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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
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case No: 2020-05850
In the matter between:
D[…] E[…] M[…] , Applicant/Plaintiff
in her personal capacity and
on behalf of K[…] M[…]
and
THE MEMBER OF THE EXECUTIVE Respondent/Defendant
COUNCIL FOR HEALTH, GAUTENG PROVINCE
Heard on: 2 3 July 2026
Decided on: 31 July 2026
Coram: N Strathern AJ
Summary: Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 —
section 3 — medical-negligence claim arising from cerebral palsy allegedly caused by
intrapartum hypoxic -ischaemic injury — applicant’s knowledge of birth asphyxia and later
tentative suggestion of improper care — specialist medical evidence required to identify
Reportable: No
Of interest to other Judges: No
Revised: No
Date: 31 July 2026 N Strathern AJ
Signature: ________________
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causation and alleged breach of obstetric standard — first expert opinion inconclusive on
negligence — later MRI and paediatric evidence identifying intrapartum hypoxia — applicant
acquiring knowledge of material facts only when expert’s report was available and explained in
2019 — defects in statutory notice served before debt became due condoned — defective
service upon MEC rather than Head of Department — condonation granted for service defect —
personal claim not prescribed.
______________________________________________________________________
JUDGMENT
____________________________________________________________________________
N Strathern AJ
[1] The applicant seeks declaratory relief that she acquired knowledge of the
material facts giving rise to her personal claim against the respondent on
25 October 2019 and that the notice of intended legal proceedings served
on 23 August 2017 complied with section 3 of the Institution of Legal
Proceedings against Certain Organs of State Act 40 of 2002 (the Act) .
Alternatively, she seeks condonation under section 3(4) of the Act for any
late or defective service of that notice, including condonation for service
upon the MEC rather than the Head of Department. The relief is sought in
respect of the applicant’s personal claim and the claim advanced in her
representative capacity on behalf of K (the minor child).
[2] The respondent accepts that K’s claim has not prescribed and does not
oppose condonation in the applicant’s representative capacity. Its
opposition is confined to the applicant’s personal claim, which it says
prescribed before the issue and service of summons on 26 February
2020. The Respondent accepts that the action on behalf of the minor child
has not prescribed in that she is under the age of 18 years and
permanently mentally incapacitated for which the a pplicant's allegedly
defective section 3 notice may be condoned.
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[3] There are two issues that require discussion: when did the applicant
require the requisite knowledge in respect of her claim and is condonation
required in respect of the section 3 notice.
Background
[4] The application arises from the birth of K at Tembisa Hospital on 18 April
2013. The applicant was informed, approximately one week later, that the
child had suffered birth asphyxia and permanent brain damage. The
applicant alleges that she did not then know what caused the asphyxia or
whether hospital staff had acted negligently.
[5] In September 2014, while attending a neuro- clinic with K, the applicant
was informed by a third party also attending at the clinic that the child’s
condition might have resulted from improper care by hospital staff during
delivery. The applicant consulted her attorneys on 10 September 2014.
She was advised that expert reports would be necessary to determine
whether she had a claim.
[6] The attorneys obtained the hospital records and sought an opinion from Dr
Pierre Davis, a gynaecologist. In an email dated 30 May 2016, Dr Davis
expressed the view that the clinical picture was suggestive of hypoxia
during labour but that he could not conclude, on the evidence available to
him, that the hospital staff had been negligent. The applicant says that this
opinion did not give her a basis to believe that she had a claim founded on
negligence.
[7] A notice of intended legal proceedings was served on 23 August 2017 by
the applicant’s attroneys. The notice contained allegations of negligent
care, inadequate fetal monitoring and causal injury. The applicant says
that the notice was served protectively while the investigation was
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ongoing, and before later specialist evidence supplied a coherent factual
explanation of the injury. The papers also record that the applicant
returned to the attorneys in January 2018 after receiving a registered
letter. The extent and substance of her engagement with the attorneys
before and after service of the notice form part of the factual context.
[8] An MRI was completed in June 2018 and reported upon by Prof Savvas
Andronikou in September 2018.
