South Africa: Prescription Alert!

Last Updated: 15 June 2016
Article by Max Ebrahim and Wietske Felmore

Using its broad jurisdiction to consider any matter that impacts on the exercise of a right contained in the South African Constitution1, the Constitutional Court (the "Court") recently handed down judgment in a matter with potentially far reaching consequences on the law of prescription.

In broad terms, traditionally, a plaintiff's claim prescribes2 within three years from the date on which that plaintiff becomes aware (or could reasonably have become aware) of the facts which give rise to the claim3.

Ostensibly accepting the jurisprudence in relation to what constitutes requisite knowledge of the facts, the Court appears to have lightened the burden of claimants in the case of Links v MEC for Health, Northern Cape [2016] ZACC 10.


Links, a poorly educated and relatively unsophisticated individual, dislocated his left thumb on 26 June 2006. He sought treatment at the Kimberley Hospital where his hand was fitted with a cast.  Mr Links returned to hospital a few days later complaining of severe pain in his left hand and was discharged with painkillers.  On 4 July 2006, he returned to the hospital and his thumb was amputated the following day. He remained in hospital until he was discharged at the end of August 2006, having lost the use of his arm too.

In November 2006, Links approached attorneys to establish "the reason why he lost the use of left arm and why his thumb had been amputated." He was ultimately referred to a second, third and then a fourth set of attorneys. 

The fourth set of attorneys briefed an expert to comment on the conduct of the hospital staff and it is presumed that upon the strength of the expert opinion, on 6 August 2009, instituted an action for damages against the MEC for Health, Northern Cape. 

The MEC raised two special pleas, namely the following:

  • the claim had prescribed in terms of the Prescription Act; and
  • he had failed to meet the requirement of giving notice to the MEC within 6 months in terms of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act4

Links launched an application to the High Court in which he applied for condonation for the late filing of the notice and simultaneously dealing with prescription.

The court a quo dismissed the application, concluding that Links' claim had prescribed.  The High Court held that prescription had begun running as soon as the first known harm was sustained by the applicant. It was at that stage that the cause of action was complete and the debt became due and payable. 

Links appealed to the full bench of the High Court which dismissed the appeal for substantially the same reasons.

The matter ultimately came before the Court on appeal.

The Court's findings

As noted above, the Court, in the first instance, concluded that it had the jurisdiction to hear the matter and granted Links leave to appeal. Given the process followed in the Court, this meant that the parties had to then argue the merits of the appeal.

The central issue which the Court concerned itself with in relation to the underlying merits was the correct interpretation of section 12(3) of the Prescription Act (the "Act"). 

Section 12(3) of the Act reads as follows:
"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."

Given that the summons was served on 6 August 2009, at issue was whether Links had knowledge of the facts from which the debt arose prior to 5 August 2006.

The Court proceeded to accept the following judicial pronouncements in relation to what constitutes requisite knowledge:

  • "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..."5,
  • as noted in Minister of Finance and another v Gore 6, the nature of knowledge which triggers the running of prescription is justified belief, rather than an opinion or a suspicion; and
  • as the court emphasised in Truter & Another v Deysel 7, knowledge, as opposed to evidence, of the facts necessary to prove the right to judgment is required. 

The Court went on to conclude that, as a matter of fact – as it was evident from the papers before it – by 5 August 2006, Links did not know what caused his problem. It should be noted in this regard that the MEC was unable to adduce any evidence on affidavit to contradict Links' assertion in this regard.

Of significance to those who face professional indemnity claims, the Court opined that:
"in cases of this type, involving professional negligence, the party relying on prescription must at least show that the plaintiff was in possession of sufficient facts to cause them reasonable grounds to think that the injuries were due to the fault of the medical staff.  Until there are reasonable grounds for suspecting fault so as to cause the plaintiff to seek further advice, the claimant cannot be said to have knowledge of the acts from which the debt arises".

The Court added that "without advice at the time from a professional or expert in the medical profession, the applicant could not have known what caused his condition".

The appeal was therefore upheld and Links is free to pursue his action.


There is a risk that courts will interpret the judgment to mean that a claimant has no knowledge of the facts giving rise to an action until that claimant has obtained an expert medical opinion.

While a suspicion of facts giving rise to an action may not trigger the running of prescription, we would suggest that the correct interpretation of the judgment is that where the plaintiff has sufficient facts to obtain advice from a professional, i.e. an attorney or a medical expert (as opposed to the date the advice is received – consider the illogical consequences that will follow if the expert or attorney takes months or years to produce an opinion), prescription begins to run. 

To our mind, the Constitutional Court either failed to apply its own rationale to the facts or it failed to sufficiently distinguish the fact that the expert opinion serves as evidence of a fact to be proven. In the result, the judgment opens the door to uncertainty and a number of potential unintended consequences. 

In addition, the plaintiff's attorney who fails to issue summons timeously is also protected from a professional indemnity claim until an expert opinion is obtained.

Despite the uncertainty created by the Court, it is important to note the following:

  • This decision was decided on affidavit evidence and there was no opportunity to test the state of Links' knowledge through cross-examination – and, worse still, the MEC had failed to deny Links' assertion of the state of his knowledge. In this regard, one has to puzzle over why Links went to see an attorney a short couple of months after his discharge if did not have some knowledge of the facts that may give rise to a claim;
  • The Court was not called upon to decide the issue of whether, through the exercise of reasonable care, Links could have obtained knowledge of the facts giving rise to his claim.

These issues may, in due course, provide an opportunity to distinguish the judgment from other cases.


1 Act 108 of 1996

2 Or becomes time-barred

3 Section 12(3) of the Prescription Act 68 of 1969

4 40 of 2002

5 Truter & Another v Deysel [2006] ZASCA 16

6 Minister of Finance and another v Gore [2006] ZASCA 98

7 [2006] ZASCA 16

Prescription Alert!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Max Ebrahim
Wietske Felmore
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