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[2021] ZAWCHC 157
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Member of the Executive Council for the Department of Health, Western Cape v D[....] (A31/2021) [2021] ZAWCHC 157 (17 August 2021)
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THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Before:
The Hon. Mr Justice PAL Gamble
The
Hon. Ms Justice D Kusevitsky
The
Hon. Ms Justice N Mangcu-Lockwood
Date
of hearing: 23 July 2021
Date
of judgment: 17 August 2021
REPORTABLE
Case
No: A31/2021
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL FOR
THE
DEPARTMENT OF HEALTH, WESTERN
CAPE
Appellant
and
N[....]
D[....]
Respondent
JUDGMENT
MANGCU-LOCKWOOD,
J
A.
INTRODUCTION
[1]
This is an appeal against a judgment and order of
Hockey AJ in which the appellant's special plea of prescription was
dismissed
with costs. The appeal comes before us after leave to
appeal was granted to the full bench of this division by Hockey AJ.
[2]
The respondent’s heads of argument were delivered out of time,
and
after considering the condonation application, condonation was
granted.
B.
THE RELEVANT FACTS
[3]
The relevant background facts are common cause. On
1 March 2015 the respondent was admitted into Tygerberg Hospital with
labour
pains. After receiving some monitoring, her membranes were
ruptured, and Oxytocin was administered to her to aid the delivery of
her baby. Her baby boy, K[....] was born on the same day with hypoxic
ischemic encephalopathy, which included cerebral palsy and
numerous
other disabilities. After delivery, he was admitted into the
intensive care unit and later into the neonatal ward, for
a period
totalling two weeks. Thereafter, he was transferred to Khayelitsha
Hospital for another two weeks, after which both he
and the
respondent were discharged. The minor child continued to suffer from
many complications and was repeatedly treated for
numerous
conditions.
[4]
On 5 October
2018 the respondent issued summons in her representative capacity on
behalf of K[....], and in her personal capacity,
for damages flowing
from alleged negligence of the hospital staff for whom the appellant
is ultimately responsible. The parties
agree that the summons was
served on 11 November 2018.
[1]
Sadly, K[....]
passed away after the issue of the summons (in September 2019), and
as a result the matter only concerns the claim
of the respondent in
her personal capacity. Her personal claim is for a total amount of
R3 800 000 and is in respect
of future medical costs, past
and future loss of earnings, and general damages.
[5]
The appellant raised a special plea in terms of
section 11 of the Prescription Act 68 of 1969 (“
the
Prescription Act”
) against the
claim brought in the respondent’s personal capacity, as
follows:
“
5
Both K[....]’s birth
certificate and the hospital records indicate that K[....]
was born
on 1 March 2015.
6
The Plaintiff's summons and
particulars of claim was served on the Defendant’s
attorneys of
record on 11 November 2018, which is more than 3 years after the date
on which the claim arose.
7
In the premises the Plaintiff’s claim for damages in her
personal capacity
has prescribed in terms of
section 11
of Act 68 of
1969.”
[6]
In response to the special plea the respondent
delivered a replication, stating that the cause of action arose on 11
May 2018, the
day on which she consulted with, and obtained knowledge
from Dr Yatish Kara, a pediatrician, 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, that K[....] was disabled,
without knowing the cause for the child’s condition.
[7]
The appellant
also delivered a plea in which it took issue with the respondent’s
non-compliance with the provisions of the
Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002 (“
the
Legal Proceedings Act”
).
In response, the respondent delivered a condonation application. No
answering affidavit was delivered by the appellant in opposition
to
the condonation application. The averments made in the affidavit
supporting the condonation are central to the determination
of this
matter. At paragraphs 8 and 9 of her affidavit the respondent
states as follows
[2]
:
“
During
2015, when my baby was 6 (six) months of age, I could notice that my
baby is not developing as other children do. During
my reviews at
Tygerberg Hospital in and during late 2015 I sought clarity from the
hospital about the late developmental stages
of my baby and I was
advised that my child will not be like other children. She will be
late in milestone development due to some
disability and I was not
told as to the nature and extent of my child's disability. I was told
she will be fine later on. I decided
to accept that and live with it
hoping that my baby's conditions will change later on, with no
knowledge what caused my child's
conditions.
