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[2016] ZACC 10
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Links v Member of the Executive Council, Department of Health, Northern Cape Province (CCT 29/15) [2016] ZACC 10; 2016 (5) BCLR 656 (CC); 2016 (4) SA 414 (CC) (30 March 2016)
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 29/15
In the matter between:
DIRK
LINKS
Applicant
and
MEMBER OF THE EXECUTIVE COUNCIL, DEPARTMENT
OF HEALTH, NORTHERN CAPE
PROVINCE
Respondent
Neutral citation:
Links v MEC for Health, Northern Cape
[2016] ZACC 10
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe
J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis
AJ and
Zondo J
Judgment:
Zondo J (unanimous)
Heard on:
25 August 2015
Decided on:
30 March 2016
JUDGMENT
ZONDO J (Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J,
Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J and
Wallis
AJ concurring):
Introduction
[1] The applicant has applied for leave to appeal against a judgment
and order of a Full Court of the Northern Cape Provincial
Division of
the High Court
[1]
(Full Court) in terms of which that Court dismissed his appeal with
costs. The appeal was against an order of a Judge of that Division,
Mamosebo AJ
[2]
(High Court), which related to the applicant’s claim for
damages against the respondent. The applicant’s claim was
held
by the High Court to have prescribed. For that reason, the High Court
dismissed the applicant’s application for the
condonation of
his failure to comply with the requirements of section 3 of the
Institution of Legal Proceedings Against certain
Organs of State
Act
[3]
(Legal Proceedings Act). In terms of that provision the applicant was
required to give the respondent notice in writing within
six months
from the date on which the “debt became due”. This was
required before he could institute the legal proceedings
against the
respondent. The applicant had failed to give that notice within the
prescribed period.
Background
[2] The undisputed facts are the following. In 2006 the applicant
worked as a cleaner. His highest level of education is Grade
7. On 26
June 2006 he dislocated his thumb on his left hand and went to
Kimberley Hospital for medical treatment. There were no
open wounds
on his left hand or thumb. A plaster of Paris cast was put on his
left hand and forearm. He was then sent home and
asked to return
after 10 days to have the cast removed.
[3] After four or five days the applicant returned to the hospital
because he was experiencing severe pain and discomfort in his
left
arm and hand. This would have been on 30 June 2006. The hospital
staff conducted a clinical examination of the applicant’s
left
hand and gave him pain medication. He was told to return after five
days. About three or four days later he returned to the
hospital.
This was on 4 July 2006. He returned before the expiry of five days
because the pain on his left arm and hand had increased
and had
become unbearable. On this occasion he was admitted.
[4] On 5 July 2006 the applicant was taken to theatre for a
fasciotomy
[4]
and was operated on under general anaesthetic. During this operation
his left thumb was amputated. He remained in hospital. He
claims that
he was never told of the decision to amputate his thumb nor was he
told the reason for it. The applicant was again
operated upon on 12,
15 and 21 July 2006 for the debridement
[5]
of the left thumb. The applicant remained in hospital until the end
of August 2006 when he was discharged.
[5] There is no evidence that the hospital doctors or nurses ever
explained to the applicant why he was feeling pain after 26 June
2006. Nor is there any admissible evidence to show that anybody ever
spoke to the applicant about why it was necessary to amputate
his
thumb. The applicant says that, although his thumb was amputated on 5
July 2006, he was unaware of this before his discharge
from hospital.
[6] This part of the applicant’s version can simply not be true
and falls to be rejected. It is highly improbable that, for
about 2
months after the amputation, he would not have felt that he no longer
had his thumb. It is equally improbable that over
that period the
medical and nursing staff would not have talked to him about how he
was coping without the thumb.
[7] Furthermore, after the amputation of his thumb, the applicant’s
wound would have needed to be dressed regularly. This
would have
happened while he was in hospital. The applicant’s version is
that, after his discharge from hospital, he regularly
attended the
out-patient department so that the wound could be cleaned. Logically,
it must also have been regularly dressed while
he was in hospital.
How could he not have noticed when the wound was cleaned that he had
lost his thumb? However, this is not the
end of the matter. As will
be shown later in this judgment, he needed to know other facts as
well.
[8] The applicant says that on the day that he was discharged from
hospital a doctor employed in the hospital told him that he
would
probably never again be able to use his left arm. At that stage the
applicant was aware of the risk but not certain that
he had
permanently lost the use of his left arm in addition to losing his
left thumb. For some time after his discharge from hospital,
the
applicant attended the hospital as an out-patient for the cleaning of
the wound on a daily basis. It was during this time about
September
2006 that the applicant realised that he had permanently lost the use
of his arm. By this stage the full extent of the
damage to his arm
was apparent as his hand had “clawed” and had become
unusable.
