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[2022] ZAECBHC 11
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Diko v MEC for Health (583/2018) [2022] ZAECBHC 11 (22 March 2022)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
No. 583/2018
In
the matter between:
PERM
BANGILIZWE DIKO
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN CAPE PROVINCE
Defendant
JUDGMENT
HARTLE J
[1]
In an action against
the defendant for damages arising from the claimed medical negligence
of the staff at the Bedford Orthopedic
Hospital, Mthatha, in treating
the plaintiff by stabilizing a femoral fracture with a Küntscher
nail, the defendant raised
special pleas of prescription and
non-compliance with the provisions of section 3(2) of the Institution
of Legal Proceedings Against
Certain Organs of State Act, No. 40 of
2002 (“ILPACOSA”) respectively.
[2]
The special pleas
came before me on trial.
[3]
The plaintiff was
injured in a motor vehicle accident on 9 December 2009 and was
thereafter taken to the St. Patrick's Hospital
in Bizana where it was
established that he had sustained a right sided femoral fracture.
[4]
Two days after he was
transferred to the Bedford Orthopedic Hospital in Mthatha where he
later, on 18 December 2009, underwent an
operation to stabilize the
fracture by the insertion of a Küntscher nail intramedullary
into the affected femur (“the
procedure”). He was
discharged on 21 December 2009.
[5]
It is not in
contention (as between the expert witnesses) that after the procedure
he presented with certain complications entailing
a leg length
discrepancy, a bowing of his femur, varus deformity, and (possibly)
an external rotational deformity of the affected
limb.
[6]
Although
not admitted in her plea, Mr. Du Toit who appeared for the defendant
noted further in heads of argument filed on her behalf
during
argument that the experts “are now in agreement” that
these problems experienced by the plaintiff are due to
the wrong
intramedullary nail having been inserted at the Bedford Hospital on
18 December 2009 when the procedure was performed.
[1]
[7]
This
fact,
viz
that
a wrong nail had been inserted, is among the alleged factual causes
of the complications suffered by the plaintiff referred
to in his
particulars of claim and it is his actual knowledge of this
significant fact
inter
alia
,
or whether he had constructive knowledge thereof, that is central to
a determination of the special pleas.
[2]
[8]
Seeking to hold the
defendant accountable for the damages suffered by him due to the
claimed incorrect procedure having been followed
and the
sequelae
thereof, the
plaintiff issued out the present action, but only on 11 July 2018.
Service of the summons was effected on the state
attorney on 19 July
2018, and on the defendant on 23 July 2018, ostensibly more than
eight years after the procedure was performed.
[9]
The premise for the
defendant’s first special plea is that the plaintiff’s
debt arose, in accordance with her pleaded
case, “by no later
than 18 December 2009” (this being the date on which the
procedure was performed) and had prescribed
three years along from
that date by virtue of the provisions of section 12 (1) read with
section 11 (d) of the Prescription Act,
No. 68 of 1969 (“the
Prescription Act&rdquo
;).
[10]
As a precursor to the
action, the plaintiff served a demand in terms of the provisions of
section 3
(2) (a) of the ILPACOSA, but only on 12 June 2018, leading
the defendant to also raise her second special plea that the required
statutory notice was not served timeously in compliance with the
relevant provisions of the act within six months from the date
on
which the “debt became due,” her case for the purposes of
this special plea also premised on the basis that the
plaintiff’s
debt became due, and his completed cause of action arose, on 18
December 2009 when the damage causing procedure
was performed.
[11]
The
plaintiff did not bring an application to condone his alleged failure
to have served the notice timeously (it certainly was
served out of
time in relation to the date on which the procedure was performed)
but chose instead to file a replication.
[3]
To both special pleas he replied that he only became aware on 12 June
2018 of
the
facts giving rise to the debt
[4]
after consulting with his attorneys of record following receipt of
the medical report by Dr. Olivier.
[5]
[12]
Although the
plaintiff’s complications ostensibly arose from the procedure
performed on a date that preceded the service of
the summons by a
period of more than eight years, this date relied upon by the
defendant is not necessarily determinant of when
prescription began
to run in the unique circumstances of the matter.
[13]
As a starting point,
section 12
of the
Prescription Act, No. 69 of 1969
, provides as
follows concerning
when
prescription begins
to run:
“
(1)
Subject to the provisions of subsections ,2,3, and (4),
[6]
prescription shall commence to run
as
soon as the debt is due
.
(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.”
(Emphasis
added.)
[14]
The
ordinary period for the prescription of a debt such as the
plaintiff’s is three years
from
the date on which the debt became due
.
[7]
[15]
The provisions of
section 3
of the ILPACOSA pertaining to the defendant’s second
special plea are also relevant for present purposes. Subsection (3)
(a) mirrors those of the
Prescription Act regarding
the circumstances
under which a debt is regarded as being due and when the clock starts
running for purposes of giving the requisite
notice. The relevant
provisions read as follows:
“
3.
Notice of intended legal proceedings to be given to organ of state.
—
(1)
No legal proceedings for the recovery of a debt may be instituted
against an organ of state unless—
(
a
)
the creditor has given the organ of state in question notice in
writing of his or her or its
intention to institute the legal
proceedings in question; or
(
b
)
….
(2) A notice must—
(
a
)
within six months from the date on which the debt became due, be
served on the organ of state
in accordance with
section 4
(1);
and
(
b
)
briefly set out—
(i)
the facts giving rise to the debt; and
(ii)
such particulars of such debt as are within the knowledge of the
creditor.
(3)
For purposes of
subsection
(2) (
a
)
—
(
a
)
a debt may not be regarded as being due until the creditor has
knowledge of the identity of the organ of state and of the facts
giving rise to the debt, but a creditor must be regarded as having
acquired such knowledge as soon as he or she or it could have
acquired it by exercising reasonable care, unless the organ of state
wilfully prevented him or her or it from acquiring such knowledge;
and
(
b
)
a debt referred to in
section 2
(2) (
a
),
must be regarded as having become due on the fixed date.
[8]
[16]
Before
it can be determined when a debt has accrued for purposes of
prescription running (in respect of either special plea), it
is
necessary to determine
what
the facts are
that
a plaintiff is supposed to have knowledge of in order to trigger the
running of prescription, this apart from knowing the identity
of the
debtor.
[9]
These facts are the
facts that are
material
to the
debt.
[10]
[17]
A
debt is due when a 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.
[11]
[18]
In
Minister of Finance and Others v Gore
[12]
the
Supreme
Court of Appeal emphasized that the prescriptive time begins to run
against the creditor when she/he/it “has the minimum
facts
(within its knowledge) that are necessary to institute the
action.”
[13]
[19]
In the context of a
medical negligence claim, the meaning of the phrase “knowledge
of the facts from which the debt arises”
includes knowledge of
facts showing that the defendant, in treating the plaintiff, failed
to adhere to the standards of skill and
diligence expected of the
practitioner in the former’s position.
[20]
In
Links
[14]
the Constitutional
Court emphasized what form the full-fact knowledge should take in a
claim such as the plaintiff’s for
professional negligence:
“
[42]
“…(I)n cases of this type, involving professional
negligence, the party relying on prescription must at least
show that
the plaintiff was in possession of sufficient facts to cause them on
reasonable grounds to think that the injuries were
due to the fault
of the medical staff. 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.
[45]
In a claim for delictual liability based on the Aquilian action,
negligence and causation are essential elements of the cause
of
action. Negligence and, as this Court has held, causation have both
factual and legal elements. 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).
”
[21]
In
this respect the Constitutional Court remarked upon the improbability
that a lay person would without a professional medical
opinion know
what caused the adverse outcome even if the outward manifestation
thereof might be somewhat obvious to him:
[15]
“
[47]
…..