[9] On 11 July 2019, Dr Humphrey Lewis, a paediatrician, examined K and
concluded that the adverse outcome was related to an intrapartum
hypoxic-ischaemic condition, neonatal encephalopathy and seizures,
resulting in cerebral palsy. The applicant’s case is that the report, when
made available and explained to her on 25 October 2019, first supplied
the material factual basis for her claim.
[10] The combined summons was issued on 21 February 2020 and was
served on the respondent on 26 February 2020. The respondent
thereafter delivered a plea and special plea, contending that the
applicant’s personal claim had prescribed and that there had been non-
compliance with the statutory notice provisions.
[11] The applicant accordingly brought the present application. The respondent
accepts that the claim pursued by the applicant on K’s behalf has not
prescribed and that the defective notice may be condoned in that
representative capacity. The dispute before this Court concerns the
applicant’s personal claim: whether she had acquired, or could by
reasonable care have acquired, the knowledge contemplated in section
3(3)(a) of the Act and section 12(3) of the Prescription Act 68 of 1969 (the
Prescription Act) before the date on which she relies.
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[12] The respondent alleges that the applicant knew the identity of the debtor
from her discharge from Tembisa Hospital in April 2013, knew that K had
suffered birth asphyxia and a brain injury, was told in September 2014 that
the condition might have resulted from improper delivery care, consulted
attorneys and caused hospital records to be obtained, and received Dr
Davis’s May 2016 opinion that the clinical picture suggested hypoxia
during labour. The respondent contends that these facts, alternatively the
facts reasonably obtainable through further investigation, meant that the
applicant’s personal claim prescribed before the service of summons.
[13] Although both parties referred the Court to medico-legal reports, no finding
is made in this judgment on the merits of the competing expert opinions,
including negligence, factual causation, legal causation or quantum. The
reports have been considered only for the limited purpose of determining
when the applicant acquired, or could by the exercise of reasonable care
have acquired, knowledge of the material factual matrix necessary to her
delictual claim, particularly the facts bearing on the cause of K’s injury and
the possible role of the conduct of the hospital staff. The ultimate
resolution of the expert disputes remains a matter for the trial court.
Applicable legal principles
[14] The Act’s preamble states that its purpose is to regulate and harmonise
the prescription periods of debts for which certain organs of state are
liable and to make provision for notice requirements before legal
proceedings are instituted. The notice requirement gives an organ of state
the opportunity to investigate a claim, assess its potential liability and
decide responsibly whether to settle or defend it before litigation costs are
incurred.
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[15] That purpose must be pursued consistently with section 34 of the
Constitution, which guarantees the right to have legal disputes resolved in
a fair public hearing, and section 39(2), which requires legislation to be
interpreted in a manner promoting the spirit, purport and objects of the Bill
of Rights. The Act is not a technical trap. It protects a legitimate public
interest in early notice while preserving a genuine litigant ’s access to
court.
[16] Section 3(3)(a) provides that, for notice purposes, a debt is not regarded
as due until the creditor knows the identity of the organ of state and the
facts giving rise to the debt. The creditor is deemed to have knowledge
only when those facts could have been acquired by exercising reasonable
care. Section 12(3) of the Prescription Act 68 of 1969 is materially similar.
[17] In Links v Member of the Executive Council, Department of Health,
Northern Cape Province 2016 (4) SA 414 (CC), the Constitutional Court
held that a party relying on prescription in a professional -negligence
matter must establish both the facts which the claimant was required to
know before prescription could commence and the claimant’s knowledge
of those facts. The relevant facts are the material facts from which the
debt arose. In this matter the onus in relation to the claim of prescription
lies with the respondent.
[18] It held that a plaintiff must have sufficient facts to cause reasonable
grounds for suspecting that medical staff were at fault and for seeking
further advice. The Court also recognised that a person without medical
knowledge cannot ordinarily know the cause of an adverse medical
outcome without relevant professional advice.
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[19] In essence the plaintiff must possess enough facts to give reasonable
grounds for suspecting that medical staff were at fault and to cause the
plaintiff to seek further advice. Until then, the claimant cannot be said to
have the statutory knowledge of the facts from which the debt arises.
