15 February 2019

Namibia: Age of Majority Now 18 in Namibian Law

Photo: Reppsi
(file photo)
opinion

THE ENTRY into force of the Child Care and Protection Act 3 of 2015 on 7 February 2019 has changed the age of majority in Namibia. It is now 18 years, while it was 21 before.

The reduction in the age of majority to 18 is key and a milestone for the many young Namibians living in the country and abroad. And other young people generally living in Namibia.

Majority status has a bearing on the competence of a person to enter contracts and to marry and on the capacity of a person to sue and be sued in a court of law. The gist of it is that at the age or above the age of 18, people will now have full contractual capacity in accordance with Namibian law.

The move to lower the age of majority is consistent with a panoply of international instruments inter alia, the Universal Declaration of Human Rights, the African Charter on the Rights and Welfare of a Child which recognise the age of majority as 18.

In the equation is also the UN Convention on the Rights of the Child. That convention encourages states to review the age of majority if it is set below 18 and to increase the level of protection for all children under 18.

On the other hand, the change in the age of majority will undoubtedly have far reaching consequences on other laws in Namibia (especially, the common law and the various statutes that defined minors as people under the age of 21 in public and private law spheres).

Since the threshold of legal adulthood is now 18, young persons at that age may do certain other things. They can get appointed or elected as trustees of insolvent estates, get married without parental consent or assistance; participate in the management of close corporations; become company directors and are now able to also receive money from an annuity, pension fund, a bequest in a deceased estate, because such money no longer needs to be paid into the Guardian's Fund at the Master of the High Court of Namibia.

To cap it all, the reduction of the age of majority to 18 means that the 18-year-olds will be able to enter and validly conclude a wide variety of contracts such as lease contracts, contracts of apprenticeship or employment, partnership contracts, university contracts, loan contracts (including NSFAF loans and grants), bursaries contracts, credit agreements.

Further to this, they can now purchase shares in companies should they wish and conclude purchase and sale contracts of cars and houses without parental or guardians' consent or assistance.

Despite the noble intention of the legislature in reducing the age of majority to 18 under the Child Care and Protection Act, the purist might quibble that the act leaves young persons between the age of 18 and 21 without protection.

This quibble is well founded. The aim of the previous law was to protect minors below the age of 21 against their immaturity and not to penalise them for their astuteness. Put differently, a person below the age of 21 was considered immature and not bound by his or her own contract.

The new law does not protect young people between the age of 21 and 18 from unscrupulous business people and others that will be seeking to enforce contracts against them because they are now considered adults. These young people might otherwise be taken advantage of or exploited by being tied to contractual obligations that are really against their best interests.

In sum, there is a risk to the young and inexperienced who might fall victim to unscrupulous business entities or business people because of their utopian dreams.

Under the Maintenance Act of 2003, maintenance orders can be extended until the child has reached the age of 21. With the coming into force of the Child Care and Protection Act since Thursday last week, it could mean that maintenance orders ought to stop at 18, which is now the legal age of majority.

Perhaps, the other most eye-catching provision of the Child Care and Protection Act is that a child of the age of 14 years or more can now consent to medical intervention without parental or guardian consent or assistance. One final point concerns HIV testing. A child of the age of 14 years and more can now consent to HIV testing without parental assistance or consent and by juxtaposition, the act also says a child below the age of 14 years can also consent to HIV testing provided that such a child understands the risks, benefits and implications of taking such a test.

On a balance, the Child Care and Protection Act is an example that keeping the age of majority at 21 is quaint bygone, with no counterpart in modern age and it must be welcomed. In fact, many young people are mobile, and some are probably now living away from their parents or guardians and are faced on a daily basis with a range of contracts to conclude. It is only fair to reduce the age of majority.

* Bernhard Tjatjara teaches commercial law and company law at Namibia University of Science and Technology (Nust). He writes in his personal capacity.

Namibia

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