Leo Boonzaier | Constitutional Court preview: Links v MEC for Health

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21 August 2015 – On Tuesday, the Constitutional Court of South Africa hears another case from its third term of 2015, namely Links v MEC, Department of Health, Northern Cape CCT 29/15 (court papers).

Date of hearing:  Tuesday, 25 August 2015

Issue:  Whether the applicant’s medical negligence claim against the state, which he instituted more than three years after sustaining the injury, has prescribed

Background:  On 26 June 2006, Mr Links dislocated his thumb and went to Kimberley Hospital for treatment.  His thumb was put into a plaster cast, but that seemed only to aggravate the problem.  Mr Links returned to the hospital a few days later in excruciating pain, and on 4 July 2006 his thumb had to be amputated.  Worse, over the next month his entire hand and forearm became shrivelled and dysfunctional.  At the end of August 2006, when Mr Links was discharged from the hospital, he was told that this damage was permanent.

Mr Links wanted to sue the hospital but struggled, because of his indigence, to get a lawyer.  He eventually visited Legal Aid South Africa on several occasions over the next two-and-a-half years, receiving assurances that his case was being pursued.  In truth, however, Mr Links had to consult a private attorney on 15 July 2009 before anything meaningful was done.  Summons was served on 6 August 2009 — more than three years after the injury and amputation, but just under three years after his discharge from the hospital.  Mr Links’s attorney eventually managed to get the hospital records on 1 November 2010 and referred them to a surgeon, who assessed Mr Links and said his afflictions were probably caused by ischemia as a result of the plaster cast being set too tightly.  This seemed to give Mr Links a strong basis upon which to sue the hospital for medical negligence.

But the hospital resisted the action, on the basis that it had been brought too late.  Both Mamasebo J and, on appeal, a full court of the High Court (per Kgomo JP) upheld this defence and dismissed Mr Links’s claim.  The nub is that the Prescription Act provides in Chapter III that a debt “prescribes” (or is extinguished) three years after 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.”  The two courts cited SCA precedent holding that prescription starts to run as soon as the “material” facts are known, and not only when the claimant knows all facts helpful to his case.  Mr Links’s claim had accordingly prescribed: he knew at least by the time his thumb was amputated that something had gone very wrong.  They also pointed out he’d made no attempt to get the hospital’s records himself, as its confidentiality rules required, before 2010; instead, he had sent his cousin in vain.  Mr Links had not, therefore, “exercis[ed] reasonable care” to learn the relevant facts.

Things to watch:  Here, as in Toyota v CCMA, few would have batted an eyelid if the Court had dismissed the case.  It’s about a single litigant’s claim, without obvious broader implications, and turns on a ho-hum rule of civil procedure.  (In fact, it is not obvious that the Court even has jurisdiction to hear it, since it seems to involve only the application of an accepted legal test.  Mbatha and Paulsen have recently affirmed that this falls outside the Court’s jurisdiction.)  So the Court’s decision to hear it is telling.  And, as in Mashongwa v PRASA, there is an aggrieved claimant whom the Court can help.  It would be uncharacteristic if it were to apply procedural rules — whether of prescription or of the Court’s own jurisdiction — so as to deny him his claim.  The Court may find that prescription began to run only when Mr Links learnt the damage was permanent, or only when the Hospital disclosed the records of his treatment: for only at that point did he know “the facts from which the debt arises”.

On the other hand, the Court has affirmed, for good reason, that strict prescription periods are constitutional (though, even there, the Court was divided, with Froneman J writing a dissent in which Jafta J concurred).  And what of Mr Links’s laywers?  Mamasebo J said understatedly that Legal Aid “did not cover themselves in glory” by doing nothing to help Mr Links for over two years.  So one may fairly ask whether the rules of prescription should be muddied to help him.  Shouldn’t he, like the plaintiff in FAWU v Ngcobo, sue his lawyers for their professional negligence in causing his suit against the Hospital to lapse?  In last year’s Intervalve, a slender majority of the Court reaffirmed the importance of a claim of this kind.  Instead of bending procedural rules to help the claimants, it suggested their true recourse may be to sue their legal representatives whose negligence had caused the rules’ breach.  Both lower courts made the same suggestion here.

Leo Boonzaier

About Leo Boonzaier

Leo is an Editor for the African Legal Centre, and he reports on the Constitutional Court of South Africa. He has BSocSci and LLB degrees from the University of Cape Town and a BCL from the University of Oxford. He has worked as a visiting researcher at the Max Planck Institute for Private Law in Hamburg, Germany, and more recently as a law clerk at the Constitutional Court of South Africa. He is currently a doctoral student at the University of Oxford.