Links v Member of the Executive Council, Department of Health, Northern Cape Province

The applicant, Mr Dirk Links, a cleaner with Grade 7 education, suffered a dislocated thumb on 26 June 2006 and was treated at Kimberley Hospital, where a plaster of Paris cast was applied. He repeatedly returned to hospital with severe pain. On 5 July 2006 he underwent surgery (a fasciotomy) during which his left thumb was amputated, followed by further surgeries. He ultimately suffered permanent loss of function of his left arm (Volkmann’s contracture). The applicant alleged he was never informed of the reasons for the amputation or the cause of his condition. After discharge, and once the extent of permanent damage became apparent, he sought legal assistance. A damages claim for medical negligence was instituted in August 2009. The MEC raised special pleas that the statutory notice under the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 was late and that the claim had prescribed. The High Court and Full Court held that prescription had run from June/July 2006 and dismissed the claim.

Leave to appeal was granted. The appeal was upheld. The orders of the High Court and Full Court were set aside. It was declared that the applicant’s claim had not prescribed, and condonation for failure to comply with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act was granted. The matter was permitted to proceed.

This is a leading Constitutional Court authority on the interpretation of section 12(3) of the Prescription Act. It clarifies that prescription in delictual claims does not begin to run upon mere awareness of injury, but only once the claimant has knowledge of the material facts linking the harm to wrongful conduct. The case strengthens access to courts under section 34 of the Constitution, particularly for vulnerable litigants in medical negligence claims who may lack early access to information and expertise.