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[2024] ZAECBHC 8
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N.S v Member of the Executive Council, Department of Health, Eastern Cape (438/2023) [2024] ZAECBHC 8 (7 May 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION, BHISHO]
CASE NO.: 438/2023
In the matter between: -
N[...]
S[...]
PLAINTIFF
and
MEMBER OF THE
EXECUTIVE COUNCIL,
DEPARTMENT OF HEALTH,
EASTERN CAPE
DEFENDANT
JUDGMENT
NORMAN J:
[1]
The plaintiff instituted a damages claim in both her personal
capacity and in her
representative capacity on behalf of her minor
child, IS. She alleged negligence on the part of the employees
of the defendant
when rendering medical treatment to her on 14 March
2015, at the Cecilia Makiwane Hospital, during labour and birthing
process
of her baby which resulted in her baby suffering from
permanent cerebral palsy. She claimed a total of R28 million.
On behalf
of the minor child she claimed R27 million for future
hospital care, medical and related expenses; future loss of earnings,
general
damages and for caregivers for the minor child. She also
claimed an amount of R1 million, which she claims for special and
general
damages suffered by her personally.
[2]
Defendant pleaded denying liability and raised two special pleas in
relation to the
plaintiff’s personal claim. These proceedings relate to
the determination of those special pleas.
Statutory Notice
special plea
[3]
The first special plea is that the plaintiff failed to comply with
the provisions of section
3(1)(a) of the Institution of Legal
Proceedings Against Organs of State Act 40 of 2002 (“the Act”).
The complaint is
that in terms of the Act, a creditor must give an
organ of state notice in writing of his intention to institute legal
proceedings
within six (6) months from the date on which the debt
became due. The defendant alleged that the statutory notice was not
served
within the six (6) months period as prescribed by the Act. On
that basis the defendant contended that the plaintiff is precluded
from instituting the action against her.
Prescription of the
plaintiff’s personal claim
[4]
The second special plea is that of prescription. The defendant
alleged that the plaintiff’s
claim for damages against the
defendant, in her personal capacity, has prescribed because it
related to the events that occurred
on or about 14
th
day of March 2015 at the Cecilia Makiwane Hospital, East London,
Eastern Cape, when the employees of the defendant attended to
and or/
administered treatment to the plaintiff . The defendant contends that
the three (3) year period within which the plaintiff
ought to have
issued the summons had lapsed. On that basis the defendant prayed
that the plaintiff’s personal claim be dismissed
with costs.
Plaintiff’s
replication
[5]
Plaintiff replicated to the special pleas and denied both the
prescription and the
non- compliance with the statutory notice
pleas. She stated that she only became aware of the debtor on
22 May 2023 when
she consulted with her attorneys of record.
She contended that the three-year period would only expire on 22 May
2026. After
consulting with her attorneys a statutory notice was
served on the Head of Department for Health. She attached a copy of
the relevant
notice dated 26 May 2023 and proof of service by email
on 30 May 2023. She prayed for the dismissal of the
special
pleas.
Hearing proceedings
[6]
Mr Bodlani SC together with Mr Zilwa appeared for the plaintiff. Mr
Rili appeared
for the defendant. Mr Rili applied for the
separation of the special pleas from the merits. That application was
consented
to by Mr Bodlani and was accordingly granted. Mr Rili
submitted that because the defendant had raised the two special pleas
it bore the onus to allege and prove both prescription and the non-
compliance with the statutory notice. The parties further agreed
that
since the facts necessary to prove prescription will have a bearing
on the statutory notice special plea, the defendant’s
success
on the prescription point would also resolve the statutory notice
special plea in her favour, and the converse would apply.
