18 the new 21 – the retrospective application of a statute

July 1st, 2014

By Kirstie Haslam

The Supreme Court of Appeal, has recently, in the matter of Malcolm v Premier, Western Cape Government 2014 (3) SA 177 (SCA) conclusively ruled on the effect of the reduction of the age of majority from 21 to 18 years by virtue of s 17 of the Children’s Act 38 of 2005 on the interpretation of s 13(1)(a) of the Prescription Act 68 of 1969. The plaintiff, a minor at the time that his claim for damages arose (prior to the coming into operation on 1 July 2007 of s 17 of the Children’s Act) and was rendered a major ex lege on 1 July 2007, sought to institute action more than one year thereafter.

The facts of the matter were, briefly, as follows:

  • Mr Malcolm was born on 21 June 1987.
  • In 1993, at the age of six, Mr Malcolm was diagnosed with stage 1 Hodgkin’s Lymphoma and was admitted to the Red Cross Children’s Hospital in Cape Town for treatment.
  • It is alleged that while undergoing treatment in hospital he was, due to negligence on the part of the hospital and its staff, infected with Hepatitis B, which was subsequently diagnosed in October 1994.
  • Mr Malcolm turned 18 on 21 June 2005. Action was instituted against The Premier of the Western Cape Provincial Government when summons was served on the defendant on 15 December 2008.
  • Mr Malcolm was 21 years, five months and six days old at the time of service of the summons.

Section 11(d) of the Prescription Act provides that the period of prescription in respect of Mr Malcolm’s claim was three years, commencing from when the claim became due, which was accepted as being in October 1994 when the diagnosis of the Hepatitis B infection was made. Mr Malcolm was, however, still a minor upon expiry of this period and, therefore, by virtue of ss 13(1)(a) and (i) of the Prescription Act, completion of prescription was delayed until one year after becoming a major. The relevant sections provide as follows:

‘If –


the creditor is a minor…;


(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).’

The issue that arose in the instant matter related to the interpretation of these provisions of the Prescription Act in light of the reduction of the age of majority from 21 to 18 with effect from 1 July 2007. Prescription commenced running in October 1994 as the Age of Majority Act 57 of 1972 provided that ‘[a]ll persons, whether males or females, attain the age of majority when they attain the age of twenty-one years.’

In terms of s 313 of the Children’s Act (read with sched 4 of the Act) the Age of Majority Act was repealed on 1 July 2007 when s 17 came into operation.

The defendant raised a special plea of prescription on the following basis:

  • The plaintiff reached the age of 18 on 21 June 2005 and the age of 21 years on 21 June 2008.
  • By virtue of the coming into operation of s 17 of the Children’s Act on 1 July 2007, the plaintiff became a major on this date, namely, the impediment of minority ceased to exist on this date.
  • Consequently, the plaintiff had one year as from the latter date to institute action against the defendant, namely, summons had to be served on or before 30 June 2008.
  • As summons was served only on 15 December 2008, the action had become prescribed.

The special plea was initially adjudicated on by Louw J. Per his judgment delivered on 18 January 2013, he upheld the special plea and dismissed the plaintiff’s claim with costs. Although Louw J agreed with the contention that s 17 of the Children’s Act could not and did not have retrospective application in terms of the reduction of the age of majority from 21 to 18 years (ie, the reduction applied only as from 1 July 2007 onwards), he nevertheless agreed with the defendant’s argument that this reduction was done with the legislative intent of affecting the plaintiff’s right (to institute the action) ‘in a specific manner and to a specific intent’ and that the intended effect was ‘to reduce the time available to a minor creditor to institute the action to one year after such a creditor reaches the reduced age of majority’ (my emphasis). Consequently, Louw J held that the period of prescription in respect of Malcolm’s claim had been completed on 1 July 2008 and the claim had, therefore, prescribed. With the leave of the court a quo, the plaintiff launched an appeal to the Supreme Court of Appeal. The appeal was argued on 21 February 2014 and judgment handed down on 14 March 2014.

The issue of the prescription of a claim in similar circumstances had previously arisen in the Supreme Court of Appeal in the matter of MEC for Education, Kwa-Zulu-Natal v Shange 2012 (5) SA 313 (SCA) (The matter related to an application for condonation for the plaintiff’s non-compliance with the provisions of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002).

