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[2014] ZANCHC 17
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Links v MEC, Department of Health, Northern Cape Province (1870/2012) [2014] ZANCHC 17 (15 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape
Division, Kimberley)
Case No:
1870/2012
Heard: 09/06/2014
Delivered:
15/08/2014
In the matter
between:
DIRK
LINKS
.............................................................................................................
Appellant/Plaintiff
AND
THE MEC,
DEPARTMENT OF HEALTH,
NORTHERN CAPE
PROVINCE
......................................................................
Respondent/Defendant
Coram: Kqomo JP;
LacockJ et Pakati J
JUDGMENT
KGOMO JP
[1] The
appellant/plaintiff, Mr Dirk Links, of the Promised Land Plot 10,
Galeshewe, Kimberley, Northern Cape, was born in September
1981 and
reached Grade 7 at school. He sued out summons against the
respondent/defendant/the Member of Executive Council (MEC)
of Health
of the Northern Cape Province on 04 August 2009, which process was
served on 06 August 2009, for the recovery of damages
in the amount
of R2 977 744.00 resulting from the alleged negligent medical conduct
of the MEC's servants.
[2] The appellant
claims that the cause of action arose on 26 June 2006 when he was
admitted to Kimberley Hospital (KH) for the
treatment of a
self-inflicted left-thumb injury. In broad he accuses the MEC that:
The doctors and other staff who attended to
him wrongfully
misdiagnosed and/or mistreated the injury; that a plaster cast was
applied too tightly to the affected hand, thumb
and forearm which
contributed to the buildup of pressure and induced ischaemia
(Inadequate blood supply); consequently, that these
aberrations led
to the fasciotomy (amputation) of his left thumb on or about 04 July
2006 and the subsequent progressive shriveling
up of his left arm
which was rendered dysfunctional.
[3] The MEC raised
two special pleas:
3.1 Firstly, that
the appellant's claim has become prescribed in accordance with the
Prescription Act, 68 of 1969
, by virtue of the fact that the cause of
action arose on 26 June 2006 when he first received medical treatment
and had prescribed
by 06 August 2009 when the summons was served on
the MEC, more than three years later. See
s 11(d)
read with
s 12(1)
-
(3) of the
Prescription Act, to
be reverted to.
3.2 Secondly, that
the notice that the appellant gave to the MEC pursuant to the
prescripts of
s 3
of the
Institution of Legal Proceedings Against
Certain Organs of State Act, No 40 of 2002
, was out of time in that
more than six months had elapsed.
[4]
By consent between the parties, and sanctioned by
Mamosebo
AJ
before
whom the matter served, the special pleas were entertained separately
from the merits as they were evidently dispositive
of the entire
case, if well founded. On 24 May 2013
Mamosebo
AJ
decided
that the appellant's action had indeed prescribed and dismissed it
with costs.
[5]
As far as the
s 3
of Act 40 of 2002 notice to the MEC is concerned
Mamosebo AJ
declared
it to be of mere academic interest in light of the prescribed claim
and remarked:
5.1
"30
—
If the plaintiff's claim
had not prescribed I would have condoned his default in giving
timeous notice to the defendant for the
reasons set out [elsewhere].
This aspect is also relevant in the event that it could be found that
I was wrong in finding that
the plaintiff's cause of action had not
prescribed."
5.2
The court
a quo
then
made the following order in this regard:
"2.
Condonation for
plaintiff's failure to serve the notice contemplated in
s 3(l)(a)
of
the
Institution of Legal Proceedings Against Certain Organs of State
Act 40 of 2002
within the period laid down in s 3(2)(a) of the Act
must fail in view of the order in para 1 [relating to the
prescription]."
This
observation is correct. In
Madinda
v Minister of
Safety
and Security
[2008] ZASCA 34
;
2008
(4) SA 312
at 316D (para 9) the SCA held that:
“
[
9]
The first requirement speaks for itself: the court must be satisfied
that the applicant relies on an extant cause of action.
That this is
so in the present instance has never been in dispute."
[6]
The court
a quo
refused
leave to appeal. This appeal now serves before us with leave of the
Supreme Court of Appeal.
THE
APPELLANT'S/PLAINTIFF'S CASE MADE ON AFFIDAVIT
[7]
The appellant states that he dislocated his left thumb on 26 June
2006 and that there were no open or gaping wounds. This statement
must be correct because Annexure "A3" to the MEC's papers,
deposed to by Dr Lizanne Koning, a medical practitioner at
Kimberley
Hospital, has this entry the authenticity of which was not placed in
dispute:
"Problem-Orientation
Patient Progress Record
Date
26/06/2014; Time 14h00: Progress Note:
Wound irrigated
with normal wound bright red, certain areas still red, no offensive
smell, no bleeding. Black slab still intact
not able to move
fingers."
[8] A Plaster of
Paris (POP) was applied to the appellant's hand and forearm at
Kimberley Hospital and he was discharged therefrom
on the same day.
He was directed to return after 10 days for the removal of the
device. Four or five days later (29 or 30 June
2006) he returned to
the hospital because he experienced excruciating pain. He was merely
given a clinical examination and supplied
with painkiller tablets. He
was on this occasion directed to return after five days for
observation/assessment.
[9] When the
appellant could not withstand the extreme pain he returned to the
hospital after only three days. The affected hand/thumb
was X-rayed
and sepsis was diagnosed in his left thumb. This, by way of
deduction, must have been on 03 July 2006 because the appellant
states (translated):
"17.51
underwent an operation under general anesthesia the following day. I
discovered later on that my left thumb was amputated.
I accepted that
this amputation took place during this procedure."
It should,
accordingly, be common cause or accepted that the fasciotomy of the
thumb took place on 04 July 2006.
[10] However, the
appellant also states, contradictorily, that he discovered for the
first time that his thumb was amputated "a
day after" his
discharge from the hospital (which discharge took place at the end of
August 2006) when he attended at the
wound-clinic for the cleaning of
the thumb.
[11]
The appellant maintains that (an unnamed) doctor informed him upon
his discharge (at the end of August 2006) that his left
hand has
become dysfunctional. He went on (translated):
"21.
About a month later; during September 2006, I noticed that my left
forearm was shrivelling up and became totally useless
and
dysfunctional. It also started to shrink and became emaciated as
compared to the right forearm. It then became evident to me
that I
have lost its use permanently."
He was not informed
that the hospital was medically negligent. Not surprisingly.
[12]
The appellant states that he approached Booysen McLeod Attorneys in
November 2006 for legal assistance but they could not help,
inter
alia,
because
he was indigent. This is how he ended up with Legal Aid South Africa,
Kimberley, in December 2006. The court
a
quo,
correctly
chronicles his experiences thereat as follows:
"[7]
Although he does not remember the name of the legal aid practitioner
who assisted him that day he was asked by this official
verbally to
return on 06 March 2007 when they will commence with the
investigation of his case. [The practitioner] also advised
the
plaintiff to obtain copies of the hospital records in the meantime.
The plaintiff requested his cousin around December 2006
to obtain his
medical records from Kimberley Hospital on his behalf. The request
was denied by hospital personnel as the records
are confidential.
[8] His
subsequent numerous visits to the Legal Aid Centre, Kimberley, as
reflected in his founding affidavit are 10 May 2007, 27
June 2007, 12
October 2007, 21 November 2007, 02 January 2008, 17 April 2008, 23
June 2008, 10 September 2008, 09 October 2008,
11 December 2008, and
24 March 2009. The plaintiff states that he was seen by a different
practitioner on each occasion. It must
be said that these visits
demonstrate that he pursued his action diligently.
[9] On 27 June
2007 he consulted with Mr Jansen Van Vuuren of the Legal Aid Centre,
Kimberley, who is apparently the supervisor.
