When Life Gets Complicated: Children, Incapacity & Insolvency

A child below the age of seven has absolutely no legal capacity to enter into any contract. Full stop. But that doesn't mean property can't be owned by — or transferred on behalf of — very young children.

In South African law, a child who has not yet reached their seventh birthday is considered to have zero contractual capacity. They cannot sign anything — not a sale agreement, not a power of attorney, not a consent form. The legal system treats them as entirely incapable of binding themselves to any legal obligation.

This creates an obvious practical challenge: what happens when a young child either owns property or is to receive property? The answer is that the child's guardian — almost always both parents, if both are still alive and still hold guardianship — steps in entirely on the child's behalf.

In a deed of transfer, a child under 7 does not appear as the signatory at all. The parents sign as the "parents and natural guardians" of the named child, and the child is described simply as "a minor." The property, however, is registered in the child's own name — not in the guardians' names. The guardians are acting on the child's behalf, but ownership vests in the child.

Once a child turns seven, the law acknowledges a degree of developing judgement — but still requires parental support for anything as serious as property transactions.

Two Routes to the Same Result

When a child aged 7 to 17 is involved in a property transfer, the guardians have flexibility in how they handle the documents. The law permits two valid approaches:

Either approach is legally valid. In practice, the conveyancer advising the family will determine which method is most appropriate for the specific circumstances.

Guardian consent alone is not enough for significant property transactions. The law brings in an independent authority — the Master of the High Court — to protect every child's financial interests.

In exceptional circumstances, a court can declare a minor to be a major — granting them full adult legal capacity before they turn 18. Once this happens, the property world treats them exactly like any other adult.

Emancipation — the formal court declaration that a minor should be treated as an adult for legal purposes — is not a common occurrence, but it does happen. When a young person is married, or otherwise demonstrates the maturity and independence to manage their own affairs, a court may step in and grant full majority status ahead of the normal age threshold.

Once a court order of emancipation has been granted, the practical effect on property transactions is straightforward: the formerly minor person is now described exactly like any other adult in all deeds and powers of attorney. There is no reference to guardians, no Master's endorsement required, and no need for court authorisation of the transfer itself.

In the deed of transfer and power of attorney, an emancipated minor is simply described by their name and identity number as "unmarried" — no reference to their minor status, no guardian involvement, no different treatment at all. The court order transforms their legal standing entirely.

A person who has been declared mentally incapacitated by a court cannot manage their own property affairs. The law's response is the appointment of a curator — a legally accountable representative who acts under court-supervised authority.

A Critical Point About Ownership

Here is something many people find surprising: even after a curator is appointed, the property does not move into the curator's name. The immovable property continues to be registered in the name of the person with mental incapacity. The only difference is that their status is noted — the title deed reflects that they are "a mental patient."

The curator acts as their legal representative, not as the owner. When the curator signs a power of attorney to effect a transfer, they do so explicitly in their capacity as curator "in the estate of the mental patient [name]." The person's own name and identity number appear in the documentation throughout.

This distinction matters enormously: the curator's authority is entirely derivative. They derive their power to act from the court order and the Master's letter of authority. If they act outside those powers, the transaction can be challenged.

Curatorship is not a simple family arrangement — it is a formal court process designed to ensure that vulnerable adults receive proper legal protection. Here's how it unfolds from start to finish.

Curator Bonis vs Curator Personae

South African law recognises different types of curators depending on what aspect of the person's life requires oversight. A curator bonis manages the person's financial affairs and property. A curator personae is concerned with the person's care and welfare. In property transactions, you will always be dealing with a curator bonis — the property manager.

The distinction matters because the court's appointment order will specify which type has been appointed and what their precise mandate is. A conveyancer receiving a transfer instruction involving a curator will carefully examine the letter of authority to confirm that dealing with the specific property in question falls squarely within what the Master has authorised.

When Curatorship Ends

Curatorship is not necessarily permanent. If the person recovers mental capacity, they can approach the court to have the curatorship lifted. The court may also reconsider the arrangement if circumstances change substantially. Upon termination, the curator's authority to act on the person's behalf ceases entirely, and the person once again manages their own affairs.

Sequestration — the formal legal process of declaring insolvency in South Africa — has profound consequences for property ownership. But the rules are more nuanced than most people realise.

The Sequestration Interdict

When a court grants a sequestration order against someone's estate, the Registrar of the High Court notifies the Deeds Registry. The deeds office then notes an "interdict" on their computer system against every person so sequestrated — using their full name, date of birth, and identity number. If the insolvent is married, the interdict is noted against the spouse's name as well.

What this interdict effectively does is lock the insolvent out of their own property. They cannot sell, mortgage, or otherwise deal with any immovable property or real right registered in their name while the interdict remains in place. This appears as a code on any deeds search in that person's name.

When property must be sold from an insolvent estate, it is the trustee — not the insolvent person — who drives the process. Understanding the trustee's authority and limitations is essential.

The trustee of an insolvent estate is appointed by the Master of the High Court and derives all their authority from a Letter of Authority issued by the Master. Like a curator, the trustee can only act within the scope of what the law and that letter authorise.

When the trustee sells property belonging to the insolvent estate, they sign the power of attorney explicitly in their representative capacity — as "trustee in the insolvent estate of [the insolvent's name]." The sequestration number assigned to the estate is also referenced in the documentation. However, the property in the deed of transfer is always vested in the insolvent's personal name in the receiving (vesting) clause — never in the trustee's name.

The Spouse's Property

Married life creates an additional layer of complexity. When a person is sequestrated, their spouse's property may also be affected depending on the marital regime: