The effect of customary law on the capacity of the child

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Factors that determined and influenced the child’s status

Numerous authors over the centuries have compiled their own systems of dealing with the rights of children. However, the focus in this study will be on rights and competencies which influenced the daily lives of children. The complete antithesis of the best interest of the child was to be found in Roman law in the existence of the paterfamilias. The paternal power in Roman law was a power existing entirely in the interests of the father.33 It is against this background that the development of child participation in Roman law must be viewed.
If one peruses the development of what became known as the jurisprudence of Roman law, the opportune period to start would be with the Lex Duodecim Tabularum.34 The main aim is not to digest the development from the Tabularum35 up to Justinian in its entirety, as that would be a study in itself. The objective is to determine the position of the child’s participation as reflected in the Corpus Iuris Civilis as the epitome of the development during the Roman period.
The child in Roman law ideally would be born of a Roman marriage of Roman parents.36 The scope of this study does not allow for a detailed discussion of all the possibilities which would be open to a child not in the position to acquire such status.
Roman law answered the question of status38 differently for each category of human being. Status denoted the legal position of a human being in general.39 Kaser40 holds the view that status did not denote legal subjectivity as it is understood today, but simply indicated the legal position of a human being in general.

CHAPTER 1 INTRODUCTION
1 1 Reflection on the theory of child participation and representation in legal matters
1 1 1 The context
1 1 2 Terminology
1 2 Method employed with research
1 2 1 Outlining the development of child participation and representation
1 2 2 The value of comparative legal research
1 2 3 Terms of reference for the research method employed
1 2 4 Overview of historical development
1 3 Outline of chapters
1 4 Conclusion
CHAPTER 2 HISTORICAL OVERVIEW OF CHILD PARTICIPATION AND REPRESENTATION
2 1 Roman law
2 1 1 Introduction
2 1 2 Definition of “child”
2 1 2 1 The beginning of legal subjectivity
2 1 2 2 The protection of the unborn child’s interests
2 1 3 Factors that determined and influenced the child’s status
2 1 4 Paternal power and authority
2 1 5 Age
2 1 5 1 Infans
2 1 5 1 1 Legal capacity
2 1 5 1 2 Capacity to act
2 1 5 1 3 Criminal and delictual accountability
2 1 5 2 Minor
2 1 5 2 1 Legal capacity
2 1 5 2 2 Capacity to act
2 1 5 2 3 Capacity to litigate
2 1 5 2 4 Criminal and delictual accountability
2 1 6 Rights of a child born of an unmarried father
2 1 7 Gender
2 1 8 Guardianship
2 1 8 1 Tutela
2 1 8 2 Cura minorum
2 1 9 Termination of minority
2 1 10 Child representation in Roman Law
2 2 Germanic law
2 2 1 Introduction
2 2 2 Definition of “child”
2 2 3 Paternal authority
2 2 4 Age
2 2 5 Legal capacity
2 3 Frankish law
2 3 1 Introduction
2 3 2 Definition of “child”
2 3 3 Paternal authority
2 3 4 Age
2 3 5 Representation of children in legal matters
2 4 Roman-Dutch law
2 4 1 Introduction
2 4 2 Definition of “child”
2 4 3 Protection of the unborn child’s interests
2 4 4 Age as a factor in defining “child”
2 4 5 Participation of children in legal matters
2 4 5 1 Capacity to act
2 4 5 2 Engagement and marriage
2 4 5 3 Making a will
2 4 6 Children of unmarried parents
2 4 7 Capacity of children to litigate
2 4 8 Criminal and delictual accountability of children
2 4 9 Representation of children in legal matters
2 4 10 Termination of minority
2 5 Conclusion
CHAPTER 3 STATUTORY DEVELOPMENT OF THE PARTICIPATORY RIGHTS OF CHILDREN IN LEGAL MATTERS AND THEIR RIGHT TO LEGAL REPRESENTATION AND CUSTOMARY LAW IN THE PRECONSTITUTIONAL ERA IN SOUTH AFRICA
3 1 Early South African history
3 1 1 Introduction
3 1 2 Pre-colonial period
3 1 3 Colonial period
3 1 4 Statutory development after unification
3 1 5 Conclusion
3 2 The influence of customary law on the participatory rights of children in South Africa during the pre-1994 constitutional era
3 2 1 Introduction
3 2 2 Defining a “child” in customary
3 2 2 1 The beginning of legal subjectivity
3 2 2 2 The protection of unborn child’s interests
3 2 3 Adoption in customary law
3 2 4 The effect of customary law on the capacity of the child
3 2 5 Paternal authority
3 2 6 Age
3 2 6 1 Stages of childhood in customary law
3 2 6 2 The effect of age on the status of the child
3 2 6 2 1 Legal capacity of the child
3 2 6 2 2 Capacity to act
3 2 6 2 3 Capacity to litigate
3 2 6 3 Delictual and criminal accountability
3 2 7 Conclusion
CHAPTER 4 DEVELOPMENT OF THE CHILD’S PARTICIPATORY RIGHT IN LEGAL MATTERS AND THE CHILD’S RIGHT TO LEGAL REPRESENTATION REFLECTED IN THE STATUS OF A CHILD
4 1 Introduction
4 2 Defining a “child”
4 2 1 The beginning of legal subjectivity
4 2 2 The protection of the unborn’s interests
4 2 2 1 Protection by way of the nasciturus fiction
4 2 2 2 Statutory protection of the unborn child’s interests
in succession
4 2 3 Termination of pregnancy
4 3 Factors that determine and influence the child’s status
4 3 1 Legitimacy and its effect on children born from unmarried parents
4 3 1 1 Contact of the unmarried father with the child
4 3 1 2 Care of a child born from an unmarried father
4 3 1 3 Paternity
4 3 2 Age
4 3 2 1 Effect of age on the child’s status
4 4 Effect of age on the child’s participation in legal matters
4 4 1 Infans
4 4 1 1 Legal capacity
4 4 1 2 Capacity to act
4 4 1 3 Capacity to litigate
4 4 1 4 Delictual and criminal accountability of the infans
4 4 2 Minor
4 4 2 1 Legal capacity
4 4 2 2 Capacity to act
4 4 2 2 1 Agreements for which a minor has full capacity to act
4 4 2 2 2 Agreements for which a minor has limited capacity to act
4 4 2 2 3 Result of an assisted minor’s agreement
4 4 2 2 4 Result of an unassisted minor’s agreement
4 4 2 2 5 Agreements for which a minor has no capacity to act
4 4 2 2 6 Capacity to conclude a marriage
4 4 2 2 7 Capacity to execute a will
4 4 2 3 Capacity to litigate
4 4 2 4 Minors’ Accountability
4 4 2 4 1 Delictual accountability
4 4 2 4 2 Criminal accountability
4 4 2 5 Termination or minority
4 5 The effect of parental responsibilities and rights on child participation and representation
4 5 1 Guardianship
4 5 2 How is the child’s participatory right influenced by parental responsibilities and rights?
4 5 2 1 Car
4 5 2 2 Contact
4 5 3 Maintenance of children
4 6 Conclusion
CHAPTER 5 THE CHILD’S RIGHT TO PARTICIPATION AND REPRESENTATION IN LEGAL MATTERS IN TE POST-CONSTITUTIONAL ERA IN SOUTH AFRICA
CHAPTER 6 A COMPARATIVE ANALYSIS OF THE CHILD’S RIGHT TO PARTICIPATION AND REPRESENTATION IN LEGAL MATTERS
Bibliography