THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 513/2021

In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH
EASTERN CAPE
APPELLANT

and

N H obo A

RESPONDENT

Neutral citation:
MEC for Health, Eastern Cape v N H obo A (513/2021) [2022]
ZASCA 181 (15 December 2022)
Coram:
DAMBUZA ADP, MOCUMIE and CARELSE JJA and CHETTY
and SALIE-HLOPHE AJJA
Heard:

15 November 2022
Delivered:

15 December 2022
Summary:
Extinctive prescription – s 12(3) of the Prescription Act 68 of 1969
– inquiry as to what constitutes knowledge of sufficient facts giving rise to a claim
against a hospital – whether the claimant only acquired such knowledge upon
consulting with a legal practitioner.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Bhisho (Mjali J sitting as
court of first instance):

The appeal is dismissed.
There is no order as to costs.

___________________________________________________________________

JUDGMENT
___________________________________________________________________
Chetty AJA (Dambuza ADP, Mocumie and Carelse JJA and Salie-Hlophe AJA
concurring)
[1] On 9 April 2018 the respondent, N H, instituted an action in the Eastern Cape
Division of the High Court, Bhisho (high court) against the appellant, the Member of
the Executive Council for Health, Eastern Cape. The action was brought in her
personal capacity and as the mother and natural guardian of ‘A’, a boy born on 11 May
2012 at the St Barnabas Hospital, Libode, Eastern Cape. The respondent, in her
representative capacity, sued the appellant for an amount of R29 106 761.00 for
damages, alleging that as a result of the negligence of the hospital staff, her minor
child now suffers from cerebral palsy. Included in the amount was the respondent’s
claim, in her personal capacity, of R500 000.00 for emotional shock, trauma, pain and
suffering.

[2] On receipt of the summons, the appellant filed a special plea contending that the
respondent’s claim, in her personal capacity, had prescribed in that she had failed to
timeously comply with the provisions of section 3(2) of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002 (the Act). The appellant
pleaded that the respondent instituted the action on 12 April 2018 having given notice

of her intention to do so on 20 February 2018. The appellant contended that the
respondent ought to have instituted her action within six months of 18 May 2012, the
date when the cause of action arose.1 Put differently, the appellant contended that the
respondent instituted her action more than five years from the date when she ought to
have given notice in terms of s 3(2). In the result, it was contended that the
respondent’s claim in her personal capacity, had prescribed.

[3] In response thereto, the respondent applied for condonation for non-compliance
in terms of s 3(4)(a) of the Act. The appellant opposed the application contending that
the respondent failed to satisfy the requirement of s 3(4)(b)(i) of the Act as her ‘debt’
had become extinguished by prescription. The high court determined the special plea
separately, dismissing it with costs. The matter comes before this Court with leave of
the high court. In this Court the appeal was not opposed, with the respondent electing
to abide the decision of this Court.

[4] The issue for determination is the date from when prescription began to run
against the respondent’s personal claim for emotional shock. The starting point is the
provisions of s 12 of the Prescription Act 68 of 1969 (Prescription Act) which provides
that prescription begins to run when a debt becomes due. Section 12(3) states that 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’.

[5] The answer as to when the debt became due requires a two-pronged inquiry.
The first is when the respondent acquired the relevant knowledge, or could have
acquired the relevant knowledge, by exercising reasonable care regarding the identity
of the debtor. Secondly, what are the facts that the respondent was required to know
before prescription could commence. In carrying out this inquiry, the high court
determined the matter on the basis of the affidavits before it. No oral evidence was led
in the interlocutory application.

1 The appellant’s case as to the date when it alleged prescription began to run vacillated between the
date of birth of the minor child (11 May 2012) and the date when the respondent and the baby were
discharged from hospital (18 May 2012). Nothing turns on the difference between the two dates.

