SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO)
OF INTEREST; NOT REPORTABLE
Case No: 139/2022
In the matter between:
P[...] S[...] B[...] OBO Z B Plaintiff
and
MEMBER OF THE EXECUTIVE COUNCIL
RESPONSIBLE FOR HEALTH: EASTERN CAPE Defendant
JUDGMENT
KOTZÉ AJ
Introduction
[1] The plaintiff sues, in her personal capacity and as the mother and legal guardian of her
minor girl (“Z B”), for general and special damages arising from a brain injury sustained by Z B
during her birth at Frontier Hospital.
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[2] The matter proceeded through the pre-trial processes, and on the morning of the intended
trial, took the eventual form of a stated case. The questions of law stated by the parties in terms of
rule 33(1), concern two special pleas: a special plea of prescription of the Plaintiff’s claim in her
personal capacity, and a special plea of non -compliance with the provision s of section 3 of the
Institution of Legal Proceedings Against Certain Organs of State Act, Act 40 of 2002 (“the
Institution Act” ). At the hearing of the matter, the parties agreed that the issues set out in the
defendant’s special pleas be separated from the remainder of the issues (of liability and quantum).
The parties argued the stated case unassisted by heads of argument and judgment was reserved.
[3] In this division of the High Court, by means of rule 8(a) read with 15A(1) of the Joint
Rules of Practice for the High Courts of the Eastern Cape Province, opposed motions include
stated cases wherein the parties have agreed to enrol same in the opposed motion court. The value
of doing so, at the very least to the court, is that parties are obliged by these rules to, firstly, file
their respective heads of argument, and secondly, to do so in advance. The benefit s of heads of
argument received in advance by all concerned, are obvious and need not be stated. Even if a
stated case were to proceed in a trial court, a similar practice should be encouraged , at least for
the convenience of the court.
[4] Unfortunately, and by no design, the delivery of this judgment was delayed because of a
misunderstanding that arose that some of the issues became settled. Following a request from the
court for the details of the settled issues, in order to limit this judgment to its still applicable parts,
the mis understanding revealed itself. By then, the need for heads of argument became more
pressing, and following communication and a scheduled case management meeting, directives
pressing, and following communication and a scheduled case management meeting, directives
were issued calling upon the parties to submit heads of argument and to consider further aspects
of the case. In time, comprehensive heads of argument were submitted and I am grateful for the
parties in doing so.
The statement of facts, legal questions and contentions
[5] The parties’ written statement handed in and agreed upon in terms of Uniform Rule 33(1),
reads (exactly):
THE PARTIES
1. The plaintiff is P[...] S[...] B[...], who is:
1.1. a major, unemployed female person, presently residing at Cumakala
Administrative Area, Lady Frere, Eastern Cape;
1.2. who was born on 24 March 1985; and
1.3. suing in her personal capacity and in her representative as the biological mother
of Z[...] B[...] (“ZB’), a girl born on 19 January 2018.
2. The defendant is the M ember of the Executive Council for the Department of Health,
Eastern Cape Province, whose address for the purposes hereof is c/o State Attorney, Fleet
Street, Old Spoornet Building, East London.
AGREED FACTS GIVING RISE TO THE DISPUTE
3. During March 2022, the plaintiff instituted action against the defendant claiming general
and special damages arising out of brain injury which ZB sustained during her birth at
Frontier Hospital.
4. The common cause facts are that:
4.1. from the available literature, medical records and joint minutes that have been
prepared and signed by the parties’ medical experts, ZB has a brain injury. ZB’s
condition immediately after birth is indicated in items 6, 7 and 8 of the joint
minutes of the parties’ pediatrici ans which items must be read as if specifically
incorporated herein;
4.2. the plaintiff:
4.2.1. reported in Glen Grey Hospital on 18 January 2018 between 19h00 and
20h00. Upon arrival at Glen Grey Hospital she was diagnosed to be in
labour;
4.2.2. was e xamined at 20h00 at Glen Grey Hospital and found to be 2 cm
dilated. A decision was made to transfer her to Frontier Hospital in
Queenstown;
4.2.3. was assessed at 21h30 and found to have i) good progress of labour; ii)
been 9 cm dilatated with the foetal head 3/5 above the brim; iii) had her
membranes ruptured; iv) been draining clear liquor, v); a foetal heart
rate of 140 bpm, vi) with no decelerations; and vii) had 2 strong
contractions in 10 minutes.
4.2.4. was assessed at 23h30 and found to i) be 10 cm dilatated with the foetal
head 2/5 above the brim; ii) have been draining clear liquor.
4.3. An ambulance
4.3.1. was dispatched at 00h46 to collect the plaintiff from Glen Grey Hospital,
on 19 January 2018;
4.3.2. arrived at Glen Grey Hospital at 00h56 on 19 January 2018; and
4.3.3. arrived at Frontier Hospital at 01h15 on 19 January 2018.
