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[2023] ZAECBHC 28
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Member of the Executive Council for Health, Eastern Cape v Diko - Appeal (CA1/2023) [2023] ZAECBHC 28 (15 September 2023)

FLYNOTES:
CIVIL PROCEDURE – Prescription –
Medical
negligence
–
Treated
in hospital after motor collision – Fracture treated with
Kuntscher nail – MEC raising special pleas of
prescription
and statutory notice – Court a quo dismissing special pleas
– When plaintiff had possession of sufficient
facts to cause
him to think that the injuries were due to the fault of the
medical staff – Appeal by MEC dismissed
–
Prescription
Act 68 of 1969
,
ss 12(1)
and
12
(3).
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
REPORTABLE
Case no: CA1/2023
In the matter between:
MEMBER OF THE
EXECUTIVE COUNCIL FOR
HEALTH, EASTERN CAPE

Appellant
and
PERBM ANGILIZWE DIKO

Respondent
JUDGMENT ON APPEAL
Govindjee J
[1]
To
succeed with a special plea of prescription in cases involving
medical negligence, it must be shown that the other party had

knowledge of sufficient facts so as to cause them, on reasonable
grounds, to suspect fault on the part of the medical staff, and

consequently to seek legal advice.
[1]
This appeal concerns the reduced burden of proof to establish a prima
facie case when a party raises prescription and the knowledge
of the
facts lies within the realm of knowledge of the other party, who
fails to adduce evidence or seriously challenge the evidence

presented.
Background
[2]
The
respondent (‘Mr Diko’) was involved in a motor vehicle
collision on 9 December 2009. He sustained a right-sided
femoral
fracture and received treatment at hospitals in Bizana and Mthatha.
The femoral fracture was treated and stabilised with
a Kuntscher nail
on 18 December 2009. Mr Diko was discharged on 21 December 2009 and
received follow-up treatment as an outpatient
until 3 February 2010.
During 2018, he claimed R4,5 million from the appellant (‘the
MEC’) for damages allegedly caused
by hospital staff acting
negligently within the course and scope of their employment.
[2]
The claim was based on breach of contract, alternatively breach of a
duty of care, based on a similar factual underpinning. It
is alleged
that the treatment received, or lack thereof, had resulted in a
shortening of the right leg, and associated complaints,
(‘the
injuries’) so that a complex surgical procedure, with the risk
of associated complications, was now required.
[3]
The
MEC’s first special plea raised prescription.
[3]
The second special plea was based on non-compliance with the
statutory obligation to give notice of institution of proceedings

