THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 207/2013

In the matter between:

CAMERON STEWART MALCOLM

Appellant
and
PREMIER, WESTERN CAPE GOVERNMENT NO      Respondent

Neutral citation: Malcolm v Premier, Western Cape (207/2013) [2014]
ZASCA 9 (14 March 2014)
Coram:
Navsa, Shongwe, Theron and Wallis JJA and Legodi AJA
Heard:
21 February 2014
Delivered:  14 March 2014
Summary: Prescription – plaintiff a minor when claim arose – age of
majority then 21 years – s 13(1)(a) of Prescription Act 68 of 1969 –
interpretation of – interpretation in light of changed circumstances –
effect of s 17 of Children‟s Act 38 of 2005 on expiry of prescriptive
period.

ORDER

On appeal from: Western Cape High Court (Louw J sitting as court of
first instance):
The appeal is upheld with costs and the order of the court below is altered
to one dismissing the special plea of prescription with costs.

JUDGMENT

Wallis JA (Navsa, Shongwe and Theron JJA and Legodi AJA
concurring)
[1] Mr Malcolm was born on 21 June 1987. In 1993, when he was six
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
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
period of prescription in respect of Mr Malcolm‟s claim is three years
commencing from when the claim became due. That is accepted as 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:
„If –
(a)
the creditor is a minor …;
and
(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 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 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
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 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
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
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 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 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 eighteenth birthday. A little over a year later she married. As a
result 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 twenty-first birthday the
marriage ended in divorce. Thereafter, but within one year of her twenty-
first 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

1 Santam Versekeringsmaatskappy Bpk v Roux 1978 (2) SA 856 (A).

and accordingly was required to institute her action within one year of
that 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
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 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 their
legal status.

2 The two possibilities were age and legal status. As other statutes demonstrate sometimes the one may
be the proper interpretation and sometimes the other. Statutory examples of the word „minor‟ referring
to the person‟s age are to be found in s 1 of the National Gambling Act 7 of 2004 and s 1 of the South
African Citizenship Act 88 of 1995, where a major is defined as a person over the age of 18 years. For
an example based on legal status see s 1 of the South African Passports and Travel Documents Act 4 of
1994. In other statutes where it is used, such as the Consumer Protection Act 68 of 2008 and the
Witness Protection Act 112 of 1998, there is no definition and, as in Roux, the court will have to
construe the legislation when the issue arises.
3 Other possibilities were tacit emancipation or venia aetatis. See Alfred Cockrell in Belinda van
Heerden, Alfred Cockrell and Raylene Keightley (General Editors) Boberg’s Law of Persons and the
Family 2ed (1999),  467-469 and 473-496.
4 At 864B „ŉ bepaalde leeftydsgrens‟.
5 Meyer v The Master 1935 SWA 3 at 5.
6 Being „mondig‟.

[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
and expressed his conclusions as follows:8
„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”.
(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 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 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 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

7 Rumpff CJ and Jansen, Corbett and Joubert JJA concurred.
8 At 865F-866A.
9 „However, the policy of our law is that young people ought to be protected:
“the object of the law...is to protect (minors) against their own immaturity of judgment”.
(Edelstein v Edelstein NO and Others 1952 (3) SA 1 (A) at 15.) …
As concerns prescription, Pothier Obligations teaches:
“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 may sue
for them, but upon a particular indulgence to the infirmity of their age.”
(Evans’ translation volume 1 at 452.)
It is clear that in all of the abovementioned authorities, what is intended by the word “minderjarige or
“minor” is someone who has not yet reached a determined age. Because of the presumption that
operates in our law that young people may act indiscriminately or irresponsibly (or fail to act), an age is
fixed to distinguish between those who must be protected and others. In my view minors were included
in s 13(1)(a) of the Prescription Act solely because of that presumption. I therefore come to the
conclusion that the word “minor” must be understood as referring to any person who has not yet
reached the stipulated age.‟ (My translation.)

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
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
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
changed in the light of the passage of s 17 of the Children‟s Act, which
lowered the age of majority to 18 years. That submission did not affect
the finding that being a minor in terms of the Act relates to a particular
age, but focussed on whether 21 remains the relevant age or whether, in
the light of subsequent events, that age should now be held to be 18.