[9] In November 2006 the applicant approached Booysen Macloed
Attorneys to establish the reason why he had lost the use of his
left
arm and why his thumb had been amputated. He contemplated that if it
could be established that employees of the Kimberley
Hospital had
been negligent he intended to sue. He was told that the firm did not
do medical negligence cases but that, even if
they did, he would need
to pay a deposit. As the applicant was indigent, they referred him to
the Legal Aid Board. In December
2006 he approached the Legal Aid
Centre in Kimberley for legal assistance and asked them to
investigate a possible claim. For about
three years they failed to
institute an action against the respondent. About a week or two
before the expiry of 3 years,
the Legal Aid Centre referred him to
his present attorneys. Within a matter of days these attorneys sent
out to the respondent
a notice required by section 3 of the Legal
Proceedings Act.
[10] Dr Willem Reyneke, a general surgeon, expressed the following
views in regard to what happened with the applicant’s
medical
treatment and his condition:
“
After
clinically
evaluating
Mr
Link’s
current
condition
on
19/01/2011,
as
well
as
having
had
insight
in
the
hospital
records,
as
well
as
the
history
as
disclosed
by
Mr Links regarding the
time and visits to Kimberley Hospital between 27 June 2006;
when he received
plaster
of paris on his arm;
and on 03 July 2006 when
he had the
first
surgery, I hereby want to add the following to my previous statement.
1.
Mr Links presently has a
Volkmann’s contracture of his left hand, as well as
amputation
of
the
distal
phalanx
of
the
left
thumb.
Clinically
there
is
total
loss
of
function
of
the
Ulnar,
Median
and
Radial
nerves
in
the
forearm and
hand.
This includes motor as
well as sensory function.
2.
The causes of Volksmann’s
contraction may be the following:
2.2
Ischemia
due
to vascular injury (this can be thrombosis or bleeding)
with increased pressure
in the muscles compartment of the forearm.
2.3
Plaster
of
paris
for
a
tourniquet
causing
ischemia
because
it
is
too
tight.
3.
Regarding
the
history
of
Mr Links: the injury was on 26 June 2006, and the
treatment
was
given
on
the
26
th
June
2006.
Treatment
included
plaster
of
paris of the left
forearm.
4.
During 5 days (from
26/06/2006 until 03/07/2006) Mr Links went back to the
hospital
on
two
occasions
with
complaints
of
pain.
Pain
medication
was
given.
5.
According
to
the hospital notes the treatment Mr Links received from the 3
rd
of
July 2006 was medically correct. The damage occurred before then.
6.
The
cause
of
the
Volmann’s
contraction
is
most
probably
due
to
plaster
of
paris that was too tight,
and not removed soon enough.
Ischemia developed
and the patient had
severe pain for which he went back to hospital on the 28
th
or
29
th
of
June 2006. He was given pain medication.
IN SUMMARY
The Volksmann’s
contracture is of a severe degree with total loss of function
of the left hand. This is
most probably due to the plaster of paris which was
applied
too
tight
on
the
26
th
of
June
2006,
and
not
removed
when
ischemia
occurred.”
High Court
[11] In due course the applicant’s present attorneys issued
summons in which the applicant claimed damages arising out of
his
treatment at the Hospital. The summons was served on the
respondent on 6 August 2009. In response the respondent raised
two
special pleas. The first one was that the notice in terms of section
3 failed to comply with the requirements of that Act.
The second was
that the applicant’s claim had prescribed because the summons
was served after the lapse of three years from
5 July 2006 when his
thumb was amputated.
[12] After the respondent had filed his plea, the applicant delivered
and served in effect a reply in the form of an application
for
condonation for his failure to comply with section 3. In his founding
affidavit in support of that application, the applicant
dealt with
both special pleas. He needed to deal with prescription because, if
his claim had prescribed, condonation would be refused.
[6]
The respondent opposed the application.
[13] In his founding affidavit the applicant averred that he had no
knowledge before he was discharged from hospital what the reason
for
the amputation of his left thumb was nor did he know the reason for,
or, cause of, the loss of the function of his left hand.
In response
to this affidavit, the respondent delivered two affidavits. One was
by Dr L Koning, who became the medical head of
the Kimberley Hospital
after the time of the applicant’s treatment, and the other by
Mr Ndlovu, the legal advisor in the
respondent’s office.
[14] In her affidavit Dr Koning did not respond at all to any of
these averments. In his affidavit Mr Ndlovu was supposed
to
respond to this averment. Mr Ndlovu had much to say but none of it
was a response to the applicant’s averment that, before
his
discharge from hospital, he had no knowledge of the reason for, or,
cause of, his problem. This, therefore, meant that this
important
averment by the applicant – which goes to the issue of
causation – was not denied. These were the affidavits
on the
basis of which the court of first instance and the Full Court were
required to decide whether the respondent had shown that
the
applicant’s claim had prescribed.
[15] The parties agreed that the Court should deal with the
application for condonation and the special plea of prescription.
