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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

        Case No.:  CA  338/2015

 Date Heard:   29 August 2016

      Date Delivered:  13 October 2016

In the matter between:

MZWANDILE OWEN LONI                                                                                                     Appellant

and

THE MEMBER OF THE EXECUTIVE COUNCIL

OF THE DEPARTMENT OF HEALTH OF THE

EASTERN CAPE GOVERNMENT                                                                                   Respondent

JUDGMENT

EKSTEEN J:

[1] On 6 August 1999 the appellant presented at the Cecilia Makiwane Hospital (herein referred to as the hospital) having sustained a gunshot wound in his left buttock which had shattered his left femur.  He contends that the staff at the hospital were negligent in the administration of treatment to him and that he developed wound infection with resultant chronic osteitis of the proximal aspect of the femur as a result of the negligence. 

[2] On 5 March 2012 the appellant’s attorneys of record gave notice in terms of the provisions of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002 (herein referred to as the Institution of Legal Proceedings Act) of his intention to institute proceedings against the respondent to recover damages flowing from his condition.  Summons was issued on 11 June 2012 and served on the respondent on 20 June 2012.  The respondent raised two special pleas.  Firstly, it averred that the appellant had failed to comply timeously with the provisions of section 3 of the Institution of Legal Proceedings Act and secondly that the appellant’s claim had become prescribed.  The trial court upheld both special pleas and the appellant’s claim was dismissed.  The appeal relates to these two issues. 

The pleadings

[3] The appellant’s main claim is formulated in contract.  In the alternative he claims damages in delict. 

[4] The material portions of the main claim for purposes of the present appeal read as follows:

“3.          On or about 6 August 1999 and at the Cecilia Makiwane Hospital, Mdantsane … the parties entered into an oral, alternatively tacit agreement in terms of which the Defendant undertook to provide medical treatment to the Plaintiff in respect of a gunshot wound sustained by him to his left femur on or about said the date.

4.            It was a term of the said agreement that Defendant would, through its medical and hospital staff, provide the necessary medical treatment with such professional skill as is reasonable for such medical and hospital staff.

5.            At all relevant times the relevant hospital and medical staff acted within the course and scope of their employment with the Defendant.

6.            Despite the agreement, the Defendant, through its medical and hospital staff, carried out medical treatment to the Plaintiff negligently in one or more of the following respects:

6.1       they failed to take all reasonable steps to prevent infection both before and after operating on the Plaintiff’s leg;

6.2       after it became apparent that the Plaintiff had developed wound infection, they failed to take reasonable steps to treat the infection, including, but not limited to:

6.2.1       taking Plaintiff back to theatre for a debridement of the wound as well as a wash-out;

6.2.2       they failed to attend to proper follow-up of the Plaintiff;

6.2.3       they failed to take any reasonable steps to identify the infecting organism;

6.2.4       they failed to administer appropriate antibiotics.

7.            As a result of the aforesaid negligence of medical and hospital staff the Plaintiff developed wound infection which resulted in chronic osteitis of the proximal aspect of the femur …”

[5] The respondent admitted the contract and the term of the contract contended for in paragraph 4 of the Particulars of Claim.  It admitted further that the relevant hospital and medical staff acted within the course and scope of their employment at all material times, however, it denied negligence.

[6] The alternative claim, as alluded to earlier, is formulated in delict.  The grounds of negligence contended for in the alternative claim are the self-same breaches of contract pleaded at paragraph 6 of the Particulars of Claim. 

[7] I shall revert to the causes of action pleaded, to the extent necessary, below.

[8] The respondent pleaded specially firstly by alleging that the appellant had failed to comply with the provisions of section 3 of the Institution of Legal Proceedings Act.  In addition the Plaintiff pleaded:

“The plaintiff’s main claim is based on a contract which was concluded on 06^th  August 1999.  The plaintiff’s alternative claim is based on the alleged negligent conduct of the defendant’s employees, they having been negligent in attending to the plaintiff during or about August 1999.  The plaintiff’s claim fell due in August 1999.  The plaintiff’s summons was served on the defendant on 20^th  June 2012, which is more than three years after the date on which the claim arose.   In the premises, the plaintiff’s claim is prescribed in terms of Section 11 of Act 68 of 1969.”