The
elders in my community asked me to seek legal advice in early 2018…
On
17 May 2018, I upon the instructions of my attorneys attended rooms
of Dr Kara in Durban, during my consultation with him, he
indicated
that my labour with K[....] was mismanaged. He also stated to me, the
basis upon which in his view there had been mismanagement
of my
labour. At that stage, I was advised by my attorneys of record that I
may have a claim against the defendant. It’s
only then that I
became aware that the employees of defendant were responsible for my
baby's disability and therefore that I had
a claim against the
defendant. Before consulting with Dr Kara I did not know/understand
neither appreciated that the employees
of the defendant were
responsible for my baby's disability and that I had a claim against
the defendant.”
[8]
No oral evidence was led in the court
a quo
for purposes of
determining the special plea. The
appellant’s
counsel, Ms Mahomed, advised the court
a
quo
that, apart from the pleadings, the
appellant intended relying on the medico-legal report of Dr Kara, as
well as the respondent’s
affidavit in the condonation
application.
[9]
The court
a quo
dismissed the special plea of prescription,
holding that the appellant had failed to discharge its
onus
to
establish
that prescription started to run three
years before 11 November 2018, i.e. by 10 November 2015. The court
a
quo
also declined to consider the
medico-legal report of Dr Kara, stating that it was not adduced in
evidence and only serves as proof
of what it purports to be, in terms
of an agreement between the parties in an agreed pre-trial minute.
C.
THE APPEAL
[10]
The appellant raises many interrelated issues on
appeal. It is convenient to start with the second ground of appeal -
a complaint
that
there were reasonable grounds to find that
the respondent should have suspected fault on the
part of the medical staff during the birth of the minor child, which
should have
caused her to seek further advice before the date of
consulting Dr Kara. This appeal ground formed the basis of most of
the appellant’s
argument before us and before the court
a
quo
. The basis for the argument is
firstly that prescription started to run on 2 March 2015, the day
after K[....] was born. Further,
the appellant relies on the
knowledge that the respondent possessed from the time that she
experienced labour complications until
the birth of the minor child
on 1 March 2015; and on the respondent’s version in the
affidavit in the condonation application
that she knew that the minor
child was disabled and not developing like other children after
birth, but decided to accept the child’s
condition. On this
basis, it is argued that an inference should be drawn that, had the
respondent exercised reasonable care, she
could have acquired further
facts relating to the cause of the minor child's disability.
[11]
It is clear
from the appellant’s heads of argument that this argument and
ground of appeal is based on
section 12(3)
of the
Prescription Act.
The
first observation is that the reliance on this provision is not
foreshadowed
anywhere in the pleadings of the appellant. As indicated by the
portion quoted earlier from the appellant’s special
plea, its
complaint is that the summons was delivered more than three years
after the debt arose, thus placing itself within the
ambit of
section
11(d)
of the
Prescription Act, which
provides that “
[t]he
periods of prescription of debts shall be…
save
where an Act of Parliament provides otherwise, three years in respect
of any other debt.”
Nevertheless,
section 12(3) was triggered because the respondent’s case in
response to the special plea of prescription is
that she did not have
knowledge of the facts from which the debt arose until 11 May 2018.
It is in response to the respondent’s
allegations in the
condonation application and in the replication that the proviso in
section 12(3) is relied upon by the appellant.
We note that the
respondent has also never expressly relied on section 12(3). Given
the arguments raised by the parties,
the court
a
quo
was correct in
approaching the matter on the basis that the matter pivotally
involves the interpretation of that provision, albeit
via a mistaken
reference to “section 13(3)”.