4.4. ZB:
4.4.1. was born asphyxiated on 19 January 2018 after 06h00;
4.4.2. suffered cerebral damage during birth;
4.4.3. did not cry after birth; and
4.4.4. had seizures after birth.
4.5. the plaintiff was discharged from Frontier Hospital on a date more than a week
after ZB’s birth;
4.6. the plaintiff was advised:
4.6.1. by a medical doctor who saw her and ZB at the beginning of January
2022 that:
4.6.1.1. ZB’s had a neurological brain injury;
4.6.1.2. the neurological brain injury was occasioned at birth;
4.6.1.3. the persons who assisted her during ZB’s did not properly
manage her labour, alternatively, missed foetal distress so that
they did not manage same properly;
4.6.2. by her lawyers in January 2022, to sue the defendant for medical
negligence and whatever other consequences she may have personally
suffered because of the conduct implicated in paragraph 4.6.
4.7. post birth, but bef ore discharge from Frontier Hospital in January 2018, the
plaintiff was counselled and told that ZB would not follow a normal growth
trajectory; and
4.8. on 27 January 2022, the plaintiff delivered the attached letter to the defendant.
The letter and proof of postage, is marked A.
THE DISPUTE
5. The matter is set down for the determination of the special pleas of:
5.1. prescription, in terms of section 11 of the Prescription Act, 1969 (Act No. 68 of
1969, it being contended that the plaintiff’s persona l claim for damages against
the defendant has become prescribed; and
5.2. failure to deliver a statutory letter to the relevant official of the Eastern Cape
Department of Health with 6 (six) months of the plaintiff’s discharge from
hospital.
6. In the main, the defendant contends that the plaintiff’s claim in her personal capacity has
prescribed. And that in any event, the plaintiff did not comply with section 3(2) of the
Institution of Legal Proceedings Against Certain Organs of State Act, 2022, (Act N o. 40
of 2002) (“the Act”).
THE PARTIES’ CONTENTIONS
7. The plaintiff contends that the debt became due on and/or her cause of action arose in
January 2022 so that:
7.1. she was obligated to deliver the statutory notice contemplated in section 3(2) of
the Act within 6 (six) months of the debt becoming due and/or her cause of action
arising – on 24 January 2022;
7.2. she issued the summons against the defendant on within 3 (three) years of the
debt becoming due and/or her cause of action arising – on 07 March 2022;
7.3. the debt did not become due and/or her cause of action did not arise only when
she was discharged from Frontier Hospital;
7.4. when she was discharged from Frontier Hospital, she did not know what had
caused the condition of ZB, nor did she know that she would sustain her personal
neurological injury, at any time thereafter.
8. The defendant contends that:
8.1. the plaintiff was treated at Glen Grey Hospital on 19 January 2018 on which date
her cause of action both in her personal and representative capacities arose;
8.2. within 6 (six) months from 19 January 2018 (by 20 July 2018) the plaintiff’ was
obligated to deliver her statutory notice in terms of section 3(2) of the Act;
8.3. within 3 (three) years from 19 January 2018 the plai ntiff’ was obligated to
institute legal proceedings for the recovery of her debt, in her personal capacity,
against the defendant;
8.4. the plaintiff’s claim in her personal capacity prescribed by effluxion of time on 20
January 2021;
8.5. the summons herein was served upon the defendant on 5 June 2022; and
8.6. the plaintiff did neither of what is contemplated in paragraphs 8.2 and 8.3.
RELIEF SOUGHT BY EACH PARTY
9. Insofar as the issues identified for decision:
9.1. the plaintiff prays for the dismissal of the special plea with costs, such costs to be
inclusive of the costs occasioned by the employment of 2 (two) counsel and that
same be payable on scale C.
9.2. the defendant prays for an order that:
9.2.1. the plaintiff’s claim in her personal capacity has become extinguished by
prescription; and be accordingly dismissed with costs and
9.2.2. the special plea based on failure to comply with the Act, be and is hereby
upheld with costs.
[6] As stated before, p art of the directives issue d to the parties, invited them to present
submissions in their written arguments on further issues. 1 The plaintiff responded to the
invitation and presented helpful arguments on the issues . The defendant, however, declined the
invitation, 2 relying on authority to the effect that a court should not deal with issues unnecessary
to determining the issues before it, 3 and that a court should decide only that which is demanded
by the facts. 4
[7] In Mtokonya v Minister of Police 2018 (5) SA 22 (CC) at [15] the Constitutional Court
held that a court that is called upon to decide a special case under rule 33 is required to decide the
question of law presented to it and has no right to travel outside the four corners of the agreed
statement and decide a different question that it wishes the parties had submitted to it to decide.
