IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No.:6267/2019
In the matter between:
LOUIS SAMUEL PLAATJIES Plaintiff
and
MELOMED PRIVATE HOSPITALS t/a
GATESVILLE PRIVATE HOSPITAL First Defendant
DOCTOR WILLIAM DDAMULIRA Second Defendant
_____________________________________________________________________
JUDGMENT IN SPECIAL PLEA OF PRESCRIPTION
DELIVERED ELECTRONICALLY ON 23 SEPTEMBER 2024
_____________________________________________________________________
MANGCU-LOCKWOOD, J
A. INTRODUCTION
[1] The second defendant (“Dr Ddamulira”) has raised a special plea of prescription
against the medical negligence claim of the plaintiff which was initially instituted on
28 March 2019 only against the first defendant (“the hospital”). On 14 April 2021,
Dr Ddamulira was joined as second defendant pursuant to a joinder application which
was granted by th is court unopposed, and thereafter amended particular s of claim
were delivered on 3 May 2021. The hospital did not participate in the se special plea
proceedings, and accordingly, an y reference to the ‘parties’ is a reference to the
plaintiff and Dr Ddamulira.
B. THE FACTS
[2] In terms of the agreed statement of facts between the parties, t he following facts
are common cause . On 4 August 2016 the plaintiff was admitted to the hospital for
treatment of a gunshot wound which he sustained whilst on duty as a police officer. He
was admitted to the casualty unit at approximately 03 h26, and after an X-ray
examination which indicated that a CT scan should be considered , he was admitted
into the surgical ward for further assessment, after which he was referred to Dr
Ddamulira telephonically, still on 4 August 2016. It is further common cause that Dr
Ddamulira assessed the plaintiff at 7h30 on 4 Augus t 2016, and requested a CT scan
which was performed later that morning.
[3] At approximately 4h00 on 5 August 2016 the plaintiff was transferred to the IC U
for preoperative resuscitation and stabilization, where he was to remain until 15
September 2016. Between 5 August 2016 and 18 August 2016 , he was sedated,
intubated and ventilated.
[4] On 5 August 2016 at approximately 7h30 Dr Ddamulira performed an exploratory
laparotomy on him in the hospital’s theatre. On 7 August 2016 Dr Ddamulira returned
the plaintiff to theatre and performed a relook laparotomy . On 16 August 2016 another
doctor performed a right bronchoscopy on him. On 1 September 2016, Dr Ddamulira
performed a reverse ileostomy pr ocedure, after which the plaintiff was transferred to
Intercare for rehabilitation and, was eventually discharged on 23 September 2016.
[5] After his discharge, o n 1 October 2016, the plaintiff attended a follow -up
consultation with Dr Ddamulira at his private rooms which are located at the hospital,
and confirmed that he was receiving physiotherapy. On that occasion he complained of
some itching and headaches. After the consultation, he was discharged from the care
of Dr Ddamulira.
[6] On 6 July 2017, the plaintiff again consulted with Dr Ddamulira at his private
rooms, where a hernia was diagnosed , and Dr Ddamulira performed an incisional
hernia repair. On 18 July 2017, Dr Ddamulira removed the plaintiff’s staples and then
again discharged the plaintiff from his care.
[7] On 10 May 2018, the plaintiff consulted Dr Ddamulira again at his private rooms
with complaints of chronic heartburn and abdominal cramps. A CT scan was performed
on 20 May 2018 , and o n 25 May 2018, Dr Ddamulira performed an inc isional hernia
repair and a cholecystectomy (gall bladder removal) on the plaintiff at the hospital. On
30 May 2018 the plaintiff was discharged from follow -up as an outpatient. On 5 June
2018, the plaintiff’s staples were removed by Dr Ddamulira. The plaintiff was due for
another follow-up at Dr Ddamulira's rooms on 3 July 2018, but never returned.
C. THE CLAIM
[8] In essence, t he plaintiff claims that, after being assured by the said doctor on
4 August 2016 that “the bullet had gone straight through” , he was kept in the surgical
ward without proper monitoring, during which time his sugar levels spiked to
dangerous levels on account of his diabetic stat us. As a result, on 6 August 2016 he
developed septicaemia which caused his kidneys to start failing, and he was taken to
ICU where it was discovered he had suffered intestinal damage. According to him, as a
result of the complication s he was placed in a medically -induced coma for 17 days ,
and since the incident he has had to undergo 3 further surgeries to solve the problems
that ensued from his admission and subsequent poor treatment.
[9] The following was stated in his original particulars of claim:
“7.3 The plaintiff upon arriving at the surgical ward, was assessed by the
Doctor on duty (whose name and further particulars are unknown to
the plaintiff), this assessment was done without the use of X-rays or
scans, but merely by pressing on the plaintiff’s stomach.
7.4 The plaintiff was then informed by the above mentioned Doctor that
he will be fine as the bullets went straight through.”
