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[2022] ZAECMHC 45
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Member of the Executive Council for the Department of Health, Eastern Cape v Gamede (CA05/2022) [2022] ZAECMHC 45 (29 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
OF
INTEREST
Case
no: CA05/2022
In
the matter between:
MEMBER
OF THE EXECUTIVE
COUNCIL
Appellant
FOR
THE DEPARTMENT OF HEALTH,
EASTERN
CAPE
and
SIBUSISO
GAMEDE
Respondent
JUDGMENT
ON APPEAL
Govindjee
J
Background
[1]
The respondent (‘Mr Gamede’)
instituted action against the appellant (‘the MEC’) for
damages allegedly suffered
as a result of a breach of contractual
obligations on the part of staff at the Nelson Mandela Academic
Hospital. Mr Gamede relied,
in the alternative, on the negligent
breach of a legal duty which had caused him harm.
[2]
The
MEC raised two special pleas. The first was that the claim was based
on a delict which had allegedly occurred on 19 November
2010, so that
the claim prescribed three years thereafter, well before service of
summons on 3 February 2017 (‘the special
plea’). The
second was based on non-compliance with s 3(1) of the Institution of
Legal Proceedings Against Certain Organs
of State Act, 2002 (‘the
Act’).
[1]
An interlocutory
application seeking condonation for non-compliance with the
provisions of s 3 of the Act was granted on 24 October
2017. In terms
of that order, Mr Gamede was granted leave to proceed with his action
against the MEC.
[3]
In pleading over, the MEC denied that Mr
Gamede had presented himself at Nelson Mandela Academic Hospital for
any medical care and
services, averring that he had presented at
Mthatha General Hospital (‘the hospital’). Various
admissions confirm the
terms of an oral contractual agreement entered
into between the parties as well as the treatment administered to Mr
Gamede. The
MEC admitted, for example, that hospital staff would
employ suitably skilled and qualified staff to provide reasonable
medical
care of sufficient standard to Mr Gamede. The plea was that
Mr Gamede had been provided with reasonable medical examination,
care,
assessment and supervision when he presented at the hospital.
He had been diagnosed with soft tissue injury on the right ankle,
an
X-Ray had been conducted and no abnormalities had been detected. The
MEC admitted that Mr Gamede had been examined again on
21 December
2010 at the hospital, after complaining of pain on the ankle when
walking. After further X-Ray, he had been referred
to Bedford
Orthopaedic Hospital for further management. A below knee Plaster of
Paris had been administered and he had been issued
with crutches at
that hospital. A review had been booked for 19 January 2011. The rest
of the plea over contained denials of Mr
Gamede’s particulars
of claim in respect of the alleged breach of contractual obligations
and harm suffered. Mr Gamede had
placed reliance on a medico-legal
report (‘the report’) of a physiotherapist (‘Somaroo’),
which was attached
to the particulars of claim, in support of his
allegations of negligence and harm. The MEC put Mr Gamede to the
proof of the contents
of the report.
[4]
Mr Gamede’s replication to the first
special plea indicated that he had only acquired the knowledge of all
the facts to constitute
the cause of action on 4 August 2016, when
the report had been received. As such, his claim had not prescribed
by time summons
was served on 3 February 2017. No rejoinder was
filed.
[5]
The parties agreed in a pre-trial minute to
separate the remaining special plea from other issues of liability
and quantum. The
parties also agreed, inter alia, that there would be
no need for evidence to be given on affidavit. When the trial
commenced before
the Court
a quo
,
it became apparent that the MEC did not intend to call any witnesses.
Only Somaroo was called by Mr Gamede, who did not testify
himself.
[6]
Despite clear indication from the parties
that only the special plea related to prescription required
adjudication, the Court
a quo
erroneously decided to deal with the merits of the matter as a whole,
and did so mainly by extracting evidence from medical reports
that
had been included in the bundle that had been prepared. The Court
a
quo
went so far as to make remarks
about the state of sophistication of Mr Gamede, despite the fact that
he had not testified. It speculated
on his low level of education and
on medical precautions he would likely have taken. Having done so,
the court
a quo
dismissed
the special plea and concluded that the MEC was liable for the proven
damages sustained by Mr Gamede.
[7]
Leave to appeal was granted to this Court.