[3]
[12]
Section 12(3)
of the
Prescription Act provides
as follows:
“
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.”
[13]
In
Links
[4]
,
the Constitutional Court held that, in order for a party to
successfully rely on a prescription claim in terms of
section
12(3)
he or she must first prove “
what
the facts are that the applicant is required to know before
prescription could commence running”
and
secondly, that “
the
applicant had knowledge of those facts”
.
[5]
The appellant accordingly
attracted such an
onus
before the court
a
quo.
[14]
As I have stated, the context in which the appellant places reliance
on
section 12(3)
is in response to the respondent’s allegations
in the condonation application and the replication. However,
the
appellant did not oppose the condonation application by delivering an
answering affidavit. Neither did it deliver a
rejoinder
in response to the replication. It relies on an inference that
is sought to be made from the facts provided by the
respondent. Those
facts, however, remain unchallenged.
[15]
As regards the
facts necessary to sustain the respondent’s claim, the starting
point is
section 12(1)
of the
Prescription Act
,
which provides that prescription “shall commence to run as soon
as the debt is due”.
[6]
A
debt is due “
when
the creditor acquires a complete cause of action for the recovery of
the debt, that is, when the entire set of facts which
the creditor
must prove in order to succeed with his or her claim against the
debtor is in place or, in other words, when
everything has
happened which would entitle the creditor to institute action and to
pursue his or her claim
.”
[7]
[16]
Since this is a claim for
delictual liability based on the Aquilian action
,
negligence and causation are essential elements of the cause of
action, and, as the Constitutional Court has stated
[8]
,
they each have factual and legal elements. Further, in cases
involving
professional
negligence,
the
party relying on prescription must at least show that the plaintiff
was in possession of sufficient facts to cause them on reasonable
grounds to think that the injuries were due to the fault of the
medical staff.
[9]
This
means that, until the respondent had knowledge of facts that would
have led her to think that possibly there had been negligence
and
that this had caused the disability, she lacked knowledge of the
necessary facts contemplated in
section 12(3).
[10]
[17]
In this case, the uncontroverted evidence is that
it was during approximately September 2015, six months after K[....]
was born,
that the respondent was sufficiently concerned about
K[....]’s condition to ask the staff at Tygerberg Hospital
about his
late developmental stages. And the answer she was given was
that he would not be like other children and would be late in
milestone
development due to “
some
disability”
.
She was not told the nature and extent of the disability. It does not
strike me as unreasonable that the respondent would resign
herself to
that advice. After all, there are many possible reasons for
disability, and she is not a medical person. Importantly,
she was
told at that point that he “
will
be fine later on”,
and this is
the reason that she decided to accept that advice, “
hoping
that my baby's conditions (sic) will change later on”.
There is no evidence that she was told
the contrary.
[18]
One therefore
wonders on what basis it can be suggested that the respondent was
supposed to seek alternative advice at that stage,
or at least by 10
November 2015, in the light of the advice that she was given. There
are no facts proffered by the appellant as
to why the respondent must
be reasonably expected to have been dissatisfied with the advice she
was given. As the Constitutional
Court has now stated
[11]
:
“
Without
advice at the time from a professional or expert in the medical
profession, the applicant could not have known what had
caused his
condition. It seems to me that it would be unrealistic for the law to
expect a litigant who has no knowledge of medicine
to have knowledge
of what caused his condition without having first had an opportunity
of consulting a relevant medical professional
or specialist for
advice. That in turn requires that the litigant is in possession of
sufficient
facts to cause a reasonable person to suspect that something has gone
wrong and to seek advice”.
[19]
The fact that the respondent did seek advice at
the prompting of her community leaders in early 2018 does not mean
that she had
reason to do so at the time relevant to these
proceedings, namely by 10 November 2015. The respondent has explained
that at the
relevant time, based on the advice that she had received
from the medical staff, she was hoping that the child’s
condition
would change, presumably for the better because the staff
told her that he “
will be fine
later on”
.
