Another Victory In The Supreme Court Of Appeal

Cameron Malcolm had already been dealt a cruel hand when he was diagnosed with Stage 1 Hodgkin’s Lymphoma at the tender age of 6 in 1993. The next blow came when, whilst undergoing treatment for this condition at the Red Cross Children’s Hospital in 1994, he was infected with Hepatitis B, allegedly as a result of negligence on the part of the hospital and/or its staff. The knock-out blow came years later when, having reached adulthood and subsequently instructing DSC to pursue a claim for damages against the Premier of the Western Cape Government (in her nominal capacity) in relation to this infection, the Premier successfully contended in the Western Cape High Court that Cameron’s claim had become prescribed as a result of the age of majority having in the interim been reduced from 21 to 18 years by virtue of section 17 of the Children’s Act 38 of 2005 which came into operation on 1 July 2007, just days after Cameron had celebrated his 20^th birthday.

Had it not been for this downward adjustment of the age of majority, the completion of prescription would, in terms of the legal position which prevailed at the time that Cameron became infected, have been delayed in terms of sections 13(1)(a) and (i) of the Prescription Act 68 of 1969 until one year following reaching the age of 21 years. In Cameron’s case this would have meant that he could institute action up until 20 June 2009 as he was born on 21 June 1987. The Summons was served on the Defendant on 15 December 2008, therefore well within this period.

The Defendant however argued before Louw J in the Western Cape High Court that on 1 July 2007, when section 17 of the Children’s Act came into force, Cameron became a major on that day by operation of law and therefore had only one year from that date, i.e until midnight on 30 June 2008, to institute the action and as he had not done so, the claim became prescribed upon expiry of that one year period.

Although Louw J agreed with the contention that section 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 (i.e the reduction only applied 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…” (own emphasis). Consequently, Louw J held that the period of prescription in respect of Cameron’s claim was completed on 1 July 2008 and therefore upheld the Defendant’s Special Plea of prescription and dismissed the claim with costs.

With the leave of the Court a quo an appeal was subsequently launched to the Supreme Court of Appeal on Cameron’s behalf. The appeal was argued on 21 February 2014 and judgment was promptly handed down on 14 March 2014.

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 section 13(1)(a) of the Prescription Act 68 of 1969 had already been the subject of an earlier decision of that Court in Santam Versekeringsmaatskappy Bpk v Roux[1] where 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…” (own emphasis).

The Defendant (the Respondent in the appeal) sought to argue that in the light of the passage of section 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. Whilst the Court was persuaded that the word “minor” in section 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 thereupon 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 prior to the change…”. The Court held further that the situation in casu was not one which was covered by section 12 of the Interpretation Act 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 section 13(1)(a) did not automatically operate in relation to all unexpired periods of prescription that were running when the change in meaning occurred and 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 further 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 for 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 section 17 of the Children’s Act to institute action – could result in considerable hardship to a number of potential plaintiffs whilst “…(n)o such potential 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.

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[1] 1978 (2)SA 856 (A)