Amongst the various grounds of appeal noted, the MEC raised Mr
Gamede’s failure
to testify and the consequent lack of evidence
as to when he might have acquired knowledge of all the facts to
constitute his cause
of action. It was also argued that Somaroo’s
evidence amounted to inadmissible hearsay and that the Court
a
quo
had erred by delving into the
merits of the matter given that the parties had agreed to separate
the prescription issue.
[8]
Counsel for both parties were in agreement
that the Court
a quo
had erred at least in that respect. That this is so is evident from
Uniform Rule 33(4), which provides that a court must, on the
application of a party seeking separation, order this unless it
appears that the questions cannot conveniently be decided separately.
It is not unusual for such an application to be made orally at the
commencement of a trial. In this instance, the application was
also
pre-empted in the pre-trial minute that formed part of the papers.
The Court
a quo
proceeded as if the order for separation had been granted, only to
about turn and issue a judgment on the merits as a whole. That
approach was untenable. The appeal must succeed at least to the
extent that this irregularity may be corrected.
The special plea and
the burden of proof
[9]
For
purposes of prescription, a debt is not deemed to be due until the
creditor has knowledge of the identity of the debtor and
of the facts
from which the debt arises.
[2]
A
proviso to
s 12
of the
Prescription Act, 1969
, indicates that a
creditor shall be deemed to have such knowledge if they could have
acquired it by exercising reasonable care.
[10]
A
party seeking to rely on prescription must first prove ‘what
the facts are that the [claimant] is required to know before
prescription could commence running’. These are the minimum
essential facts that the plaintiff must prove in order to succeed
with the claim.
[3]
The ‘facts
from which the debt arises’ are full facts that would be
‘material to the debt’.
[4]
The SCA has recently referred to these facts as ‘the primary
facts’.
[5]
At least in
cases involving professional negligence, they are different to the
facts that must be proved at a trial.
[6]
In these cases they are the facts which would cause a plaintiff, on
reasonable grounds, ‘to suspect that there was fault
on the
part of the medical staff and that caused him or her to “seek
further advice”’.
[7]
The party raising prescription must prove such facts. Failing to do
so results in the conclusion that the claimant cannot be said
to have
knowledge of the facts from which the debt arises.
[8]
[11]
The
party raising prescription must, in addition, show that 'the claimant
had knowledge of those facts’.
[9]
To the extent that this may differ from the enquiry detailed in the
previous paragraph, the proviso to
s 12(3)
enables a debt to be
deemed due if the creditor could have acquired knowledge of the
identity of the debtor and of the facts from
which the debt arises by
exercising reasonable care.
[12]
It
is not necessary for the extent of the harm to be known, or to have
knowledge of legal conclusions for prescription to run.
[10]
The debt arises once harm has indeed been suffered and the creditor
need not be in a position to prove its case.
[11]
Prescription is not postponed until the creditor has established the
full extent of their rights.
[12]
As the SCA held in
Minister
of Finance and Others v Gore NO
:
[13]
‘
This
court has in a series of decisions emphasised that time begins to run
against the creditor when it has the minimum facts that
are necessary
to institute action. The running of prescription is not postponed
until a creditor becomes aware of the full extent
of its legal
rights, nor until the creditor has evidence that would enable it to
prove a case comfortable …’
[13]
As
was the case in
Loni
,
Mr Gamede’s claim was founded in contract and alternatively in
delict. The alternative claim fell away by virtue of the
MEC having
admitted the contract and the matter fell to be adjudicated upon the
basis of the contractual claim. Mr Gamede’s
particulars of
claim reflect that his condition was caused by the breach of
contractual obligations on 19 November 2010. The claim
is based on
the hospital staff’s failure to examine and diagnose his
fracture, including the failure to refer him for X-Rays,
resulting in
misdiagnosis and mistreatment. Whilst the allegations relied upon
suggest negligent acts, the focus is effectively
on conduct on the
part of the MEC’s employees that, due to their inadequacy,
amounted to breach of terms of the admitted
contract and caused Mr
Gamede harm.
[14]
[14]
The
factual causes of his condition, to be gleaned from the particulars
of claim, constitute indispensable primary facts.
