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[2011] ZAGPJHC 116
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Mpinga v Makakuvhule & Associates and Another (2010/22124, 2009/50023) [2011] ZAGPJHC 116 (22 September 2011)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 2010/22124
CASE NO: 2009/50023
DATE:22/09/2011
In the matter between:
MPINGA,
MAKETHU
QUEEN
................................................................
Plaintiff
and
MAKAKUVHULE
& ASSOCIATES
..........................................
First Defendant
MEMBER OF THE EXECUTIVE
COUNCIL
FOR HEALTH
.....................................................
Second Defendant
J U D G M E N T
Summary
Prescription
– when commencing – onus of proof on party alleging -
Notice pursuant to
s 3
of the
Institution of Legal Proceedings
Against Certain Organs of State Act 40 of 2002
– failure to
give in good time - condonation for the late serving of notice.
WEPENER, J
:
[1] The plaintiff injured her
left leg on 26 September 2006 and received treatment at various
hospitals. It is common cause that
the treatment was administered at
the hospitals under the control of the second defendant, the Member
of the Executive Council
for Health, Gauteng.
[2] It is alleged that as a
result of the negligent treatment of her leg by the personnel of the
hospitals the plaintiff’s
injury deteriorated until on 30
November 2006 when it was decided by the hospital personnel that the
plaintiff’s leg had
to be amputated. This indeed occurred on 5
December 2006.
[3] Dr Marais, an orthopaedic
surgeon, who testified on behalf of the plaintiff and who studied the
hospital records said that
by 30 November 2006 the plaintiff’s
leg was beyond saving and the decision to amputate plaintiff’s
leg was the correct
decision in the circumstances as at that date. He
gave further evidence regarding the negligence of the hospital
personnel, which
evidence is not relevant for this decision.
[4] The plaintiff testified that
during one of her visits to the hospital she was advised that her leg
had to be amputated on 5
December 2006. It is not clear whether the
visit was on 29 November 2006 or 30 November 2006. However, whether
it was 29 or 30
November 2006 is not relevant and I will refer to the
date as 30 November as was argued by counsel for the plaintiff.
[5] The plaintiff further
testified that although she gave permission for the amputation of her
leg, she became aware that the
treatment of her leg by the hospital
personnel led to the amputation of her leg, shortly after the
amputation.
[6] The plaintiff later, during
May 2008, instructed the first defendant, an attorney, to act on her
behalf to institute action
against “
the
hospital authorities
”.
She left the matter in the hands of the first defendant. Although
there were some questions regarding a deposit to be
paid to the first
defendant and the different times when documents were handed to him,
nothing turns on these issues for present
purposes.
[7] On 27 November 2009 the
first defendant issued a summons against the second defendant, which
summons was served on 1 December
2009. The second defendant raised
two special pleas namely, that there was no compliance with
s3
the
Institution of Legal Proceedings Against Certain Organs of State Act,
Act
40 of 2002 (“the Act”) by virtue of the fact that
notice was not given as required by the Act to the State within six
months from the date on which the debt became due and it raised a
second special plea namely, that the plaintiff’s claim
had
become prescribed as the delict occurred on 26 September 2006 and
summons was issued more than three years later.
[8] The plaintiff then
terminated the first defendant’s mandate and instructed her
present attorneys when it was decided
to issue summons against the
first defendant on the basis that the plaintiff’s
representatives believed that the first defendant
was in breach of
his mandate with the plaintiff as, according to the plaintiff’s
counsel’s argument, it appeared that
there were merits in the
special plea raised by the second defendant. After issuing summons
against the first defendant the two
matters were consolidated.
[9] In the particulars of claim
it was alleged that the agreement between the plaintiff and the first
defendant included the fact
that:
“
14.4
The (first) defendant would cause a summons to be issued and served
prior to the plaintiff’s claim becoming prescribed
and more
particularly on or before the 30
th
day of November 2006.
”
(intending 2009)
Although this allegation was
admitted by the first defendant in his plea, an application to
withdraw the admission as having been
erroneously made was not
opposed by the plaintiff and the second defendant and the plea was
amended by the deletion of this admission.