[6] On the basis of facts which were common cause, the high court found that on 10
May 2012 the respondent was admitted to St Barnabas Hospital and after a
‘complicated labour’, she gave birth to her baby. At the time of her delivery, the
respondent was not informed by the doctors or the nursing staff at the hospital, who
were responsible for her care and that of her new born baby, that there were any
complications during the delivery that could impact adversely on the health of her
baby. The respondent remained in hospital for a week after the delivery, during which
time her baby was kept in the nursery. She recalled that her baby did not cry at the
time of birth. It is not clear from the papers what significance attaches to this fact.
Clearly, on the basis of the respondent’s affidavit, she was unaware of the significance
(if any) of this fact, nor does the appellant seek to explain this phenomenon. Moreover,
the appellant has not shown how this could have constituted the basis for the
respondent having knowledge of ‘the identity of the debtor’, or that it constituted a
‘relevant fact’ for the purposes of s 12(3). It bears noting that the respondent had a
limited school education and could hardly be expected to be au fait with medical
symptoms reflective of any pediatric abnormality.

[7] A medical report dated 20 September 2018 prepared by Dr Mugerwa-
Sekawabe, a specialist obstetrician and gynaecologist, who reviewed the
respondent’s medical records from the hospital and consulted with her, notes that
while the new born baby was not placed on oxygen or drips, the baby ‘looked floppy
and dull’. The appellant did not seek to explain whether this feature was brought to the
attention of the respondent by the doctors or nurses at the time, or what it’s
significance could be in respect of her appreciating the ‘facts giving rise to the debt’.

[8] The medical report of Dr Mugerwa-Sekawabe indicates that the respondent has
never had the minor child assessed by a paediatrician. There is no evidence of the
child’s physical or mental development shortly after birth and prior to reaching the age
of six years. The only insight into the minor child’s condition is gleaned from the
respondent’s founding affidavit where she stated:
‘. . . I accepted that A’s abnormality was due to an unanticipated and unavoidable event at the
time of his birth. I am a lay person in respect of legal matters and medical issues. I accepted
that the staff at the hospital where I was treated at the time knew what they were doing and
acted appropriately.’

Elsewhere in her founding affidavit the respondent stated that as a layperson, with
little or no knowledge of legal or medical issues, she ‘did not believe that the hospital
staff had anything to do with the outcome of [my] baby. I accepted it as an unavoidable
fact following a complicated labour’. This version of the respondent was not gainsaid
by the appellant, nor was the appellant able to refute this version with reference to
anything contained in the hospital records, which were in its custody. The high court
found that the respondent, in the circumstances, resigned herself into believing that
her child’s ‘abnormality was unavoidable and that there was nothing untoward by those
who cared for her during the delivery’.
[9] On the respondent’s version, she met a lady in January 2018 in Libode, Eastern
Cape, who ‘also had a baby with cerebral palsy’. The appellant contended that on the
basis of this averment, the respondent was aware at the time when she met the
unknown lady in Libode, that her own child was disabled and had cerebral palsy. It is
uncertain whether by this stage the respondent had any appreciation of what cerebral
palsy was, or the possible causes thereof. What is apparent from the pleadings is that
after exchanging her experiences with the lady, the respondent was advised to contact
Nonxuba Attorneys with a view to claiming damages arising out of the alleged
negligent treatment her baby received, resulting in her baby having cerebral palsy.

[10] Soon thereafter the respondent arranged a consultation with her attorneys. On
1 February 2018, at the consultation, the respondent explained the history of her
pregnancy and delivery. After the consultation, the attorney informed the respondent
that she was of the view that the hospital staff were negligent in not rendering proper
care to the respondent and her baby, resulting in the baby sustaining brain damage,
leading to cerebral palsy. The respondent instructed the attorney to institute a claim
on her behalf against the hospital.

[11] According to the respondent, she became aware for the first time that her child’s
cerebral palsy was due to the negligence of the staff at St Barnabas Hospital after
consulting with her attorney on 1 February 2018. On this basis, she contended that 1
February 2018 was the effective date for the purposes of s 3(3)(a), the date when she
had knowledge of the identity of the organ of state as the debtor, and the facts giving
rise to the debt. Accordingly, the respondent’s attorney gave notice on 20 February

2018 to the appellant in terms of s 3 of the Act of the respondent’s intention to institute
a claim for damages.2

[12] The high court’s finding that the respondent was illiterate and a layperson is not
challenged by the appellant. The high court concluded that the respondent’s admission
that she had a difficult labour, that her child did not cry at birth and that she remained
in hospital for a week after the birth, did not ‘on its own imply knowledge of the facts
giving rise to the claim’. The respondent, at no stage prior to consulting with her
attorney, entertained the possibility that the hospital staff were negligent, thereby
forming a basis for a claim against the appellant.

