Ntombikhona Maleshiyo v MEC for the Dept of Health, Eastern Cape (451/2018) [2020] ZAECBHC 28 (23 October 2020)

OF INTEREST

IN THE HIGH COURT OF

SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, BHISHO)

Case No. 451/2018

In the matter between:

NTOMBIKHONA

MALESHIYO

Applicant (Plaintiff) and

MEC FOR THE DEPARTMENT OF

HEALTH, EASTERN

CAPE

Respondent (Defendant)

JUDGMENT IN RESPECT OF

APPLICATION FOR CONDONATION

HARTLE J

[1] In an action for damages instituted by the plaintiff in both her personal and representative capacity as mother and natural guardian of her minor son, “S”, respectively, who she claims in the present application for condonation was born “in a compromised state on 28 May 2012” and “is suffering from cerebral palsy” arising out of the alleged negligent and substandard treatment received from the servants of the defendant at the Canzibe Hospital, Ngqeleni, Eastern Cape (“the hospital”), the defendant has raised two special pleas.

[2] The first is that the plaintiff’s claim in her personal

capacity has prescribed. The defendant pleads that the debt underpinning this claim became due on 27 or 28 May 2012, the dates

when she was admitted to hospital and S was born respectively and that, since her summons and particulars of claim were only served on the defendant on 12 June 2018, on a date more than three years hence, such claim for damages has prescribed by virtue of the provisions of section 12 (1) read with section 11 (d) of the Prescription Act, No. 68 of 1969.

[3] The second special plea is that the plaintiff failed to deliver a notice in terms of section 3 (2) of the Institution of Legal Proceedings Against Certain Organs of State Act, No. 40 of 2002

(“ILPACOSA”) to the defendant which she pleads ought to “have been delivered within six months of 28 May 2012 at the latest”.

[4] The plaintiff in her replication filed in response to both special pleas points to the fact that “S” is a minor and that prescription does not run in respect of his claim. She pleads further that written notice was given to the defendant in respect of the institution of her claims, albeit only on 7 May 2018 and that notwithstanding reasonable care she only acquired knowledge of the facts giving rise to the debt which forms the subject of her claims set out in the particulars of claim within a period of six months of the date upon which the defendant was given notice of these proceedings. Since this deemed date is within the six-month period envisaged by section 3 (2)(a) of the ILPACOSA, she pleads that she has complied with the notice requirements. She also maintains that by reason of section 12 (3) of the Prescription Act her claim in her personal capacity has not become prescribed.

[5] The relevant statutory notice which was addressed to the “Superintendent- General, Department of Health Eastern Cape, Bhisho” setting out the facts giving rise to the plaintiff’s debt is dated 4 May 2018. It is common cause that this notice was served by the plaintiff’s attorneys by registered mail on 7 May 2018. Despite the defendant’s second special plea, she appears in the present application to have accepted that the notice was given, albeit on her version it was given out of time.[1]

[6] The second special plea evidently prompted the issue of the present application in which the plaintiff’s failure to have given notice within six (6) months to the Head of Department of Health, Eastern Cape of her intention to institute legal action as required by section 3 (2) of the ILPACOSA is sought to be condoned and granting her leave to proceed with the institution of legal proceedings against the defendant without any further notice. Costs were sought only in the event of the application being opposed.

[7] Despite the manner in which relevant prayers in the notice of application are framed to seek condonation, Mr. Dugmore who appeared for the plaintiff submitted that the appropriate order to be granted, in the event that I find that the debt became due on the date when the plaintiff suggests it did, namely when she obtained a specialist’s opinion which was advised to her through the auspices of her present attorneys on 28 March 2018, is for a declarator that her notice was timeously given. It follows that there would therefore be no failure to be condoned as the written notice would then have been found to be given “within six months from the date on which the debt became due” within the meaning contemplated in section 3 (2)(a) of the ILPACOSA.

[8] This approach commends itself to me since the provisions of section 3 (2)(a) of the ILPACOSA are clearly to such effect.[2] When that date is, that is the date on which the debt became due, is determined with regard to the exception and provisos respectively referred to in section 3 (3) (a), the wording of which is similar to that contained in section 12 (3) of the Prescription Act applying generally to the prescription of claims.

[9] The question for determination then is when the plaintiff’s

debt (in both capacities since the defendant has relied on the plaintiff’s purported failure to give notice period) became due within the contemplation of the provisions of section 3 (3)(a) of the ILPOCOSA.

[10] The plaintiff avers in the present application that she was admitted at the hospital on 27 May 2012 for labour related problems and that “during birth delivery the child was born in a compromise(d) state and as such is suffering from Cerebral Palsy”.

[11] She alleges further that on 7 October 2014 she visited her current attorneys of record to assist her to investigate “the situation of my child”. She says that she did so “on the advice of another lady who had a child with (a) similar condition like mine”. At this initial legal consultation, she was informed that in order

for them to know whether anyone was responsible for her child’s situation, they would need to get hospital records and to refer the matter to specialist doctors for assessment and opinion.

[12] These records were requested by her attorneys in several letters sent to the hospital but were not provided. This necessitated an application to court for an order compelling the hospital to furnish the records. An order dated 13 June 2017 issued by the Mthatha High Court attests as much. Although the defendant was ordered to do so by 13 July 2017, a year passed before these records were made available to her attorneys.

[13] A week after receipt of the hospital records, Dr. Michael Wright, an obstetrician and gynaecologist, was instructed to assess the records after also hearing her side of the story. On 27 March 2018 he compiled and released a report to her attorneys of record. On 28 March 2018 she consulted with her attorneys again when they advised her, pursuant to Dr. Wright’s advices, that “the hospital is responsible for the situation of (her) child as they are the ones who caused (him) to suffer brain damage”. She then instructed her attorneys to assist her to claim damages from the hospital. The first formal step in respect of such a process was the issue of the impugned statutory notice.

[14] As an aside the report of Dr. Wright, although referred to as annexure “MN 7” to the plaintiff’s founding affidavit and meant to be attached in support of the plaintiff’s application was not annexed but appears at pages 60 to 63 of the plaintiff’s indexed notices filed in the main action.

[15] It is relevant to highlight certain features of the report.

[16] Under the rubric of “Summary of Records” Dr. Wright notes that:

“the summary of labour form … indicates that she became fully dilated at 00h20 and delivered a live male infant weighing 3.5kg 10 minutes later. The Apgars at birth were 8 and 10 and the first examination of the neonate at 00h30 was normal … However the Summary of labour indicates that the baby swallowed meconium and required suctioning. There are no further notes in this regard.