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.
[16]
(
Emphasis
added)
[22]
In order to glean
what the alleged wrong, resultant injury and damage it is that the
plaintiff seeks to requite by the present claim
it is necessary to
refer, firstly, to the grounds of negligence relied upon by him in
his particulars of claim.
[23]
In this respect he
pleaded that:
“
13.2
The defendant rendered the treatment and/or performed the surgery
incorrectly as a wrong intramedullary device
was utilized;
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 mimimize
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.”
[24]
As an aside, it is
apparent from the plaintiff’s notice in terms of
rule 36
(9)(a)
and (b) filed in respect of Dr. Olivier, specialist orthopedic
surgeon, that he assessed the plaintiff on 29 January 2018
(which
date coincides with date of the
report
itself) and provided a comprehensive opinion which, from its context,
formed the premise for the essential allegations in
the particulars
of claim underpinning the plaintiff’s claim.
[17]
[25]
The complications
which the plaintiff pleads in his particulars of claim ensued after
the claimed unsuccessful procedure on the
implicated date are the
following:
“
12.1
Significant degree of length discrepancy as the plaintiff’s
right leg is now short by 6cm;
12.2
Severe mal-union which measure 23 degrees;
12.3
External rotational deformity measuring approximately 30 degrees;
12.4
The Kuntscher nail bent;
12.5
Significant degree of mature bone formation surrounding proximal
aspect of the Kuntscher nail.”
[26]
The plaintiff pleads
(also ostensibly on the basis of Dr. Olivier’s report) that the
procedure was “completely inadequate”
and relies on the
following shortcomings in the putative stabilization of the fracture
for such premise:
“
13.1.1
The nail was too thin;
13.1.2
The nail was too short;
13.1.3
The nail was not inserted deep enough; and
13.1.4
Image intensification was not utilized when the nail was inserted.”
[27]
He further relies on
the following complaints and
sequelae
to justify his claim
for damages, some obvious to the eye, others ostensibly based again
on the expert report:
“
14.1
Plaintiff is symptomatic with regards to shortening of the right,
which is 6cm shorter than the left leg;
14.2
Requires crutches to ambulate and cannot walk or stand for
prolonged
periods of time;
14.3
Finds it difficult to climb a flight of stairs and perform
the
activities related to his previous employment;
14.4
Walks with a visible limp and uses crutches to assist when
ambulating;
14.5
Presents with severe signs of completely unacceptable mal-union;
14.6
Scars on the mid lateral aspect of the right thigh which measures
16cm in length;
14.7
Has significant varus deformity of the right thigh;
14.8
Has external rotational deformity which measures approximately
30
degrees;
14.9
Circumference of the right thigh measures approximately 3cm
less as
compared with normal opposite side;
14.10
Significant degree of mature bone formation surrounding proximal
aspect
of the Kuntscher nail.”
[28]
For the rest he
pleads the necessity for complicated and complex future treatment and
surgical procedures (again ostensibly based
on medical opinion and
particularized in minute detail) and costs the anticipated expenses
to remediate his situation, which head
of damages he claims together
with general damages and past and future loss of income.
[29]
The
defendant in his plea-over denied that the plaintiff was not provided
with appropriate medical treatment and care. In respect
of the
procedure undergone by him, she pleaded that this “achieved a
satisfactory reduction of the fracture” and constituted
medical
treatment and care as was required. She also asserted that the
plaintiff was provided with appropriate post-op and outpatient
treatment care following the procedure. She further denied that the
surgical procedure led to any complications or that these arose
as a
result of any commission or omission on the part of the hospital
staff that renders her liable in law to pay damages to him.
[18]
[30]
I have already
alluded above to what the plaintiff said in his replication arising
from the allegation that the debt purportedly
accrued on 18 December
2009. He claims that prescription only commenced running on 12 June
2018 which is the date upon which he
became aware of the identity of
the debtor and the facts giving rise to the debt “after
consulting with his attorneys of
record, following receipt of Dr
Olivier’s report.”
[31]
The defendant filed
no rejoinder to the plaintiff’s replication.
[32]
When the trial
commenced on 17 November 2021 the parties had agreed to separate the
issues arising from the special pleas from the
issues of liability
and quantum and, pursuant to the provisions of
rule 33
(4), I granted
such an order. The agreement that they had reached in the case
management processes concerning what issues I was
required to
determine - recorded in the trial and roll call preparation
checklists respectively, as well as in their joint practice
note,
were stated to be the following:
“
2.1
Whether the plaintiff’s claim against the defendant has
prescribed by virtue
of
section 12(1)
read with
section 11(d)
of the
Prescription Act 68 of 1969
; and
2.2
Whether or not the plaintiff has complied with
section 3(2)
of the
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002
.”
[19]
[33]
The
defendant correctly accepted that she bore the duty to begin and the
onus to prove her special pleas.
[20]
Having agreed that the determination of the relevant issues would
require oral evidence to be led, she adduced the testimony of
Dr.
Osman, a specialist orthopedic surgeon, and thereafter closed her
case. The plaintiff led no evidence.
[34]
I should point out
that there were no agreed facts placed before the court. The
documentation placed before me compromising of the
medical records up
to the date of the plaintiff’s discharge from the Bedford
Hospital after the procedure went in on the
customary basis that they
are what they purport to be. Dr. Olivier’s report was not
officially admitted into the record as
evidence although I was
presented with a bundle of expert reports (comprising of those of the
two specialist orthopedic surgeons)
and informed from the bar that
the parties are
ad
idem
regarding
what caused the plaintiff’s complications referred to therein.
[35]
The absence of
evidence in support of the facts relied upon by the plaintiff in his
replication (in relation to when and how he
says he first learned of
the facts giving rise to the existence of his claim) or any rebuttal
of Dr. Osman’s testimony suggesting
his having obtained
knowledge of the necessary facts earlier than when he claims to have
come to learn of them after consulting
his attorney on 12 June 2018,
made it difficult for me to contend with. Added to this, the somewhat
bold approach adopted by Mr.
Malunga (who appeared on his behalf
together with Mr. Mphalwa) not to have pertinently challenged key
aspects of Dr. Osman’s
testimony under cross examination to the
effect that the plaintiff had actual knowledge of the primary facts
or, alternatively
must be deemed to have known three years before
summons was served of the fact that there was, to use his words, a
“problem”
with the fixation which should have prompted
him in a certain direction, posed a certain conundrum for me.
[36]
In
this respect Mr. Malunga, after closing the plaintiff’s case
without calling him, submitted that it had been unnecessary
to adduce
his testimony by reason of the fact that an important admission had
been elicited from Dr. Osman during cross examination
that
effectively negated the defendant’s
pleaded
case
of prescription. That case, which the plaintiff had been called upon
to meet, so he submitted, was that the debt arose, and
prescription
commenced to run, on the same date of the surgical procedure.
[21]
[37]
It is apparent that
Dr. Osman became involved in the matter shortly before the trial. He
examined the plaintiff on 7 October 2021
at the request of the
defendant and produced a report dated 11 October 2021. The
defendant’s notice in terms of
rule 36
(9)(a) and (b) giving
cover to the report that was held up at the trial as constituting his
opinion was served on the plaintiff’s
attorneys only on 28
October 2021 and filed with the registrar days before the trial was
due to commence, on 2 November 2021.
[38]
When he testified,
the focus of his evidence was on what the plaintiff had communicated
to him when he examined him
on
7 October 2021
,
which evidently purported to establish the premise for the
defendant’s case (unheralded in the view of plaintiff’s
counsel due to the absence of any rejoinder filed) that the plaintiff
either knew or must have known sooner than receiving Dr.
