Malcolm v Premier, Western Cape Government

• Jurisdiction: South Africa
• Judge: Navsa JA, Shongwe JA, Theron JA, Wallis JA and Legodi AJA
• Judgment Date: 14 March 2014
• Citation: 2014 (3) SA 177 (SCA)
• Docket Number: 207/2013 [2014] ZASCA 9
• Hearing Date: 21 February 2014
• Counsel: JS Saner for the appellant. M O'Sullivan (heads of argument drafted by N Bawa) for the respondent.
• Court: Supreme Court of Appeal

Wallis JA (Navsa JA, Shongwe JA, Theron JA and Legodi AJA H concurring):

[1] Mr Malcolm was born on 21 June 1987. In 1993, when he was 6 years old, he was diagnosed with stage 1 Hodgkin's lymphoma. He was admitted to the Red Cross Children's Hospital in Cape Town for treatment. He alleges that whilst he was in hospital undergoing treatment I there was an outbreak of hepatitis B at the hospital and in October 1994 he was diagnosed with that disease. He ascribes his infection with hepatitis B to negligence on the part of the hospital and its staff and seeks by this action to recover damages. His claim was met with a special plea of prescription, which Louw J upheld. The appeal is with his leave.

[2] In terms of s 11(d) of the Prescription Act 68 of 1969 (the Act) the J period of prescription in respect of Mr Malcolm's claim is three years

Wallis JA (Navsa JA, Shongwe JA, Theron JA and Legodi AJA concurring)

commencing from when the claim became due. That is accepted as A being in October 1994. As Mr Malcolm was a minor at the time of the expiry of the prescriptive period, completion of prescription was delayed in terms of ss 13(1)(a) and (i) of the Act, which read:

'(1) If —

(a)

the creditor is a minor . . . or B

. . .

(i)

the relevant period of prescription would, but for the provisions of this subsection, be completed before or on, or within one year after, the day on which the relevant impediment referred to in paragraph (a) . . . has ceased to exist,

the period of prescription shall not be completed before a year has C elapsed after the day referred to in paragraph (i).'

[3] The issue in this case arises from a change in the law relating to the age of majority that occurred after Mr Malcolm became infected with hepatitis B. At that time the age of majority D was 21 years in terms of s 1 of the Age of Majority Act 57 of 1972. However, the age of majority was altered to 18 years by way of s 17 of the Children's Act 38 of 2005, which came into operation on 1 July 2007. On that day and by operation of law Mr Malcolm attained his majority. The Premier of the Western Cape, who in her official position is the defendant to the action and the respondent in this court, contended in the court below, and contends in E this court, that accordingly the impediment of minority referred to in s 13(1)(a) of the Act ceased to exist on that date, leaving Mr Malcolm with one year in which to institute this action. The result of his not having done so was said to be that his claim prescribed one year later, on 30 June 2008. Louw J upheld that contention.

[4] The plea of prescription was resisted on the basis that when the claim F arose Mr Malcolm had until one year after he turned 21 to institute action, and this was not affected by the statutory amendment to the age of majority. Reliance was placed on the broad principle that statutory changes are presumed not to prejudice acquired rights and on the provisions of ss 12(2)(b) and (c) of the Interpretation Act 33 of 1957. As G he commenced these proceedings within one year of turning 21 it was contended that his claim had not prescribed.

[5] The arguments on both sides in the court below and in this court proceeded on the footing that the reference to a 'minor' in s 13(1)(a) of H the Act is a reference to a person who has not yet achieved the legal status of majority. Flowing from this the respondent adopted the approach that the impediment of being a minor would cease to exist when the person concerned reached the legal age of majority. However, this overlooked the fact that the meaning of the word 'minor' in that section had already been the subject of a decision of this court in Santam Versekeringsmaatskappy I Bpk v Roux. [1] There it was held that it meant a person who had not yet turned 21, irrespective of whether they had achieved their majority. In other words, being a minor for the purposes of the Act

Wallis JA (Navsa JA, Shongwe JA, Theron JA and Legodi AJA concurring)

A depended purely upon a person's age and not their legal status. It is accordingly necessary to examine that decision.

