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

In June 2006, the applicant, Mr Links, a cleaner with Grade 7 education, dislocated his thumb and attended Kimberley Hospital. A plaster of Paris cast was applied. He returned several times with severe pain and was eventually admitted on 4 July 2006. On 5 July 2006, his left thumb was amputated during surgery. He remained hospitalized until end of August 2006, undergoing multiple procedures. He was discharged and told he would likely never regain use of his left arm, which developed a "clawed" hand. In November 2006 he sought legal help, eventually approaching the Legal Aid Board in December 2006. The Legal Aid Centre failed to act for approximately three years. His current attorneys sent notice and issued summons on 6 August 2009, more than three years after the amputation. The respondent raised special pleas of non-compliance with the Institution of Legal Proceedings Against certain Organs of State Act and prescription. The applicant applied for condonation but both the High Court and Full Court held the claim had prescribed, finding the debt became due on 26 June 2006 when he first presented for treatment.

• When does prescription begin to run in a medical negligence claim under section 12(3) of the Prescription Act 68 of 1969?
• What constitutes 'knowledge of the facts from which the debt arises' within the meaning of section 12(3) of the Prescription Act?
• Does a plaintiff in a medical negligence case need to know the cause of their injury before prescription begins to run?
• Whether condonation should be granted for non-compliance with section 3 of the Institution of Legal Proceedings Against certain Organs of State Act 40 of 2002 where prescription has not run?
• Whether the interpretation of prescription legislation must promote the spirit, purport and objects of the Bill of Rights, particularly section 34 (access to justice)?

1. Condonation for non-compliance with Rule 19 granted. 2. Leave to appeal granted. 3. Appeal upheld with costs including costs of two Counsel. 4. Order of Full Court set aside and replaced with order upholding appeal with costs. 5. Order of High Court set aside and replaced with: (i) The two special pleas dismissed; (ii) Mr Links' failure to comply with section 3 of Legal Proceedings Act condoned; (iii) The MEC to pay Mr Links' costs.

1. Under section 12(3) of the Prescription Act, prescription does not begin to run until the creditor has knowledge of 'the facts from which the debt arises.' This includes knowledge of material facts relating to both negligence and factual causation, not merely awareness of injury or damage. 2. In medical negligence cases, a plaintiff must have knowledge of facts that would lead a reasonable person to suspect that the injuries were caused by medical fault before prescription begins to run. Mere knowledge of injury is insufficient. 3. Knowledge for purposes of section 12(3) means justified true belief - not mere opinion, suspicion, or subjective conviction. The belief must be warranted by the facts available to the plaintiff. 4. In professional negligence cases, the party relying on prescription must show the plaintiff was in possession of sufficient facts to cause reasonable grounds to suspect fault. Until such grounds exist, the plaintiff cannot be said to have knowledge of the facts from which the debt arises. 5. Where a plaintiff lacks medical expertise and remains hospitalized without access to independent medical advice or records, they cannot reasonably be expected to know what caused their medical condition. Prescription cannot run during such period. 6. Section 12(3) of the Prescription Act must be interpreted in accordance with section 39(2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights, particularly the right of access to justice in section 34.

The Court made severe criticism of the Legal Aid Centre's handling of the applicant's matter, describing the conduct as "reprehensible." The Court noted that the Centre failed to act on the applicant's matter for approximately three years despite multiple visits by the applicant. The Court emphasized that the Legal Aid Centre is supposed to serve indigent, vulnerable people and should not be responsible for destroying their claims through negligence and delay. The Court called for those with authority over the Centre to study the affidavits and take appropriate action against the personnel concerned. The Court observed that had the outcome been different, the Centre may have been liable for the applicant's damages. The Court also rejected the applicant's claim that he was unaware his thumb had been amputated until after discharge from hospital, finding this "highly improbable" given the two-month hospitalization period, regular wound dressing, and inevitable interaction with medical staff about his condition. However, this finding did not affect the outcome as the critical issue was knowledge of causation, not merely awareness of injury.

This judgment provides crucial guidance on the interpretation of section 12(3) of the Prescription Act in medical negligence cases. It clarifies that 'knowledge of the facts from which the debt arises' includes knowledge of causation, not merely awareness of injury. The judgment establishes that in professional negligence cases, prescription does not begin to run until the plaintiff has sufficient facts to form reasonable grounds to suspect fault. This requires more than subjective suspicion - it requires justified true belief based on facts that would cause a reasonable person to suspect negligence. The judgment emphasizes the constitutional dimension of prescription legislation, requiring interpretation that promotes access to justice under section 34. It recognizes the vulnerability of unsophisticated, indigent litigants and the practical barriers to obtaining knowledge in medical negligence cases. The judgment is significant for the protection it affords to plaintiffs in professional negligence cases, ensuring they have meaningful opportunity to pursue claims before prescription bars them. The judgment also contains important criticism of the Legal Aid Board's handling of the matter, highlighting institutional responsibility to vulnerable litigants.