Olivier’s
report, that the complications suffered by him pursuant to the
fixation procedure were due to the fault of the
medical staff at the
Bedford Hospital in inserting the wrong nail.
[39]
According
to Dr. Osman’s testimony the history given to him by the
plaintiff was to the effect that after the procedure and
whilst he
was mobilizing at home with a pair of crutches approximately two
weeks in after the fixation, he noticed a shortening
of his affected
leg. He emphasize the fact that the plaintiff was “clearly”
aware that something was “not right”.
[22]
[40]
The plaintiff acted
on this by reporting the leg discrepancy at St. Patrick’s,
whereupon he was referred back to the Bedford
Hospital where the
procedure had initially been performed. At the latter hospital he was
assessed and given pain medication. It
was “confirmed” to
him, so Dr. Osman related, (although he did not elaborate by whom, or
when, or under what circumstances)
that there was a “problem”
with the fixation and an appointment date was given to him for
further treatment. (What
such treatment entailed in the knowledge of
the plaintiff was also not expounded upon.)
[41]
Prior to this date,
the plaintiff went back to St. Patrick’s because he was in
pain. Dr. Osman attributed the pain to the
fact that his lower limb
was starting to bend, which physical manifestation the plaintiff was
also plainly aware of as was stated
to have been confided in him by
the plaintiff at the time of the medical examination.
[42]
He was assessed at
St. Patrick’s and requested to attend at the Bedford Hospital
for further management, but unfortunately
due to financial
constraints, could not make it there.
[43]
Dr. Osman claims that
the information listed under the “summary” in his report
was also obtained from the plaintiff
himself. This reasserts that he
was aware two weeks after the surgery of the obvious shortening of
his leg, and within one month
after the procedure, that it had
started to bend.
[44]
He
further expressed the opinion, based on the plaintiff’s
reporting to him that the progression of the bending had ceased
approximately a year after the surgery, that this is probably when
the fracture must have healed. He explained in this regard that
once
a fracture has united, the shortening stops its progression. Based on
this norm he proposed that worst case scenario the plaintiff
would
have been aware at this outer limit (a year after the procedure),
that the fixation was substandard.
[23]
[45]
Despite the
defendant’s special plea of prescription asserting that the
extinctive prescription began to run on the same day
of the
procedure, Dr. Osman readily conceded under cross examination that
the plaintiff would not have had knowledge on that date
that the
treatment rendered to him by the fixation was substandard in any way.
[46]
Dr. Osman’s
report was tendered into evidence. His opinion, which he confirmed
under oath reads, in respect of the salient
features of this matter,
as follows:
“
Due
to the delayed union the nail started bending which has resulted in
the varus deformity and a 3cm shortening of the right lower
limb.
Bedford
Hospital recognized 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 however due to financial constraints he did not
return to Bedford Hospital.
Between
2010 and 2021 he did not undergo any further follow up treatment or
physiotherapy. He now presents with a short limp gait
and an obvious
varus deformity of the right femur. He is dependent on a crutch to
mobilize outside. The varus deformity may contribute
to
osteoarthritic changes in the knee.”
[47]
Under the caption
“Loss of Amenities of Life” he acknowledges a significant
loss but qualifies this with the remark
that this “could have
been rectified had (the plaintiff) returned to Bedford hospital for
follow up treatment.”
[48]
It is relevant to
mention incidentally that Dr. Osman confirmed that he had relied
during his consultation with the plaintiff on
the services of his
secretary to translate for him from isiXhosa to English and
vice
versa
. He
acknowledged that his assistant’s primary language was isiZulu
and the plaintiff’s isiXhosa but was not of the
impression that
this had led to any misunderstanding between himself and the latter
as to the salient matters under discussion
between them. The
plaintiff is further hard of hearing and lip-read what Dr. Osman’s
assistant communicated to him.
[49]
In
placing emphasis on what the plaintiff categorically knew about the
complications, manifestly evident in the shortening of his
leg, the
bowing of his femur and the pain suffered by him
inter
alia
(this
apart from the actual knowledge at his disposal which Dr. Osman
suggests was conveyed to him about “a problem with the
fracture
fixation”), the implication laid bare is that the plaintiff
ought reasonably to have known that there was a problem
with the
fixation that should have led to him having done something about it,
but that something appears to have been the expected
pursuit (in Dr.
Osman’s opinion) of follow up treatment which the plaintiff
consciously chose to forsake for financial reasons.
[24]
[50]
It is immediately
evident that Dr. Osman’s allusion to the hospital staff’s
“recognition” that a wrong nail
was inserted or that
there was a problem post fixation, was not attributed to the opinion
or say so of any staff member at the
hospital. Indeed, he concluded
in his opinion rather vaguely that “(i)t was noted that the
wrong nail had been inserted”
without clarifying what was
noted, who noted it and whether the plaintiff had been told in so
many words (and by whom at the hospital
and when) that this mistake
had factually caused his complications or was attributable thereto.
Neither were any records of the
hospital referred to by the defendant
in substantiation of the suggestion that the plaintiff acquired
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, not to have sought further
treatment, but rather advice regarding the possibility of a damages
claim
against the defendant arising from that disclosure.
[51]
It
seems to me that even if the plaintiff had been told that there was
“a problem with the fracture fixation” (this
is what Dr.
Osman recorded under “History”) 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.”
[25]
As was found in Links,
[26]
whilst he might have been expected to know that something was amiss,
or that the procedure had not being effective in fixing the
fracture
and that he developed deformities and disabilities in a short space
thereafter (because these features would have been
readily apparent
to him), how was he supposed to know that a wrong nail had been
inserted or that it is contraindicated in orthopedic
practice. Dr.
Olivier when he consulted with the plaintiff ostensibly did not
discern what he reported – which findings correlate
to the
essential facts underpinning the plaintiff’s claim, only from a
history taken from the plaintiff, neither from his
physical
examination of him. The hospital records were sparse and unhelpful, a
concern shared by Dr. Osman. He may or may not have
known from the
hospital records what pin was inserted (it was certainly not
suggested that the plaintiff personally knew what kind
of pin was
used or the implications of its use over other more effective
devices), but most of Dr. Olivier’s observations
(that answer
the question
why
the
plaintiff is suffering from the complications which he does) were
evidently informed by the radiographs, which he ironically
suggests
in his report are essential after a fixation (but were notably and
negligently absent in the case of the plaintiff’s
post-operative management) to confirm the procedure’s
effectiveness, to monitor fracture union and to ensure that the
internal
fixation has not migrated.
[52]
Mr.
Malunga did not challenge or interrogate Dr. Osman’s evidence
to the effect that the plaintiff had been informed (or reportedly
knew) before the first re-referral to the Bedford Hospital that there
had been a “problem” with the fixation (or to
find out
what that problem was in his client’s understanding) or that
the reason for such referral had been to ameliorate
that
situation.
[27]
Neither was there any objection to Dr. Osman’s evidence when he
brought forth the narrative of the plaintiff in this respect.
[53]
In his closing
submissions Mr. Malunga submitted that the plaintiff had only to meet
the case on the pleadings and criticized the
defendant for straying
beyond the ambit of how she had pleaded. He submitted that, since the
evidence that the defendant had placed
before the court did not
support
that
case
, the
issue of whether the claim had prescribed or not on the “given
date” (18 December 2009) fell to be decided in
his client’s
favour without further ado.
