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WILSON J:
1 On 10 April 2016, the Plaintiff, MRM, was admitted to the Lenmed Private
Hospital in Randfontein. She complained of pain in her left knee. Although no-
one knew it at the time, MRM turned out to have had an aneurysm in her
popliteal artery. The aneurysm had ruptured, resulting in limited blood flow to
her lower left leg. The rupture went untreated for a critical period, during which
the condition of MRM’s left leg deteriorated to the extent that it eventually had
to be amputated above the knee on 19 April 2016.
2 On 14 August 2017, MRM instituted an action for the recovery of losses she
claims resulted from the negligent treatment she received at the hospital, and
which led to the need to amputate her leg. The suit was initially brought against
the first to fourth defendants, being the hospital itself and three of MRM’s
treating physicians. It became apparent from these defendants’ pleas and
responses to MRM’s requests for further particulars that none of them took
direct responsibility for the treatment MRM received in the hospital’s accident
and emergency department. That department, they said, was run by the fifth
defendant, Mabude and Bester Inc.
3 On 21 June 2018, MRM instituted an action against Mabude and Bester Inc,
in which she alleged that negligent treatment she had received from its
physicians had caused or contributed to her injury. On 5 December 2018,
Mabude and Bester Inc pleaded to MRM’s claim. In its plea, Mabude and
Bester Inc made two relevant allegations. It first alleged that MRM had initially
been treated by the seventh defendant, Dr. Marais, who it described as its
employee, and who treated MRM “in the course and scope of his duties” (fifth
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defendant’s plea, paragraph 2.1). Mabude and Bester Inc also alleged that,
once Dr. Marais went off-duty, MRM was entrusted to the care of the sixth
defendant, Dr. Lunda, who was another of its physicians at the time. Mabude
and Bester Inc described Dr. Lunda as “a locum not in [its] employ”.
4 MRM’s legal representatives then made what Mr. Prinsloo, who appeared for
MRM before me, described as a strategic decision. They decided that Dr.
Marais need not be sued in his personal capacity, since Mabude and Bester
Inc could be held vicariously liable for any negligence proved against him.
They apparently accepted that Dr. Lunda had to be sued in her personal
capacity, since she was not in Mabude and Bester Inc’s employ.
5 Accordingly, on 31 August 2020, MRM instituted an action against Dr. Lunda,
in which she said that the allegedly negligent treatment she had received from
Dr. Lunda had caused or contributed to her injury. At around the same time,
Mabude and Bester Inc amended its plea to withdraw the admission that Dr.
Marais was one of its employees. It instead pleaded that both Dr. Marais and
Dr. Lunda were independent contractors, over whom it had no control. The
plea was obviously meant to resist any claim that Mabude and Bester Inc is
vicariously liable for any negligence that may be proved against either Dr.
Marais or Dr. Lunda.
6 That amendment notwithstanding, it was not until June 2022 that MRM’s legal
representatives woke up to the need, in the event that Mabude and Bester Inc
was not vicariously liable for any negligence Dr. Marais may have committed,
to sue Dr. Marais in his personal capacity. It was not until 22 June 2022 that
the summons commencing MRM’s action against Dr. Marais was served on
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Dr. Marais himself. Dr. Marais raised a special plea of prescription , alleging,
in substance, that MRM must have become aware, or should be deemed to
have become aware, of Dr. Marais’ identity at some point between 14 August
2017 and 8 June 2019. The debt MRM claims therefore fell due no later than
8 June 2019, and it prescribed no later than 9 June 2022.
7 The four separate actions launched against all seven defendants have now
been consolidated. Dr. Marais’ special plea was enrolled in my civil trial court
on 14 April 2026. The parties were agreed that the special plea should be dealt
with as a separated issue, and it appeared to me convenient to do so. I made
an order separating the special plea from the rest of the issues in the action
at the outset of the hearing.