timeously.
[4]
Mr Diko,
citing ss 12(1) and 12(3) of the Prescription Act, 1969
[5]
(‘the Act’), replicated that he only became aware of the
facts giving rise to the debt after consulting with his attorney
of
record following receipt of a report from Dr Olivier on 12 June 2018,
so that, for purposes of the Act and the statutory notice,
the debt
only became due on that date.
[6]
[4]
Both points were separated for
determination in terms of Uniform Rule 33(4). The MEC, accepting that
she bore the onus, led only
the evidence of Dr Osman, a specialist
orthopaedic surgeon. No agreed facts were placed before the court and
Mr Diko led no evidence.
The evidence
[5]
Dr
Osman had obtained Mr Diko’s patient history from him. The
essence of his evidence was as follows:
[7]
‘…
after
discharge, he went to a nearby clinic for removal of sutures. And
thereafter while he was mobilising with a pair of crutches
he noticed
that the right lower limb was shortening. And he was quite clear that
time that something was not right and upon noticing
the same, he
attended Bizana Hospital where he mentioned to them that his limb was
shortening. They then referred him to Bedford
Hospital. He was
assessed there, he was given pain medication, they confirmed that
there was a problem with the fixation. And he
was given an
appointment date and asked to return to Bedford Hospital for further
treatment. Prior to this appointment date, he
went back to Bizana
Hospital because his lower limb was starting to bend. He was assessed
and he was asked to attend Bedford Hospital
for further management.
Unfortunately due to financial constraints he could not go back for
this follow up and therefore did not
attend further treatment at
Bedford Hospital…he noticed the shortening very quickly, about
two weeks following this surgery.
And he noticed bending one month
after the surgery…and this bending ceased approximately one
year after the surgery…’
The judgment
[6]
The
court
a
quo
dismissed the special pleas raised with costs, including the costs of
two counsel. The trial judge highlighted that the MEC was
obliged to
show that Mr Diko was in possession of sufficient facts to cause him
on reasonable grounds to think that the injuries
were due to the
fault of the medical staff. Yet the MEC had not referred to hospital
records to substantiate that Mr Diko had actual
knowledge that there
was a problem with the fixation ‘or that his having been told
that there was “a problem”
with the fixation in relation
to what might be of relevance in the hospital records, ought to have
given him reasonable grounds
to suspect fault on their part so as to
have caused him … [to seek] advice regarding the possibility
of a damages claim
against the defendant arising from that
disclosure’.
[8]
[7]
The assessment of the evidence continued as
follows:
‘
It
seems to me that even if the plaintiff had been told that there was
“a problem with the fracture fixation” …
this does
not equate to the defendant showing that he was “in possession
of sufficient facts to (have caused him) on reasonable
grounds to
think that his injuries were due to the fault of the medical staff”
… while he might have been expected
to know that something was
amiss … how was he supposed to know that a wrong nail had been
inserted or that it is contraindicated
in orthopaedic practice.’
[8]
The trial court was concerned about the
reliability of the oral evidence it had heard. It found it
implausible that the hospital
staff would have told Mr Diko that he
had received substandard treatment. The medical records themselves
were scant and did not
support a case of actual knowledge of
insertion of a wrong pin. On this assessment of the evidence, the MEC
had not shown that
Mr Diko had either actual or constructive
knowledge of the identity of the debtor or of the facts giving rise
to the debt more
than three years before the action had been
instituted.
Grounds of appeal
[9]
The learned judge in the court
a
quo
granted leave to appeal on the
basis that the failure to cross-exam Dr Osman seriously, coupled with
Mr Diko’s failure to
testify, would likely be assessed
differently by another court and result in a changed outcome based on
deemed knowledge. In addition,
the matter was not so complex as to
warrant costs of two counsel.
[10]
Part
of the notice of appeal is focused on the trial court’s finding
that the MEC had not succeeded in discharging the onus
to show Mr
Diko’s actual or constructive knowledge of the identity of the
debtor. It may be accepted that this issue is inextricably
bound to
the issue of Mr Diko’s knowledge of the facts from which the
debt arises based on the exercise of reasonable care.
The crux of the
challenge is his failure to testify, particularly in circumstances
where the relevant facts were peculiarly within
his knowledge, as
well as the failure to challenge Dr Osman’s evidence seriously
through cross-examination, including by
not rebutting facts
particularly within his knowledge. It is argued that the court
a
quo
failed to give adequate weight to the principle that less evidence
will suffice to establish a prima facie case where a party fails
to
explains facts within his exclusive knowledge. The MEC also submits
that the trial court erred by elevating the knowledge to
be obtained
by Mr Diko to include information indicating the negligence of the
treating medical staff.
[9]
The
finding related to the unreliability of the evidence led, based on a
language barrier and use of an interpreter during consultation,
was
also challenged as speculative.
Analysis
[11]
Courts
must promote the spirit, purport and objects of the Bill of Rights
when interpreting any legislation.
[10]
Prescription in the context of s 12(3), it must be remembered, is
aimed at penalising negligent inaction, rather than innocent

inaction.
[11]
The plea of
prescription, as circumscribed by Mr Diko’s replication,
requires a determination of two issues: firstly, what
were the facts
which Mr Diko was required to have knowledge of before prescription
could commence running; and, secondly, when
did he acquire actual or
deemed knowledge of such facts.
[12]
The burden is on the MEC to prove this aspect.
[13]
Before addressing these matters, it is necessary to make some remarks
about whether the MEC ought to be held strictly to the pleaded
date
of inception of prescription, as argued by the respondent.
[12]
As
to precisely what the debtor is to allege and prove when raising
prescription, there appears, with respect, to be a subtle tension