[10] In the amended particulars, the allegedly unknown doctor on duty was identified
as Dr Ddamulira, and the same averments stated in paragraph 7.3, 7.4 and 8 .1 to 8.3
below are repeated as against him.
[11] As regards negligence, the original and the amended particulars plead identical
averments against the hospital and alternatively Dr Ddamulira, as follows:
“8.1 They failed to ensure correct and sanitary working conditions during
the treatment of the plaintiff;
8.2 They failed to take the necessary steps and/or to provide the
necessary treatment in order to prevent the onset of further
infection in the plaintiff during and /or after completion of the
treatment;
8.3 They failed to properly alternatively time ously monitor the plaintiff’s
condition during his treatment and all admission.”
[12] Dr Ddamulira pleads that the cause of action arose more than three years prior to
the institution of the claim against him and accordingly that the claim has been
extinguished by prescription in terms of section 12(3) of the Prescription Act 68 of 1969.
He states that by 20 June 2017, the plaintiff knew his identity and was in possession of
all the facts from which the alleged debt arises, or ought by the exercise of reasonable
care to have obtained the knowledge of such facts.
[13] The plaintiff did not deliver a replication to the special plea. By mea ns of an
agreed statement of facts , the parties agreed to refer the issues arising in the special
plea to oral evidence. Dr Ddamulira and the plaintiff were the only witnesses who gave
oral evidence. Before considering the evidence, it is best to have regard to the relevant
case law.
D. THE RELEVANT LAW
[14] The commencement of extinctive prescription is dealt with in section 12 of the
Prescription Act which provides as follows:
“When prescription begins to run
(1) Subject to the provisions of subsections (2), (3) and (4),
prescription shall commence to run as soon as the debt is due.
(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.”
[15] As I have indicated, section 12(3) is the relevant provision in this case, and
specifically, that the plaintiff did not have has ‘knowledge of the identity of the debtor
and of the facts from which the debt arises’, although the former of these two exceptions
was abandoned, as discussed below.
[16] The parties agree that the second defendant bears the burden of proving when
the plaintiff acquired the knowledge in question, as set out in Gericke v Sack.1
[17] The commencement of the running of prescription in terms of section 12 is
determined with reference to the time when the debt is recoverable, that is, when the
creditor acquires a right to claim, and conversely, the debtor has the obligation to
perform.2
[18] In Truter and Another v Deysel the Supreme Court of Appeal stated that a debt,
including a delictual debt, is due for purposes of the Act, when –
“… the 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.”3
[19] A delictual debt is generally due as soon as a delictual cause of action arises. 4 In
turn, a ‘cause of action’ means “the combination of facts that are material for the plaintiff
to prove in order to succeed with his action. Such facts must enable a court to arrive at
certain legal conclusions regarding unlawfulness and fault, the constituent elements of a
1 Gericke v Sack 1978 (1) SA 821 (A) at 826H to 827D.
2 The Master v I L Back and Co Ltd and others 1983 (1) SA 986 (A) at 1004G.
3 Ibid at para [16]. This dictum was cited with approval in Links v Member of the Executive Council,
Department of Health, Northern Cape Province (CCT 29/15) [2016] ZACC 10; 2016 (5) BCLR 656 (CC);
2016 (4) SA 414 (CC) (30 March 2016) at para [31].
4 Loubser, Extinctive Prescription at page 80.
delictual cause of action being a combination of factual and legal conclusions, namely a
causative act, harm, unlawfulness and culpability or fault.”5
[20] As regards the combination of facts that a plaintiff must have, it was emphasised
in Links that the facts are those “facts which are material to the debt” 6 (the facta
probanda). A fact is a material fact if it would be necessary for a plaintiff to prove it, if
traversed, in order to support his or her right to judgment. The facts are accordingly
determined, as a point of departure, with reference to the constituent elements of the
plaintiff’s claim.
[21] It does not mean that the creditor must have knowledge of all the facts underlying
the cause of action as pleaded, or of all of the alleged facts as they appear from the
pleadings.7 The facts also do not include the evidence necessary to prove each fact
(the facta probantia). It does not comprise every piece of evidence which is necessary
to prove each fact, but every fact which is necessary to be proved.8
[22] Section 12(3) also does not require the creditor to have knowledge of any right to
sue the debtor nor does it require him or her to have knowledge of legal conclusions
that may be drawn from “the facts from which the debt arises”. 9 Knowledge that the
conduct of the debtor is wrongful or negligent, which is a legal conclusion and not a fact,
is not required before prescription begins to run. 10 Similarly, the presence or absence of
negligence is not a fact; it is a conclusion of law to be drawn by the co urt in all the
circumstances of the specific case. 11
5 Truter fn 10 at para [17]. See also Links supra fn 3 at para [32], and Loubser op cit at page 80.
6 Supra fn 3 para [32].
7 Drennan Maud and Partners v Pennington Town Board [1998] ZASCA 29; 1998 (3) SA 200 (SCA) at 212
F – H.