[9] The appellant did not seek condonation for its alleged failure to comply with section 3 of the Institution of Legal Proceedings Act.  Rather he chose to replicate.  In his replication he contended:

“1.        Ad paragraph 1 thereof:

1.1       Each and every allegation contained in this paragraph is denied and the Defendant is put to the proof thereof.

1.2       In particular the Plaintiff pleads that the period of 6 months referred to in Section 3 of the Institution of Legal Proceedings against Certain Organs of State Act, No. 40 of 2002 does not start to run until such time as the Plaintiff had or could reasonably have had the necessary knowledge that he had a claim against the Defendant.

1.3       The Plaintiff pleads further that it was not until November 2011 that he obtained expert medical opinion from which it appeared that medical and hospital staff of the Cecilia Makiwane Hospital, Mdantsane through their actions and failures and/or negligence as pleaded in the Particulars of Claim caused the damages set out in his Particulars of Claim.

1.4       On 5 March 2012 the Plaintiff through his attorneys of record and by registered mail sent the necessary notice / demand on the Defendant.  A copy of the said letter is annexed hereto marked Annexure “A”.

2.            Ad paragraph 2 thereof:

2.1       The Plaintiff pleads that in terms of Section 12 (3) of the Prescription Act of 1969 prescription does not run against a party until such time as he has knowledge of the claim and the identity of the debtor.

2.1.1    The Plaintiff repeats paragraph 1.3 supra.

2.2       The Plaintiff pleads accordingly that it was not until November 2011 that he acquired the necessary knowledge that he has a claim against the Defendant and accordingly pleads that prescription did not begin to run against the Plaintiff until November 2011.”

The Background

[10] Facts which emerge from the evidence of the appellant and Dr Olivier, an orthopaedic surgeon who testified on behalf of the appellant, are not in dispute.  The appellant was shot in the buttock on 6 August 1999.  He was 17 years old at the time and he subsequently matriculated in 2001.  He sustained a fracture of the left femur as a consequence of the shooting and the bullet remained embedded in his leg.  He presented at the casualty section of the hospital that same evening in severe pain, wearing the same pair of jeans which he had been wearing at the time of the shooting.

[11] The doctor on duty at casualty made no attempt to remove his trousers or to examine the wound.  Instead, he administered an injection for the pain and sent the appellant to x-rays.  The first attempt at having x-rays taken was unsuccessful as the nurses on duty were under the influence of alcohol.  A second attempt had the same result.  In these circumstances the appellant requested a doctor to accompany him to the x-ray department.  This yielded the desired result and the nurses, despite their condition, were able to obtain a satisfactory x-ray, however, the appellant was not advised of the revelations on the x-ray.

[12] That evening the appellant was placed in a ward and put to bed still wearing his dirty jeans.  Save for the pain injection no medication was administered to him nor was he treated at all.  At 02h00 on 7 August 1999 an inscription was made in his medical file that he should be referred to the orthopaedic section.  This, as will appear below, did not happen until 10 August 1999.

[13] On the morning of 7 August 1999 he was woken up at approximately 05h00 by a student nurse who instructed him to wash.  When he protested that he was unable to do so the student nurse assisted him.  This was the first occasion that his dirty jeans were removed.  The nurse proceeded to wash his body but she did not examine his wound and did not wash the wound.

[14] Later that day a group of doctors did their rounds in the ward.  They stood alongside the appellant’s bed and perused his hospital file but left without speaking to the appellant.  No treatment was administered to him and still he was not provided with any medication at all.

[15] Dr Olivier perused the entire hospital file and concluded that it was indeed complete.  The file content confirms the appellant’s experience.  It is apparent from the file content that the appellant’s gunshot wound was never examined at any stage whilst he was in hospital.  There is no description of the wound in the hospital notes and there is no record that the wound was ever washed nor was a wound debridement ever carried out.  The hospital folder contains no evidence that even a basic wound dressing was ever prescribed. 