between the SCA’s position as expressed in
Gericke
v Sack
,
[14]
the Constitutional Court’s position in
Links
v Department of Health, Northern Province
(‘
Links
’),
[15]
which the SCA has confirmed as embodying the clear position in our
law,
[16]
and recent decisions
of that court placing reliance on the
Gericke
v Sack
approach.
[17]
This has implications both for the precision with which a special
plea of prescription should be pleaded and the strictness with
which
the proof offered by the debtor will be assessed, also on appeal.
[18]
[13]
The
judgment of the court a quo in
Links
establishes
the facts of that matter. Notably, the MEC’s first special
plea, which was upheld by that court, alleged that
‘the cause
of action arose on
26
June 2006
and that the summons was only issued on 6 August 2009, three years
and two months later’ (own emphasis).
[19]
Instead of restricting themselves to the pleaded date, the
Constitutional Court reframed the enquiry as follows:
[20]
‘
The
question for determination is whether the applicant’s claim had
prescribed by 6 August 2009 when he served summons …
The
respondent bears the onus to prove that the applicant’s claim
had prescribed by the given date. In order for the respondent
to
prove that, he must show that prescription began to run against the
applicant’s claim not later than
5
August 2006
. This is so because the
period of prescription applicable is three years. In the context of s
12(3) the respondent must show what
the facts are that the applicant
was required to know before prescription could commence running. The
respondent must also show
that the applicant had knowledge of those
facts on or before
5 August 2006
.’
(own emphasis).
[14]
The
Constitutional Court, alive to the date relied upon by the respondent
in its affidavits (26 June 2006), added as follows:
[21]
‘
The
question is, therefore, whether the respondent discharged the onus
to
show that
on 26 June or at any date on
or before 5 August 2006
the applicant
had knowledge of all the material facts from which the debt arose or
which he needed to know in order to institute
action.’
[15]
On
this authority, the argument that the MEC has pleaded one case,
namely that the debt became due by no later than 18 December
2009,
and led evidence as to another date, four weeks later, may be
over-strict. A more generous approach may instead be afforded
in
respect of consideration of the special plea, so that this court
considers whether the MEC has shown that Mr Diko had knowledge
of the
facts (which the MEC must show he was required to know) on or before
18 July 2015, a date three years prior to service of
summons.
[22]
What are the facts
from which the debt arose?
[16]
Section
12(1) of the Act provides that prescription begins to run when a debt
‘is due’. In the present context, this
refers to a
delictual debt which is owing and payable.
[23]
That in turn requires the creditor to have acquired ‘a complete
cause of action for the recovery of the debt’, as explained
in
Truter
:
[24]
‘…
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]
The
focus is on the ‘combination of facts that are material for the
plaintiff to prove in order to succeed with his action’.
[25]
Time begins to run ‘when [the creditor] has the minimum
facts’
[26]
that they
would need to prove, if in issue, in order to support a favourable
judgment.
[27]
Knowledge of the
relevant legal conclusions, including that the known facts constitute
negligence, is not required.
[28]
As
Mr
Du Toit
,
for the MEC, pointed out, such matters are not facts, and neither is
the evidence necessary to prove the essential facts (the
facta
probantia
).
[29]
An expert’s conclusion that a particular set of facts
constitutes negligent, wrongful conduct is evidence, and not itself
a
fact.
[30]
[18]
The
alleged factual causes of Mr Diko’s injuries are indispensable
primary facts to be gleaned from his particulars of claim,
which
contain the constituent elements of his claim.
[31]
Mr Diko pleaded the
facts
from which he sought to draw the conclusion that the MEC acted
negligently.
[32]
Put
differently, these are the facts which, if proved, would result in
legal liability:
[33]
‘
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.’
[19]
The particulars of claim allege actions,
alternatively a failure to act, on the part of employees of the MEC
in breach of an agreement,
alternatively in breach of a legal duty of
care. As reflected in an earlier footnote, the factual allegations in
respect of negligent
treatment centre around the bent Kuntscher nail
(including problems with its girth, length and depth of insertion)
and the related,
allegedly deficient, surgical procedure followed.
[20]
This
is not to suggest that Mr Diko would have to have knowledge ‘of
all the facts underlying the cause of action as pleaded,
or of all of
the alleged facts as they appear from the pleadings.’
[34]
That would unnecessarily set the bar too high, bearing in mind that
knowledge of the minimum combination of facts necessary to
institute
action suffices. Rather, for purposes of s 12(3), the relevant facts
extend to include such facts that would cause the
creditor to
reasonably believe that a constituent element of the delict in
question was present.
[35]
Was there actual or
deemed knowledge of the facts from which the debt arose?
[21]
Practically
speaking, and drawing from his particulars of claim, the questions to
be asked are whether Mr Diko knew that the wrong
nail had been
utilised or that the surgical procedure was defective, or that other
‘advantageous and less damaging treatment
options’ had
not been properly investigated. While it was unnecessary for him to
know, conclusively, that there had been
such errors, he was required
to have ‘knowledge of’ sufficient facts of the treatment
administered to reasonably have
placed him in a position to form a
‘belief’, and to investigate the matter further.
[36]
[22]
It
is these aspects of the particulars of claim that raise a variety of
‘sufficient facts to cause the creditor on reasonable
grounds
to think that the injuries were due to the negligence of the medical
staff’.
[37]
In
Loni
,
this was framed as being ‘facts which would cause a plaintiff,
on reasonable grounds, to suspect that there was fault on
the part of
the medical staff and that caused him or her to “seek further
advice”.’
[38]
It
is those facts, rather than appreciation of any legal consequences,
such as that the facts support a conclusion of negligence,
which Mr
Diko must have actual or deemed knowledge of for prescription to
commence.
[39]
[23]
Accepting
that these are the primary facts, the enquiry turns to Mr Diko’s
actual knowledge, or deemed knowledge, of such
facts.
[40]
As to what constitutes ‘knowledge’, there must be
justified, true belief, going beyond opinion or supposition.
[41]
A belief in this sense is more than a suspicion and less than the
product of personally witnessing or participating in events,
or of
being the recipient of first-hand evidence. It extends to a belief
that is engendered by, or inferred from attendant circumstances.
[42]
[24]
The
requirement ‘exercising reasonable care’, in the s 12(3)
proviso, requires ‘diligence not only in the ascertainment
of
the facts underlying the debt, but also in relation to the evaluation
and significance of those facts’.
[43]
Mr Diko is deemed to have the requisite knowledge, so that the debt
is due, at the point that a reasonable person in his
position would
have deduced the identity of the debtor and the facts from which the
debt arose.
[44]
[25]
What
is the level of proof expected of the MEC considering that the issue
relates to a matter squarely within the knowledge of Mr
Diko? The
judgment of Stratford JA in
Ex
Parte The Minister of Justice: In re Rex v Jacobsen & Levy
provides guidance:
[45]
‘
It
is not, however, in every case that the burden of proof can be
discharged by giving less than complete proof on the issue; it

