Member of the Executive Council for Health Eastern Cape v N H obo A

The respondent gave birth to a baby boy on 11 May 2012 at St Barnabas Hospital, Libode, Eastern Cape, following a complicated labour. The baby did not cry at birth and appeared floppy and dull. The respondent remained in hospital for a week after delivery. Hospital staff did not inform her of any complications during delivery. The respondent, who had limited education and lived in a rural area, accepted that her baby's abnormality was an unavoidable consequence of complicated labour. She had no access to hospital records and the hospital personnel did not explain the cause of her child's condition. In January 2018, the respondent met a lady in Libode who also had a baby with cerebral palsy and was advised to consult Nonxuba Attorneys. On 1 February 2018, after consulting with her attorney, the respondent learned for the first time that the hospital staff may have been negligent and that this could have caused her baby's cerebral palsy. Notice was given on 20 February 2018, and summons was issued on 9 April 2018 claiming R29,106,761.00 in damages, including R500,000.00 for the respondent's personal claim for emotional shock, trauma, pain and suffering.

• When did prescription commence running against the respondent's personal claim for emotional shock and trauma in terms of section 12(3) of the Prescription Act 68 of 1969?
• What constitutes 'knowledge of the facts from which the debt arises' for purposes of section 12(3)?
• In cases of professional medical negligence, what level of knowledge must a layperson plaintiff possess before prescription begins to run?
• Whether the respondent's claim had prescribed by the time summons was served on 9 April 2018?

1. The appeal is dismissed. 2. There is no order as to costs.

In cases of professional medical negligence, for prescription to commence running under section 12(3) of the Prescription Act 68 of 1969, the plaintiff must have knowledge of sufficient facts to cause them, on reasonable grounds, to suspect fault on the part of the medical staff. Knowledge of 'the facts from which the debt arises' means knowledge of primary facts that would give reasonable grounds to suspect professional negligence, not merely knowledge of the bare facts of the incident. Knowledge of wrongfulness and causation are legal conclusions, not facts required for section 12(3). A layperson plaintiff with limited education, no medical knowledge, and no access to medical records cannot be deemed to have the requisite knowledge merely because they experienced a complicated labour or observed symptoms in their child without understanding their significance or causative link to potential negligence. The party relying on prescription bears the onus of proving that the plaintiff possessed such knowledge.

The Court observed that the respondent had been 'brought up to believe that medical doctors and personnel know what they are doing' and had no reason to believe hospital staff had anything to do with her baby's outcome. The Court noted that to require a plaintiff in the respondent's circumstances to have had knowledge of sufficient facts at discharge from hospital '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.' The Court emphasized the practical difficulties faced by rural, poorly educated patients in assessing whether they have received negligent treatment, particularly when hospital personnel provide no explanation of complications or their significance.

This case provides important clarification on the application of section 12(3) of the Prescription Act in cases of medical negligence involving laypersons with limited education and no access to medical records. It confirms and applies the principles from Links v Department of Health, Northern Province, establishing that in professional negligence cases, prescription does not commence until the plaintiff has sufficient facts to reasonably suspect fault on the part of the professional. The judgment clarifies that Mtokonya v Minister of Police does not set a different or higher standard than Links. The case protects vulnerable claimants who lack medical knowledge, education, and access to information, ensuring that prescription does not run against them before they have a reasonable basis to suspect that professional negligence has occurred. It emphasizes the practical realities faced by rural, poorly educated patients who must rely on professional expertise and have limited ability to assess whether they have received negligent treatment.