Every time when he was
called in by Mr Van Vuuren to visit the Legal Aid Centre, he obliged.
Although he was assured during all
of his visits that his matter is
receiving attention it was only when his file was handed over to a
private attorney, Mr Van Niekerk,
that some progress was made.
[10] The
plaintiff only consulted Mr Van Niekerk on 15 July 2009. Two days
thereafter, on 17 July 2009, the plaintiff consulted
with an
advocate. Summons was issued on 06 August 2009; thus more than three
years had lapsed from the date of his first treatment.
Mr Van Niekerk
made attempts to obtain the hospital file on 14 September 2009 but in
vain. The hospital only provided part of the
records on 01 November
2010."
[13] On 21 January
2011 Dr Willem Reyneke, a general surgeon (algemene chirurg) wrote to
the appellant's attorney (Elliot, Maris,
Wilmans & Hay - for
the attention of H Van Niekerk/Erika/vn600) as follows (translated by
the doctor himself):
"
DIRK
LINKS/DEPARMENT OF HEALTH NORTHERN CAPE
PROVINCE/KIMBERLEY HOSPITAL
After clinically
evaluating Mr Link's current condition on 19/01/2011, as well as
having had insight into the hospital records,
as well as the history
as disclosed by Mr. Links regarding the time and visits to Kimberley
Hospital between 27 June 2006; when
he received plaster of paris on
his arm; and on 03 July 2006 when he had the first surgery, I hereby
want to add the following
to my previous statement.
1. Mr. Links
presently has a Volkmann's contracture of his left hand, as well as
amputation of the distal phalanx of the left thumb.
Clinically there
is total loss of function of the Ulnar, Median and Radial nerves in
the forearm and hand. This includes motor
as well as sensory
function.
2. The causes of
Volksmann's contraction may be the following:
2.1 Ischemia due
to vascular injury (this can be thrombosis or bleeding) with
increased pressure in the muscles compartment of the
forearm.
2.2 Plaster of
paris for a tourniquet causing ischemia because it is too tight.
3. Regarding the
history of Mr. Links: the injury was on 26 June 2006, and the
treatment was given on the 26
th
June 2006. Treatment
included plaster of paris of the left forearm.
4. During 5 days
(from 26/06/2006 until 03/07/2006) Mr. Links went back to the
hospital on two occasions with complaints of pain.
Pain medication
was given.
5. According to
the hospital notes the treatment Mr. Links received from the 3
rd
of July 2006 was medically correct. The damage occurred before then.
6. The cause of
the Volmann's contraction is most probably due to plaster of paris
that was too tight, and not removed soon enough.
Ischemia developed
and the patient had severe pain for which he went back to hospital on
the 28
th
or 29
th
of June 2006. He was given
pain medication.
IN SUMMARY
The Volksmann's
contracture is of a severe degree with total loss of function of the
left hand. This is most probably due to the
plaster of paris which
was applied too tight on the 26
th
of June 2006, and not
removed when ischemia occurred."
THE
RESPONDENT/MEC'S CASE
[14] Dr Lizanne
Koning proffered the following defence in countering the relief
claimed by the appellant. She is a medical doctor
employed by the
Department of Health, Northern Cape, and the Superintendent in charge
of the Kimberley Hospital Complex.
[15]
The doctor contends that the appellant was informed of the nature and
possible consequences of each proposed medical procedure.
As examples
are appended Annexures "Al" and "A2". Annexure
"Al" is a pro-forma document entitled:
"Toestemming
tot Mediese Prosedure/Ondersoek".
(Consent
to Medical Procedure/Examination). It is dated 15 July 2006 and
signed by a
"Geneesheer
[Doctor] A Pretorius"
and
the appellant, "D Links", as well as two witnesses. The
nature of the procedure proposed to be undertaken is stated
as:
"Wound inspection and debridement of the left forearm".
Annexure A2 reflects that the same medical procedure was
repeated on
31 July 2006, the main difference being that the proposed medical
procedure was scheduled by a Dr Slabbert.
