Loni v Member of the Executive Council, Department of Health, Eastern Cape, Bhisho

The applicant, Mr Mzwandile Owen Loni, sustained a gunshot wound in August 1999 and was treated at Cecelia Makiwane Hospital, a public hospital under the Eastern Cape Department of Health. His treatment involved delayed and allegedly sub-standard care, including failure to clean the wound properly, delayed surgery, failure to remove the bullet, and inadequate post-operative care. His wound became infected and oozed pus over a prolonged period, he experienced chronic pain and later developed a limp. He was discharged with ongoing complications and continued pain. In 2008, after obtaining medical insurance through employment, he consulted private doctors and in November 2011 an orthopaedic surgeon advised him that his condition was attributable to medical negligence. He instituted a damages claim in 2012 against the MEC, founded primarily in contract and alternatively in delict. The MEC raised a special plea of prescription under the Prescription Act 68 of 1969.

The application for leave to appeal was dismissed. No order as to costs was made.

This case reaffirms and applies the Constitutional Court’s jurisprudence in Links on prescription in medical negligence matters. It clarifies that prescription begins to run when a claimant has sufficient factual knowledge to reasonably suspect fault and seek advice, not when expert confirmation of negligence or the full extent of harm becomes known. The judgment underscores the objective reasonable person standard under section 12(3) of the Prescription Act and confirms its constitutionality despite its limitation on access to courts.