[10] The proposition underpinning this contention is that, whilst a
statute is enacted at a particular point in time, circumstances in society
may change over time and it is necessary in expounding the proper

10 Steve Tshwete Local Municipality v Fedbond Participation Mortgage Bond Managers (Pty) Ltd &
another 2013 (3) SA 611 (SCA) para 14.
11 It was inconsistent with the views of Professor J C de Wet, who prepared a memorandum on
prescription for the South African Law Commission and drafted the Act, which was passed in the terms
he had drafted. J C de Wet Opuscula Miscellanea 77-144. The draft of s 13(1)(a) is at 142 and his
comment on it is in para 90, p 124. However, the judgment does not appear to have attracted academic
criticism on this point. There are extensive comments on it in 1978 AS 89-90, 92, 287, 436-7, 445-6
and 736. It is dealt with at length in a note by P Q R Boberg „Who Can Sue for Wife‟s or Child‟s
Medical Expenses?‟ (1979) 96 SALJ 525 but is not criticised on this aspect of the decision. I have been
unable to find any other comment and the decision appears to have been accepted in standard texts
dealing with prescription.

meaning of the statute to have regard to the changing social environment
in which the statute falls to be applied from time to time. The relevant
principle of interpretation is that the statute is not fixed at a point in time
but is „always speaking‟. This was not always the position. In Sharpe v
Wakefield12 Lord Esher said:
„[T]he words of a statute must be construed as they would have been the day after the
statute was passed, unless some subsequent Act has declared that some other
construction is to be adopted or has altered the previous statute.‟
This court, in Cape Provincial Administration v Honiball,13 appears to
have applied a similar principle but, it is clear that it did so on the basis of
the principle of parliamentary supremacy. However, in recent years
courts in England have departed from this rigid approach and, by
adopting the approach that statutes are „always speaking‟, they have
scope to extend the meaning of statutes to cover new matters and
situations that could not have been anticipated at the time when they were
enacted.14

[11] There is obvious sense in this approach when a court is confronted
with a novel situation that could not have been in the contemplation of
the legislature at the time the legislation was enacted. Courts can then, in
the light of the broad purpose of the legislation, current social conditions
and technological development, determine whether the new situation can
properly, as a matter of interpretation, be encompassed by the language.

12 Sharpe v Wakefield (1899) 22 QBD 239 at 241. The only reported case in South Africa where this
decision had been followed on this aspect is In Re Soobiah & others (1921) 42 NPD 184.
13 Cape Provincial Administration v Honiball 1942 AD 1 at 15-16. See also L C Steyn Die Uitleg van
Wette 5 ed (1981) 156.
14 The principle appears to originate in John Bell and George Engle Cross Statutory Interpretation 3 ed
(1995) 51-52. It was approved in R v Ireland; R v Burstow [1997] 4 All ER 225 (HL) at 233d-g and
McCartan Turkington Breen (a firm) v Times Newspapers Limited (Northern Ireland) [2000] UKHL
57; [2000] 4 All ER 913 (HL) at 926g-927e (per Lord Steyn). In R (on the application of Quintavalle) v
Secretary of State for Health [2003] UKHL 13; [2003] 2 All ER 113 (HL) paras 8-10 Lord Bingham
sought to reconcile the two approaches. For an application of the principle see Fitzpatrick v Sterling
Housing Association Ltd [1999] 4 All ER 705 (HL). See also Daniel Greenberg Craies on Legislation
9 ed (2008) 703.

But, as Lord Bingham pointed out in Quintavalle, by way of example,
they cannot use the principle to extend legislation relating to dogs to cats,
however desirable such an extension may seem. In other words the
principle has limits, but subject to that qualification and the case by case
working out of those limits, I see no reason why, in appropriate cases,
South African courts should not invoke it, particularly in the light of our
present constitutional order in terms of which statutes are to be construed
in the light of constitutional values.

