sexual health and human rights in the african region - The ICHRP

contraception and other sexual health services, for adolescents on the basis of the
evolving capacities of the child rather than chronological age. 751
[24] In the majority of African countries there are no specific laws the age consent as
to provide clear guidance to providers of health care who are apt to regard the
age of majority as also age of consent to the detriment of the sexual health of
minors and adolescents, especially. South Africa is an exception in having a
statute – the Children’s Act of 2003 – that has specific provisions governing
consent of children to treatment.
[25] The South African Children’s Act is a major reform of common law and
legislation. Its scope is very wide and extends to children, many of the
protections that are found under international law. The Act reforms both
common law and legislation with a view to complying with state obligations
under the Convention on the Rights of the Child and the African Charter on the
Rights and Welfare of the Child. The Act clarifies that the age of majority for
general purposes is 18 years 752 and rather than 21 as was the position under the
Age of Majority Act of 1972. 753 It brings South African legislation is line with the
age of majority prescribed under the Constitution as well as under international
human rights instruments. The Convention on the Rights of the Child and the
African Charter on the Rights and Welfare of the Child prescribe 18 as the age of
majority. 754
[26] Section 129 of the South African Children’s Act regulates consent to health care
related procedures. It provides that:
a child who is over 12 years and is of ‘sufficient maturity and has the mental
capacity to understand the benefits, risks, social and other implications of the
treatment’ may consent to their own ‘medical treatment’ or that of their child; 755
a child who is over 12 years and is of ‘sufficient maturity and has the mental
capacity to understand the benefits, risks, social and other implications of the
‘surgical operation’ and is ‘duly assisted’ by a parent or guardian may consent to
their own surgical operation or that of their child; 756
The import of section 129 is to attempt to implement the principle of the
evolving capacities of the child as the criterion to determine competence to
treatment but with 12 years provided as a threshold for determining a boundary
between children in respect of which the law irrebuttably presumes
751 Committee on the Right of the Child, Adolescents Health and Development in the context of the
Convention on the Right of the Child , General Comment No 4 CRC/GC/2003/4 (2003).
752 Section 17 of the Act.
753 Section 1 of Act No 57.
754 Articles 1 and 2 respectively.
755 Section 129(2) of the Children’s Act (South Africa).
756 Section 129(3) ibid.
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