AGE IS NOT JUST A NUMBER…

… especially when it pertains to contractual capacity and the protection of a minor’s personal information.

In the below article we will attempt to tackle several aspects regarding minors, such as: –

  1. Who is a minor?
  2. What contractual capacity does a minor possess?
  3. How far does the consent of a Guardian extend?
  4. What is the POPI Act ;
  5. is the  POPI Act important, especially when it comes to minors?
  1. Who is a minor?

A minor is any child up and until the age of 18 and thus lacks full contractual capacity, bearing a few exceptions in mind as listed in Section 17 of the Children’s Act 38 of 2005. Thus, the lack of full contractual capacity means that the child cannot litigate or enter into a contract without obtaining the consent of a guardian/parent before or after the conclusion of the contract.

  • What contractual capacity does a minor possess?

However, a minor between the ages of 7 and 18 still has a certain level of contractual capacity depending on their age & the specific scenario at hand. Any minor under the age of 7 is deemed to have no contractual capacity and thus will always require a guardian to contract on their behalf.

  • How far does the consent of a Guardian extend?

In order to uphold Sec28(2) of the Constitution, a general rule was created entailing that once a child has turned 7 any contract the child enters into will not be enforceable without the guardian’s consent.

However, it is important to keep in mind that there are always exceptions to the rule.

In instances where there was no consent given by the guardian and to uphold the rights of the minor, the minor will not be bound by the contract but the other party in the contract is, allowing the minor to elect or to repudiate the contract.

If a guardian, through acting in bad faith or irrationally, refuses to consent to a contract that would benefit the minor, the court might consent on the child’s behalf.

Keeping the above factors in mind, it is important to note that the Protection of Personal Information Act (POPI Act) comes into play on a large scale when considering the information required in order to enter into any contract between two parties and the processing of such personal information.

The POPI Act is new legislation pertaining to privacy law that protects the confidentiality and integrity of private information. The POPI Act thus instructs companies to carefully manage the data processing and preservation of Personal Information as well as provide certain standards to which they must adhere.

  • Why is the POPI Act   important, especially when it comes to minors?

We can so far state that minors are vulnerable and therefore the processing of their personal information is prohibited as stated in Sec 34 of the POPI Act.

However, Section 35 of the POPI Act entails that a minor’s information can be used in the following circumstances: –

  1. A guardian provided consent;
  2. It is necessary to establish, exercise, or defend a right or obligation ‘in law’;
  3. For historical, statistical, or research purposes for the service of public interest (and to obtain consent from a guardian would be impossible/impractical), as well as such entity, will have to provide guarantees that the privacy of the child will not be affected;

It is best to always obtain the child’s information directly from the parent or guardian. As a result, the act of handing over the information doubles as authorization to use it, as long as the parent is aware of the information’s intended purpose. 

Should you have any concerns regarding the protection of your child’s personal information and the contractual capacity applicable to your child, our offices welcome you to contact us in order to obtain further clarity.