WHAT CONSTITUTES DEEMED KNOWLEDGE IN TERMS OF SECTION 1 (3) OF THE PRESCRIPTION ACT, WITH REFERENCE TO THE CASE OF LONI V MEC FOR DEPARTMENT OF HEALTH EASTERN CAPE, 2018 ZACC 2

Section 12 (3) of the Prescription Act 68 of 1969 provides that “a debt shall not 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” .

August 1999 Mr. Loni, the applicant was admitted at the Ceceile Makiwane Hospital after suffering a gunshot wound to his left Buttock, which shattered his left femur. He was given injection and later x-rays were taken. On 23 August 1999, he underwent an operation to insert a plate and screws on his femur and during the operation the bullet was not removed. He was then discharged and given painkillers and most importantly his medical file to attend to a clinic for further care. Thereafter he made several re-visits to the clinic as he was experiencing pain and the wound was oozing pus.

February 2000 he returned to the hospital, at this point he had started limping, he was informed that he was fine and should rather use a crutch instead of two. The gun wound eventually healed, however the operation took longer.

December 2000 Mr. Loni attended an initiation school and whilst there his left leg became swollen and he somehow managed to remove the bullet himself and later returned to the hospital and he was informed that he was fine, in fact he must exercise and walk more.

Forward to 2008, the applicant had secured employment and now had the ability to approach doctors in private practice regarding his condition. Three years later ,November 2011, he approached an Orthopedic Surgeon Dr. Olivier who considered his hospital file and advised him that he was infact disabled and his condition was caused by the negligence of the hospital which initially treated him.

June 2012, Mr. Loni instituted a claim for damages against the MEC for health, who then raised a special plea for prescription in terms of section 12 (3) of the Prescription Act. The High Court upheld the special Plea on the grounds that had he had previously long acquired the necessary knowledge to institute proceedings, he was in pain, the wound was oozing pus, limping and he was in possession of his medical file. He then appealed to a full bench and to the Supreme Court of Appeal. In both instances his claim was dismissed.

The Constitutional court in this matter applied the Principle formulated in the case of Links and held that “the applicant should have overtime suspected fault on the part of the hospital staff. There were sufficient indicators that the medical staff had failed to provide him with proper care and treatment, as he still experienced pain and the wound was infected and oozing pus, with that experience he could have not thought or believed that he had received adequate medical care treatment. Furthermore since he had been given his medical file, he could have sought advice at that stage. There was basis for him to actually wait for more than seven years to do so.

The court further held that the objective test applied in the lower courts and in term of section 12 (3) of the Prescription Act was properly applied and established that a reasonable person in the position of Mr. Loni would have realized that the treatment and care received was sub-standard. The judgement, further noted that Mr. Loni had all the necessary facts at his disposal by being in position of his full medical record relating to his treatment or the lack thereof. He also had personal knowledge of his maltreatment and that was at that stage in a position to determine that he had a claim. This was the very same information which propelled him to seek medical advice, and ultimately institute the legal proceedings against the MEC.

In addition the court held that, “it is clear, that long before the Applicant’s discharge from the hospital in 2001 and certainly thereafter, the applicant had knowledge of the facts upon which his claim was based. He had knowledge of his treatment and the quality or (lack thereof) from his first day at the hospital and had suffered pain on a continuous basis subsequent thereto. The fact that he was not aware that he was disabled or had developed an osteitis is not relevant consideration.”

But how does one simply without proper skill/ knowledge remove a bullet which would have otherwise been removed upon admission, then return to the hospital without raising any suspicions of the treatment received, only to be informed that you are fine?. This is indicative enough to raise concerns regarding the treatment received and ultimately seek sound advice.

The court applied the objective test and the principles developed in Links case and held that the applicant’s claim had prescribed and he had the acquired the necessary knowledge to institute a claim timeously. Based on this judgement is it worth noting that what constitutes deemed knowledge in terms of section 12 of the Prescription Act is determined by taking into consideration the facts and circumstances of each case.

By

M Kirchner