or those with psychological disabilities.
• may perform NO juristic acts themselves and require their guardian/parents to do it on behalf of them.

Question 6

2. Capacity to be held Accountable

Answer 6

• the ability to be held delictualy/criminally liable for your actions and knowing the difference between right and wrong.
• if a person is not able to do so, they are known as DOLT ET CULPA INCAPAX which means you cannot posses intention or negligence.
• together they form ‘Fault’.
• ‘Fault’ in the form of intention or negligence forms part of delictual liability.

Question 7

2.1 Accountability for Delictual Acts

Answer 7

• only some children may be held delictualy responsible for their actions.
• accountability for children is based on the presumption that you either lack/posses delictual responsibility which protect the vulnerable from the law.

A. Irrebuttable Presumption: A presumption that cannot be challenged or refuted:
- children under the age of 7 are irrebuttable presumed to lack delictual responsibility.

B. Rebuttable Presumption: A presumption that can be challenged or refuted:

• children between 7 and 14 are rebuttably presumed to lack delictual responsibility.
• children between 14 and 18 are rebuttably presumed to posses delictual responsibility.

Question 8

2.2 Accountability for Criminal Acts

Answer 8

• the Child Justice Amendment Act increased the age of criminal capacity from 10 to 12.
• Children younger than 12 are irrebuttable presumed to lack criminal responsibility.
• Children between 12-14 are rebuttable presumed to lack criminal responsibility.
• Children between 14-18 are rebuttable presumed to posses criminal responsibility.