[13] In determining that the respondent first became aware on 1 February 2018 that
she had a claim for damages against the appellant, the high court reasoned that ‘[U]ntil
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 arise[s]’. It is in this respect that the appellant contends that the high court
erred, presumably by reference to the word ‘fault’.

[14] The appellant relies on the finding in Mtokonya v Minister of Police3 (Mtokonya)
that what is required to satisfy the requirement in s 12(3) of the Prescription Act is
knowledge of the bare facts from which the debt arises. Knowledge of wrongfulness
and causation are irrelevant.4 In particular, counsel for the appellant contended that
prescription began to run against the respondent at the time of the birth of her child.
As a result, the respondent was obliged to give notice in terms of s 3(1) of Act 40 of
2002 not later than six months from the date of the birth of her child.

[15] The appellant relied on the following paragraphs in Mtokonya in support of its
argument:
‘[37] The question that arises is whether knowledge that the conduct of the debtor is wrongful
and actionable is knowledge of a fact. This is important because the knowledge that section

2 The respondent’s attorney initially gave notice in terms of s 3 of the Act to the incorrect organ of state.
That defective notice was subsequently rectified, and condonation was sought in that regard. The high
court’s order granting condonation for the defective notice is not challenged on appeal to this Court.
3 Mtokonya v Minister of Police [2017] ZACC 33; 2018 (5) SA 22 (CC).
4 Ibid para 36: ‘Section 12(3) does not require the creditor to have knowledge of any right to sue the
debtor nor does it require him or her to have knowledge of legal conclusions that may be drawn from
“the facts from which the debt arises”.’

12(3) requires a creditor to have is “knowledge of facts from which the debt arises”. It refers
to the “facts from which the debt arises”. It does not require knowledge of legal opinions or
legal conclusions or the availability in law of a remedy.
. . .
[67] The second judgment accepts that knowledge whether the conduct of the police against
the applicant was wrongful and actionable is not knowledge of a fact but of a legal conclusion.
This means that the applicant’s lack of knowledge related to something that fell outside the
exception provided for in the second part of section 12(3). The first part requires lack of
knowledge of the identity of the debtor. The second part requires lack of knowledge of “the
facts from which the debt arises”.’

[16] In light of the above findings, the appellant contends that the respondent had
knowledge of the identity of the debtor (being St Barnabas Hospital, and by implication
the Department of Health, Eastern Cape) as well as the ‘facts’ from which the debt
arose at the time when she and her baby were discharged from the hospital. There is
nothing in the pleadings to indicate that the nurses or doctors at the hospital informed
the respondent of any complications at birth or any abnormalities which they had found
during the post delivery period, and more particularly, the significance thereof to the
health of her child. These could hardly constitute what this Court in MEC for Health,
Western Cape v M C5 described as the ‘minimum essential facts that the plaintiff must
prove in order to succeed with the claim’, alternatively referred to as the ‘primary
facts’.6

[17] In circumstances similar to the present matter, in Links v Department of Health,
Northern Province7 (Links) the plaintiff injured his thumb and went to hospital where
he was treated with a plaster cast. The cast was applied too tight, resulting in the
amputation of his thumb, eventually leading to the permanent loss of the use of his left
hand. The plaintiff decided to sue the hospital. When his claim was eventually lodged,
it was met with a plea that the claim had prescribed as he should have instituted his
claim within three years from when his thumb was amputated. The plaintiff contended
that prescription could not have commenced at the time when his thumb was

5 MEC for Health, Western Cape v MC [2020] ZASCA 165.
6 Ibid para 8.
7 Links v Department of Health, Northern Province [2016] ZACC 10; 2016 (5) BCLR 656 (CC).

amputated, as he was unaware of the facts from which his claim ultimately arose, or
that the earlier negligence led to the loss of the use of his hand. He had no access to
his hospital records and the hospital personnel did not explain to him the cause of his
condition.

