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[2022] ZAFSHC 170
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Sibongile Maria Mthimkhulu obo Langalethu Patience Thabede v The Member of the Executive Council for Health for the Free State Province and Another (4056/2019) [2022] ZAFSHC 170 (7 July 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:   4056/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SIBONGILE
MARIA MTHIMKHULU
OBO
LANGALETHU PATIENCE THABEDE
Applicant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH FOR THE FREE STATE PROVINCE
First Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH FOR GAUTENG PROVINCE
Second
Respondent
HEARD
ON:
28

APRIL 2022
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
7
JULY 2022
[1]
On 9 February 2011 the Applicant gave birth to a girl that was later
diagnosed with
cerebral palsy. Having been made aware much later that
the condition of her child was caused by the negligent conduct of the
medical
staff at the hospital, the Applicant caused a summons to be
served on the First Respondent on 5 September 2019, claiming many
millions
of Rands. She also caused a notice in terms of Section 3 of
the Institution of Legal Proceedings against Certain Organs of State

Act
[1]
to be delivered on the
First Respondent on 14 February 2019. The Applicant claimed in her
personal capacity and in her representative
capacity, as mother and
natural guardian of the child.
[2]
In response to the summons, the First Respondent filed a Special Plea
to the effect
that the Applicant’s claim in her personal
capacity had already become prescribed on the 8 February 2014, and to
the effect
that notice was not given within the period stipulated in
Section 3 of Act 40 of 2002. It is common cause that the claim on
behalf
of the child as not become prescribed because she is still a
minor.
[3]
The Applicant now approached this court on motion for a declaratory
order that her
summons was served on the First Respondent within a
period of 3 (three) years from the date upon which the debt become
due, and
that her claim complied with the provisions of Section 12 of
the Prescription Act.
[2]
In
addition, the Applicant seeks a declaratory order that she has
complied in all respects with Section 3 (1), (2) and (3) of Act
40 of
2002, alternatively that her non-compliance with these provisions be
condoned in terms of Section 3 (4) (b) of the said Act.
In the
present proceedings, the Applicant claims no relief from the Second
Respondent.
[4]
The first question to be determined is then whether the Applicant’s
claim had
already become prescribed by the time that summons was
served on 5 September 2019. South African Courts have been seized
with such
questions almost on a daily basis in recent years, with the
result that there is a plethora of reported judgements dealing with

the issue. The judgements show that in each case, the applicable
legal principles are time and again weighed up against the particular

facts to arrive at a justifiable conclusion. This Court will follow
the same course to determine whether the Applicant’s
claim has
become prescribed or not.
[5]
Where the Applicant relies in
her Notice of Motion on the date upon which the debt became
due,
reference is obviously made to the provisions of Section 12 (1), (2)
and (3) of the Prescription Act. These sections provide
as follows:
12.
When prescription begins to run
(1)
Subject to the provisions of subsections (2), (3) and (4),
prescription shall commence
to run as soon as the debt is due.
[S
12(1) subs by s 68 of Act 32 of 2007.]
(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.
(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.
[S
12(3) subs by s 1 of Act 11 of 1984.]
[6]
Probably the decision most quoted when it comes to determining when a
debt becomes
due in terms of the Prescriptions Act, is the unanimous
decision of the Constitutional Court in Links v Department of
Health.
[3]
In that case, the
Plaintiff’s thumb was amputated in hospital, and he was
apparently not aware that the amputation was due
to the negligence of
the hospital staff. When he was later advised of the negligence he
instituted action, but prescription of
the claim was raised as a
defence.
[7]
Firstly, the Court referred with approval to the following passage in
the case of
Truter and Another v Deysel
[4]
:
“Debt due means a debt, including a delictual debt, which is
owing and payable. A debt is due in this case when the creditor

acquires a complete cause of action for the recovery of a 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 and pursue his or her claim.” The
Court also referred to another passage
[5]
in the Truter case where “cause of action” for the
purpose of prescription was defined as …. “every fact