depends upon the nature of the case and the relative ability of the
parties to contribute evidence on that issue. If the party,
on whom
lies the burden of proof, goes as far as he reasonably can in
producing evidence and that evidence “calls for an
answer”
then, in such case, he has produced
prima
facie
proof, and, in the absence of an
answer from the other side, it becomes conclusive proof and he
completely discharges his
onus
of proof.
[26]
It
must be accepted that less evidence suffices to establish a prima
facie case where the matter is peculiarly within the knowledge
of the
opposite party.
[46]
As
reflected in the judgment granting leave to appeal, the trial court
erred in failing to consider this principle in the context
of Mr
Diko’s failure to testify. To the extent that the court was
reluctant to rely on Dr Osman’s evidence based on
a language
barrier, this concern was speculative and misplaced considering the
evidence at hand. It is accordingly open to this
court to reject
fully or in part the trial court’s findings and assessment of
evidence, and to reach its own conclusions.
[47]
[27]
A
failure to adduce evidence in a civil case does not, on its own,
justify a finding in favour of the other party.
[48]
It remains necessary for a court to conclude that, having regard to
the absence of an explanation, that party’s version is
more
probable than not.
[49]
As
Schmidt notes:
[50]
‘
When
a litigant fails to adduce evidence about a fact in issue, whether by
not giving evidence himself or by not calling witnesses,
it goes
without saying that he runs the risk of his opponent’s version
being believed. If he bears an evidential burden and
does nothing to
discharge it he will necessarily suffer defeat. The fact that the
evidence is not adduced to contradict an opponent’s
version
does not necessarily mean, however, that the version will be
accepted. Whether it is accepted depends on the probative
strength of
the opponent’s evidence, that is to say on whether it really
was strong enough to cast an evidential burden on
the side failing to
present evidence.
[28]
Both
the MEC and the court a quo made reference to
Galante
v Dickinson
[51]
in respect of the alleged errors in the assessment of the evidence.
But that decision was concerned with a motor vehicle collision
where
two
alternative explanations
of the cause of the accident were roughly
equally
open
on the evidence presented
.
It was in those circumstances that the party who had failed to give
evidence on matters within his knowledge was disfavoured.
The
decision appears to be inapposite and the matter may be considered
based on Dr Osman’s uncontested evidence of what he
heard from
Mr Diko. The probative strength of Dr Osman’s evidence must
still be assessed to determine whether it was strong
enough to cast
an evidential burden on Mr Diko.
[52]
Following Schmidt, it is ultimately the application of the relevant
standard of proof to all the facts of the case that determines

whether Mr Diko’s failure to give evidence will be fatal.
[53]
[29]
The MEC seemingly went as far as it could
to discharge its burden by leading Dr Osman’s evidence as to
his consultation with
Mr Diko. The highpoint of Dr Osman’s
evidence, correctly identified by the trial court, was that Mr Diko
knew sometime during
2009 / 2010 that there was a ‘problem with
the fixation’. The crux of the matter is whether that evidence,
bearing
in mind the reduced expectation, called for an answer so that
it constituted prima facie proof that became conclusive when Mr Diko

did not take to the stand.
[30]
An
adverse inference should not be drawn from a party’s failure to
testify where it appears from evidential material before
the court
that the testimony would merely serve to corroborate evidence already
given.
[54]
An inference also
cannot be drawn when the case against the party failing to give
evidence, or to call a witness, is weak.
[55]
This is because the failure to have testified could have been
motivated by the absence of any threat to counter, rather than fear

that unfavourable evidence might be elicited.
[56]
[31]
In the present circumstances, the only risk
run by Mr Diko was that the MEC’s version as to his knowledge
of the facts from
which the debt arose, or ability to acquire such
knowledge by exercising reasonable care, would be accepted. That
version was in
any event predicated on Mr Diko’s own history of
events, as presented to Dr Osman during their consultation. Dr
Osman’s
brief testimony in court followed the lines of his
report, which was before the court and, being based on Mr Diko’s
own recollection
of events, contained little that was new. That being
the sum total of the MEC’s case, it would also be inappropriate
to draw
an adverse inference where the case against Mr Diko was
rightly assessed as being weak.
[32]
Mr
Diko, it must be remembered, was involved in a motor vehicle
collision that caused a right-sided femoral fracture that was
treated.
That accident would have been uppermost in his mind as the
source of the medical problems that followed. Considering the
solitary
evidence led, it may be accepted that Mr Diko, having been
discharged from hospital, noticed a shortening of his right lower
leg.
That observation was subsequently confirmed by staff at Bizana
Hospital, who referred him to Bedford Hospital. There he received