[20] Links correctly identif ies the further principle that negligence and
causation in a delictual medical -negligence claim have factual as well as
legal elements. A plaintiff who lacks medical knowledge cannot ordinarily
know the cause of an adverse medical condition without an opportunity to
consult an appropriate medical professional or specialist. The statutory
enquiry remains one of knowledge of material facts, not knowledge of
legal conclusions.
[21] In Loni v Member of the Executive Council, Department of Health, Eastern
Cape, Bhisho 2018 (3) SA 335 (CC) the court applied the Links principle
but reached a different result on markedly different facts. The plaintiff
personally experienced an infected and oozing wound, persistent pain,
inadequate treatment and possessed the hospital file. Those facts made it
objectively unreasonable to continue believing that adequate treatment
had been received. They supplied reasonable grounds to suspect fault
and seek advice before the eventual expert opinion. The case confirms
that prescription does not await definitive expert proof where the
claimant’s personal knowledge already supplies facts indicating fault.
[22] Links and Loni are therefore complementary. The former applies where
expert evidence is required to identify the medical mechanism of injury
and possible professional fault. The latter applies where the plaintiff ’s
personal knowledge of the treatment and its consequences already make
substandard care objectively apparent. This matter falls within the Links
category.
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[23] The comparable, High Court decision in Maleshiyo v MEC for the
Department of Health, Eastern Cape [2021] JDR 0476 (ECB) concerned a
mother’s claim arising from cerebral palsy. It held that a lay mother who
had only a concern about her child’s condition did not have the requisite
knowledge until medical records and specialist opinion identified the
relevant obstetric facts. The decision illustrates the practical operation of
Links in an obstetric negligence scenario.
Application to the facts
[24] It must be emphasised that medical negligence is not ordinarily
established merely because a plaintiff has suffered, or observed, an
adverse medical outcome. It requires expert evidence to identify the
medical mechanism of injury, distinguish competing causes for the injury ,
identify the applicable professional standard, and determine whether the
conduct of the professionals fell below the required standard. A layperson
cannot perform that task. Nor can attorneys, without competent medical
assistance, infer from an outcome as serious as cerebral palsy what
occurred during labour, whether it was avoidable, and whether any
omission by the treating staff caused it.
[25] The complexity of the medical assessment is further demonstrated by the
respondent’s own reliance on six experts: a paediatrician, medical
geneticist, obstetrician and gynaecologist, radiologist, paediatric
neurologist, and paediatrician/neonatologist. Their opinions require input
from further experts . Dr Sanyane deferred the timing of the brain injury
and the management of the pregnancy, labour and delivery to an obstetric
expert; Dr Bhengu deferred any assessment of negligence to an
obstetrician and neonatologist; Dr Mteshana likewise deferred the timing
of the injury and the relevant management issues to obstetric and
neonatal experts; and Dr Kamolane indicated that further specialist
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assessment was required to determine the probable cause and timing of
the brain injury. Even the respondent’s obstetric expert deferred aspects
of the neonatal outcome to paediatric expertise. This multiplicity of
disciplines and interdependent opinions underscores that neither the
applicant, as a layperson, nor her attorneys could reasonably have
identified the factual basis for negligent medical treatment without
obtaining and evaluating appropriate expert evidence.
[26] This matter falls within the Links category. The applicant’s knowledge in
2013 was knowledge of harm: birth asphyxia and brain injury. It did not
reveal whether the asphyxia was unavoidable, genetic, infective,
antenatal, neonatal or attributable to intrapartum management. The 2014
neuro-clinic comment was expressly tentative. It gave the applicant a
reason to investigate, and she acted on that concern by consulting
attorneys.
[27] The record itself was incomplete and, in material respects, unclear. The
CTG traces were unavailable. The Apgar scoring chart and resuscitation
documents were absent. Parts of the partogram and clinical notes were
illegible. Some laboratory information was incomplete. Neither the
applicant, as a layperson, nor her attorneys could determine from the
adverse outcome and the raw record whether intrapartum management
departed from the proper professional standard.
[28] Dr Davis’s May 2016 opinion did not convert the initial suspicion into the
material knowledge required by the Act. It identified a clinical picture
suggestive of intrapartum hypoxia, but did not conclude that staff
negligence was responsible. It was reasonable for the applicant to
understand that no reliable factual basis for a negligence claim had then
been established.