[54]
Mr. Du Toit on the
other hand criticized the plaintiff for not adducing any evidence and
urged upon me to draw a negative inference
against him in this
respect. He submitted that Dr. Osman’s uncontested evidence
made short shift of the plaintiff’s
case raised in his
replication that he only became aware of the minimum facts giving
rise to the debt (that is that the defendant
had rendered incorrect
and inadequate treatment for the fracture) after having been advised
by his attorney on 12 June 2018 of
the import of Dr. Olivier’s
report.
[55]
Based
on Dr. Osman’s uncontroverted evidence, he contended that the
objective facts from which the debt arose (excluding considerations
of whether the impugned conduct was wrongful and actionable as this
does not constitute a fact, but rather a conclusion of law
falling
outside the ambit of
section 12
(3) of the
Prescription Act)
[28
]
were well known to the plaintiff as appeared from his client’s
unchallenged account at the latest within a year of the procedure,
from which point prescription (at the very latest according to his
submission) would have begun to run and which would entail therefore
that the plaintiff’s claim had prescribed long before summons
was served.
[56]
Mr.
Malunga argued conversely that I should find that the plaintiff could
only have become aware of the minimum facts giving rise
to the debt
after having been apprised by his attorney of the import of Dr.
Olivier’s opinion, although the plaintiff was
not called to
confirm as much,
n
either
was Dr. Osman’s report handed in as evidence.
[29]
[57]
Before
I examine what the evidence shows or doesn’t show, it is
necessary to especially examine the supposition put forward
by Mr.
Malunga that the plaintiff was entitled to ignore the evidence by Dr.
Osman as to the plaintiff’s purported knowledge
of the
existence of the facts giving rise to the debt beyond the pleaded
inception date of prescription (“the given date”)
in the
absence of the defendant having filed a rejoinder to the plaintiff’s
replication to suggest that she intended to rely
on the proviso to
section 12
(3) of the
Prescription Act.
[30
]
[58]
The
selfsame argument was raised in both Loni v Member of the Executive
Council of the Department of Health of the Eastern Cape
Government
(“the full court matter”)
[31]
and in Kriel v Meyer & Others,
[32]
with both courts alluding to the form of the pleadings as well as the
incidence of the onus pertaining to a special plea of prescription.
[59]
In
Kriel v Meyer the court, adverting to the approach adopted by the
then Appellate Division in Gericke v Sacks,
[33]
found there to be no substance in counsel’s submission (on
behalf of the plaintiff in that matter) that there should if the
debtor wished to rely upon the proviso in
section 12
(3) have been a
rejoinder filed alleging the circumstances under which the plaintiff
had failed to exercise the requisite care.
[34]
To the contrary the court held that:
“
In
my view, there is no substance to this submission. The form the
pleadings in the present matter took is “to all intents
and
purposes identical to that of the plea and replication in the matter
of
Gericke
v Sack
1978
(1) SA 821
(AD) where in reply to a special plea of prescription
filed by defendant plaintiffs filed a replication denying that the
debt had
prescribed and alleging that they had only become aware of
the identity of the defendant at a later date, with the consequence
that the debt was not rendered unenforceable by lapse of time. No
rejoinder was filed by defendant. At 828A–C Diemont JA stated
as follows:
"[T]he
Act specifically provides that prescription begins to run only when
the debt becomes due and that it is not deemed to
become due until
the creditor has knowledge both of the identity of the debtor and of
the facts from which the debt arises. 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 in
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.
The
criticism advanced in argument of the trial Judge's ruling on the
question of onus therefore fails and
the
respondent must show on the evidence when Mrs Gericke learned or was
deemed to have learned the respondent's identity
."
[35]
(Emphasis
added)
[60]
The court thereupon
proceeded to the objective enquiry postulated by the proviso having
regard to all the surrounding circumstances
as to whether the
plaintiff in that matter should have been held to have had knowledge,
in that case of the identity of the debtor,
and concluded on the
evidence that he should not have been deemed to have acquired the
knowledge necessary for the debt to become
due and for prescription
to begin to run as had been found in Gericke v Sack, the facts of the
matter before it differing markedly
from those before the appellate
court. The court ostensibly came to this conclusion simply on the
basis of what
section 12
(3) of the
Prescription Act prescribes
, and
with reference to the accepted test in this respect:
“
The
question to be decided therefore is whether plaintiff must be held to
have had knowledge of third respondent's identity
by
virtue of the operation of the deeming provision in
section 12(3)
of
the
Prescription Act
(see
Gericke
v Sacks
,
supra
,
at 830C; see too
Brand
v Williams
1988
(3) SA 908
(C) at 910A–B;
De
Klerk &
'
n
ander v Groter Kroonstad Plaaslike Oorgangsraad
1999
(2) SA 870 (O)).”
[36]
(Emphasis
added)
[61]
In
Loni (the Full Court matter)
[37]
the same counsel who appeared on behalf of the plaintiff in Kriel v
Meyer raised the point again that the defendant in that
matter
was precluded from relying on the proviso at the end of
section 12
(3) where this had not been foreshadowed in her pleadings, this time
successfully. With reference to the then recent remark in
Links
[38]
that, absent a reliance on the proviso in the pleadings (in that
instance in an opposing affidavit in an application for condonation
in terms of the ILPACOSA) counsel in that matter had been out of line
in placing reliance on the proviso for the first time in
his written
submissions, the full court accepted that it was not open to the
respondent in that matter to invoke its provisions
and suggested that
“a pleader faced with a denial of knowledge of the identity of
the debtor and of the facts from which
the debt arises
would
be well advised in future to raise the proviso to
section 12
(3) in
his pleadings
.”
[39]
(Emphasis
added)
[62]
The
Full Court was however constrained to note that this stance adopted
by the Constitutional Court in Links (that absent a pleaded
basis no
reliance could be placed on the proviso) had been reached without
reference to Gericke v Sacks and that its dictum “is
“clearly
contrary” to the decision of the appellate court in this
respect.
[40]
[63]
Despite this
observation, the Full Court nonetheless took its cue from Links on
this point, holding that it was not open to the
debtor to rely on the
unpleaded proviso at the end of
section 12
(3), yet went on to
determine on the established facts that the appellant did have the
requisite knowledge for the purposes of
section 12
(3) by no later
than July 2001.
[64]
In this respect the
court proceeded from the following premise in getting to its
conclusion:
“
The
question for determination is whether the appellant’s claim had
become prescribed by 20 June 2012 when the summons was
served. In
order for the respondent to discharge the onus in respect of
prescription it must show that prescription began to run
against the
appellant’s claim by no later than 19 June 2009, being three
years prior to the service of summons. To do this
he would have to
show what the facts are which the appellant was required to know
before prescription could commence running and
that the appellant had
knowledge of those facts before 19 June 2009. (See
Links
supra
p.
423 para [24].)”
[41]
[65]
In dismissing an application
for leave to appeal against the finding of the Full Court in Loni,
the Constitutional Court, with reference
to Links, confirmed what is
required for a party to successfully rely on a prescription claim in
terms of
section 12
(3) of the
Prescription Act as
follows:
“
In
Links, this Court found that in order for a party to successfully
rely on a prescription claim in terms of
section 12(3)
of the
Prescription Act, he
or she must first prove “what the facts
are that the applicant is required to know before prescription could
commence running”
and secondly, that “the applicant had
knowledge of those facts”.
[66]
By
applying the objective assessment approach to the facts of the matter
before it, the Constitutional Court in Loni found that
the courts
below had correctly established that a reasonable person in the
position of the applicant would have realized that the
treatment and
care which he had received was sub-standard and not in accordance
with what he could have expected from medical practitioners
and staff
acting carefully, reasonably, and professionally.