which would be necessary for the plaintiff to prove, if traversed, in
order to support his right to the judgment of 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.”
[8]
The court further quoted the following passage in the case of
Minister of Finance
and Others v Gore No.
[6]
to explain the meaning of “knowledge” in relation to
prescription: “ The defendants’ argument seems to
us to
mistake the nature of ‘knowledge’ that is required to
trigger the running of prescriptive time. Mere opinion
of supposition
is not enough; there must be justified, true belief. Belief on its
own, is insufficient. For there to be knowledge,
the belief must be
justified.”
[9]
The Court then came to the following conclusions:
9.1
“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 Section 12(3).”
[7]
9.2
“A firm finding that the applicant did not know what caused his
condition as at 5
August 2006 can, therefore, be justifiably made.
That was a material fact that a litigant wishing to sue in a case
such as this
would need to know.”
[8]
9.3
“Without advice at the time from a professional or expert in
the medical profession,
the applicant could not have known what had
caused his condition. It seems to me that it would be unrealistic for
the law to expect
a litigant who has no knowledge of medicine to have
knowledge of what caused his condition without having first had an
opportunity
of consulting a relevant medical professional or
specialist for advice. That in turn requires that the litigant is in
possession
of sufficient facts to cause a reasonable person to
suspect that something has gone wrong and to seek advice.”
[9]
[10]
Turning now to the facts of the present case, the Applicant alleges
in her Founding Affidavit
that in the early hours of 9 February 2011
she “pushed” for 2 (two) hours and 30 (thirty) minutes
before the baby was
born. This happened at the Mafube Hospital at
Frankfort. During the night of 9 February 2011, the baby was
transferred to the Boitumelo
Hospital, where she remained until 4
March 2011. The treating doctor there informed the Applicant that
they are keeping her because
she was suffering from epileptic
seizures. Nobody advised her that the baby’s condition might
have been the result of medical
staff being negligent.
[11]
From 13 April 2012 and onwards the baby received treatment at two
hospitals in Gauteng province.
At one of the Hospitals the Applicant
was advised that the child’s characteristics fitted the profile
of cerebral palsy.
It was revealed to the Applicant there that such a
condition is a brain injury caused by any multitude of events before,
during
or after birth, including prolonged labour and the birth
process. According to the Applicant, she still did not realize at
that
point that negligence could have played a role. She did wonder
at the time, however, whether the child’s outcome could have

been avoided, but she had no idea whether it is possible to find out,
and she did not know how to find out.
[12]
Some 3 (three) years later and during 2015, however, a relative of
the Applicant listened to
a talk show on the radio where it was
mentioned that the condition under discussion may be caused by
negligent conduct of medical
staff. The relative then persuaded the
Applicant to seek legal advice, which she did. She consulted the firm
of Friedman and Associates
on a contingency fee agreement, and she
furnished them with the hospital file from Mafube Hospital. In
October 2015 the attorneys
requested medical records from the other
institutions concerned and after a prolonged battle all the records
were eventually obtained
on 3 July 2017. On 2 May 2018, copies of the
records were delivered to Professor Nolte of the University of
Johannesburg for an
opinion. In a medical-legal report submitted on 8
October 2018, Professor Nolte advised that the treatment of the child
was substandard
and that it breached protocol. Subsequently the
attorneys delivered the required notice to the First Respondent
within 5 weeks.
On 9 February 2019 and on 10 February 2019 the
attorneys obtained two further reports from medical experts. A final
report was
obtained from an expert on 23 March 2019. According to the
Applicant, she only became aware of the facts and the identity on the

basis of this final report, which contained an analyses of the causal
nexus between the conduct of the medical staff and the cerebral

palsy. Summons was then served within 3 (three) years, she says.
[13]
In his Answering Affidavit the First Respondent contends that the
Applicant could have acquired
knowledge of the identity of the
Respondents and of the facts giving rise to her claim long ago, had
she exercised reasonable care.
In this respect the First Respondent
relies on the fact, inter alia, that the Applicant was in possession
of the Mafube Hospital
records all the time, that she already
wondered in 2012 whether the child’s outcome could have been
avoided, and that she
could have discussed the cause of the child’s
condition with doctors at the two Gauteng Hospitals in 2012 like “any

reasonable mother would have done.” It is furthermore denied in
this Affidavit that there was any need to wait for confirmation
of a
causal nexus between the negligence of the medical staff and the
resultant cerebral palsy. This was not a fact that was required