[12] The Constitution enjoins us to interpret legislation in accordance
with the spirit, purport and objects of the Bill of Rights. Where a
previous interpretation of a statute is no longer consistent with those
values then we are obliged to depart from it. In this case there are
relevant provisions of the Constitution, to some extent those relating to
children, but in particular s 10, which guarantees the right to dignity and
provides that everyone is entitled to have their dignity protected and
respected. This is a core value of our Constitution.15

[13]  Since Roux was decided we have experienced unprecedented
changes in our society. South Africa has become a constitutional
democracy in which the dignity of all citizens is subject to constitutional
protection. Our Constitution, which affords special protection to children,
defines them as persons under the age of 18. The corollary is that persons
older than 18 are to be regarded as adults. Our society recognises their
dignity as adults by giving them the right to vote and allowing them to
conclude contracts and enter into marriages, to give consent to medical
treatment, to obtain a passport and many other things. To treat them as

15 President of the Republic of South Africa & another v Hugo 1997 (4) SA 1 (CC) para 41; Christian
Education South Africa v Minister of Education 2000 (4) SA 757 (CC) para 43.

less than adult for a purpose as important as the law governing
prescription infringes their dignity by affording them an advantage, on
the grounds of their supposed immaturity and irresponsibility, that is not
available to other adults. It is the notion that they are by virtue of their
age immature and irresponsible that constitutes the infringement.

[14] Apart from the constitutional aspect there has been a lengthy and
detailed consideration of the legal position of young people in our
society. 16  In line with international trends in most countries and
international instruments, our law regarding the age of majority has been
changed to lower the age from 21 to 18 years. The world has changed
dramatically since 1969 and those changes, already nascent at that time,
have altered our view of young people and our understanding of when
they reach maturity and should be treated as adults. Social circumstances
were very different in 2008, and remain very different in 2014, from
those that prevailed in 1969. Finally the „ordinary meaning‟ that was
ascribed to the word „minor‟ in Roux was culturally determined and a
reflection of the position within some but not all sectors of our
community.

[15] For those reasons, and whatever the precise scope of the „always
speaking‟ principle in our law of statutory interpretation, it seems to me
that it requires us to say that the word „minor‟ in s 13(1)(a) of the Act
now means a person under the age of 18 years and to that extent to depart
from the decision in Roux. However, I do not go so far as to say that it is
confined to meaning any person who in law has not attained their
majority. It was not argued that this aspect of the decision in Roux was

16 Report on the Review of the Child Care Act, South African Law Commission, Project 110. Whilst
the Commission was aware that changes to the age of consent might affect questions of prescription
(see Part 1, p 25) it did not deal specifically with this issue in its report.

clearly wrong, and I prefer to leave open the question whether a person
under 18 who enters into a lawful marriage, or who by virtue of their life
circumstances would be regarded under the common law as having been
tacitly emancipated from their minority, is no longer to be regarded as a
minor for the purposes of the Act. That is not the situation before us and
it would be preferable to leave it for decision on an appropriate occasion
when it arises pertinently.

[16] From what date did this altered interpretation take effect? The
changes that warrant departing from what was decided in Roux
culminated in the enactment of the Children‟s Act and the alteration it
effected to the age of majority. Parliament thereby placed its imprimatur
on the social changes that had occurred over a period of time prior to that
date. For so long as the age of majority remained fixed at 21 it could not
be said that social circumstances had so altered that the legal position as
laid down in Roux had changed. It is therefore from that date and
triggered by that legislative change that the interpretation of s 13(1)(a),
and hence our law, changed. However, when a change in the law of that
nature occurs, it is necessary for the court, as a matter of interpretation, to
determine whether and to what extent the change affects matters that have
their origin in events prior to the change. If a law has been repealed the
Interpretation Act provides, in s 12(2) thereof, for the consequences of
the repeal. The section commences with the words: „Where a law repeals
any other law, then unless the contrary intention appears, the repeal shall
not …‟ It is accordingly applicable to the consequences of the statute or
statutory provision under consideration being repealed. But we are not
dealing with the repeal of a statute and accordingly the reliance on this
section in argument on behalf of Mr Malcolm is misplaced. The
Prescription Act has neither been repealed nor amended. All that has

happened is that the section in the Act has been interpreted in the light of
changed circumstances and constitutional values. That is not a situation
covered by s 12 of the Interpretation Act. Whilst the change in the legal
position was triggered by an amendment to the legal age of majority it did
not involve either the repeal or amendment of s 13(1)(a) of the Act.

