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[2020] ZASCA 165
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MEC for Health, Western Cape v M C (1087/2019) [2020] ZASCA 165 (10 December 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1087/2019
In
the matter between:
THE
MEC FOR HEALTH, WESTERN
CAPE APPELLANT
and
M
C RESPONDENT
Neutral
citation:
MEC
for Health, Western Cape v M C
(1087/2019)
[2020] ZASCA 165
(10 December 2020)
Coram:
VAN DER MERWE,
MOLEMELA and DLODLO JJA and SUTHERLAND and UNTERHALTER AJJA
Heard
:
23 November 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been
published
on the Supreme Court of Appeal website and released to SAFLII. The
date and time for hand-down is deemed to be 10h00
on 10 December
2020.
Summary:
Extinctive
prescription – s 12(3) of
Prescription Act 68 of 1969
–
involves two enquiries in respect of facts from which the debt arises
(primary facts) – first: determination of primary
facts –
second: ascertainment of when primary facts were known or should
reasonably have been known.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Baartman J sitting as
court of first instance):
The appeal is dismissed with costs.
JUDGMENT
Van der Merwe JA (Molemela and
Dlodlo JJA and Sutherland and Unterhalter AJJA
concurring)
[1]
On 8 July 2016, the respondent, Mr M C, instituted an action in the
Western Cape High Court, Cape Town against the appellant,
the Member
of the Executive Council for Health, Western Cape. The respondent
alleged that he had suffered damages in the amount
of R4 750 000
as a result of the negligence of the medical staff employed by the
appellant at specified provincial hospitals.
In a special plea, the
appellant contended that the respondent’s claim had prescribed
and that he had failed timeously to
comply with the provisions of s 3
of the Institution of Legal Proceedings Against Certain Organs of
State Act 40 of 2002. By agreement,
Baartman J determined the special
plea separately. She dismissed it with costs, but granted leave to
the appellant to appeal to
this court.
[2]
The following common cause facts provide the background for the
adjudication of the appeal. During May or June 1998, the respondent
underwent a surgical procedure at Somerset Hospital to drain a rectal
abscess. For this purpose, a spinal anaesthetic was administered.
Subsequent to this procedure, the respondent experienced pain in the
area where the spinal anaesthetic had been administered and
found it
difficult to walk. During 1998 and 1999 he attended Tygerberg
Hospital on various occasions for treatment of these symptoms.
On 15
July 1999, the respondent underwent further surgery at Tygerberg
Hospital, where a T7/T8 laminectomy was performed. Following
this, he
was treated at Karl Bremer Hospital for a period of three months.
However, his neurological condition continued to deteriorate.
Despite
the performance of a further surgical procedure at Tygerberg Hospital
on 27 September 2005, when a cysto-peritoneal shunt
was introduced,
the respondent’s condition worsened further. By November 2005
he tragically was in an irreversible paraplegic
condition.
[3]
In the light of the conclusion that I have reached, it is not
necessary to consider the alleged non-compliance with the Institution
of Legal Proceedings Against Certain Organs of State Act. The plea of
prescription focused on the epidural anaesthesia that had
been
performed during May/June 1998. The appellant pleaded that by
September 2005 at the latest, the respondent had been ‘in
possession of sufficient facts to cause him, on reasonable grounds,
to think that the cause of his walking difficulties could possibly
be
attributed to the fault of the medical staff who drained his
abscess’. This was the foundation of the appellant’s
averment that prescription had commenced to run during 1998 or 1999
or, at the latest, during September 2005. Therefore, so the
plea of
prescription concluded, the respondent’s claim had prescribed
well before the summons was issued.
[4]
At the hearing of the special plea, the parties placed a statement of
agreed facts before the court. The appellant correctly
accepted the
onus to prove prescription but led no evidence. Only the respondent
testified. The gist of his evidence was that until
January 2016 he
had been unaware that he might have a claim based on substandard
medical treatment. He did concede, however, that
he had been informed
during 1998 that ‘the problem lay with the spinal anaesthetic
and that there was water on his spinal
cord that needed to be
drained’.
[5] In the light of the allegations in
the special plea, the appellant regarded this concession as decisive
of the matter. The court
a quo was not persuaded. It said:
‘
This
is not the equivalent of knowing that the negligent application of
the anaesthetic had caused the water on his spine.
.
. .
There
is no basis to suggest that the plaintiff knew or had reasonable
grounds to suspect that the negligent application of the
spinal
anaesthetic had caused the water on his spine.’
[6] Prescription begins to run when
the debt in question is due, that is, when it is owing and payable.
Section 12(3)
of the
Prescription Act 68 of 1969
provides:
‘
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.’
[7]
In the present matter only the requirement of knowledge of ‘the
facts from which the debt arises’ needs to be considered.