8 An ordinary debt prescribes three years after it falls due (section 11 (d) of the
Prescription Act 68 of 1969). A debt falls due when “the creditor has
knowledge of the identity of the debtor and of the facts from which the debt
arises” (section 12 (3) of the Prescription Act). MRM plainly became aware of
Dr. Marais’ identity and his role in the chain of events leading to her injury
when Mabude and Bester Inc named Dr. Marais in its plea dated 5 December
2018. The plea was served on MRM’s legal representatives on 11 December
2018. It follows that MRM’s claim against Dr. Marais prescribed on 12
December 2021.
9 Mr. Prinsloo submitted that, by initially pleading that Dr. Marais was its
employee, Mabude and Bester Inc wilfully prevented MRM from discovering
her cause of action against Dr. Marais. Under section 12 (2) of the Prescription
Act, Mr. Prinsloo argued, this meant that the debt MRM claims against Dr.
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Marais did not fall due until Mabude and Bester Inc amended its plea to aver
that Dr. Marais was an independent contractor.
10 MRM did not place any reliance on section 12 (2) of the Act in her replication
to Dr. Marais’ special plea, but the argument is in any event misguided. The
mere fact that MRM’s representatives initially decided not to sue Dr. Marais in
his personal capacity because they thought they could hold Mabude and
Bester Inc vicariously liable does not mean that MRM was prevented, wilfully
or otherwise, from suing Dr. Marais in his own right. The decision to pursue
Mabude and Bester Inc on the basis of its alleged vicarious liability in fact
entails the proposition that MRM’s representatives already knew about Dr.
Marais and his potential role in causing MRM’s injury. In any event, the mere
fact that Mabude and Bester Inc now claims that Dr. Marais was an
independent contractor does not exclude the possibility that it may
nevertheless be vicariously liable for any negligence proved against him (see
Mohun and Another v Phillips NO obo S [2022] ZASCA 186 (22 December
2022), paragraphs 38 to 45).
11 The special plea must be upheld. However, I am not inclined to award costs
against MRM. This was a straightforward case. Once Mabude and Bester Inc
named Dr. Marais, MRM had three years in which to sue him. This case turns
upon two facts, and two facts alone: first that MRM became aware of Dr.
Marais’ role in her treatment on 11 December 2018, and, second, that MRM
did not institute proceedings against Dr. Marais until 22 June 2022, some four
and a half years later.
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12 These facts were common cause, but Dr. Marais’ legal representatives
overcomplicated the issue by pressing the pointless, and in my view dubious,
case that MRM should be deemed to have been aware of Dr. Marais’ identity
as early as August 2017, when her hospital records were discovered. Those
records included a form signed by Dr. Marais. Dr. Marais’ signature is illegible,
and the form does not otherwise identify him. It was nevertheless suggested
that a reasonable litigant in MRM’s position could have found out about Dr.
Marais’ role in her treatment shortly after the delivery of the medical records.
Mr. Botha, who appeared for Dr. Marais, argued that it was unreasonable of
MRM to wait until Mabude and Bester Inc identified Dr. Marais in its plea.
13 I need not assess that claim, but I am in some doubt about it. MRM was
investigating a complex chain of medical causation leading to her injury. The
hospital at which she suffered the injury sought to shift any liability for her loss
on to its separately incorporated constituent practices, which in turn have now
sought to shift any liability onto the physicians working for them, apparently as
independent contractors. In these circumstances, I do not think MRM can be
criticised for seeking relief against the hospital rather than a treating physician
– who was, at the time she received her medical records, identified by no more
than his scrawled signature on a single sheet of paper.
14 Whatever merit it might have had , the more ambitious argument pursued on
Dr. Marais’ behalf meant that the trial bundle contained around 500 more
pages than required. It need only have contained Mabude and Bester Inc’s
pleas in their original and amended forms, together with the pleadings in the
action between MRM and Dr. Marais. This could have been no more than 100