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[2014] ZAGPJHC 108
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Ngakane v Member for the Executive Council for Health (Gauteng Provicial Government) and Others (2010/02456) [2014] ZAGPJHC 108 (30 April 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 2010/02456
DATE:
30 APRIL 2014
In the matter
between:
NGAKANE
MATSHIDISO
.....................................................................................................
Plaintiff
And
MEMBER FOR THE
EXECUTIVE COUNCIL FOR
HEALTH (GAUTENG
PROVINCIAL GOVERNMENT)
.........................................
First
Defendant
LERATONG
HOSPITAL
.........................................................................................
Second
Defendant
UNIVERSITY OF
LIMPOPO (MEDUNSA
CAMPUS)
...........................................
Third
Defendant
J U
D G M E N T
MASHILE, J:
[1] This is a
delictual claim for damages. The Plaintiff instituted the action
following the death of her father at Leratong Hospital
and the
subsequent donation of his corpse by the latter to the Third
Defendant in terms of the now repealed Section 2(2)(b) of
the Human
Tissue Act No. 68 of 1983, which has since been replaced by
Section
63
of the
National Health Act No. 61 of 2003
.
[2] The facts
surrounding this claim are briefly that:
2.1 On 16 July 2003
the deceased, Mr Petrus Ngakane, the father of the Plaintiff, was
admitted and detained at the Second Defendant
in order to receive
medical treatment;
2.2 When members of
the deceased’s family, the Plaintiff included, subsequently
visited the Second Defendant to check on his
health and general
well-being, they were sent from pillar to post;
2.3 This carried on
for a period of approximately 1 year 6 months when the Plaintiff
eventually traced her father’s corpse
to the Third Defendant in
February 2005;
2.4 The Director
General donated the corpse of the Plaintiff’s father in
contravention of
Section 62(3)(b)
of the
National Health Act No. 63
of 2003
, which reads:
“The
Director-General may only donate the specific tissue if all the
prescribed steps have been taken to locate the persons
contemplated
in subsection (2).”
2.5 The Third
Defendant made arrangements for the Plaintiff to collect the corpse
on 21 February 2005.
[3] The Plaintiff
avers that during the period, July 2003 and 21 February 2005, she
suffered psychological trauma as a result of
the Second Defendant’s
unlawful act of failing to disclose what had transpired with her
father’s corpse. She alleges
that in consequence of that shock
she incurred damages amounting in all to R12 000 000.00, payment of
which she is demanding from
the Defendants jointly and severally the
one paying the other to be absolved.
[4] When the matter
served before court though the Plaintiff had withdrawn the action
against the Third Defendant. The case is
therefore only against the
First and the Second Defendants.
[5] The Defendants
have raised a special plea against the claim of the Plaintiff. The
special plea is that the claim of the Plaintiff
against both
Defendants has prescribed. In the circumstances it is imperative to
consider the prescription of the claim.
[6]
Section 12(1)
,
12
(2) and
12
(3) of the
Prescription Act No. 68 of 1969
respectively
provides as follows:
6.1 "Subject to
the provisions of subsections (2), (3) and (4), prescription shall
commence to run as soon as the debt is due.
6.2 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.
6.3 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.”
[7]
Section 11
of
the
Prescription Act No. 68 of 1969
deals with periods of
prescription and sub-paragraph (d) thereof stipulates that safe where
an Act of Parliament provides otherwise,
the period of prescription
will be 3 years in any other case. The Plaintiff having collected
the body of Petrus Ngakane on 21
February 2005, her claim became
extinguished by effluxion of time on 21 February 2008.
[8] The Plaintiff is
adamant that the claim has not prescribed but advances no coherent
reasons for her persistence that it has
not. All the court knows is
that she instituted her action against the Defendants on 22 January
2010.
[9] From the date on
which the action was instituted the court can reasonably infer that
her argument is that prescription could
not have began to run prior
to 22 January 2007. If one were to go beyond that date then
prescription would have occurred by 22
January 2010.
[10] For purposes of
Section 12(1) the debt became due on 21 February 2005, the date on
which she claimed her father’s body
from the Third Defendant.
Admittedly, the Second Defendant sent her from pillar to post from 17
August 2003 to 21 February 2005,
a period of approximately 16
months. The Defendants concede this fact. For that reason the
Defendant has acknowledged that the
court should disregard the 16
months being the period from Petrus Ngakane’s death on 17
August 2003 and 20 February 2005.
[11] According to
the Defendants, prescription began to run on 21 February 2005 because
that is when the Plaintiff came to know
of the debt. The provisions
of Section 12(2) must for that reason be taken to have been satisfied
on that day.
[12] In terms of
Section 12(3) of the Act, the Plaintiff was already aware of the
facts that gave rise to her claim and had also
identified all the
Defendants at the time when she collected her father’s body
from the Third Defendant. . Knowledge of
the existence of a claim
against the Defendants was therefore present.
[13] There is just
no basis on which the Plaintiff can convince this court that her
claim did not prescribe on 21 February 2008.
The Plaintiff intimated
that the Plaintiff was mentally unfit to appreciate what was
happening around her and that possibly the
date of the prescription
came and went without her realising it.
[14] The above
argument is not sustainable especially in view of her visit to the
Law Society of the Northern Provinces and/or University
of Pretoria
law Clinic,which referred her to an attorney to specifically
investigate the possibility of legally proceeding against
the
Defendants. The Plaintiff also suggests that prescription was
interrupted in 2007 when Second Defendant apparently made an
admission that it was liable for her damages.
[15] The court was
not placed in possession of any document that supports that
assertion. Besides no identity or authority of the
person who did so
on behalf of the Respondents was revealed. Furthermore, other than
mentioning in her affidavit that the Respondent
undertook to
compensate her for the resultant psychological trauma, which is
denied by the Respondent, there is no reference to
a specific date on
which the undertaking was made. The court cannot therefore attach
any value to that bald allegation.
[16] In the
circumstances the special plea is upheld and I make the following
order:
1. The case is
dismissed;
2. The Plaintiff is
to pay the costs.
B MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Date of Hearing:
25 February 2014
Date of Delivery:
30 April 2014
Counsel For
Plaintiff: Adv. TJ Magano
Instructed by:
Mojela Hlazo Practice
Counsel For
Defendant: Adv. R B Makhabela
Instructed by:
The Office of The State Attorney