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[2022] ZAGPJHC 54
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Mdlolose v Doctor Brendan Lyne Medical Practice and Others (18/24079) [2022] ZAGPJHC 54 (1 February 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 18/24079
REPORTABLE:
YES
/ NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED.
01.02.2022
In
the matter between:
MDLALOSE
MDUDUZI ISHMAEL
Plaintiff
and
DOCTOR
BRENDAN LYNE MEDICAL PRACTICE
First Defendant
DOCTOR
NATASHA
FAKIER
Second Defendant
DR
BRENDAN SEAN
BLAIR
Third Defendant
JUDGMENT
CRUTCHFIELD
J:
[1]
This is a medical negligence action brought
by the plaintiff, Mduduzi Ismael Mdlalosi, a male member of the South
African Police
Service. The plaintiff’s claim is for damages
pursuant to the alleged unlawful and negligent conduct of the
defendants, Dr
Brendan Lyne Medical Practice, Dr Natasha Fakier and
Dr Brendan Sean Blair, the defendants before me.
[2]
The plaintiff issued the action initially
against the Meredale Medical Centre (Pty) Ltd only. Thereafter, the
plaintiff issued an
application for joinder of the three defendants
referred to afore. This Court, on 5 November 2018, granted an
order joining
the three defendants to the proceedings. On 2 December
2019, the plaintiff withdrew the action against the Meredale Medical

Centre (Pty) Ltd.
[3]
On 25 January 2019, the plaintiff
served the amended combined summons and particulars of claim, the
order for joinder, the
defendant’s special plea and the amended
pages on the defendants.
[4]
The defendants raised a special plea of
prescription that I heard separately by agreement between the
parties, prior to the parties
commencing with the evidence on the
issue of the defendants’ alleged liability in the medical
negligence claim.
[5]
The special plea comprised of two legs:
5.1
Firstly, that in terms of s 12(3) of the
Prescription Act, 68 of 1969 (‘the Act’), the plaintiff
had knowledge of the
identity of the defendants and the facts giving
rise to the debt on 4 December 2015. Accordingly, the claim
expired on 3 December
2018.
5.2
Secondly, that service of the amended
summons and relevant documents aforementioned, including the order of
joinder, on the defendants
on 29 January 2019 did not serve to
interrupt prescription as the claim prescribed on 3 December
2018.
[6]
The defendants carried the onus to prove
the special plea of prescription and the plaintiff to prove the
interruption of prescription.
[7]
The defendants led the evidence of the
second defendant, Dr Natasha Fakier, who testified that the treating
doctors introduced themselves
to the plaintiff at the respective
consultations. Furthermore, that the forms necessary for a claim in
terms of the workman’s
compensation regime, reflecting the
names and practice numbers of the defendants, were handed to the
plaintiff after the plaintiff
attended upon the relevant defendants.
[8]
The defendants then closed their case on
the special plea of prescription and the plaintiff led the evidence
of the plaintiff himself.
The latter confirmed essentially that the
names and practice numbers of the defendants were available to him,
and that he had knowledge
of the facts underpinning the debt on
4 December 2015 at the latest.
[9]
The plaintiff, having heard the evidence,
conceded that the plaintiff had knowledge of the underlying facts as
at 4 December
2015. Thus, the claim prescribed on 3 December
2018, a point on which the parties were
ad
idem.
[10]
The sole remaining issue was whether the
granting of the order of joinder on 5 November 2018 served to
interrupt prescription
in terms of s 15 of the Act.
[11]
Section 15 provides for judicial
interruption of prescription. Section 15(1) provides for the
interruption of prescription by service
on the debtor of any process
whereby the creditor claims payment of the debt.
[12]
Four
decisions of our courts are relevant to the issue before me; the
decision of Howie J in
Cape
Town Municipality & Another v Allianz Insurance Co Ltd,
[1]
that of the Supreme Court of Appeal in
Peter
Taylor & Associates v Bell Estates (Pty) Ltd & Another
,
[2]
followed by
Huyser
v Quicksure (Pty) Ltd & Another
[3]
in the Gauteng Division and
Nativa
Manufacturing (Pty) Ltd v Keymax Investments 125 (Pty) Ltd &
Others.
[4]
[13]
The plaintiff relied on
Huyser
and the defendants on
Nativa
.
[14]
The
plaintiff argued that the granting of the joinder order was a
judicial pronouncement of joinder that served to interrupt
prescription
in terms of s 15(1) of the Act. Secondly, that the
application for joinder was a process as envisaged in
Allianz
[5]
and
referred to in
Nativa,
[6]
being
a process whereby:
14.1
‘
The proceedings begun thereunder are
instituted as a step in the enforcement of a claim for payment of a
debt’; and
14.2
‘
A creditor prosecutes his claim
under that process to final, executable judgment, not only when the
process and the judgment constitute
the beginning and end of the same
action, but also where the process initiates an action, judgment in
which finally disposes of
some elements of the claim, and where the
remaining elements are disposed of in a supplementary action
instituted pursuant to and
dependent upon that judgment.’
[15]
Keightley J
[7]
contextualised the findings in
Allianz
[8]
that were referred to and relied upon by the Supreme Court of Appeal
in
Peter
Taylor
.
[9]
[16]
The
court in
Nativa
[10]
found that
Allianz
did
not deal with an application for joinder but with a declarator to the
effect that the defendant was liable to indemnify the
plaintiff under
an insurance policy. Howie J found that the declarator was a process
that served to interrupt prescription in terms
of s 15 of the
Act.
[11]
[17]
The
reasons were twofold. Firstly, that the proceedings for the
declarator constituted a ‘step in the enforcement of a claim