[42]
[67]
The
court in MEC for Health, Western Cape v Coboza
[43]
dismissed an appeal against the court
a
quo’s
dismissal
of a special plea of prescription in a situation where the MEC in
that matter failed to plead with reference to the primary
facts upon
which the plaintiff’s claim was founded when he knew the
primary facts informing him of the existence of the debt
or should
reasonably have known them. The MEC in that matter failed to testify
and purported to make capital of the plaintiff’s
concession in
his testimony that he had been informed at a certain stage where the
supposed problem lay and what was needed to
remediate this. This
absence in the pleadings of the relevant primary facts upon which the
respondent’s claim was founded
caused the court to observe that
“prescription had been raised in the air” without
reference to such relevant primary
facts. The court held that
“(b)ecause these facts were not pleaded, it could obviously not
be determined when the respondent
knew the primary facts or should
reasonably have known them” and that the plea of prescription
was therefore “an exercise
in futility.”
[44]
It concluded that the court
a
quo
should
have dismissed the special plea on this ground alone.
[68]
Coboza
reminds us of the need to plead carefully, but special pleas of
prescription are rarely pleaded elegantly. A court cannot
of its own
motion take notice of prescription. A party wishing to rely on such a
defence must obviously do so in the pleadings
[45]
and, I would venture to suggest, raise it in accordance with the
rules of pleading. In Links the comment made about the absence
of the
any reliance by the MEC for Health upon the proviso at the end of
section 12
(3) was made in passing in assessing the evidence (which
had featured not in a trial but in an opposed application) and to
highlight
the fact that its utility had been raised, not on the
papers specific to the relied upon facts, but by counsel introducing
it for
the first time in written submissions, also “up in the
air” as it were.
[69]
That in my view is
quite a different thing from saying that as a general rule a party
cannot ask a court to apply the provisions
of
section 12
(3) in a
trial because there was no rejoinder filed in which the basis for its
applicability has been foreshadowed. Prescription
was properly raised
on the pleadings
in
casu
. The
plaintiff proposed facts that he would rely on to say that contrary
to the defendant’s expectation that the debt arose
on the same
day as the damage causing event (not an unreasonable premise to begin
with), he acquired actual knowledge of the identity
of the debtor and
the facts that he is required to know as to the existence of his debt
on a date much further along after the
procedure. The defendant did
not necessarily have to file a rejoinder since she had already
adopted a contrary stance (in her special
pleas) to the effect that
in her estimation prescription began to run much earlier. The stark
lines of their respective positions
were therefore fairly obvious
from the pleadings. I also do not agree with Mr. Malunga’s
submission that she is required
to plead an actual inception date
(that would bind her on her pleadings). Rather what she is required
to plead and prove is an
inception date within the meaning of
section
12
(1), in other words the most likely moment when the debt accrued
in law. The period of prescription for a delict is three years
so the
objective would be to show by when, in relation to when the debt
accrued, the plaintiff ought to have served his summons.
This is
because
section 12
(3) states clearly that prescription does not
begin to run
until
the debt is due.
[70]
It
is not unusual in matters such as these incidentally, where the
defence of prescription has been raised, for the debtor to plead
an
outer limit, and then for the evidence to reveal some sort of give or
take in this respect, much as happened
in
casu
in
respect of Dr. Osman’s concession that the plaintiff would
unlikely have known of the factual cause of his complications
on the
same day as he underwent the procedure to fix the fracture or that
the hospital staff were likely negligent. For the rest,
once the bare
fact basis has been pleaded, and the evidence is presented,
section
12
(3) by operation of law suggests the basis for the deeming
provision in the first part, and the proviso at the end, to be
applied
to the established facts. The subsection informs the
determination of when the plaintiff had actual knowledge of the
primary facts
or objectively should reasonably have had knowledge
thereof. In Coboza the court observed that there may be some
overlapping of
facts, but that it is important to bear in mind that
these are distinct enquiries.
[46]
The court’s approach in Gericke v Sacks also demonstrates this
important distinction quite clearly.
[71]
Since the defendant’s
case
in
casu
was
one predicated on the assertion that the inception date of the
running of the prescription coincided with the date of the impugned
procedure itself, with nothing further having been said in response
to the plaintiff’s replication or any reliance having
been
placed by her upon the proviso at the end of
section 12
(3) to
suggest when or under what circumstances the plaintiff ought
reasonably to have acquired knowledge of the primary facts,
Mr.
Malunga suggested that Dr. Osman’s concession that the
plaintiff could certainly not have acquired such knowledge on
the
date on which she asserted in her special pleas prescription began to
run, is decisive of the matter.
[72]
He
referred me to the matter of Ndaliso v Member of the Executive
Council of the Department of
Health
of
the Eastern Cape Government, Bhisho
[47]
which he contended was on “all fours” with the present
matter.
[48]
Ndaliso’s
action also involved a claim for damages arising from alleged medical
negligence where the defendant’s special
plea of prescription
was met by the plaintiff’s assertion that the injury suffered
by him - entailing the tip of the K-wire
removed from his knee being
lodged there when the procedure to remove the wire itself was
performed, was an ongoing one from the
moment of the initial open
reduction and fixation procedure until its removal seven years later
when the foreign body was discovered
and surgically removed and that,
prior to that moment, he did not have the necessary knowledge of the
identity of the debtor and
the facts from which the debt arose. In
the result, so he submitted, prescription only commenced to run at
the point of discovery
and surgical removal.
[73]
Under cross
examination it had been suggested to the plaintiff in Ndaliso that if
he had returned to the hospital within two weeks
as had been
prescribed (post-surgery) his knee would have been x-rayed and the
K-wire tip discovered and removed.
[74]
What
is significant in Ndaliso (and constituted Mr. Malunga’s bull
point in
casu
)
is that the court was critical of the fact that despite the onus
being on the MEC to plead and prove her special plea, she had
failed
to “call to aid the proviso in
section 12
(3).”
[49]
The court noted the obligation on the defendant to do so with
reference to the passage referred to above in Links (the Full Court
matter), cited with approval by the Constitutional Court in Loni.
[75]
Applying these
principles to the facts of the matter, the court concluded that the
factual allegation of the plaintiff that he did
not know that the
K-wire tip was in his knee until June 2011 (when he underwent the
procedure to remove it) “was also not
gain-said” and that
he was not shown to have had sufficient facts causing him, on
reasonable grounds, to think that the injury
that he continued to
experience was due to the fault of the Frere Hospital staff.
[76]
Cognizant of the fair
trial right of the plaintiff implicated the court in Ndaliso found
that:
“
[22]
… the special plea of prescription must fail. This is not the
case where the plaintiff's right of access to court entrenched
in
section 34 of the Constitution should give way to the limitation that
the defendant intends imposing on those rights. I am also
of the view
that a rigid application of
section 12(3)
of the
Prescription Act in
the circumstances of this case would result in an injustice.”
[77]
It is evident even
from the conclusion above, that had the court not found that the
defendant had failed on the first deeming provision
in
section 12
(3)
that it may well have been inclined to have regard to the proviso as
well in determining the possibility that the plaintiff
could have
been regarded as having had constructive knowledge of the essential
facts. It was however self-evidently unnecessary
to go that route.
[78]
A careful study
of the judgment in Gericke v Sack and those endorsing the appellate
division’s approach in this respect demonstrate
quite
unequivocally to my mind that a court is expected by virtue of the
deeming provision and the proviso respectively in
section 12
(3) of
the
Prescription Act to
apply its provisions to the facts found
proven in any given scenario in order to reach a conclusion (informed
by such enquiries)
as to when the debt in each case fell due which
would clarify when in fact prescription would have begun to run.