The first defendant,
however, admitted in evidence that the service of the summons within
a period of three years from the date
when the plaintiff’s
claim arose, formed a part of his mandate.
[10] What is left as a cause of
action against the first defendant is that he had a mandate from the
plaintiff and had agreed to
prosecute a claim against the second
defendant and that he would do all things necessary to prosecute the
claim. Such things would
include the giving of due notice on behalf
of the plaintiff in terms of
s 3
of the Act or the making of an
application for condonation for the late service of such notice.
This aspect of the first defendant’s
mandate is admitted.
[11] By agreement between the
parties and pursuant to the provisions of
Rule 33(4)
, I am called
upon to decide whether the special pleas raised by the second
defendant should be upheld. This would entail determining
whether the
first defendant failed to comply with
s3
of the Act and if so,
whether such failure was negligent and secondly whether the issue and
subsequent service of summons on 1
December 2009 was negligent and in
breach of the first defendant’s mandate with the plaintiff.
[12] When the plaintiff
approached the first defendant in May 2008 and he agreed to act on
her behalf, the period of six months
within which a notice had to be
given had expired with the result that due notice was no longer
possible and the first defendant
and the plaintiff were consequently
reliant upon
s 3(4)
of the Act to obtain condonation for the failure
to serve the notice within the prescribed period of six months. A
letter of demand
or the notice letter was indeed sent on 21 October
2009 to the hospital instead of the second defendant.
[13] The following additional
facts are not in dispute. Realising that the notice was out of time
the first defendant prepared
an application for condonation for the
defective notice. The application was not brought to court but it
was served on the State
Attorney, acting on behalf of the second
defendant. On 12 April 2010 the State Attorney advised that his
client, the second defendant,
was of the view that the claim had
become prescribed on 26 September 2009 and that an application for
condonation would be opposed.
The first defendant responded by
explaining that the plaintiff’s leg was amputated on 5 December
2006 and that the cause
of action only arose on 5 December 2006.
Without the first defendant’s attorney stating so, the result
thereof would have
been that the three year prescriptive period would
only come to an end on 4 December 2009.
[14] The second defendant’s
attorney thereafter advised the first defendant’s attorney as
follows:
“
I
have noted the contents of (
your
letter
) and have
recommended to my client that their decision (
to
oppose condonation
) be
reviewed in the light thereof.
”
[15] However, before the second
defendant could respond and advise whether condonation was granted
and before the application was
launched to court to obtain
condonation, the plaintiff elected to terminate the first defendant’s
mandate and to instruct
her present attorneys in his stead.
[16] Having regard to the above
facts it cannot be said that the first defendant failed to obtain
condonation for the late or defective
notice. He was in the process
of attempting to obtain condonation, which he was required to attempt
to secure by virtue of the
fact that the plaintiff only instructed
him more than six months after the debt arose.
[17] In the absence of proof that
the second defendant refused condonation despite its own attorneys’
recommendation to do
so, it cannot be found that there was any fault
on the part of the first defendant. I am of the view that even if the
second defendant
would have refused condonation an approach to the
court for condonation was not exhausted and may very well have been
successful,
had it been pursued.
[18] The special plea that there
was non-compliance with
s 3
of the Act is premature as the process to
obtain condonation has, to date, not been finalised. No action based
on this alleged
breach of mandate consequently lies against the first
defendant until the finalisation of the condonation application.
[19] The second question, which
I am required to determine is whether the first defendant caused the
claim to become prescribed
by serving the summons late. The summons,
which was served on 1 December 2009, was so served within the
ordinary three year prescriptive
period
1
from the time when the plaintiff’s leg was amputated.
[20] It is trite law that the
party who raises prescription must allege and prove the date of
inception of the period of prescription.
‘
It
is not a principle of our law that the onus of proof of a fact lies
on the party who has peculiar or intimate knowledge or means
of
knowledge of that fact. The incidence of the burden of proof cannot
be altered merely because the facts happened to be within
the
knowledge of the other party. See R. v. Cohen, 1933 T.T.D. 128.