They argued the application for condonation on the papers. In dealing
with the application for condonation the Court had to decide
whether
the applicant’s claim had prescribed. This was so because of
the provisions of section 3(4)(b) of the Legal Proceedings
Act.
Section 3(4)(b) refers to an application referred to in paragraph
(a). That is a reference to an application for condonation
such as
the one that the applicant had delivered.
[16] Section 3(4)(b) reads:
“
(b) The court may grant
an application referred to in paragraph (a) if it is
satisfied that—
(i)
the debt has not been
extinguished by prescription;
(ii)
good
cause
exists for the failure by the creditor; and
(iii)
the organ of state was
not unreasonably prejudiced by the failure.”
It is clear from section 3(4)(b) that condonation may not be granted
where the creditor’s claim has prescribed.
[17] The court of first instance quoted the following passage from
Truter
and
Another v Deysel
:
“
. . . ‘debt due’
means a debt, including a delictual debt, which is owing and payable.
A debt is due in this
sense when the creditor acquires a complete cause of action for
the recovery of the debt,
that is, when the entire set of facts which the creditor must
prove
in
order
to
succeed
with
his
or
her
claim
against
the
debtor
is
in
place
or,
in
other words, when
everything has happened which
would entitle the
creditor to
institute
action and to pursue his or her claim.”
[7]
(Footnotes
omitted.)
Mamosebo AJ also referred to
Van
Staden
v
Fourie
[8]
and
Macleod
v
Kweyiya.
[9]
She referred to a passage in
McKenzie
v
Farmers’
Co-operative
Meat
Industries
Ltd
[10]
which was quoted with approval by Van Heerden JA in
Truter and
Another
.
[11]
[18] In seeking to apply the law as reflected in these cases, the
High Court stated:
“
[T]he
[applicant’s]
cause
of
action
was
complete
and
the
debt
of
the
[respondent]
became
due
and
payable
as
soon
as
the
first
known
harm
was
sustained
by
the
[applicant]. The
cause
of
action
arose
on
26
June
2006
when
the
[applicant]
first
presented himself in
hospital for medical treatment.”
[12]
The Court referred to the following passage in the applicant’s
founding affidavit:
“
(E)k
het
egter
nog
steeds
nie
geweet,
en
kon
nog
steeds
nie
vasstel,
sonder
die
hospitaalrekords en-notas
op die leêr, wat die oorsaak van die probleem was en wie /
of
wat
daarvoor
verantwoordelik was
nie.
Ek doen met
respek aan
die
hand
dat
ek
deur
die
uitoefening
van
redelike
sorg
op
die
vroegste
teen
die
einde
van
Januarie 2007
van die
feite bewus
kon geword
het,
indien die Regshulpraad
die
hospitaalrekords aangevra
het
.
”
[13]
[19] The first sentence of the passage is the important one. In it
the applicant said that he did not know and could not know,
without
the hospital records and notes in the file, what the cause of the
problem was and who or what was responsible for it. The
court of
first instance stated that what the applicant said in this passage
was unpersuasive. However, the Court did not give any
reasons why it
was not persuaded.
[20] The Court concluded that the applicant’s claim had
prescribed. It stated that, were it not for that conclusion, it would
have granted the applicant condonation for his failure to comply with
section 3. The High Court dismissed the applicant’s
condonation
application, upheld the respondent’s special plea of
prescription and dismissed the applicant’s claim with
costs
including the costs of two counsel. The applicant applied for leave
to appeal but the High Court refused it.
Full Court
[21] The applicant approached the Supreme Court of Appeal for leave
to appeal against the judgment and order of the court of first
instance. The Supreme Court of Appeal granted the applicant leave to
appeal to a Full Court of the Northern Cape Provincial Division
of
the High Court. In a judgment by Kgomo JP (with Lacock and Pakati JJ
concurring) the Full Court dismissed the appeal with costs.
The
reasons given by the Full Court for its conclusion were substantially
the same as those of the High Court.
In this Court
Jurisdiction
[22] This Court has jurisdiction because the matter involves an
interpretation of legislation that limits the applicant’s
right
in terms of section 34 of the Constitution.
[14]
That is the Prescription Act.
[15]
The meaning that the court a quo attached to section
12(3) of the Prescription Act had the effect of preventing the
dispute between the applicant and the respondent from being resolved
by a court of law. The applicant challenges the correctness
of that
meaning. The provisions of section 39(2) of the Constitution should
be borne in mind. Section 39(2) reads:
“
When
interpreting
any
legislation,
and
when
developing
the
common
law
or
customary
law,
every
court,
tribunal
or
forum
must
promote
the
spirit,
purport
and
objects of the Bill of
Rights.”
The case also implicates the right to security of the person
entrenched in section 12 of the Constitution.