[18] The Court considered the facts from which the debt arose, which the plaintiff
was required to know before the debt could be said to be due, and for prescription to
start running. The plaintiff in Links had no idea what caused the loss of the use of his
left hand at the time of his discharge from hospital. His explanation was simply that he
had ‘been brought up to believe that medical doctors and personnel know what they
are doing’.8 Similarly, the respondent in the present matter says she had no reason to
believe that the hospital staff had anything to do with the ‘outcome of her baby’, which
she considered ‘an unavoidable’ consequence of a complicated labour.9 In Links the
Court said:
‘. . . To require knowledge of causative negligence for the test in s 12(3) to be satisfied would
set the bar too high. However, in 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.’10

[19] The appellant bears the onus to prove that the respondent’s claim had
prescribed11 by 9 April 2018, the date when the summons was served. On that score,
the appellant must show that the respondent had knowledge of the relevant facts on
or before 8 April 2015, because the applicable period of prescription in
respect of the respondent’s personal claim is three years.

[20] A material fact which the appellant is required to prove in order to succeed is
that the respondent had knowledge of what caused the condition of her baby, as at

8 Ibid para 41.
9 See in this regard Minister of Finance and Others v Gore NO [2006] ZASCA 98; [2007] 1 All SA 309
(SCA) para 18: ‘Mere opinion or supposition is not enough: there must be a justified, true belief. Belief
on its own, is insufficient.’
10 Links, para 42.
11 Ibid para 24.

the time of her delivery or discharge from hospital, being 18 May 2012. There is
nothing on the record to indicate that this is so. Only after consulting with her attorney
did she become aware of the basis for a potential claim. It is only at that stage that she
acquired the knowledge that the hospital staff were the cause of her child’s condition,
and that the appellant was therefore the debtor.

[21] In my view, the appellant has not discharged the onus of showing that the
respondent knew, or ought to have reasonably suspected, on an objective assessment
of the facts,12 that she received negligent treatment at the hospital, and that the
disability suffered by her minor child was the result of that negligence. It cannot be
said that the respondent had knowledge of the facts that would have led her to think
that the medical staff at St Barnabas Hospital were negligent, and that her child had
cerebral palsy as a result.13

[22] I am not persuaded by the argument of the appellant’s counsel that the
Constitutional Court has set a different standard of proof in Mtokonya compared to
that in Links or Loni v Member of the Executive Council, Department of Health, Eastern
Cape (Bhisho).14 In Loni the applicant suffered a gunshot wound requiring medical
treatment at a provincial hospital. At the time of his discharge he was able to ascertain
that the wound was not fully healed and thereafter visited a clinic where he obtained
further treatment. After enduring pain in his leg for several years, he developed a limp,
eventually leading to his disability. On obtaining an independent medical opinion, he
was informed that his disability was attributable to the manner in which his injury was
handled by the staff at the hospital. His claim against the hospital was met with a plea
that the claim had prescribed. The full court found that he had all the necessary facts
at his disposal, sufficient for him to act.

12 Loni v Member of the Executive Council, Department of Health, Eastern Cape (Bhisho) [2018] ZACC
2; 2018 (3) 335 (CC) (Loni) para 32.
13 Truter and Another v Deysel 2006 (4) SA 168 (SCA) para 16:
‘In a delictual claim, the requirements of fault and unlawfulness do not constitute factual ingredients of
the cause of action, but are legal conclusions to be drawn from the facts: “A cause of action means the
combination of facts that are material for the plaintiff to prove in order to succeed with his action. Such
facts must enable a court to arrive at certain legal conclusions regarding unlawfulness and fault, the
constituent elements of a delictual cause of action being a combination of factual and legal conclusions,
namely a causative act, harm, unlawfulness and culpability or fault”.’
14 Footnote 13.

[23] The Constitutional Court in Loni distinguished the position from Links where the
plaintiff had no knowledge of the causative link between the breaches by the hospital
and the harm suffered. At para 23 the Court stated:
‘In Links this court found that in order for a party to successfully rely on a prescription claim in
terms of s 12(3) of the Prescription Act, he or she must first prove “what the facts are that the
applicant is required to know before prescription could commence running” and secondly, that
“the applicant had knowledge of those facts” . . . This Court opined that it would be setting the
bar too high to require knowledge of causative negligence. In answer to this issue, this Court
held that in cases involving professional negligence, the facts from which the debt arises are
those facts which would cause a plaintiff, on reasonable grounds, to suspect that there was
fault on the part of the medical staff and that caused him or her to “seek further advice”.’