It is noted that the mother had a blood count done on admission which recorded a low hemoglobin of 8.1 gms and a low platelet count of 141,000.

The mother’s post deliver status was good. However, the baby displayed systems of groaning and refusing feeds on 1.6.2012 and was seen by Dr. Babawonde who notes an ill-looking baby which is apyrexial. He makes a diagnosis of early neonatal sepsis and places the baby onto antibiotics. There are minimal notes in this regard except that on 4.6.2012 the child is noted to be improved …

There are then the Road to Health notes … which indicate that the child suffers from Cerebral Palsy in 2014 and there does not appear to be evidence of other severe illnesses.”

[17] Under the comments on management, Dr. Wright notes that the plaintiff is a high-risk patient because of a previous caesarean section and the fact that she should probably have been referred to at least a second level hospital. He expresses doubt whether there are adequate facilities at the hospital in question to perform an emergency caesarean section or to adequately monitor her progress and the wellbeing of the baby during labour because it is a level one hospital. He laments the fact that the antenatal record is not filled in, as well as the possibility that nobody realized that she had had a previous caesarean section.

[18] He raises various risk factors which would have been applicable to the plaintiff’s situation and labour and the absence of continuous electronic monitoring which would have prevented detection of any signs of fetal distress during her labour. He also raises the absence of any comment about the state of liquor except in the plaintiff’s admission data when it was said to be clear and compares this with the later note that the baby had swallowed meconium giving rise ostensibly to the suggested diagnosis of meconium aspiration syndrome. He opines that this obvious staining of the liquor might be indicative of fetal distress and laments the fact that had a cardiotocograph (CTG) being done, this would likely have shown some abnormality which could have been treated to prevent the ultimate result of cerebral palsy. He suggests that these two factors

constitute substandard care and could be related to causation.

[19] He alludes to the fact that the high Apgar scores at birth do not suggest an asphyxiated baby but refers to the work of “Nelson” who suggests that a high percentage of babies with cerebral palsy have normal Apgar scores at birth. He questions the hospital’s diagnosis of an early neonatal infection as being the cause of the baby’s early symptoms and defers to the need for the child to be evaluated by a neonatologist. In conclusion he states the following:

“… this case represents a very poor neurological outcome in a normal baby. There are no apparent antenatal factors and therefore the most likely timing of the insult was during labour. There is gross substandard care in that the wellbeing of the baby is not recorded regularly even to the degree suggested in a low risk pregnancy, viz every hour. Had there been adequate monitoring as mentioned, given the fact that there was the additional presence of meconium stained liquor, it is likely that some abnormality would have been detected and measures taken to avoid the final outcome. The Apgar score should not be used as an indicator of the absence of the hypoxia in a baby and the American College of Obstetricians and Gynecologists has warned against this practice.

I therefore believe that (the plaintiff) should be compensated in this regard in (order to be) able to adequately care for her disabled son.”

[20] The plaintiff claims that she only became aware that the situation of her child was caused by the hospital (read defendant) and that the hospital was therefore liable to compensate her and her minor child for damages on receipt of Dr. Wright’s report. On this basis, therefore, prescription did not run until such time as she acquired knowledge of the debt, the facts arising therefrom and the identity of the creditor. Thus, the claim which she has instituted against the

defendant has not prescribed in terms of the Prescription Act neither was the peremptory notice of the proceedings given out of time.

[21] The defendant vigorously opposes the application.

[22] Concerning the plaintiff’s claim in her representative capacity, whilst conceding that because her son was still a minor at the time summons was served on her that this claim cannot be said to have prescribed on that basis alone, the defendant yet denies all allegations and leaves it to this court to determine whether good cause exists for the plaintiff’s “failure” to have complied with the provisions of the ILPACOSA and that the defendant was “not unreasonably prejudiced” by such failure.[3]3

[23] In respect of the plaintiff’s assertion that the debt cannot be regarded as being due until 27 March 2018 the defendant (through the person of a legal administration officer who has deposed to the answering affidavit on her behalf) pleads that she ought to have had the necessary knowledge of the facts from which her debt arose, or should have suspected that she had a claim against the defendant, long before 7 October 2014 (the date upon which she first approached

her attorneys of record) when she was prompted by a mother of a child with a similar condition such as S’s to investigate the situation. Her failure at that juncture then to have investigated the issue would have meant, so the defendant pleaded, that she failed to exercise reasonable care in acquiring knowledge of the facts from which the debt arose and would therefore be deemed to have knowledge in terms of section 12 (3) of the Prescription Act from such undisclosed date, namely on the day when she obtained the advice from the mother of the similarly affected child.

[24] The deponent asserts that based on this advice, possibly obtained long before 7 October 2014, it would be reasonable to assume that the plaintiff would have the necessary knowledge of the facts from which her debt arose or would at least have suspected that she had a claim against the defendant. This delay in investigating the issue further would also have meant that she failed to exercise reasonable care in acquiring knowledge of the facts from which the debt arose.

[25] Rather remarkably the deponent criticizes the plaintiff for failing to set out what steps she took through her attorneys to investigate and the time frame involved between 7 October 2014 and the granting of the order relating to the pursuit of obtaining the hospital records, none of which steps obviously availed her attorneys access to these, rendering the need for the plaintiff to have sought an order compelling their provision to get to the bottom of the question

why “S” was born with Cerebral Palsy, a diagnosis which was evidently made by the hospital itself only in 2014.

