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

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

The court found that the plaintiff only acquired knowledge of the facts giving rise to the debt on 28 March 2018, when she was advised of Dr. Wright's expert opinion. Prior to this, she did not know, nor could she reasonably have known, the cause of her child's condition or the defendant's potential liability. The defendant failed to prove that the plaintiff had actual or deemed knowledge of the material facts before this date. The court held that the notice served on 7 May 2018 was within six months of acquiring such knowledge and was therefore timeous. Alternatively, the requirements for condonation under section 3(4) of the Institution of Legal Proceedings Against Certain Organs of...

Citation
[2020] ZAECBHC 28
Parties
Applicant: Ntombikhona Maleshiyo; Respondent: MEC for the Department of Health, Eastern Cape
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
23 October 2020
Case Number
451/2018
Procedural Posture
Condonation Application / Application for Condonation and Declaratory Relief Prior to Trial
Outcome
Declaratory relief granted in favour of the plaintiff; alternatively, condonation granted for any late notice; costs awarded against the defendant.
Judges
Hartle
Legal Topics
Prescription Act, Institution of Legal Proceedings Against Organs of State Act, Medical Negligence, Notice Requirements, Condonation, Minor Claims
Civil Procedure Delict Prescription Act Institution of Legal Proceedings Against Organs of State Act Medical Negligence Notice Requirements Condonation Minor Claims

Case Brief

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Parties

Ntombikhona Maleshiyo

Applicant

MEC for the Department of Health, Eastern Cape

Respondent

Procedural Posture

Condonation Application / Application for Condonation and Declaratory Relief Prior to Trial

Legal Issues

  1. 1 Whether the plaintiff's claim in her personal capacity has prescribed under the Prescription Act.
  2. 2 Whether the plaintiff's notice in terms of section 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act was timeously given.
  3. 3 Whether the plaintiff acquired knowledge of the facts giving rise to the debt before receipt of the expert medical opinion.

Ratio Decidendi

The court found that the plaintiff only acquired knowledge of the facts giving rise to the debt on 28 March 2018, when she was advised of Dr. Wright's expert opinion. Prior to this, she did not know, nor could she reasonably have known, the cause of her child's condition or the defendant's potential liability. The defendant failed to prove that the plaintiff had actual or deemed knowledge of the material facts before this date. The court held that the notice served on 7 May 2018 was within six months of acquiring such knowledge and was therefore timeous. Alternatively, the requirements for condonation under section 3(4) of the Institution of Legal Proceedings Against Certain Organs of...

Court Disposition

Declaratory relief granted in favour of the plaintiff; alternatively, condonation granted for any late notice; costs awarded against the defendant.

Orders

  • It is declared that the plaintiff acquired knowledge of the facts giving rise to the debt on 28 March 2018, when advised of Dr. Wright's opinion.
  • It is declared that the plaintiff's notice of intention to institute legal proceedings was timeously given and is not required to be condoned.