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South Africa: Prescription of medical negligence claims and “the facts” of section 12(3) of the Prescription Act

  • Legal Development 17 September 2021 17 September 2021
  • Africa

  • Healthcare

In terms of The Prescription Act 68 of 1969 (“the Act”), a claimant would in most cases have three years to issue summons in respect of a debt arising from a claim in delict. In our latest article we examine a recent judgment relating to an injury arising from alleged medical negligence, an arena in which prescription is often raised by defendants in the hope of escaping liability.

The issue surrounding prescription of claims is one with which legal practitioners continue to battle, particularly as it relates to determining the date on which the running of prescription commences.

In the recent case of Member of the Executive Council for the Department of Health, Western Cape v  ND, the MEC argued that the claim against it has become prescribed because summons was served by the respondent more than 3 years after the date on which the claim arose. The defence was dismissed by the Court of first instance, and a full bench of the Western Cape Division of High Court upheld the dismissal of the special plea.

The Facts in Brief

On 1 March 2015 the respondent was admitted into Tygerberg Hospital with labour pains. K was born on the same day with hypoxic ischemic encephalopathy, which included cerebral palsy and numerous other disabilities. After being discharged, K continued to suffer from many complications and was repeatedly treated for numerous conditions. During approximately September 2015, six months after K was born, the respondent was sufficiently concerned about K’s condition to ask the staff at Tygerberg Hospital about his late developmental stages. The answer that the respondent was given was that K would not be like other children and would be late in milestone development due to “some disability”.

Summons was issued in the respondent’s personal capacity as well as in her representative capacity on behalf of K, alleging that negligence on behalf of the staff at Tygerberg Hospital led to K suffering a hypoxic ischaemic injury.

The Pleaded Cases

Summons was served on 11 November 2018. The MEC raised a special plea of prescription, arguing that the reasonable person in the respondent’s shoes would have suspected negligence at the date of K’s delivery and that the respondent’s claim in her personal capacity had thus prescribed the day before 1 March 2018.

The respondent replicated to the MEC’s special plea and stated that her debt became due on 11 May 2018, the day on which she consulted with a Dr Yatish Kara, a paediatrician, who informed the respondent at that time that K’s disability was due to medical negligence caused by the Tygerberg Hospital staff during delivery. According to the respondent, until her consultation with Dr Kara, she had decided to accept and live with information she had obtained from the hospital staff. She argued that she had not appreciated that the employees of the hospital were responsible for K's disability and that she accordingly had a claim against the defendant before consulting with Dr Kara.

The Decisions of the Courts

The Court of the first instance dismissed the special plea of prescription, holding that the MEC had failed to discharge its onus to establish that prescription started to run three years before 11 November 2018 (the date on which summons was served).

The Court was of the view that Section 12(3) of the Act was applicable in light of the respondent’s case in response to the special plea that she did not have knowledge of the facts from which the debt arose until 11 May 2018 (as opposed to Section 11 as relied on by the MEC). 

Section 12(3) of the Act provides that:

A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.”

The Court had regard to the well-known judgment of Links v MEC Department of Health Northern Cape Province CCT 29/15) [2016] which deals with prescription in cases relating to medical negligence in particular. The interpretation of Section 12(3) was central to the judgement handed down by the Constitutional Court in the Links matter.

In Links, consideration was given to the facts contemplated by Section 12(3) of the Act which a plaintiff would need to have knowledge of in order to activate the commencement of prescription. It was recognised in Links that negligence and causation are essential elements of the cause of action a claim for delictual liability, and that they each have factual and legal elements. The Constitutional Court further determined that, in cases involving professional negligence, the party relying on prescription must at least show that the claimant was in possession of sufficient facts to cause them on reasonable grounds to think that the injuries sustained were due to the fault of the medical staff in question.

Interestingly, the Court in the present case held that the “debt” to which the respondent’s claim relates was for damages suffered in her personal capacity (as opposed to those incurred in her representative capacity as K’s mother) flowing from the sequelae of the negligence of the staff at Tygerberg Hospital. In order for the respondent’s debt to be due, the Court felt that the necessary facts required for the sequelae pleaded in her summons would have had to exist. The sequelae took time to manifest, and on the Court’s interpretation of the facts this could not have occurred on the date of K’s birth as the MEC argued.

The Court ultimately held that there was simply no evidence before it to gainsay the respondent’s contention that she was not possessed of the facts relevant to her cause of action by 10 November 2015 (being 3 years before summons was served) or that she ought to have obtained the facts by that time by taking reasonable steps. The Court felt that the respondent could not reasonably have been expected to have drawn a link between the conduct of the medical staff and the disability without more information. On the strength of the Links judgment, then, the MEC’s prescription defence could not succeed.

While the Links judgment may come to the assistance of claimants in professional negligence claims, it remains prudent to begin taking steps to institute action as soon as one suspects that a claim may be available. 

1. Member of the Executive Council for the Department of Health, Western Cape v ND (A31/2021) ZAWCHC (17 August 2021)


Additional authors:

Vuledzani Munzhelele

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