[26] The records having now been provided, however, the defendant has not pointed to any feature of them from which it might objectively be concluded that the plaintiff ought to have had the necessary knowledge of the facts from which the debt arose.[4]

[27] The deponent has also unhelpfully suggested that “the issue” would be best dealt with once oral evidence is led on it at trial (no counter-application was made for such a referral though) so that the defendant would have the benefit of properly testing those allegations made by the plaintiff which are within her own knowledge. (As an aside section 4 (a) of the ILPACOSA invites a “creditor” on the receiving end of a point taken that he or she has failed to serve a notice within the prescripts of section 3 (1) (a) to apply to a court having jurisdiction for condonation of such failure. Whilst a determination of the issue this court is seized with can and is often dealt with by way of tendering evidence in the trial, invariably the proper and salutary practice is for such an application to be brought before a motion court and resolved before the matter comes to trial.)[5]

[28] Reading between the lines the defendant has reservations that the plaintiff is being candid about the moment when she says she acquired knowledge of the facts giving rise to the debt yet she has failed to allude to any aspect of the medical records at odds with what the plaintiff claims became known to her only once she had consulted with Dr. Wright and her attorney had apprised her of her position vis a vis her claims against the defendant.[6] Instead of doing so the deponent has simply pleaded that the defendant is “constrained to deny most of the allegations made by (the plaintiff in her founding affidavit)”.[7]

[29] Also generically denied on behalf of the defendant is “that an expert report (such of that of Dr. Wright) is … required for a plaintiff to have knowledge for a debt to become due (whether such knowledge is deemed or otherwise)”. Further, the defendant has simply skirted around what is said by Dr. Wright in the report that informed the plaintiff’s deemed knowledge.

[30] The deponent also vaguely asserts prejudice on the part of the plaintiff such being due to her “ability (not pertinently specified inability) to properly consult with material witnesses and obtain material evidence” by her delay in instituting her and S’ claim.

[31] It is necessary to have regard to what section 3 of the ILPACOSA requires concerning the giving of notice by a plaintiff before proceeding against an organ of state for the recovery of a debt against it:

“3. Notice of intended legal proceedings to be given to organ of state. —

(1) No legal proceedings for the recovery of a debt may be instituted against an organ of state unless—

(a) the creditor has given the organ of state in question notice in writing of his or her or its intention to institute the legal proceedings in question; or

(b) the organ of state in question has consented in writing to the institution of that legal proceedings—

(i) without such notice; or

(ii) upon receipt of a notice which does not comply with all the requirements set out in subsection (2).

(2) A notice must—

(a) within six months from the date on which the debt became due, be served on the organ of state in accordance with section 4 (1); and

(b) briefly set out—

(i) the facts giving rise to the debt; and

(ii) such particulars of such debt as are within the knowledge of the creditor.

(3) For purposes of subsection (2) (a)—

(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts giving rise to the debt, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless the organ of state wilfully prevented him or her or it from acquiring such knowledge; and

(b) a debt referred to in section 2 (2) (a), must be regarded as having become due on the fixed date.

(4)

(a) If an organ of state relies on a creditor’s failure to serve a notice in terms of subsection (2) (a), the creditor may apply to a court having jurisdiction for condonation of such failure.

(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.

(c) If an application is granted in terms of paragraph (b), the court may grant leave to institute the legal proceedings in question, on such conditions regarding notice to the organ of state as the court may deem appropriate.”

[32] The relevant provisions of section 12 (3) of the Prescription Act[8] are for convenience also set out below:

“12. When prescription begins to run. —

(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.

…”

[33] It should be noted that whereas submissions were made to me regarding the special pleas filed in the action with the defendant maintaining that these should be upheld and the plaintiff that they should be dismissed, I need only concern myself with the application that is before this court. As was pointed out by Mr. Dugmore that application although couched as a request for “condonation” impliedly seeks a declarator that the plaintiff only acquired knowledge of the

existence of the debt on 28 March 2018 when she was apprised of the opinion of Dr. Wright. If I hold in favour of her on this point and conclude that she only acquired the requisite knowledge of the facts giving rise to the debt on 28 March 2018 this will in effect undermine the defendant’s first special plea of prescription, and will certainly be dispositive of the second special plea.

[34] First a word on onus. It appears that whereas the plaintiff is required to set out the basis why she claims a debt should not be regarded as being due within the contemplation of section 3 (3) of the ILPACOSA, it is for the defendant to establish that the applicant must be regarded as having acquired such knowledge as soon as he or she could have acquired it by exercising reasonable care, unless the organ of state willfully prevented him or her from acquiring such knowledge. Where a defendant raises a plea of prescription, even in the sub-context of an application for condonation under the provisions of section 3 of the ILPACOSA (or a declarator such as the plaintiff seeks in casu), the onus is on him or her to prove such defence, and to prove the date when the plaintiff purportedly acquired actual or deemed knowledge of the debtor and the facts from which the claim arose.[9]

[35] I take Mr. Dugmore’s point that the defendant in her answering affidavit has not pointed to any facts (other than conclusions or observations expressed by the deponent) which would reasonably have been available to the plaintiff and which would have disclosed to her within the context of section 3 (3) read with section 3 (2)(a) of the ILPACOSA an awareness of the existence of the debt any earlier than the last date relied upon by her.

[36] Neither in my view has the defendant laid any factual basis for asserting that the plaintiff could or should have acquired knowledge or facts at an earlier time upon which facts she could reasonably have acquired knowledge of her claims and the identity of the defendant.

[37] On the contrary, without disputing any specific facts relating to the matter as set out in the maternity case record which was referred to in the plaintiff’s replying affidavit, the defendant has disclosed no new facts which throw any light on the time when or the circumstances under which the plaintiff could and should have obtained knowledge of the relevant facts.

[38] In arguing the deeming provision is section 12 (3) of the Prescription Act Mr. James who appeared on behalf of the defendant submitted that:

38.1 The plaintiff knew from the moment of S’ birth, as pleaded by her in the first paragraph of her founding affidavit filed in support of the present application, that he was born in a compromised state which in his view is the essential fact giving rise to her claim.

38.2 Alternatively he submits that, expecting to deliver a healthy baby, she should reasonably have suspected that something had gone awry where on her own version S was born in a “compromised state”.

38.3 Despite this, she failed to take reasonable steps as is required, the first step being taken only in October 2014 to investigate S’s condition.

38.4 On the basis of what a reasonable creditor would have done, he maintains that the plaintiff should therefore have acquired knowledge of the identity of the debtor and of the facts from which the debt arose before she consulted with her attorney and, in the alternative, certainly by the time she in fact consulted with her attorneys on 7 October 2014.

38.5 This date should be pushed back even further though, so he submitted, to the day when the plaintiff says she met with the mother of a child with a condition similar to S’s who advised her to consult with attorneys, such advice being of the kind that in his view would have moved a creditor exercising reasonable care to have acquired the reasonable knowledge.

38.6 Further, as far as the defendant is concerned, the time undertaken by the plaintiff in acquiring the plaintiff’s medical records from the defendant and in procuring an expert report does not avail her with an excuse in this regard, because these steps relate rather to the establishing of legal conclusions from the facts giving rise to her alleged claim, as opposed to the facts themselves.

