About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 9
|
|
Malcolm v Premier, Western Cape Government N.O. (207/2013) [2014] ZASCA 9; 2014 (3) SA 177 (SCA); [2014] 2 All SA 251 (SCA) (14 March 2014)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 207/2013
In
the matter between:
CAMERON
STEWART MALCOLM
.............................................
Appellant
and
PREMIER,
WESTERN CAPE GOVERNMENT NO
...............
Respondent
Neutral
citation:
Malcolm v Premier, Western
Cape
(207/2013)
[2014] ZASCA 9
(14
March 2014)
Coram:
Navsa, Shongwe, Theron and Wallis JJA and Legodi
AJA
Heard
:
21 February 2014
Delivered
:
14 March 2014
Summary:
Prescription – plaintiff a minor
when claim arose – age of majority then 21 years – s
13(1)
(a)
of
Prescription Act 68 of 1969
– interpretation of –
interpretation in light of changed circumstances – effect of
s
17
of Children’s Act 38 of 2005 on expiry of prescriptive
period
ORDER
On
appeal from:
Western Cape High Court
(Louw J sitting as court of first instance):
The
appeal is upheld with costs and the order of the court below is
altered to one dismissing the special plea of prescription with
costs.
JUDGMENT
Wallis
JA
(
Navsa,
Shongwe and Theron JJA and Legodi AJA
concurring)
[1]
Mr Malcolm was born on 2[…] J[…]
1[…]. In 1993, when he was six years old, he was diagnosed
with Stage 1 Hodgkin's
Lymphoma. He was admitted to the Red Cross
Children's Hospital in Cape Town for treatment. He alleges that
whilst he was in hospital
undergoing treatment there was an outbreak
of Hepatitis B at the hospital and in October 1994 he was diagnosed
with that disease.
He ascribes his infection with Hepatitis B to
negligence on the part of the hospital and its staff and seeks by
this action to
recover damages. His claim was met with a special plea
of prescription, which Louw J upheld. The appeal is with his leave.
[2]
In terms of s11
(d)
of the Prescription Act 68 of 1969 (the
Act) the period of prescription in respect of Mr Malcolm’s
claim is three years commencing
from when the claim became due. That
is accepted as being in October 1994. As Mr Malcolm was a minor at
the time of the expiry
of the prescriptive period, completion of
prescription was delayed in terms of ss 13(1)
(a)
and
(i)
of
the Act, which read:
‘
If
–
(a)
the creditor is a minor …;
and
(i)
the relevant period of prescription
would, but for the provisions of this subsection, be completed before
or on, or within one year
after, the day on which the relevant
impediment referred to in paragraph
(a)
… has ceased to exist,
the
period of prescription shall not be completed before a year has
elapsed after the day referred to in paragraph (
i
).’
[3]
The issue in this case arises from a change
in the law relating to the age of majority that occurred after Mr
Malcolm became infected
with Hepatitis B. At that time the age of
majority was 21 years in terms of s 1 of the Age of Majority Act
57 of 1972
.
However,
the age of majority was altered to 18 years by way of s 17 of
the Children’s Act 38 of 2005, which came into
operation on
1 July 2007. On that day and by operation of law Mr Malcolm
attained his majority. The Premier of the Western
Cape, who in her
official position is the defendant to the action and the respondent
in this court, contended in the court below,
and contends in this
court, that accordingly the impediment of minority referred to in
s 13(1)
(a)
of
the Act ceased to exist on that date, leaving Mr Malcolm with one
year in which to institute this action. The result of his not
having
done so was said to be that his claim prescribed one year later on
30 June 2008. Louw J upheld that contention.
[4]
The plea of prescription was resisted on
the basis that when the claim arose Mr Malcolm had until one year
after he turned 21 to
institute action and this was not affected by
the statutory amendment to the age of majority. Reliance was placed
on the broad
principle that statutory changes are presumed not to
prejudice acquired rights and on the provisions of ss 12(2)
(b)
and
(c)
of
the Interpretation Act 33 of 1957. As he commenced these proceedings
within one year of turning 21 it was contended that his
claim had not
prescribed
[5]
The
arguments on both sides in the court below and in this court
proceeded on the footing that the reference to a ‘minor’
in s 13(1)
(a)
of
the Act is a reference to a person who has not yet achieved the legal
status of majority. Flowing from this the respondent adopted
the
approach that the impediment of being a minor would cease to exist
when the person concerned reached the legal age of majority.