8 McKenzie v Farmers’ Co-Operative Meat Industries Ltd 1922 AD 16 at 23 and Evins fn 6 at 838 D – H.
See also Ascendis Animal Health (Pty) Ltd v Merck Dohme Corporation and others 2020 (1) BCLR 1 (CC)
at para [52].
9 Mtokonya para [36].
10 Mtokonya para [45].
11 Truter paras [19] and [47].
[23] Once a special plea of prescription is raised, there are two enquiries to be made,
although there may be some overlaps between the two. 12 First is the determination of
the primary facts, and secondly, of the knowledge or deemed knowledge thereof. This
means that once the facts from which the debt arose (the primary facts) have been
determined, the enquiry turns to the creditor’s knowledge of the primary facts.
[24] It must be borne in mind that prescription in the context of s 12(3) is aimed at
penalizing negligent inaction, rather than innocent inaction.13
E. EVALUATION
[25] As I have indicated, the plaintiff did not deliver a replication to the special plea.
Prior to his oral evidence, the only explanation for why he failed to timeously join Dr
Ddamulira as a party was that he did not know his identity. This was evident, firstly, from
the particulars of claim to which I have already adverted, where the previously unknown
doctor on duty was later identified in the amended particulars as D r Ddamulira, at
paragraphs 7.3, 7.4 and 8.1 to 8.3.
[26] The second source regarding the allegedly unknown identity of Dr Ddamulira was
the affidavit supporting the application for joinder, which was deposed by the plaintiff’s
attorney of record Mr Jeffrey George Braysher, and which stated as follows:
“7. On the 22 nd of January 2020 the [hospital] delivered a letter to
ourselves via email indicating that they had undertaken
investigations into the matter and had obtained reports that [Dr
Ddamulira] is in fact the negligent party in the action as he was the
surgeon and treating physician of the plaintiff at their
establishment at the time and that they would obtain copies of the
expert reports in due course. A copy of the said letter is annexed
12 MEC for Health, Western Cape v M C [2020] ZASCA 165 (SCA) paras 6 -7.
13 Macleod v Kweyiya 2013 (6) SA 1 (SCA) (‘Macleod’) para 13.
hereto as Annexure “B”, I do not attach the reports hereto as they
were provided to our offices on a “without prejudice” basis.
8. It was upon receipt of the abovementioned correspondence that it
came to our attention that [Dr Ddamulira] is not employed by the
[hospital] and is a separate “debtor” for the purposes of the
Prescription Act or otherwise, as the incident occurred on 4 August
2016. The [hospital] has subsequently, on or about the 20 th of July
2020, filed its plea in which they clearly plead that [Dr Ddamulira]
was not under their employ at the time of the incident, a copy of
which is attached hereto as annexure “C”.
9. The gist of why I did not originally cite [Dr Ddamulira] as the
Second Defendant in the matter is that [Dr Ddamulira] was not
known to the plaintiff at the time of the treatment received or
thereafter and most logically, it appeared that [Dr Ddamulira] was
in the employ of the [hospital] and the negligence stemmed from
the post -operative care, however mistaken the plaintiff may have
been.
10. Upon receiving the [hospital] plea, it was observed that [Dr
Ddamulira] is a negligent party in the matter.”
[27] Although it was not part of the special plea p leadings, the joinder affidavit was
confirmed under oath and deposed, no less, by an officer of court, namely the attorney
of record representing the plaintiff. Despite argument to the contrary, it constitutes
relevant evidence under oath, which the Court is entit led to take into account.
Otherwise, it would make a mockery of the administration of justice as well as the
profession of being an attorney if a deponent, no less a legal representative, were
permitted to disavow averments he made under oath, without more , because it no
longer suited his case . In any event, there was no attempt in these proceedings by the
said legal representative to amend or comment on the allegations contained in the
joinder affidavit - whether by written or oral evidence, if they so wis hed - once its
contents were highlighted during the examination of both witnesses and during opening
and closing argument in these proceedings. And upon my enquiry, I was informed that
the said legal representatives continue to represent the plaintiff in these proceedings.
[28] What appears from paragraph 9 of the joinder affidavit is that one of the reasons
Dr Ddamulira was not originally cited as the second defendant is that h is identity was
not known to the plaintiff at the time of the treatmen t received by the plaintiff or
thereafter. The remaining reasons cited in the joinder affidavit are dealt with later, at the
appropriate time. The plaintiff’s version of the alleged unknown identity of Dr Ddamulira
was not withdrawn or amended before these proceedings, whether by means of a
replication or by clarification in the agreed statement of facts between the parties. In
fact, even in the agreed pre-trial minute between the parties which was signed on 8 July
2024 shortly before the hearing, the issue of the alleged unknown identity of Dr
Ddamulira was taken into account in the discussion regarding who bore the onus and
duty to begin in these proceedings.