[39] The antecedent issue before determining whether the plaintiff had knowledge of the facts underlying the debt, is to determine what the facts are that the plaintiff was supposed to know in order to trigger the running of prescription.[10]1 These facts are the facts that are material to the debt.[11]

[40] A debt becomes due 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.[12] In Minister of Finance and Others v Gore[13] the Supreme Court of Appeal emphasized that the prescriptive time begins to run against the creditor when it “has the minimum

facts (within its knowledge) that are necessary to institute the action.”[14]

[41] In the context of a medical negligence claim,[15] the meaning of the phrase “knowledge of the facts from which the debt arises” includes knowledge of facts showing that the defendant, in treating the plaintiff, failed to adhere to the standards of skill and diligence expected of a practitioner in the former’s position. In Links[16]16 the Constitutional Court emphasized what form the full fact knowledge should take in a claim such as the plaintiff’s for professional negligence:

“[42] “…(I)n 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.

[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. 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).”

[42] In Links, the Constitutional Court also remarked upon the improbability that a lay person would without a professional medical opinion know what caused the adverse outcome (even if the outward manifestation thereof might be obvious)[17]:

“[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.[18]

[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.” (Emphasis added)

[43] In Loni v Member of the Executive Council, Department of Health, Eastern Cape Bhisho[19] the Constitutional Court highlighted what in Links had made the facts distinguishable from the matter before it and had warranted the special plea of prescription raised against Links being dismissed in the High Court. What it said is that in Links, the claimant “plainly required expert medical opinion, firstly, in order to establish that the treatment that he had received had been negligent, and secondly, in order to draw the causative link between the harm suffered and the negligent treatment.”[20] In Links the claimant had stated in his affidavit in a passage referred to by the High Court that:

“(E)k het egter nog steeds nie geweet, en kon nog steeds nie vasstel, sonder die hospitaalr ekords 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 v an Januarie 2007 van die feite bewus kon geword het, indien die Regshulpraad die hospitaalrekords aangevra het.”[21]

[44] in Links the court observed that the first sentence of the passage quoted above is the important one because “ (i)n 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.”[22]

[45] In my opinion the same applies in the present matter. Without the medical records which were denied to the plaintiff at first, and the professional opinion of Dr Wright, the full facts necessary to trigger the running of prescription in the Plaintiff’s case were unknown to her.

[46] In Drennan Maud & Partners v Town Board of the Township of Pennington[23] the court set out the standard to be applied in determining whether deemed knowledge can be imputed to a creditor by exercising

reasonable care:

“Section 12(3) of the Act provides that a creditor shall be deemed to have the required knowledge if he could have acquired it by exercising reasonable care. In my view the requirement ‘exercising reasonable care’ requires diligence not only in the ascertainment of the facts underlying the debt but also in relation to the evaluation and significance of those facts. This means that the creditor is deemed to have the requisite knowledge if a reasonable person in his position would have deduced the identity of the debtor and the facts from which the debt arises.”

[47] This objective assessment approach was endorsed in Loni which, applied to the facts of the matter before it, resulted in the court finding that the courts below had correctly established that a reasonable person in the position of the applicant would have realized that the treatment and care which Loni had received was sub-standard and not in accordance with what he could have expected from medical practitioners and staff acting carefully, reasonably,

and professionally.[24] This is best demonstrated by the following reasoning in its judgment:

“[34] When the principle in Links is applied to the present facts, the applicant should have over time suspected fault on the part of the hospital staff. There were

sufficient indicators that the medical staff had failed to provide him with proper care and treatment, as he still experienced pain and the wound was infected and oozing pus. With that experience, he could not have thought or believed that he had received adequate medical treatment. Furthermore, since he had been given his medical file, he could have sought advice at that stage. There was no basis for him to wait more than seven years to do so. His explanation that he could not take action as he did not have access to independent medical practitioners who could explain to him why he was limping or why he continued to experience pain in his leg, does not help him either. The applicant had all the necessary facts, being his personal knowledge of his maltreatment and a full record of his treatment in his hospital file, which gave rise to his claim. This knowledge was sufficient for him to act. This is the same information that caused him to ultimately seek further advice in 2011.

[35] It is clear, that long before the applicant’s discharge from hospital in 2001 and certainly thereafter, the applicant had

knowledge of the facts upon which his claim was based. He had knowledge of his treatment and the quality (or lack thereof) from his first day in hospital and had suffered pain on a continuous basis subsequent thereto. The fact that he was not aware that he was disabled or had developed osteitis is not the relevant consideration.”

[48] The Court repeated the finding of the Full Court in this respect (whose judgment in dismissing the appeal to it, it endorsed as correct). Its summary of what was before the Full Court to be decided explains why it could not uphold the appeal before it:

“Full Court

[14] The applicant was granted leave to appeal to the Full Court. That Court held that it was evident that the applicant’s condition and the wound became worse over time. When he was discharged in October 1999, he had a visible infection with pus oozing from the operation site. This situation did not change until the fixtures were removed in 2001. For years, thereafter, he experienced pain. The Court held that it was inconceivable that the applicant could have thought he had received adequate medical treatment after all his experiences. The pain he experienced, coupled with the infection of the wound and oozing of pus, must have been an indication that the medical staff had failed to provide him with proper care and treatment.

[15] The Full Court concluded that the applicant had all the necessary facts, such as his personal knowledge of his maltreatment and a full record of his treatment, or lack thereof, as contained in his hospital file which gave rise to his claim. The Court further held that the applicant’s knowledge constituted reasonable grounds for suspecting fault that would justify him seeking further advice. This knowledge was sufficient for him to act and in fact it was this same information

that caused him to ultimately seek further advice in 2011. Moreover, the Court relied on Links and held that although the applicant did not know the causative link between the known breaches of contract and the harm which he knew that he had suffered, knowledge of causative negligence is not required for purposes of section 12(3) of the Prescription Act. The Full Court thus dismissed the appeal.”

[49] In casu the defendant did not aver or even suggest that the plaintiff had knowledge of the facts that caused “S” to be born with Cerebral Palsy (let alone the diagnosis of Cerebral Palsy which in all probability was not even advised to her by the hospital). Absent such information, until Dr Wright studied the medical records and furnished his opinion which was advised to her through her attorneys, the plaintiff was in my view lacking an obviously material

fact that a litigant wishing to sue in a case such as this would need to know. Further, she could not reasonably have known what had caused the “compromised state” of “S” even if she had suspected closer to the day of his birth that something was indeed wrong with him.