before the Applicant could institute the claim, it is contended.
[14]
This is then in main the evidence and the facts of the matter, which
must now be weighed up against
the legal principles applicable to the
issue of prescription to determine whether the Applicant’s
claim has become prescribed.
[15]
Some 2 (two) years after the judgement in the Links matter, the
Constitutional Court again pronounced
itself on the issues of medical
negligence and prescription of a claim instituted years later in the
matter of Loni v MEC for Health,
Eastern Cape.
[10]
The Plaintiff in that matter was admitted to hospital with a gunshot
wound in 1999. He underwent an operation to insert a plate
and screws
in his femur. The bullet was not removed. He was later given his
hospital file and discharged. In December 2000 his
leg became swollen
and he returned to the hospital. He was examined and told that his
leg was fine. At some stage the Plaintiff
developed a limp.
[16]
In 2008 the Plaintiff became a clerk in the SAPS and as a result, he
was able to secure medical
insurance. He thereafter approached
doctors in private practice to establish the reason for his limp and
the constant pain in his
leg. He was referred to an orthopaedic
surgeon, and the Plaintiff showed him his hospital file. In November
2011 the surgeon advised
him that his condition was attributable to
medical negligence.
[17]
In June 2012 the Plaintiff issued summons, and the defence of
prescription was raised. As in
the present case, it was also pleaded
that the Plaintiff had not complied with Section 3 of Act 40 of 2002.
It was the case of
the Plaintiff, however, that he only acquired
knowledge of his claim in November 2011 when he was advised as such
by the orthopaedic
surgeon.
[18]
In its judgement, the Constitutional Court
referred to and relied on several passages in the Links case,
and
came to the following conclusions: “When the principle in Links
is applied to the present facts, the applicant should
have over time
suspected fault on the part of the hospital staff. There were
sufficient indicators that the medical staff had failed
to provide
him with proper care and treatment, as he still experienced pain and
the wound was infected and oozing pus. With that
experience, he could
not have thought or believed that he had received adequate medical
treatment. Furthermore, since he had been
given his medical file, he
could have sought advice at that stage. There was no reason for him
to wait more than seven years to
do so. His explanation that he could
not take action as he did not have access to independent medical
practitioners who could explain
to him why he was limping or why he
continued experience pain in his leg, does not help him either. The
applicant had all the necessary
facts, being his personal knowledge
of his maltreatment and a full record of his treatment in his
hospital file, which gave rise
to his claim. This knowledge was
sufficient for him to act. This is the same information that caused
him to ultimately seek further
advice in 2011.”
[11]
[19]
The Court also referred with approval to the assessment of the two
Courts that have dealt with
the matter before it eventually ended up
in the Constitutional Court. The Court stated that “the
objective assessment, which
was appropriately applied by both courts,
established that a reasonable person in the position of the applicant
would have realised
that the treatment and care which he had received
were substandard and were not in accordance with what he could have
expected
from medical practitioners and staff acting carefully,
reasonably and  professionally. On an assessment of the
applicant’s
evidence, it is clear that by December 2000 he had
already suffered significant harm…..and it would have been
apparent from
a reasonable assessment that the pain and suffering
which he had endured were a direct result of the substandard care
which he
had received.”
[12]
The Court therefore found that the applicant’s claim had become
prescribed.
[20]
The situation in the present case is somewhat different. At one of
the Gauteng hospitals the
Applicant was informed in 2012 that the
child probably had cerebral palsy, and that it was a brain injury
caused by any multitude
of events before, during and after birth,
including prolonged labour and the birthing process. She was not
told, and therefore
did not realise at that point, that negligence
could have been involved. In 2012, she therefore did not have the
required knowledge
as the applicant in the Loni-case had soon after
his treatment in the hospital. Thereafter 3(three) years went by
before she consulted
with her attorneys in October 2015. Following
this consultation, it took several years to obtain all the hospital
records and to
obtain records from medical experts. The first report
was obtained on 8 October 2018 from professor Nolte, which indicated
negligence
on the part of the hospital staff, and further, that there
may be a nexus between this negligence and the resultant cerebral
palsy.
[21]
From the above it must be assumed that the Applicant cannot be blamed
for the delay that occurred
between October 2015 and 8 October 2018.
She had no control over the events of that period. What is