[16] Dr Olivier concluded on the strength of the record contained in the hospital file that the appellant had effectively received no treatment at all before he was referred to the orthopaedic department on 10 August 1999.  Dr Olivier was, understandably, severely critical of this failure during the initial period of the appellant’s hospitalisation.  Firstly Dr Olivier states that the administration of the tetanus toxoid to a patient in the casualty department who had sustained a gunshot wound can be described as routine.  The hospital records contained no reference to the administration of tetanus toxoid and there was no evidence of tetanus toxoid having been issued by the pharmacy.  Secondly, he considered that a wound dressing to prevent any additional contamination from the outside world to the wound ought to have been applied.  He was extremely critical of the failure to administer antibiotics and the failure to carry out a minimum wound debridement upon his admission.  Examination of the wound and a minimum debridement carried out under sterile conditions can be considered to be a normal practice.

[17] In summary, save for the evidence of the appellant that an injection was administered for the pain on his admission on 6 August 1999 and that an anonymous doctor perused his records on the morning of 7 August 1999 the hospital file reveals that no doctor examined or visited the appellant from the time of his admission to 10 August when he was seen at the orthopaedics departments.

[18] On 10 August 1999 a denim pin was inserted and it would appear that the appellant was placed on skin traction.  X-rays were taken on the 11^th and he was seen by a treating doctor on the 12^th and 13^th.  On the weekend of 14 and 15 August 1999 no treating doctor visited or attended to the appellant.

[19] On 19 August a note in the hospital file records:

“For theatre Monday.”

[20] The appellant was taken to theatre on 23 August 1999 when an internal fixation of the femur was performed.  Dr Olivier records that from 19 August until the operation was performed on 23 August the appellant was not seen by any treating doctor at any stage and there is no record of any special investigations which were carried out.  He considers that in view of the lack of treatment prior to the operation it was critical that a full blood count and ECR ought to have been done.  This he considers to be essential and it is a basic orthopaedic principle because where hardware is to be inserted into a patient the sterility of the environment of the wound is critical. 

[21] Perhaps even more significant is that after the operation was performed on 23 August no treating doctor visited or examined the appellant until 25 August.  Dr Olivier is of the view that after a procedure of the nature administered on the appellant he ought to have been seen by a treating doctor on the evening after the operation and in the morning and evening the following day.  He was not.

[22] The appellant was seen by a treating doctor on 25, 26 and 27 August and it is apparent that a problem had by then developed at the operation site.  During this time the appellant required a blood transfusion due to excessive haemorrhage.  A weekend followed, however, on 28 and 29 August and notwithstanding the problem which had arisen in the preceding days the appellant was not seen by any doctor on the 28^th or 29^th.  By 31^st of August there was an indication of induration of the operation site, the appellant had a raised temperature at 38,5° and there was pus oozing from the wound.  Dr Olivier expressed the view in these circumstances that a small pus swab ought then to have been taken in order to find out what organism is responsible for the oozing and the condition ought then to have been aggressively treated with antibiotics.  The patient ought to have been taken to theatre within hours of the manifestation thereof and a thorough debridement should have been performed and the wound irrigated.  This, Dr Olivier testified was critical as at this stage “your chances are becoming less and less now for a successful outcome.”  This notwithstanding a week passed before the first pus swab was taken on 7 September.  Although two subsequent swabs were taken and some treatment was administered Dr Olivier is critical of the manner of treatment during this time.  In any event, in due course, the appellant was booked for a debridement on 27 September and his consent was obtained.  Dr Olivier opines that the reason for such an operation could only have been due to a doctor expressing the need therefor.  The procedure was not performed.  It was rescheduled for 30 September and again the procedure was not carried out.  Dr Olivier expresses the view that this probably represented the last opportunity that the appellant had to become infection free.

[23] The appellant himself testified that when he noted the oozing of pus (which he describes as “septic”) from the operation wound he enquired from a nurse who advised that they were fighting the pus.  The condition, however, he states, did not improve but simply got worse.  He was ultimately discharged on 19 October 1999 with the wound still open and oozing pus.  He was given Panado and Brufin and instructed to go to the nearest clinic to fetch dressings from time to time.  In January 2000 the appellant returned to the hospital with the wound still oozing pus.  He was sent to x-rays and a doctor at the orthopaedic department advised him to walk as this would assist in closing the wound.  The appellant states that he was not treated at the hospital at all but sent back home. 

[24] In December 2000 while the appellant was at an initiation school the bullet wound became swollen and the appellant took a sharp knife and removed the bullet from his left leg, which he says, resulted in pus oozing from the wound.  In July 2001 he noticed a piece of yarn stuck in the operation wound and he was unable to pull it out.  He returned to the hospital requesting that the pin in his leg be removed. 

