Links v MEC, Department of Health, Northern Cape Province (1870/2012) [2013] ZANCHC 26 (24 May 2013)

Links v MEC, Department of Health, Northern Cape Province (1870/2012) [2013] ZANCHC 26 (24 May 2013)

The court found that the plaintiff's cause of action was complete and the debt became due as soon as the first harm was sustained. The plaintiff had knowledge of the material facts and the identity of the debtor from the time of his treatment and subsequent amputation in July 2006. The delay in obtaining hospital records and the conduct of legal aid attorneys did not interrupt or postpone prescription, as knowledge of negligence is a legal conclusion, not a fact required for prescription to begin running. The plaintiff failed to issue summons within the three-year period prescribed by the Prescription Act, and his claim had therefore prescribed. As a result, condonation for late notice...

Citation
[2013] ZANCHC 26
Parties
Applicant: Dirk Links; Respondent: MEC, Department of Health, Northern Cape Province
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
24 May 2013
Case Number
1870/2012
Procedural Posture
Civil Trial / Special Pleas: Prescription and Condonation for Late Notice
Outcome
The defendant's special plea of prescription is upheld. The plaintiff's claim is dismissed with costs, including costs of two counsel.
Judges
Mamosebo
Legal Topics
Medical Negligence, Prescription Act, Institution of Legal Proceedings Against Organs of State Act, Condonation, Special Plea
Delict Civil Procedure Medical Negligence Prescription Act Institution of Legal Proceedings Against Organs of State Act Condonation Special Plea

Case Brief

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Parties

Dirk Links

Applicant

MEC, Department of Health, Northern Cape Province

Respondent

Procedural Posture

Civil Trial / Special Pleas: Prescription and Condonation for Late Notice

Legal Issues

  1. 1 When did prescription begin to run in respect of the plaintiff's claim for damages against the MEC?
  2. 2 Did the plaintiff have actual or deemed knowledge of the facts giving rise to the debt before issuing summons?
  3. 3 Should condonation be granted for the plaintiff's failure to serve notice within the prescribed period under Act 40 of 2002?

Ratio Decidendi

The court found that the plaintiff's cause of action was complete and the debt became due as soon as the first harm was sustained. The plaintiff had knowledge of the material facts and the identity of the debtor from the time of his treatment and subsequent amputation in July 2006. The delay in obtaining hospital records and the conduct of legal aid attorneys did not interrupt or postpone prescription, as knowledge of negligence is a legal conclusion, not a fact required for prescription to begin running. The plaintiff failed to issue summons within the three-year period prescribed by the Prescription Act, and his claim had therefore prescribed. As a result, condonation for late notice...

Court Disposition

The defendant's special plea of prescription is upheld. The plaintiff's claim is dismissed with costs, including costs of two counsel.

Orders

  • The defendant's special plea of prescription in terms of section 11(d) of the Prescription Act 68 of 1969 is upheld.
  • The plaintiff's claim is dismissed with costs, including the costs of two counsel.