1 The invitation drew the parties attention to the fact that during its preparation, and before the misunderstanding
arose, the court became aware of th e following further issues that might assist in the resolution of the matter: (a)
whether the provisions of sections 3 and 4 of Act 40 of 2002 are peremptory or directory; (b) whether non -
compliance with the above sections is fatal or whether substantial compliance is possible absent an application for
condonation; and, (c) what effect, if any, the presence of condonation provisions in section 3(4) of the Act have on
(a) and (b). The invitation set out in the directives thus intended the start of a procedure dealt with in Groenewald
NO and Another v Swanepoel 2002 (6) SA 724 (E) at 726F-I. SEE also Mamela Taxi Rank (Pty) Ltd v Mamela Taxi
Association and Others (CA 155/2010) [2010] ZAECMHC 31 (28 October 2010) at [23]-[34], and at [33] where the
full court said: “ If parties agree on something in addition to the lis then before Court - and seek an order from the
court that by consent their agreement be incorporated in a court order - then, and only in that event, such agreement
may be made an order by the Court. Put differently, even if the issue is not ventilated either on the papers or in
evidence and nor in argument, then the court may make an order on such issue by agreement between the
parties. Transvaal Canoe Union v Butgereit and another 1990 (3) SA 398 (TPD) at 404 D -F and the authorities
referred to at 406H.”
2 The response in the defendant’s heads of argument, reads “…the issue of substantial compliance does not even
arise. It is not an issue before court. It would only arise if this court were being called upon to decide an application
for condonation of non-compliance with the Institution Act. That is not the case in this matter.”
3 Albutt v Centre for the Study of Violence and Reconciliation and Others (CCT 54/09) [2010] ZACC 4; 2010 (3)
SA 293 (CC) ; 2010 (2) SACR 101 (CC) ; 2010 (5) BCLR 391 (CC) (23 February 2010) at [82].
4 City of Cape Town v Aurecon South Africa (Pty) Ltd (CCT21/16) [2017] ZACC 5; 2017 (6) BCLR 730 (CC); 2017
(4) SA 223 (CC) (28 February 2017) at [35].
[8] In a helpful summary, Makaula J recently said this of rule 33(1) in Gcam-Gcam v
Minister of Police: 5
The primary aim of Rule 33 is to facilitate expeditious disposal of litigation. Rule 33(2)(a)
requires that the statement agreed upon between the parties by way of a special case submitted to
court ‘shall set forth the facts agreed upon, the question of law in dispute between the parties and
their contentions thereon’. Rule 33(1) and 33(2)(a) demand that in the special case there must be
a question of law that the parties require the court to decide on the agreed facts and in the light of
their contentions which must be set forth in their agreed statement. Rule 33(5) clearly states t hat
the decision of the court is required to be upon any question or questions of law that the parties
have submitted to the court for a decision … This court is therefore, bound by the facts and the
questions of the law decided upon [by] the parties.
[9] The above is instructive, and no matter how tempting it may be , the court is confined to
the stated issues. This applies with more force when one of the parties has declined the invitation.
I therefore agree with the defendant.
[10] However, that approach cuts b oth ways. The limitations set out in Mtokonya and Gcam-
Gcam, in my view, also applies to the opposite : once agreed upon, signed and argued, the parties
are bound by the four corners of the statement presented to court 6 (except where the parties
withdraw their agreement on certain facts). 7
The issues
[11] The issues for determination arising from the stat ement therefore are, firstly, whether the
plaintiff’s personal claim for damages against the defendant has become prescribed, and
5 Gcam-Gcam v Minister of Police (926/2018) [2025] ZAECMHC 51 (10 June 2025) at [4].
6 Mtokonya supra at [15] & [72]; Van Sensie v Road Accident Fund (2533/2019) [2025] ZAECQBHC 17 (13 May
2025) at [8]; See also Ngqeleni v Outsurance Insurance Company Limited (EL933/2022) [2024] ZAECELLC 44 (14
November 2024) at [14]; Gaonamong v Minister of Justice and Correctional Services (557/2018) [2026] ZANWHC
2 (5 January 2026) at [18].
7 Mtokonya supra at [16].
secondly, whether the plaintiff failed to deliver a statutory letter to the relevant official of the
Eastern Cape Department of Health within six months of the plaintiff’s discharge from hospital.
The defendant’s submissions
[12] On the issue of prescription, Mr Jikwana, who appeared for the defendant, argued that the
plaintiff’s claims in both her personal and representative capaci ties arose on 19 January 2018,
being the date of birth of Z B. He placed reliance on Mtokonya, on President of the Republic of
South Africa and Another v Tembani and Others 2025 (2) SA 371 (CC) and on Minister of
Finance and Others v Gore NO 2007 (1) SA 11 1 (SCA), that knowledge as contemplated in the
Prescription Act does not require knowledge that conduct is wrongfu l, actionable or of any legal
conclusions. He further argued that Links v Department of Health, Northern Province 2016 (4)
SA 414 (CC) is distinguishable from the present case, in that Links concerned an application for
condonation in terms of the Institution Act . It is further argued, so the arguments are understood,
that in Loni v Member of the Executive Council, D epartment of Health, Eastern Cape Bhisho
2018 (3) SA 335 (CC), the court, notwithstanding Links, reached a different conclusion. In the
present case, he submitted, the plaintiff had knowledge of the necessary facts and should have
immediately sought legal assistance.