[79]
That
brings me to my next point which is that the plaintiff cannot dictate
that any admissible evidence adduced towards such objective
can
simply be ignored by the court. The plaintiff’s attorney could
have sought particularity regarding the peculiar circumstances
under
which the defendant would influence the determination and if she
intended to rely on either exception referred to in
section 12
(3)
[50]
or why, despite the
plaintiff’s replication, she still intended to persist with her
special pleas of prescription. The plaintiff
could also have objected
when the evidence came in, but in my view, he would ignore the
evidence actually adduced against him in
this respect at his own
peril especially if that evidence reveals a
prima
facie
case
that he had actual or constructive knowledge of the identity of the
debtor and the facts giving rise to his claim. It would
also be risky
in my view for a plaintiff not to seek to persuade a court (by
evidence) that any inaction on his part was innocent
and not
negligent inaction. Whilst he bears no onus to prove that his claim
has not prescribed, the reality is that an objective
assessment of
his conduct applies. He would therefore do well to place sufficient
facts before the court to avoid the conclusion
being drawn that he
did not in all the circumstances exercise reasonable care in
acquiring knowledge of either or both the identity
of the debtor and
the facts giving rise to his claim.
[80]
I
am constrained to remind the parties of the necessity in determining
special pleas based on prescription for evidence or agreed
facts to
be placed before the court.
[51]
The determination cannot be made in a vacuum and certainly not on the
basis of a one-sided trial such as happened here because
the
plaintiff’s counsel was of the view that the proviso to
section
12
(3) could not be invoked. In MEC for Health: Eastern Cape v
Mbodla,
[52]
the Supreme Court
of Appeal the court found that it was not conducive for the issue of
prescription to be resolved as a question
of law alone. In Kriel v
Meyer the court noted the importance of surrounding circumstances
relevant to the creditor’s conduct
to be considered in the
enquiry concerning whether there he failed to exercise reasonable
care within the meaning of the proviso.
[53]
In Mtokonya it seems that the parties may also have floundered by
articulating their stated case in such a way that the desired
objective of determining whether the claim had prescribed or not
eluded them in the end.
[81]
That leads me to the
question whether the defendant has shown (by the uncontroverted
evidence of Dr. Osman which I am inclined to
accept) and the common
cause facts that the plaintiff acquired actual or constructive
knowledge of the identity of the defendant
and the facts giving rise
to the debt under the circumstances and at the relevant times
adverted to by him in his testimony.
[82]
I have already dealt
above with the concerns that I have in paragraphs [50] – [51].
Firstly, regarding the suggestion that
I should find that the
plaintiff had actual knowledge of the identity of the defendant and
the facts giving rise to the debt, whatever
the plaintiff may have
relayed to Dr. Osman was within his knowledge, the evidence in this
respect is not clear neither can it
safely be relied upon in my view.
What is not clear is what the plaintiff was told by the hospital
staff regarding the procedure.
It would have been no mean feat for
the defendant to have called the treating or consulting doctor and to
have pointed in the medical
records to a note substantiating what
exactly he had been told or why he was asked to return to the
hospital for further treatment.
And what further treatment? This may
have informed what exactly he knew at that point regarding his
condition, but it is most implausible
in my view that the hospital
staff told him then that the treatment rendered was substandard in
any way. The medical records on
their own are scant and do not
support the defendant’s case that the plaintiff had actual
knowledge of the fact that a wrong
pin had been inserted and
inadequately at that.
[83]
Ultimately the
defendant relied on a history furnished to a specialist by a
layperson in a language that is certainly not his first
language,
given in a medical context. The timing of the knowledge attributed to
the plaintiff is also questionable. A court would
be more interested
in knowing what he knew at the relevant time, not now, many years
after the fact when his own knowledge could
quite conceivably have
been infused by what his attorney or Dr. Olivier informed him
regarding the minutia of his case and trial
that was imminent at the
time of his medical examination.
[84]
But 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 orthopedic
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.
The same applies to the other
indications that all was not well with his leg. He could not
reasonably have gleaned on his own that
a wrong pin had been inserted
and inadequately at that, neither would these manifestation on their
own have caused him to make
enquiries along the line whether the
staff might possibly have been negligent in carrying out the
procedure.
[85]
In the result the
defendant has not succeeded in showing on the evidence that the
plaintiff had either actual or constructive knowledge
of the identity
of the debtor or of the facts giving rise to the debt, and the
special pleas of prescription must accordingly fail.
[86]
In the result I issue the
following order:
1.
The special pleas
raised by the defendant are dismissed, with costs, such costs to
include the costs of two counsel.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
17
November 2021
DATE
OF JUDGMENT:
22
March 2022
*Judgment
delivered electronically at 09h30 on this date by email to the
parties.
APPEARANCES
:
For the plaintiff: Mr.
Y Malunga together with Mr. T Mpahlwa instructed by Cinga Nohaji,
East London (ref. Mr Nohaji)
For
the defendant: Mr. P Du Toit instructed Norton Rose Fullbright South
Africa Inc., c/o Smith Tabata, East London (ref. Ms. M
Demmer)
[1]
This
submission appears to be premised on a plain reading of the experts’
reports concerning what in their respective opinions
caused the
plaintiff’s complications. There are however no joint
minutes. I invited the parties before delivering
this judgment to
indicate if I might have missed any document in the trial bundle in
which such an agreement had been recorded,
but nothing was
supplemented.
[2]
The
premise of the plaintiff, that “as a result of receiving
incorrect and inadequate treatment for his right femoral fracture
at
the Hospital, he suffered damages” is cited by the defendant
in both special pleas as being central to her understanding
of what
the plaintiff’s debt is (“the alleged debt”), and
when it became due and/or when his cause of action
arose. I have
therefore proceeded on the assumption that the primary fact that a
wrong pin was inserted, and the other closely
related pleaded facts
bearing on the factual cause of the plaintiff’s complications,
taken together with the more obvious
pleaded facts that the
plaintiff would need to prove to establish the liability of the
defendant in a claim such as this one,
is where the determination
begins. It is these facts that the plaintiff was required to know
before prescription could commence
running and which the defendant
had to show he had actual or constructive knowledge of, on or before
18 July 2015 (3 years before
the summons was served). See
Links v Department of Health, Northern Province
2016 (4) SA 414
(CC)
at [24].
[3]
A
plaintiff faced with a special plea that the statutory notice was
served late has the election, pursuant to the provisions of
section
3
(4) of the ILPACOSA, to apply for condonation of such failure.
[4]
As
indicated in footnote 2 above, read in the context of the
defendant’s special plea, we are here concerned with knowledge
of the facts of the “alleged debt.”
[5]
The
report on the face of it elucidates the factual cause of all the
plaintiff’s problems post-surgery, more especially
the primary
fact that a wrong nail had been inserted.
[6]
Subsection (4) deals with debts based on the commission of an
alleged sexual offence. Subsection (2) is not of application
and does not concern us either as this deals with a situation where
a debtor wilfully prevents a creditor from coming to know
of the
existence of the debt. Subsection (3) is of relevance for
present purposes and prevents prescription from running
where a
creditor does not have knowledge of the identity of the debtor or of
the facts from which the debt arises
until
such time as he does
have knowledge of these two aspects. The debt is deemed to be
due for purposes of establishing when
prescription begins to run as
contemplated in
section 12
(1) in two scenarios: one where it
can be shown that he acquired actual knowledge of the identity and
of the facts from
which the debt arises (presumably on a given
date), and secondly, where constructive knowledge of the identity of
the debtor
and of the facts from which the debt arises ought
reasonably to be imputed to him supposedly on the date that it is
claimed he
could reasonably have acquired knowledge of the two
aspects, that is knowledge of the identity of the debtor and of the
facts
from which the debt arises. The proviso in the
subsection assists a debtor faced with a plea of lack of knowledge
aforesaid,
to have it imputed to the creditor in circumstances where
he/she could have acquired it by exercising reasonable care.