[24] The interpretation contended for by the appellant would require us to hold that
a party with no knowledge of medicine, no access to her hospital records, limited
schooling and resident in a rural area of the country, would be expected to have
knowledge of sufficient facts to institute an action for damages within the prescribed
periods. A proper reading of Mtokonya does not support such a conclusion as
indicated by the Court at para 45:
‘Knowledge that the conduct of the debtor is wrongful and actionable is knowledge of a legal
conclusion and is not knowledge of a fact. The second judgment accepts that this is so.
Therefore, such knowledge falls outside the phrase “knowledge of facts from which the debt
arises” in section 12(3). The facts from which a debt arises are the facts of the incident or
transaction in question which, if proved, would mean that in law the debtor is liable to the
creditor.’ (own emphasis)
Knowledge of a complicated labour that preceded the birth of a child who did not cry,
does not meet this test.

[25] The high court properly applied the criteria in Links to the facts before it and
correctly concluded that the respondent’s personal claim for damages had not
prescribed at the time when summons was served. This Court in WK Construction
(Pty) Ltd v Moores Rowland and Others15 confirmed the position set out in Links as
the ‘clear position in our law’.16

15 WK Construction (Pty) Ltd v Moores Rowland and Others [2022] ZASCA 44; [2022] 2 All SA 751
(SCA).
16 Ibid para 37.

[26] In the result, the following order is made:

The appeal is dismissed.
There is no order as to costs.

________________________

M R CHETTY

ACTING JUDGE OF APPEAL

APPEARANCES

For appellant:

V Notshe SC and H Cassim
Instructed by:

Zilwa Attorneys

State Attorney, Bloemfontein

For respondent:

No appearance
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

15   December 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
MEC for Health, Eastern Cape v N H obo A (513/2021) [2022] ZASCA 181 (15
December 2022)
Today, the Supreme Court of Appeal (SCA) handed down judgment dismissing an appeal by the
Member of the Executive Council for Health, Eastern Cape against the decision of the Eastern Cape
Division of the High Court, Bhisho (high court). The respondent is the mother of a minor child born in
May 2012 with cerebral palsy. She instituted a claim for damages on behalf of her child and herself
more than five years after the birth of her child. At the time of the child’s birth, the respondent had no
reason to suspect that the hospital staff may have done anything to cause the child to be born with
cerebral palsy.

The claim of prescription was raised by the appellant in respect of the respondent’s personal claim for
trauma arising from her child’s cerebral palsy. The high court dismissed the plea of prescription,
finding that the respondent could not have had knowledge of the necessary facts at the time to have
instituted a claim against the appellant, thereby interrupting the running of prescription. The matter
came before the SCA with leave of the high court.

The facts revealed that the respondent endured a difficult labour, after which her child was born.
Neither the medical or nursing staff at the hospital informed the respondent of any problems
associated with the delivery of her child. She left the hospital after a week, without any knowledge that
her child was born with cerebral palsy.  It was only five years later, in January 2018, when she met
another woman who similarly gave birth to a child with cerebral palsy, which led the respondent to
seek legal advice. After consulting with an attorney and being advised that the condition of her child
was probably due to the treatment the child received at the time of birth, did the respondent institute
an action for damages against the hospital.

The respondent’s personal claim had to be instituted within three years of acquiring knowledge of the
facts from which the debt arose in terms of section 12(3) of the Prescription Act 68 of 1969.  As she
had only acquired this knowledge after consulting with her attorney, the respondent contended that
prescription should have commenced to run from that date.

On appeal, the SCA held that it was only at the stage when the respondent consulted with her
attorney that she acquired the knowledge that the hospital staff were the cause of her child’s
condition, and that the appellant was therefore the ‘debtor’ for the purposes of the Prescription Act.
The Court held that the appellant had not discharged the onus of showing that the respondent knew,
or ought to have reasonably suspected, that she received negligent treatment at the hospital, and that
the disability suffered by her minor child was the result of that negligence. On that basis it could not
be said that the respondent had knowledge of the facts that would have led her to think that the
medical staff at the hospital were negligent, and that her child had cerebral palsy as a result.

Accordingly, the SCA dismissed the appeal.

~~~~ends~~~~