pain medication and asked to return for further treatment on an
appointed date. Importantly, ‘they confirmed that there was
a
problem with the fixation’. That was indeed nothing more than
confirmation of something painfully within his knowledge,
namely that
the treatment he had received had not solved the problem which had
started with the accident on 9 December 2009, caused
his
hospitalisation on 11 December 2009 and his operation on 18 December
2009. His lower limb subsequently started to bend. He
had noticed the
shortening about two weeks after surgery, and the bending a further
two weeks later, but did not return to Bedford
Hospital for further
treatment.
[57]
[33]
Mr
Diko was constrained to plead that he did not have the requisite
knowledge as envisaged in s 12(3) of the Act, given that the
claim
had prima facie prescribed by time he decided to institute
action.
[58]
That
notwithstanding, and bearing in mind the MEC’s reduced burden
of proof, there is no basis to conclude that it was necessary
for Mr
Diko to have lead evidence in rebuttal considering the limited extent
of the evidence on behalf of the MEC.
[59]
This evidence does not demonstrate actual knowledge, in the form of a
justified, true belief inferred from attendant circumstances,
of the
facts from which the debt arose. As will be explained, nor can it be
said to demonstrate deemed knowledge.
[34]
It
is difficult to criticise Mr Diko for having failed to keep the
appointment made for him at Bedford Hospital. On the accepted
facts,
he did not do so purely, and unfortunately, because of financial
constraints.
[60]
He accepted
his lot and it cannot be said that a reasonable person in his
position would have done differently. A diligent evaluation
and
consideration of the significance of being told that there was ‘a
problem with the fixation’ by a reasonable person
in his
position would, on balance, not have resulted in the facts from which
the debt arose, implicating the MEC as the debtor,
being deduced.
There are, after all, many possible reasons for disability and the
fact that the plaintiff was not a person with
medical knowledge
cannot be ignored.
[61]
As was
the case in
Daki
,
there is an insufficient factual basis to conclude that Mr Diko had
reasonable cause to suspect that the injuries, particularly
‘the
problem with the fixation’, were due to the conduct of the
hospital staff that had treated him after the accident.
[62]
The MEC has failed to meet the burden, even on a reduced basis, as
set by
Links
and
the cases that have followed.
[35]
To
the extent that this conclusion may seem to blur the lines with an
assessment of negligence on the part of the hospital staff,
this
appears to be a necessary consequence of the closeness of the
respective enquiries.
[63]
A
similar argument, based on the High Court’s reference to the
word ‘fault’, was rejected in
NH
,
the SCA concluding as follows:
‘
In
my view, the appellant has not discharged the onus of showing that
the respondent knew, or ought to have reasonably suspected,
on an
objective assessment of the facts, that she received negligent
treatment at the hospital, and that the disability suffered
by her
minor child was the result of that negligence. It cannot be said that
the respondent had knowledge of the facts that would
have led her to
think that the medical staff at [the] hospital were negligent, and
that her child had cerebral palsy as a result.’
[36]
The
MEC failed to establish a prima facie case and, consequently, no
adverse inference can be drawn from Mr Diko’s failure
to
testify. The MEC has not demonstrated on a balance of probabilities
that Mr Diko had knowledge of the facts from which the debt
arose
more than three years before summons was served. Nor can it be said
that, at that point in time, the known facts would have
caused him,
on reasonable grounds, to have ‘suspected that there was fault’
on the part of the MEC, so as to cause
him to seek further
advice.
[64]
On these facts, it
cannot be said that he could have acquired sufficient knowledge by
exercising reasonable care by that time,
so that the s 12(3) proviso
is triggered. These conclusions align closely with the reasons
advanced by the trial court in arriving
at the same outcome.
Costs
[37]
An
appeal court will not readily interfere with the exercise of the
discretion of a trial judge in awarding costs, even in circumstances

where it would itself have made a different order.
[65]
Absent demonstrated misdirection or irregularity, the trial court’s
decision to award costs of two counsel was an exercise
of judicial
discretion and must stand.
[38]
This court has a discretion whether to
allow the fees of two counsel in respect of the costs of the appeal.
Considering the amount
involved, the limited extent and nature of the
issues in dispute and the short record, it cannot be said that was a
reasonable
precaution.
Order
[39]
The following order is issued:
1.
The appeal is dismissed with costs.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH
COURT
NONCEMBU J
I agree
_________________________
V P NONCEMBU
JUDGE OF THE HIGH
COURT
TILANA-MABECE AJ
I agree
_________________________
S T TILANA-MABECE
ACTING JUDGE OF THE
HIGH COURT
Heard:
11 September 2023
Delivered:
15 September 2023
Appearances:
Counsel for the
Appellant:

