Section 14 of the Children’s Act 38 of 2005 and the child’s capacity to litigate

Abstract

Section 14 of the Children’s Act provides that every child has the right to bring, and to be assisted in bringing a matter to a court. In this contribution section 14 and the effect thereof on a child’s capacity to litigate are analysed. The aim of this article is to investigate the common-law rules applicable to a child as a party to litigation in South Africa. Furthermore, it is to determine to what extent section 14 has amended the common-law restrictions and how these restrictions were managed in the past. The development of the role of the curator ad litem by the judiciary is commented on. The Constitution in section 28(1)(h) grants a child a right to have a legal practitioner at state expense to render assistance to the minor in civil proceedings affecting the child, if the failure to do so would otherwise result in substantial injustice. The distinct roles of a curator ad litem and a section 28(1)(h) representative were clarified in case law. Although section 14, together with section 10 of the Children’s Act, make a contribution towards children’s participation in legal proceedings, it is submitted that section 14 does not dispose of the formal requirements of the common law applying to litigation by or on behalf of a child.