However,
this overlooked the fact that the meaning of the word ‘minor’
in that section had already been the subject
of a decision of this
court in
Santam
Versekeringsmaatskappy Bpk v Roux
.
[1]
There 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. It
is accordingly
necessary to examine that decision.
[6]
In
Roux
the plaintiff had been injured in a motor collision shortly before
her eighteenth birthday. A little over a year later she married.
As a
result she became in law a major, although, as the marriage was one
in community of property before the abolition of the marital
power,
her legal capacity was restricted. Shortly after her twenty-first
birthday the marriage ended in divorce. Thereafter, but
within one
year of her twenty-first birthday, she commenced the action. The plea
of prescription was raised on the basis that she
had ceased to be a
minor when she married and accordingly was required to institute her
action within one year of that date and
had not done so.
[7]
The
court was faced with a choice between two contentions.
[2]
For Ms Roux it was argued that, in the absence of a definition, a
‘minor’ in its ordinary meaning was a person under
the
age of 21 years. For the insurance company it was argued that a
‘minor’ was a person who was not a major in the
legal
sense of having achieved their majority. A person was accordingly no
longer a minor for the purposes of prescription if they
had turned
21, or married, or obtained an order of court under s 2 of the
Age of Majority Act, or attained majority in any
other way in which
that status could in law be achieved.
[3]
In opting for the first meaning the court held that in its ordinary
meaning the concept of a ‘minor’ referred to a
particular
age.
[4]
Support for this was
found in the old authorities and in the analysis by Van den Heever J
in
Meyer
v The Master
,
[5]
where that learned judge pointed out that the word ‘major’
was sometimes used to refer to a specific age and sometimes
to the
person enjoying full legal capacity.
[6]
He held that it conventionally refers to a person’s age, not
their legal status.
[8]
Miller
JA, who delivered the judgment in
Roux
,
[7]
held that the purpose of the provision was to protect young people
below a certain age and expressed his conclusions as follows:
[8]
‘
Die
beleid van ons reg, egter, is dat jeugdige persone wel beskerm
behoort te word;
“
the
object of the law...is to protect (minors) against their own
immaturity of judgment”.
(
Edelstein
v Edelstein NO and Others
1952 (3) SA 1
(A) te 15.) …
Rakende
verjaring, leer Pothier
Obligations
:
“
Prescription
does not run against minors, although they have a tutor: this
exception is not founded upon the rule,
contra
non valentem agere, non currit prescriptio
,
since they have a tutor who may sue for them, but upon a particular
indulgence to the infirmity of their age.”
(
Evans
se vertaling band 1 te 452.)
Dit
is duidelik dat in elkeen van die bogenoemde verwysings, bedoel word
deur die woord “minderjarige” of “minor”,
iemand wat 'n bepaalde ouderdomsgrens nog nie bereik het nie. Omrede
die vermoede wat in ons reg geld dat jeugdiges onoordeelkundig
of op
onverantwoordelike wyse mag optree (of versuim om op te tree), word
'n ouderdomsgrens vasgestel om te onderskei tussen diegene
wat
beskerm moet word, en andere. Dit kom my voor dat minderjariges in
art 13 (1)
(a)
van die Verjaringswet ingesluit is, juis omrede die genoemde
vermoede. Ek raak derhalwe tot die gevolgtrekking dat die woord
“minor”
verstaan moet word om te verwys na enige persoon
wat die bepaalde leeftydsgrens nog nie bereik het nie.’