Adv P Du Toit
Chambers,
King William’s Town
Instructed
by:

Norton Rose Fullbright South Africa Inc.
Appellant’s
Attorneys
C/o:

Smith Tabata Attorneys
Sutton
Square
Queens
Road
King
William’s Town
For the
Respondent:

Adv SY Malunga and Adv T Mpahlwa
Chambers,
East London
Instructed
by:

Cinga Nohaji Inc.
Respondent’s
Attorneys
36
Chamberlain Road
East
London
[1]
Links
v Department of Health, Northern Province
2016
(5) SA 414
(CC) (‘
Links
’)
paras 42, 45: ‘Until there are reasonable grounds for
suspecting fault so as to cause the plaintiff to seek further

advice, the claimant cannot be said to have knowledge of the facts
from which the debt arises … Until the applicant had

knowledge of facts that would have led him to think that possibly
there had been negligence and that this had caused his disability,

he lacked knowledge of the necessary facts contemplated in s 12(3).’
[2]
The
particulars of claim detail the allegedly negligent treatment as
follows:
’
13.1
The treatment rendered and / or, alternatively, surgical procedure
performed by the defendant was
completely inadequate in that: -
13.1.1
The [Kuntscher] nail [used to stabilize a femoral fracture] was too
thin;
13.1.2
The nail was too short;
13.1.3
The nail was not inserted deep enough;
13.1.4
Image intensification was not utilised when the nail was inserted;
13.2
The defendant rendered the treatment and / or performed the surgery
incorrectly as a wrong
intramedullary device was utilised;
13.3
The defendant rendered the treatment and / or performed the surgery
without doing the necessary
investigations;
13.4
The defendant rendered the treatment and / or performed the surgery
without the plaintiff’s
properly informed consent;
13.5
The defendant failed to properly investigate the various other
advantageous and less damaging
treatment options particularly for
the type of injuries sustained by the plaintiff;
13.6
The defendant rendered the treatment and / or performed surgery at a
time when interlocking
intramedullary nailing of the femoral
fracture should have been the treatment of choice for the following
reasons: -
13.6.1
By insertion of interlocking screws, a rotational deformity is
prevented;
13.6.2
With a stable interlocking construct leg shortening will not occur;
13.6.3   The
interlocking device is much stronger and will minimise complications
such as bending of the nail;
13.6.4
Insertion of interlocking nail in both the femur and tibia is a long
standing and reliable orthopaedic procedure.’
[3]
In particular:
‘
2.1.1
the plaintiff’s alleged claim is a debt that became due by no
later than 18 December 2009;
2.1.2
the plaintiff’s summons and particulars of claim dated 3 June
2018 was served on the defendant
on or about 19 July 2018;
2.1.3
the plaintiff’s alleged debt for the purposes of his claim has
accordingly prescribed by virtue
of section 12(1) read with
section
11(d)
of the
Prescription Act 68 of 1969
.’
[4]
Section
3(2)
of the Institution of Legal Proceedings against Certain Organs
of State Act, 2002 (Act 40 of 2002).
[5]
Act
68 of 1969. Section 12(1) provides that, subject to the provisions
of subsections (2), (3) and (4), prescription commences
‘as
soon as the debt is due’. Section 12(3) reads 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.’
[6]
Given
the replication, it may be accepted that, while this may have
facilitated the proceedings before the court
a
quo
,
there was no obligation on the MEC to file a rejoinder: J Saner
Prescription
in South African Law
(2022) (LexisNexis) SI 33 at fn 2106, p3-373.
[7]
Dr
Osman’s report, accepted by the trial court into evidence,
adds that ‘Bedford Hospital recognised that there was
a
problem post fixation. It was noted that the wrong nail was
inserted. He was advised to return for follow up management (sic)’.
[8]
The
crux of the finding is reiterated later in the judgment, as follows:
‘…
even
assuming I must accept that he was told that there had been “a
problem” with the fixation, what about this information
or
knowledge on his part would have been an indication for him that the
staff may have been negligent in carrying out the procedure.
Also,
the fact of his complications, as obvious as they may have been to
him, would not have suggested to him that the treatment
administered
to him was incorrect or inadequate and most certainly not that the
hospital had used a wrong pin that is contraindicated
in orthopaedic
practice. His situation is similar in my view to
Links
in which the court held that that plaintiff could not reasonably
have known, without seeking the opinion of a specialist, that
the
care administered to him was substandard.’
[9]
A
similar argument was considered in
MEC
for Health, Eastern Cape v NH obo A
[2022] ZASCA 181
(‘
NH
’)
paras 13 and 14.
[10]
Section
39(2) of the Constitution of the Republic of South Africa, 1996
(‘the Constitution’); See
Links
above
n 1 para 26, highlighting the link with s 34 of the Constitution. On
that authority, the appeal implicates both the constitutional
right
to have access to court and the right to security of the person:
para 22.
[11]
Macleod
v Kweyiya
2013
(6) SA 1
(SCA) (‘
Macleod
’)
para 13.
[12]
See the judgment of Van Zyl DJP in
Minister
of Police v Zamani
[2021]
ZAECBHC 41 (‘
Zamani
’)
para 8.
[13]
Gericke
v Sack
1978
(1) SA 821
(A) (‘
Gericke
’)
at 826H – 827D.
[14]
Ibid
at 827H-828B: “It was the respondent who challenged the
appellant on the issue that the claim of 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 completion of the
period of prescription … It follows that if the debtor is to
succeed in proving the date on which
prescription begins to run he
must allege and prove that the creditor had the requisite knowledge
on that date. The fact that
the appellant has alleged since her
replication that she learned the respondent’s identity only on
17 February 1971 does
not relieve the respondent of the task of
proving that she acquired that knowledge on 13 February 1971 –
the date on which
he relies.’
[15]
Links
above n 1 para 24.
[16]
See
WK
Construction (Pty) Ltd v Moores Rowland and Others
[2022] ZASCA 44
;
[2022] 2 All SA 751
(SCA) (‘
WK
Construction
’)
para 37.
[17]
See,
for example,
Greater
Tzaneen Municipality v Bravospan 252 CC
[2022] ZASCA 155
(‘
Greater
Tzaneen Municipality
’)
para 13;
Lancelot
Stellenbosch Mountain Retreat v Gore NO
[2015] ZASCA 37
para 12. In
Brits
v Kommandantsdrift CC and Others
[2022]
ZASCA 41
para 17, the SCA framed the position as follows: ‘Thus,
it fell upon Brits to allege and prove the date upon which Meyer

