Van Vuuren v Member of the Executive Council for Health, Gauteng Province

The appellant instituted an action against the MEC for Health, Gauteng Province, claiming damages for loss of support and emotional shock arising from the death of his mother on 22 December 2011. He alleged that her death resulted from negligent medical and nursing care at Charlotte Maxeke Johannesburg Academic Hospital following surgery in August 2011, which led to paralysis, pressure sores, sepsis and ultimately death. The appellant was a minor at the time of death. Statutory notice in terms of s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 was served on 31 March 2017. The respondent raised special pleas that the statutory notice was late and that the claim had prescribed. The appellant contended that the debt only became due on 28 November 2016 when he first learned, upon consulting attorneys, that the correct debtor was the MEC and not the hospital.

The appeal was dismissed, and each party was ordered to pay their own costs.

The case clarifies that where a plaintiff alleges compliance with s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act, an application for condonation may be unnecessary. It underscores the distinction between compliance with statutory notice requirements and prescription, and affirms that prescription disputes should ordinarily be determined by the trial court. The judgment also confirms limits on introducing new evidence and seeking new relief on appeal.