[16] In consequence
of the aforegoing information Dr Koning stated:
"2.2
Typically during those kinds of procedures (debridement), dead tissue
(in this case due to sepsis) is removed and that
would have been the
reason for the amputation of the finger as well.
2.3
It is submitted that the Applicant would have known on the day of the
amputation of his left thumb that he had lost the use
of this left
thumb and at least some functionality of his left hand. In terms of
the
Prescription Act
;
that will be the
time prescription starts to run as he was aware of the identity of
the debtor and the facts from which the debt
arises.
2.4 On
Plaintiff's version he became aware of the amputation on 04/07/2006.
Consequently it is not possible that he only became
aware of the loss
of functionality in September 2009 as alleged.
2.5 Deformity of
the Appellant's left hand as depicted in Annexure "D" to
the Applicant's affidavit is the last stage
of the process after
compartment syndrome and muscle ischaemia. Loss of functionality is
immediate with amputation and it would
be incorrect to consider the
deformity stage to be the time prescription starts to run.
2.6 As a rule
wounds are dressed every 48 hours or less, and that this was done is
evident from the medical records. Consequently,
even in the highly
unlikely scenario that he was not told of the amputation he would
have become aware of it and the concomitant
loss of functionality at
the most 48 hours after the amputation on 04/07/2006 - in other words
at the latest on 06/07/2006. Consequently
this claim became
prescribed on 05/07/2009. As summons was only served on 06/08/2009,
the claim has prescribed.
2.7 A lot is
being made of the fact that the Applicant did not know in which
manner the Respondent was negligent due to the fact
that medical
records were not provided timeously. I have been advised that there
are ample authority for the proposition that it
is not necessary to
actually be aware, of the grounds of negligence in order for
prescription to start running.
2.8 Certainly the
Applicant did not need the medical records in order to send the
Section 3
Act 40/2002 notice as that was done on 12/05/2009 whereas
the records were only received on 04/11/2010. Similarly summons was
issued
on 06/08/2009 - more than a year before receipt of the medical
records."
THE
REASONING AND FINDING OF THE COURT
A
QUO.
[17]
Mamosebo AJ
made
the following observations and finding:
"26.
The plaintiff in
this case became aware of the amputation on 05 July 2006. He had
suspected prior to this date while still in hospital
that something
was not right. In my view, the plaintiff ought reasonably to have
realised on or about 15 July 2006 that the operation
was not
successful; alternatively that the subsequent treatment was not
properly done or that there was no proper remedial medical
follow-up
action. The plaintiff's knowledge can be imputed to him from the time
the plaster cast was removed. From the papers I
have not discerned
any event that interrupted or could be construed to have interrupted
the running of the prescription.
27.
The following passage appears in,
Prescription in
South African Law, 3 Saner at 3-69 issue 19:
'Where
the plaintiffs could have issued summons against the Government of
the Republic of South Africa within the prescriptive period
,
but failed to do
so because his legal advisors failed to appreciate the fact that this
would have been competent in the circumstances,
the court upheld a
plea of prescription. This it did on the basis that the plaintiff
became aware that the state farm in question
(on which the fire
affecting the plaintiffs had started) belongedultimately; to the
Government of the Republic of South Africa,
on a date more than three
years prior to issue of summons. However, despite receiving
information to this effect
,
the plaintiff's
attorneys continued to try to ascertain the identity of the actual
department of state which owned the farm. Only
when they had done
this did they issue summons accordingly. Unfortunately, as noted
,
this was too late.
THE
LAW AND APPLICATION OF THE LAW TO THE FACTS
.
[18]
Section 11(d)
of the
Prescription Act, Act
68 of 1969, provides that:
"The periods
of prescription of debts shall be the following:
(d) save where an
Act of Parliament provides otherwise, three years in respect of any
other debt."
[19] Section 12 of
the same Act stipulates that:
"(1) Subject
to the provisions of subsections (2), (3) and (4), 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."
