IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: 2917/2019
In the matter between:
WESSEL JOHANNES BADENHORST First Applicant
SUSANNA ALLETTA LIEBENBERG Second Applicant
BEATRIX PETRONELLA VAN KRADENBURG Third Applicant
ANNETTE DU PREEZ Fourth Applicant
and
THE MEC FOR HEALTH, NORTH WEST PROVINCE Respondent
Coram: Petersen ADJP
Date heard: 14 May 2026
Judgment reserved: 14 May 2026
Delivered: This judgment was handed down electronically, circulated to the
parties’ legal representatives by email, uploaded to CaseLines, and released to
SAFLII. The date and time for handing down the judgment are deemed to be
10h00 on 03 July 2026.
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Summary: Condonation in terms of s 3(4) of the Institution of Legal Proceedings
Against Certain Organs of State Act 40 of 2002 – Applicants failed to serve a
timeous notice of intended legal proceedings against the MEC arising from the
death of the Applicants’ wife and mother following alleged negligent medical
treatment – Applicants demonstrated good cause for the delay – Debt not
extinguished by prescription – MEC failed to establish unreasonable prejudice –
Condonation granted.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETERSEN ADJP
Introduction
[1] This is an application in terms of s 3(4) of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002 (“the Act”) . The
applicants seek condonation for their failure to serve, within the period prescribed
by s 3(2)(a), a notice of their intention to institute legal proceedings against the
respondent (“the MEC”).
[2] The contemplated action arises from the death of the applicants’ wife and
mother, Mrs Anna Johanna Badenhorst (“the deceased”), on 17 February 2015,
following medical treatment rendered at Joe Morolong Memorial Hospital and
her subsequent transfer to Kimberley Hospital.
[3] The applicants contend that the deceased’s death resulted from negligent
medical treatment administered by employees of the MEC . The MEC opposes
the application on the basis that the applicants acquired knowledge of the material
facts giving rise to the alleged debt during February 2015, failed to serve the
statutory notice within six months thereafter, and that the debt became prescribed
before summons was issued. It follows, so the MEC contends, that this Court
lacks jurisdiction to grant condonation.
[4] The application requires consideration of the interplay between the notice
provisions in s 3 of the Act and the prescription provisions in s 12(3) of the
Prescription Act 68 of 1969. It also requires consideration of the particular
difficulties that frequently arise in medical negligence litigation, where
laypersons, despite appreciating that a tragic medical outcome has occurred, are
unable, without further investigation, to determine whether that outcome may
reasonably be attributable to negligent medical treatment.
Background
[5] The material facts are substantially common cause. During February 2015,
the deceased presented at Joe Morolong Memorial Hospital complaining of
abdominal pain and associated symptoms. She was examined, treated, and
discharged. Her condition thereafter deteriorated significantly. She was
subsequently transferred to Kimberley Hospital, where emergency surgery was
performed. Despite those interventions, she died on 17 February 2015.
[6] The applicants did not remain passive following the deceased’s death.
Approximately one month later, on 18 March 2015, they lodged a formal
complaint with the Health Professions Council of South Africa (“the HPCSA”)
concerning the treatment rendered to the deceased by Dr Dube. The complaint
initiated a statutory disciplinary process that continued over an extended period.
On 7 May 2018, the HPCSA informed the applicants that disciplinary
proceedings had culminated in findings adverse to Dr Dube and the imposition of
a sanction. Thereafter , the applicants consulted attorneys, caused a notice
contemplated by section 3 of the Act to be served during October 2018, and
instituted action during 2019.
The MEC’s point in limine
[7] The MEC raised a point in limine arising from an earlier interlocutory
application which had subsequently been withdrawn, contending that the
applicants sought inconsistent relief. The applicants explain that the earlier
application was withdrawn following reconsideration of the most appropriate
procedural route to obtain the relief sought.
[8] The withdrawal of an interlocutory application neither deprives this Court
of jurisdiction nor precludes the applicants from seeking competent relief in
subsequent proceedings. It does not affect the Court’s competence to determine
the present application. The point in limine must therefore fail.
The legal framework
[9] Section 3 of the Act serves an important public purpose. It enables organs
of state to investigate claims promptly while relevant evidence remains available.
It facilitates the preservation of records, promotes efficient public administration,
and encourages the early resolution of disputes. At the same time, s 3(4)
recognises that rigid adherence to procedural requirements may unjustly impede
access to courts. The discretion conferred upon a court by s 3(4) reflects the
Legislature’s intention that procedural discipline should not defeat substantive
justice where the statutory requirements for condonation have been established.
