Todi v MEC for the Provincial Government of North-West: Health and Another (751/2005) [2012] ZANWHC 42 (27 September 2012)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: 751/2005

In the matter between:-

REUBEN ITUMELENG TODI ...........................................................Plaintiff

and

MEC FOR THE PROVINCIAL GOVERNMENT

OF NORTH WEST RESPONSIBLE FOR HEALTH .............First Defendant

DOCTOR MAEDI ...........................................................Second Defendant

CIVIL MATTER

DATE OF HEARING : 25 SEPTEMBER 2012

DATE OF JUDGMENT : 27 SEPTEMBER 2012

COUNSEL FOR THE APPLICANT : ADV RONTGEN

COUNSEL FOR THE RESPONDENT : ADV CHWARO

REASONS FOR JUDGMENT

HENDRICKS J

Introduction:-

[1] On 11 June 1999 the Plaintiff attended at Bophelong hospital to have a tooth extracted. The dental surgeon attended to him and in the process the

Plaintiff suffered allegedly not only the loss of a wrong tooth but also a broken upper jawbone. This resulted in him being hospitalized

until the 21st June 1999.

[2] Almost six (6) years later the Plaintiff instituted action. On 24 June 2005 summons was issued by the Plaintiff against the Defendants. This prompted, amongst others, the Defendants to raise a special plea of prescription coupled with non-compliance with section 3 of the Institution of Legal Proceedings against Certain Organs of State Act, 40 of 2002. It is submitted that the Plaintiff failed to issue a notice contemplated in section 3 of Act 40 of 2002 within the six months period after having been aware of the right to action and further that the Plaintiff has failed to institute his claim within a period of three years since becoming aware of the cause of action and thus his claim has prescribed in terms of section 11(d) read with section 10(1) of the Prescription Act 68 of 1969.

[3] The matter was set down for hearing on 25 – 26 September 2012. At the inception of the hearing, the parties agreed that the special pleas be dealt with distinctly separate from the merits and the quantum reason being that if the special plea(s) are upheld, it will be definitive of the matter. In terms of Rule 33 (4) of the High Court Rules, the requisite separation was granted and arguments were presented by counsel acting on behalf of the respective parties. After listening to and careful consideration of the submissions made, I granted an order upholding the special pleas raised and dismissing Plaintiff’s action with costs. I also stated that reasons will follow. Here follows the reasons for the order I made.

[4] Section 10 of the Prescription Act 68 of 1969 reads:-

“10. Extinction of debts by prescription. - (1) Subject to the provisions of this Chapter and of Chapter IV, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt.

(2) By the prescription of a principal debt a subsidiary debt which arose from such principal debt shall also be extinguished by prescription.

(3) Notwithstanding the provisions of subsections (1) and (2), payment by the debtor of a debt after it has been extinguished by prescription in terms of either of the said subsections, shall be regarded as payment of a debt.”

Section 11 (d) reads:-

“11. Periods of prescription of debts. - The periods of prescription of debts shall be the following:

……….

……….

……….

save where an Act of Parliament provides otherwise, three years in respect of any other debt.”

For a definition of debt in terms of the Prescription Act 68 of 1969, see Primavera Construction SA v Government, North West Province 2003 (3) SA 579 (BPD) at page 596 A to page 597 I.

[5] Plaintiff’s cause or right of action is based solely on the alleged negligence by the dental surgeon who extracted his teeth and allegedly broke his upper jawbone in the process. It was submitted on behalf of the Defendant that since the Plaintiff’s upper jawbone was allegedly broken on the 11 June 1999, by the exercise of reasonable care within a period of between a month and six months after the said date, Plaintiff would have acquired not only the knowledge of the identity of the debtor but that he could have acquired the relevant and necessary facts from which his claim is base and/or the debt arises.

[6] According to the summons, Plaintiff is “an adult male employed at Mafikeng Provincial Hospital as a Porter”. He is therefore not a minor. Furthermore, being employed at the same hospital, he could with relative ease determine not only his right or cause of action but also when the debt became due and who should be held responsible.

[7] In Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313 (SCA) at pages 321 and 322 the following was stated:-

“[20] In considering the special plea of prescription, the postulation is, of course, that the allegations underpinning the government’s

claim had in fact been established. Broadly stated, it must therefore be accepted for the prescription issue that the Defendants’

occupation of their sites constitutes a contravention of both the Decree and the common law. Departing from this premises, the answer to the prescription defence is, in my view, to be found in the concept which has become well-recognised in the context of

prescription, namely that of a continuous wrong. In accordance with this concept, a distinction is drawn between a single, completed

wrongful act – with or without continuing injurious effects, such as a blow against the head – on the one hand, and a continuous wrong in the course of being committed, on the other. While the former gives rise to a single debt, the approach with

regard to a continuous wrong is essentially that it results in a series of debts arising from moment to moment, as long as the

wrongful conduct endures (see eg. Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A); Mbuyisa v Minister of Police, Transkei 1995 (2) SA 362 (Tk) (1995 (9) BCLR 1099); Unilever Bestfoods Robertsons (Pty) Ltd and Others v Soomar and Another 2007 (2) SA 347 (SCA) in para [15]).

