Mandisi Mphahlwa v MEC for Health: Eastern Cape

The plaintiff instituted a medical negligence claim against the MEC for Health: Eastern Cape for damages arising from the alleged mistreatment of tuberculosis of the spine at Bedford Orthopaedic Hospital, Mthatha, in 2019. The defendant defended the action and filed a plea incorporating two special pleas: (a) non-compliance with section 3(1) of the Institution of Legal Proceedings Against Certain Organs of the State Act 40 of 2002, and (b) prescription in terms of section 11(d) of the Prescription Act 68 of 1969. The plaintiff excepted to the plea and special pleas on the grounds that they were vague and embarrassing and/or lacked averments necessary to disclose a defence. The plaintiff, however, failed to give the defendant prior notice to remove the cause of complaint as required by Rule 23(1)(a) of the Uniform Rules of Court.

The exception was dismissed with costs.

The judgment reinforces the peremptory nature of Rule 23(1)(a) of the Uniform Rules of Court and clarifies that litigants cannot bypass the requirement to give notice to remove the cause of complaint by combining grounds of exception. It affirms the proper procedural approach to special pleas based on prescription and statutory notice requirements against organs of state, and discourages ambush litigation.