[6] In Roux the plaintiff had been injured in a motor collision shortly before her 18th birthday. A little over a year later she married. As a result B she became in law a major, although, as the marriage was one in community of property before the abolition of the marital power, her legal capacity was restricted. Shortly after her 21st birthday the marriage ended in divorce. Thereafter, but within one year of her 21st birthday, she commenced the action. The plea of prescription was raised on the basis that she had ceased to be a minor when she married and accordingly was required to institute her action within one year of that C date and had not done so.

[7] The court was faced with a choice between two contentions. [2] For Ms Roux it was argued that, in the absence of a definition, a 'minor' in its ordinary meaning was a person under the age of 21 years. For the D insurance company it was argued that a 'minor' was a person who was not a major in the legal sense of having achieved their majority. A person was accordingly no longer a minor for the purposes of prescription if they had turned 21, or married, or obtained an order of court under s 2 of the Age of Majority Act, or attained majority in any other way in which that status could in law be achieved. [3] In opting for the first meaning the court E held that in its ordinary meaning the concept of a 'minor' referred to a particular age. [4] Support for this was found in the old authorities and in the analysis by Van den Heever J in Meyer v The Master, [5] where that learned judge pointed out that the word 'major' was sometimes used to refer to a specific age and sometimes to the person enjoying full legal capacity. [6] He held that it conventionally refers to a person's age, not F their legal status.

[8] Miller JA, who delivered the judgment in Roux, [7] held that the purpose of the provision was to protect young people below a certain age

Wallis JA (Navsa JA, Shongwe JA, Theron JA and Legodi AJA concurring)

and expressed his conclusions as follows: [8] A

'Die beleid van ons reg, egter, is dat jeugdige persone wel beskerm behoort te word:

the object of the law . . . is to protect (minors) against their own immaturity of judgment. B

(Edelstein v Edelstein NO and Others 1952 (3) SA 1 (A) te 15.) . . .

'Rakende verjaring, leer Pothier Obligations:

"Prescription does not run against minors, although they have a tutor: this exception is not founded upon the rule, contra non valentem agere, non currit prescriptio, since they have a tutor who C may sue for them, but upon a particular indulgence to the infirmity of their age. (Evans se vertaling band 1 te 452.)

'Dit is duidelik dat in elkeen van die bogenoemde verwysings, bedoel word deur die woord minderjarige of minor, iemand wat 'n D bepaalde ouderdomsgrens nog nie bereik het nie. Omrede die vermoede wat in ons reg geld dat jeugdiges onoordeelkundig of op onverantwoordelike wyse mag optree (of versuim om op te tree), word 'n ouderdomsgrens vasgestel om te onderskei tussen diegene wat beskerm moet word, en andere. Dit kom my voor dat minderjariges in art 13(1)(a) van die Verjaringswet ingesluit is, juis omrede die E genoemde vermoede. Ek raak derhalwe tot die gevolgtrekking dat die woord minor verstaan moet word om te verwys na enige persoon wat die bepaalde leeftydsgrens nog nie bereik het nie.' [9]

The court concluded that until a person turned 21 the impediment of being a minor for the purposes of the Act did not cease to exist. If a person below 21 had nonetheless achieved their majority, this was F

Wallis JA (Navsa JA, Shongwe JA, Theron JA and Legodi AJA concurring)

A irrelevant. The court's conclusion was not based on the fact that the statutory age of majority was 21 but on its view of the ordinary meaning of the word 'minor'.

[9] If the judgment in Roux remained applicable, as an authoritative exposition of the meaning of s 13(1)(a) of the Act, then it would be B decisive of this appeal in favour of the appellant, as he would only have ceased to be a minor for the purposes of prescription when he turned 21. The respondent did not contend that the judgment was clearly wrong at the time it was handed down, [10] although there were possibly grounds for criticism. [11] Instead it was submitted that the meaning of the section had C...