THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 449/2013
Not reportable
In the matter between:
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH:
EASTERN CAPE PROVINCE

Appellant
and
FEZA MBODLA

Respondent

Neutral citation: MEC
for
Health:
Eastern
Cape
v
Mbodla
(449/2013)[2014] ZASCA 60 (6 May 2014)
Coram:
MTHIYANE DP, MAYA and WALLIS JJA, VAN ZYL and
MATHOPO AJJA.
Heard:
2 May 2014
Delivered: 6 May 2014
Summary: Application proceedings – respondent raising prescription by
way of notice in terms of Rule 6(5)(d)(iii) – court not satisfied that issue
capable of determination without oral evidence – proper order one in
terms of Rule 6(5)(g).

ORDER

On appeal from: Eastern Cape High Court, Mthatha (Griffiths J sitting
as court of first instance):
The appeal is upheld and the order of the court below is set aside
and replaced by the following order:
‘(a)
The application is referred for the hearing of oral evidence on the
question whether the Plaintiff’s claim had prescribed before the service of
summons.
(b)
The plaintiff shall appear to be examined and cross-examined at
the hearing of such oral evidence.
(c)
The provisions of Rules 35, 36, 37 and 38 shall apply to the
hearing of such oral evidence.
(d)
The costs of the application are reserved for decision by the court
hearing such oral evidence.’
The costs of the appeal, including the costs of the application for
leave to appeal, are to be costs in the application.

JUDGMENT

Wallis JA (Mthiyane DP, Maya JA and Van Zyl and Mathopo AJJA
concurring)
[1] Mr Mbodla was injured in a motor accident on 25 June 2006.
According to him, he was treated at the Nelson Mandela Hospital. He
complains that his treatment was negligent in various respects and on
1 November 2011 he instituted an action for damages against the MEC

for Health, Eastern Cape Province (the MEC). The MEC caused a plea to
be delivered in which he raised two special pleas. The first was that Mr
Mbodla had not complied with the requirement that he give notice of his
claim to the MEC within six months of the debt becoming due, as
required by s 3(1)(a), read with s 3(2)(a), of the Institution of Legal
Proceedings against certain Organs of State Act 40 of 2002 (the Legal
Proceedings Act). The second was that the claim had prescribed in terms
of s 10(1), read with ss 11(d) and 12, of the Prescription Act 68 of 1969.

[2] The delivery of the plea prompted Mr Mbodla to bring an
application, in terms of s 3(4)(a) of the Legal Proceedings Act, seeking
condonation for his failure to deliver a notice within the prescribed
period. The MEC’s response was to deliver a notice in terms of Rule
6(5)(d)(iii) of the Uniform Rules of Court averring that his claim had
prescribed and that accordingly condonation could not be granted.1 The
notice averred that the grounds set out by Mr Mbodla for saying that his
claim had not prescribed were bad in law and that he had known of the
identity of the MEC as his debtor and the full facts giving rise to his
claim as early as 25 June 2006, when he received treatment at the
Bedford Hospital.2 Before the matter came to court Mr Mbodla delivered
an amended notice of motion in which, instead of condonation, he sought
a declaratory order that he had timeously complied with the requirements
of the Legal Proceedings Act. The basis for this contention was that in
terms of that Act a debt did not become due until he had knowledge of
the identity of his debtor and the facts giving rise to the debt. He
contended that he had only acquired this knowledge in April 2011 and
that a notice given on his behalf on 2 June 2011 was accordingly timeous

1 Section 3(4)(b)(i) of the Legal Proceedings Act.
2 There appears to be confusion over the simple question of where Mr Mbodla received treatment.

notice. The court below (Griffiths J) granted a declaratory order to this
effect. The appeal is with his leave.

[3] The affidavit by Mr Mbodla in support of his application largely
reproduced his particulars of claim. The only facts relevant to the plea of
prescription that it contained were the date of the accident, that he was
treated at the Nelson Mandela Hospital and some general allegations of
negligence on the part of the hospital staff. Insofar as his knowledge of
the facts giving rise to his claim was concerned all that he said was that
he was a lay person and not conversant with the law, in particular the law
relating to vicarious liability for the wrongful conduct of employees, and
that he had only learned that he had a claim after consulting his attorney
in April 2011. He annexed to his affidavit a copy of the medico-legal
report that was also attached to his particulars of claim. Lastly under the
heading of prejudice he mentioned that ‘the incident was fully
investigated in terms of a detailed departmental enquiry shortly after it
transpired’. No further information was given about this enquiry. We do
not know why it was undertaken or what its outcome had been.