[50] It is rich in this instance for the defendant to suggest that the plaintiff should have known better than the trained medical personnel at the hospital that S had developed Cerebral Palsy at birth, whereas this condition was only diagnosed by the hospital itself in 2014.

[51] I expect that the allegation made in the introduction to the present application that “S” was born in a compromised state is an ex post facto recognition construed from what she came to know after the fact and what she knows now, with hindsight and the benefit of Dr Wright’s opinion. But even if I were to find in the defendant’s favour that the plaintiff meant to assert in her affidavit that she knew on the date of the birth of “S” already that he suffered under the malady of Cerebral Palsy, how was she as a lay-person expected to know why that was the case in his instance, or that the hospital had been causally negligent in this outcome having occurred. Even taking into account the fact that the mother of the child with the condition similar to hers had suggested

to the plaintiff that she seek legal advice, at best for the defendant this might have aroused an early suspicion on the part of

the plaintiff that the hospital perhaps had something to account for which might explain why her baby did not appear normal like other babies but instead presented like the other mother’s child. Such thought having occurred to her she in fact followed up on this mother’s suggestion and, taking the first step in the right direction, sought legal advice, this in my view exhibiting the necessary diligence expected of a creditor in pursuit of the requisite knowledge.

[52] But still knowledge of the kind required to trigger the running of prescription eluded her. Not unexpectedly, when she came to consult with her attorneys, they could not advise her without receipt of the necessary medical records, and thereupon an assessment and opinion obtained by a specialist obstetrician gynaecologist. This further step taken in my view demonstrates diligence and prudence, for how would the plaintiff have been able to accuse the hospital of being

responsible for her baby being born as he was (evidently different from normal babies), which condition was by now readily apparent to her, but the cause of which she had no inkling of until Dr Wright’s opinion came to the fore.

[53] There are several aspects in Dr. Wright’s report concerning the facts giving rise to the debt (gleaned by him from the medical records that had been denied to the plaintiff at first) that could in my view not have been known to her (or her advisors) before seeing the notes, for example the fact that “S” had swallowed meconium and required suctioning; the peculiar risk factors applicable to her situation during labour, and the absence of careful monitoring by the hospital staff of her and “S” during her labour. The defendant certainly did not suggest that any of these facts had been drawn to the plaintiff’s attention or were common knowledge.

[54] As I have indicated elsewhere it is entirely improbable in my view that the hospital even informed the plaintiff of the fact that “S” was suffering from Cerebral Palsy. Indeed, on the defendant’s

own showing, the hospital made an entirely different diagnosis of early neonatal sepsis which upon the treatment of antibiotics

improved. How then should the plaintiff have been expected to know as a fact that S’s compromised state was not due simply to the hand of God as it were. As for the eventual diagnosis of Cerebral Palsy, Dr. Wright felt constrained to explain why the hospital itself might have missed that “S”, because of his Apgar scores, was not an asphyxiated baby.

[55] In the result, applying the principles as established in Links and Loni, I find that the defendant failed to prove that the plaintiff had knowledge of all the material facts underlying the debt before the opinion of Dr. Wright was disclosed to her.

[56] Mr. Dugmore incidentally also referred me to the matter of Mbodla in which reference had been made to Sibiya v The Premier of the Province of Kwazulu-Natal[25] and in which the court noted the situation in Truter v Deysel[26] to be distinguishable on the facts from both Sibiya and Mbodla itself. (Griffiths J ostensibly decided the Mbodla matter without reference to Links yet applied the same approach as was adopted by the Constitutional Court in Links (and Loni for the matter) and came to a similar conclusion and outcome.).

[57] The facts in Mbodla are as summarized by him below:

“[4] The essence of the plaintiff's version as set forth in his founding affidavit may be summarized as follows: as a consequence of an injury he sustained in a motor vehicle accident he was admitted to the Nelson Mandela Academic Hospital for treatment. This apparently occurred on 25 June 2006. During April 2011 he consulted with his attorney to whom he "conveyed the facts which gave rise to the incident". On having received these instructions, his attorneys obtained a medico/legal opinion from one Dr. Olivier, a copy of which is attached to the founding affidavit. This report was received on 2 August 2011. The defendant has, in his aforesaid notice, objected to the use of this document by the plaintiff on the basis that it was not confirmed under oath by the doctor. In my view, this is of no consequence. The plaintiff has confirmed under oath that he received such an opinion and I am of the view that I am accordingly entitled to take into account, for the purposes of this application, the content of such report. This is particularly so in view of the fact that it is a question of the plaintiff's knowledge, and when he acquired such knowledge, that is in issue in this matter.

[5] In his founding affidavit the plaintiff stated:

“Until I was advised by my Attorney under the circumstances I will set out below, I did not realize that I may have a claim for damages against the Respondent. I also did not know that, in terms of the Act, a person is not entitled to institute a damages action against the Respondent unless notice of such intended action had been given within certain prescribed time limit (sic).’”

[58] Mbodla sought a declarator to the effect that he had complied with the notice requirements contemplated in the Act on the basis that he only acquired knowledge of the facts giving rise to the debt during April 2011 or on 2 August 2011 when he received the opinion from Dr. Olivier. The court examined his allegations that he only became possessed of the requisite knowledge of the facts giving rise to the debt on one or other of the above dates and concluded as follows:

“[23] In the present matter it is so, as has been submitted by Mr. Dukada, that there is a dearth of information as to the plaintiff's situation from August 2006 until he approached his attorney in April 2011. One might have expected him to have explained the nature and extent of the pain he suffered during the course of this period of time and whether or not he had received any form of medical treatment. It is also so that Dr. Olivier has stated that when the plaintiff presented to him, the plaintiff indicated his awareness of a deformity of his leg subsequent to the removal of the plaster cast.

[24] On the other hand, however, there is no denial of the facts as set forth by the applicant in his founding affidavit. On his evidence, he had no inkling whatsoever prior to receipt of the report from Dr. Olivier as to the facts relating to the malunion of the bones in his lower leg as a consequence of a failure by the hospital staff to undertake the proper procedure. This, in my view, is not a legal conclusion but is a factual situation. There is nothing to suggest that the plaintiff should, having exercised reasonable care, have come to know of the facts giving rise to the negligent conduct on the part of the hospital staff. The deformity of his leg and the onset of pain over a period of some years may well have indicated to him that he might be suffering from a natural consequence of the injury which he sustained despite the conservative procedures carried out at the hospital. There is no indication however that he ought to have realized that this deformity and the onset of pain over the intervening years was indicative of anything less than optimal care having been

administered to him by the hospital staff.