[17]    That does not, however, mean that the new meaning of s 13(1)(a)
automatically operates in relation to all unexpired periods of prescription
that were already running when the change in meaning occurred. I have
already noted that whenever there is a change to existing law the question
arises whether the change applies in relation to matters that have their
origin in past events. Frequently that question is resolved by way of
transitional provisions in an amending law. The Act provides a clear
example of this. It repealed and replaced the Prescription Act 18 of 1943.
In s 16 it dealt with the implications of this by providing that prescription
in respect of debts arising before the commencement of the Act would be
dealt with under the 1943 Act and debts arising after its commencement
would be dealt with under the Act. No doubt had there been an
amendment of the Act when the Children‟s Act came into operation there
would have been a similar provision governing the transition. Instead it is
necessary for the court to resolve the issue by determining the effect of
the changed interpretation of s 13(1)(a).

[18] The principles applicable when a statute brings about a change in
the law have been laid down in a number of cases. For present purposes
they were summarised by Corbett CJ in the Pericles GC 17  in the
following terms:

17 National Iranian Tanker Co v MV Pericles GC 1995 (1) SA 475 (A) at 483H-I. See also BOE Bank
Ltd v Tshwane Metropolitan Municipality 2005 (4) SA 336 (SCA) para 13.

„There is at common law a prima facie rule of construction that a statute (including a
particular provision in a statute) should not be interpreted as having retrospective
effect unless there is an express provision to that effect or that result is unavoidable on
the language used. A statute is retrospective in its effect if it takes away or impairs a
vested right acquired under existing laws or creates a new obligation or imposes a
new duty or attaches a new disability in regard to events already past.‟
That statement was made in relation to a change in the law brought about
by statute. Appropriately adapted it seems to me equally applicable to a
change in the law resulting from a changed interpretation of a statute,
where that altered interpretation is triggered by a change to another
statute. So adapted there is a presumption against the change in the law
operating retrospectively so as to create a new obligation or impose a new
duty or attach a new disability in regard to events already past.

[19] When the change in meaning of s 13(1)(a) came into effect on
1 July 2007 there must have been a number of unresolved claims by
minors in respect of which prescription had already started to run. If the
change applies to all such claims, as contended by the respondent, then
any claimant who celebrated their eighteenth birthday between 1 July
2005 and 30 June 2008 would be left with only one year after 1 July 2007
in which to pursue their claim if they were to avoid prescription, instead
of the longer period of up to four years that they had before that date.
That could work considerable hardship as the following examples
illustrate. A youth of 17 from a rural area was assaulted in 2006 and
suffered serious injuries requiring him to return home. According to the
doctors who treated him the true impact of his injuries would not be
known until he was 20. He consulted an attorney with a view to bringing
a claim and was advised to wait until his medical condition had settled,
and his damages could be more accurately assessed, before pursuing the
claim. The attorney advised that waiting would not prejudice his position

because the claim would only prescribe when he turns 21. If the youth
acted on that advice and returned in 2010 when he was 21, on the
respondent‟s contention, the attorney would then advise him that the
claim had prescribed.

[20] Other similar examples can be readily imagined. It is commonplace
within some more privileged communities for children to take a gap year
after completing their matric. Many matriculants are already 18. Take one
who has taken advice on a pre-existing claim and been told that they can
pursue their claim at any time up to one year after they turn 21. On that
footing they travel internationally or go and work in a foreign country,
perhaps in an area of need or development,18 and return more than a year
after 1 July 2007. If the altered interpretation of s 13(1)(a) applies to them
their claim will have prescribed.

[21] In these and other situations that can be imagined, minor claimants
would, if the altered meaning were to be applied to them, suffer a
disability in relation to events past. That disability would consist of their
claims being extinguished by prescription (s 10(1) of the Act) as a result
of the change in the legal position. Even if, as Professor Loubser
suggests,19 the proper analysis of prescription under the Act is that it
confers a substantive statutory right or defence on the debtor, the creation
of such a right or defence, would impose a disability on the creditor. In
practical terms if they wished to pursue their claims, they needed to do so

18 Many young people undertaking a gap year work for NGOs in deprived parts of the world in menial
jobs aimed at providing aid to disadvantaged communities.
19 M M Loubser „J C de Wet and the theory of Extinctive Prescription‟ in A Man of Principle The Life
and legacy of JC de Wet (ed Jacques du Plessis and Gerhard Lubbe) 409.

earlier than they would otherwise have had to do.20 This may not amount
to a new duty being imposed in the sense that Corbett CJ used the word
„duty‟, which was as a matter of positive obligation, but that is
immaterial. As long as there is a potential disability for claimants affected
by the change they are entitled to the benefit of the presumption that the
change in the law does not apply to their situations.