[15]
Unlike,
Minister
of Health, Western Cape v MC
,
it cannot be said that the MEC required further particularity as to
the facts underpinning Mr Gamede’s claim before issuing
the
special plea. The plea reflects the MEC’s view that
prescription commenced on 19 November 2010 and that the date of
completion was three years later. Strictly speaking, that date is
crucial and the belated suggestion on appeal that Mr Gamede knew,
or
ought to have known, that he had fractured his wrist and ankle by no
later than 21 December 2010 is irrelevant. The onus is
on the party
raising prescription as a defence to prove both the date of inception
of the prescriptive period and the date of the
completion
thereof.
[16]
The SCA has
recently confirmed that it was for the MEC to prove that prescription
began to run against Mr Gamede’s claim
on the date reflected in
its plea.
[17]
[15]
In
this case the position would be no different even if a more
benevolent approach was adopted so as to permit the MEC to prove
the
commencement of prescription any time before 4 February 2014.
[18]
The MEC must then demonstrate that Mr Gamede was in possession of
sufficient facts, by no later than 4 February 2014, to cause
him, on
reasonable grounds, to suspect that it was the fault of hospital
staff that had caused him injury so as to prompt him to
seek further
advice. Until Mr Gamede had this comprehension, he lacked knowledge
of the necessary facts contemplated in
s 12(3).
The MEC did not aver
in the plea that Mr Gamede had knowledge of the facts that caused his
problem. In replication, Mr Gamede indicates
that he only acquired
the knowledge of all the facts to constitute the cause of action on 4
August 2016.
[16]
As
in
Links
,
there is nothing to gainsay that averment.
[19]
In the absence of agreed facts, was it possible for the MEC to
discharge its burden without leading any oral evidence whatsoever?
Put differently is there any basis to conclude, on the facts of the
matter, that it was necessary for Mr Gamede to lead evidence
‘in
rebuttal’, or that an adverse inference ought to be drawn from
his failure to do so?
[17]
It
may be accepted that the key facts relevant to the special plea fell
almost exclusively within the knowledge of Mr Gamede. As
a result,
the MEC faced various difficulties of the kind typically associated
with raising a plea of prescription in circumstances
where the facts
in question are particularly within the knowledge of the other party.
Despite these challenges, the SCA has confirmed
that the burden of
proof cannot be altered merely because the facts happen to be within
the knowledge of the other party.
[20]
In such cases, the associated difficulties are accommodated by
permitting a lower level of proof to suffice for purposes of
establishing
a prima facie case, not by altering the onus.
[21]
[18]
The
MEC, having raised prescription in circumstances where it may be
accepted that Mr Gamede was the only person aware of certain
facts,
bears this reduced evidentiary burden to prove that special plea.
This includes the date of the inception and the date of
the
completion of the period of prescription, and the date on which Mr
Gamede obtained actual or constructive knowledge of the
debt.
[22]
The burden only shifts to Mr Gamede if the MEC has established a
prima facie case.
[23]
The
position does not change because Mr Gamede’s replication
advanced a date on which he had acquired knowledge of the relevant
facts.
[24]
[19]
The
MEC was required to discharge the reduced burden by adducing evidence
to support its case in the usual way.
[25]
In failing to do so, the burden never shifted to Mr Gamede. His
failure to testify in proceedings where the burden lay upon the
other
side is different to the position described by the majority of the
SCA in
M.
v MEC for Health, Eastern Cape
,
[26]
where the burden was on the plaintiff to establish negligence.
[27]
The fact that much of Somaroo’s testimony constitutes
inadmissible hearsay given Mr Gamede’s failure to testify is
immaterial on the facts in casu.
The appropriate relief
[20]
The
question remains whether this Court should nevertheless uphold the
appeal, given the lack of evidence, and refer the matter
for the
hearing of oral evidence. In
Road
Accident Fund v Ntoni
,
[28]
a full court of this Division considered a judgment that had
dismissed a special plea of prescription on the strength of pleadings
in circumstances where no evidence had been led. The Court upheld the
appeal for two reasons, one of which related to the question
of
evidence:
[29]
‘
[9]
I revert to the fact that no evidence was led by either party. The
appellant placed various letters which were exchanged between
the
parties’ respective attorney before the court
a
quo
. The parties seemed to have
laboured under the impression, wrongly so, that those letters
constituted evidence. There was no agreement
between the parties as
to the evidentiary value of those letters. The present situation is
akin to what Griffiths J described as
“a trial without a
trial”. The appellant should have placed evidence or sufficient
agreed facts before the court
a quo
to substantiate its plea of prescription. The issue of prescription
could not properly have been determined without evidence or
agreed
facts. With respect, it was accordingly inappropriate for the court
a
quo
to reach a final conclusion on the
issue of prescription on the basis of the pleadings and the above
correspondence alone.
