Rensburg and Another v Cilliers (1705/2021) [2024] ZAFSHC 290. In South Africa, the legal doctrine of prescription generally gives a creditor three years to recover a debt. But in medical negligence cases, determining when a claim "becomes due" is often pivotal. This crucial timing affects whether a claim falls within the permissible period to take legal action and hinges on when the claimant has a fully developed cause of action, meaning when they become aware of all facts necessary to prove the claim.
In Truter and Another v Deysel 2006 (4) SA 168 (SCA), the court held that a plaintiff's cause of action is complete from the moment any damage is suffered. This applies not only to the immediate loss but also to future losses arising from the same incident. This principle is closely aligned with the "once and for all rule" (seen in Evins v Shield Insurance Co Ltd 1980 (2) 814 (AD)), which mandates that plaintiffs claim all damages, current and prospective, from a single cause of action.
In the recent Rensburg and Another v Cilliers case, the plaintiffs sought damages for their minor child's support, arguing that the child's conception resulted from the defendant's negligent sterilisation procedure. The key question was when their claim actually began to run: was it at conception, when costs related to the pregnancy began, or at the child's birth, as argued by the plaintiffs?
The court ruled that the claim began when the plaintiffs became aware of the conception, not the child's birth. The birth itself was not the wrongful act; rather, it was the conception that triggered potential damages. Since the plaintiffs knew all relevant facts by January 30, 2018, their claim had expired by the time they filed suit.
This case serves as a reminder: for both claimants and defendants, early risk assessment is essential to manage claims within South Africa's strict prescription periods.
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.