[10] Section 3(4)(b) provides that a court may grant condonation only if it is
satisfied that:
(a) the debt has not been extinguished by prescription;
(b) good cause exists for the creditor’s failure to serve the statutory notice
timeously; and
(c) the organ of state was not unreasonably prejudiced by the delay.
Each of these jurisdictional requirements must be satisfied before the discretion
to grant condonation may properly be exercised.
[11] The principles governing applications under s 3(4) have been
authoritatively stated by the Supreme Court of Appeal in Madinda v Minister of
Safety and Security1. Equally relevant are the Constitutional Court’s decisions in
Links v MEC for Health, Northern Cape Province , and Loni v MEC for Health,
Eastern Cape2, together with the Supreme Court of Appeal’s decision in Truter
and Another v Deysel 3, each of which considers the operation of s 12(3) of the
Prescription Act within the context of medical negligence litigation.
Prescription
[12] The principal dispute concerns the date on which the applicants acquired
knowledge of the facts underlying the alleged debt. The MEC submits that
prescription commenced during February 2015 because the applicants already
knew that the deceased had attended Joe Morolong Memorial Hospital, had been
discharged, had deteriorated thereafter, had been transferred to Kimberley
Hospital, and had subsequently died. Those facts, the MEC contends, constituted
all the material facts necessary to institute proceedings.
[13] The applicants accept that they were aware of those events. They contend,
however, that they were lay persons with no medical expertise. A lthough they
suspected that something may have gone wrong, they lacked sufficient factual
knowledge to appreciate whether the deceased’s deterioration and eventual death
were attributable to negligent medical treatment or to the progression of an
underlying disease. They submit that they acted with reasonable diligence by
immediately invoking the statutory disciplinary mechanisms of the HPCSA to
establish the factual basis upon which such a conclusion might responsibly be
reached.
[14] Section 12(3) of the Prescription Act provides that a debt shall not be
deemed to be due until the creditor has knowledge of the identity of the debtor
1Madinda v Minister of Safety and Security 2008 (4) SA 312 (SCA).
2Links v MEC for Health, Northern Cape Province 2016 (4) SA 414 (CC) para 49; Loni v MEC for Health, Eastern
Cape [2018] ZACC 2; 2018 (3) SA 335 (CC); 2018 (6) BCLR 659 (CC).
3Truter and Another v Deysel 2006 (4) SA 168 (SCA) para 20.
and of the facts from which the debt arises. A creditor is deemed to possess such
knowledge where the exercise of reasonable care could have acquired it . The
enquiry therefore contains both subjective and objective elements . It is directed
not merely at what the creditor actually knew, but also at what a reasonably
diligent creditor in the same position could, by exercising reasonable care, have
discovered.
[15] It is well established that s 12(3) requires knowledge of material facts and
not legal conclusions. A creditor need not appreciate that known facts establish
negligence, wrongfulness, or legal liability before prescription begins to run.
Equally, however, mere suspicion that something may have gone wrong does not
constitute knowledge of the material facts contemplated by the section. The
enquiry remains whether the creditor possessed, or could through the exercise of
reasonable care have acquired, sufficient factual knowledge to identify the
material facts giving rise to the claim.
[16] In Truter, the Supreme Court of Appeal held that prescription is not
postponed merely because an expert opinion subsequently enables a plaintiff to
appreciate that known facts may support a legal conclusion of negligence. By
contrast, in Links the Constitutional Court recognised that, particularly in medical
negligence litigation, a patient or family member may know that an adverse
medical outcome has occurred while nevertheless lacking sufficient factual
information reasonably to appreciate that negligent treatment may have caused
that outcome. These authorities are not inconsistent. Truter rejects the proposition
that prescription awaits expert confirmation of negligence. Links recognises that
prescription cannot commence before the creditor possesses, or reasonably could
have acquired, the material facts from which the claim arises.
[17] The distinction is of particular importance in the present matter. The
applicants do not contend that prescription was suspended until the HPCSA
applicants do not contend that prescription was suspended until the HPCSA
expressed a disciplinary opinion. Such a contention would indeed be inconsistent
with Truter. Their case is rather that, despite acting diligently, they lacked
sufficient factual knowledge to appreciate whether negligent medical treatment
had caused the deceased’s death. The significance of the HPCSA proceedings,
therefore, lies not in the disciplinary findings ultimately reached, but in
demonstrating both the applicants’ diligence and the objective difficulty
laypersons face in obtaining the material facts necessary to evaluate a complex
medical negligence claim.