[20]
The word "debt" in
s 12(1)
of the
Prescription Act does
not
bear the narrower concept or connotation of a "cause of action"
but eminently the broader connotation of a "right
of action"
or even the creditors "claim". In
Drennan
Maud and
Partners
v Pennington Town Board
[1998] ZASCA 29
;
1998
(3) SA 200
(SCA) 212F-J Harms JA (then) observed in relation to the
phrase in
s 12(3)
of the
Prescription Act, namely
"the facts
from which the debt arises" that regard must be had to the body
of authority that deals with the meaning of
the word "debt"
in s 15(1) of the Act (collected and discussed in two later cases of
this Court, namely
Sentrachem
Ltd v Prinsloo
1997
(2) SA 1
(A) at 15B—16D and
Standard
Bank of South
Africa
Ltd v Oneanate Investments fPtvl Ltd
(in
Liquidation)
[1997] ZASCA 94
;
1998 (1) SA 811
(SCA) at 825B-827F). He then went on to
say:
"The word
'debt' does not refer to the 'cause of action', but more generally to
the 'claim'. There is in my view no reason
to give the word another
meaning in s 12(3).
In the Drennan
Maud - judgment (supra) Olivier JA in the majority judgment at 209
F-G stated:
"Section
12(3) of the Act provides that a creditor shall be deemed to have the
required knowledge if he could have acquired
it by exercising
reasonable care'. In my view, the requirement "exercising
reasonable care" requires diligence not only
in the
ascertainment of the facts underlying the debt
,
but also in
relation to the evaluation and significance of those facts. This
means that the creditor is deemed to have the requisite
knowledge if
a reasonable person in his position would have deduced the identity
of the debtor and the facts from which the debt
arises."
And at 211F Olivier
JA concluded:
"(A)
debt to pay damages becomes due when loss occurs as a result of a
delict (Oslo Land Co Ltd v The Union Government
1938 AD 584
at 590;
Evins v Shield Insurance Co Ltd
1980
(2) SA 814
(A)
at
838H—839G) or a breach of contract (Swart v Van der Vyver
1970
Cl) SA 633 (A)
at
643C-D)."
See
also
Nedcor Bank
Bpk v Reaerina van die Republiek
van
Suid-Afrika
[2000] ZASCA 154
;
2001
(1) SA 987
(SCA).
[21]
In terms of s 12(1) of the Act "prescription shall commence to
run as soon as the debt is due". The phrase "debt
due"
must be given an ordinary meaning, which is a debt that is "owing
and already payable"
See
Lagerwey v Rich and Others
1973
(4) SA 340(T)
at 345 F-G. See also
Evins
v Shield
Insurance
Co Ltd
1980
(2) SA 814(A)
at 838D- 83‘9A and 842C-H.
[22] Mr Botha, for
the appellant, argued that on the substantiated evidence:
"16. The
court a quo erred in failing to take into account that, when the
appellant was discharged from hospital at the end
of August 2006, he
was still unaware of the following facts:
16.1 That the
plaster of paris was put on too tightly.
16.2 That the
plaster of paris was not removed timeously.
16.3 That the
compression by the plaster of paris led to the ischaemia and the loss
of his thumb and the use of his left forearm.
16.4 Who was
responsible for the damages suffered and to be suffered by him.
16.5 Whether the
employees of the respondent played a role in the damages suffered and
to be suffered by him.
16.6 What caused
the problem that led to the operation and the eventual loss of his
left thumb and the use of his left forearm."
[23]
Counsel submitted that in the result the court
a
quo
should
have found that the respondent MEC failed to prove that the appellant
should be deemed to have had the requisite knowledge
of the
(necessary) facts by 06 August 2006. He urged upon us to set aside
that Court's finding that the prescription plea (the
first special
plea) succeeds and that we replace same with an order that it is
dismissed with costs. Counsel further submitted
that this is moreso
the case having regard to
Macleod
v Kweviva
2013
(6) SA 1
(SCA) at 6F (para 10) and
Gericke
v Sack
1978
(1) SA 821
(A) at 828B to the effect that the defendant MEC bears the
onus to prove that the appellant/plaintiff had adequate facts and
knowledge.