for payment of a debt,’
[12]
in that the judgment in the declaratory proceedings finally disposed
of some of the elements of the claim, being liability under
the
insurance policy, with the balance of the required elements being
determined in a supplementary action linked to and dependent
upon
that judgment.
[13]
The
supplementary and dependent action in
Allianz
was
a claim for payment of the amount for which the defendant was liable
under the insurance policy.
[18]
Thus,
the action for payment in
Allianz
arose
pursuant to declaratory proceedings that determined the issue of
liability under the insurance policy. Accordingly, there
was a
‘substantive link’, a ‘shared cause of action,’
[14]
between the declaratory proceedings and those for payment of the
amount due, sufficient to interrupt the payment of prescription.
[19]
The process before me is an application for
joinder together with an order of court ordering joinder of the three
defendants.
[20]
Finalisation
of the joinder application by way of the granting of the order of
joinder served, in my view, only to add the defendants
as parties to
the action but did not finalise any of the necessary elements of the
medical negligence claim.
[15]
[21]
The
application for joinder did not move the substantive process of the
medical negligence claim a step closer towards ‘the
enforcement
of a claim for payment of a debt’.
[16]
It served only to include the defendants as parties who were
potentially liable under the claim. Nor did the judgment in the
application
for joinder dispose of an element of the medical
negligence action as occurred in
Allianz
.
[17]
[22]
Furthermore, the cause of action in the
joinder application comprised the required elements of a claim and
order for joinder in
terms of rule 10 of the uniform rules of court.
Joinder is a procedure governing the addition of parties and/or
causes of action
whatever the characterisation of the main claim and
the necessary elements of the main claim may be. The medical
negligence claim
in this matter served as context to the joinder
application but did not share a cause of action with the joinder
application.
[23]
The required elements of the joinder
application are markedly different from those of the medical
negligence claim.
[24]
The
next issue is the effect of the granting of the order of joinder
pursuant to the joinder application. In
Nativa
the joinder application was heard at a stage when the claim against
the proposed defendant had already prescribed.
[18]
This is distinguishable from the matter before me in which the claim
against the defendants had not prescribed as and when the
order for
the defendants’ joinder to the action was granted.
[25]
In my view, in order for the granting of
the joinder order to have the effect of interrupting prescription in
terms of s 15 of the
Act, the order had to be served upon the
defendants together with the amended summons and particulars of claim
and such additional
process as had been delivered in the matter as at
that stage. Furthermore, service of the joinder order together with
the various
relevant documents had to be effected during the
prescriptive period, the last day for such service being 3 December
2018.
[26]
The
necessity for service of the order and relevant documents during the
prescriptive period was dealt with by Keightley J
in
Nativa,
[19]
relying on
Allianz
,
[20]
to the effect that under the Act service of a process claiming
payment of a debt is required in order to complete the requirements