[10] Mr Frost, counsel
for the appellant, submitted that once the judgment of the court
a
quo
is set aside, we should uphold the special plea of
prescription because of the absence of evidence to substantiate it.
That submission
cannot be upheld. It would also be inappropriate for
us, as a court of appeal, to determine whether or not the
respondent’s
claim has prescribed without evidence or agreed
facts upon which such a determination can be made. In the
circumstances of this
case it would be just to refer the action back
to the court
a quo
to determine, on the basis of evidence or
agreed facts, whether or not the respondent’s claim has
prescribed.’
[21]
It
must be noted that
Ntoni
dealt
with a matter where no evidence had been led and that the full court
deliberately added the words ‘In the circumstances
of this case
…’ to qualify the decision to remit the matter to the
court
a
quo
.
The particular circumstances which may have warranted that decision
were, however, not described. Despite these considerations,
the
parallels between
Ntoni
and
this case are undeniable. In both matters there was a final
conclusion on the prescription point despite a lack of evidence.
The
court in
Ntoni
held
that it was inappropriate to arrive at such a decision. As a result,
the matter was remitted for the hearing of evidence or
the receipt of
a stated case. That judgment and approach, being a decision of the
full court of the same division, is binding unless
this court is
persuaded that it is clearly wrong.
[30]
[22]
The
judgment in
Ntoni
relied upon
MEC
for Health: Eastern Cape v Mbodla
[31]
in coming to its decision. That matter concerned application
proceedings where the respondent raised prescription by way of notice
in terms of Uniform
Rule 6(5)
(d)
(iii).
The Court had not been satisfied that the issue was capable for
determination without oral evidence and an order in terms
of Uniform
Rule 6(5)
(g)
followed. That Rule contemplates applications that cannot be properly
decided on affidavit. It permits a referral of matters, launched
by
way of application, to oral evidence as an option, without curtailing
the Court’s extensive powers to make a just and
equitable
decision by making any appropriate order.
[32]
[23]
Referring
the matter to a single judge for the hearing of oral evidence would
allow the MEC to have a second opportunity to discharge
its burden.
We are, with respect, unconvinced that it would be justifiable to do
so in the present circumstances. There is a risk
that a party raising
prescription by way of special plea may deliberately fail to lead
evidence in the hope of a favourable outcome
on the papers, and rely
on the anticipated second opportunity in the event of an adverse
judgment. This approach would place the
claimant in the
disadvantageous position, during the initial hearing, of leading
evidence to rebut anticipated future evidence,
rather than evidence
that has already been led. It would also result in duplication of
efforts and a waste of judicial resources.
Counsel could point to no
authority in support of that approach and it must respectfully be
concluded that the approach is clearly
wrong. Zondo JP had occasion
to consider a similar issue in
Bouwer
v City of Johannesburg and Another
,
[33]
and concluded as follows:
‘
[20]
… sometimes a court issues an order of absolution from the
instance in a case where both parties have adduced all the
evidence
that they chose to adduce, have presented their oral argument and
none of them has indicated that there is any witness
he wishes to
call who was unavailable earlier on.
[21] I have serious doubt
that an order of absolution from the instance is competent in a case
such as the one referred to immediately
above. Of course, if any of
the parties had a witness who was temporarily not available whom he
wanted to call, he would have applied
for a postponement of the trial
to a later date when that witness would be available. Such a party
would not close his case and
hope for an absolution from the
instance. If both parties to the dispute had a fair chance to adduce
all the evidence that they
wanted to adduce and the Court found such
evidence not enough to justify giving a judgment in the plaintiff’s
favour, there
can be no justification, it seems to me, for the Court
to grant an absolution from the instance. The proper order in such a
case
is that the plaintiff’s claim is dismissed.