[24]
In
Minister of
Finance and Others v Gore NO
2007
(1) SA 111
(SCA) at 119 -120E (paras 17-19)
Cameron
and Brand
33A
held
authoritatively that:
"[17]
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 'comfortably'. The defendants
relied on these
authorities to contend that Rabie knew, at the latest
;
by the latter half
of 1995, that Louw and Scholtz had defrauded 30-ID out of its tender.
They pointed out that Rabie insistently
asserted under oath, starting
with his replying affidavit in the review (October 1994), and
repeated in his Anton Piller (January
1995) and liquidation
affidavits (April 1995), that fraud tainted the tender process. The
allegations of fraud then made found
expression, later, in the
particulars of claim.
[18] Rabie
certainly did cry fraud soon after 3D-ID lost the tender. But what
did he know when he did so? The defendants' argument
seems to us to
mistake the nature of 'knowledge' that is required to trigger the
running of prescriptive time. Mere opinion or
supposition is not
enough: there must be justified, true belief. Belief, on its own, is
insufficient. Belief that happens to be
true (as Rabie had) is also
insufficient. For there to be knowledge, the belief must be
justified.
[19] It is well
established in our law that:
(a) Knowledge is
not confined to the mental state of awareness of facts that is
produced by personally witnessing or participating
in events, or by
being the direct recipient of first-hand evidence about them.
(b) It extends to
a conviction or belief that is engendered by or inferred from
attendant circumstances.
(c)
On the other hand
,
mere suspicion not
amounting to conviction belief justifiably inferred from attendant
circumstances does not amount to knowledge."
[25]
In
Macleod v
Kweviva
(supra)
at para 9 Tshiqi JA reiterated the principle propounded in the Gore
judgment (above) when she stated:
"In
order to successfully invoke
s 12(3)
of the
Prescription Act either
actual or constructive knowledge must be proved. Actual knowledge is
established if it can be shown that the creditor actually
knew the
facts and the identity of the debtor. The appellant places no
reliance on actual knowledge but relies on constructive
knowledge.
Constructive knowledge is established if the creditor could
reasonably have acquired knowledge of the identity of the
debtor and
the facts on which the debt arises by exercising reasonable care
."
See
to the same effect
Van
Staden v Fourie
1989
(3) SA 200
(A) at 216D-E;
Truter
and Another v Devsel
[2006] ZASCA 16
;
2006
(4) SA 168
(SCA) at 174C-D. The commentary by the author J Saner on
Prescription in South African Law at 3 - 69 issue 19 quoted by
Mamosebo A3
and
reflected in para 17 of this judgment is consonant with the
aforegoing jurisprudence.
[26] Adv Van Rhyn SC
points out that there is some equivocation in the approach adopted by
the appellant and, I may add, indeed
of his counsel, on whether the
provisions of
s 13(l)(a)
of the
Prescription Act are
being invoked.
This provision speaks to an impossibility which prevents a plaintiff
from instituting an action within the prescribed
three-year time
frame.
26.1 At para 91 of
his affidavit the appellant states (translated):
"While
I was in Hospital
,
and a month
thereafter
,
I had to visit
Kimberley Hospital daily where I had to spend hours waiting for my
wounds to be cleaned.
During these occasions it was
not possible for me to consult a lawyer in order to acquire
information to enable me to establish
whether I indeed have a claim
against the hospital."
26.2
At para 103 to 105 the appellant states: (translated):
"103.
However, I still did not know [during 26/6/2006 to 31/08/2006] nor
could I establish without the aid of the hospital
records and notes
on the file what caused my complications (problems) and who or what
was responsible for them.
104.
