N.S v Member of the Executive Council, Department of Health, Eastern Cape (438/2023) [2024] ZAECBHC 8 (7 May 2024)

N.S v Member of the Executive Council, Department of Health, Eastern Cape (438/2023) [2024] ZAECBHC 8 (7 May 2024)

The court found that the defendant's witness conceded the plaintiff only became aware of the identity of the debtor on 22 May 2023. The defendant failed to prove that the plaintiff had knowledge earlier or that she could have acquired such knowledge by reasonable care before that date. Consequently, the three-year prescription period commenced on 22 May 2023, and the action was instituted within that period. The statutory notice was served after the plaintiff acquired knowledge and within the required six months. The defendant did not allege or prove any prejudice resulting from the timing of the notice. The defendant failed to discharge the onus on both special pleas. Both special pleas...

Citation
[2024] ZAECBHC 8
Parties
Plaintiff: N[...] S[...]; Defendant: Member of the Executive Council, Department of Health, Eastern Cape
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
7 May 2024
Case Number
438/2023
Procedural Posture
Civil Trial / Determination of Special Pleas (prescription and Statutory Notice) Prior to Merits
Outcome
Both special pleas (prescription and statutory notice) raised by the defendant are dismissed with costs, including costs occasioned by the employment of two counsel.
Judges
T.V Norman
Legal Topics
Prescription Act, Institution of Legal Proceedings Against Organs of State Act, Medical Negligence, Statutory Notice, Burden of Proof
Civil Procedure Delict Prescription Act Institution of Legal Proceedings Against Organs of State Act Medical Negligence Statutory Notice Burden of Proof

Case Brief

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Parties

N[...] S[...]

Plaintiff

Member of the Executive Council, Department of Health, Eastern Cape

Defendant

Procedural Posture

Civil Trial / Determination of Special Pleas (prescription and Statutory Notice) Prior to Merits

Legal Issues

  1. 1 Whether the plaintiff's personal claim for damages has prescribed under the Prescription Act.
  2. 2 Whether the plaintiff complied with the statutory notice requirements of section 3(1)(a) of the Institution of Legal Proceedings Against Organs of State Act 40 of 2002.
  3. 3 Whether the defendant discharged the onus to prove prescription and non-compliance with statutory notice.

Ratio Decidendi

The court found that the defendant's witness conceded the plaintiff only became aware of the identity of the debtor on 22 May 2023. The defendant failed to prove that the plaintiff had knowledge earlier or that she could have acquired such knowledge by reasonable care before that date. Consequently, the three-year prescription period commenced on 22 May 2023, and the action was instituted within that period. The statutory notice was served after the plaintiff acquired knowledge and within the required six months. The defendant did not allege or prove any prejudice resulting from the timing of the notice. The defendant failed to discharge the onus on both special pleas. Both special pleas...

Court Disposition

Both special pleas (prescription and statutory notice) raised by the defendant are dismissed with costs, including costs occasioned by the employment of two counsel.

Orders

  • The defendant’s special plea of prescription is dismissed with costs.
  • The defendant’s special plea in relation to non-compliance with section 3(1)(a) of the Institution of Legal Proceedings Against Organs of State Act 40 of 2002 is dismissed with costs.