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[2016] ZASCA 25
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Madalane v Van Wyk (87/15) [2016] ZASCA 25 (18 March 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 87/15
DATE:
18 MARCH 2016
Not
Reportable
In
the matter between:
LINAH
NTOMBI MADALANE obo CLERICIA MASUKUAPPELLANT
And
IZAK
DANIEL VAN WYK RESPONDENT
Neutral
Citation
:
Madalane
v Van Wyk
(87/2015)
[2016] ZASCA 25
(18
March 2016)
Coram:
Ponnan, Zondi JJA and Plasket AJA
Heard:
26 February 2016
Delivered:
18 March 2016
Summary:
Locus standi in judicio
–
mother purporting to institute action on behalf of
her adult daughter – lacks
locus
standi
to do so.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria, (Thobane AJ sitting as court of
first instance):
The
appeal is dismissed with costs.
JUDGMENT
Zondi
JA (Ponnan JA and Plasket AJA concurring):
[1]
This is an appeal against the judgment of Thobane AJ sitting in the
Gauteng Division of the High Court, Pretoria, upholding
the
respondent’s special plea of lack of locus standi in judicio.
[2]
Ms Clericia Masuku was born on 12 February 1991. On 17 December 2003,
when she was 12 years old, she was injured in a motor
vehicle
accident whilst she was a passenger on a trailer towed by a vehicle
driven by the respondent. On 20 September 2010 her
mother, Ms Linah
Ntombi Madalane, caused summons to be issued against the respondent.
Paragraph 1 of the Particulars of Claim,
annexed to the summons,
reads:
‘
EISERES,
is ‘n meederjarige huishulp met identiteitsnommer 651128 0743
089, wat hierin optree in haar hoedan[ig]heid as moeder
en natuurlike
voog van haar minderjarige kind Clericia Masuku (gebore op 12
Februarie 1991) en ook van dieselfde adres as die Eiseres
naamlik
Standplaas 162, Tshabalala Trust, Hazyview (hierna die minderjarige
kind genoem).’
The
summons was met with a special plea in these terms:
‘
1.1
Plaintiff is acting on behalf of Clericia Masuku, a female born on 12
February 1991.
1.2
Clericia Masuku attained majority on 12 February 2009, at the age of
18 years, in terms
of
sec. 17
of the
Childrens Act no. 38 of 2005
.
1.3
Plaintiff’s summons was issued 20 September 2010, after
Clericia Masuku attained majority.
1.4
In the premises Plaintiff lacks
locus
standi
in
iudicio
and Defendant prays that the
action be dismissed with costs.’
[3]
The court a quo was asked in terms of Uniform
rule 33
(4) to
determine only the issue of locus standi. It determined that issue in
the respondent’s favour and accordingly upheld
the special
plea. The appeal is with the leave of this court.
[4]
At that time of the collision, the age of majority was 21 years in
terms of s 1 of the Age of Majority Act 57 of 1972.
That was
altered to 18 years by way of s 17 of the Children’s Act 38 of
2005 (the Act), which came into operation on 1 July
2007. The Act
repealed the Age of Majority Act but its repeal did not take effect
until 1 July 2007 when s 17 came into operation.
[5]
Ordinarily a minor’s locus standi in judicio is limited in that
he or she cannot institute or defend any legal proceedings
by himself
or herself. He or she requires the assistance of his or her guardian
and consequently can only sue or be sued in the
name of his or her
guardian as representing him or her, or in his or her own name
assisted by the guardian.
[1]
The effect of s 17 of the Act is that minority with its limits on
legal capacity terminates when a person turns 18 years. What
this
means, is that in the absence of any other legal impediment an 18
year old person can sue or be sued in his or her own name.
[6]
Counsel for the appellant submitted that under the Age of Majority
Act - the applicable Act when her cause of action arose -
Ms Masuku
had a right to be assisted by her guardian in any legal proceedings
by or against herself until she turned 21 years,
and this was not
affected by s 17. In support of this proposition he relied on the
decision of this Court in
Malcolm
v Premier, Western Cape Government.
[2]
He argued that as Ms Masuku’s right to be assisted by her
guardian vested in her prior to 1 July 2007, the appellant had
the
necessary locus standi to institute an action on her behalf (when she
did on 20 September 2010). Reliance was also placed on
the principle
that statutes are presumed not to affect vested rights. They are
presumed to govern transactions in the future and
not those in the
past.
[3]
Counsel’s reliance on
Malcolm
is misplaced. In that case this Court was concerned with the special
plea of prescription in terms of the
Prescription Act 68 of 1969
and
the extent to which
s 13(1)(a)
of that Act was affected by s 17 of
the Act. The question of locus standi did not arise at all for
consideration by this Court.
Malcolm
is
also distinguishable on the facts in that there
Malcolm
himself,
not his guardian on his behalf, had instituted legal proceedings for
the recovery of damages. In other words, the person
who brought the
action had the necessary locus standi and, therefore, his capacity to
institute proceedings was not disputed.
[4]
Moreover, from the perspective of the minor, the reduction in the age
of majority from 21 to 18 by the Act, amounts to the removal
a legal
impediment, not the imposition of one. To put it another way, a child
can now litigate in his or her own name (and without
the assistance
of his or her parent) from the time that such child turns 18,
whereas in the past that very same child would
have had to wait until
21 to do so.
[7]
In the present case at the issue of summons, Ms Masuku had been a
major for over a year and a half. The allegation in the summons
that
she was then still a minor is accordingly factually inaccurate and
bad in law. She could sue or be sued in her own name without
the
assistance of her legal guardian. The appellant did not therefore, at
the time of institution of the action, have locus standi
to act on
her behalf. The court a quo was therefore correct in upholding a
special plea.
[8]
In the result the appeal is dismissed with costs.
D
H Zondi
Judge
of Appeal
Appearances
For
the Appellant: C van Jaarsveld
Instructed
by: Frans Schutte Inc,
c/o
Schutte De Jong Inc, Pretoria
Symington
& De Kok, Bloemfontein
For
the Respondent: B P Geach SC
Instructed
by: Nell, Kotzé & Van Dyk Attorneys, Pretoria
Van
den Berg Van Vuuren Attorneys, Bloemfontein
[1]
F. du Bois
Wille’s
Principles of South African law
(2007) 9 ed at 187;
Guardian
National Insurance Co Ltd v Van Gool NO
[1992] ZASCA 96
;
1992 (4) SA 61
(A) at 66F-G.
[2]
Malcolm
v Premier, Western Cape Government
[2014]
ZASCA 9; 2014 (3) SA 177 (SCA).
[3]
National
Iranian Tanker Co v MV Pericles GC
[1994]
ZASCA 145
;
1995 (1) SA 475
(A) at 483I-J.
[4]
See para 4 of the judgment.