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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISON, BHISHO)

CASE NO. 529/2022
NOT REPORTABLE

In the matter between:

E[...] S[...] Applicant (Plaintiff)

and

MEC FOR DEPARTMENT OF HEALTH,
EASTERN CAPE PROVINCE Respondent (Defendant)


JUDGMENT IN RESPECT OF
INTE RLOCUTORY APPLICATION (ILPACOSA)

HARTLE J

[1] The applicant seeks an order declaring that she has complied with the
provisions of section 3 (2) of the Institution of Legal Proceedings against Certain
Organs of State Act, No. 40 of 2022 (“IPLACOSA ”) and/or alternatively an order
condoning the late delivery of the notice.

[2] It is common cause that the impugned notice was in fact served on the
respondent on 17 November 202 1.

[3] The even t giving rise to her claim for damages in the main action occurred on
12 September 2019. She alleges in her particulars of claim that due to t he
mism anagement of her labour at a public hospital on this date she g ave birth to a
stillborn baby.

[4] In the present application she explains however that she was unaware until
she obtained legal advice that the nursing staff and medical personnel at the hospital
had been negligent in relation to the management of her labour and that her child’s
death had been occasioned as a result thereof. This was on 15 August 2021 when
she was advised by her attorney s that she may possibly have a claim against the
respondent .

[5] In the lead up to this moment, she had also been cautioned by an unidentified
woman to seek legal advice as to whether she might have a claim or not, a
possibility she had never reckoned with before.

[6] Her attorneys more or less at the same time of apprising her that she had an
actionable claim served the relevan t notice , this within six months of the applicant
having received such advice that brought her in the know that she could bring a
claim .

[7] The notice dispatched speaks to the experience of her labour and the birth on
12 September 2019 at the Dora Nginza H ospital. It alleges that her child’s fatality
occurred as a result of the negligence of the respondent’s nursing staff and doctors
in that they failed to monitor the labour period appropriately and “ to use the
appropriate measure ” to deliver her baby. It is further stated that as a result of the
breach of a legal duty that rested on the hospital staff, she experienced pain and
suffering and has since been in a state of depression . In consequence , she has
suffered damages .

[8] The summons was issued on 31 August 202 2. On 21 December 2022 the
respondent raised special pleas of non -compliance with the provisions of section 3 of
the ILPACOSA and that the applicant’s claim ha s prescribed.

[9] The applicant asserts in her founding affidavit regarding this technical aspect
that she only acquired knowledge on 15 August 2021 as to the identity of the organ
of state and of the facts giving rise to the debt underpinning her claim . She avers
that she would not of her own agency have been able to glean knowledge of either
the identity of the debtor or of the facts giving rise to the debt , but for the legal advice
obtained on this date .

[10] For the rest she sets out in her founding affidavit the b asis upon which she
asks the court to condone any delay in the service of her notice , if she is expected to
explain her culpability , most notably contending that her claim has not prescribed ;
that good cause exists for her failure - explained by her having had no way of
knowing that she could claim or that the hospital staff were responsible for the
unfortunate outcome ; and th at there is an absence of any prejudice to the
respondent if the relief sought is granted.

[11] Prior to the service by the respondent of her answering affidavit, the applicant
supplemented her papers to deal with the fact that she had omitted in her founding
affidavit to give a full explanation for the delay in seeking condonation once it
became app arent that the respondent was objecting to the notice , in other words
from the moment that the respondent’s special pleas were delivered .

[12] The respondent took issue with the filing of her supplementary affidavit as a
result of which it also became necessary for the applicant to file a further application
for leave to permit its filing and to seek condonation for her failure to have buttressed
her application for condonation in the first place with such additional detail in the
primary interlocutory application.

[13] The responden t has set herself firmly against the applicant being granted the
declarat or sought by her, alternatively condonation , whether in respect of the main or
supplementary applications .

[14] The main action has been enrolled for hearing on 23 May 202 5 and it is
imperative for the applicant to obtain redress from this court to enable her to
successfully prosecute her claim upon trial .

[15] Section 3 of the ILPACOSA provides as follows:

“3. Notice of intended legal proceedings to be given to organ of state.
—

(a) No legal proceedings for the recovery of a debt may be instituted
against an organ of state unless —
(a) the creditor has given the organ of state in question notice in
writing of his or her or its intention to institute the legal
proceedings in question; or
(b) the organ of state in question has consented in writing to the
institution of that legal proceedings —
(i) without such notice; or
(ii) upon receipt of a notice which does not comply with all
the requirements set out in subsection (2).
(2) A notice must —
(a) within six months from the date on which the debt became due,
be served on the organ of state in accordance with section 4
(1); and
(b) briefly set out—
(i) the facts giving rise to the debt; and
(ii) such particulars of such debt as are within the knowledge
of the creditor.
(3) For purposes of subsection (2) (a)—
(a) a debt may not be regarded as being due until the creditor has
knowledge of the identity of the organ of state and of the facts
giving rise to the debt, but a creditor must be regarded as
having acquired such knowledge as soon as he or she or it
could have acquired it by exercising reasonable care, unless
the organ of state wilfully prevented him or her or it from
acquiring such knowledge; and
(b) a debt referred to in section 2 (2) (a), must be regarded as
having become due on the fixed date.
(4)
(a) If an organ of state relies on a creditor’s failure to serve a
notice in terms of subsection (2) ( a), the creditor may apply to
a court having jurisdiction for condonation of such failure.
(b) The court may grant an application referred to in paragraph
(a) if it is satisfied that —
(i) the debt has not been extinguished by prescription;
(ii) good cause exists for the failure by the creditor; and
(iii) the organ of state was not unreasonably prejudiced by the
failure.
(c) If an application is granted in terms of paragraph (b), the court
may grant leave to institute the legal proceedings in question,
on such conditions regarding notice to the organ of state as
the court may deem appropriate.”

[16] The relevant provisions of section 12 (3) of the Prescription Act1 are for
convenience also set out below as these provisions have an obvious bearing o n the
question whether the applicant’s claim has been extinguished by prescription2 and
also speaks to the basis for her submission that she had neither actual or
constructive knowledge of the identity of the debtor or the facts giving rise to the debt
until she sought and obtained legal advice:

“12. 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

1 No. 68 of 1959
2 Prescription has in fact been raised in the second special plea , but its issue as a separate plea was
not before this court.
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. ”

[17] The onus is on a defendant who raises a plea of prescription to prove such
defence, and to prove the date when the plaintiff purportedly acquired actual or
deemed knowledge of the identity of the debtor and of the facts from which the debt
arises.3

[18] In her answering affidavit the respondent answer ed only to the applicant’s
alternate prayer for condonation lamenting the fact that she was tardy in bringing the
present application and expecting to be condoned as of right, but the s pectre of
prescription features in the midst of it all notably because the applicant asserts that
prescription would not have comm enced to run until 15 September 2021 . This is the
very basis upon she prays for the declarator as her primary relief.

[19] The respondent resolutely objects to this court granting any order in favour of
the applicant contending that she has not met the requirements for condonation and
complaining that the applicant delayed in seeking such a prayer once it was made
known that she , the respondent, was going to rely on her failure to serve statutory
notice in compliance with the provisions of section 3 (2) (a) of the ILPACOSA.

[20] In response to the applicant ’s careful averments concerning the basis upon
which she became wise to the fact , on 15 August 2021 more exactly, that she had a
claim with regards to the events surrounding her baby’s stillbirth after seeking legal
advice from her attorney (that is the moment from which she possessed sufficient
facts to cause her on reasonable grounds to think that her baby’s death was due to
the fault of the medical staff) , the respondent pleads a lack of knowledge but has

3 Gericke v Sacks 1978 (1) SA 821 (A) at 827 – 828; Drennan Maud & Partners v Pennington Town
Board 1983 (3) SA 200 (SCA); Sibiy a v The Premier of the Province of Kw azulu -Natal [2008] (1) All
SA 295 N at para [26]. See also Links v MEC, Department of Health, Northern Cape Province 2016
(4) SA 414 (CC) at para [24].
readily conceded that she ca n neither admit nor deny such allegations. The non -
sensical qualification added by her “ that to the extent that such is relevant in this
application I deny them ”, to my mind raises no dispute on the papers and certainly
does not speak to a proper defence in respect of which she bears the onus. Also
vaguely denied is the conclusion pleaded by the applicant that her claim has not
been extinguished by prescription and that her debt only became due on 15 August
2021 .

[21] The respondent in her answering affidavit appears also to have missed the
point entirely that the applicant emphasizes that she was not informed by the nursing
and medical personnel at the hospital that her baby’s death was caused because of
their mismanagement (possibly constituting negligence as per her attorney’s advice)
and that such culpable conduct legally and factually conduced to the unfortunate
outcome . It was not until she received legal advice that she had any reason to
believe that this fateful outcome was due to their fault.

[22] The respondent has not suggested an y other basis to point to the fact that the
applicant could or should have acquired knowledge of the facts giving rise to the
debt, or the identity of the debtor, in the legal technical sense , before she consulted
with her attorney .

[23] In Male shiyo v MEC for Health, Eastern Cape4 and in Diko v MEC for Health,
Eastern Cape5 I dealt in detail with the kind of facts that a plaintiff such as the
applicant who has instituted a claim for damages premised on professional
negligence is supposed to know in o rder to trigger the running of prescription , and in
what circumstances such knowledge ought to be imputed to a plaintiff. The correct
approach is also helpfully set out in the full bench appeal in MEC for Health v Diko .6

[24] Given that I am under some pressure to deliver the present judgment before
trial roll call this week , I do not intend to repeat the approach outlined in the
judgment s, which appl ies with equal reasoning to the situation at hand.