[21] In Slomowitz, supra, (at 331 F-G) this Court accepted the description of a continuous wrong as one which ‘is still in the course of being committed and is not wholly past’. In applying this description, the Defendants’ wrongful conduct relied upon by the government must, in my view, be classified as a continuous wrong, in contrast with a single wrongful act. For their contention to the contrary, the Defendants sought to rely mainly on the decision in Radebe v Government of the Republic of South Africa and Others 1995 (3) SA 787 (N) at 803 D-804 G. I believe, however, that Radebe is distinguishable on its facts. What Radebe claimed was the setting aside of an alleged wrongful expropriation and the consequent transfer of his immovable property to the government, which was the Defendant in that case. What the Court held was that a deprivation of ownership based on a single act of expropriation did not constitute a continuous wrong and that, because the single wrongful act that Radebe relied upon had occurred more than three years ago, his claim had become prescribed. Where the present case differs from Radebe, as I see it, is that the government’s claim is not for the setting aside of a single act of deprivation of possession which happened wholly in the past, but effectively for an order terminating wrongful conduct which is still in the course of depriving it of the possession of its property. Thus understood, the government’s position is, in my view, no different from that of the Plaintiff in South African Railways & Harbours v Fisher’s Estate 1954 (1) SA 337 (A) which was succinctly described as follows by Centlivres CJ at 342 B-C:-

“The Plaintiff’s case is not that the Defendant wrongfully entered upon the land but that the Defendant was at the time of service of the summons (not at any time prior to that date) in wrongful possession of land of which it is the registered owner. That is all it has to prove in order to succeed in its action. As far as its claim is concerned, what occurred in the past is irrelevant …”

[22] A further argument raised by the Defendants for the first time in this Court, was that even if their wrongful occupation of the sites must be regarded as a continuous wrong, the same cannot be said of their building activities on the sites. That, they argued, can only be described, with reference to every individual structure, as a single wrongful act committed wholly in the past. In consequence, so their argument went, even though the government’s claim for their eviction from the sites may still be enforceable, its further claim that they be held responsible for the demolition and removal of all structures erected by them, had been extinguished by prescription three years after the government acquired notice of these structures. I do not agree with this argument. On the government’s case as pleaded, the continued existence and occupation of the structures by the Defendants constituted part and parcel of their wrongful occupation of the sites. To my way of thinking, the result is that the existence and occupation of the structures form part of the continuous wrong perpetrated by the Defendants. It follows that, in my view, the special plea of prescription cannot be sustained.”

[8] In the present case, unlike in Barnett and Others v Minister of Land Affairs and Others, supra, there is only one single completed wrongful act. It is not a continuous wrong in the course of being committed who is not wholly past. In my view, the debt had become prescribed after the passage of three years calculated from 11 June 1999. This is more so because it does not appear ex facie the pleadings that the Plaintiff only gained full knowledge at a later stage.

[9] Adv Rontgen on behalf of the Plaintiff, quite correctly in my view conceded that there is a lacuna in the particulars of claim with regard to the negligence not been stipulated. He however contended that it was incumbent upon the Defendant as the bearer of the onus of proof and being saddled with the duty to begin with regard to the special pleas, to have requested further and better particulars for purposes of trial, which they failed to do. I respectfully disagree with this proposition. The Plaintiff should have stated in his particulars of claim why he could not institute the action timeously.

[10] Section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 provides:-

“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…..”

[11] The letter of intention to institute legal action (and the summons) were only issued almost six years after the right or cause of action arose. In dealing with instances where a court can grant condonation for non-compliance with the provisions of Act 40 of 2002, the Supreme Court of Appeal, in the matter of Minister of Safety and Security v De Witt [2008] ZASCA 103; 2009 (1) SA 457 (SCA) at paragraph 13 held as follows:-

“The discretion may only be exercised, however, if the three criteria in s 3(4)(b) are met: that the debt has not been extinguished by prescription (at issue in this case); that good cause exists for the creditor’s failure; and that the organ of State has not been unduly prejudiced …..”

In my view, Plaintiff’s claim had prescribed and the non-compliance with section 3 of Act 40 of 2002 cannot be condoned.

It is for the aforementioned reasons that I granted the order as alluded to earlier on.

R D HENDRICKS

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE PLAINTIFF: SMIT STANTON INC

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