[29] As a result, Dr Ddamulira gave detailed oral evidence regarding his interactions
with the plaintiff, both before and after his discharge on 23 September 2016, to show
that his identity was well-known to the plaintiff. With the evidential support of his medical
notes, he testified that the plaintiff continued to attend at his practice for various reasons
and treatment, notably on 20 June 2017 when a n incisional hernia was diagnosed, and
surgical repair thereof was conducted on 6 July 2017 . There were also other visits by
the plaintiff beyond that date, culminating on 5 June 2018 , which Dr Ddamulira points
out was some ten months before the summons was issued. It was during the cross
examination of Dr Ddamulira that the plaintiff disavowed any reliance on the alleged
lack of knowledge of his identity, and later during the plaintiff’s evidence in chief .
Accordingly, it is taken as common cause in this judgment that the plaintiff was aware of
the identity of Dr D damulira when he instituted his claim on 28 March 2019 , although
this issue is later addressed in relation to another aspect of this case.
[30] Before examining the facts from which the debt arises , it is necessary to set out
some relevant aspects arising from the oral evidence , which essentially augment the
agreed set of facts between the parties. The first is a visit by the plaintiff to Dr Ddamulira
on 20 June 2017 when an incisional hernia was diagnosed, and surgical repair thereof
was conducted on 6 July 2017, with the staples removed on 18 July 2017. The next visit
thereafter was on 10 May 2018, where an incisional hernia and gall stones were
diagnosed, and surgery was performed on 25 May 2018, with the staples removed on
5 June 2018. During the cross examination of Dr Ddamulira, i t was disputed that the
plaintiff returned on 3 July 2018 for a follow up examination. There was also undisputed
evidence that a third hernia repair was conducted upon the plaintiff on 25 July 2019,
although it was at a different hospital and by different medical staff.
[31] In determining th e material facts that sustain the plaintiff’s claim , t he primary
indicators are his pleadings. At paragraphs 7.3 and 7.4 of both the original and
amended particulars, the plaintiff sets out the averments sustaining the alleged wrongful
conduct which, in summary is firstly that on 4 August 2016 the doctor on duty assessed
him without the use of X -rays or scans, but merely by pressing on his stomach, and
thereafter assur ing him that the bullet had gone straight through. The exact same
averments are made in the amended particulars, save that Dr Ddamulira is named as
the doctor on duty. However, he states that contrary to the initial advice he had received
from Dr Ddamulira, by 6 August 2016 he had developed septicaemia which caused his
kidneys to start failing, and he was taken to ICU where it was discovered he had
suffered intestinal damage.
[32] According to the plaintiff, it was as a result of the above complications that he
was placed in a medically-induced coma for 17 days. The parties agree that the plaintiff
was sedated - what the plaintiff refers to as a medically -induced coma, which is
disputed - until 18 August 2016. By then, the plaintiff had undergone an exploratory
laparotomy on 5 August 2016 and a relook laparotomy on 7 August 2016. In addition, a
reverse ileostomy was conducted on 1 September 2016 before his discharge on 23
September 2016.
[33] The above facts are the essence of the plaintiff’s cause of action as pleaded, and
they indicate that his cause of action arises from events that occurred during his
hospitalization between August and September 2016. Seen in this light, the events that
occurred beyond his discharge date of 23 September 2016 amount to evidence
necessary to prove the essential facts, which does not amount to essential facts for the
claim.14 It must be remembered that legal conclusions, such as the delictual elements of
negligence, are not material facts. On the plaintiff’s own version, his entire experience of
hospitalization from 5 August 2016 was contrary to the initial advice that he was given
by Dr Ddamulira on 4 August 2016 - that he had only sustained what is colloquially
referred to as a ‘flesh wound’ - and accordingly, by the time he was discharged there
were indications of complications.
[34] However, the facts indicate that there were subsequent complications, although
the exact time of their onset is not clear. What is common ground is that the plaintiff
returned to Dr Ddamulira almo st a year later , on 20 June 2017, complaining of
discomfort in his abdomen , and an incisional hernia was diagnosed . Dr Ddamulira
explained during his evidence that the incisional hernia would probably be caused by
the abdominal sheath not being able to hold together after stitching and could also be
caused by weight problems of the patient , bearing in mind that the plaintiff in this case
was admitted with a gunshot wound . The plaintiff confirmed the diagnosis of hernia that
Dr Ddamulira gave on that day, and that it needed repair.
[35] It is relevant in this regard that at paragraph 7.9 of both the original and the
amended particulars, the plaintiff states that, since his hospitalization in August and
September 2016, he has had to undergo three subsequent surgeries, namely the hernia
repairs. This is another indication that the hernia repairs did not constitute material facts
and that they were consequences thereof.