[18] The chronology is instructive. Within approximately one month of the
deceased’s death, the applicants invoked the HPCSA's statutory investigative
processes. They thereafter pursued that process to completion. Their conduct is
inconsistent with indifference. On the contrary, it demonstrates that they took the
very steps which reasonably diligent lay persons, confronted with complex
medical issues beyond their expertise, would ordinarily take in attempting to
determine whether negligent treatment had occurred.
[19] The MEC nevertheless places considerable reliance upon the fact that the
applicants suspected negligence sufficiently strongly to lodge the HPCSA
complaint during March 2015. That submission merits closer scrutiny. The
complaint undoubtedly demonstrates that the applicants entertained serious
concerns regarding the treatment administered to the deceased. However,
suspicion, even a reasonable suspicion, is not synonymous with possession of the
material facts contemplated by s 12(3). The very purpose of lodging the complaint
was to obtain clarification concerning matters lying beyond the a pplicants’
knowledge and expertise.
[20] The prompt lodging of the HPCSA complaint is, in my view, more
consistent with an absence of sufficient knowledge than with its existence. Had
the applicants already possessed the material facts necessary to found a medical
negligence claim, there would have been little purpose in lodging a complaint
negligence claim, there would have been little purpose in lodging a complaint
with the HPCSA to confirm that their concerns were justified on the facts. Their
conduct demonstrates that they sought to obtain information which they did not
yet possess, rather than confirmation of conclusions already reached.
[21] T he significance of the HPCSA proceedings should also not be overstated,
so as to obfuscate the real issues in this application. The disciplinary findings
ultimately made against Dr. Dube neither determine nor pre-empt the issues that
will arise in the contemplated civil proceedings. Different legal standards apply,
different issues may arise, and the HPCSA's findings are not binding on a civil
court. Their relevance in the present application provide s objective support for
the applicants’ explanation that the circumstances surrounding the deceased’s
treatment were sufficiently complex to require investigation before reasonably
diligent lay persons could properly appreciate whether negligent treatment may
have caused the harm suffered.
[22] Section 12(3) also requires consideration of what knowledge the applicants
could reasonably have acquired through the exercise of reasonable care. The
MEC has not demonstrated what additional steps reasonably diligent lay persons
ought to have taken beyond those which the applicants in fact took. No evidence
has been presented suggesting that the relevant medical records were readily
available to them, that expert medical advice could reasonably have been
obtained at an earlier stage, or that the material facts underpinning the alleg ed
negligence were otherwise accessible without specialised investigation. In these
circumstances, the applicants cannot be criticised for pursuing the statutory
disciplinary process as the primary means of obtaining the information necessary
to evaluate a potential claim.
[23] It follows that this is not a case in which the applicants delayed
unreasonably before embarking upon enquiries concerning the circumstances of
the deceased’s treatment. They acted promptly, consistently, and diligently. The
the deceased’s treatment. They acted promptly, consistently, and diligently. The
delay that thereafter occurred arose substantially from the duration of the
disciplinary process itself rather than from any inaction on their part.
[24] The MEC correctly submits that the present proceedings do not constitute
the trial of a special plea of prescription. Nevertheless, s 3(4)(b)(i) requires this
Court to be satisfied that the debt has not been extinguished by prescription before
condonation may competently be granted. This Court cannot avoid determining
that jurisdictional question merely because the ultimate merits of the
contemplated action remain to be adjudicated.
[25] Having regard to the evidence before th is Court, the applicants’ prompt
and diligent conduct, the factual complexity inherent in the medical issues
involved, the objective difficulties confronting lay persons in acquiring the
material facts necessary to evaluate a medical negligence claim, and the
principles articulated in Links, I am satisfied that the a pplicants did not possess,
nor could reasonably have acquired through the exercise of reasonable care, the
material facts contemplated by s 12(3) of the Prescription Act until the HPCSA
investigation had materially clarified the factual basis upon which negligence
could reasonably be inferred.
[26] It follows that the debt had not become due during February 2015 in the
manner contended for by the MEC . Consequently, prescription had not
extinguished the applicants’ claim before service of the statutory notice or before
summons was issued. The jurisdictional requirement contained in s 3(4)(b)(i) has
therefore been established.