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[29] Dr Davis did not say merely that the evidence was incomplete in some
peripheral respect. He was asked to address medical negligence and
could not, on the available record, do so. It was reasonable for the
applicant, a layperson, to understand that she did not then have a reliable
factual basis on which to attribute K’s disability to negligent hospital care.
[30] The subsequent expert evidence supplied the causal context. Prof
Andronikou’s MRI report identified a global hypoxic -ischaemic injury in a
term-maturity brain and did not reveal congenital infection or malformation.
Dr Lewis linked the injury to an intrapartum hypoxic -ischaemic condition,
neonatal encephalopathy and seizures, resulting in cerebral palsy. The
medical significance of that conclusion is that the injury was placed in the
period during which the mother and child were under the care of the health
care professionals responsible for the delivery and birth of K , rather than
being explained by a congenital abnormality or a pre- existing genetic
condition.
[31] Dr Stevens’s later obstetric report identified the alleged departures from
proper care: failure to recognise and prioritise a high- risk labour,
inadequate fetal monitoring, deficient management of prolonged labour,
poor documentation and delay in detecting or delivering a distressed fetus.
The report was obtained after summons and does not retrospectively
determine the commencement of prescription. It nevertheless confirms
that the alleged negligence concerns specialist issues of fetal monitoring,
labour progress, fetal compromise and timing of delivery.
[32] The respondent’s experts raise alternative possibilities, including neonatal
hypoglycaemia, congenital pneumonia and the difficult Caesarean
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delivery. That disagreement reinforces rather than weakens the
conclusion that the medical cause of the injury and the role of hospital
conduct could not be ascertained by the applicant or her attorneys without
specialist evidence. The ultimate expert dispute remains for trial.
[33] The August 2017 notice contained detailed allegations of negligent care. It
is the respondent’s most substantial answer to the applicant’s 2019
knowledge case. But the notice was drafted by attorneys while the medical
investigation remained incomplete and after Dr Davis had been unable to
conclude negligence. It is properly characterised as an anticipatory or
precautionary notice designed to protect a potential claim. Its service does
not inevitably establish that the applicant personally had actual or deemed
knowledge of every material fact required by section 3(3)(a).
[34] The respondent’s submission that the 2014 comment and attorney
consultation started prescription confuses a reason to investigate with
knowledge of the material facts. That conflation is inconsistent with Links .
The applicant did seek assistance. The resulting medical investigation
initially produced an inconclusive opinion. Her conduct cannot fairly be
characterised as a failure to act reasonably merely because she did not
independently resolve technical medical questions that remained
unresolved for the professionals.
[35] Nor does the section 3 notice of August 2017 establish that the applicant
had actual knowledge of negligence. The notice was a prudent protective
step taken by her attorneys while medical investigation continued. It
cannot be treated as proof that she personally knew the factual basis of
fault and causation.
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[36] The respondent bears the onus of proving prescription. It has not shown
that the applicant possessed, before the later expert investigation,
sufficient facts to form reasonable grounds for believing that staff
negligence caused the injury. The respondent’s own expert material
confirms that causation remains medically complex: some experts
recognise hypoxic injury around birth, others raise possible contributions
from hypoglycaemia, congenital pneumonia or the difficult Caesarean
section.
[37] The Court need not decide whether the anticipatory notice, standing
alone, fully complied with section 3(2). The applicant seeks alternative
condonation. If the notice was premature, incomplete or served upon the
incorrect statutory functionary, section 3(4) permits the Court to cure the
non-compliance once the statutory requirements are met.
[38] I find that the applicant acquired the requisite knowledge when Dr Lewis’s
report was available and explained to her on 25 October 2019. The
respondent has not established that, before that date, the applicant had,
or through reasonable care must be deemed to have had, sufficient
material facts to suspect that negligent medical management caused the
child’s disability. The personal debt has not prescribed.
Condonation, conditions and leave to proceed
[39] Section 3(4)(b) requires the Court to be satisfied that the debt remains
extant, good cause exists and the organ of state has not been
unreasonably prejudiced. In Madinda v Minister of Safety and Security
2008 (4) SA 312 (SCA), the Supreme Court of Appeal held that good
cause is a contextual enquiry in which the explanation, prospects, bona
fides, responsibility for the delay and the interests of justice must be
considered together.