14 See Truter v Deysel paras 17 and 20, and Mtokonya paras 44-45 and 50-51.
[36] Furthermore, the fact that the plaintiff returned to Dr Ddamulira on 20 June 2017
is a clear indication that, even in his mind he understood that there was a connection
between what he was now complaining about, namely the abdominal discomfort, and
his previous treatment. He confirmed as much in his evidence, in additio n to stating that
his workplace required him to return to the treating doctor in the case of an injury on
duty. It is significant that the hernia was diagnosed a year after his discharge.
[37] Given what I have set out above, I am of the view that, at the late st by 20 June
2017 the plaintiff was in possession of all the facts necessary for his claim , and that his
cause of action had matured . According to the plaintiff’s own evidence, from, at the
earliest 23 September 2016, and at the latest 20 June 2017, he knew the details of the
operations performed on him and that he had suffered harm. He also knew that the
hospital staff and Dr Ddamulira were required to exercise reasonable care and skill in
treating him. All the facts and information in respect of the operations performed on him,
specifically by Dr Ddamulira, and on which he pertinently relies for his claim, were
known, or readily accessible to him and his legal representatives as early as 20 June
2017. There are no new facts, within the contemplation of section 12(3), alleged by him
after that date.
[38] To apply what was stated in Links, by 20 June 2017 the plaintiff “had knowledge
of facts that would have led him to think that possibly there had been negligence and
that this had caused his hernia complications” 15. In the same case, the Constitutional
Court held that knowledge by the applicant of what had caused his condition was a
material fact that a litigant wishing to sue in a case such as this would need to know.16
[39] But unlike in Links, there is no evidence here that the plaintiff received any
additional or different medical information regarding his medical condition beyond June
2017. The fact that he was subsequently diagnosed with an incisional hernia on two
15 Links at para [45].
16 Links para [46].
subsequent occasions does not elevate those events to facta probanda . Rather, t hey
are facta probantia.
[40] The fact that there are no new material facts that arose after 20 June 201 7 is
further indicated by the fact that , even after amendment of his pleadings, his cause of
action continues to rely on conduct that occurred during his hospitalization and
treatment between August and September 2016 . Moreover, the plaintiff’s pleadings
have never been amended to include any other material facts beyond 20 June 2017. In
fact, his case is pertinently that, the incisional hernia, which was first diagnosed in 20
June 2017, was a consequence of what had transpired a year prior. There is
furthermore no suggestion from the evidence that Dr Ddamulira prevented the plaintiff
from ‘coming to know of the existence of the debt’. Far from it, because the plaintiff
initiated the consultations with Dr Ddamulira on every occasion after his discharge ,
which took place without complaint.
[41] During his evidence, the plaintiff relied on two bases for only joining Dr Ddamulira
in 2021. The first is that it was not until his attorneys received a letter dated 22 January
2020, that he realized that Dr Ddamulira was not employed by the hospital . The letter,
which was from the hospita l’s legal representatives to the plaintiff’s legal
representatives, stated as follows in this regard:
“6. We further wish to point out, for the sake of clarity, that our client is
not responsible, vicariously or otherwise, for the conduct of [Dr
Ddamulira] or the treatment provided by him to your client. Dr
Ddamulira is an independent practitioner who is not employed by
our client.”
7. Regarding a joinder of Dr Ddamulira to these proceedings, in light of
our client’s expert opinions, it is not incumbent upon our client to
join him to the proceedings. The onus is on your client to pro ve
which party, if any, is responsible for his damages. We are satisfied
that the available expert evidence demonstrates that your client will
not succeed in proving that our client is liable for your client ’s
damages.”
[42] I do not find the plaintiff’s assumption that Dr Ddamulira was employed by the
hospital to be unreasonable. After all, all his encounters with Dr Ddamulira took place at
the hospital precinct , which is where the latter’s private rooms are located. And he
never personally received any medical bills from Dr Ddamulira since it was common
cause that they were sent directly to the Workman ’s Compensation and to his medical
aid.
[43] However, the plaint iff was legally represented from the time he instituted his
claim, and the summons was signed by counsel on his behalf . The alleged assumption
that Dr Ddamulira was employed by the hospital must therefore be attributed to the
plaintiff’s legal representatives. That this is so is supported by the contents of the joinder
affidavit, which was deposed by the plaintiff’s attorney, stating that “it came to our
attention that [Dr Ddamulira] is not employed by the [hospital]” . Although it is not
specified who is referred to by ‘our’ attention, it stands to reason that the deponent, who
is a legal representative, is included.
[44] There is otherwise no explanation provided for the circumstances under which
the assumption regarding the status of Dr Ddamulira’s employment came to be formed.
The issue is relevant for purposes of applying the proviso in section 12(3), that a
creditor shall be deemed to have knowledge of the identity of the debtor and of the facts
from which the debt arises if (s)he could have acquired it by exercising reasonable care.
The exercise of reasonable care by a lay litigant is not the same as that which may be
expected of a trained legal representative. Unlike the plaintiff who is not legally trained,
the legal represen tatives bore a duty to ascertain and thereafter advise their client
regarding who the correct party to sue is, which, in turn, requires reasonable care to be
taken when issuing summons. That issue remains unexplained.