[25] Upon his initial discharge from hospital on 19 October 1999 the appellant was given his entire hospital file containing a full record of his treatment at the hospital.  It is this hospital file which Dr Olivier perused and which he concluded to be complete.  Dr Olivier had no other information at his disposal other than the hospital file which the appellant had had in his possession since October 1999 as supplemented by the appellant’s own account of his experience when he advised in November 2011 that the appellant had a claim.

[26] Although the appellant continued to experience discomfort and walked with a limp whilst experiencing pain and a numb feeling at the operation site he did not seek any medical or legal advice.

[27] In 2008 the appellant took up employment in the South African Police Service where he enjoyed the benefit of a medical aid fund.  At that stage he still experienced pain in his knee and in the operation wound.  From 2008 he went to several doctors to enquire about the pain in his leg.  Eventually he attended at the East London private hospital where he was advised he was disabled.  In due course he was referred to Dr Olivier.  He then provided his hospital file to Dr Olivier and the appellant contends that it was only in November 2011 when Dr Olivier advised him that the condition which he had experienced since 2001 was attributable to medical negligence. 

Onus

[28] Counsel were agreed, correctly, that in respect of the plea of prescription the onus is on the party raising prescription as a defence to prove both the date of inception of the prescriptive period and the date of the completion thereof.  (See Gericke v Sack 1978 (1) SA 821 (A).) 

[29] Section 12 of the Prescription Act, 68 of 1969, provides:

“(1)      Subject to the provisions of sub-sections (2), (3) and (4), prescription shall commence to run as soon as the debt is due. 

(2)        If the debtor wilfully prevents the creditor from coming to know of the existence of the debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.

(3)        A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises:  provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.

(4)        …”

[30] Mr Louw, who appeared on behalf of the appellant, argues that the respondent in the present case did not seek to rely on deemed knowledge of the facts from which the debt arises as provided for in the proviso at the end of section 12(3).  For this contention he relies on the form of the pleadings.  The respondent raised prescription in its special plea.  In replication the appellant pleaded that in terms of section 12(3) of the Prescription Act prescription does not run against a party until such time as he has knowledge of the claim and the identity of the debtor.  The appellant proceeded to aver that it was only in November 2011 that he obtained expert medical opinion from which it appeared that medical and hospital staff, through their actions and failures and/or negligence caused the damages as set out in his Particulars of Claim.  In the circumstances the appellant contended that it was not until November 2011 that he acquired the necessary knowledge and that he has a claim against the respondent and accordingly he contended that prescription did not begin to run against the appellant until then.  The respondent did not file a rejoinder.  In these circumstances Mr Louw argues that the respondent cannot for purposes of the plea of prescription now rely on the proviso set out at the conclusion of section 12(3). 

[31] In Gericke v Sack supra a similar point was raised on appeal.  A special plea of prescription had been filed by the defendant.  The plaintiff as in the present case, responded with a replication denying that the debt had prescribed and alleging that he had only become aware of the identity of the defendant at a later date.  In consequence hereof it was contended that the debt was not rendered unenforceable by the lapse of time.  As in the present case no rejoinder was filed.  Diemont JA, in considering the argument that it was not open to the defendant to rely on the provisions of the proviso stated at 828A-C:

“[T]he Act specifically provides that prescription begins to run only when the debt becomes due and that it is not deemed to become due until the creditor has knowledge both of the identity of the debtor and of the facts from which the debt arises. If follows that if the debtor is to  succeed in proving the date on which prescription begins to run he must allege and prove that the creditor had the requisite knowledge on that date. The fact that the appellant has alleged in her replication that she learned the respondent's identity only on 17 February 1971 does not relieve the respondent of the task of proving that she acquired that knowledge on 13 February 1971 - the date on which he relies.

The criticism advanced in argument of the trial Judge's ruling on the question of onus therefore fails and the respondent must show on the evidence when Mrs Gericke learned or was deemed to have learned the respondent's identity.”

[32] On the strength of Gericke’s case a similar argument to that raised in the present matter was dismissed by Pickering J in Kriel v Meyer and Others [2011] JOL 28018 (E).