4 (451/2018) [2020] ZAECBHC 28 (23 October 2020) .
5 (583/2018) [2022] ZAECBHC 11 (22 March 2022) .
6 (Member of the Executive Council for Health, Eastern Cape v Diko - Appeal (CA1/2023) [2023]
ZAECBHC 28 (15 September 2023) .

[25] In the absence of any defence articulated by the respondent in her affidavit in
this regard, the applicant is in my view entitled to the declarator she seeks , which
renders it unnecessary for her to have explained her supposed culpability in not
taking any steps between the date of the birth and the service of the statutory notice
intended to advise the respondent of her intention to institute legal proceedings .

[26] In the light of the approach I adopt, t he notice is thus taken to have been
delivered timeously, within six months of 15 August 2021 , before which date the
applicant in my view was not in possession of sufficient facts such as she learned on
the said date to think that the still birth of her child was due to the fault of the medi cal
staff. Indeed she could not have known except for the insight of her attorneys , that
the care administered to her at the hospital was substandard, or the legal import
thereof.

[27] Inasmuch as the applicant though t it necessary to seek condonation in the
alternative I see no reason not to permit the filing of her supplementary affidavit. I
take t he applicant ’s point that she felt obliged to file this application out of caution .
The respondent could have excused the applicant’s oversight but instead also
vociferously opposed that application .

[28] Even thou gh this court is not required in the peculiar circumstances of the
matter to deal with the alternative prayer in the main interlocutory application, I am
satisfied that the requirements stipulated in section 3 (4)(b) of the ILPACOSA have
been established on an overall impression made and that it is necessary and in the
interests of justice to have permitted the applicant to ampli fy her papers and to be
afforded the opportunity to get on with the prosecution of her claim in the anticipated
trial. The respondent’s attempt to suggest that that claim is doomed to failure is
further rather unfortunate and in my view entirely without m erit. Whilst the
respondent has recently delivered an amended and amplified plea (which contradicts
the assertion that she was prejudiced at all by the service of the impugned notice
only in November 2021) that calls attention to the fact that the allege d delay in her
baby’s delivery did not happen under the watch of the staff at the Dora Nginza
hospital but rather the admitting clinic, it still remains open to the applicant to plead
consequentially thereto.

[29] I have referred above and in Maleshiyo7 and Diko8 to the principled approach
adopted by our court s on the question of de termining prescription in professional
medical suits and the manner in which they consider when a debt is due within the
meaning of section 12 (6) of the Prescription Act , and when the deeming provision in
section 12 (7) can be invoked. Applied to the facts of the pres ent matter , the
applicant had the minimum facts necessary to institute her claim only once she
consulted with her attorney. Without such ad vice she would not of her own agency
have had grounds to think that the death of her baby was due to the fault of the
medical personnel. While she knew that her baby was born dead and reconciled
herself to the fact that she felt depressed because of this , there is nothing to gainsay
her evidence that she had no inkling that the staff were negligent in respect of that
outcome or that she possibly had a damages claim arising there from until her
attorney informed her.

[30] On the issue of costs, I consider the defendant’s opposition to the application
to have been unnecessary and somewhat obstructive . This is a n unfortunate
approach to be adopted by an organ of state . The respondent has an obligation to
litigate responsibly and not take technical and obstructive points where this is not in
the interests of justice.9

[28] In the result, I issue the following order:

1. The applic ant’s request to permit the filing of her supplementary affidavit is
granted.

7 Supra.
8 Supra
9 See Minister of Safety and Security v Additional Mag, N Molo N.O and Keith Chipps [2013] ZAE
(GHC 89) (unreported judgment of Roberson J, concurred in by Plasket J dated 23 August 2017 at
para[8]; Mhlatsheni v RAF 2009 (2) SA 401 (ECD) at paras [16] and [17] and especially the statement
by the Constitutional Co urt in Njongi v MEC, Department of Welfare, Eastern Cape 2008 (4)_SA 237
(CC) at par [79] that “(a) decision by the State whether or not to invoke prescription in a particular
case must be informed by the values of our Constitution.”
2. It is declared that the applicant has complied with the provisions of section
3 (2) of the Institution of Legal Proceedings Against Certain Or gans of
State Act, No. 40 of 2002 in respect of her statu tory notice dated 17
November 2021 .
3. The respondent is directed to pay the costs of both the main and
interlocutory application to supplement her papers , such costs to include
the costs of second counsel , to be reckoned on Scale A.


_________________
B HARTLE
JUDGE OF THE HIGH COURT


DATE HEARD : 8 May 2025
DATE OF JUDGMENT : 15 May 2025

Appearances:

For the applicant : Mr. N Zilwa & Ms . Livi instructed by ABN Attorneys, East ondon,
(ref. Mr. Nyenyiso) .
For the respondent : Mr. S P Ntsaluba instructed by The State Attorney, East London
(ref. Mr. Mosia).