[45] But, regardless of the recklessness of the assumption regarding the employment
status of Dr Ddamulira, the more fundamental question is whether the employment
status of Dr Ddamulira amounts to “the identity of the debtor and/or of the facts from
which the debt arises ” within the contemplation of section 12 (3) of the Prescription Act.
The case law indicates that it is not.
[46] Knowledge of the employment status of Dr Ddamulira amounts to knowledge of a
right to sue him. Section 12(3) does not require a creditor to have knowledge of a right
to sue the debtor.17 It is rather the facts which a creditor would need to prove in order to
establish the liability of the debtor that are required. The running of prescription is not
postponed until a creditor becomes aware of the full extent of its legal rights.18
[47] An important consideration in this regard is that in the original particulars, the
plaintiff sought relief only against the hospital in circumstances where it was claimed
that the hospital acted through its duly authorized employee s who were acting in the
course and scope of their employment, alternatively in fulfillment of the hospital’s
vicarious obligation.19 From a reading of paragraph 7.3 and 7.4 of the particulars, there
is no doubt that one of the individuals whose conduct and negligence is relied upon, is
that of Dr Ddamulira. It is he who is alleged to have conducted an assessment without
X-rays or scans and opined that the plaintiff would be fine. It is not unreasonable to
conclude from those averments that the intention , from the institution of the claim in
2019 was that that Dr Ddamulira should be held liable for that conduct. Why then did the
original particulars not seek liability against him on a jointly and severable basis? The
question is even more pressing when regard is had to the concession by the plaintiff
that he knew the identity and particulars of Dr Ddamuli ra when the papers were issued
in 2019.
17 Mtokonya v Minister of Police.
18 Minister of Finance and Others v Gore NO [2006] ZASCA 98; [2007] 1 All SA 309 (SCA); 2007 (1) SA
111 (SCA).
19 See paragraph 3 of the original and amended particulars of claim.
[48] In those circumstances, it is strange that liability was not alleged on the basis of
vicarious liability, on the basis of joint and several liability. In circumstances where, as
the plaintiff claims, the employment status of Dr Ddamulira was not known to him, that is
the course one would have expected of him and his legal representatives. The fact that
the plaintiff mistakenly believed that the hospital employed Dr Ddamulira does not
explain why the original claim was not sought against the hospital and its employees on
a jointly and severable basis. That, after all, is the point of joint and several liability in
circumstances involving an employer and employee.
[49] It would be different if this was an instance where liability of the perpetrator was
excluded by statutes, as was the case in MEC for Education, Kwazulu-Natal v
Shange20, where it was held that prescription could not commence running until the
creditor had knowledge of the fact that they cannot sue the perpetrator but must sue the
employer. Likewise, the facts of this case are distinguishable from an instance where
liability for one d ebtor relies on the finding of liability against another. 21 All of this lends
credence to the argument of Mr Brown who represents Dr Ddamulira that the failure to
institute the 2019 claim on a joint and several basis appears to have been an omission
by the plaintiff’s legal representatives, which remains unexplained.
[50] The other basis on which the plaintiff sought to rely on the letter of 22 January
2020 was by claiming that it was his source for the discovery of Dr Ddamulira ’s
negligence. A similar averment was made in the joinder affidavit, where it was stated
that the letter revealed that Dr Ddamulira was the negligent party in relation to the
plaintiff’s claim. During cross examination the plaintiff conceded that the letter says no
such thing . The concession was well -made, because the letter neither state s that Dr
Ddamulira was the negligent party in relation to the plaintiff’s claim, nor that the expert
reports had pointed to him as the negligent party.
20 MEC for Education, Kwazulu-Natal v Shange 2012 (5) SA 313 (SCA).
21 See for example WK Construction (Pty) Ltd v Moores Rowland & others 2022 (6) SA 180 (SCA).
[51] Ms Ipser, who represents the plaintiff sought to argue that paragraph 7 of the
joinder affidavit meant that the plaintiff’s attorneys had received expert reports which
indicated that Dr Ddamulira was in fact negligent. Firstly, paragraph 7 clearly states that
it was the letter received on 22 January 2020 that indicated that the hospital had
obtained reports to the effect that the Dr Ddamulira is in fact the negligent party in the
action. As I have already observed, there is no such statement in the letter. And
accordingly, the averment, which was made under oath by the plaintiff’s attorney, was
incorrect. What the letter did state at paragraph 3 was that the hospital’s expert reports
“are unwavering in their conclusions that our client and its nursing staff acted entirely
appropriately throughout your client’s hospitalization at its facility” . Similar statements
were made in paragraph 4 thereof. Later, at paragraph 8 the letter stated as follows:
“We are obtaining instruction from our client to provide your client with a
copy of the expert reports we have obtained, on a without prejudice basis,
to demonstrate that there is no culpability on its part.”