[33] In a recent decision in Links v Department of Health, Northern Province  2016 (4) SA 414 the Constitutional Court, however, without reference to Gericke’s matter stated at para [44]:

“In his opposing affidavit in the High Court the respondent did not rely upon the proviso at the end of s 12(3). …  Therefore, to the extent that counsel for the respondent may have sought to rely upon that proviso in his written submissions, the reliance was misplaced. This is so because that was not the case that the respondent had advanced in the affidavit. The respondent's case as set out in those affidavits was simply that the applicant's cause of action arose on 26 June 2006 and the applicant had knowledge of all the relevant facts on that day. The question is,  therefore, whether the respondent discharged the onus to show that on 26 June 2006 or at any date on or before 5 August 2006 the applicant had knowledge of all the material facts from which the debt arose or which he needed to know in order to institute action.”

[34] Although the Constitutional Court made no reference to Gericke’s case the dictum is clearly contrary to the decision in Gericke.  In these circumstances the pleader faced with a denial of knowledge of the identity of the debtor or of the facts from which the debt arises would be well advised in future to raise the proviso to section 12(3) in his pleadings.  In view of the decision in Links supra I do not think that it is open to the respondent herein to rely on the proviso at the end of section 12(3).  Mr Ford SC, who appeared on behalf of the respondent, however, argues, in any event, that the established facts show that the appellant did have the requisite knowledge for purposes of section 12(3) by no later than July 2001.

[35] The question for determination is whether the appellant’s claim had become prescribed by 20 June 2012 when the summons was served.  In order for the respondent to discharge the onus in respect of prescription it must show that prescription began to run against the appellant’s claim by no later than 19 June 2009, being three years prior to the service of summons.  To do this he would have to show what the facts are which the appellant was required to know before prescription could commence running and that the appellant had knowledge of those facts before 19 June 2009.  (See Links supra p. 423 para [24].)

[36] It has been held for purposes of section 12 (1) of the Prescription Act that a delictual debt “is due in this sense when the creditor acquires a complete cause of action for the recovery of the debt, that is, when the entire set of facts which the creditor must prove in order to succeed with his or her claim against the debtor is in place”.  (See Truter v Deysel 2006 (4) SA 169 (SCA).)

[37] For purposes of section 12(3) Brand JA in Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA) at para [17] stated:

“This Court has, in a series of decisions, emphasised that time begins to run against the creditor when it has the minimum facts that are necessary to institute action.”

[38] In a delictual claim the requirements of fault and unlawfulness do not constitute factual ingredients of the cause of action but are legal conclusions to be drawn from the facts from which the debt arises (see Truter supra  para [17]).  It is not necessary either that a plaintiff should have knowledge of causative negligence for purposes of satisfying the test set out in section 12(3).  (See Links supra para [42].) 

[39] In Links supra the Constitutional Court summarised the requirements of section 12(3) thus in paragraph [42]: 

“However, in cases of this type involving professional negligence, the party relying on prescription must at least show that the plaintiff was at least in possession of sufficient facts to cause them on reasonable grounds to think that the injuries were due to the fault of the medical staff.  Until there are reasonable grounds for suspecting a fault so as to cause the plaintiff to seek further advice, the claimant cannot be said to have knowledge of the facts from which the debt arises”.

 (See also Links supra para [45].)

[40] Mr Ford argues that in respect of the Institution of Legal Proceedings Act, however, whereas the appellant chose not to seek condonation for his failure to comply with section 3, he bears the onus to establish his compliance with the section.  The material portions of section 3 provides:

“(1)   No legal proceedings for the recovery of a debt may be instituted against an organ of state unless-

(a)   the creditor has given the organ of state in question notice in writing of his or her or its intention to institute the legal proceedings in question;   or

(b)   … 

(2)   A notice must-

(a)   within six months from the date on which the debt became due, be served on the organ of state in accordance with section 4 (1); and

(b)   briefly set out-

(i)   the facts giving rise to the debt; and

(ii)  such particulars of such debt as are within the knowledge of the creditor.