[9]
The
court concluded that until a person turned 21 the impediment of being
a minor for the purposes of the Act did not cease to exist.
If a
person below 21 had nonetheless achieved their majority this was
irrelevant. The court’s conclusion was not based on
the fact
that the statutory age of majority was 21 but on its view of the
ordinary meaning of the word ‘minor’.
[9]
If
the judgment in
Roux
remained
applicable, as an authoritative exposition of the meaning of
s 13(1)
(a)
of
the Act, then it would be decisive of this appeal in favour of the
appellant, as he would only have ceased to be a minor for
the
purposes of prescription when he turned 21. The respondent did not
contend that the judgment was clearly wrong at the time
it was handed
down,
[10]
although there were
possibly grounds for criticism.
[11]
Instead it was submitted that the meaning of the section had changed
in the light of the passage of s 17 of the Children’s
Act,
which lowered the age of majority to 18 years. That submission did
not affect the finding that being a minor in terms of the
Act relates
to a particular age, but focussed on whether 21 remains the relevant
age or whether, in the light of subsequent events,
that age should
now be held to be 18.
[10]
The
proposition underpinning this contention is that, whilst a statute is
enacted at a particular point in time, circumstances in
society may
change over time and it is necessary in expounding the proper meaning
of the statute to have regard to the changing
social environment in
which the statute falls to be applied from time to time. The relevant
principle of interpretation is that
the statute is not fixed at a
point in time but is ‘always speaking’. This was not
always the position. In
Sharpe
v Wakefield
[12]
Lord Esher said:
‘
[T]he
words of a statute must be construed as they would have been the day
after the statute was passed, unless some subsequent
Act has declared
that some other construction is to be adopted or has altered the
previous statute.’
This
court, in
Cape
Provincial Administration v Honiball
,
[13]
appears to have applied a similar principle but, it is clear that it
did so on the basis of the principle of parliamentary supremacy.
However, in recent years courts in England have departed from this
rigid approach and, by adopting the approach that statutes are
‘always speaking’, they have scope to extend the meaning
of statutes to cover new matters and situations that could
not have
been anticipated at the time when they were enacted.
[14]
[11]
There is obvious sense in this approach
when a court is confronted with a novel situation that could not have
been in the contemplation
of the legislature at the time the
legislation was enacted. Courts can then, in the light of the broad
purpose of the legislation,
current social conditions and
technological development, determine whether the new situation can
properly, as a matter of interpretation,
be encompassed by the
language. But, as Lord Bingham pointed out in
Quintavalle
,
by way of example,
they cannot use the
principle to extend legislation relating to dogs to cats, however
desirable such an extension may seem. In other
words the principle
has limits, but subject to that qualification and the case by case
working out of those limits, I see no reason
why, in appropriate
cases, South African courts should not invoke it, particularly in the
light of our present constitutional order
in terms of which statutes
are to be construed in the light of constitutional values.
[12]
The
Constitution enjoins us to interpret legislation in accordance with
the spirit, purport and objects of the Bill of Rights. Where
a
previous interpretation of a statute is no longer consistent with
those values then we are obliged to depart from it. In this
case
there are relevant provisions of the Constitution, to some extent
those relating to children, but in particular s 10,
which
guarantees the right to dignity and provides that everyone is
entitled to have their dignity protected and respected. This
is a
core value of our Constitution.
[15]
[13]
Since
Roux
was decided we have experienced
unprecedented changes in our society. South Africa has become a
constitutional democracy in which
the dignity of all citizens is
subject to constitutional protection. Our Constitution, which affords
special protection to children,
defines them as persons under the age
of 18. The corollary is that persons older than 18 are to be regarded
as adults. Our society
recognises their dignity as adults by giving
them the right to vote and allowing them to conclude contracts and
enter into marriages,
to give consent to medical treatment, to obtain
a passport and many other things. To treat them as less than adult
for a purpose
as important as the law governing prescription
infringes their dignity by affording them an advantage, on the
grounds of their
supposed immaturity and irresponsibility, that is
not available to other adults. It is the notion that they are by
virtue of their
age immature and irresponsible that constitutes the
infringement.