[22] If it were right for
a Court to grant an absolution in such a case, that would mean that a
Court is entitled to let a party
institute a second action and seek
the same order that he had sought in earlier proceedings on the same
cause of action even though
in the earlier proceedings the parties
had had a fair opportunity to adduce all the evidence that they
wanted to adduce, had in
fact adduced such evidence and even
presented oral argument in the matters. In my view when the parties
have done all of that the
Court is
obliged
to decide the
dispute before it on the merits and may not grant an absolution from
the instance…’
[24]
A
decision refusing to remit the matter, despite the dearth of
evidence, also finds academic support, albeit in the context of an
application for remittal:
[34]
‘
Where,
however, remittal is asked for by a party who has failed, despite
having had the opportunity to do so, to produce any evidence,
or any
legally admissible evidence, or all the available evidence on a point
that was plainly in issue, the application will usually
be refused.’
[25]
In
Deintje
v Gratus and Gratus
,
[35]
the position was explained with reference to old English law, and the
adoption of the following approach:
[36]
‘
It
is an invariable rule in all the Courts, and one founded on the
clearest principles of reason and justice that if evidence which
either was in the possession of parties at the time of a trial, or by
proper diligence might have been obtained, is either not
produced or
has not been procured, and the case is decided adversely to the side
to which the evidence was available, no opportunity
for producing
that evidence ought to be given by the granting of a new trial.’
[26]
It follows that we are of the view that
there is no basis to afford the MEC a further opportunity to adduce
evidence to substantiate
its prescription point in the present
circumstances, and that the court
a quo
was correct in dismissing the special
plea. It might be added that, given the lengthy period of time that
has elapsed, and in fairness
to both parties, counsel for the MEC
also urged us not to remit the matter for purposes of adducing
further evidence.
Prescription and
condonation in terms of the Act: res judicata?
[27]
Given the nature of our engagement with
counsel during the hearing of the appeal, it is necessary to make
some remarks about the
relationship between a special plea of
prescription and the requirements for condonation in terms of the
Act, and whether an order
granting condonation renders the
prescription point res judicata.
[28]
A
cursory consideration of the requirements for granting condonation in
terms of the Act suggests that there is a further reason
for
upholding the decision of the court
a
quo
in dismissing the special plea. As already indicated, the other
special plea was argued and resulted in an order taken before Jolwana
AJ condoning non-compliance with the provisions of s 3 of the Act and
granting Mr Gamede leave to proceed with his action. A court
may only
grant such an order if it is satisfied that ‘the debt has not
been extinguished by prescription’, amongst
other
considerations. The implication is that on 24 October 2017, when
condonation was granted in terms of the Act, a court had
already
concluded that Mr Gamede’s claim had not prescribed. There has
been no attempt to rescind or appeal that order. It
is not a nullity
and remains binding until set aside, even in the event that it had
been erroneously granted. That order exists
in fact and continues to
have legal effect until it is set aside.
[37]
Accepting that line of thinking results in the conclusion that the
special plea is res judicata.
[29]
A
similar approach was followed by the Western Cape Division in
Patterson
v Minister of Safety and Security and Another
:
[38]
‘
[16]
Accordingly one of the jurisdictional prerequisites to success in an
application of that nature is that the court must be satisfied
that
the debt has not been extinguished by prescription … Traverso
DJP was clearly satisfied that the debt had not prescribed
and that
the other requirements referred to had been met or she would not have
granted the order (of condonation) … I disagree
with the
submission made by the defendants’ counsel that Traverso DJP
“did not hand down a judgment on prescription”;
by clear
implication that is precisely what she did …
[17] The order made by
Traverso DJP is clearly a judgment between the same parties and it
also relates to the same point in issue.
Prescription was pertinently
raised by the defendants in their earlier special plea; that defence
was raised and dealt with by
the plaintiff in his application for
condonation; and at the risk of repetition condonation could not have
been granted unless
Traverso DJP was satisfied that the plaintiff’s
claims had not prescribed.’
[30]
That
approach was trenchantly rejected on appeal to a full court.