[13] Concerning the second issue, the non -compliance with the Institution Act, the defendant
argued the following three grounds: firstly, that the prescribed notice was not delivered within six
months of when the debt fell due, secondly, that the notice does not reference any claim by the
plaintiff in her personal capacity and thus cannot constitute notice or demand to support her
claim, and thirdly, the letter refers to a “fractured arm” suffered by Z B which is quite clearly
incorrect.
The plaintiff’s submissions
[14] Relying, mainly on Links, Mr Bodlani together with Mrs Nxazonke -Mashiya, appearing
[14] Relying, mainly on Links, Mr Bodlani together with Mrs Nxazonke -Mashiya, appearing
for the plaintiff, argued that the plaintiff did not have the necessary knowledge of the facts from
which her debt arose, and therefore, could not appreciate that the debt was due and so
prescription did not commence. It was further argu ed that, even if at the time of birth, Z B was
asphyxiated, had cerebral damage, did not cry, and had seizures , unless it was a common cause
between the parties that the cause for all these was known by the plaintiff to be the fault of the
defendant, that is not enough to inform the plaintiff that something went wrong . It was also
argued that although the plaintiff was counselled on her discharge and told that Z B’s growth
would not follow the normal trajectory , it does not assist the defendant’s case becau se it did not
inform the plaintiff what the cause was. Finally, it was submitted that t he plaintiff only acquired
the necessary knowledge in January 2022 when she consulted a medical doctor who advised her
that the wrong was committed by the defendant’s employees.
[15] Concerning the second issue, the plaintiff argues that the defendant’s recorded contention
in the statement was that the statutory notice (in terms of s 3 of the Institution Act) was delivered
out of time when it ought to have been delivered within six months from date of 19 January 2018.
Therefore, it is impermissible for the defendant, absent any contention in the statement to that
effect, to argue that t he s 3 notice did not comply with the Institution also because its content (a)
failed to set out a claim by the plaintiff in her personal capacity and (b) its content was factually
flawed (referring to the “fractured arm” argument).
The general legal principles
[16] Concerning the special plea of prescription, the onus is on the defendant to show that the
plaintiff’s claims prescribed. 8 It would seem as if the same onus has been assigned to a defendant
who relies on a special plea of non-compliance in terms of the Institution Act. 9
8 Gericke v Sack 1978(1) SA 821 (AD) at 827 -828, applied in Van Zijl v Hoogenhout 2005 (2) SA 93 (SCA) at [41] .
See also Dike v Minister of Police and Another (404/2022) [2023] ZAECBHC 15 (18 July 2023) at [29].
9 Member of the Executive Council for the Department of Health, Eastern Cape Government v Ndaliso (CA96/2015)
[2016] ZAECGHC 5 (25 February 2016) at [19] -[21] (a judgment by the full court); N.S v Member of the Executive
Council, Department of Health, Easter n Cape (438/2023) [2024] ZAECBHC 8 (7 May 2024) at [6] & [19]; Diko v
MEC for Health (583/2018) [2022] ZAECBHC 11 (22 March 2022) at [32] -[33]; Magadaza v Yaka and Others
(5380/2016) [2018] ZAECGHC 87 (5 September 2018) at [5].
[17] The defendant bears the onus of proving when the debt fell due and when prescription
commenced. 10 In WK Construction (Pty) Ltd v Moores Rowland and Others 2022 (6) SA 180
(SCA) at [4]-[5], it was formulated as: 11
Boiled down to its essentials, the issue on prescription is when the alleged debt was deemed to
have become due. This required a finding on when WK Construction had the relevant knowledge
or could have acquired the relevant knowledg e by exercising reasonable care. This, in turn,
required an assessment of what comprised the relevant knowledge. If this was acquired prior to
23 August 2013, the debt had been extinguished by the time action was instituted.
[18] It is not uncommon in profess ional negligence cases against the state that the state’s case
is only as strong as it still has witnesses available. In Macleod v Kweyiya 2013 (6) SA 1 (SCA) it
was said:
[10] This court has repeatedly stated that a defendant bears the full evidentiary burden to prove a
plea of prescription, including the date on which a plaintiff obtained actual or constructive
knowledge of the debt. The burden shifts to the plaintiff only if the defendant has established a
prima facie case. In Gericke v Sack 1978 (1) SA 821 (A) at 827D – G the court stated:
'(I)t will at times be difficult for a debtor who pleads prescription to establish the date on
which the creditor first learned his identity or, for that matter, when he learned the date
on which the delict had been committed.