Defendant’s
evidence
[7]
Defendant led the evidence of Ms Ntombokuqala Zangqa. She has been
employed by the Department
of Health, Eastern Cape since 2014. She
is based at the Cecilia Makiwane Hospital (“the hospital”)
as an Assistant
Director: Patient Administration. She has held
that position since 2019. Her duties entail, amongst others, handling
of the
requests from various persons for documentation and also
attending to the releasing of such documents to the requesters. She
testified
that she received the first request on behalf of the
plaintiff from VZLR Attorneys on 27 May 2019. According to the
register of
the hospital the requested medical records on behalf of
the plaintiff were collected on 22 May 2020 by VZLR attorneys.
It appeared on the records that although VZLR attorneys were informed
on 19 November 2019 that the records were ready for collection
they
collected them only on 22 May 2020.
[8]
She testified that she never received a request from the plaintiff’s
attorneys
of record, S. Booi & Sons Attorneys. It was put to her
that the plaintiff alleged that she only became aware of the debtor
on 22 May 2023 when she consulted with her attorneys of record. Her
response was that the plaintiff was definitely correct that
she would
have become aware of the debtor only during May 2023. That was
the end of her evidence. There was no cross- examination
of this
witness by Mr Bodlani. The defendant closed her case. Plaintiff also
closed her case.
Submissions
[9]
Mr Rili submitted that in the light of the concession made by the
defendant’s
witness, Ms Zangqa, that the plaintiff only became
aware of the debtor only in May 2023, he was leaving the matter in
the hands
of the court.
[10]
Mr Bodlani submitted that the court must has regard to the 22 May
2023 date, conceded by the
defendant’s witness, and the
registrar’s stamp on the combined summons which bears 06 July
2023, as the
date of institution of the action.
Those dates, he submitted, demonstrate that the claim was instituted
within the 3 year
period and had thus not prescribed. He further
submitted that in the light of the concession made by the defendant’s
witness
and the agreement reached by the parties on the statutory
notice point, the court should dismiss both special pleas with costs.
[11]
Thereafter the court issued an order dismissing both special pleas
with costs, such costs to
include costs occasioned by the employment
of two counsel. The reasons for the order follow hereinunder.
Discussion
[12] There
is evidence of one witness Ms Zangqa. Her evidence remains
uncontroverted.
She gave direct evidence about matters that
fall within her duties as an employee of the defendant. I am
satisfied that she gave
reliable and satisfactory testimony. I
accordingly accept her evidence.
[13]
Section 11(d) of the Prescription Act 68 of 1969 (“the
Prescription Act&rdquo
;) provides that save where an Act of
Parliament provides otherwise, the period of prescription for any
other debt shall be three
(3) years. Those are the debts that
do not fall within the provisions of section 11 (a), (b), or (c).
In the plaintiff’s
case and looking at the nature of the debt,
the period of prescription is three years.
[14]
As a general rule, prescription begins to run as soon as the debt is
due
[1]
. It is therefore expected
that a debtor would immediately claim the debt from the creditor in
legal proceedings and the creditor
would be expected to perform
immediately
[2]
. A debt will
prescribe after a three (3) years unless various circumstances
provided for in,
inter
alia
,
section 13
of the
Prescription Act, apply
. In this case none of those
circumstances find application.
[15]
A debt, whether
ex contratu, ex delicto
or otherwise is not
deemed to be due until the creditor has knowledge of the identity of
the debtor and of the facts giving rise
to such debt provided that a
creditor who could have acquired the knowledge by exercising
reasonable care is deemed to have such
knowledge.
Section
12(3)
of the
Prescription Act 68 of 1969
provides:
“
12
When prescription begins to run
(1)
. . . . .
(2)
. . . . .
(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.”
[16]
It is for the party that raises prescription to allege and prove the
date on which the creditor
acquired knowledge of the debtor’s
identity and the date on which the creditor acquired knowledge of the
facts from which
the debt arose. The word ‘debt’ does not
refer to the cause of action but more generally to the claim. The
defendant
may, in the alternative allege and prove the date on which
the creditor could with the exercise of reasonable care have acquired
the relevant knowledge
[3]
.
[17]
In this case, the defendant’s witness conceded that the date
alleged by the plaintiff,
22 May 2023, as the date when she acquired
knowledge of who the debtor was, was correct. It is, in my view, apt
to employ the maxim:
“
Cadit quaestio
”.
