For example: ‘freedom of action with regard to mode of living and earning his livelihood’ (absolute emancipation) or ‘freedom to conclude contracts related to their own business, but nothing else’ (relative emancipation). Emancipation only affects contractual capacity and not status. Scope of emancipation (extent of minors contractual independence): Absolute or relative emancipation? Case law undecided but Wheaton and Barrett et al adopts modern approach and depends on circumstances (what id guardian consent to? Important to note: only ‘assisted’ if minor acted within scope of emancipation. Aimed v Covina: where a guardian permits his minor to carry on own business or work for an employer of his own choice, the guardian impliedly consents to the minor making contracts in connection with the business or employment, but not other kinds of contracts – study in detail. The guardian’s consent: Emancipation requires actual and active consent in the sense that the guardians must apply their minds.
It does not suffice to show that guardian as abandoned the minor, or ceased to display any interest in his affairs, or that the minor regards himself completely free from his guardian’s control. Such minors still require the protection of the law and their contracts should not be treated as assisted. Grand PRI Motors v Swart – study in detail. Sensing Minister of Police – study in detail (page 745 par G?H). Proving emancipation: Onus: he who alleges must prove (usually other contracting party). Question of fact and determined with reference to the circumstances and way of life of he minor.
Factors to be considered (a court has to look collectively at these factors – Dickens v Daley – study in detail): Employment or conducting business and time period thereof Financial independence Separate residence and if so, period thereof Relationship with guardians Age of minor Neglect or abandonment does not prove emancipation (overriding factor) ? Seeing and Swart If emancipated, acted within scope (overriding factor) Aimed v Covina Relevance of emancipation under the Children’s Act 38 of 2005?