[25] This is compounded by the fact that the hospital appears to have kept very cryptic and unsatisfactory clinical notes as to what diagnosis was indeed made and what treatment was administered to the plaintiff on the various occasions he attended the hospital, as reflected by Dr. Olivier. In this regard Dr. Olivier stated:

"The fracture was not adequately described in the clinical notes. It was simply described as being a fracture of the proximal left tibial plateau. An adequate diagnosis was therefore not made."

[26] In many other respects the doctor has criticized the sparse and inadequate note taking by the hospital staff and the fact that the plaintiff’s condition was not followed up on at regular intervals. Mention was also made in the report of the fact that the clinical notes make no mention as to whether or not X-rays were requested. In Dr. Olivier's view, had such X-rays been requested it would have been clear that there was a significant inferior displacement of the bone.

[27] In my view, this matter is distinguishable from the Truter matter in that it is clear from the report in that matter that the plaintiff was aware, or at least believed, from the outset that he had received less than adequate treatment. Hence, very shortly after the procedures, he made the complaint to the Medical and Dental Council. Furthermore, after the rejection by the Medical and Dental Council of his complaint, he proceeded vigorously with his quest to obtain a medical opinion which was favourable to his cause. It is quite understandable in these circumstances as to why the SCA concluded that he was fully aware of the facts of the matter and the identity of the debtor at a time shortly after the impugned procedures had been concluded.

[28] The present matter is very different. The hospital treatment given the plaintiff and the evidence (in the form of the clinical notes) as to such treatment is clearly lacking in the extreme and unlikely to inform a layman of the fact that the plaintiff received less than optimal treatment. There is furthermore nothing to suggest that during the period after the plaster cast was removed and the receipt of the report from Dr. Olivier, the plaintiff ought to have been alerted to the fact that he had not received optimal treatment. To my mind, the fact that he experienced progressive pain and was aware of the deformity, together with his difficulty in squatting etc., could not have been sufficient, without more, to have indicated to him, as a layman, that sub-optimal treatment had been administered.

[29] This case is, in my view, akin to the Sibiya matter. Even if the Truter case was not dealt with by Moleko J in that matter, I do not see that it can make any difference as, as I have indicated, it is clearly distinguishable on the facts.”

[59] In Sibiya[27] (helpfully summarized by Griffiths J in Mbodla) the plaintiff underwent a caesarean section during the course of which a needle was left in her abdomen. This procedure was undertaken on 22 November 1995. The summons was served on 22 November 2005, clearly more than 3 years after the procedure complained of. In it the plaintiff claimed damages against the servants of the defendant. Similar special pleas were taken in that matter to those taken in Mbodla. The plaintiff testified that after she had been discharged from the hospital, she had experienced vaginal bleeding on various occasions and had sought medical assistance from the very same hospital that had undertaken the procedure. Although X-rays were, on occasion, taken, she had never been shown them nor was she informed as to the cause of the bleeding. She was at no stage advised that there was a needle in her abdomen. During June or July 2004 further X-rays were taken and she was informed that she should undergo a further operation. She refused to do so. It was thereafter that she went to a different hospital and, after another set of X-rays were taken, she was advised that there was a needle in her abdomen. On the evidence the court concluded that the defendant had failed to prove that the plaintiff had actual or deemed knowledge of the identity of the debtor and of the facts which gave rise to the debt before 22 July 2005 on the basis that:

"There is no suggestion that she suspected or could have suspected that there was a needle in her abdomen, not is it suggested that she could reasonably have suspected that."

[60] In Truter, again helpfully summarized and distinguished by Griffiths J from Mbodla’s situation in the latter’s judgment, the plaintiff underwent eye surgery during 1993 as a result of which he suffered a complete loss of vision in his right eye and ultimately lost the eye itself. Because, as at the time of the operations in 1993 he had already lost his left eye, the plaintiff was thus rendered totally blind. During 1994 he made a complaint to the Medical and Dental Council in this regard. He complained of the conduct of the medical practitioners concerned and requested that an investigation be held

into the matter as, as he stated, "I feel there was no need for five operations, plus all the pain and suffering and unnecessary sums of money for one cataract". During 1995 he appointed attorneys to assist him in investigating and prosecuting a malpractice suit against the doctors concerned. During the ensuing years he obtained, in conjunction with his attorneys, various medical reports all of which, in effect, indicated that there was no basis for such an action. The last of these reports was obtained from a Professor Stulting and was dated 7 June 1999. Undaunted, the plaintiff in that matter proceeded to obtain a further report from a certain Dr. Steven who concluded that there was negligence on the part of the doctors who performed the eye surgery. On the basis of this report, summons was issued.

[61] Not surprisingly, so Griffiths J observed, a special plea of prescription was taken by the defendant and, because the plaintiff relied on the provisions of section 12 of the Prescription Act, the sole issue which came before the court was as to the time when prescription started to run in respect of the plaintiff's claim for damages. The crisp question was, accordingly, as to whether or not the plaintiff in that matter "had actual or deemed knowledge of "the facts from which the debt arises", as required by s 12 (3), prior to 17 April 1997." The Supreme Court of Appeal found in these circumstances that all the relevant facts and information in respect of the operations performed on the plaintiff in that matter:

“were known, or readily accessible, to him and his legal representatives as early as 1994 or 1995. Neither Deysel nor Mrs. Pienaar was able to point to any new fact which was given to either Dr. Lecuana or Dr. Steven, which had not been presented to the previous medical experts for their opinions and which had not been known or readily accessible to Deysel and his representatives before 17 April 1997 (i.e. more than 3 years before the date on which he instituted action). Indeed, the ‘negative indicators’, which apparently, eventually, led Dr. Steven to conclude that there had been negligence on the part of Drs. Truter and Venter, were dealt with in the reports of medical experts previously consulted.”

[62] The Supreme Court of Appeal (so Griffith’s J continues) concluded:

“Thus, neither Dr. Lecuana nor Dr. Steven revealed or furnished any new facts to Deysel: they merely advanced an opinion, in the form of a conclusion that there had been negligence, which opinion was based on the same facts which had been available prior to 17 April 1997 and which had been furnished to the other experts.”