[22] No such prejudice confronts potential defendants if the effect of the
change in the law is that it applies only to claims arising after 1 July
2007. Their position in regard to claims that accrued before that date
would be unchanged. They were already in the position that existing
claims might only be pursued many years hence. Thus a claim by an
infant arising from a birth injury, occurring early in 2007, could
potentially be brought at any time up to 2029. The benefit of that period
being reduced by three years to 2026 seems small in comparison with the
potential prejudice to claimants who suddenly found that the period for
pursuing their claims had been markedly reduced. Counsel was unable to
point us to any prejudice that would flow to this defendant, or persons
facing claims generally, if the altered meaning is only applied to claims
arising after 1 July 2007.

[23] The Children‟s Act does not address this issue and nor did the Law
Commission. If anything their silence points in favour of the change in
the law operating only in cases arising after the change occurred. In one
respect at least it is proper to infer that the change did not operate
retrospectively. It is that persons over the age of 18 on 1 July 2007
attained their majority on that day, not on the earlier day when they

20 The change „impacts negatively upon the applicant‟s substantive right to a claim for damages by
impairing and limiting its enforcement‟. Shange v MEC for Education, Kwa-Zulu-Natal 2012 (2) SA
519 (KZD) para 27.

turned 18.21 In other words if they had entered into contracts prior to that
date, then after they turned 18 those contracts did not automatically
become enforceable against them on 1 July 2007. Equally a marriage
entered into by a 19 year old prior to that date, but without the requisite
consent and accordingly invalid,22 would not become valid and could still
be dissolved for such lack of consent.23 Why then should the position in
relation to prescription be any different? In addition to hold that the
change only operated in relation to claims arising after that date would be
consistent with the approach adopted in 1969 when the Act replaced the
1943 Act.24 Overall the balance is tilted firmly in favour of the altered
interpretation of s 13(1)(a) being applicable only to claims arising after
1 July 2007 and I so hold.

[24] In the result the appeal succeeds with costs and the order of the
court below is altered to one dismissing the special plea of prescription
with costs.

M J D WALLIS
JUDGE OF APPEAL

21 Apdol v Road Accident Fund 2013 (2) SA 287 (GNP) para 25.
22 Section 24(1) of the Marriage Act 25 of 1961.
23 Section 24A of the Marriage Act.
24 Section 11 of the 1943 Act made its provisions applicable to periods of prescription that had
commenced but were incomplete when the Act came into operation, subject to the period of
prescription not being reduced.

Appearances

For appellant:
J S Saner
Instructed by:
DSC Attorneys, Cape Town
Rosendorff Reitz and Barry, Bloemfontein

For respondent:
M O‟Sullivan (the heads of argument having been
drafted by N Bawa)
Instructed by:
State Attorney, Cape Town and Bloemfontein.
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:  12 March 2014

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.

Malcolm v Premier, Western Cape

Mr Malcolm was infected with Hepatitis B whilst a patient in the
Red Cross Children’s Hospital in 1994. In 2008 shortly after his 21st
birthday he instituted action to recover damages against the Premier of
the Western Cape in her official capacity, alleging that his infection was
due to negligence on the part of the hospital staff. In terms of the
Prescription Act he had one year after the impediment of minority ceased
to exist in which to bring his action. At the time he was infected that
would in the ordinary course have been when he reached the age of 21.
However, with effect from 1 July 2007 the age of majority was lowered
to 18. As a result it was argued on behalf of the Premier that he became a
major by operation of law on 1 July 2007 and that as he did not bring his
claim within one year from that date it had prescribed. That contention
had been upheld by the Western Cape High Court.

The SCA said that it had been held in an earlier decision of the
court that for the purposes of prescription the issue was not whether the
person was legally a major, but whether they had reached a particular
age. In the light of circumstances prevailing at the time of that decision in
1978 it held that age to be 21 years. The SCA today held that present
circumstances had changed in regard to the understanding of who is a

minor in our society, in the light of social changes in South Africa and
international trends. It accordingly held that in present circumstances the
age at which a person ceases to be a minor for the purposes of
prescription is 18 years. However, it held that this altered interpretation of
the relevant statutory provision did not operate in relation to claims that
had arisen before the change became effective where prescription was
already running on a different basis. Accordingly the appeal was upheld
and the plea of prescription was dismissed.