But that difficulty must not be exaggerated. It is a difficulty which faces litigants in
variety of cases and may cause hardship — but hard cases, notoriously, do not make good
law. It is not a principle of our law that the onus of proof of a fact lies on the party who
has peculiar or intimate knowledge or means of knowledge of that fact. The incidence of
the burden of proof cannot be altered merely because the facts happen to be within the
the burden of proof cannot be altered merely because the facts happen to be within the
knowledge of the other party. See R, v Cohen, 1933 T.P.D. 128. However, the Courts take
cognizance of the handicap under which a litigant may labour where facts are within the
exclusive knowledge of his opponent and they have in consequence held, as was pointed
10 President of the Republic of South Africa and Another v Tembani and Others 2025 (2) SA 371 (CC) a t [105] &
[107]; Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA) at [13].
11 WK Construction (Pty) Ltd v Moores Rowland and Others 2022 (6) SA 180 (SCA) at [4]-[5].
out by INNES J., in Union Government (Minister of Railways) v Sykes, 1913 A.D. 156 at
p. 173, that
less evidence will suffice to establish a prima facie case where the matter is
peculiarly within the knowledge of the opposite party than would under other
circumstances be required.
'But the fa ct that less evidence may suffice does not alter the onus which rests on the
respondent in this case.'
[19] As to the chemistry between the Prescription Act and the Institution Act, and what would
be necessary for a defendant to satisfy the burden of proof, it was said in President of the
Republic of South Africa and Another v Tembani and Others 2025 (2) SA 371 (CC) that:
[85] Subject to the requisite actual or constructive knowledge by the creditor, a delictual debt
becomes 'due', within the meaning of s 12(3) of the Prescription Act and s 3(2)(a) of the Institution
Act, once the debtor's wrongful and deliberate or negligent conduct has caused the creditor to
suffer damage. That is when the creditor is entitled in law to institute action for the recovery of
damages.
[86] In terms of s 12(3) of the Prescription Act and s 3(3)(a) of the Institution Act, this is subject
to the qualification that time does not start to run (that is, the debt is not deemed to be 'due') until
the creditor has actual or constructive knowledge of the identity of the debtor and the 'facts from
which the debt arises'. The 'facts' do not include that the debtor's conduct was wrongful or
negligent or that the creditor has a right to sue the debtor, nor does it include legal conclusions
that may be drawn from the facts. This court has cited with approval the proposition that time
starts to run against a creditor when it has 'the minimum facts that are necessary to institute
action' and that the running of prescription is not postponed until the creditor 'becomes aware of
the full extent of its legal rights'.
[20] For present purposes, what was said in Thembani at [85], must be understood within the
[20] For present purposes, what was said in Thembani at [85], must be understood within the
context and nature of that claim in question. In Thembani the claim concerned a delictual claim
for damages against the President, relying on unconstitutional conduct on his part as a component
of delictual wrongfulness. In the present matter, the plaintiff’s claim arises from ‘professional
negligence’. In Links v Department of Health, Northern Provinc e 2016 (4) SA 414 (CC), the
court held:
[42] … To require knowledge of causative negligence for the test in s 12(3) to be satisfied would
set the bar too high. However, in cases of this type, involving professional negligence, the party
relying on prescription must at least show that the plaintiff was in possession of sufficient facts to
cause them on reasonable grounds to think that the injuries were due to the fault of the medical
staff. Until there are reasonable grounds for suspecting fault so a s to cause the plaintiff to seek
further advice, the claimant cannot be said to have knowledge of the facts from which the debt
arises…
…
[45] In a claim for delictual liability based on the Aquilian action, negligence and causation are
essential elements of the cause of action. Negligence and, as this court has held, causation have
both factual and legal elements. Until the applicant had knowledge of facts that would have led
him to think that possibly there had been negligence and that this had caused his disability, he
lacked knowledge of the necessary facts contemplated in s 12(3).
[46] The respondent did not aver that the applicant had knowledge of the facts that caused his
problem. The applicant did aver in the High Court that he did not know before t he end of August
2006 the reason for his condition or the cause of his condition. This averment related to both the
issue of negligence and the factual element of causation. In Dr Koning and Mr Ndlovu's affidavits
the respondent did not deny this averment. A firm finding that the applicant did not know what
caused his condition as at 5 August 2006 can, therefore, be justifiably made. That was a material
fact that a litigant wishing to sue in a case such as this would need to know. This would be the
case whether one sued on the basis of a delict or a breach of contract. On this basis it cannot be
said that the debt was due before 5 August 2006.
said that the debt was due before 5 August 2006.
