THE SUPREME COURT OF APPEAL
CAMERON STEWART MALCOLM VS THE WESTERN CAPE GOVERNMENT
Historically the age of majority for minors in South Africa was 21 years. This was changed by Section 17 of the Child’s Care Act 38 of 2005 with effect from the 1st
of July 2007. This changed the age of majority from 21 to 18 years.
Prescription generally did not run against minors and so the question arose what effect this will have on minors who had already been born on or before the 1st
of July 2007. Will the prescription apply being calculated from their turning 18 or 21 years.
In the Supreme Court of Appeal Judgment of Cameron Stewart Malcolm versus the Premier of the Western Cape Government which was handed down in March 2014 this issue was decided. In that matter, a Mr. Malcolm was admitted to hospital when he was 6 years of age and was infected with Hepatitis B which he ascribed to negligence on behalf of the hospital and its staff.
In terms of Section 13 (1)(a) of the Prescription Act, 68 of 1969, he would have had one year from the time he obtained majority which at that stage was 21 years to have instituted an action. The age of majority was reduced from 21 to 18 years after his cause of action arose (after he was infected with Hepatitis B) but before he reached twenty one. The action in the Western Cape High Court was dismissed on the basis that his claim had, as a result, prescribed.
When the matter was taken to Appeal, the Supreme Court of Appeal found the period for prescription in respect of claims whose cause of action arose on or before the 1st
of July 2007 should still be calculated as if 21 years was the age of majority and as a result his Appeal succeeded.
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