Dr Rene Truter and Dr Jan A Venter v Marthinus Albertus Deysel

The respondent, Mr Deysel, instituted action in April 2000 against two doctors (Drs Truter and Venter) for damages arising from medical and surgical procedures performed on his right eye between July and September 1993. The procedures involved six operations including cataract extraction, emergency iridectomy, irrigation of lens material, laser capsulotomy, anterior vitrectomy, and intra-ocular lens insertion. These ultimately led to decompensation of his cornea, requiring a corneal graft in December 1996, which developed complications resulting in evisceration of his right eye in April 1997, rendering him totally blind as he had already lost his left eye. Deysel lodged a complaint with the Medical and Dental Council in July 1994, which was dismissed in July 1995. He appointed attorneys in 1995 who consulted multiple medical experts (Professors Murray, Dr Sacks, Dr Kruger, Dr Claassen, Dr Mouton, Dr Woods, and Professor Stulting) between 1995 and 1999, none of whom concluded that negligence could be inferred. Only in early 2000, when Dr Steven was consulted, did Deysel obtain an expert opinion supporting negligence, on the basis of which summons was issued in April 2000. The doctors raised a special plea of prescription.

• When does prescription commence to run in respect of a claim for damages for medical negligence under 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 the context of a medical negligence claim?
• Does the requirement of knowledge of facts include knowledge of an expert medical opinion that the facts constitute negligence?
• Is an expert opinion that facts constitute negligence itself a 'fact' for purposes of section 12(3)?

The appeal was upheld with costs. The order of the Cape High Court was set aside and replaced with an order upholding the special plea of prescription and dismissing the plaintiff's action with costs.

For purposes of section 12(3) of the Prescription Act 68 of 1969, 'knowledge of the facts from which the debt arises' in the context of a medical negligence claim means knowledge of the material facts that constitute the cause of action, not knowledge of legal conclusions (such as negligence) to be drawn from those facts or knowledge of an expert opinion supporting such conclusions. An expert opinion that particular facts constitute negligence is evidence, not a fact itself. Fault and unlawfulness are legal conclusions to be drawn from facts, not factual ingredients of the cause of action. Prescription commences to run when the plaintiff knows (or could reasonably have known) the material facts: the identity of the alleged wrongdoer, the conduct complained of, and that harm has been suffered. The three-year prescription period in medical negligence claims (section 11(d)) begins when these material facts are known or reasonably ascertainable, regardless of whether the plaintiff has obtained expert evidence supporting a claim of negligence.

The Court noted that where a prescription statute speaks of knowledge, it presupposes a creditor capable of appreciating that a wrong has been done (referring to Van Zijl v Hoogenhout), but distinguished that case on the basis that it concerned lack of capacity to appreciate wrongdoing, whereas in the present case Deysel clearly believed and appreciated from 1994 that a wrong had been done to him. The Court also commented that English case law on the Limitation Act 1980 is not appropriately relied upon as an aid to interpreting the South African Prescription Act, given the material differences in content and origin between the two statutes, and that such English cases are in any event factually distinguishable and not necessarily consistent with one another.

This case is significant in South African jurisprudence as it authoritatively clarifies the interpretation of section 12(3) of the Prescription Act 68 of 1969 in the context of medical negligence claims. It establishes that prescription begins to run when a plaintiff has actual or deemed knowledge of the material facts giving rise to the claim, not when the plaintiff obtains an expert opinion supporting a conclusion of negligence. The judgment reinforces the distinction between facts (which are required for prescription purposes) and legal conclusions or expert opinions (which are not). This has important practical implications for medical negligence litigation, requiring potential plaintiffs to act timeously once they are aware of the material facts, regardless of whether they have obtained supporting expert evidence. The case also reinforces the 'once and for all' rule in delictual claims and confirms that the knowledge requirement in section 12(3) relates to factual knowledge, not legal knowledge or the strength of one's case.