The distinction between the two scenarios is helpfully explained in
Mtokonya v Minister of Police
2017 (11) BCLR 1443
(CC) at [32] –
[34] as follows:
“
Section
12(1)
makes provision for the general rule. That is that
prescription commences to run as soon as the debt is due. However,
it
says that this is subject to three exceptions which are to be
found in subsections (2), (3) and (4). The first exception,
in subsection (2), is that prescription does not commence to
run against a creditor if the debtor wilfully prevents him
or her
“from coming to know of the existence of the debt” until
he ie the creditor “becomes aware of the existence
of the
debt”. So, under subsection (2) it is not every time
a creditor does not know of the existence of a debt
that
prescription does not commence to run. It is only in those cases
where the debtor is wilfully preventing or has wilfully
prevented
the creditor from “coming to know of the existence of the
debt”. One cannot therefore use the exception
in subsection
(2) to say that in all cases in which a creditor does not know
of the existence of a debt prescription
does not commence to run.
[33]
There is a reason why the exception in subsection (2) applies
only where the reason for the creditor’s lack
of knowledge of
the existence of the debt is a result of the fact that the debtor
has been wilfully preventing the creditor from
coming to know of the
existence of the debt. It is that, if the reason the creditor does
not know of the existence of the debt
is that the creditor has
failed to acquire that knowledge by exercising reasonable care when
he otherwise could have acquired
it by exercising reasonable care,
then the debt will have become due and prescription will have
commenced running.
[34]
The second exception, in subsection (3), is that a debt is “not
deemed to be due until the creditor has knowledge of”
two
things. The first is knowledge of the identity of the debtor. The
second is knowledge “of the facts from which the
debt arose”.
However, this exception is itself subject to another exception
provided by way of the proviso in subsection
(3). The exception
reads: “Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it
by exercising reasonable
care”. So, if a debtor delivers a special plea of prescription
and the creditor seeks to meet
it by saying prescription did not run
because, before a certain date, he did not have knowledge of the
identity of the debtor
or of the facts from which the debt arose,
the debtor can come back and say: but you could have acquired that
knowledge before
that date if you had exercised reasonable care but
you failed to exercise such care and, therefore, prescription did
commence
to run before that date.”
The
first deeming provision and the proviso in
section 12(3)
pose very
distinct enquiries although there may be an overlapping of facts.
(MEC for Health, Western Cape v Coboza
[2020] ZASCA 165
(10 Dec
2020) at [8]). See also Gericke v Sack 1978 (1) SA 821 (A).
[7]
See 10 (1), read with
section 11
(d) of the
Prescription Act.
[8
]
I include subsection (3) (b) because Mr. Malunga (who appeared for
the plaintiff) thought that the “fixed date” referred
to
therein related to the date that a debtor relies upon as
constituting the date of inception of the extinctive prescription
period. “Fixed date” is however defined in
section 1
as
meaning the commencement date of the ILPACOSA and is to be read
together with
section 2
, which deals with the transitional
arrangements of the act. Its provisions simply have no application
in the manner contended
for by him.
[9]
Links,
Supra
,
at par [24]. See also
Loni
v MEC, Department of Health, Eastern Cape Bhisho
2018 (3) SA 335
(CC) which summarises at para [23] what was found in Links regarding
the two requirements to be established.
[10]
Links,
Supra
,
at para [30] read together with the authorities relied upon and
cited in paras [30] – [35].
[11]
Truter and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) at para 16.
[12]
2007
(1) SA 111
(SCA) at para 17.
[13]
Gore,
Supra
,
at para 17.
[14]
Supra.
[15]
In
Links the applicant’s thumb had been amputated. That would
have been obvious to him but not the reason for the amputation
which
he could not reasonably have known without seeking a medical
opinion.
In
casu
certain
of the plaintiff’s injuries and complications would also have
been manifestly plain to him, such as the shortening
and bowing of
his leg. The fact that he was in pain would have been another red
flag that something might be seriously amiss.
His imperfect gait
might also have suggested that something was not right and that this
had a natural association with the procedure,
but it was only after
his attorneys sought medical advice, so he pleaded, that he acquired
actual knowledge of all the facts
giving rise to the debt (more
especially that the staff at the hospital were negligent and had
rendered incorrect and inadequate
treatment for the fracture).
[16]
This
aspect of the Links matter was reiterated by the Constitutional
Court in Loni at para [23]. In Links the court held that
the
applicant would have to had “knowledge of (the) facts (which)
would have led him to think that possibly there had been
negligence
and that this caused the disability” which he was unable to
acquire before seeking professional medical advice.
In Loni the
court reiterated its “main finding” in Links in its
dictum at par 42. “Earlier on I rejected
the applicant’s
version that, prior to his discharge from hospital, he had no
knowledge that his thumb had been amputated.
However, even if he had
known, as we find that he had known that he had lost his thumb, he
still didn’t know what had caused
the need for the
amputation.” In the present situation it is evident at least
from the plaintiff’s replication that
he had no knowledge what
caused his pain, or the shortening or bowing of his leg, much less
that it might have been due to the
negligence of the hospital staff.
[17]
Dr.
Olivier opined in his report as follows regarding why the procedure
amounted to “incorrect and inadequate treatment”
ostensibly after taking a history from the plaintiff, conducting an
examination himself and reviewing radiographs of his pelvis,
hip
joints, right femur, and knee:
“
2….
In
this particular case the claimant was treated by means of the
insertion of a Kuntscher intramedullary nail. This method of
stabilization is completely outdated.
The
orthopaedic surgeon who invented the Kuntscher nail inserted the
nail initially during November 1939. This procedure was abandoned
during the late 1970s, as new technology emerged which resulted in a
much better outcome. The stabilization method of choice
would be an
interlocking nail.
It
is my view that, had the client realized that the procedure is
completely outdated, he would not have opted to undergo this
operation.
3.
As indicated earlier, the wrong intramedullary device
was utilized.
The 0standard treatment for femoral fractures is to insert an
interlocking intramedullary nail.”
After
setting out the advantages of using an interlocking intramedullary
nail which a Küntscher nail does not offer, he observes
that
the former construct is regarded to be a longstanding and reliable
orthopaedic procedure, and that the insertion of such
a device is
performed daily and over the many hospitals in all the provinces. He
adds that it is “unusual” to encounter
a case such as
the plaintiff’s where a Küntscher nail was inserted. The
wrong internal fixation was however not his
only worry. As far as he
was concerned the procedure was also inadequately performed (see par
[25] above regarding the pleaded
aspects). In his view the
complications could have been prevented by inserting the nail
properly. He also observed that the post-operative
procedure was
inadequate and particularly laments the absence of radiographs that
would have confirmed whether the procedure
had been performed
adequately and or whether the treatment which he underwent was
effective. In this respect he points to the
value of requesting
regular x-rays during the post-operative period in order to verify
that fracture union has occurred and that
the internal fixation has
not migrated.
[18]
As indicated in paragraph [6] above, however, her denials (which I
have deliberately expressed in the past tense), have been
overtaken
by the parties’ experts finding common ground in the cause of
the plaintiff’s complications.
[19]
The
parties appeared to be on the same page that the fate of the second
special plea was dependent on what I found regarding the
first
special plea. I was not prevailed upon to make a declaration
concerning when the plaintiff’s claim became due, but
he
reserved his right in the replication to apply for condonation in
terms of
section 3
(4)(a) of the ILPACOSA should it be necessary to
do so ultimately and in due course.