[20]
Furthermore,
the evidence of the respondent makes it clear that, by September
2015, she was not aware of the cause of, or reason
for, the minor
child’s condition. Indeed, there is no evidence that the
respondent was ever informed by the hospital staff
as to what the
cause of K[....]’s condition was at any stage, let alone by 2
March 2015, the day after his birth. The fact
that the disability was
connected to the conduct of the hospital staff is a very relevant
fact to the claim. And there is no evidence
indicating that she had
any reason to even suspect that the disability was
due
to the conduct of the medical staff.
Even
with the difficult labour that she experienced, the respondent
cannot, in my view be reasonably expected to have drawn a link,
without more, between that experience, the conduct of the medical
staff and the disability.
In
light of the
Links
and
Loni
[12]
decisions, those were necessary
facts for
a
litigant wishing to sue for the type of claim that the respondent has
now brought to have known.
[21]
What is more, the ‘debt’ to which the
respondent’s claim relates is for the respondent’s own
medical costs,
loss of earnings and general damages, not those in
respect of the claim on behalf of K[....]. In order for the
respondent’s
debt to be due as at 2 March 2015 the necessary
facts required for the
sequelae
pleaded in her summons (including her
psychological shock, trauma, loss of amenities of life, and loss of
employment) would have
had to exist. On the available evidence, none
of those pleaded
sequelae
had
occurred by 2 March 2015. By way of example, the evidence shows that
the respondent and the minor child were only discharged
from hospital
some four weeks after the birth of the minor child. This means
that the claim based on the psychological shock
and trauma of having
to deal with the minor child’s disabilities on a daily basis,
would not have been apparent as at 2 March
2015. The same applies to
the claim that the respondent had become psychologically impaired and
no longer participated in social
and other leisurely activities by
reason of the fact that she had to look after the minor child.
[22]
Similarly, according to the summons, the
respondent expected to return to work two months after the birth of
the minor child, but
was unable to do so because of K[....]’s
medical condition. Logically, that claim could only have arisen, at
the earliest,
two months after K[....]’s birth. Even then, it
is not a certainty that she would have become aware within the two
months
that she had permanently lost her employment. Simply put,
there is no evidence to gainsay the respondent’s version that,
by 10 November 2015, she lacked knowledge of the requisite facts
required in terms of
section 12(3).
[23]
There remains one more ground of appeal, namely
that
the court
a quo
failed to consider the
medico-legal report of Dr Kara. The court
a quo
held
that the report was a document in the trial bundle, and not evidence
per se,
and
that this was in accordance with the pre-trial minute agreed between
the parties. A copy of the pretrial minute was not included
as part
of the appeal record. However, according to the judgment the parties
recorded in it that all documents in the bundle will,
without proof
thereof, serve as evidence of what they purport to be without
admission of the truth and correctness of the content
thereof. The
judgment also records that the pre-trial minute provides that no
document included in the bundle shall be regarded
as having been
adduced in evidence unless and until it has been referred to in
evidence at the trial.
[24]
The appellant does not take issue with what the
court
a quo
states
is recorded in the pre-trial minute. Instead, it is stated in the
heads of argument that “
expert
reports do not constitute documentary evidence but constitute
reasoned conclusions based on certain facts and data which
are common
cause or established by an expert's own evidence or by some other
competent witness”
. Further,
according to the appellant, the court
a
quo
should have had regard to Dr Kara's
report firstly because its contents were not in dispute between the
parties, and secondly, because
the respondent relies on the report as
the basis for why the summons was only issued in November 2018.