[27] This conclusion must not be misconstrued. This judgment does not establish
or propose a general rule that prescription in medical negligence matters
commences only once disciplinary proceedings, or expert investigations have
been completed. Each case must be determined upon its own peculiar facts. The
conclusion reached in the present matter rests upon the particular chronology of
events specific to this matter. T he applicants’ demonstrated diligence, the
complexity of the underlying medical issues, and the absence of evidence that the
material facts giving rise to the claim could reasonably have been acquired at an
earlier stage.
Good cause
[28] The second jurisdictional requirement is whether the a pplicants have
shown good cause for their failure to comply with s 3(2)(a) of the Act. The
concept of “good cause” is not susceptible to precise definition. It requires a
broad, flexible, and equitable assessment of all relevant circumstances, including
the explanation for the delay, the applicants’ conduct throughout the period of
non-compliance, the bona fides of the application, the prospects of success in the
contemplated action, and the interests of justice.
[29] The chronology has already been described. Shortly after the deceased’s
death, the applicants lodged a complaint with the HPCSA. That complaint
remained under investigation for more than three years. Once informed of the
disciplinary outcome on 7 May 2018, the applicants consulted attorneys and
caused the statutory notice contemplated by s 3 of the Act to be served during
October 2018. Summons followed in 2019.
[30] The explanation advanced for the delay is coherent, candid, and supported
by the objective chronology. The applicants did not ignore their rights, abandon
their claim, or display indifference to the statutory requirements. Their conduct
throughout demonstrates an ongoing attempt to establish whether they possessed
a sustainable claim arising from the medical treatment administered to the
deceased. They pursued the investigative process available to them with
reasonable diligence before embarking upon expensive civil litigation.
[31] The MEC criticised the applicants for awaiting the outcome of the HPCSA
proceedings before serving the statutory notice. While it may, with the benefit of
hindsight, have been possible to adopt a different procedural course, the enquiry
is not whether the applicants acted perfectly. The question is rather whether they
acted reasonably in the circumstances confronting them. In my view, the
applicants indeed acted reasonably in the circumstances. Their conduct reflects a
bona fide attempt to obtain the factual information necessary to assess the
viability of a medical negligence claim rather than a deliberate disregard of the
statutory notice provisions.
[32] Prospects of success remain a relevant consideration in assessing good
cause, although they are not decisive. I am not called upon to determine the merits
of the contemplated action. It is sufficient that the proposed claim is neither
frivolous nor vexatious and discloses a prima facie basis upon which relief may
ultimately be obtained.
[33] In this regard, the applicants rely on allegations that the deceased was
examined and discharged despite symptoms that, if properly managed, ought to
have prompted further investigation or admission. That her condition deteriorated
shortly thereafter; that emergency surgery subsequently became necessary; and
that she died despite those interventions. The prompt complaint to the HPCSA,
the ensuing statutory investigation, and the disciplinary findings ultimately made
against Dr Dube do not establish civil negligence. They do, however, demonstrate
that the contemplated action cannot properly be characterised as speculative or
manifestly without merit.
[34] The aforesaid factors cumulatively considered, I am satisfied that the
applicants have established good cause within the meaning of s 3(4)(b)(ii) of the
Act.
Prejudice
[35] The remaining jurisdictional requirement is whether the MEC has
demonstrated that it has suffered unreasonable prejudice as a consequence of the
applicants’ failure to serve the statutory notice within the period prescribed by s
3(2)(a). Unlike the requirement of good cause, which focuses primarily upon the
conduct of the creditor, this enquiry is directed at the practical effect of the delay
upon the organ of state’s ability fairly to investigate and defend the contemplated
proceedings.
[36] It is well established that prejudice cannot simply be presumed from the
passage of time. While delay is undoubtedly relevant, s 3(4)(b)(iii) requires proof
of unreasonable prejudice. The statutory requirement contemplates actual
disadvantage rather than speculative or theoretical inconvenience. The MEC
bears the evidentiary burden of placing before this Court sufficient facts
demonstrating that the delay has materially impaired its ability properly to
investigate the claim or present its defence.
[37] The MEC’s opposition is directed primarily at the issues of prescription
and the applicants’ alleged failure to comply with the statutory notice provisions.
Relatively little or no evidence has been presented concerning actual prejudice
arising from the delay itself. The MEC has not identified any witness who has
become unavailable, whose recollection has materially deteriorated, or whose
evidence can no longer reasonably be obtained. The MEC has also not alleged
that any relevant medical records have been lost, destroyed, or rendered
unavailable through the passage of time.
[38] Equally absent is any evidence that contemporaneous investigations could
not be undertaken, that relevant hospital documentation was no longer accessible,
or that the MEC’s ability to obtain expert opinion has been compromised. The
allegations of prejudice remain generalised and largely inferential.