[39]
The ratio of that decision cannot be faulted. In essence, the court
held that there is a conceptual distinction between a court
being
‘satisfied’ for the purposes of s 3(4)
(b)
(i)
of the Act that a ‘debt has not been extinguished by
prescription’ and a court determining conclusively for the
purpose of dismissing a special defence that the defendant has not
‘proved’ that the debt has been extinguished by
prescription. The test for res judicata includes that the same issue
of fact or law which was an essential element of the judgment
on
which reliance has been placed must have arisen and must be regarded
as having been determined in the earlier judgment.
[40]
It was not necessary for a defence of prescription to be raised
before a court seized with a condonation application in terms of
the
Act. There is therefore no onus on a defendant to establish its
defences in the pending main proceedings when applying for
condonation in terms of the Act:
[41]
‘
On
the contrary, there is ‘a burden of persuasion on the applicant
for condonation to ‘
satisfy
’
the court that its claim has
not
prescribed. If an intention to raise a
defence of prescription in the pending principal proceedings is
indicated by the respondent
in the condonation application, the
court, for the purposes of s 3(4)
(b)
(i),
is required to do no more than form a view on the prospects of
success of the indicated defence; it is not called upon to decide
it;
and would be venturing impermissibly outside its remit if it
purported to do so. If the court were in the postulated circumstances
to form the impression that the defence of prescription was unlikely
to succeed, it would be ‘
satisfied
’
for the purposes of s 3(4)
(b)
(i)
that the claim had not prescribed and would incline to grant
condonation;
aliter
,
if it took the opposite view.’
[31]
The
full court relied on the SCA decision in
Madinda
v Minister of Safety and Security
[42]
to explain the distinction between the ‘burden of persuasion’
on an applicant seeking condonation in terms of the Act,
and an
‘onus’ that burdens a defendant raising prescription as a
special defence to a claim:
[43]
‘
The
phrase “if [the court] is satisfied” in s 3(4)
(b)
has long been recognised as setting a standard which is not proof on
a balance of probability. Rather it is the overall impression
made on
a court which brings a fair mind to the facts set up by the parties …
I see no reason to place a stricter construction
on it in the present
context.’
That distinction appears
to answer the point raised with counsel.
Costs
[32]
Although the MEC has been successful in so
far as setting aside the court
a quo
’s
judgment on the merits, the thrust of its submissions focussed on the
issue of the special plea. There the MEC has been
unsuccessful. It
would be appropriate, in these circumstances, for each party to bear
their own costs of the appeal.
Order
[33]
The following order will issue:
1.
The appeal is upheld.
2.
The order of the court
a
quo
is set aside and replaced with the
following:
‘
The
special plea is dismissed with costs.’
3.
Each party is to pay its own costs of the
appeal.
A
GOVINDJEE
JUDGE
OF THE HIGH COURT
I
agree, and it is so ordered.
M
MAKAULA
JUDGE
OF THE HIGH COURT
I
agree.
T
MALUSI
JUDGE
OF THE HIGH COURT
Heard
:14
November 2022
Delivered
:
29 November 2022
Appearances:
Counsel
for the Appellant:
Adv TW Mgidlana
Makhanda Chambers
Instructed
by:
The State Attorney
Broadcast House
94 Sission Street
Fortgale
Mthatha
047 502 9900
mgidlana@roundbar.co.za
Attorney
for the Respondent: Mr C Pangwa
Instructed
by:
Caps Pangwa and Associates
Suit No.202 1
st
Floor City Centre
York Road
Mthatha
047 532 3664
caps@mweb.co.za
[1]
Act
40 of 2002.
[2]
S
12(3)
of the
Prescription Act, 1969
.
[3]
MEC
for Health, Western Cape v MC
[2020]
ZASCA 165
para 7. Mere opinion or supposition is insufficient as
there must be justified, true belief:
Minister
of Finance and Others v Gore NO
2007 (1) SA 111
(SCA);
[2007] 1 All SA 309
;
[2006] ZASCA 98
(‘
Gore
’)
para 18.
[4]
Links
v
MEC, Department of Health, Northern Cape Province
[2016]
ZACC 10
;
2016 (4) SA 414
(CC);
2016 (5) BCLR 656
(‘
Links
’)
paras 30, 50.
[5]
MEC
for Health, Western Cape v MC
n
3 para 8.
[6]
WK
Construction (Pty) Ltd v Moores Rowland and Others
2022
(6) SA 180
(SCA) para 32.