[63] I am satisfied that on the basis of a consideration of these similar matters that I am justified in concluding that the defendant has failed to prove that the plaintiff was aware or could reasonably have become aware before 27 March 2018, when she was apprised of Dr. Wright’s professional advices and thus gleaned the full facts necessary to complete her cause of action, of the facts giving rise to the debt. In all the circumstances she is entitled to the declarator Mr Dugmore prevailed upon this court to order.

[64] If I am wrong in my approach in dealing with this matter except as an application for condonation, the plaintiff has in my view in any event established the necessary requirements postulated by the provisions of section 3 (4) of the ILPACOSA. In this respect the plaintiff’s claims (in both capacities) are extant. “Good cause” exists in my finding that she did not acquire nor could she by the exercise of reasonable care have acquired knowledge of the identity of the defendant and of the facts giving rise to the debt before being furnished with Dr Wright’s professional medical opinion. This would nullify the purported culpability on her part in only giving notice of the intended proceedings when she ultimately did. I am also constrained to bear in mind as a relevant consideration that the prospects of success of the case, based on the report of Dr Wright and the hospital’s record, appear prima facie to be good. The entire “delay” (as perceived by the defendant which Mr James suggested had not been carefully accounted for by the plaintiff), such as it exists from the date of the birth of “S” until notice was given, has also been adequately explained and contextualized in all the circumstances. Lastly there is the matter of the importance of the claim to the plaintiff who must, unless she succeeds in the action against the defendant, care for a disabled child with significant sequelae at her own expense.

[65] On the issue of prejudice, I am inclined to agree with Mr. Dugmore that the defendant has purported to deal with this aspect very sparsely and mechanically. A bare denial or simply placing the prejudice in dispute is not sufficient.[28] Further, this aspect of prejudice to the defendant was sought to be dealt with by way of the conclusions of the department’s legal advisor, completely unsubstantiated by foundational facts or factual matter. For example, as submitted by Mr Dugmore, the conclusion of an inability to consult with material witnesses fails to disclose factually who the

witnesses, are, why there is an inability to consult with them, in respect of what reasons they are material, and in respect of precisely what prejudice, reliance is placed. In respect of the contention of an absence of “material evidence”, in circumstances where the entire maternity record is available and forms part of the “amended index to pleadings” this is similarly an unsustainable conclusion not supported by any facts.

[66] In Madinda v Minister of Safety and Security[29] the court observed that the Legislature had deemed it appropriate under the ILPACOSA to treat absence of unreasonable prejudice (often regarded as an element of good cause in the context of earlier legislation regulating prescription and limiting actions against different state entities) as a specific factor of which an applicant must satisfy the court, suggesting that it intended, by the separate requirements of good cause and the absence of unreasonable prejudice, to emphasize the need to give due weight to both the individual’s right of access to justice and the protection of state interest in receiving timeous and adequate notice. This is in keeping with the injunction in section 39 (2) of the Constitution and the court’s obligation in issues of prescription 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.[30] Whether there is unreasonable prejudice must inevitably depend on the most probable inference to be drawn on the facts which are to be regarded as proved in the context of motion proceedings launched by an applicant. The approach to the existence of unreasonable

prejudice, not simply any level of prejudice, requires a common-sense analysis of the facts, bearing in mind that whether the grounds of prejudice exist often lies peculiarly within the knowledge of the respondent. Although the onus is on an applicant to bring an application for condonation under the ILPACOSA within the terms of the statute, a court should be slow to assume prejudice for which the respondent

itself does not lay a basis.[31]

[67] In this instance the defendant has in my view failed to establish other than by repeating the general kind of prejudice that could result from a delay in giving notice that it would be unreasonably prejudiced by an order condoning the plaintiff’s purported failure. The medical records exist in fact and have now been provided and in any event the defendant has not put up any fuss regarding the plaintiff’s prosecution of her child’s claim on the basis that this claim is self- evidently very extant because “S” is a minor. For this reason, it appears contrived to suggest that the prosecution of her personal claim, absolutely minimal compared to the damages claimed on behalf of “S”,

would occasion the defendant any inconvenience when she is in any event obliged to go to trial to defend the plaintiff’s substantial claim on behalf of “S”.

[68] On the issue of costs, I consider the defendant’s opposition to the application to have been unnecessary, perfunctory, and obstructive. Simply going through the motions of putting a plaintiff through her paces to clear the encumbrance standing in the way of the action proceeding to trial, without any real facts to establish the proof required by her to oppose the relief sought, is not only insensitive to the interests of the minor child especially, but a waste of state resources. This is a hugely unfortunate approach to be adopted by an organ of state which has an obligation to litigate responsibly and not take technical and obstructive points where this is not in the interests of justice.[32]

[69] A clear example of the defendant’s obstructive approach to the plaintiff’s application, is the fact that the deponent on her behalf averred that the plaintiff had also failed to give notice to the Head of Department as is required by the provisions of section 3 (2) read with section 4 (1) of the ILPACOSA, complaining that the plaintiff had not even bothered to deal with this failure of hers to comply with the peremptory notice provisions. There was simply no such failure or issue before this court and one wonder on what basis such a cavalier statement could have been made, more especially by a legally trained officer of the Department of Health.

[70] Yet another example of the defendant obstreperous approach is the deponent’s insistence that the plaintiff produce at the hearing of the application the original of the order made by the Mthatha High Court ordering her to provide the medical records as well as the receipt from the hospital dated 20 March 2018 evidencing the plaintiff’s proof that it was ultimately on this date only that she was finally able to access copies of the medical records.

[71] There is no question in my mind that the defendant should bear the costs of the failed application on the basis prayed for by the plaintiff, such costs to include the costs of two counsel, where applicable.