[16]
Leave to appeal
[23] It is in the interests of justice that leave to appeal be
granted. This matter is about the correct interpretation of section
12(3) of the Prescription Act. In particular, the question is what
the “facts” are from which the debt arises which
the
creditor is required to know before the debt can be said to be due
and, therefore, before prescription can start running. This
Court has
not dealt with the meaning of section 12(3). In
Mdeyide
[17]
Van der Westhuizen J referred to section 12(3) and contrasted it with
section 23(1) of the Road Accident Fund Act.
[18]
However, this Court was not called upon to interpret section 12(3) in
that case. Section 12(3) raises important questions about
prescription and the pronouncement of this Court will go beyond the
litigants in this case. Furthermore, there are reasonable prospects
of success for the applicant’s appeal.
The appeal
[24] The question for determination is whether the applicant’s
claim had prescribed by 6 August 2009 when he served summons.
That in
turn depends upon the interpretation of the provision of section
12(3) of the Prescription Act and the application of that
provision
to the facts of this case. The respondent bears the onus to prove
that the applicant’s claim had prescribed by
the given date. In
order for the respondent to prove that, he must show that
prescription began to run against the applicant’s
claim not
later than 5 August 2006. This is so because the period of
prescription applicable is three years. In the context of
section
12(3) the respondent must show what the facts are that the applicant
was required to know before prescription could commence
running. The
respondent must also show that the applicant had knowledge of those
facts on or before 5 August 2006.
[25] Section 12(1), (2) and (3) of the Prescription Act read:
“
(1)
Subject
to
the
provisions
of
subsections
(2),
(3),
and
(4),
prescription
shall
commence to run as soon
as the debt is due.
(2)
If
the
debtor
wilfully
prevents
the
creditor
from
coming
to
know
of
the
existence of the debt,
prescription shall not commence to run until the
creditor becomes aware of
the existence of the debt.
(3)
A debt shall not be
deemed to be due
until
the creditor has knowledge of the
identity
of
the
debtor
and
of
the
facts
from
which
the
debt
arises
:
Provided
that
a
creditor
shall
be
deemed
to
have
such
knowledge
if
he
could
have
acquired it by exercising
reasonable care.” (Emphasis added.)
[26] The provisions of section 12 seek to strike a fair balance
between, on the one hand, the need for a cut-off point beyond which
a
person who has a claim to pursue against another may not do so after
the lapse of a certain period of time if he or she has failed
to act
diligently and on the other the need to ensure fairness in those
cases in which a rigid application of prescription legislation
would
result in injustice. As already stated, in interpreting section 12(3)
the injunction in section 39(2) of the Constitution
must be borne in
mind. In this matter the focus is on the right entrenched in section
34 of the Constitution.
[27] The parties argued this appeal on the basis that section 12 of
the Prescription Act was applicable to the applicant’s
claim. I, too, shall deal with the matter on that basis. Section
12(1) sets out the general rule of prescription under the Act.
It
provides that, subject to two exceptions provided for in subsections
(2) and (3), prescription “shall commence to run
as soon as the
debt is due”. Section 12 then sets out the two exceptions to
this rule.
[28] The applicant’s case is that prescription did not commence
to run against his claim on or before 5 August 2006 because
he did
not by that date have knowledge of the facts from which the debt
arose. He says that he did not know that his left thumb
had been
amputated and only got to know this later. I have already rejected
this. He also says that he did not know what gave rise
to the need
for his thumb to be amputated. He further states that he did not know
the cause for his problem. Nor did he know that
he had permanently
lost the use of his left arm.
[29] The question, therefore, is whether on or before 5 August 2006
the applicant had, in the words of section 12(3), “knowledge
of
the facts from which the debt [arose]”. To make a determination
on this question, it will be important to bear in mind
that from
about 3 July 2006 to the end of August 2006 the applicant was in
hospital. This means that during that period his movement
was
restricted to the hospital. That hampered his ability to acquire
knowledge from anyone beyond the medical and nursing staff
of the
hospital.
[30] The first issue is what the facts are from which a debt arises.
Obviously, these are facts that are material to the
debt.
Counsel for the respondent submitted that the ordinary meaning of the
phrase “debt is due” is that a debt is
“owing and
already payable.” In support of this submission he referred to
Lagerwey
.
[19]
He also referred to
Drennan
where Harms JA said:
“
In
short,
the word ‘debt’ does not refer to ‘cause of
action’, but more generally to the
‘claim’. . .
.In deciding whether a
‘debt’
has become
prescribed, one has to
identify
the
‘debt’, or, put differently, what the ‘claim’
was in the broad sense of the meaning
of the word.”
[20]
Counsel for the respondent also referred to
Sentrachem
where it was held that the word “debt” refers to the
right of action and not to the cause of action.
[21]
In support of this, counsel also referred to
Geldenhuys
,
[22]
Claasen
[23]
and
Nedcor
.
[24]
[31] In
Truter
the Supreme Court of Appeal dealt with
the meaning of the phrase “debt due”. It said:
“
For the purposes of the
Act, the term ‘debt due’ means a debt, including a
delictual
debt,
which
is
owing
and
payable.
