Old Heads on Young Shoulders: Reflections on Childhood and Delict from Scotland And South Africa

By Emile Zitzke and Lesley-Anne Barnes Macfarlane 

In Scotland and South Africa, when a child is negligently injured by an adult (often a motor vehicle driver in the case law), that adult might try to reduce the amount of damages payable to the child by arguing that the child was contributorily negligent in causing the injury. This legal position has implications for children’s rights and how the concept of “childhood” is constructed in law. The surprising reality is that old heads are sometimes being placed on very young shoulders, where the law expects children to behave like reasonable adults. Both of us have recently written about this phenomenon in South Africa and Scotland respectively, arguing that the law on childhood contributory negligence ought to be reformed to provide better protection for child victims in delict.  

Our earlier work, coupled with a long tradition of mutually beneficial comparative-law exchanges between Scotland and South Africa, led us to plan a collaborative comparative research project on this topic. Distance, time, and the perpetual post-pandemic catching up on to-do lists made the collaboration seem like a project for the distant future. However, when the call for applications for the Glasgow Law Fellowship opened in 2023, Lesley-Anne encouraged Emile to apply and, soon thereafter, he received the news that his application was successful. In Emile’s personal experience, this fellowship is a brilliant, funded opportunity for visiting researchers to spend some time at the Glasgow Law School to conduct research. It is an ideal mechanism by which international research collaboration can take place. 

Emile was a Glasgow Law Fellow from February to April in 2024. In those three months, this research project could finally take flight. As great as Zoom and Teams may be, nothing beats meeting a collaborator in person and having the focused time to test thoughts and construct new ideas (and, of course, to drink coffee and have brunches, because that is what the legal academy is really for). Emile discovered that the Glasgow Law School is filled with wonderfully supportive colleagues and administrators (enormous thanks to Marion in particular!) who would make any visitor feel welcome and included. The Private Law Research Group in particular is a community of scholars doing cutting-edge work in both traditional and new paradigms of private law. 

During that three-month period, we collaborated on an RSE funding application and started working on a paper, that was presented on 27 March 2024 at a Law School “Work in Progress Session”. In this paper, we examine the legal reasoning in proceedings in which the issue of childhood negligence has been raised in Scotland and South Africa.  With reference to the threefold conceptualisation of childhood provided by the United Nations Committee on the Rights of the Child (i.e., early childhood, middle childhood, adolescence), we critique judicial and legal policy developments, and potential developments, in each jurisdiction.  In doing so, we address a number of questions.   

First, how might the approaches adopted by South African and Scottish courts in child capacity determinations be described and distinguished?  Secondly, what underlying conceptual and substantive factors influence decision-making in each jurisdiction?  Thirdly, what should be the contemporary norm for the treatment of children in delict or – to express the question differently– what sorts of obligations are imposed upon jurisdictions (and more specifically upon the judiciary) in the field of delict by the UN Convention on the Rights of the Child (‘UNCRC’)?  Finally, what scope exists for future reform based on transformative constitutionalism in South Africa and, in Scotland, the interpretation of “UNCRC requirements” in terms of the UNCRC (Incorporation)(Scotland) Act 2024? 

Emile is an associate professor of law at the University of the Witwatersrand, South Africa. He was a Glasgow Law Fellow in 2024. 

Lesley-Anne is a senior lecturer at the University of Glasgow School of Law and a member of the private law research group. 

 Photo credit: The Work in Progress Seminar, 27 March 2024, taken by Andrea Zitzke.