[47] … That opinion was given years after the events in issue. Without advice at the time from a
professional or ex pert in the medical profession, the applicant could not have known what had
caused his condition. It seems to me that it would be unrealistic for the law to expect a litigant
who has no knowledge of medicine to have knowledge of what caused his condition w ithout
having first had an opportunity of consulting a relevant medical professional or specialist for
advice. That in turn requires that the litigant is in possession of sufficient facts to cause a
reasonable person to suspect that something has gone wrong and to seek advice.
[21] Finally, in Loni, the court, comparing the facts with those in Links, held that: 12
[32] The objective assessment, which was appropriately applied by both courts, established that a
reasonable person in the position of the applicant would have realised that the treatment and care
which he had received were substandard and were not in accordance with what he could have
expected from medical practitioners and staff acting carefully, reasonably and professionally. On
an assessm ent of the applicant's evidence, it is clear that by December 2000 he had already
suffered significant harm (leaving aside the question of osteitis), and it would have been apparent
from a reasonable assessment that the pain and suffering which he had endured were a direct
result of the substandard care which he had received.
…
[34] When the principle in Links is applied to the present facts , the applicant should have over
time suspected fault on the part of the hospital staff. There were sufficient ind icators that the
medical staff had failed to provide him with proper care and treatment, as he still experienced
pain and the wound was infected and oozing pus. With that experience, he could not have thought
or believed that he had received adequate medic al treatment. Furthermore, since he had been
given his medical file, he could have sought advice at that stage. There was no basis for him to
wait more than seven years to do so. His explanation that he could not take action as he did not
have access to independent medical practitioners who could explain to him why he was limping or
why he continued to experience pain in his leg, does not help him either. The applicant had all the
necessary facts, being his personal knowledge of his maltreatment and a full record of his
treatment in his hospital file, which gave rise to his claim. This knowledge was sufficient for him
to act. This is the same information that caused him to ultimately seek further advice in 2011.
The issue of prescription
The issue of prescription
[22] From a consideration of the above authorities, it would therefore seem that the defendant
has to prove: (a) that the plaintiff had knowledge that the brain injury Z B sustained during birth,
was as a result of the medical treatment received by her; (b) that the plaintiff ha d knowledge that
the injuries were due to the fault of the defendant (or the medical staff); (c) that such knowledge
12 See, also, Loni supra at [31], where the fullness of the material facts arising from the plaintiff’s evidence were set
out, in particular, that those facts were labelled as “the uncontroverted evidence”.
sufficiently support reasonable grounds for suspecting fault and to cause the plaintiff to seek
further advice; and, (d) that since she had acquired all of these and had reason to suspect fault, a
period of more than 3 years had lapsed. 13
[23] In my view, the defendant failed to do so . The relevant parts of the statement (at
paragraph 4.6.1) reveals that it was only in January 2022, during a co nsultation with a medical
doctor, that the plaintiff learned that: (a) Z B had a neurological brain injury; (b) the neurological
brain injury was occasioned at birth; and (c), the persons who assisted her during Z B’s birth did
not properly manage her labo ur, alternatively, missed foetal distress , in that they did not manage
same properly.
[24] In Links it was said that in order for a party to successfully rely on a prescription claim in
terms of s 12(3) of the Prescription Act, he or she must first prove what the facts are that the
plaintiff is required to know before prescription could commence running , and that the plaintiff
had knowledge of those facts. 14
[25] At best for the defendant, the reliance on paragraph 4.7 of the statement, that ‘ post birth,
but before discharge from Frontier Hospital in January 2018, the plaintiff was counselled and
told that Z B would not follow a normal growth trajectory ’, falls far short of proving that the
plaintiff was possessed of the necessary knowledge in order for prescr iption to have commenced.
In order for the defendant to have succeeded on the strength of paragraph 4.7, the actual content
of the counselling received had to be proven (i e something that comes close to that set out in
paragraph 4.6.1 of the statement).
13 See, for example, Member of the Executive Council for the Department of Health, Eastern Cape v Gamede
(CA05/2022) [2022] ZAECMHC 45 (29 November 2022) at [15], where the full court said this: [15] … The MEC
must then demonstrate that Mr Gamede was in possession of sufficient facts, by no later tha n 4 February 2014, to
cause him, on reasonable grounds, to suspect that it was the fault of hospital staff that had caused him injury so as to
prompt him to seek further advice. Until Mr Gamede had this comprehension, he lacked knowledge of the necessary
facts contemplated in s 12(3). The MEC did not aver in the plea that Mr Gamede had knowledge of the facts that
caused his problem. In replication, Mr Gamede indicates that he only acquired the knowledge of all the facts to
constitute the cause of action on 4 August 2016.