I submit with respect that, through the exercise of reasonable care,
I was only in a position to become aware of the requisite
facts
during January 2007: Provided (indien) the Legal Aid Board
requisitioned the hospital records
;
105. In
addition and of importance is the fact that the employees of the
Respondent (MEC) prevented me (my verhinder) to acquire
the relevant
knowledge because they denied my brother-in-law access to my file.
Even after my current attorneys of record requisitioned
the hospital
records, and threatened court action, it took more than a year to be
furnished with only part of such records.
106. I therefore
deny that I could have acquired the requisite knowledge before 05
August 2006 through the exercise of reasonable
care."
[27]
The hospital was well within their right to deny the appellant's
brother-in-law, Mr Isaac Kgone, access to the private records
of its
patient. Doctor/patient privilege applied. In addition the hospital
would have infringed the privacy and dignity of a patient,
which
conduct would have been unethical and actionable. The simplest,
easiest and cheapest measure to have been adopted was for
the
appellant to have sought personal access to his hospital records.
There is no explanation that he attempted to do so or if
not why not
or that the hospital was obstructionist. See
Lombo
v African
National
Congress
2002
(5) SA 668
(SCA) at 678H-679A whereat the Court stated:
"[25] The
physical detention of the appellant outside the Republic of South
Africa in circumstances in which he was prevented
from pursuing
personally any action arising from the alleged assaults and
maltreatment inflicted upon him, and totally denied access
to anyone
who could do so on his behalf'
r
amounted to his being
prevented by a superior force from interrupting the running of
prescription as contemplated by
s 13(l)(a).
Consequently, he had one
year from the time this impediment ceased to exist (his release from
detention and return to this country)
within which to institute
action in respect of all causes of action arising from the alleged
assaults and maltreatment to which
he was subjected during his
detention, and his property that was allegedly misappropriated. The
Act therefore made provision for
his situation to the exclusion of
the common law and the maxim invoked accordingly finds no
application. Unfortunately for the
appellant he failed to institute
action within the one-year period prescribed by s 13(1) and any
claims he might have had in respect
of the causes of action referred
to have consequently been extinguished by prescription."
See
also
Montsisi v
Minister of Police
1984
(1) SA 619
(A) at 638 A-D.
I am accordingly
satisfied that s 13(l)(a) of the Act finds no application by virtue
thereof that the appellant's movement was never
restricted, event
when he was hospitalised. He still had access to his family.
[28] Mr Van Rhyn has
argued, convincingly in my view, that without the aid of the hospital
records counsel, as instructed by the
appellant, was able to settle
the Particulars of Claim and deal with the following ingredients of
the Claim:
28.1 The contract
between the hospital and the appellant;
28.2 The negligent
breach of that contract by the employees of the MEC;
28.3 The causation
issue; and
28.4 The damages
suffered under the various heads.
See
Harms: Amler's Precedents of Pleadings, 7th Ed at pp276 and 277. See
also
Evins v
Shield Insurance Co Ltd
(supra)
at 838H- 839A.
[29] The hospital
records consist of only five pages which do not add substantively to
what the appellant already knew. Demonstrative
of this assessment is
that in essence the only addition to appellant's Particulars of Claim
by way of amendment are paras 26.6
- 26.10 which allege:
"26.6
Deur nie, alternatiewelik
,
nie betyds die
gips te verwyder nie.
26.7
Deur nie,
alternatiewelik
,
nie betyds die
intree van Ischaemie te diagnoseer nie.
26.8 Deur nie,
alternatiewelik, nie betyds die Ischaemie te behandel,
alternatiwelik, effektief te behandel nie.
26.9 Deur nie die
Eiser behoorlik te ondersoek nie.
26.10 Deur nie
betyds die korrekte toepaslike behandeling op Eiser toe te pas nie."