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[40] The first requirement has been met for the reasons already given. The
personal claim has not prescribed and the representative claim is, in any
event, accepted to be extant.
[41] The applicant has established good cause. She sought legal assistance
after receiving the 2014 information. Records and expert opinions were
obtained. The first specialist opinion was inconclusive. The applicant’s
position is strengthened by the fact that, when the first medical specialist
considered the available material, he could not reach a negligence
conclusion. It would be artificial to find that a lay person had knowledge of
medical fault at a point when the gynaecologist consulted by her attorneys
could not identify it.
[42] The notice served in 2017 was protective and anticipatory. The chronology
reflects an attempt to preserve and investigate a complex medical -
negligence claim, not wilful or reckless disregard of the Act.
[43] It follows that the applicant’s evidence that the relevant knowledge was
acquired only when Dr Lewis’s report was available and explained to her
is consistent with the objective complexity of the medical material. I accept
that evidence. For purposes of section 3(3)(a) of the Act and section 12(3)
of the Prescription Act, the applicant acquired the requisite knowledge on
25 October 2019.
[44] The applicant’s prospects are sufficient. Her expert evidence identifies an
arguable case of inadequate fetal monitoring, deficient management of
prolonged labour and delayed delivery. The respondent’s contrary expert
evidence creates a triable issue; it does not extinguish prospects for the
purposes of section 3(4).
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[45] The respondent has not demonstrated unreasonable prejudice. It received
a detailed notice in August 2017, has access to the hospital records, has
pleaded over and has commissioned multiple expert reports. It has not
identified a witness, document or forensic opportunity lost because of any
timing, content or service defect in the notice.
[46] There remains, however, a separate question of ‘ service’. The parties’
joint practice note records that the applicant seeks condonation for service
of the notice on the MEC rather than on the Head of Department.
[47] The personal claim remains extant , the applicant has shown good cause
for the defective service, and there is no evidence of unreasonable
prejudice. The notice reached the MEC, the executive authority of the
department responsible for the hospital staff, and the respondent has in
fact investigated, pleaded and obtained expert opinions. In comparable
circumstances, Mafuduka v MEC for Health, Eastern Cape Provincial
Government 2023 JDR 0979 (ECB) confirms that a defect in service upon
the proper departmental functionary is addressed by the condonation
enquiry, which turns materially on actual prejudice.
[48] I am satisfied that all three requirements in section 3(4)(b) have been met.
Condonation should therefore be granted. Under section 3(4)(c),
conditions should be imposed to cure any residual notice defect and
ensure that the Head of Department receives a clear account of the
factual basis on which the claim now proceeds.
[49] Within 20 days of this order, the applicant shall serve on the Head of
Department: Gauteng Department of Health:
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a. the notice dated 15 August 2017;
b. a copy of this judgment and order;
c. a concise supplementary notice identifying the alleged intrapartum
hypoxic-ischaemic injury and the alleged failures in fetal monitoring,
labour management and timely delivery; and
d. the available reports of Prof Andronikou, Dr Lewis and Dr Stevens.
[50] The respondent may, within 30 days after such service, deliver any
consequential amendment to its plea. The action shall otherwise proceed
in the ordinary course.
The following order is made:
[1] In terms of section 3(4)(b) of the Institution of Legal Proceedings against
Certain Organs of State Act 40 of 2002, the applicant’s non- compliance
with sections 3(1), 3(2) and 4(1) of the Act is condoned in respect of both
her personal claim and the claim pursued on behalf of K[…] M[… ].
[2] In terms of section 3(4)(c) of the Act, the applicant is granted leave to
proceed with the existing action, subject to the conditions in paragraphs
49 of this judgment.
[3] The costs of this application are costs in the action.
N STRATHERN
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
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Appearances
For the Applicant:
Adv T Mirtle
Instructed by:
Raphael & David Smith Incorporated
Attorney: Andrew Holt
For the Respondent:
Adv R Ram SC
Instructed by:
The State Attorney, Johannesburg
Attorney: Brunhilda Mokgohloa