[14]
Apart
from the constitutional aspect there has been a lengthy and detailed
consideration of the legal position of young people in
our
society.
[16]
In line with
international trends in most countries and international instruments,
our law regarding the age of majority has been
changed to lower the
age from 21 to 18 years. The world has changed dramatically since
1969 and those changes, already nascent
at that time, have altered
our view of young people and our understanding of when they reach
maturity and should be treated as
adults. Social circumstances were
very different in 2008, and remain very different in 2014, from those
that prevailed in 1969.
Finally the ‘ordinary meaning’
that was ascribed to the word ‘minor’ in
Roux
was
culturally determined and a reflection of the position within some
but not all sectors of our community.
[15]
For those reasons, and whatever the precise
scope of the ‘always speaking’ principle in our law of
statutory interpretation,
it seems to me that it requires us to say
that the word ‘minor’ in s 13(1)
(a)
of the Act now means a person under the
age of 18 years and to that extent to depart from the decision in
Roux
.
However, I do not go so far as to say that it is confined to meaning
any person who in law has not attained their majority. It
was not
argued that this aspect of the decision in
Roux
was clearly wrong, and I prefer to
leave open the question whether a person under 18 who enters into a
lawful marriage, or who by
virtue of their life circumstances would
be regarded under the common law as having been tacitly emancipated
from their minority,
is no longer to be regarded as a minor for the
purposes of the Act. That is not the situation before us and it would
be preferable
to leave it for decision on an appropriate occasion
when it arises pertinently.
[16]
From what date did this altered
interpretation take effect? The changes that warrant departing from
what was decided in
Roux
culminated
in the enactment of the Children’s Act and the alteration it
effected to 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. For so long as the age
of majority remained
fixed at 21 it could not be said that social circumstances had so
altered that the legal position as laid
down in
Roux
had changed. It is therefore from that date and triggered by that
legislative change that the interpretation of s 13(1)
(a)
,
and hence our law, changed. However, 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 origin in events prior to
the change.
If a law has been repealed the Interpretation Act provides, in
s 12(2) thereof, for the consequences of the repeal.
T
he
section commences with the words: ‘Where a law repeals any
other law, then unless the contrary intention appears, the repeal
shall not …’ It is accordingly applicable to the
consequences of the statute or statutory provision under
consideration
being repealed.
But we are not
dealing with the repeal of a statute and accordingly the reliance on
this section in argument on behalf of Mr Malcolm
is misplaced. The
Prescription Act has
neither been repealed nor amended. All that has
happened is that the section in the Act has been interpreted in the
light of changed
circumstances and constitutional values. That is not
a situation covered by s 12 of the Interpretation Act. Whilst the
change in
the legal position was triggered by an amendment to the
legal age of majority it did not involve either the repeal or
amendment
of s 13(1)
(a)
of
the Act.
[17]
That does not, however, mean that the new
meaning of s 13(1)
(a)
automatically
operates in relation to all unexpired periods of prescription that
were already running when the change in meaning
occurred. I have
already noted that whenever there is a change to existing law the
question arises whether the change applies in
relation to matters
that have their origin in past events. Frequently that question is
resolved by way of transitional provisions
in an amending law. The
Act provides a clear example of this. It repealed and replaced the
Prescription Act 18 of 1943. In s 16
it dealt with the
implications of this by providing that prescription in respect of
debts arising before the commencement of the
Act would be dealt with
under the 1943 Act and debts arising after its commencement would be
dealt with under the Act. No doubt
had there been an amendment of the
Act when the Children’s Act came into operation there would
have been a similar provision
governing the transition. Instead it is
necessary for the court to resolve the issue by determining the
effect of the changed interpretation
of s 13(1)
(a)
.