Jnr, on behalf of the CC, became aware of the facts that underpinned
its claim, as well as the identity of the debtor. Alternatively,

Brits had to prove the date on which the CC would have acquired the
relevant knowledge had it exercised reasonable care.’
Cf
WK
Construction
above
n 16 para 5.
[18]
Greater
Tzaneen
Municipality
above
n 17 para 14: the municipality failed to prove that prescription had
commenced on the pleaded date and was not permitted
to advance a
different case on appeal.
[19]
Links
v MEC, Department of Health, Northern Cape Province
[2013]
ZANCHC 26.
[20]
Links
above
n 1 paras 4, 41.
[21]
Links
above
n 1 para 44. It is trite that affidavits in motion proceedings
constitute both the pleadings and the evidence:
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
2008 (2) SA 184
(SCA) para 43.
[22]
This
approach was adopted in
NH
above n 9 para 19.
[23]
Truter
and Another v Deysel
[2006] ZASCA 16
;
2006
(4) SA 168
(SCA) (‘
Truter
’)
para 16.
[24]
Ibid.
[25]
See
Links
above n 1 para 32 and following and the authorities cited. In the
case of an Aquilian action for damages for bodily injury, the
basic
ingredients of the cause of action are a wrongful act by the
defendant causing bodily injury; fault and loss to the plaintiff’s

patrimony, caused by the bodily injury:
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 838H – 839A. The material combination
of facts are those that would enable a court to arrive at legal
conclusions
regarding the constituent elements of a delictual cause
of action:
Truter
above n 23 para 17 and the authorities cited.
[26]
Minister
of Finance and Others v Gore NO
2007
(1) SA 111
(SCA) (‘
Gore
’)
para 17. The running of prescription is not postponed until such
time as the creditor is in a position to prove their
case
‘comfortably’ or to have certainty regarding the legal
position and the debtor’s obligations.
[27]
McKenzie
v Farmers’ Co-operative Meat Industries Ltd
1922
AD 16
at 23. A complete cause of action does not comprise every
piece of evidence which is necessary to prove each fact, but every

