CAN PARENTS BE HELD CRIMINALLY LIABLE FOR THEIR CHILDREN’S UNLAWFUL CONDUCT IN SOUTH AFRICA?

Understanding parental responsibility in light of the Brakpan Tragedy

On 7 June 2025, the community of Brakpan, Gauteng, was shaken by the death of 14 (fourteen) year old Malcolm Booysen. Reports indicate that the fatal incident involved a vehicle driven by a 12 (twelve) year old child. The tragedy has raised urgent questions not only about the criminal capacity of minors, but also about the extent to which parents can be held criminally and/or civilly liable for the actions of their children.

This article explores how South African criminal law treats parental liability in such cases and what legal principles apply when a child commits a serious offence.

Legal Framework

South African law recognises that children are developmentally different from adults and must be treated accordingly. The Child Justice Act 75 of 2008 provides a separate justice system for children who act in contravention with the law, prioritising rehabilitation and restorative justice over punishment.

The Act sets out key principles that guide the prosecution of child offenders, including criminal capacity thresholds based on the child’s specific age.

What is criminal capacity for children?

Under South African law:

Children under 12: Cannot be prosecuted; they are deemed incapable of criminal responsibility.

Children between the ages of 12 and 14: Presumed not to have criminal capacity, but this presumption can be rebutted.

To prosecute a child between the ages of 12 and 14, the State must prove beyond a reasonable doubt that the child:

• Understood the difference between right and wrong, and

• Could act in accordance with that understanding.

In the Brakpan matter, the 12 (twelve) year old driver (as alleged) falls within this bracket. It will therefore be up to the prosecution to lead evidence, potentially including expert reports and testimony on the child’s mental, emotional and developmental maturity.

Parental liability: when does it arise?

A common question in cases like this is whether parents can face criminal charges for their child’s criminal wrongdoing. In South African law, parents are not automatically criminally liable for their children’s offences. However, liability may arise where the parent has negligently enabled and/or failed to prevent the offence from taking place.

Criminal liability for omissions

South African criminal law does permit criminal liability for omissions, but only where there is a legal duty to act. One such duty arises when a person stands in a protective relationship toward another, as parents do toward their children.

If a parent fails to take reasonable steps to prevent foreseeable danger caused by their child, and that failure results in harm, the parent could very well be charged with a crime such as culpable homicide, depending on the circumstances.

It is not enough for a parent to have general control over a child, the law requires a demonstrable failure to exercise reasonable supervision, where the risk of harm was foreseeable and preventable. Our Courts apply an objective test of a reasonable parent in the same circumstances.

Case example: 

Rex v Eustace (1948): In this case, the accused failed to restrain a known dangerous dog, which fatally mauled a child. The Court found the accused guilty of culpable homicide, not because of a direct action, but because of a failure to act in a reasonable manner despite the foreseeable risk. This case remains an important precedent for when a person's omission, such as failing to supervise, results in criminal liability.

Applying the law to the Brakpan matter

(This matter is currently ongoing and as such, URA shall update this article if the need arises). Reports suggest that the child’s mother denied giving permission for him to drive the vehicle. If this is in fact true and if the incident was isolated, it may not meet the threshold for criminal liability.

However, the situation changes if:

• The child had previously taken the vehicle without consent;

• The parents knew of this behaviour, and

• The parents failed to take steps to prevent it from happening again.

In such circumstances, it may be argued that the parents acted with reckless disregard for public safety. Proving this in Court, however, requires a high standard of evidence and must show that the parent’s conduct amounted to gross negligence.

Civil liability: A lower threshold

Even if criminal prosecution is not feasible, the parents may still face civil claims from the victim’s family. Under South African civil law, a parent can be held delictually liable for damages caused by a minor, particularly where:

• They failed to supervise the child adequately, or

• Their own conduct contributed to the harm.

This would involve a claim for loss of support, funeral costs and/or emotional trauma, depending on the facts of the case.

Conclusion

The Brakpan tragedy has cast a spotlight on the legal and moral responsibilities of parents of minor children in South Africa. While the law rightly protects children and recognises their capacity, it also demands accountability, not only from children who are capable of understanding their actions, but from parents who fail to prevent foreseeable harm.

Parental liability, whether criminal or civil, hinges on knowledge, foreseeability and reasonable steps to prevent harm. When those duties are neglected, the consequences can be devastating.

Contact us at info@rouxlegal.com for professional and confidential assistance if you are facing legal challenges involving children or if you are concerned about parental rights and responsibilities. 

By Christiaan Small

(Associate)

10 June 2025

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this article, neither the writer/s of the article nor the publisher shall bear any responsibility for the consequences of any actions based on information and/or recommendations contained herein. The URA article material is for informational and educational purposes only.