[39] The chronology of events also bears upon this enquiry. The applicants
initiated the HPCSA complaint within approximately one month of the
deceased’s death. The events giving rise to the contemplated litigation, therefore,
became the subject of a formal investigation at a relatively early stage. Medical
records, professional explanations, and other relevant documentation would
ordinarily have been assembled or considered during that process. While the
HPCSA investigation cannot substitute for the MEC’s own preparation of its
defence, it significantly diminishes the suggestion that the underlying events
remained dormant or incapable of investigation for an extended period. Further,
the MEC has not suggested that the disciplinary proceedings impaired the ability
to defend the contemplated civil action.
[40] The mere effluxion of time, without more, cannot establish unreasonable
prejudice. If it were otherwise, s 3(4) would seldom serve any practical purpose,
since every application for condonation necessarily involves some degree of
delay. The Legislature plainly contemplated that condonation may be granted
notwithstanding delay, provided the statutory requirement s have been satisfied,
and no material prejudice has been demonstrated.
[41] Having considered the evidence placed before th is Court, I am not
persuaded that the MEC has established unreasonable prejudice within the
meaning of s 3(4)(b)(iii). This jurisdictional requirement has accordingly also
been satisfied.
Interests of justice
[42] Although s 3(4)(b) prescribes the jurisdictional requirements for
condonation, the discretion to grant or refuse condonation must ultimately be
exercised judicially. This Court must have regard to the interests of justice and
the constitutional imperative that disputes should, where reasonably possible, be
determined on their merits (substance) rather than defeated by procedural default.
[43] This does not imply that procedural requirements are not important. The
notice contemplated by s 3 serves an important legislative purpose , and litigants
are expected to comply with it. Condonation is not granted merely because non-
compliance has occurred or because an HPCSA investigation has taken place.
Each application must be assessed on its own facts and against the statutory
requirements prescribed by the Legislature.
[44] In the present matter, the applicants did not ignore their obligations. They
acted promptly following the deceased’s death. They invoked the statutory
disciplinary processes available to them . They pursued those proceedings
diligently over several years. They consulted legal representatives immediately
after receiving the disciplinary outcome, and served the statutory notice within a
relatively short period thereafter , and subsequently instituted action. Their
conduct throughout demonstrates diligence rather than indifference.
[45] The MEC’s opposition to the application must be considered against these
considerations. The MEC has been unable to establish that the debt became
prescribed or that it has suffered unreasonable prejudice as a consequence of the
delay. The explanation advanced by the Applicants is reasonable, bona fide, and
objectively supported by the chronology. Their contemplated action cannot
properly be characterised as speculative or devoid of merit.
[46] To refuse condonation in these circumstances would elevate procedural
form above substantive justice. The purpose of s 3(4) is not to provide an arbitrary
procedural barrier to litigation, but to ensure that non-compliance is excused only
where the statutory safeguards enacted by the Legislature have been satisfied.
Those safeguards have, in my view, been met in the present matter.
Conclusion
[47] Having considered each of the jurisdictional requirements prescribed by s
3(4)(b) of the Act, I am satisfied that the applicants’ claim had not been
extinguished by prescription; the applicants have established good cause for their
failure to serve the statutory notice within the prescribed period; and the MEC
has failed to demonstrate that it suffered unreasonable prejudice arising from the
delay.
[ 48] The discretion conferred by s 3( 4) is accordingly exercised in favour of the
applicants.
Costs
[ 49] There is no reason why costs should not follow the result. The applicants
have been put to costs by the opposition from the MEC, to the relief sought. They
are accordingly entitled to costs. The application raised issues that required
careful preparation and consequent scrutiny, relevant to the specific facts of this
matter, and an order as to costs is warranted on Scale C.
Order
[50] I accordingly make the following order:
1. The Applicants' failure to comply with section 3(2)(a) of the
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002 is condoned.
2. The Applicants are authorised to proceed with the action instituted
under case number 2917/2019.
3. The Respondent shall pay the costs of this application on the party
and-party scale, Scale C, which costs shall include the costs of
counsel, as taxed or agreed.
AH PETERSEN
ACTING DEPUTY JUDGE PRESIDENT
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the Applicants: Adv T W Snyders
Instructed by: Gildenhuys Malatji Attorneys
c/o Labuschagne Attorneys
Mahikeng
For the Respondent: Mr N E Nene
Instructed by: State Attorney, Mahikeng