That date is crucial in both the determination of the
prescription of the three year period and the six
months period for
the service of the statutory notice.
[18]
In
Mothupi
v MEC, Department of Health, Free State
[4]
Leach JA writing for the court found as follows the court dealt with
the object of the provisions of
section 3
of Act 40 of 2002 Leach JA
stated at paragraph 12:
“
[12] But
more importantly, the respondent does not allege that it has suffered
any prejudice. The object of a provision such
as s 3 is to enable the
State, a large and cumbersome organisation, to investigate claims so
as to consider whether to settle or
compromise a claim before costs
escalate unnecessarily, or to properly prepare its defence –
which may be frustrated if it
is unable to investigate relatively
soon after the alleged incident occurred. In the present case,
however, the identity of the
medical practitioner who administered
the spinal anaesthetic which the appellant alleges led to her
paraplegia, is not only known
but an affidavit from her, in which she
disputes any negligence on her part, has been filed of record. In
these circumstances,
the respondent cannot allege that the underlying
purpose of the notice provisions has not been met or that it has been
prejudiced
by the lack of receiving notice.”
[19]
Ms Zangqa did not allege that the defendant suffered any prejudice
whatsoever. The concession
made went to the heart of the issues to be
determined and it materially affected the outcome of the special
pleas. Absent information
that contradicted the facts stated by the
plaintiff in the replication and in the light of the concession made
under oath, I am
satisfied that the defendant failed to discharge the
onus resting on her. I also find that the defendant failed to prove
that the
plaintiff’s personal claim had prescribed. It follows
that, (in line with the agreement between the parties and taking into
account the concession made and the date when the notice was issued),
the defendant failed to prove that there was non-compliance
by the
plaintiff with the provisions of section 3(1)(a) of Act 40 of 2002.
In the result, both special pleas raised by the defendant
must fail.
ORDER
[20]
I accordingly make the following Order:
1.
The defendant’s special plea
of prescription is dismissed with costs.
2.
The defendant’s special plea
in relation to non-compliance with the provisions of section 3(1)(a)
of the Institution of Legal
Proceedings Against certain Organs of
State Act 40 of 2002, is dismissed with costs.
3.
Such costs shall include costs
occasioned by the employment of two (2) counsel.
T.V NORMAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the PLAINTIFF:
ADV
BODLANI SC with ADV ZILWA
Instructed
by:
S.
BOOI & SONS ATTORNEYS
50
STEWART DRIVE
BEREA
EAST
LONDON
REF:
S17/03/21
TEL:
043 721 1701
EMAIL:
sbooi@telkomsa.net
c/o
:
LUVUYO
SOLVERN ATTORNEYS
OFFICE
NO.2
1
ST
FLOOR, OLD KING THEATRE BUILDING
KING
WILLIAMS TOWN
For
the DEFENDANT :
ADV
RILI
Instructed
by:
STATE
ATTORNEY
OLD
SPOORNET BUILDING
17
FLEET STREET
EAST
LONDON
REF:
491/23-P2 (MR MOSIA)
c/o
:
NO.
32 ALEXANDRA ROAD
KING
WILLIAMS TOWN
Matter
heard on:
06
MAY 2024
Judgment
Delivered on:
07
MAY 2024
[1]
Santam
Ltd v Ethwar
[1999]
1 ALL SA 252 (A); 1999 (2) SA 244 (SCA).
[2]
See
Uitenhage
Municipality v Moloi
1998 (1) ALL SA 140 (A); 1998 (2) SA 735 (SCA).
[3]
See
Amler’s Precedents of Pleadings page 294; see also
Drennan
Maud & Partners v Town Board of the
Township of Pennington
1998
(2) ALL SA 571 (SCA); 1998 (3) SA 200 (SCA).
[4]
Mothupi
v MEC, Department of Health, Free State
(20598/2014)
[2016] ZASCA 27
(22 March 2016).