A
debt
is
due
in
this
sense
when
the
creditor
acquires
a
complete
cause
of
action
for
the
recovery
of
the
debt
,
that
is,
when
the
entire set
of facts which the
creditor must
prove in order to
succeed with his or her
claim against the
debtor is in place or, in other words, when everything has happened
which
would
entitle the creditor to institute action and to pursue his or her
claim.”
[25]
(Emphasis
added
and footnotes omitted.)
In the next paragraph the Court further said:
“
In
a
delictual
claim,
the
requirements
of
fault
and
unlawfulness
do
not
constitute
factual
ingredients
of the cause of action, but are
legal
conclusions to be
drawn from
the
facts.”
[26]
[32] The Court also quoted
[27]
with approval the following statement in Loubser:
“
A cause of action means
the combination of facts that are material for the plaintiff to
prove in order to succeed
with his action. Such facts must enable a court to arrive at
certain
legal
conclusions
regarding
unlawfulness
and
fault,
the
constituent
elements
of
a
delictual
cause
of
action
being
a
combination
of
factual
and
legal
conclusions,
namely
a
causative
act,
harm,
unlawfulness
and
culpability
or
fault.
”
[28]
(Emphasis
added.)
Quoting from
McKenzie
[29]
,
which was also cited with approval by Corbett JA in
Evins
[30]
,
the Court in
Truter and Another
pointed out:
“‘
Cause
of
action’ for the purposes of prescription thus means:
‘
.
. .every fact which it would be necessary for the plaintiff to prove,
if
traversed,
in order to support his right to the judgment of the Court. It
does
not
comprise
every
piece of evidence
which
is necessary
to
prove each fact, but
every fact which is necessary to be proved.’”
[31]
The respondent also referred to this passage in making his
submissions on when a debt can be said to be due, owing and payable.
[33] In
Evins
the Court stated:
“
[T]he
basic
ingredients
of
the Plaintiff’s cause of
action in the case of an
Aquilian
action for damages for
bodily injury are:
(a)
wrongful act
by the Defendant
causing
bodily injury; (b)
accompanied by fault, in the sense of
culpa
or
dolus
on the part of
the Defendant, and, (c)
damnum
i.e
loss to Plaintiff’s patrimony caused by the bodily
injury.”
(Underlining supplied.)
[32]
[34] In
Deloitte
[33]
the Court said the following about the phrase “debt due”
in section 12(1) of the Prescription Act:
“
This
means
that
there
has
to
be
a
debt
immediately
claimable
by
the
[creditor]
or,
stated
in
another
way,
that
there
has
to
be
a
debt
in
respect
of
which
the
debtor
is
under an obligation to
perform immediately.
.
. .
It
follows that
prescription cannot
begin to run against a
creditor before his cause of action is fully accrued, i.e. before
he is able to pursue his
claim. . ..”
[34]
[35] In
Gore
[35]
the Supreme Court of Appeal said through Cameron and Brand JJA:
“
This
court
has
in
a series of decisions emphasised that time begins to run against the
creditor when it has the
minimum facts that are necessary to institute action.”
[36]
Later on in the same case the Court said:
“
The
defendants’
argument
seems
to us to mistake the nature of
‘knowledge’ that is
required
to trigger
the running of
prescriptive
time.
Mere
opinion
or supposition
is
not
enough:
there
must
be
justified,
true
belief. Belief
on
its
own
is
insufficient.
Belief
that
happens
to
be
true
(as
Rabie
had)
is
also
insufficient. For
there
to
be
knowledge, the belief
must be justified.”
[37]
The Court also said:
“
It
follows
that
belief
that
is
without
apparent
warrant
is
not
knowledge;
nor
is
assertion
and
unjustified suspicion, however passionately harboured; still less is
vehemently controverted
allegation or subjective conviction.”
[38]
[36] Counsel for the applicant submitted that even if the applicant
knew by 5 August 2006 that he had lost his thumb, he did not
and
could not know who or what caused it. Counsel went on to submit that
the reason why the applicant lost his thumb and what caused
it is a
factual question and not a legal conclusion but are part of the
facts that the applicant had to establish before it can be said that
he had knowledge of the facts. On causation she invoked
Lee
[39]
where this Court held:
“
This
element
of
liability
gives
rise
to
two
distinct
enquiries.
The
first
is
a
factual
enquiry into whether the
negligent act or omission caused the harm giving rise to the
claim. If it did not,
then that is the end of the matter. If it did, the second enquiry, a
juridical problem,
arises.”