[7]
Links
n
4 para 42.
[8]
Id.
[9]
Id
para 24;
MEC
for Health, Western Cape v MC
n
3 para 8.
[10]
Claasen
v Bester
2012
(2) SA 404
(SCA);
[2011] ZASCA 197
para 15.
[11]
WK
Construction (Pty) Ltd
n
6 para 33;
Loni
v MEC, Department of Health, Eastern Cape Bhisho
[2018]
ZACC 2
;
2018 (3) SA 335
(CC);
2018 (6) BCLR 659
(CC) (
'Loni
’)
para 30.
[12]
Van
Staden v Fourie
1989
(3) SA 200
(A);
[1989] ZASCA 36
at 216B-F.
[13]
Gore
n
3
para
17.
[14]
Loni
n
11 paras 29, 30. In
Links
,
the Constitutional Court considered the plaintiff’s knowledge
of the facts that had caused his medical condition to be
material
knowledge required before the institution of action, and held that
this was the case irrespective of whether the claim
that followed
proceeded on the basis of breach of contract or delict:
Links
n
4 para 46.
[15]
MEC
for Health, Western Cape v MC
n
3 paras 10-13.
[16]
Gericke
v Sack
1978
(1) SA 821 (A).
[17]
Greater
Tzaneen Municipality v Bravospan 252 CC
[2022]
ZASCA 155
para 14. It is impermissible to advance a different case
on appeal. Cf
Links
n
4 paras 24, 44.
[18]
See
Links
n
4 paras 41, 44.
[19]
Id
para 46; Also see
MEC
for Health, Western Cape v MC
n 3 para 9.
[20]
Gericke
v Sack
n
16 at 827D-G.
[21]
Union
Government (Minister of Railways) v Sykes
1913
AD 156
at 173.
[22]
See
Gericke
v Sack
n 16 at 827H-828B, read with
Macleod
v Kweyiya
2013
(6) SA 1
(SCA) para 10.
[23]
Macleod
v Kweyiya
id
para 10.
[24]
Gericke
v Sack
n
16 at 828B.
[25]
See
Lekup
Properties Co No 4 (Pty) Ltd v Wright
2012
(5) SA 246
(SCA);
[2012] 4 All SA 136
(SCA)
[2012] ZASCA 67
para 32.
[26]
M.
v MEC for Health, Eastern Cape
[2018]
ZASCA 141
para 47.
[27]
Id
para 65.
[28]
Road
Accident Fund v Ntoni
[2016]
ZAECGHC 8.
[29]
Id
paras 9 and 10, footnotes omitted.
[30]
See
MEC
for Finance, Economic Development, Environmental Affairs and Tourism
(Eastern Cape) and Others v Legal Practice Council and
Others
[2022] ZAECMKHC 58;
[2022] 3 All SA 730
(ECG) para 31.
[31]
MEC for
Health: Eastern Cape v Mbodla
[2014]
ZASCA 60.
[32]
Id
para 7.
[33]
Bouwer
v City of Johannesburg and Another
[2008]
ZALAC 15
paras 20-23.
[34]
Herbstein
and Van Winsen
The
Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa
(5
th
Ed) (2009) ch 39-p1241.
[35]
Deintje
v Gratus and Gratus
1929
AD 1.
[36]
Id
at 6. See
Shedden
v Patrick
(L.R., 1 H.L. 476
at 545).
[37]
See
MEC
for the Department of Public Works and Others v Ikamva Architects
and Others
[2022] ZAECBHC 13;
[2022] 3 All SA 760
(ECB);
2022 (6) SA 275
(ECB)
paras 25, 26.
[38]
Patterson
v Minister of Safety and Security and Another
[2013]
ZAWCHC 73
paras 16, 17.
[39]
Minister
of Safety and Security and Another v Patterson
[2016]
ZAWCHC 169
paras 12-18.
[40]
Yellow
Star Properties 1020 (Pty) Ltd v MEC, Department of Development
Planning and Local Government, Gauteng
2009
(3) SA 577
(SCA) para 22.
[41]
Minister
of Safety and Security and Another v Patterson
n
36 para 16.
[42]
Madinda
v Minister of Safety and Security
2008
(4) SA 312 (SCA).
[43]
Id
para 8.