These
are the minimum essential facts that the plaintiff must prove in
order to succeed with the claim. See
Truter
and Another v Deysel
[2006]
ZASCA 16
;
2006 (4) SA 168
(SCA) paras 16, 18, 19 and 22;
Minister
of Finance and Others v Gore NO
[2006] ZASCA 98
;
[2007] 1 All SA 309
(SCA);
2007 (1) SA 111
(SCA)
para 17 and the footnotes thereto;
Mtokonya
v Minister of Police
[2017] ZACC 33
;
2017 (11) BCLR 1443
(CC);
2018 (5) SA 22
(CC) para
48. Legal conclusions, such as the invalidity of a contract or that
the delictual elements of negligence or wrongfulness
have been
established, are not facts. Neither is the evidence necessary to
prove the essential facts. See
Truter
v Deysel
paras
17 and 20 and
Mtokonya
paras 44-45 and 50-51.
[8]
Once the facts from which a debt arose (primary facts) have been
determined, the enquiry turns to the plaintiff’s knowledge
of
the primary facts.
Section 12(3)
therefore brings into play a further
set of facts. They inform the determination of when the plaintiff had
actual knowledge of
the primary facts or objectively should
reasonably have had knowledge thereof. Although there may be some
overlapping of facts,
it is important to bear in mind that these are
distinct enquiries.
[9]
The facts in
Links
v Department of Health, Northern Province
[2016] ZACC 10
;
2016 (5) BCLR 656
(CC);
2016 (4) SA 414
(CC) provide
an illustration of this. There the plaintiff permanently lost the use
of his left hand and forearm subsequent to medical
treatment. The
Constitutional Court had to determine whether the plaintiff’s
medical negligence claim had prescribed. In
para 46 of the judgment
reference was made to an essential primary fact, namely the factual
cause of the plaintiff’s condition.
It was not alleged that the
plaintiff had actual knowledge thereof at the relevant time.
Paragraph 47, therefore, dealt with when
the plaintiff ought
reasonably to have had knowledge of this primary fact. The question
was whether the plaintiff had for more
than three years prior to the
service of the summons been in possession of sufficient facts to
cause him on reasonable grounds
to think that his injuries were due
to the fault of the medical staff and to seek advice. In
Links
this question was answered in the negative. The same question, I
venture to say, was answered in the affirmative in
Loni
v MEC for Health, Eastern Cape (Bhisho)
[2018] ZACC 2
;
2018 (6) BCLR 659
(CC);
2018 (3) SA 335
(CC). It is
not my understanding that the Constitutional Court in either
Links
or
Loni
considered
that the legal conclusion as to negligence constitutes one of the
primary facts from which the debt arises.
[10]
It follows that the court a quo erred in requiring knowledge of
negligence as a prerequisite for the running of prescription
to
commence. Importantly, however, regard had to be had to the alleged
factual causes of the respondent’s paralysis. These
were
indispensable primary facts. They had to be gleaned from the
respondent’s particulars of claim. What had to be decided
was
whether the debt relied upon in the particulars of claim, had
prescribed.
[11] The particulars of claim related
the medical procedures and treatment that I have alluded to in para 2
above. After alleging
that the appellant’s servants ‘had
an obligation to provide plaintiff with professional medical advice,
service and
treatment with the skill, diligence and care reasonably
required of doctors in their respective fields of specialisation and
of
hospital employees’, the particulars of claim proceeded as
follows:
‘
In
breach of the duty of care owed by defendant and/or his servants to
plaintiff, defendant and/or his servants were negligent in
failing to
timeously administer the appropriate treatment reasonably required by
plaintiff when he attended the said hospitals
subsequent to the
surgery of May/June 1998, in circumstances where timeous intervention
would have salvaged his neurological condition.
As
a consequence of these delays and defendant’s breach of the
duty of care owed to plaintiff, plaintiff suffered neurological
damage and was rendered a motor and sensory incomplete paraplegic.’
[12]
It is quite clear that the respondent alleged that the failure to
timeously administer the appropriate treatment subsequent
to the
surgery of May/June 1998, had caused his condition. Even if the
particulars of claim could be read generously to include
the May/June
1998 spinal anaesthetic as a cause of his paraplegic condition, they
clearly alleged much more. However, the particulars
of claim did not
specify the ‘appropriate treatment’ nor when it should
timeously have been administered.
[13]
The appellant could have acquired this particularity under various
provisions of the Uniform Rules of Court, but did not. The
consequence was that prescription had been raised in the air, without
reference to the relevant primary facts upon which the respondent’s
claim was founded. Because these facts were not pleaded, it could
obviously not be determined when the respondent knew the primary
facts or should reasonably have known them. In the result the
determination of the plea of prescription was an exercise in
futility. The court a quo should have dismissed the special plea on
this ground and it is on this basis that the appeal must fail.
[14] The appeal is dismissed with
costs.
_______________________
C H G VAN DER MERWE
JUDGE OF APPEAL
Appearances:
For
appellant:
B Joseph SC, with him N Kahn
Instructed
by:
State Attorney, Cape Town
State Attorney,
Bloemfontein
For
respondent:
C Webster SC
Instructed
by:
Jonathan Cohen & Associates, Cape Town
Matsepes Inc.,
Bloemfontein