[40]
[37] Counsel for the applicant submitted that the applicant simply
did not have knowledge to establish, before or on 5 August 2006,
what
caused the problem with his thumb. Despite the fact that the
applicant delivered and served his written submissions before
the
respondent delivered and served his, the respondent did not provide
an answer to the above submissions of the applicant. The
respondent
focused on the applicant’s first contention that he was not
aware of the fact that his left thumb had been amputated
until after
he had been discharged from hospital. With regard to whether on or
before 5 August 2006 the applicant was aware of
what had caused his
problem, the respondent did not make any submission disputing the
applicant’s contention. Instead,
there are indications in
the respondent’s written submissions that tend to support the
applicant’s evidence that at
the hospital nobody ever told him
what had caused his problem.
[38] The respondent submitted:
“
Before
each
surgical
procedure
during
July
2006, the applicant was informed
of the
nature,
extent
and
possible
consequences
of
the
proposed
medical
procedure
and
consented to the
procedure and anaesthesia in writing.”
(Emphasis added.)
This tends to support what the applicant says because, although it
says the applicant was given an explanation with regard to “the
nature, extent and possible consequences of the proposed medical
procedure”, it does not say that the applicant was told
what
had caused his problem.
[39] The respondent’s counsel stated that the applicant was
operated on again subsequent to the fasciotomy on 12 July 2006
and 21
July 2007 for the re-debridement of the left thumb. He then
continued:
“
On these two further
occasions the applicant was informed of the
nature
and
possible
consequences
of the
proposed surgical procedure and consented to the
procedures and
anaesthesia in writing.” (Emphasis added.)
Once again the respondent does not assert that on any of these or
other occasions any doctor or nurse told the applicant what had
caused his problem.
[40] Instead of dealing with the applicant’s evidence that on
or before 5 August 2006 the applicant was not aware of the
reason or
cause for his problem, the respondent deals with what happened at the
end of August 2006 when the applicant was discharged
from hospital.
The respondent’s attitude is that the applicant did not give
any reason why he did not enquire from the doctor
who spoke to him at
the end of August 2006 what the reason was for the amputation and
loss of function of his arm. The respondent
added that it was highly
unlikely that the applicant would not have been informed by any
doctor or other hospital personnel the
reason for the amputation and
loss of the function of his left hand during the period from 4 July
2006 to the end of August 2006.
[41] In part the problem with this submission is that it relates to
what happened after 5 August 2006. Whatever the applicant may
have
known after 5 August 2006 is irrelevant to the respondent’s
special plea on prescription. This is because the special
plea can
only be upheld on the basis of what the applicant knew on or before 5
August 2006. In any event the applicant did provide
an explanation
for this. He said that he had been “brought up to believe that
medical doctors and personnel know what they
are doing”.
[42] There is a further problem with the submission in that it
presupposes that any explanation given to the applicant by the
medical staff would have identified medical error as the actual or
even a potential cause of his injuries. It is not necessary for
a
party relying on prescription to accept liability. To require
knowledge of causative negligence for the test in section 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 as to cause the plaintiff
to seek further advice, the claimant cannot be said to have knowledge
of
the facts from which the debt arises.
[41]
[43] It is now appropriate to return to section 12(3) of the
Prescription Act. That provision says that a debt shall not be deemed
to be due and, therefore, prescription shall not commence to run
“until the creditor has knowledge of the identity of the
debtor
and
of
the
facts
from
which
the
debt
arises
:
provided that a creditor shall be deemed to have such knowledge if he
could have acquired it by exercising reasonable care”.
[42]
(Emphasis added).
[44] In his opposing affidavit in the High Court the respondent did
not rely upon the proviso at the end of section 12(3). Both
Dr Koning
and Mr Ndlovu said nothing that would bring the respondent’s
defence within the proviso. Nor could they have. Both
lacked personal
knowledge of the applicant’s treatment. Therefore, to the
extent that counsel for the respondent may have
sought to rely upon
that proviso in his written submissions, the reliance was misplaced.
This is so because that was not the case
the respondent had advanced
in the affidavit. The respondent’s case as set out in those
affidavits was simply that the applicant’s
cause of action
arose on 26 June 2006 and the applicant had knowledge of all the
relevant facts on that day. The question is, therefore,
whether the
respondent discharged the onus to show that on 26 June 2006 or at any
date on or before 5 August 2006 the applicant
had knowledge of all
the material facts from which the debt arose or which he needed to
know in order to institute action.
[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.
[43]
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 section 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 the 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’s 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.
[47] The opinion given by Dr Reyneke was that the amputation of the
applicant’s thumb and loss of function of the left hand
“was
most probably due to the plaster of paris that was too tight, and not
removed soon enough . . .when ischemia occurred”.
That opinion
was given years after the events in issue. Without advice at the time
from a professional or expert 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 without 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.
[48] Earlier on I rejected the applicant’s version that, prior
to his discharge from hospital, he had no knowledge that his
thumb
had been amputated. However, even if he had known, as we find that he
had known that he had lost his thumb, he still didn’t
know what
had caused the need for the amputation.
[49] The applicant was in hospital between 4 July 2006 and the end of
August 2006. Therefore, realistically, before the end of
August 2006,
he could not have had access to independent medical professionals.
