THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No:  87/15

In the matter between:

LINAH NTOMBI MADALANE obo CLERICIA MASUKU
APPELLANT

and

IZAK DANIEL VAN WYK
RESPONDENT

Neutral Citation: Madalane v Van Wyk (87/2015) [2016] ZASCA 25 (18 March 2016)

Coram:

Ponnan, Zondi JJA and Plasket AJA

Heard:

26 February 2016

Delivered:

18 March 2016

Summary:

Locus standi in judicio – mother purporting to institute action on
behalf of her adult daughter – lacks locus standi to do so.

____________________________________________________________________
ORDER
_____________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria, (Thobane AJ sitting as
court of first instance):
The appeal is dismissed with costs.

JUDGMENT

Zondi JA (Ponnan JA and Plasket AJA concurring):

[1] This is an appeal against the judgment of Thobane AJ sitting in the Gauteng Division
of the High Court, Pretoria, upholding the respondent’s special plea of lack of locus standi
in judicio.

[2] Ms Clericia Masuku was born on 12 February 1991. On 17 December 2003, when
she was 12 years old, she was injured in a motor vehicle accident whilst she was a
passenger on a trailer towed by a vehicle driven by the respondent. On 20 September 2010
her mother, Ms Linah Ntombi Madalane, caused summons to be issued against the
respondent. Paragraph 1 of the Particulars of Claim, annexed to the summons, reads:
‘EISERES, is ‘n meederjarige huishulp met identiteitsnommer 651128 0743 089, wat hierin optree in
haar hoedan[ig]heid as moeder en natuurlike voog van haar minderjarige kind Clericia Masuku
(gebore op 12 Februarie 1991) en ook van dieselfde adres as die Eiseres naamlik Standplaas 162,
Tshabalala Trust, Hazyview (hierna die minderjarige kind genoem).’
The summons was met with a special plea in these terms:
‘1.1
Plaintiff is acting on behalf of Clericia Masuku, a female born on 12 February 1991.
1.2
Clericia Masuku attained majority on 12 February 2009, at the age of 18 years, in terms of sec.
17 of the Childrens Act no. 38 of 2005.
1.3
Plaintiff’s summons was issued 20 September 2010, after Clericia Masuku attained majority.
1.4
In the premises Plaintiff lacks locus standi in iudicio and Defendant prays that the action be

dismissed with costs.’

[3] The court a quo was asked in terms of Uniform rule 33 (4) to determine only the
issue of locus standi. It determined that issue in the respondent’s favour and accordingly
upheld the special plea. The appeal is with the leave of this court.

[4] At that time of the collision, the age of majority was 21 years in terms of s 1 of the
Age of Majority Act 57 of 1972.  That was altered to 18 years by way of s 17 of the
Children’s Act 38 of 2005 (the Act), which came into operation on 1 July 2007. The Act
repealed the Age of Majority Act but its repeal did not take effect until 1 July 2007 when s
17 came into operation.

[5] Ordinarily a minor’s locus standi in judicio is limited in that he or she cannot institute
or defend any legal proceedings by himself or herself. He or she requires the assistance of
his or her guardian and consequently can only sue or be sued in the name of his or her
guardian as representing him or her, or in his or her own name assisted by the guardian.
The effect of s 17 of the Act is that minority with its limits on legal capacity terminates when
a person turns 18 years. What this means, is that in the absence of any other legal
impediment an 18 year old person can sue or be sued in his or her own name.