[52] It is clear from the above contents of the letter that the expert reports were not
attached to the letter of 22 January 2020. The re was no evidence regarding when the
expert reports were dispatched by the hospital to the plaintiff’s legal representatives.
Accordingly, to the extent that the plaintiff sought to rely on the letter of 22 January 2020
for when it discovered Dr Ddamulira ’s negligence, that was not established by the
evidence.
[53] Neither was the plaintiff’s allegation contained at paragraph 10 of the joinder
application, that he ‘observed’ Dr Ddamulira’s negligence from the hospital’s plea which
was delivered on 20 July 202 0. I note in any event that this averment did not go as far
as to claim that the negligence was discovered for the first time in that plea, but merely
that it was observed. The hospital’s plea does not support such a claim. As I have
already indicated, the deponent to the affidavit did not testify in these proceedings. The
plaintiff could not give any clarity in this regard. I note in any event that, despite the
plaintiff’s alleged discoveries in January and July 2020, the joinder of Dr Ddamulira was
only effected on 14 April 2021, and no explanation has been furnished regarding this
further delay.
[54] But yet again, the question that arises is whether the alleged discovery of
Dr Ddamulira’s negligence from the hospital, whether in January or July 2020,
constituted “facts from which the debt arises”. The case law is clear that the conclusion
of negligence from known facts does not constitute facts from which the debt arises
within the contemp lation of section 12(3) of the Prescription Act. 22 Neither do legal
conclusions which include issues of fault, wrongfulness or causation.23
[55] The next basis stated during the plaintiff’s oral evidence for his failure to
timeously join Dr Ddamulira concerns events that transpired during May 2018 whilst he
was in hospital for the repair of an incisional hernia and a cholecystectomy (gallbladder
removal). The plaintiff testified that he overheard a nurse called Mandla telling another
patient that he (Mandla) had been in trouble and nearly lost his job because of alleged
substandard nursing care that was accorded to the plaintiff in 2016, and the nurse had
been subsequently required to write a report of events surrounding the issue. The nurse
had not said anything further , and the plaintiff had not felt comfortable in asking any
questions because he had gained the impression that the nurse felt the freedom to
make th ose comments beca use he thought the plaintiff was sleeping. The plaintiff
testified that he understood this information to mean that there was possible negligence
concerning the treatment and care that he had received at the hospital during his
hospitalization in 2016. Furthermore, he had concluded from that conversation that
there may have been negligence on the part of the nursing staff, but he did not gain the
impression that Dr Ddamulira was implicated.
[56] I was informed that the plaintiff did not seek to rely on the contents of what he
overheard, but only sought to rely on the conversation for purposes of calculating
prescription, and accordingly the considerations of hearsay evidence do not directly
22 Trutter v Deysel 2006 (4) SA 168 (SCA) paras 19 and 20.
23 Mtokonya v Minister of Police 2018 (5) SA 22 (CC) paras 36, 44 to 45.
arise. What is relevant with regard to the timing of this conversation , according to the
timeframes agreed between the parties, is that it would have been between 25 and 30
May 2018. Then, after his discharge on 30 May 2018 the plaintiff attended a follow-up
consultation with Dr Ddamulira on 5 June 2018, whe re the staples were removed. The
plaintiff was due for another follow-up on 3 July 2018, and failed to present himself.
[57] In his evidence in chief the plaintiff stated that the reason he had not attended his
follow-up appointment on 3 July 2018 was because of what he had overheard in May
2018. However, during cross examination, he stated that this answer was a mistake. He
had forgotten to mention that, after his discharge on 30 May 2018, he had visited his
family General Practitioner (“GP”) who had advised him to obtain a second opinion, and
this is the reason he never returned to Dr Ddamulira on 3 July 2018. Much is made on
behalf of Dr Ddamulira regarding this change of versions. This is understandable,
because, by tendering the earlier evidence, the plaintiff sought to distance himself from
any further association with Dr Ddamulira after the alleged overheard conversation
involving the nurse.
[58] Even if the plaintiff’s changed version is true - that he rather visited a family GP -
it does not explain why he did not raise the issue with Dr Ddamulira on 5 June 2018
when he returned to have his staples removed, especially if he had no reason to believe
that Dr Ddamulira had caused played any part in the alleged substandard care. When
confronted with this question, the plaintiff claimed that Dr Ddamulira did not have a good
bedside manner. Even if that is true - and it is disputed on behalf o f Dr Ddamulira - the
plaintiff could not explain why he failed to make any further enquiries regarding the
alleged overheard conversation with anyone else, including the nurse in question. It is
relevant in this regard that the plaintiff explained that nurse Mandla had relayed the
overheard information because a neighbouring patient had enquired why the plaintiff
was “so popular amongst the nurses”. All the more reason to expect the plaintiff to have
delved further into the matter by approaching nurse Mandla after his discharge in May
2018, or any of the other nurses to whom he was popular. He could not explain why he
failed to follow up on the matter. He also could not confirm whether the alleged report by
nurse Mandla was requested by his legal representatives in preparation for the
institution of his claim. What is clear is that no mention of this issue is made in the
papers.