The court a quo had held that:

‘When applying the Children’s Act, it is clear that the rights which a child has in terms thereof, supplement the rights which a child has in terms of the Bill of Rights and all organs of state at any level of government are obliged to respect, protect and promote the rights of children contained in the Children’s Act. In terms of the Constitution of the Republic of South Africa, the rights of children are of paramount importance. The applicant was a child at the time his cause of action arose and accordingly the Constitution applied to him.’

Consequently when s 17 of the Children’s Act came into effect it impinged on the applicant’s accrued rights. Condonation was, therefore, granted inter alia on the basis that ‘a child whose cause of action arose before the commencement of s 17 of the Children’s Act 38 of 2005 is still entitled to the same period of time in which to institute his or her claim for damages as he or she would have been, had the age of majority not been changed.’

The Supreme Court of Appeal in Shange upheld the decision of the court a quo, however, it did so on a different basis which related to when the applicant (the respondent in the appeal) had become aware of the identity of the (joint) debtor for purposes of s 12(3) of the Prescription Act. Insofar as s 17 of the Children’s Act was concerned and its effect on the running of prescription, it held that: ‘There was therefore no need for the court below to have entered into the involved investigation of the effect [thereof]’. This issue, therefore, remained open.

However, in dealing with this specific issue in the matter of Malcolm, the Supreme Court of Appeal, per Wallis JA (Navsa, Shongwe and Theron JJA and Legodi AJA concurring), held that the arguments advanced in the court below overlooked the fact that the meaning of the word ‘minor’ in s 13(1)(a) of the Prescription Act had already been the subject of an earlier decision of the SCA in Santam Versekeringsmaatskappy Bpk v Roux 1978 (2) SA 856 (A) where it had been 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’ (my emphasis).

The defendant (the respondent in the appeal) sought to argue that, in the light of the passage of s 17 of the Children’s Act, the relevant age (for purposes of establishing ‘minority’ in the conventional as opposed to the legal sense of the term) should be held to be 18. Whereas the court was persuaded that the word ‘minor’ in s 13(1)(a) of the Prescription Act now means a person under the age of 18 years ‘and to that extent [is a] depart[ure] from the decision in Roux’ it went on to consider the date from which this altered interpretation took effect.

The court noted that in the enactment of the Children’s Act and the consequent reduction of 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’ but, crucially, that ‘[i]t is therefore from [the date of the enactment] … that the interpretation of s 13(1)(a), and hence our law, changed’. The court acknowledged that ‘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 origins in events prior to the change’.

The court held further that the situation in casu was not one that was covered by s 12(c) of the Interpretation Act 33 of 1957 (which, inter alia, provides that where a law repeals any other law, the repealing law shall not, save where a contrary intention appears, affect the previous operation of any law so repealed nor shall it ‘affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed’) as no Act had been repealed and the change in the legal position ‘was triggered by an amendment to the legal age of majority [which] did not involve either the repeal or amendment of s 13(1)(a) of the [Prescription] Act’.

The court held that the new meaning of s 13(1)(a) did not automatically operate in relation to all unexpired periods of prescription that were running when the change in meaning occurred. It noted that: ‘Frequently [the] question [of whether a change to an existing law applied to matters having their origin in past events] is resolved by way of transitional provisions in an amending law’. There being no such transitional provision in this instance, after noting the principles applicable when a statute brings about a change in the law as laid down previously, the court held that the ‘prima facie rule of construction that 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…seems…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’. The court consequently held that, in so adapting this principle, ‘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’.

The court considered that adopting the approach as contended by the respondent/defendant – to allow persons rendered majors by virtue of the reduction of the age of majority only one year from the date of the enactment of s 17 of the Children’s Act to institute action – could result in considerable hardship to a number of potential plaintiffs, whereas ‘[n]o 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’. The court concluded by holding that: ‘[O]verall, 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’.

The appeal, therefore, succeeded with costs and the order of the court a quo was altered to one dismissing the special plea of prescription with costs. In delivering this judgment the Supreme Court of Appeal has clarified the legal position of minors born prior to 1 July 2007 regarding the period they have to pursue accrued claims which arose prior to this date.

Kirstie Haslam BA LLB (Stell) is an attorney at DSC attorneys in Cape Town. DSC Attorneys were the attorneys of record for the appellant in the matter.

This article was first published in De Rebus in 2014 (July) DR 30.