[18]
The
principles applicable when a statute brings about a change in the law
have been laid down in a number of cases. For present
purposes they
were summarised by Corbett CJ in the
Pericles
GC
[17]
in the following terms:
‘
There
is at common law a prima facie rule of construction that a statute
(including a particular provision in 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. A statute is retrospective in its effect if it takes
away or impairs a vested right acquired under existing
laws or
creates a new obligation or imposes a new duty or attaches a new
disability in regard to events already past.’
That
statement was made in relation to a change in the law brought about
by statute. Appropriately adapted it seems to me 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. So adapted 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.
[19]
When the change in meaning of s 13(1)
(a)
came into effect on 1 July 2007
there must have been a number of unresolved claims by minors in
respect of which prescription
had already started to run. If the
change applies to all such claims, as contended by the respondent,
then any claimant who celebrated
their eighteenth birthday between
1 July 2005 and 30 June 2008 would be left with only one
year after 1 July 2007
in which to pursue their claim if they
were to avoid prescription, instead of the longer period of up to
four years that they had
before that date. That could work
considerable hardship as the following examples illustrate. A youth
of 17 from a rural area was
assaulted in 2006 and suffered serious
injuries requiring him to return home. According to the doctors who
treated him the true
impact of his injuries would not be known until
he was 20. He consulted an attorney with a view to bringing a claim
and was advised
to wait until his medical condition had settled, and
his damages could be more accurately assessed, before pursuing the
claim.
The attorney advised that waiting would not prejudice his
position because the claim would only prescribe when he turns 21. If
the youth acted on that advice and returned in 2010 when he was 21,
on the respondent’s contention, the attorney would then
advise
him that the claim had prescribed.
[20]
Other
similar examples can be readily imagined. It is commonplace within
some more privileged communities for children to take a
gap year
after completing their matric. Many matriculants are already 18. Take
one who has taken advice on a pre-existing claim
and been told that
they can pursue their claim at any time up to one year after they
turn 21. On that footing they travel internationally
or go and work
in a foreign country, perhaps in an area of need or development,
[18]
and return more than a year after 1 July 2007. If the altered
interpretation of s 13(1)
(a)
applies
to them their claim will have prescribed.
[21]
In
these and other situations that can be imagined, minor claimants
would, if the altered meaning were to be applied to them, suffer
a
disability in relation to events past. That disability would consist
of their claims being extinguished by prescription (s 10(1)
of
the Act) as a result of the change in the legal position. Even if, as
Professor Loubser suggests,
[19]
the proper analysis of prescription under the Act is that it confers
a substantive statutory right or defence on the debtor, the
creation
of such a right or defence, would impose a disability on the
creditor. In practical terms if they wished to pursue their
claims,
they needed to do so earlier than they would otherwise have had to
do.
[20]
This may not amount to
a new duty being imposed in the sense that Corbett CJ used the word
‘duty’, which was as a matter
of positive obligation, but
that is immaterial. As long as there is a potential disability for
claimants affected by the change
they are entitled to the benefit of
the presumption that the change in the law does not apply to their
situations.
[22]
No such 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. Their position in
regard to claims that accrued before that date would be unchanged.
They were already
in the position that existing claims might only be
pursued many years hence. Thus a claim by an infant arising from a
birth injury,
occurring early in 2007, could potentially be brought
at any time up to 2029. The benefit of that period being reduced by
three
years to 2026 seems small in comparison with the potential
prejudice to claimants who suddenly found that the period for
pursuing
their claims had been markedly reduced. Counsel was unable
to point us to any prejudice that would flow to this defendant, or
persons
facing claims generally, if the altered meaning is only
applied to claims arising after 1 July 2007.
[23]
The
Children’s Act does not address this issue and nor did the Law
Commission. If anything their silence points in favour
of the change
in the law operating only in cases arising after the change occurred.