[59] I also observe that the plaintiff did not go as far as to allege that the family GP
had advised him that there had been wrongdoing, whether by the hospital or Dr
Ddamulira. Nor was there any evidence regarding whether a second opinion was
indeed obtained and what it was.
[60] Whether or not the plaintiff’s evidence is to be believed, there is no evidence that
he discovered anything during that stage which can explain why Dr Ddamulira was
belatedly joined as a defendant . In his own evidence , what occurred in May 2018 did
not lead him to believe that Dr Ddamulira had done any wrongdoing. This is also borne
out by the fact that there was no amendment to his pleadings to add reliance on the
allegedly overheard conversation, or an any alleged se cond opinion following
consultation with the GP. There was also no mention made of the alleged investigation
involving nurse Mandla in the papers. Th e issue was not even mentioned in the joinder
affidavit, which one would have expected if it was a reason for the late joinder.
[61] But even if Dr Ddamulira had been implicated in the allegedly overheard
conversation, or as a result of a second medical opinion resulting from the GP’s advice,
that would not have amounted to knowledge of material facts, but of negligence, which
amounts to a legal conclusion. The conclusion is therefore irresistible that n o material
facts, within the contemplation of section 12(3) of the Prescription Act, were discovered
by him during that period. I am accordingly of the view that the second defendant has
discharged its onus to e stablish the date on which the plaintiff obtained actual or
constructive knowledge of the debt was, at the latest, 20 June 2017.
[62] In c losing, I am alive to the provisions of section 34 of th e Constitution of the
Republic of South Africa 108 of 1996 , in terms of which everyone has a right to have
any dispute that can be resolved by the application of law decided in a fair public
hearing before a court or, where appropriate, another independent and impartial tribunal
or forum. It is not t he effect of this judgment to impede that right as regards the plaintiff
because his claim may continue against the hospital. In any event, what is clear from
the facts of this judgment is that the joinder of Dr Ddamulira was granted based on false
or incorrect averments, which have not been rectified, and which were made by an
officer of this Court.
[63] Not only is it in the interests of justice that such a situ ation should be rectified –
although admitted ly that is not the point of these proceedings , but there are also
considerations of fairness which must be taken into account , according to the express
provisions of section 34. Dr Ddamulira too is clothed with the rights accorded in terms of
section 34 . But most importantly, the very the purpose of section 12(3) of the
Prescription Act is to strike a fair balance between the need for a definite date beyond
which a person can no longer pursue their claim if they failed to act diligently, taking into
account t he need for legal certainty and finality 24, and the need to ensure fairness in
cases where a rigid application would result in injustice 25. I am of the view that it would
result in injustice if the claim against Dr Ddamulira were permitted to continue in the
circumstances of this case.
F. COSTS
[64] There is no reason why costs should not follow the result. The special plea of the
second defendant has been successful. It was argued that, since the cause for the
prescription appears to be based on advice given to the plaintiff by his legal
representatives to only sue the hospital instead of considering the joint and several
nature of the liability involved, that the plaintiff should not be mulcted with costs. At the
same time, it was also argued that, if the special plea should be unsuccessful the
plaintiff’s legal representatives should be ordered to pay costs de bonis propriis
because it was they who misled the second defendant ’s legal representatives into
24 Loubser op cit at p52.
25 Links op cit, para 26.
believing that the basis for the belated joinder was the alleged lack of knowledge of the
identity of Dr Ddamulira which was subsequently and belatedly abandoned during oral
evidence.
[65] I have considered th ese arguments. This matter has a lon g-running history, with
the amended particulars having been delivered in April 2021. Thereafter, there was
opportunity to amend the pleadings after consultation between plaintiff and his legal
representatives, via correspondence between the parties, or via replication by the
plaintiff. Furthermore, as I have already mentioned, even at pre-trial stage and when the
parties agreed to a statement of facts, the issue of the unknown identity of Dr Ddamulira
was not rectified. None of the allegations made in the joinder affidavit were ever sought
to be rectified or amended before these proceedings. Dr Ddamulira too is an individual
litigant who is entitled to not be p laced out of pocket for defending a claim, whose basis
was mostly abandoned at the eleventh hour.
[66] Nevertheless, I consider it unfair to award costs on a de bonis propriis against
the plaintiff’s legal representatives basis without affording the m opportunity to make
representations, and without warning that such costs were sought against them.
G. ORDER
[67] In the circumstances, the following order is made:
a. The second defendant’s special plea of prescription is upheld;
b. The plaintiff’s claim against the second defendant is dismissed;
c. The plaintiff is to pay costs of the second defendant on an attorney and client
scale.
___________________________
N. MANGCU-LOCKWOOD
Judge of the High Court