Malcolm v Premier, Western Cape Government

The appellant, Cameron Stewart Malcolm, was born on 21 June 1987. While undergoing treatment for Hodgkin’s Lymphoma at Red Cross Children’s Hospital in 1993–1994, he allegedly contracted Hepatitis B due to negligence by the hospital and its staff. His delictual claim for damages arose in October 1994, when he was still a minor. The respondent raised a special plea of prescription, arguing that due to the Children’s Act 38 of 2005 lowering the age of majority to 18 with effect from 1 July 2007, the impediment of minority in terms of s 13(1)(a) of the Prescription Act 68 of 1969 ceased on that date, and the claim prescribed one year later. The High Court upheld the plea of prescription, and the appellant appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order dismissing the special plea of prescription with costs.

This case is significant for clarifying the interpretation of 'minor' in the Prescription Act in light of constitutional values and the Children’s Act. It confirms that statutory interpretation may evolve with social change, but also reinforces the presumption against retrospectivity where vested rights or accrued claims would be prejudiced. The decision protects claimants whose causes of action arose before the change in the age of majority.