concerning, though, is that
the Applicant states in her Founding
Affidavit that “I am advised that Professor Nolte’s
report on its own was insufficient
to prove a nexus between the
negligence and the resulting cerebral palsy which still had to be
established.” The attorneys
consequently obtained a further two
expert reports, both of which indicated negligence on the part of the
hospital staff. Still
not satisfied, the attorneys then obtained a
last report from a practising paediatrician, Dr. Lewis, on 23 March
2019. Thereafter
summons was issued.
[22]
Now the advice regarding the need for causal nexus was clearly wrong.
It was found in both the
Links
[13]
and Loni
[14]
cases that it
would be setting the bar too high to require knowledge of causative
negligence for the test in Section 12 (3) to
be satisfied. Strictly
speaking, therefor, the Applicant can therefore also not be blamed
for the delay that occurred after receipt
of Professor Nolte’s
report, because she had relied on advice.
[23]
The question is then whether the Applicant had obtained the necessary
knowledge between 2011
and 2015. As already indicated above, I think
not. Nobody informed her of possible negligent conduct of the
hospital staff or that
such conduct could have resulted in the
child’s condition. As a layperson, it could also not be
expected from her to infer
possible negligence from the Mafube
Hospital records that were in her possession. I therefore find that
she only acquired the necessary
knowledge when the report of
Professor Nolte became available on 8 October 2018, but that she was
advised not to take any action
yet on the basis of that report.
[24]
This brings me to the next and last question, namely whether the
Applicant could have acquired
the necessary knowledge by exercising
reasonable care. The question arises from the provision of Section 12
(3) of the Prescription
Act that a creditor shall be deemed to have
such knowledge if he could have acquired it by exercising reasonable
care.
[25]
On her own version, the Applicant had already wondered in 2012
whether her child’s outcome
could have been avoided. This
happened at the time when she attended one of the Gauteng hospitals
in April 2012 to participate
in support groups and to visit the
cerebral palsy clinic at the hospital. She asserts in her Founding
Affidavit that she did not
know whether it was possible to find out
if the child’s outcome could have been avoided, and she also
did not know how to
find out. I find this hard to believe. At the
time, she was right there at the support group and at the clinic
specializing in
cerebral palsy, and nothing could have been easier
than to discuss the issue with a doctor or someone there who could
have advised
her. After all, she was in possession of the Mafube
Hospital records, and she could have shown it to such a person in
order to
obtain an informed opinion. Any reasonable person in her
position would have done so.
[26]
In addition, the Applicant also did nothing during the next 3 (three)
years to find out whether
the child’s condition could have been
avoided. On her own version, the father of the child enrolled the
child as a new member
on his medical aid scheme in 2015, but she
presents no evidence that she even then took the opportunity to
consult a doctor to
find out what she wanted to know. In my view, any
reasonable mother with a child suffering from a serious condition
such as cerebral
palsy, would have jumped at the chance to consult an
independent doctor at the earliest opportunity to establish whether
anyone
was responsible for the child’s condition.
[27]
I am therefore constrained to find that the Applicant could have
acquired knowledge of the identity
of the debtor and the facts from
which the debt arose in 2012 or during the following 2 (two) to 3
(three) years, had she exercised
reasonable care. In terms of Section
12(3), she is therefore deemed to have had the necessary knowledge
during the time. The claim
in her personal capacity has become
prescribed.
[28]
In view of this finding, it is not necessary for this Court to deal
with the prayers in the Notice
of Motion relating to the provisions
of Act 40 of 2002. As for costs, the Court is mindful of the fact
that the Applicant litigated
on a contingency fee agreement with her
attorneys, and that she would in all probability not be able to pay
the costs of the application.
I therefore make the following order:
1.
Prayers 1, 2, 3 and 4 of the Notice of
Motion are dismissed.
2.
There is no order as to costs
P.
J. LOUBSER, J
For
the Plaintiff:

Adv. P. Zietsman SC
Instructed
by:

Friedman
Attorneys, Johannesburg
c/o
McIntyre van der Post, Bloemfontein
For
the Defendants:

Adv. R.K. Ramdass
Instructed
by:                                   The

State Attorneys, Bloemfontein
[1]
Act 40 of 2002
[2]
Act 68 of 1969
[3]
2016 (4) SA 414 (CC)
[4]
[2006] ZASCA 16
;
2006 (4) SA 168
at par. 16
[5]
Par 19 in the Truter case
[6]
2007 (1) SA 111
(SCA) par 18
[7]
Par 45 of the Judgement
[8]
Par 46 of the Judgement
[9]
Par 47 of the Judgement
[10]
2018 (3) SA 335 (CC)
[11]
Par 34 of the Judgement
[12]
Par 32 of the Judgement
[13]
Par 42 in Links
[14]
Par 23 in Loni