[20]
See Gericke v Sacks,
Supra
,
in which it is stated that in respect of a plea of prescription the
onus is on the party raising prescription as a defence to
prove both
the date of inception of the prescriptive period (that is when
prescription begins to run
as
envisaged in
section 12
(1)
),
as well as the date of completion of the extinctive period.
[21]
The
defendant pleaded that “the plaintiff’s alleged claim is
a debt that became due
by
no later
than
18 December 2009”. I gather from the manner in which the
defendant’s case was conducted however that she probably
meant
to say that it was at the earliest with effect from 18 December 2009
that the debt accrued.
[22]
In his report he states that the plaintiff “
categorically
reported that he noticed
shortening of his leg two weeks post-surgery and bending one month
after”.
[23]
I
assume that he meant by this that the worst extent of the harm that
could come must have been realised by then.
[24]
This
may signal contributory negligence on the plaintiff’s part,
but the evidence ought to show in an enquiry like this
that what it
is suggested he should have known would have caused him “to
seek legal advice” as a step in the realisation
that there was
actionable fault leading him in the direction ultimately of taking
legal steps thereanent. Perhaps the testimony
meant to suggest that
if he had pursued follow up treatment the knowledge may have
suggested itself to him, or the suspected
wrong would have been
confirmed to the plaintiff somehow had he kept the appointment, but
this in my view is a different enquiry
to the one at hand.
[25]
Links,
Supra
,
at par [42].
[26]
Supra
,
at paras [46] – [50].
[27]
Despite
the submission in Mr Du Toit’s heads of argument to the effect
that the plaintiff was supposedly “informed
that the incorrect
pin was inserted intramedullary” and that he had been
“required to return to the hospital so that
a procedure could
be followed to replace the pin with the proper pin” the
pinnacle of Dr Osman’s evidence is that
the plaintiff told him
that he, the plaintiff, had been informed (and therefore knew) that
there was “a problem”
with the fixation that required
him to come back to the hospital for further treatment.
[28]
See
Mtokonya
v Minister of Police
Supra
at [36].
[29]
Elsewhere
I have adverted to the fact that the reports of the experts were
drawn into the enquiry by virtue of the common cause
findings of the
specialists and were also extensively referred to during the
hearing.
[30]
Mr.
Malunga did not suggest that the same constraints would have applied
in respect of the defendant’s reliance on the plaintiff’s
reported actual knowledge.
[31]
(CA 338/2015) [2016] ZAECGHC 101 (13 October 2016) at paras 28 - 34.
[32]
[2011]
JOL 28018
(E) at pages 23 – 29.
[33]
Supra
,
at 828A-C.
[34]
The court (at page 23 in the judgment) outlined the argument that it
was prevailed upon to decide as follows:
“
Much
argument was addressed to me concerning the form of the pleadings as
well as the incidence of the onus. Mr
Louw
submitted
that, inasmuch as plaintiff in his replication had raised the issue
of his lack of knowledge of the identity of the
owner of the dogs
and had averred that such knowledge had only been acquired by him on
1 June 2003, third defendant, if it wished
to rely upon the proviso
contained in
section 12(3)
should have filed a rejoinder alleging
that plaintiff had failed to exercise the requisite reasonable care.
In the absence of
such rejoinder, so Mr
Louw
submitted,
third defendant was precluded from relying upon any alleged failure
by plaintiff to exercise reasonable care in his
ascertainment of the
identity of the owner.”
[35]
At
page 24 of the judgment.
[36]
At
page 24 of the judgment. See also the court’s discussion of
the reasonable man test outlined at pages 25-6 of the judgment.
[37]
Loni
(Full Court),
Supra
,
at par [30].
[38]
Links
Supra
,
at par [44]. The dictum in question is expressed as follows:
“
In his opposing
affidavit in the High Court the respondent did not rely upon the
proviso at the end of
section 12(3).
Both Dr Koning and Mr Ndlovu
said nothing that would bring the respondent’s defence within
the proviso. Nor could they
have. Both lacked personal knowledge of
the applicant’s treatment. Therefore, to the extent that
counsel for the respondent
may have sought to rely upon that proviso
in his written submissions, the reliance was misplaced. This is so
because that was
not the case the respondent had advanced in the
affidavit. The respondent’s case as set out in those
affidavits was simply
that the applicant’s cause of action
arose on 26 June 2006 and the applicant had knowledge of all the
relevant facts on
that day. The question is, therefore, whether the
respondent discharged the onus to show that on 26 June 2006 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”
[39]
Loni
(Full Court),
Supra
,
at [34].
[40]
I
mention incidentally that the matter in Links had its origin in an
opposed application for condonation in terms of the provisions
of
the ILPACOSA, as opposed to the special plea having been determined
by way of a trial as in the present matter and Kriel v
Meyer. The
taboo in invoking the proviso may therefore have been expressed in
the context that the evidence before the court
below was obviously
required to be set out in the papers which constituted the evidence
before it but fell short in this respect.
[41]
Loni
(Full Court),
Supra
,
at [35].
[42]
Supra
,
at par [32]. It seems that the issue of whether the respondent was
precluded from invoking the proviso did not feature before
the
Constitutional Court yet it concluded what it did ultimately on the
basis of what the applicant should reasonably have known.
This
is quite different from a finding on the facts that the applicant
had actual knowledge of the primary facts.
[43]
Supra
,
at [13].
[44]
In
casu
the
primary facts were not identified either yet by the time of the
trial it appeared to be accepted that the fact especially
at the
forefront of the enquiry was that a wrong pin had been inserted and
that this was the reason for all the plaintiff’s
woes.
[45]
Section
17
of the
Prescription Act.
[46
]
Supra
,
at par [8].
[47]
[2019]
JOL 40772 (EL).
[48]
I
do not agree that Ndaliso is on all fours with the plaintiff’s
matter in the sense that there both the plaintiff and the
defendant
adduced testimony, with the plaintiff giving an account that was
obviously aimed at avoiding any suggestion that he
knew, or could
reasonably have known, of the existence of the debt.
[49]
Citing Loni (the Full court), Supra, as well as the seminal dictum
by Diemont JA in Gericke v Sack
Supra
at 828A-C.
[50]
Had
the plaintiff requested further particularity it is doubtful that
the defendant would have replied that she intended to call
Dr
Osman. Evidently the defendant saw an opportunity only after
he consulted with the plaintiff for purposes of the medical
examination days before the trial to reveal what the plaintiff had
told him. It is quite unusual for a debtor to base his
claim
on knowledge obtained after the fact and in a more or less
privileged situation such as pertains here. This was not
a
forensic enquiry. His attorney was not present and no official
translator assisted. The plaintiff was not made aware what he
would
be asked or informed that his answers might form the basis of an as
yet unimagined aspect of the special plea based on
the purported
fact that he knew or was supposed reasonably to have known of the
identity of the debtor and existence of the facts
from which the
debt arises. He no doubt related to Dr Osman as a doctor and it is
not inconceivable that he may have related
information to him that
had been suggested to him by his own attorney and which informed his
understanding of what his case was
about.
[51]
Road
Accident Fund v Ntoni
[2016] JOL 35460
(ECG) at par [9].
[52]
[2014]
ZASCA 60
(6 May 2014) at [5] – [6] with particular reference
to par [8] where the court noted that the matter before the high
court
should not have been disposed of on affidavit given the
extreme consequence of a decision either way on prescription.
[53]
Supra
,
at pages 25-29 and especially the authorities there referred to by
the court in applying the deeming provision in section 12
(3),
including Brand v Williams
1988 (3) SA 908
(C) at 913B-C.