In one respect at least it is proper to infer
that the change did not
operate retrospectively. It is that persons over the age of 18 on
1 July 2007 attained their majority
on that day, not on the
earlier day when they turned 18.
[21]
In other words if they had entered into contracts prior to that date,
then after they turned 18 those contracts did not automatically
become enforceable against them on 1 July 2007. Equally a
marriage entered into by a 19 year old prior to that date, but
without the requisite consent and accordingly invalid,
[22]
would not become valid and could still be dissolved for such lack of
consent.
[23]
Why then should
the position in relation to prescription be any different? In
addition to hold that the change only operated in
relation to claims
arising after that date would be consistent with the approach adopted
in 1969 when the Act replaced the 1943
Act.
[24]
Overall 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 and I so
hold.
[24]
In the result the appeal succeeds with
costs and the order of the court below is altered to one dismissing
the special plea of prescription
with costs.
M
J D WALLIS
JUDGE
OF APPEAL
Appearances
For appellant: J S
Saner
Instructed by:
DSC Attorneys, Cape
Town
Rosendorff
Reitz and Barry, Bloemfontein
For
respondent: M O’Sullivan (the heads of argument having been
drafted by N Bawa)
Instructed
by:
State
Attorney, Cape Town and Bloemfontein.
[1]
Santam
Versekeringsmaatskappy Bpk v Roux
1978
(2) SA 856 (A).
[2]
The
two possibilities were age and legal status. As other statutes
demonstrate sometimes the one may be the proper interpretation
and
sometimes the other.
Statutory
examples of the word ‘minor’ referring to the person’s
age are to be found in
s 1
of the
National Gambling Act 7 of
2004
and
s 1
of the
South African Citizenship Act 88 of 1995
,
where a major is defined as a person over the age of 18 years. For
an example based on legal status see s 1 of the South
African
Passports and Travel Documents Act 4 of 1994. In other statutes
where it is used, such as the
Consumer Protection Act 68 of 2008
and
the
Witness Protection Act 112 of 1998
, there is no definition and,
as in
Roux
,
the court will have to construe the legislation when the issue
arises.
[3]
Other possibilities were tacit emancipation or
venia
aetatis
.
See Alfred Cockrell in Belinda van Heerden, Alfred Cockrell and
Raylene Keightley (General Editors)
Boberg’s
Law of Persons and the Family
2ed
(1999), 467-469 and 473-496.
[4]
At
864B ‘
ʼn
bepaalde leeftydsgrens’.
[5]
Meyer
v The Master
1935
SWA 3 at 5.
[6]
Being ‘mondig’.
[7]
Rumpff CJ and Jansen, Corbett and Joubert JJA concurred.
[8]
At 865F-866A.
[9]
‘However, the policy of our law is that young people ought to
be protected:
“
the
object of the law...is to protect (minors) against their own
immaturity of judgment”.
(
Edelstein
v Edelstein NO and Others
1952 (3) SA
1
(A) at 15.) …
As
concerns prescription, Pothier
Obligations
teaches:
“
Prescription
does not run against minors, although they have a tutor: this
exception is not founded upon the rule,
contra
non valentem agere, non currit prescriptio
,
since they have a tutor who may sue for them, but upon a particular
indulgence to the infirmity of their age.”
(
Evans’
translation volume 1 at 452.)
It
is clear that in all of the abovementioned authorities, what is
intended by the word “minderjarige or “minor”
is
someone who has not yet reached a determined age. Because of the
presumption that operates in our law that young people may
act
indiscriminately or irresponsibly (or fail to act), an age is fixed
to distinguish between those who must be protected and
others. In my
view minors were included in s 13(1)
(a)
of the
Prescription Act solely because of that presumption. I therefore
come to the conclusion that the word “minor”
must be
understood as referring to any person who has not yet reached the
stipulated age.’ (My translation.)
[10]
Steve
Tshwete Local Municipality v Fedbond Participation Mortgage Bond
Managers (Pty) Ltd & another
2013
(3) SA 611
(SCA) para 14.