[72] In the premises I issue the following order:

1. It is declared that the plaintiff acquired knowledge of the facts from which the debt arose in respect of her claims in the action on 28 March 2018 when the opinion of Dr. Wright was advised to her through the auspices of her attorneys, the latter being the date reckoned in section 3 (1) (a), read together with the provisions of section 3 (3) of the Institution of Legal Proceedings Against Certain Organs of State Act, No. 40 of 2002 (“ILPACOSA”), when the debt became due;

2. In the result, it is declared that the plaintiff’s notice of her intention to institute legal proceedings, as is required by section 3(2) of the ILPACOSA was timeously given, and is not required to be condoned;

3. Alternatively, the plaintiff is declared to have complied with the notice requirements contemplated in section 3(1)(a), read with section 3(2)(a) of the ILPACOSA, in respect of her claims under Bhisho Case No. 451/2018;

4. Further alternatively condonation is given for the purported late delivery of such notice;

5. The plaintiff is given leave to proceed with the institution of legal proceedings against the defendant; and

6. The defendant is directed to pay the costs of the application including the cost of two counsel, where applicable.

B HARTLE

JUDGE OF THE HIGH

COURT

DATE OF HEARING: 21 May 2020

DATE OF JUDGMENT: 23 October 2020*

*Judgment delivered electronically on this date by email to the parties.

APPEARANCES:

For the applicant: Mr. G A Dugmore SC. and Y Malunga instructed by Mjulelwa Inc. Attorneys care of Dandala Attorneys, King William’s Town (ref. Mjulelwa/tm).

For the respondent: Mr. N James instructed by Norton Rose Fulbright South Africa Inc. care of Smith Tabata Attorneys, King William’s Town (ref. MD/33D75202).

[1] Mr. James who appeared for the defendant at the hearing of the matter refers in his heads of argument to a “deficient notice”. The contention asserted in the defendant’s opposing affidavit that notice was giving to the defendant as

opposed to the HOD was not persisted with. The only shortcoming, therefore, is that the notice was outside of the six months

envisaged in section 3 (2)(a) of the ILPACOSA.

[2] See the approach of Spilg J in the orders given in Makhweto v Minister of Safety and Security [2015] 2 All SA 20 (GJ) at para [64]. See also Mbodla v MEC for Health, Eastern Cape (2701/11) [2012] ZAECMHC 17 (13 December 2012) in which Griffiths J gave similar orders.

[3] It is not surprising that the defendant focused on the three requirements stipulated by section 3 (4) of the ILPACOSA which must

be established before condonation can be granted, given the manner in which the plaintiff’s prayers were framed in the notice of application.

[4] See Links v MEC, Department of Health, Northern Cape Province 2016 (4) SA 414 (CC) at para [24]. A respondent is required to show what the facts are that the applicant was required to know before prescription could commence running. A respondent must also show that the applicant had knowledge of these facts on or before the date in issue. (Here the date concerned was a date exactly three years before summons was served.)

[5] See Makhwelo v Minister of Safety and Security, Supra, in which the preference is expressed that pleas of this nature standing in the way of the trial proceeding should be disposed of first, rather than burdening a trial judge with “skirmishes” when matters are meant to be trial ready on the allocated date. See the discussion generally at paras [23] to [29].

[6] See footnote 4.

[7] This stance is unfortunate, but at the end of the day the defendant has properly weighed in on the reasons why she maintains that the debt became due on the date of the child’s birth, or why the plaintiff must be regarded as having acquired knowledge of the facts giving rise to the debt or could have acquired it by exercising reasonable care before the date when the plaintiff asserts the debt in fact became due within the contemplation of section 3 (3) (a) of the ILPACOSA.

[8] As indicated by Griffiths J in Mbodla, Supra, at para [14], because of the similarity of the wording between section 12(3) of the Prescription Act and section 3 (3) (a) of the IPACOSA, the cases that deal with section 12 (3) of the Prescription Act must be regarded as being highly persuasive when interpreting the corresponding section in the ILPACOSA.

[9] Gericke v Sacks 1978 (1) SA 821 (A) at 827 – 828; Drennan Maud & Partners v Pennington Town Board 1983 (3) SA 200 (SCA); Sibiya supra at para [26]. See also Links, Supra, at para [24].

[10] Links, Supra, at par [24]. See also Loni v MEC, Department of Health, Eastern Cape Bhisho 2018 (3) SA 335 (CC) which summarises what was found in Links at para [23] regarding the two requirements to be established.

[11] Links, Supra, at para [30].

[12] Truter and Another v Deysel [2006] ZASCA 16; 2006 (4) SA 168 (SCA) at para 16.

[13] 2007 (1) SA 111 (SCA) at para 17.

[14] Gore, Supra, at para 17.

[15] This is certainly the nature of the debt in respect of which part the plaintiff sues in her representative capacity. The nature of her personal capacity is obviously different, but as Mr Dugmore submitted, it rides on the coat tails of the main claim. I expect though that the plaintiff probably meant to plead that it was also only upon being apprised of the opinion of Dr Wright that she suffered emotional shock as a secondary victim at the sheer import of the news even if depression (among the pleaded sequalae of the emotional shock) might have set in earlier following her disappointment in giving birth to a baby that must have presented as being very different to other babies. The parties focused on the essence of the main claim at the hearing before me and did not address me in respect of the unique nature of the plaintiff’s personal claim.

[16] Supra.

[17] In Links the applicant’s thumb had been amputated. That would have been obvious to him.

[18] This aspect of the Links matter was reiterated by the Constitutional Court in Loni at para [23]. In Links the court held that the applicant would have to had “knowledge of (the) facts (which) would have led him to think that possibly there had been negligence and that this caused the disability” which he was unable to acquire before seeking professional medical advice. In Loni the court reiterated its “main finding” in Links in its dictum at par 42 which is set out above in par 41 of my judgment above.

[19] Supra.

[20] at par [26].

[21] Links, at par [18].

[22] Links, at par[19].

[23] 1998 (3) SA 200 (SCA).

[24] Supra, at par [32].

[25] [2008] 1 All SA 295 (N).

[26] Supra.

[27] Supra.

[28] Mouton v Park 2000 Development 11 (Pty) Ltd 2019 (6) SA 105 (WCC) at para [85].

[29] [2008] ZASCA 34; 2008 (4) SA 312 (SCA) at para 15.

[30] Links, Supra, at par [26].

[31] Madinda, Supra, at par [21].

[32] See Minister of Safety and Security v Additional Mag, N Molo N.O and Keith Chipps [2013] ZAE (GHC 89) (unreported judgment of Roberson J, concurred in by Plasket J dated 23 August 2017 at para[8]; Mhlatsheni v RAF 2009 (2) SA 401 (ECD) at paras [16] and [17] and especially the statement by the Constitutional Court in Njongi v MEC, Department of Welfare, Eastern Cape 2008 (4)_SA 237 (CC) at par [79] that “(a) decision by the State whether or not to invoke prescription in a particular case must be informed by the values of our Constitution.”\