Estell Sondag v MEC for Department of Health, Eastern Cape Province

The applicant gave birth to a stillborn baby on 12 September 2019 at Dora Nginza Hospital, a public hospital in the Eastern Cape. She later alleged that the stillbirth resulted from negligent mismanagement of her labour by hospital nursing staff and doctors. At the time of the birth, she did not know, nor was she informed, that the outcome may have been due to negligence. Only after obtaining legal advice on 15 August 2021 did she become aware that she might have a damages claim against the MEC for Health. A statutory notice in terms of section 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 was served on 17 November 2021. The respondent raised special pleas of non-compliance with the Act and prescription, prompting this interlocutory application for a declarator that the notice was timeously served, alternatively for condonation.

The court granted leave to file the supplementary affidavit, declared that the applicant complied with section 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, and ordered the respondent to pay the costs of both interlocutory applications, including the costs of second counsel on Scale A.

The judgment reinforces the principled approach in South African medical negligence cases that prescription and statutory notice periods only commence once a plaintiff has knowledge, or reasonably should have knowledge, that harm was caused by negligent professional conduct. It underscores that adverse medical outcomes alone do not trigger prescription and cautions organs of state against relying on technical defences where this undermines access to justice.