[25]
It is not
correct that the respondent relies on the contents of Dr Kara’s
report in her replication and condonation application
as the basis
for why the summons was issued when it was. What the respondent
states is that she received advice from Dr Kara on
11 May 2018.
There is otherwise no indication that the respondent is relying
directly on the contents of Dr Kara’s
report in the manner that
the appellant is suggesting. Instead, it is the appellant that wishes
to rely on certain allegations
contained in the report for its
assertion that Dr Kara’s report is based on information
provided by the respondent. In
other words, the appellant
sought to include in the factual matrix before the court
a
quo
recordals
made by the expert of facts conveyed to him by the respondent. This,
without any evidence being led as to the contents
of the report.
It
is established law that an expert is not entitled, any more than any
other witness, to give hearsay evidence as to any fact,
and all facts
on which the expert witness relies must ordinarily be established
during the trial, except those facts which the
expert draws as a
conclusion by reason of his or her expertise from other facts which
have been admitted by the other party or
established by admissible
evidence.
[13]
In
the result, the court
a
quo
was
justified in approaching Dr Kara’s report in the manner that it
did.
[26]
In any event, the court
a quo’s
refusal to rely on the
report is of no consequence as the report itself
is
not conclusive as to the cause of the minor child's condition. It
concludes by stating that “
[o]bstetric
experts need to determine if such injury was due to sub optimal care
rendered to the mother in labour”
.
[27]
For all the above reasons, there is no basis on which to interfere
with the decision of
the court
a quo.
D.
ORDER
[28] In
the result, I would make the following order:
“
The
appellant’s appeal is dismissed with costs”.
N.
MANGCU-LOCKWOOD
Judge
of the High Court
I
agree and it is so ordered.
PAL
GAMBLE
Judge of the High Court
I
agree
D
KUSEVITSKY
Judge of the High Court
APPEARANCES
For
the appellant :
Adv S Mahomed
Instructed
by
:
Ms M
Faurie
State Attorney
For
the respondent :
Adv A Bodlani
Instructed
by
:
Msondezeni Dayimani Inc.
[1]
Although
the
parties agree in the pleadings that service was effected on 11
November 2018, the stamp of the State Attorney which acknowledged
service of the summons indicates that it was received on 11 October
2018. The judgment of the court
a
quo
determined
the matter on the basis of the parties’ pleadings.
[2]
Quoted
verbatim
.
[3]
See paragraph
[15] of the judgment.
[4]
Links
v Member of the Executive Council, Department of Health, Northern
Cape Province
2016
(4) SA 414
(CC)
at
para [24].
[5]
See
also
Loni
v Member of the Executive Council, Department of Health, Eastern
Cape Bhisho
2018
(3) SA 335 (CC) paras [23] – [25].
[6]
Subsections
12(1) and (2) of the
Prescription Act provide
as follows:
1.
“
Subject
to the provisions of subsections (2) and (3), prescription shall
commence to run as soon as the debt is due.
2.
If
the debtor wilfully prevents the creditor from coming to know of the
existence of the debt, prescription shall not commence
to run until
the creditor becomes aware of the existence of the debt.”
[7]
Truter
and Another v Deysel
2006
(4) SA 168 (SCA) para [15].
[8]
See
Links
at para [45],
and the authorities cited there.
[9]
Links
v Member of the Executive Council, Department of Health, Northern
Cape Province
2016
(4) SA 414 (CC) at para [42].
[10]
Ibid
.
[11]
Links
a
t
para [47]. See also
Loni
v MEC for Health, Eastern Cape
2018
(3) SA 335
at paras [23] – [24].
[12]
See
Loni
at paras [23]
– [24].
[13]
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämp-fung MBH,
1976
(3) SA 352
(A)
at
p 371G;
Reckitt
& Colman SA (Pty) Ltd v S C Johnson & Son SA (Pty) Ltd
1993
(2) SA 307
(A)
at
p 315E);
Lornadawn
Investments (Pty) Ltd v Minister van Landbou
1977
(3) SA 618
(T)
at
p 623;
Holtzhauzen
v Roodt
1997
(4) SA 766
(W)
at
p 772.