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[2014] ZAGPJHC 246
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Ruele v Matlhole (36553/11) [2014] ZAGPJHC 246 (6 June 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 36553/11
DATE:
06 JUNE 2014
In the matter
between:
COLLIN
RUELE
...........................................................................
Plaintiff
And
ITUMELENG GARETH
MATLHOLE
........................................
Defendant
J U
D G M E N T
MABASA AJ:
[1] This is an
action for damages arising out of a claim for medical negligence. The
cause of action arose on 10 July 2007. The
Defendant raised a
special plea of prescription as a point in limine.
[2] The Defendant is
a dental therapist who, in terms of an oral agreement performed a
surgical tooth extraction on the plaintiff
on 10 July 2007.
[3] The Plaintiff,
an adult male issued summons against the Defendant, on 26 September
2011, alleging that the Defendant was negligent
in the performance of
his professional duties. Both the merits and quantum are still in
dispute.
[4] Counsel for the
defendant submitted that by the time the summons was issued the
three-year period prescribed by the Prescription
Act 68 of 1968 had
run its course and the matter had become prescribed.
[5] In the
Plaintiff’s replication to the Defendant’s special plea
the Plaintiff disputes that his claim has prescribed
and avers that
in terms of section 12(3) of the Prescription Act he only acquired
knowledge of the material facts necessary to
support his claim for
damages on 27 July 2009 when the defendant expressly and/or tacitly
acknowledged liability when he pleaded
guilty to medical negligence
before the Health Professions Council of South Africa. This
acknowledgement of liability interrupted
the running of prescription
in terms of section 14 (1) and the running of prescription commenced
afresh from 27 July 2009 in terms
of s 14 (2).
[6] The Defendant
appeared before a professional conduct committee of the Health
Professions Council of South Africa on 10 July
2009. A Mr T Baloyi is
noted as ‘the Pro Forma complainant”. Counsel for the
Defendant submitted that since this is
not the name of the Plaintiff,
the proceedings relates to another person altogether.
[7] This was
argument was rejected by the Plaintiff’s Counsel who submitted
that it is simply the representative of the Health
Professions
Council of South Africa that was cited in this manner. I accept that
explanation.
[8] It is not clear
exactly what the charges are that were put to the Defendant by the
disciplinary hearing committee. However on
27 July 2009 the defendant
pleaded guilty to the charge against him. He states in paragraph 7
that “I admit that I practiced
out of the scope of my
profession in that I cemented a bridge on my patient’s mouth.”
A fine of R3000.00 was imposed
and the Defendant was ordered to
attend a course in professional ethics.
[9] Counsel for the
Defendant submitted that the fact that the Defendant admitted to
practising outside the scope of his profession,
does not amount to an
admission that he was negligent nor an acknowledgement of liability
as required in terms of Act 68.
[10] This is not an
enquiry into negligence or the merits of this case. The simple issue
for this court to determine is whether
the Defendant’s Special
Plea of prescription is a valid defence to the Plaintiff’s
claim.
[11] Section 14 (1)
of the Prescription Act 68 of 1968 states that;
“(1) The
running of prescription shall be interrupted by an express or tacit
acknowledgement of liability by the debtor;
(2) If the running
of prescription is interrupted as contemplated in subsection (1),
prescription shall commence to run afresh from
the day on which the
interruption takes place or, if at the time of the interruption or at
any time thereafter the parties postpone
the due date of the debt,
from the date upon which the debt again becomes due.”
[12] I am of the
view that the Defendant’s admission before the Health
Professions Council of South Africa that he practised
outside the
scope of his profession satisfies the requirements of Section 14.
I make the
following order:
1. The Defendant’s
special plea is dismissed.
2. Costs to be costs
in the cause.
NAME OF JUDGE AJ
ACTING JUDGE OF
THE HIGH COURT OFSOUTH AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
Counsel for the
Plaintiff: Adv M A Maholo
Instructed by:
Mudenda Attorneys
Counsel for the
Defendant: Adv S S Senosi
Instructed by:
Mkhatshwa M. Attorneys
Date of Hearing:
05 June 2014
Date of Judgment:
06 June 2014