Member of the Executive Committe for Health v Dennison (29113/13) [2015] ZAGPPHC 748 (21 October 2015)

IN THE HIGH COURT OF SOUTH APRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 29113/13

IN THE MATTER BETWEEN:

MEMBER OF THE EXECUTIVE COMMITTEE

APPLICANT

FOR HEALTH GAUTENG

AND

CONSTANTIA NONHLANHLA DENNISON

RESPONDENT

J U D G M E N T (LEAVE TO APPEAL)

KUBUSHl, I

[1] In this application for leave to appeal, the defendant applies for leave to appeal to the Supreme Court of Appeal, alternatively, to the Full Court of the Gauteng Division, Pretoria against part of my judgment and order granted on 10 June 2015 wherein I dismissed the defendant's first and second pleas with costs. According to the application for leave to appeal, leave to appeal is only against the dismissal of the defendant's special plea of prescription (second special plea).

[2] For convenience I shall refer in this judgment to the parties as they were referred to in action, that is, the applicant as "the defendant" and the respondent as "the plaintiff".

[3] I am in agreement with the submission by the plaintiff's counsel that in essence the application for leave to appeal is essentially based on two main thrusts of attack. The first relate to what ought to be pleaded by the defendant in its special plea of prescription which encompasses the question whether reliance was placed on actual or constructive knowledge and whether same should have been pleaded or not. The second relates to the minimum facts required to establish knowledge and whether the defendant discharged its onus of proof regarding such knowledge.

[4] Section 17 of the Superior Court Act, 10 of 2013 provides that -

"17 (1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that -

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration."

[5] My view is that the defendant has no prospects of success in this appeal.

[6] What should guide us in this matter is the defendant's second special plea in respect of prescription. The defendant seems to miss the point that pleadings define the case which a party relies on in addition to informing the opposing party of the case he or she has to meet.

[7] Sight should not be lost that in order to successfully invoke the provisions of s 12 (3) of the Prescription Act 68 of 1969 ("the Prescription Act") either actual knowledge or constructive knowledge must be proved. Actual knowledge is established if it can be shown that the creditor actually knew the facts and identity of the debtor. Constructive knowledge, on the other hand, is established if the creditor could reasonably have acquired the knowledge of the identity of the debtor and the facts on which the debt arose by exercising reasonable care.

[8] From the reading of the defendant's plea it is clear that the defendant is relying on actual knowledge and not constructive knowledge. As I have found in my judgment, this is the case which the plaintiff has to meet and the defendant is bound thereby.

[9] In MacLeod v Kweyiya 2013 (6) SA 1 para 10, the court stated the following:

"This court has repeatedly stated that the defendant bears the full evidentiary burden to prove a plea of prescription, including the date on which a plaintiff obtained actual or constructive knowledge of the debt."

[10] The nature and extent of the onus which rests on the defendant who relies on a special plea of prescription was described as follows in Gericke v Sack 1978 (1) SA 821 (A) at 827H - 828A:

"The onus was clearly on the respondent to establish this defence. He could not succeed if he could not prove both the date of the inception and the date of the completion of the period of prescription."

[11] It is clearly stated in the defendant's special plea that 'The plaintiff's claim therefore arose on 1 December 2008'. It follows

that the defendant's case as stated in its papers before court, is that as at 1 December 2008, the plaintiff had knowledge of the

minimum facts on which she should have instituted her claim against the defendant. This is not the end of the matter because this is just an allegation which should be proved by the defendant. At the end of the case I had to determine whether the defendant succeeded in proving that as at 1 December 2008 the plaintiff had the requisite knowledge of the minimum facts and the identity of the debtor. It is common knowledge that no evidence was adduced by the defendant as to the requisite knowledge of the plaintiff. To the contrary, the plaintiff in her papers and in oral evidence in court denied that she had such knowledge on that date as alleged by the defendant. As such, I found in my judgment that the defendant failed to discharge the onus resting on it that the plaintiff had the required knowledge on 1 December 2008.

[12] The requisite knowledge in terms of s 12 (3) of the Prescription Act has been stated in Macleod v Kweyiya - judgment above, para 10 to be the minimum facts that are necessary to institute action and not all the evidence that would ensure the ability of the creditor to prove its case comfortably.

[13] I seem to be in agreement with the submission by the plaintiffs counsel that it is not sufficient that the plaintiff should have realised that there is something wrong but that she must have appreciated that Sister Welters did not suture her properly as she was expected to do. Without such appreciation the plaintiff would not have known that she should seek legal assistance to institute action against the defendant.

[14] The submission by the defendant's counsel that I hold a view that a "date" to be identified when prescription began to run as being a specific day of the year with reference to a specific date is clearly wrong. I have expressed no such view in my judgment. It is my opinion that there are no conflicting judgments in this regard. Counsel fails to appreciate the fact that the facts in Truter & Another v Deysel [2006] ZASCA 16; 2006

(4) SA 168 (SCA) are distinguishable from the current matter. In that judgment, the plaintiff instituted action against two medical practitioners for damages arising from a personal injury sustained as a result of a series of medical and surgical procedures performed on him in the period July 1993 to September 1993. A special plea of prescription was raised. The court of appeal found that the claim had

become prescribed and dismissed the claim. That court came to a conclusion that already in July 1994 the plaintiff had laid a complaint against the doctors and knew that the doctors were required to exercise reasonable care and skill and held the view that they failed to do so. This is not the situation in this instance. The evidence before me is that as at 1 December 2008, the date on which the defendant relies, the plaintiff had no knowledge that Sister Welters was required to exercise reasonable care and skill and that she had failed to do so. The two cases are not comparable.

[15] I have to conclude that there are no reasonable prospects of success in this appeal and the application ought to be dismissed with costs.

[16] The order I make is that the application for leave to appeal is dismissed with costs.

__________________________

E.M.KUBUSHI

JUDGE OF THE HIGH COURT

APPEARANCES

HEARD ON THE

16 OCTOBER 2015

DATE OF JUDGMENT

21 OCTOBER 2015

APPLICANT'S COUNSEL

ADV. S JOUBERT SC

APPLICANT' S ATTORNEY

STATE ATIORNEVS

RESPONDENTS'

ADV. W P DE WAAL SC

COUNSEL RESPONDENTS’ ATTORNEY

ADAMS AND ADAMS