(3)  For purposes of subsection (2)(a)-

(a)  a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts giving rise to the debt, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless the organ of state wilfully prevented him or her or it from acquiring such knowledge; and

(b)   …  “

[41] The appellant pleaded the provisions of section (3)(3)(a) in his replication and alleged again that it was only in November 2011 that he became aware that the negligence of the medical staff caused his condition.  On behalf of the respondent it is argued therefore that the appellant must prove not only that he did not have knowledge of the facts giving rise to the debt but also that he could not reasonably have had such knowledge.  During argument, however, Mr Ford  properly drew our attention to the decision in Faynaz Import and Export Enterprises CC v Commissioner of Customs and Excise and Others [2009] 2 All SA 358 (T).  In Faynaz,  Murphy J, in dealing with the provisions of section 3 of the Institution of Legal Proceedings Act, stated at paragraph [84]:

“This brings me to the special plea of prescription or time barring. The time bar in section 3 of Act 40 of 2002 provides that no legal proceedings may be instituted unless notice is given within 6 months from the date the debt is due. In terms of section 3(3)(a) of Act 40 of 2002 a debt may not be regarded as having been due until the creditor has knowledge of the identity of the organ of State and the facts giving rise to the debt, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care. The time bar in section 3 of Act 40 of 2002, to be operative, requires the defendant to show that the plaintiff did not give notice in writing of its intention to institute legal proceedings within 6 months of it requiring (sic) knowledge of the identity of the organ of State and the facts giving rise to the debt.”

[42] Murphy J therefore considered that it was for a defendant to raise non-compliance with the provisions of section 3 and such defendant bore the onus to establish that the plaintiff did not give the required notice within six months of it acquiring knowledge of the facts giving rise to the debt.  Mr Ford submitted that the pronouncement by Murphy J represents merely a conclusion of law which is not supported by any reasoned legal argument or authority and is incorrect. 

[43] The argument is attractive at first blush.  Statutory time barring provisions have generally been considered to be in the nature of an expiry period as opposed to prescriptive periods (see for example Masuku and Another v Mdlalose and Others 1998 (1) SA 1 (SCA) at p. 7C-E).  Compliance with such provisions is an essential element of a plaintiff’s cause of action and a plaintiff is generally required to allege and prove compliance with the statutory provision.  (Compare for example Avex Air (Pty) Ltd v Borough of Vryheid 1972 (4) SA 676 (N).)

[44] On reflection, however, I do not think that the argument can succeed.  Section 3 of the Institution of Legal Proceedings Act clearly requires of an intending plaintiff to give notice.  Notice is a prerequisite to the institution of proceedings and failure to give notice is fatal to a plaintiff’s claim.  In the present case notice was given.  The respondent contends that such notice was out of time and therefore did not constitute compliance with section 3.  Whether it is timeous or not depends upon when the appellant acquired knowledge of the identity of the organ of state and the facts giving rise to the debt, or when he ought reasonably to have acquired such knowledge.

[45] The appellant contends that he only acquired knowledge in November 2011.  Where such circumstances arise under the Prescription Act it is, as set out earlier, for the party who contends that knowledge was acquired at an earlier stage (or ought reasonably to have been acquired earlier)  to prove when knowledge was acquired.  Section 3(3) of the Institution of Legal Proceedings Act is the mirror image of section 12(3) of the Prescription Act.  By parity of reasoning with the Prescription Act an averment that notice which was given, was not timeous is necessarily in the nature of a special defence and the onus to prove such special defence is upon the party raising the defence.

[46] In the circumstances the onus to prove non-compliance with section 3 of the Institution of Legal Proceedings Act in this case rests on the respondent.

Application of facts to the legal principles

[47] The appellant’s main claim is set out earlier herein.  In order to succeed in his contractual claim the appellant is required to prove the contract concluded and the terms thereof and that the relevant hospital and medical staff acted within the course and scope of their employment with the respondent.  These issues are all admitted.  It cannot be gainsaid that the appellant clearly had knowledge of the terms of the agreement upon which he relies.  His claim proceeds after all, on the basis that there was a meeting of the minds in this regard on 6 August 1999.  He clearly appreciated that medical and hospital staff were acting in the course and scope of their employment when treating him as an inpatient in the hospital.