14 Links supra at [24].
[26] But there is a further c rucial observation to be made: at paragraph 4.4.1 of the statement,
the parties agreed that Z B was born on 19 January 2018; at paragraph 8.1, the defendant’s
contention records that the plaintiff’s personal and representative clai ms arose on 19 January
2018; yet, at paragraph 4.7, the date is some unknown date after 19 January 2018 but before
discharge (being a date ‘ more than a week after ZB’s birth ’). In other words, the defendant
cannot rely on both contentions; it is either that the plaintiff’s claims arose on 19 January 2018 or
on another date (unknown) when she was counselled before discharge.
[27] The authorities above are in agreement that the defendant had to prove when the debt fell
due and when prescription commenced , and in the ‘professional negligence’ context of the
present case, has failed to do so, resulting in no burden shifting over to the plaintiff to prove
otherwise.
[28] It must be stressed that the defendant , more consistent with Links than with Loni, did not
rely upon the proviso at the end of s 12(3) of the Prescription Act . 15 Therefore, the case of the
defendant relied on the actual as opposed to constructive knowledge of the plaintiff. 16
[29] In closing, the defendant has failed to prove that the plaintiff’s debt (in both her
capacities) arose on 19 January 2018. As a result, the special plea of prescription must fail.
The non-compliance with the Institution Act
[30] The conclusion under the prescription issue has the effect, as the parties during argument
also seem to have understood, that the defen dant’s reliance on the plaintiff’s failure to timeously
give notice in terms of the Institution Act, should follow suit and must fail. In my view, this is
consistent with what the Constitutional Court said in Tembani at paragraphs [84] to [86] of the
15 That is, that ‘… a creditor shall be deemed to have such knowledge if he could have acquired it by exercising
reasonable care’.
16 Tembani supra at [84]-[86].
relationship between the Institution Act and the Prescription Act, concerning when the debt is
‘due’.
[31] Once more, the parties are bound (absent further agreement) by the four corners of the
statement presented to court, which in turn, confines the court’s co nsideration to the questions of
law (or the ‘dispute’) and their respective contentions. 17
[32] The parties specified the ‘dispute’ in terms of paragraph 5.2 of the statement to whether
‘failure to deliver a statutory letter to the relevant official of the Ea stern Cape Department of
Health with 6 (six) months of the plaintiff’s discharge from hospital ’. T he defendant ’s
contentions in paragraph 8.2 was limited to ‘within 6 (six) months from 19 January 2018 (by 20
July 2018) the plaintiff was obligated to deliver her statutory notice in terms of section 3(2) of the
Act’ and in 8.6 to ‘the plaintiff did neither of what is contemplated in paragraphs 8.2 and 8.3’.
[33] Without repeating what was said above, a stated case requires absolute agreement on the
facts, the statement of the question s of law, and requiring the parties, on the strength of th ese, to
record their respective contentions. Should a party seek to depart from, for example, its
contentions in the statement, it would be no different than a ‘trial by ambush’ similar to a party
departing from his pleaded case. 18
[34] The questions that arise are whether on the non-compliance issue, the defendant is limited
to only the question whether the plaintiff was obliged to deliver her s 3(2) notice within six
months from 19 January 2018, or whether the further questions, that the s 3(2) notice does not set
out a claim by the plaintiff in her personal capacity and that the facts giving rise to the debt is not
correctly particularised in terms of ss 2(b), also stand to be decided.
[35] During his address, Mr Bodlani for the plaintiff argued that the defendant was bound by
[35] During his address, Mr Bodlani for the plaintiff argued that the defendant was bound by
the limitations of its contentions, adding that by the time the special plea was filed, less was
clearly known by the defendant (considering the denial of any notice whatsoever). From this, it
17 Cf footnotes 6 & 7 supra.
18 See, for example, Mtokonya at [16], although in the context of a court deciding issues beyond the statement.
was understood to mean that this is why the issue in the statement is more refined than that in the
special plea . In reply, Mr Jikwana for the defendant submitted that reference is made in the
second special plea, in the alternative at paragraph 5.3, to the issue that the s 3(2) notice did not
set out ‘ the nature of the cause of action and or facts upon which the cl aim is based’ . In his
submission, these further issues stand to be decided too.
[36] Even if the further issues are incorporated into the statement by reference to the second
special plea, there are no contentions made consistent with the defendant’s submissions. Absent
any supporting contentions, the plaintiff was entitled to accept that the refined issues (set out in
paragraph 5.2 of the statement) was what it purported to be. Moreover, it can reasonably be
accepted that when parties draw their pleadings, they have not had sight of all the evidence , so
that once they have, the issues become refined at trial or in a statement.
[37] I therefore find that the above further questions do not arise , and accordingly, the only
question is whether the defendant has succeeded or failed to prove that the s 3(2) notice was
delivered late, as contended . Following on the conclusion of the first issue in terms of the
Prescription Act, the second issue of non -compliance with s 3(2) of the Institution Act, must
similarly fail.