Accordingly, he could not have had knowledge of
all the material
facts he needed to have before he could institute legal proceedings.
Prescription could, therefore, not have begun
running before 5 August
2006. Therefore, on this basis too, the respondent failed to show
that the applicant had knowledge of all
the material facts on or
before 5 August 2006. Accordingly, the applicant’s claim did
not prescribe.
[50] The High Court and the Full Court appear to have overlooked the
question whether the applicant had the full facts necessary
for him
to institute his claim on or before 5 August 2006. He did not know or
have reasonable grounds to suspect that his negligent
treatment at
the hands of the respondent’s personnel had led to the
compartment syndrome. Nor did he know that this in turn
caused the
amputation of his thumb and the loss of function of his left hand. In
my view, the High Court and the Full Court erred
in not approaching
the matter in this way.
[51] The High Court made it clear that, had it not been for its
conclusion that the applicant’s claim had prescribed, it
would
have condoned the applicant’s failure to comply with section 3
of the Legal Proceedings Act. Counsel for the respondent
did not
argue that this conclusion by the court of first instance was wrong.
Indeed, the conclusion seems to me justified. The
applicant
approached attorneys and the Legal Aid Board within two or so months
after being discharged from hospital. He visited
the offices of the
Legal Aid Board on numerous occasions in pursuit of his claim. The
Legal Aid Centre dismally failed to attend
to his matter for about
three years.
[52] Both the High Court and the Full Court criticised the manner in
which the Legal Aid Centre handled the applicant’s matter.
We,
too, add our voice. The conduct of the people who handled the
applicant’s matter at the Legal Aid Centre was reprehensible.
Those who have authority over the people concerned or over the Centre
itself would do well to study the affidavits filed in this
matter and
to take appropriate action against the personnel concerned. The
Centre is supposed to render a service to indigent
people who are
part of a vulnerable section of our society to enable them to pursue
claims that they otherwise would not be able
to pursue for lack of
funds. It should not be the Centre that destroys their claims by
failing to attend to them with diligence
and allowing them to
prescribe. If we had reached a contrary conclusion, the Centre may
well have been liable for the applicant’s
damages.
Nevertheless, the Centre is responsible for a major part of the delay
in the finalisation of this matter and some steps
must be taken
against those responsible.
Condonation
[53] The applicant’s application for leave to appeal was lodged
with the Registrar of this Court out of time. It was on 17
November
2014 that the applicant received the order of the Supreme Court of
Appeal dismissing his application for special leave
to appeal against
the order of the Full Court. That order had been made two days or so
before then. The applicant was required
to lodge the application on
or about 8 December 2014.
[54] On 2 December 2014 the applicant’s attorneys wrote to the
State Attorney and advised that the applicant had been advised
to
have a Senior Counsel with experience in constitutional matters
briefed to prepare an application for leave to appeal to this
Court
and that this could delay the lodging of the application. The State
Attorney responded and said in effect that there was
no explanation
as to why this had not been done earlier. The applicant says that
difficulties were experienced in obtaining Senior
Counsel with
constitutional litigation experience who was prepared to come into
the matter at that stage and to do so on a contingency
fee basis.
This was because the applicant could not afford legal fees. The
Christmas holiday period intervened. The applicant says
the Senior
Counsel who was obtained was only available to attend to the matter
towards the end of January 2015. The application
for leave to appeal
was lodged on 19 February 2015.
[55] The explanation for the delay given by the applicant is not
full. We are not told when he was given advice to involve Senior
Counsel with constitutional litigation experience. We are not told
when the efforts to find him or her started and when exactly
she was
found. We are not told which other Senior Counsel were approached,
when they were approached and what they said.
[56] The delay is not a short delay. However, the respondent had been
informed in advance that there could be a delay in the lodgement
of
the application for leave to appeal. No prejudice has been shown to
have been suffered by the respondent as a result of the
delay. The
issue raised by the matter – namely the interpretation of
section 12 of the Prescription Act – is an important
issue. It
has been shown that the applicant’s prospects of success were
reasonable. In the circumstances it is in the interests
of justice
that the applicant be granted condonation.
[57] In the result the appeal must be upheld with costs.
Order
[58] The following order is made:
(1) Condonation for non-compliance by the
applicant with Rule 19 is granted.
(2) Leave to appeal is granted.
(3) The appeal is upheld with costs including the costs of two
Counsel.
(4) The order of the Full Court is set aside and replaced with the
following:
“(a)
The appeal is upheld with costs
(b)
The order of the Court of first instance is set aside and replaced
with the following order:
(i) The two special pleas of the Member of the Executive Council are
dismissed.
(ii) Mr Links’ failure to comply with section 3 of the Legal
Proceedings Act 40 of 2002 is condoned.
(iii) The Member of the Executive Council is to pay Mr Links’
costs.”