fact which is necessary to be proved.
[28]
Truter
above
n 23 as cited in
Mtokonya
v Minister of Police
2018 (5) SA 22
(CC) (‘
Mtokonya
’)
para 47.
[29]
MEC
for Health, Western Cape v MC
[2020]
ZASCA 165
(‘
MC
’)
para 7.
[30]
Truter
above
n 23 para 20.
[31]
MC
above
n 29 para 10; See
Zamani
above
n 12 para 18.
[32]
Zamani
above
n 12 para 18: what was required were the material facts from which
the legal conclusion of the elements of wrongfulness
and fault in a
delictual claim may be drawn. It would have been insufficient for
him to allege negligence without also detailing
the factual grounds
of such negligence. It is those facts which the plaintiff must have
knowledge of, as opposed to knowledge
that those facts support a
conclusion of negligence.
[33]
Mtokonya
above
n 28 para 45.
[34]
See
Drennan
Maud and Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at 212F – H, as cited in
Zamani
above n 12 para 17.
[35]
Zamani
above
n 12 para 20.
[36]
See
Zamani
above
n 12 para 21. The meaning of the terms in question are considered in
para 23, below.
[37]
Links
above
n 1 para 42.
[38]
Loni
v
Member of the Executive Council for Health, Eastern Cape
2018 (3) SA 335
(CC) (‘
Loni
’)
para 23. In
Member
of the Executive Council for the Department of Health, Western Cape
v Daki
2021 JDR 1884 (WCC) (‘
Daki
’)
para 16, a full court added 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).
[39]
Zamani
above
n 12 para 18.
[40]
MC
above
n 29 para 8. On a strict application of
Links
,
it is arguable that the MEC’s pleaded case, read with Mr
Diko’s replication, was not based on the proviso to s 12(3),

so that the only issue is whether the MEC discharged the onus to
show that Mr Diko had (actual) knowledge of all the material
facts
from which the debt arose or which he needed to know in order to
institute action:
Links
above n 1 para 44.
[41]
Gore
above
n 26 para 18.
[42]
Ibid
para 19. For an application of the principle, see
Zamani
above n 12 para 21.
[43]
Drennan
Maud Partners v Pennington Town Board
[1998] ZASCA 29
;
1998
(3) SA 200
(SCA) at 209F – G/H.
[44]
Ibid.
[45]
Ex
Parte The Minister of Justice: In Re Rex v Jacobsen & Levy
1931
AD 466
at 478-479.
[46]
Union
Government (Minister of Railways) v Sykes
1913
AD 156
at 173.
[47]
R
v Dhlumayo
1948
(2) SA 677
(A) paras 10, 11.
[48]
PJ
Schwikkard and TB Mosaka
Principles
of Evidence
(5
th
Ed) (2023) (Juta) chapter 31.5 – 663.
[49]
See
Marine
and Trad Insurance Co Ltd v Van der Schyff
1972 (1) SA 26 (A).
[50]
CWH
Schmidt
Law
of Evidence
(SI 21) (May 2023) para 3 2 4 1. Also see the judgment of Leach JA
in
Koukoudis
and Another v Abrina 1772 (Pty) Ltd and Another
2016 (5) SA 352
(SCA) (‘
Koukoudis
’)
para 49.
[51]
Galante
v Dickinson
1950
(2) SA 460
(A) at 465.
[52]
See
Goliath
v MEC for Health, Province of the Eastern Cape
[2013] ZAECGHC 72.
[53]
Ibid.
Also see Schmidt above n 50.
[54]
Ntsomi
v Minister of Law and Order
1990
(1) SA 512
(C), as cited in Schmidt above n 50.
[55]
See
Koukoudis
above n 50 para 49: whilst less evidence may well suffice to
establish a prima facie case where the issue is peculiarly within

the knowledge of the opposing party, that cannot convert a case
founded upon pure speculation and faulty inferential reasoning
into
a prima facie case.
[56]
Titus
v Shield Insurance Co Ltd
1980
(3) SA 119
(A) at 133-134 as cited in Schmidt above n 50.
[57]
Dr
Osman’s testimony made no reference to Mr Diko being informed
about ‘a wrong nail’. The history upon which
he relied,
drawn from Mr Diko and as summarised in his written report, also
omits such reference. The court a quo was accordingly
justified, for
the reasons appearing in that judgment, in placing no weight on this
reference in the concluding portion of Dr
Osman’s written
opinion.
[58]
According
to the full court in
Zamani
,
this is an important aspect to be considered as part of the
assessment of evidence and application of the burden of proof:
Zamani
above
n 12 para 22.
[59]
See
Macleod
above
n 11 para 11.
[60]
The
reports of Dr Olivier and Dr Osman, included in the papers, reveal
that Mr Diko left school at the end of grade 10 and was
a bricklayer
who was unable to work as such after the accident.
[61]
Daki
above
n 38 para 17;
Links
above n 1 para 47.
[62]
Daki
above
n 38 para 20. Also see
MC
above n 29 para 5.
[63]
Also
see
WK
Construction
above
n 16 para 41: ‘In the light of these facts, it can be
concluded that
WK
Construction
must have had a reasonable suspicion of possible negligence on the
part of Mazars. It did act on that suspicion by contacting
an
accounting firm to give expert advice. In my view, this amply
satisfies the test in
Links
and the other cases for the requisite knowledge causing prescription
to commence running.’
[64]
Loni
above
n 38 para 23;
WK
Construction
above n 16 para 38.
[65]
See,
for example,
Attorney-General,
Eastern Cape v Blom
1988
(4) SA 645
(A) at 670D-F.