of s 15(1).
The
requirement for service of the process claiming payment of the debt
arises from the necessity for certainty as between the debtor
and the
creditor. It is only upon service on the debtor that the latter is
required to comply with the demand for payment or to
take steps to
defend the process.
[27]
Keightley J
relied on Howie J’s finding that it is service of the
process claiming payment of the debt that comprises
the ‘taking
of judicial steps to recover the debt, thereby removing all
uncertainty as to its existence’.
[21]
[28]
Furthermore,
Keightley J noted
[22]
that it is the service of the process, not the issue of the process,
that institutes the proceedings. Service on the defendant
requires
the defendant to answer to the claim.
[29]
Hence, in my view, not only did the
plaintiff have to procure the order for the joinder of the defendants
within the three-year
period terminating on 3 December 2018 but
also had to effect service of the order together with the relevant
documents, on
or before 3 December 2018, being within the
prescriptive period.
[30]
Regard
being had to the judgment in
Huyser
,
[23]
I am in respectful agreement with the findings of Keightley J in
Nativa
[24]
that there is no substantive difference in an order that seeks the
joinder of a prospective defendant or an order that seeks the
leave
of the court to join a prospective defendant to the proceedings.
[31]
In the circumstances, I respectfully align
myself with the judgment of Keightley J in
Nativa
and find that the special plea of prescription is upheld.
[32]
Accordingly, I grant the following order:
1.
The special plea of prescription is upheld
and the action is dismissed with costs.
I
hand down the judgment.
_________________
CRUTCHFIELD
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically
by circulation to
the Parties / their legal representatives by email and by uploading
it to the electronic file of this matter
on CaseLines. The date of
the judgment is deemed to be 1 February 2022.
COUNSEL
FOR THE PLAINTIFF:

Mr T Mathopo.
INSTRUCTED
BY:

N. T Mdlalose Incorporated.
COUNSEL
FOR THE DEFENDANTS:

Mr L Choate.
INSTRUCTED
BY:

Webber Wentzel Attorneys.
DATE
OF THE HEARING:

31 January 2022.
DATE
OF
JUDGMENT:

1 February 2022.
[1]
Cape
Town Municipality & Another v Allianz Insurance Co Ltd
1990 (1) SA 311
(C) (‘
Allianz
’).
[2]
Peter
Taylor & Associates v Bell Estates (Pty) Ltd & Another (Pty)
Ltd
2014 (2) SA 312
(SCA) (‘
Peter
Taylor’
).
[3]
Huyser
v Quicksure (Pty) Ltd & Another
[2017] 2 All SA 209
(GP) (‘
Huyser’
).
[4]
Nativa
Manufacturing (Pty) Ltd v Keymax Investments 125 (Pty) Ltd &
Others
2020 (1) SA 235
(GP) (‘
Nativa
’).
[5]
Allianz
above n 1 at 334H-I.
[6]
Nativa
above n 4 para 12.1 – 12.2 referring to
Allianz
above note 1 at 334H-I.
[7]
Nativa
above n 4 para 12.3.
[8]
Allianz
above note 1 at 316E-F.
[9]
Peter
Taylor
above n 2 para 8.
[10]
Nativa
above n 4 para 12.3.
[11]
Id.
[12]
Id para 12.1.
[13]
Id para 12.6.
[14]
Id para 12.4.
[15]
Id
para 12.6 referring to
Allianz
at
317G-I.
[16]
Id
para 12.1 referring to
Allianz
at
316F-H.
[17]
Id
para 12.3.
[18]
Nativa
above n 4 para 3.
[19]
Id para 16.
[20]
Allianz
above
n 1 at 329H-I.
[21]
Nativa
above n 4 para 18 referring to
Allianz
at
317D.
[22]
Nativa
id at footnote 23.
[23]
Huyser
above
note 3
[24]
Nativa
above n 4 para 23.