Criminal Law

Doli Incapax

Latin for "incapable of wrong." The legal presumption that a child below a certain age lacks criminal capacity. In South Africa, children under 10 are completely excluded from criminal liability.

Legal Definition

The Child Justice Act 75 of 2008 sets the minimum age of criminal capacity in South Africa at 10 years. Children under 10 are doli incapax — they cannot be prosecuted for any offence. Children between 10 and 14 are presumed to lack criminal capacity, but the state can rebut this presumption by proving the child understood the wrongfulness of the act and could act in accordance with that understanding. Children 14 and older are treated similarly to adults but within the child justice system.

📖 Constitutional / Statutory Basis: Section 28 (children's rights); Section 35 (accused persons' rights)

Practical Example

A 9-year-old breaks a window and steals goods from a shop. No criminal charges can be laid — the child is doli incapax. Social services intervention may follow.

Frequently Asked Questions

What happens to a child under 10 who commits a serious crime in South Africa?

A child under 10 cannot be arrested or charged. The matter is referred to a probation officer and the child may be placed in the care of parents, a children's home, or another appropriate facility under the Children's Act.

Can a child between 10 and 14 be sent to prison in South Africa?

No. The Child Justice Act limits the sentences available for children aged 10–17. Imprisonment in a prison (as opposed to a child and youth care centre) is reserved only for the most serious cases and for children over 14.

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