[11]
It was inconsistent with the views of Professor J C de Wet, who
prepared a memorandum on prescription for the South African Law
Commission and drafted the Act, which was passed in the terms he had
drafted. J C de Wet
Opuscula
Miscellanea
77-144.
The draft of s 13(1)
(a)
is
at 142 and his comment on it is in para 90, p 124. However, the
judgment does not appear to have attracted academic criticism
on
this point. There are extensive comments on it in 1978
AS
89-90,
92, 287, 436-7, 445-6 and 736. It is dealt with at length in a note
by P Q R Boberg ‘Who Can Sue for Wife’s
or Child’s
Medical Expenses?’
(1979) 96
SALJ
525
but is not criticised on this aspect of the decision. I have been
unable to find any other comment and the decision appears to
have
been accepted in standard texts dealing with prescription.
[12]
Sharpe
v Wakefield
(1899)
22 QBD 239
at 241. The only reported case in South Africa where this
decision had been followed on this aspect is
In
Re Soobiah & others
(1921)
42 NPD 184.
[13]
Cape
Provincial Administration v Honiball
1942
AD 1
at 15-16. See also L C Steyn
Die
Uitleg van Wette
5
ed (1981) 156.
[14]
The
principle appears to originate in John Bell and George Engle
Cross
Statutory Interpretation
3
ed (1995) 51-52. It was approved in
R
v Ireland; R v Burstow
[1997] UKHL 34
;
[1997]
4 All ER 225
(HL) at 233d-g and
McCartan
Turkington
Breen (a firm) v Times Newspapers Limited (Northern Ireland)
[2000]
UKHL 57
;
[2000] 4 All ER 913
(HL) at 926g-927e (per Lord Steyn). In
R
(on the application of Quintavalle) v Secretary of State for Health
[2003]
UKHL 13
;
[2003] 2 All ER 113
(HL) paras 8-10 Lord Bingham sought to
reconcile the two approaches. For an application of the principle
see
F
itzpatrick
v Sterling Housing Association Ltd
[1999] UKHL 42
;
[1999]
4 All ER 705
(HL).
See
also
Daniel
Greenberg
Craies
on Legislation
9 ed
(2008) 703.
[15]
President
of the Republic of South Africa & another v Hugo
1997 (4) SA 1
(CC) para 41;
Christian
Education South Africa v Minister of Education
[2000] ZACC 11
;
2000
(4) SA 757
(CC) para 43.
[16]
Report
on the Review of the Child Care Act, South African
Law
Commission, Project 110. Whilst the Commission was aware that
changes to the age of consent might affect questions of prescription
(see Part 1, p 25) it did not deal specifically with this issue
in its report.
[17]
National
Iranian Tanker Co v MV Pericles GC
1995 (1) SA 475
(A) at 483H-I. See also
BOE
Bank Ltd v Tshwane Metropolitan Municipality
2005
(4) SA 336
(SCA) para 13.
[18]
Many young people undertaking a gap year work for NGOs in deprived
parts of the world in menial jobs aimed at providing aid to
disadvantaged communities.
[19]
M M Loubser ‘J C de Wet and the theory of Extinctive
Prescription’ in
A
Man of Principle The Life and legacy of JC de Wet
(ed
Jacques du Plessis and Gerhard Lubbe) 409.
[20]
The change ‘impacts negatively upon the applicant’s
substantive right to a claim for damages by impairing and limiting
its enforcement’.
Shange
v MEC for Education, Kwa-Zulu-Natal
2012
(2) SA 519
(KZD) para 27.
[21]
Apdol
v Road Accident Fund
2013 (2) SA 287
(GNP) para 25.
[22]
Section
24(1) of the Marriage Act 25 of 1961.
[23]
Section 24A of the Marriage Act.
[24]
Section 11 of the 1943 Act made its provisions applicable to periods
of prescription that had commenced but were incomplete when
the Act
came into operation, subject to the period of prescription not being
reduced.