[38] Even i f I were wrong in this conclusion, I am not persuaded by the argument that the
misstatement of the minor child’s injury as a ‘fractured arm’, is cause enough to uphold the
special plea of non -compliance with the Institution Act in respect of the plaintiff’s claim in her
representative capacity. The purpose of the required notice has been stated on various occasions
before and need no extensive repetition: the purpose of the notice is to afford the organ of state
the opportunity to investigate clai ms laid against it, to consider them responsibly and to decide
before getting embroiled in litigation at public expense whether to settle the claim. 19 In my view,
to uphold the special plea on the strength of the misstatement, disregarding the remainder of the
letter, which dealt, in my view, with more ‘valuable’ information for the sake of investigating the
contemplated claim, would be a conclusion agai nst the true purpose of the Act. This approach
19 Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) at 126D -E; Minister of Agriculture and Land Affairs v CJ
Rance (Pty) Ltd 2010 (4) SA 109 (SCA) at [13].
would accord with the purposive approach our courts have come to endorse , 20 and would avoid
placing form over substance. 21
[39] However, and if I were wrong to limit the second issue as I have, the further question that
the s 3(2) notice d id not notify the defendant of a claim by the plaintiff in her personal capacity,
stand on a different footing. I t was accepted during argument, with reference to Gcam-Gcam v
Minister of Safety and Security (187/11) [2017] ZAEC MHC 31 (12 September 2017) by
Mbenenge ADJP (as he then was), that at this stage ‘…the question whether or not the
appropriate functionary has been served ought merely to hinge on the facts of each case, the
enquiry being purely factual and requiring no ex ercise of a discretion; considerations of fairness
and prejudice should not come into play during this enquiry. Only when condonation is sought
in terms of section 3 (4)(b) should a discretion, hinging on, inter alia, whether the organ of State
was not unreasonably prejudiced by the failure to serve the notice on the proper functionary, be
exercised.’
[40] The ‘fractured arm’ and ‘no personal demand by the plaintiff’ contentions are
distinguishable from one another: the one misstates a fact whereas the other d oes not state a fact
at all. Therefore, had I not reached the conclusion above that the non -compliance issue must be
limited, it would seem as if the plaintiff did not comply with the provisions of s 3 of the
Institution Act for her personal claim , and tha t, adopting the reasoning in Gcam-Gcam above,
condonation might have been necessary.
Costs
[41] Considering that the pl aintiff has been successful on both special pleas, I see no reason
why the general rule, that costs follow the result, should not be applied. In the statement, the
plaintiff prayed that the defendant be ordered to pay costs inclusive of the costs of two counsel on
scale C. The employment of two counsel in my view was justified by the plaintiff, taking into
20 See, for example, African Christian Democratic Party v Electoral Commission and Others 2006 (3) SA 305 (CC)
at [25]; Minister of Police and Others v Samuel Molokwane (730/2021) [2022] ZASCA 111 (15 July 2022).
21 See, for example, Minister of Safety and Security v Bahle (362/09) [2015] ZAECMHC 43 (19 March 2015) at
[14].
account (a) her risk had the special pleas succeeded , (b) that medical negligence matters such as
the present are commonly accepted to warrant the costs of two counsel , and more than that, (c)
that the plaintiff had, before the parties agreed to proceed by stated case, intended on proceeding
with the trial on all the issues (but for the issue of quantum).
[42] I am, however, not persuaded that the costs of two counsel on scale C is warranted,
instead, I intend on allowing senior counsel’s fees on scale C, and junior counsel on scale B.
Conclusion
[43] Accordingly, the following order is granted:
43.1. The issues of the defendant’s a special pleas of prescription in terms of Act 68 of
1969 and of non -compliance with the provisions of Act 40 of 2002, are separated
from the issues of liability and quantum, the latter being postponed sine die.
43.2. The defendant‘s special plea of prescription in terms of section 11 of Act 68 of
1969, is dismissed.
43.3. The defendant’s special plea of non -compliance with the provisions of section 3 of
Act 40 of 2002, is dismissed.
43.4. The defendant shall pay the plaintiff’s costs occasioned by the dismissal of the
special pleas, such costs to be inclusive of the costs of two counsel , wh ere so
employed, the costs of senior counsel to be allowed on scale C, and the costs of
junior counsel to be allowed on scale B.
__________________________
C D KOTZÉ
ACTING JUDGE OF THE HIGH COURT
Date of hearing: 27 January 2025
Date of Judgment: 24 February 2026
Date of directives: 20 August 2025 ; 17 September 2025 ; 2 October 2025
Date of case management meeting: 26 September 2025
Date of heads of argument: 3 November 2025 ; 6 November 2025
Appearances:
For the plaintiff : Adv A Bodlani SC with Adv Z Nxazonke -Mashiya, instructed by S Booi & Sons
Attorneys (ref: B6/10/21).
For the defendant : Adv T M Jikwana instructed by The Office of the State Attorney, East London (ref:
315/22 – P11 (Mrs Tongo)).