However, the Courts take cognisance of the handicap under
which a
litigant may labour where facts are within the exclusive knowledge of
his opponent when they had in consequence held, as
was pointed out by
Innes, J., in Union Government (Minister of Railways) v. Sykes,
1913
A.D. 156
at p. 173, that:
“
Less
evidence will suffice to establish a prima facie case where a matter
is peculiarly within the knowledge of the opposite party
than would
under other circumstances be required.
But
the fact that less evidence may suffice does not alter the onus which
rests on the respondent in this case. Nor does it seem
to me that
counsel can advance his argument by reliance on the rather unusual
manner in which the allegations relating to the issue
were pleaded.
Mr. Cloete pointed to the replication and argued that it was the
appellant who alleged that it was not until 17
February 1971 that she
learnt the identity of the respondent – she did not content
herself with a mere denial of the allegations
contained in the
special plea, in so doing she attacked an onus.
That
submission is without substance: It overlooks the fact that it was
the respondent, not the appellant, who raised the question
of
prescription. It was the respondent who challenged the appellant on
the issue that the claim for damages was prescribed –
this he
did by way of special plea five months after the plea on the merits
had been filed. The onus was clearly on the respondent
to establish
this defence. He could not succeed if he could not prove both the
date of the inception and the date of the completion
of the period of
prescription.
”
’
Gericke v
Sack
1978 (1) SA 821
(A) at 827E-828A. See also
De
Klerk en ‘n Ander v Groter Kroonstad Plaaslike Oorgangsraad
[2000] 4 All SA 357
at 360d.
It was consequently incumbent
upon the second defendant (or the plaintiff who wished to rely on
prescription) to place facts before
the court so that the date when
prescription commenced running could be determined. The second
defendant relied on the evidence
provided by the plaintiff.
[21] The relevant portions of
the Prescription Act, Act 68 of 1969 (the Prescription Act) are found
in s 12 thereof:
“
12(1)
Subject to the provisions of subsections (2), (3) and (4),
prescription shall commence to run as soon as the debt is due.
(2)
…
(3) A debt shall not be
deemed to be due until the creditor has knowledge of the identity of
the debtor and 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.
(4)
…
”
The question is consequently
whether the plaintiff had knowledge of the facts from which the debt
arose i.e. the fact that the treatment
by the servants of the second
defendant caused her leg to deteriorate and to be amputated, more
than three years prior to the summons
being served.
[22] Although the plaintiff’s
medical expert testified that all the facts to lead to a realisation
that an amputation was
necessary were present as at 30 November 2006,
he could and did not say anything to contradict the plaintiff’s
evidence that
she only knew that the amputation was necessitated as a
result of the treatment by the hospital personnel shortly after the
amputation.
There is no evidence to suggest that the plaintiff
appreciated that the reason for the amputation was as a result of any
conduct
of the medical staff on a date before the amputation or that
she should so have known on 30 November 2006.
[23] There is no suggestion that
the personnel of the hospital advised the plaintiff that her leg was
amputated as a result of
their treatment of her prior to the
amputation. Her evidence that she became aware of this, only after
the operation, is unchallenged
and credible.
[24] Plaintiff’s cause of
action against the second defendant consequently arose when she had a
complete cause of action
against the second defendant i.e. shortly
after the amputation of her leg on 5 December 2009 when she learnt
that the amputation
was caused as a result of the improper treatment
of her leg by the medical staff under the control of the second
defendant. The
plaintiff’s claim would accordingly have become
prescribed shortly after 5 December 2009. The precise date is not
relevant
as the summons was served prior to 5 December 2009.
[25] The issue of the summons is
not sufficient to interrupt prescription and service of the summons
is required for such interruption.
Kleynhans
v Yorkshire Ins Co Ltd
1957 (3) SA 544
(A). The summons was served on 1 December 2009. In
the circumstances the plaintiff’s summons was served prior to
the claim
becoming prescribed.
[26] Mr Bruwer, appearing for the
plaintiff, argued that based on
Truter
and Another v Deysel
[2006] ZASCA 16
;
2006
(4) SA 168
(SCA) at para 16-20
2
,
the plaintiff’s cause of action was complete on 30 November
2006 and not when the plaintiff obtained knowledge of the reason
why
her leg was amputated.
