Cameron Stewart Malcolm v Premier, Western Cape Government

The appellant, Cameron Stewart Malcolm, was born on 21 June 1987. In 1993, when he was six years old, he was diagnosed with Stage 1 Hodgkin's Lymphoma and admitted to Red Cross Children's Hospital in Cape Town for treatment. In October 1994, he was diagnosed with Hepatitis B, which he alleged he contracted due to negligence at the hospital. He brought an action for damages which was met with a special plea of prescription. At the time the claim arose in October 1994, the age of majority was 21 years under the Age of Majority Act 57 of 1972. However, section 17 of the Children's Act 38 of 2005, which came into operation on 1 July 2007, lowered the age of majority to 18 years. On 1 July 2007, Malcolm was already over 18 but not yet 21. The respondent argued that the impediment of minority ceased to exist on 1 July 2007, giving Malcolm only one year until 30 June 2008 to institute action. Malcolm instituted proceedings within one year of turning 21, but more than one year after 1 July 2007. Louw J upheld the special plea of prescription in the Western Cape High Court.

• Whether the change in the age of majority from 21 to 18 years affected the interpretation of 'minor' in section 13(1)(a) of the Prescription Act 68 of 1969
• Whether a statute should be interpreted as 'always speaking' to reflect changed social circumstances
• Whether the interpretation in Santam Versekeringsmaatskappy Bpk v Roux (that 'minor' means a person under 21 years regardless of legal status) remained applicable
• Whether any changed interpretation of section 13(1)(a) operates retrospectively to claims arising before 1 July 2007
• When the impediment of minority ceased to exist for purposes of prescription in this case

The appeal was upheld with costs. The order of the court below was altered to one dismissing the special plea of prescription with costs.

The binding principles established are: (1) Statutes are 'always speaking' and may be interpreted in light of changed social circumstances and constitutional values, particularly where earlier interpretations are inconsistent with constitutional protections such as dignity; (2) The word 'minor' in section 13(1)(a) of the Prescription Act 68 of 1969 now means a person under 18 years of age (following the enactment of the Children's Act which lowered the age of majority); (3) Where a change in the law results from a changed judicial interpretation of a statute triggered by amendments to other legislation, there is a presumption against retrospective application of that changed interpretation; (4) A changed interpretation that would impose a new disability or impair vested rights in relation to events already past will not apply retrospectively unless unavoidable on the language used or clearly intended; (5) The altered interpretation of section 13(1)(a) applies only to claims arising after 1 July 2007 (when the Children's Act came into operation), not to claims that arose before that date.

The Court made several non-binding observations: (1) It left open the question whether a person under 18 who enters into a lawful marriage or who would be regarded under common law as having been tacitly emancipated is still to be regarded as a minor for purposes of the Prescription Act; (2) The Court noted that the decision in Roux was possibly open to criticism as it was inconsistent with the views of Professor J C de Wet who drafted the Prescription Act, though it did not decide whether Roux was clearly wrong when decided; (3) The Court observed that section 12(2) of the Interpretation Act 33 of 1957 was not applicable because no statute had been repealed—only the interpretation of an existing provision had changed; (4) The Court noted that if prescription under the Act confers a substantive statutory right or defence on the debtor (as Professor Loubser suggests), the creation of such a right would still impose a disability on the creditor; (5) The Court suggested that by inference persons over 18 on 1 July 2007 attained majority on that day, not on the earlier day when they turned 18, meaning prior contracts and marriages would not be retrospectively validated.

This case is significant for several reasons: (1) It establishes that the 'always speaking' principle of statutory interpretation applies in South African law, allowing courts to interpret statutes in light of changed social circumstances and constitutional values; (2) It partially departs from the precedent in Santam Versekeringsmaatskappy Bpk v Roux by holding that 'minor' in section 13(1)(a) of the Prescription Act now means a person under 18 years (not 21), reflecting changed social understanding of adulthood and the constitutional protection of dignity; (3) It establishes important principles regarding the temporal application of judicially-altered interpretations, holding that such changes operate prospectively only, applying to claims arising after the date of the legal change that triggered the reinterpretation; (4) It demonstrates how constitutional values, particularly dignity, inform statutory interpretation; (5) It provides guidance on when courts may depart from their own precedents based on changed circumstances.