[6] Counsel for the appellant submitted that under the Age of Majority Act - the
applicable Act when her cause of action arose - Ms Masuku had a right to be assisted by
her guardian in any legal proceedings by or against herself until she turned 21 years, and
this was not affected by s 17. In support of this proposition he relied on the decision of this
Court in Malcolm v Premier, Western Cape Government.
2 He argued that as Ms Masuku’s
right to be assisted by her guardian vested in her prior to 1 July 2007, the appellant had the
necessary locus standi to institute an action on her behalf (when she did on 20 September
2010). Reliance was also placed on the principle that statutes are presumed not to affect
vested rights. They are presumed to govern transactions in the future and not those in the

1 F. du Bois Wille’s Principles of South African law (2007) 9 ed at 187; Guardian National Insurance Co Ltd v Van
Gool NO [1992] ZASCA 96; 1992 (4) SA 61 (A) at 66F-G.
2 Malcolm v Premier, Western Cape Government [2014] ZASCA 9; 2014 (3) SA 177 (SCA).

past.
3 Counsel’s reliance on Malcolm is misplaced. In that case this Court was concerned
with the special plea of prescription in terms of the Prescription Act 68 of 1969 and the
extent to which s 13(1)(a) of that Act was affected by s 17 of the Act. The question of locus
standi did not arise at all for consideration by this Court. Malcolm is also distinguishable on
the facts in that there Malcolm himself, not his guardian on his behalf, had instituted legal
proceedings for the recovery of damages. In other words, the person who brought the
action had the necessary locus standi and, therefore, his capacity to institute proceedings
was not disputed.
4 Moreover, from the perspective of the minor, the reduction in the age of
majority from 21 to 18 by the Act, amounts to the removal a legal impediment, not the
imposition of one. To put it another way, a child can now litigate in his or her own name
(and without the assistance of his or her parent) from the time that such child  turns 18,
whereas in the past that very same child would have had to wait until 21 to do so.

[7] In the present case at the issue of summons, Ms Masuku had been a major for over a
year and a half. The allegation in the summons that she was then still a minor is accordingly
factually inaccurate and bad in law. She could sue or be sued in her own name without the
assistance of her legal guardian. The appellant did not therefore, at the time of institution of
the action, have locus standi to act on her behalf. The court a quo was therefore correct in
upholding a special plea.

[8] In the result the appeal is dismissed with costs.

_________________

D H Zondi

Judge of Appeal

3 National Iranian Tanker Co v MV Pericles GC [1994] ZASCA 145; 1995 (1) SA 475 (A) at 483I-J.
4 See para 4 of the judgment.

Appearances
For the Appellant:

C van Jaarsveld

Instructed by:

Frans Schutte Inc,

c/o Schutte De Jong Inc, Pretoria

Symington & De Kok, Bloemfontein

For the Respondent:

B P Geach SC

Instructed by:

Nell, Kotzé & Van Dyk Attorneys, Pretoria

Van den Berg Van Vuuren Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
18 March 2016
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not form part of the
judgment of the Supreme Court of Appeal.

Madalane v Van Wyk (87/15) [2016] ZASCA 25 (18 March 2016)

Today the Supreme Court of Appeal (SCA) dismissed an appeal from the Gauteng Division of the High Court,
Pretoria and confirmed the judgment of the high court upholding a special plea of lack of locus standi in judicio

The issue before the SCA was whether the appellant, a mother of an adult daughter, had locus standi to institute
action on her behalf for the recovery of the damages she sustained in a motor vehicle accident when she was still
a minor.

On 17 December 2003 the appellant’s daughter was injured in a motor vehicle accident while she was a
passenger on a trailer towed by a vehicle driven by the respondent on the basis that the accident was caused by
the respondent’s negligence. At the time of the accident the daughter was 12 years old and in terms of the Age
of Majority Act, the law governing status at the relevant time, she would have become a major when she turned
21 years. On 1 July 2007 the Age of Majority Act was repealed and replaced by s 17 of the Children’s Act 38 of
2008 which reduced the age of majority from 21 years to 18 years.

On 20 September 2010 her mother in a representative capacity caused summons to be issued against the
respondent on her behalf. The appellant’s claim was met with a special plea of lack of locus standi in which it
was contended that the daughter should have instituted a claim in her own name because at that time she had
already attained majority. The high court upheld the special plea of lack of locus standi.

On appeal, the SCA dismissed the appeal. It held that the allegation in the summons that the daughter was still a
minor, was factually inaccurate and bad in law in that at the issue of the summons she was already a major and
therefore did not have to be assisted by her legal guardian.