I do not agree with this
argument. The passages in
Truter
support the view that the prescriptive period does not commence
running until a plaintiff has knowledge of the facts from which
the
debt arises. The plaintiff’s knowledge that the conduct of the
medical personnel caused her leg to be amputated was gained
after the
amputation. The knowledge of this fact is to be distinguished from
knowledge of a wrong, in a sense of culpability, which
does not
constitute a fact but a conclusion of law.
[27] The summons was served on
the second defendant before three years had lapsed since the
plaintiff obtained knowledge of the
causative conduct of the hospital
personnel, the latter date which is after 5 December 2006. No
argument was placed before me that
the proviso of s 12(3) of the
Prescription Act finds any application in this matter nor are there
any facts that would support
such reliance. It can therefore not be
found that the first defendant acted in breach of his mandate to
serve the summons timeously
as prescription had not extinguished the
plaintiff’s claim at the time when the summons was served.
[28] In the result, the
following order is made:
It is declared that the first
defendant is not liable to the plaintiff as a result of the alleged
non-compliance with s 3 of the
Act prior to the finalisation of the
application for condonation for the defective notice given pursuant
to s 3 of the Institution
of Legal Proceedings Against Certain
Organs of State Act 40 of 2002.
The second defendant’s special plea of prescription is
dismissed.
The second defendant is ordered
to pay the costs of the plaintiff regarding the determination of the
issues herein referred to
including the qualifying fees of Dr L
Marais.
The second defendant is ordered
to pay the costs of the first defendant.
_____________________________
W
L WEPENER
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR
PLAINTIFF
.................................
A
P BRUWER
INSTRUCTED
BY
.................................................
AUSTIN-JORDAAN
INC
COUNSEL FOR FIRST
DEFENDANT
..................
L
G BOALE
INSTRUCTED
BY
..................................................
MAKAKUVHULE
ATTORNEYS
COUNSEL FOR SECOND
DEFENDANT
.............
M
ZONDO
INSTRUCTED
BY
.................................................
THE
STATE ATTORNEY
DATE OF
HEARING
.......................................
12
AUGUST 2011 AND 19 SEPTEMBER 2011
DATE OF
JUDGMENT
....................................
22
SEPTEMBER 2011
1
Section 11(d) of the Prescription Act, Act 68 of 1969.
2
“[16] I am of the
view that the High Court erred in this finding. For the purposes of
the Act, the term "debt
due" means a debt, including a
delictual debt, which is owing and payable. A debt is due in this
sense 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.
[17] In
a delictual claim, the requirements of fault and unlawfulness do not
constitute
factual
ingredients of the
cause of action, but are
legal
conclusions to be drawn
from the facts:
"A
cause of action means the combination of
facts
that are material for
the plaintiff to prove in order to succeed with his action. Such
facts must enable a court to arrive at
certain
legal
conclusions regarding unlawfulness and fault
,
the constituent
elements of a delictual cause of action being a combination of
factual and legal conclusions
,
namely a causative act, harm, unlawfulness and culpability or
fault" (emphasis added).
[18] In
the words of this Court in
Van
Staden v Fourie
:
"Artikel
12(3) van die Verjaringswet stel egter nie die aanvang van verjaring
uit totdat die skuldeiser die volle omvang
van sy regte uitgevind
het nie. Die toegewing wat die Verjaringswet in hierdie verband
maak, is beperk tot kennis van 'die feite
waaruit die skuld
ontstaan'."
[19] "Cause
of action" for the purposes of prescription thus means:
". . .
every fact which it would be necessary for the plaintiff to prove,
if traversed, in order to support his
right to the judgment of the
Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every
fact which is necessary to
be proved."
[20] As
contended by counsel for Drs Truter and Venter, an expert opinion
that a conclusion of negligence can be drawn
from a particular set
of facts is not itself a
fact
,
but rather
evidence
.
As indicated above, the presence or absence of negligence is not a
fact; it is a conclusion of law to be drawn by the court
in all the
circumstances of the specific case. Section 12(3) of the Act
requires knowledge only of the material facts from
which the debt
arises for the prescriptive period to begin running – it does
not require knowledge of the relevant legal
conclusions (ie that the
known facts constitute negligence) or of the existence of an expert
opinion which supports such conclusions.”