See
Geldenhuvs NO v
Diedericks
2002
(3) SA 674(0)
at 681D-E whereat Wright J stated:
"Alhoewel
bogemelde beslissing [Van Staden vs Fourie 1989(3) SA 200 (A) at
216C-E] nie op deliktuele aanspreeklikheid betrekking
het nie, is dit
ook duidelik uit die toepassing van bogemelde beginsels dat 'n
dagvaarding wat sekere gronde van nalatigheid (wat
opsigself slegs
die juridiese afleiding van sekere feite behels) uiteensit, na die
verstryking van die verjaringsperiode (en selfs
ten tyde van die
verhoor) gewysig kan word om meerdere of ander gronde van nalatigheid
uiteen te sit."
[30]
In
Genicke v
Sack
1978
(1) SA 821
(A) at 832 A-D
Diemont
JA
observed:
"In the
light of the evidence that appellant's injuries were of a
comparatively minor nature I see no good reason why she should
not
then and there have asked the respondent who he was or, if she felt
too perturbed to speak to him personally, why she should
not have put
the same question to the two uniformed club officials who arrived on
the scene within minutes of the occurrence. Moreover
she could at any
time later in the afternoon have asked her husband or her son the
same question or have asked them to make inquiries
at the club house
which was only 200 or 300 yards away. It does not seem to me that
this was asking too much of appellant or causing
her any hardship.
The Act merely requires the creditor to seek such knowledge by the
exercise of reasonable care; she is not required
to issue summons -
she is given a generous three years in which to institute
proceedings. AH that she is called on to do is to
ask one question to
establish identity and not to be content to play a purely passive
roll. If she could have acquired this knowledge
by acting diligently,
her inertia, ineptitude or indifference will not excuse her delay.
The creditor who
fails to exercise the reasonable care prescribed by the Act must pay
the penalty for he is then deemed to have
acquired the knowledge
necessary for the debt to become due and for prescription to begin to
run."
[31]
In
Gunase v
Anirudh
2012
(2) SA 398
(SCA) at 402B-403J (paras 14-20) the Supreme Court of
Appeal held that a plaintiff cannot postpone the commencement of
prescription
through his/her own inaction.
[32]
I endorse the comments by
Mamosebo
AJ
that
the appellant and Legal Aid South Africa (Kimberley) must sort out
this unfortunate situation between themselves. She observed:
"41.
I do not see any point why the Legal Aid Board attorneys invited the
plaintiff to their offices on numerous occasions.
Clearly a lot of
nonchalance was displayed. In one of the letters informing him of
progress in the matter dated 17 April 2008 and
marked Annexure
’
I', the Legal Aid Board
stated that the subject-matter was "RE: Your matter: divorce".
The plaintiff's matter before them
was about medical negligence and
not divorce. This is uttely ridiculous even for a candidate attorney.
On the facts before me my
sense is that they did not cover themselves
in glory. It is undesirable at this stage to say more on this aspect
because the Legal
Aid Board is not a party to these proceedings. See
Mazibuko v Singer
1979
(3) SA 258
(W) in which Colman J said at 261 C:
'In the carrying
out of his contractual obligations the defendant was obligéd
(either personally or through others) to exercise
knowledge, skill
and diligence to be expected of an average practicing attorney. (See
Mouton v Die Mynwerkersunie
1977 (1) SA 119
(A) at 142-3 and
authorities there cited). It is the plaintiff's case that the
defendant fell short of that standard.'"
[34] It follows that
the appeal cannot succeed.
ORDER
The appeal is
dismissed with costs.
F DIALE KGOMO
JUDGE PRESIDENT
High Court of South
Africa
Northern Cape
Division, Kimberley
I concur.
H J LACOCK
JUDGE
High Court of South
Africa
Northern Cape
Division, Kimberley
I concur.
B M PAKATI
JUDGE
High Court of South
Africa
Northern Cape
Division, Kimberley
On
behalf of the Applicant:
Adv
C H BOTHA
ELLIOTT MARIS
WILMANS & HAY
On
behalf of the Respondent
:
Adv A J R VAN RHYN
SC
OFFICE OF THE STATE
ATTORNEY