For
the
Applicant: A
De Vos SC
C
H
Botha
instructed
by
Elliott
Maris
Wilmans & Hay
For the Respondent: A
J R Van Rhyn SC
T
L
Manye
instructed by
the
State
Attorney
[1]
Links v MEC, Department of Health, Northern Cape Province
[2014]
ZANCHC 17.
[2]
Links v MEC, Department of Health, Northern Cape Province
[2013]
ZANCHC 26.
[3]
40 of 2002.
[4]
A surgical procedure in which tissue is removed in cases of
compartment syndrome.
[5]
That is the removal of dead, damaged or infected tissue.
[6]
The relevant provisions are set out in para [16] below.
[7]
Truter and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) at para 16.
[8]
Van Staden v Fourie
1989 (3) SA 200
(A) at 216D-E.
[9]
Macleod v Kweyiya
[2013] ZASCA 28; 2013 (6) SA 1 (SCA).
[10]
McKenzie v Farmers’ Co-operative Meat Industries Ltd
1922
AD 16
at 23.
[11]
Truter and Another
above n7 at para 19.
[12]
High Court judgment at para 22.
[13]
“I, however, still did not know and could still not determine,
without the hospital records and notes on the file what
the cause of
the problem was and who or what was responsible for it. I submit
with respect that with the exercise of reasonable
care I could only
have become aware of the facts towards the end of January 2007 if
the Legal Aid Council had requested the hospital
records.” (My
translation.)
[14]
Section 34 reads:
“
Everyone
has the right to
have any dispute that can be resolved by the application of law
decided in a
fair public
hearing before a court or, where appropriate, another independent
and impartial tribunal or
forum.”
The essence of this right, in
the context of legislation that
limits
it, was highlighted by this
Court in
Road Accident Fund and Another v Mdeyide
[2010] ZACC 18
;
2011 (2) SA 26
(CC);
2011 (1) BCLR 1
(CC) at
paras 1-2.
[15]
68 of 1969.
[16]
Section 12 reads:
“
(1) Everyone
has
the
right to freedom and security of the person, which includes the
right—
(a)
not
to be deprived of freedom arbitrarily or without just
cause;
(b)
not
to be detained without trial;
(c)
to be free
from all forms of violence from either public or private sources;
(d)
not
to be tortured in any way; and
(e)
not
to be treated or punished in a cruel, inhuman or
degrading way.
(2)
Everyone
has
the right to bodily and
psychological integrity, which includes the right—
(a)
to make
decisions concerning reproduction;
(b)
to security
in and control over their body; and
(c)
not
to
be
subjected
to
medical or
scientific
experiments without
their
informed
consent.”
[17]
Mdeyide
above n 14 at para 43 and 47.
[18]
56 of 1996.
[19]
Lagerwey v Rich and Others
1973 (4) SA 340
(T) at 345.
[20]
Drennan Maud & Partners v Town Board of the Township of
Pennington
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at 212G
and I.
[21]
Sentrachem Ltd. v Prinsloo
[1996] ZASCA 133
;
1997 (2) SA 1
(SCA) at 15B-16D.
[22]
Geldenhuys NO v Diedericks
2002 (3) SA 674
(O) at 680-1.
[23]
Claasen v Bester
[2011] ZASCA 197
;
2012 (2) SA 404
(SCA)
.
[24]
Nedcor Bank Bpk v Regering van die Republiek van Suid-Afrika
[2000] ZASCA 65; 2001 (1) SA 987 (SCA).
[25]
Truter
above n 7 at para 16.
[26]
Id at para 17.
[27]
Id.
[28]
Loubser,
Extinctive Prescription
(Juta & Co, Ltd,
Kenwyn1996) at 80-1, para 4.6.2.
[29]
McKenzie
above n10 at 23.
[30]
Evins v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at
838D-H.
[31]
Truter
above n 7 at para 19.
[32]
Evins
above n 30 at 838H–839A.
[33]
Deloitte Haskins
& Sells Consultants (Pty) Ltd
v Bowthorpe Hellerman Deutsch
(Pty) Ltd
[1990]
ZASCA 136; 1991 (1) SA 525 (AD).
[34]
Id at 532 H-I.
[35]
Minister of Finance and Others v Gore NO
[2006] ZASCA 98;
2007 (1) SA 111 (SCA).
[36]
Id at para 17.
[37]
Id at para 18.
[38]
Id at para 19.
[39]
Lee v Minister for Correctional Services
[2012] ZACC 30; 2013
(2) SA 144 (CC); 2013 (2) BCLR 129 (CC).
[40]
Id at para 38.
[41]
The courts in Canada have grappled with similar issues and it may be
profitable in a future case to refer to their approach.
It may also
be helpful in dealing with a case where the plea alleges that the
plaintiff could by the exercise of reasonable care
have discovered
the facts from which the debt arises.
[42]
Section 12(3) of the Prescription Act.
[43]
Lee
above n 39 at para 39.