[48] The appellant would further be required to prove that the respondent breached the contract concluded in that the hospital and medical staff failed to take all reasonable steps to prevent infection both before and after operating on the appellant’s leg and that the appellant suffered harm as a result thereof.  The factual history of the matter is set out earlier herein.  The appellant was subjected to the most horrific dereliction of duty on the part of the hospital and medical staff at the hospital after his admission.  On admission the dirty clothing that he had been wearing at the time he was shot was not removed and nobody either examined or washed the wound.  He was taken to x-rays where staff were inebriated.  Upon being woken the following morning a student nurse assisted him to wash his body but she too made no attempt to attend to or cleanse the wound.  Although doctors perused the x-ray records taken nobody communicated with the appellant and it appears from the hospital file that for all practical purposes no treatment at all was administered to the appellant for almost four days. The appellant clearly had knowledge of all these facts.

[49] The operation in issue was performed on 23 August 1999.  For four days prior to being taken to theatre no doctor attended to the appellant and no tests were carried out.  Post operatively too he was not attended to for approximately two days.  When he was attended to it transpired that he required a blood transfusion due to excessive haemorrhaging.  Notwithstanding this manifestation he was left unattended for the entire weekend of 28 and 29 August.  He did receive attention on 31 August when his temperature was raised, induration was present and the wound was oozing pus.  From that day forth the infection in the wound became more and more manifest and, according to the appellant’s evidence, never improved prior to discharge.  The first pus samples taken were on 7 September, an entire week after the infection had manifested.  The wound deteriorated until he was ultimately discharged still having visible infection with pus oozing from the operation site.  That his woes persisted is clear from his own evidence, until the internal fixatives were ultimately removed during 2001.  It emerges from the evidence of Dr Olivier that by the end of September 1999 considerable harm had been inflicted with the prospects of a successful outcome being effectively extinguished. 

[50] On the evidence of the appellant himself in respect of his initial period of hospitalisation and the evidence of Dr Olivier relating to the total absence of any medical care at critical points it is inconceivable that the appellant could have thought that the medical treatment which he had received was commensurate with the professional skill which one may reasonably expect of professional medical and hospital staff, as he had contracted for.  That he had suffered harm must have been evident to him with the manifestation of enduring infection as evidenced by the ongoing oozing of pus from the operation site and his discharge from hospital at a stage when the wound was clearly septic.  For years thereafter he experienced pain in the operation site.  It is true that he did not at that stage appreciate that osteitis had set in,  however, it is not necessary, for purposes of section 12(3) of the Prescription Act, that he should appreciate the extent of the harm which he has suffered (see Harker v Fussell and Another 2002 (1) SA 170 (T) at 173-174). 

[51] In all the circumstances I consider that the respondent has shown that the appellant was in possession of the necessary facts, being his personal knowledge of his maltreatment and a full record of his treatment, or lack thereof, as contained in the hospital file in his possession, which gives rise to his claim.  These constituted reasonable grounds for suspecting fault so as to justify the appellant seeking further advice.  It was this information which caused him ultimately to seek further advice in 2011.  No new facts came to his knowledge.  What he did not know prior to November 2011 was the causative link between the known breaches of contract and the harm which he knew that he had suffered.  (Compare para 1.3 of the replication.)  Knowledge of causative negligence, however, as set out earlier, is not required for purposes of section 12(3). (See Links supra para [42].)

[52] I have recorded earlier that in respect of the alternative cause of action the appellant relies on the same conduct which constitutes the breaches of contract in the main claim.  In the circumstances it seems to me that on the admission of the contract in the main claim the alternative claim cannot be sustained.  (See Lillicrap Wassenaar and Partners v Pilkington Brothers SA (Pty) Ltd 1985 (1) SA 475 (A) and Holtzhausen v Absa Bank Limited 2008 (5) SA 630 (SCA).)

[53] In the result, I am constrained to conclude that the court a quo correctly upheld both special pleas.  The appeal is accordingly dismissed with costs, such costs to include the costs of two counsel.

 

J W EKSTEEN

JUDGE OF THE HIGH COURT

 

ROBERSON, J:

I agree.

 

J M ROBERSON

JUDGE OF THE HIGH COURT

 

MAKAULA J:

I agree.

 

M MAKAULA

JUDGE OF THE HIGH COURT

Appearances:

For Appellant:            Adv SSW Louw instructed by Messrs Niehaus McMahon, East London c/o Whitesides Attorneys, Grahamstown

 

For Respondent:       Adv EAS Ford SC and Adv S J Swartbooi instructed by The State Attorney, East London

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