Estell Sondag v MEC for Department of Health, Eastern Cape Province

The applicant gave birth to a stillborn baby on 12 September 2019 at Dora Nginza Hospital due to alleged mismanagement of her labour by nursing staff and medical personnel. She was unaware that she had a potential claim until she obtained legal advice on 15 August 2021, when her attorneys advised her that the medical staff may have been negligent. Prior to this, an unidentified woman had cautioned her to seek legal advice. Her attorneys served statutory notice on the respondent on 17 November 2021, within six months of her receiving legal advice. Summons was issued on 31 August 2022. On 21 December 2022, the respondent raised special pleas of non-compliance with section 3 of ILPACOSA and prescription.

• Whether the applicant complied with section 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act No. 40 of 2002 (ILPACOSA)
• Whether the statutory notice was served within six months from when the debt became due
• When did the applicant acquire actual or constructive knowledge of the identity of the debtor and the facts giving rise to the debt for purposes of prescription
• Whether the applicant's claim had been extinguished by prescription
• Whether condonation should be granted for late delivery of notice (alternative relief)
• Whether the applicant should be permitted to file a supplementary affidavit

1. The applicant's request to permit the filing of her supplementary affidavit was granted. 2. It was declared that the applicant complied with the provisions of section 3(2) of ILPACOSA in respect of her statutory notice dated 17 November 2021. 3. The respondent was directed to pay the costs of both the main and interlocutory applications, including the costs of second counsel, on Scale A.

For purposes of section 3(2) of ILPACOSA and section 12(3) of the Prescription Act, a debt in a medical negligence claim does not become due until the creditor/plaintiff has knowledge of the facts giving rise to the debt in the legal technical sense - i.e., sufficient facts to reasonably believe that the harm suffered was due to the fault of the medical personnel. In professional medical negligence cases, a lay plaintiff cannot be expected to know, without obtaining legal advice, that the medical care provided was substandard or negligent, or that they have a legally actionable claim. The debt therefore only becomes due when such knowledge is acquired through legal consultation. The onus is on the defendant/organ of state who raises prescription to prove the date when the plaintiff acquired actual or deemed knowledge of the identity of the debtor and the facts from which the debt arises. Mere denial or pleading lack of knowledge without establishing an alternative basis for imputed knowledge does not discharge this onus.

The court observed that organs of state have an obligation to litigate responsibly and not take technical and obstructive points where this is not in the interests of justice, citing Njongi v MEC, Department of Welfare, Eastern Cape 2008 (4) SA 237 (CC) that a decision by the State whether or not to invoke prescription must be informed by the values of the Constitution. The court also noted that the respondent's recent amended plea, which shifted blame to a different clinic rather than Dora Nginza Hospital, contradicted the assertion that the respondent was prejudiced by the November 2021 service of notice, and that it remained open to the applicant to plead consequentially. The court found the respondent's suggestion that the applicant's claim was doomed to failure to be unfortunate and entirely without merit.

This case provides important guidance on when prescription begins to run in medical negligence cases, particularly emphasizing that in professional negligence matters, a plaintiff need not have knowledge that amounts to legal certainty but must have sufficient facts to reasonably believe the harm was due to the defendant's fault. The case reinforces that lay persons cannot be expected to know, without legal advice, that substandard medical care was provided or that they have a legal claim. It also emphasizes the duty of organs of state to litigate responsibly and not take obstructive technical points where not in the interests of justice. The judgment clarifies the application of section 3(2) of ILPACOSA and section 12(3) of the Prescription Act in the context of medical negligence claims against the state.