[4] In opening the appeal counsel for the MEC started to give us a time
line of events. However, that time line was drawn from the medico-legal
report the contents of which had not been proved in evidence. At best the
report contained hearsay statements by its author of facts he said he had
distilled from the hospital records and what counsel described as
admissions by Mr Mbodla. To make matters worse the report itself had
only been issued on 2 August 2011, which was after the date upon which
Mr Mbodla’s attorneys had written to the MEC giving notice of his claim.
That was the notice that the court below held had been timeously given.
The report was accordingly irrelevant to the issues before the court

below. Nonetheless it featured prominently in its reasoning, the court
holding that until it was received there was nothing to alert Mr Mbodla
‘to the fact that he had not received optimal treatment’.

[5] The reality was that the issue of compliance with the Legal
Proceedings Act and the question of prescription could not properly be
determined on the facts before the court below. The facts in Mr Mbodla’s
founding affidavit were too cryptic, too inadequate and too confusing to
found a decision in his favour. In some respects there were glaring
contradictions. For example, he said that he only realised that he had a
claim when he consulted with his attorney in April 2011. However, the
papers include a letter from the attorney to the MEC in which he said that
Mr Mbodla had consulted with him in December 2010 and it was then
that he became aware that he had a claim. As the MEC’s Rule 6(5)(d)(iii)
notice pointed out the affidavit did not say why Mr Mbodla waited for
over four years to consult an attorney, or why he eventually did so, or
what he had done in the intervening period to address his disabilities. On
the other hand the failure of the MEC to place any facts before the court
from the hospital records in relation to Mr Mbodla’s treatment left the
entire picture unclear.

[6] In those circumstances it was inappropriate for the court below to
reach a final conclusion on the issue of prescription and compliance with
the statute on the papers alone. The fault for the shortcomings in the
evidence was attributable to both parties. Mr Mbodla’s founding affidavit
needed to be more forthcoming in regard to the history of events and it
can rarely, if ever, be the case that a question of prescription, involving
constructive knowledge of certain facts, can be resolved as a question of

law alone. The MEC should have placed facts before the court to
substantiate the plea of prescription.

[7] Rule 6(5)(g) deals with this situation as is apparent from its
opening words, which are:
‘Where an application cannot properly be decided on affidavit the court may dismiss
the application or make such order as to it seems meet with a view to ensuring a just
and expeditious decision.’
This Court has confirmed that the powers this rule vests in the court are
extremely broad and should be exercised to ensure that matters are
decided justly and expeditiously.3 They are usually exercised because of
the presence of disputes of fact in the papers before the court, but the rule
is not confined to that situation.4  If a court is unable to make a just
decision because the parties have failed to place sufficient information
before it to enable it to do so, it may in an appropriate case, exercise its
powers under the rule to give directions that will enable the deficiencies
to be remedied and a just decision to be rendered.

[8] This is such a case, particularly when one bears in mind the
consequences of a decision either way on the point of prescription. If Mr
Mbodla fails, his claim will be dismissed. If the plea is dismissed, the
MEC will be faced with exhuming medical records from eight years ago
and tracing witnesses who can testify in regard to Mr Mbodla’s treatment.
The claim is substantial. In those circumstances I am satisfied that this is
a case where the court below should have acted in terms of Rule 6(5)(g)
and made an order referring the issues in dispute for the hearing of oral

3 Nkwentsha v Minister of Law and Order and Another 1988 (3) SA 99 (A) at 117B-f, where the court
held that it was wide enough to warrant the grant of an order that a detainee held under emergency
regulations be produced to court to give evidence, notwithstanding a regulation that prohibited anyone
from having access to the detainee without the consent of the respondent.
4 Moosa Bros & Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D) at 91A-E.

evidence. When this possibility was raised with counsel they both
accepted that it would be appropriate to confine such a reference to the
issue of prescription. Counsel for the MEC accepted that if the plea of
prescription fails then the letter of 2 June 2011 constituted compliance
with the notice requirement in the Legal Proceedings Act.

[9] In the circumstances I make the following order:
The appeal is upheld and the order of the court below is set aside
and replaced by the following order:
‘(a)
The application is referred for the hearing of oral evidence
on the question whether the Plaintiff’s claim had prescribed before
the service of summons.
(b)
The plaintiff shall appear to be examined and cross-
examined at the hearing of such oral evidence.
(c)
The provisions of Rules 35, 36, 37 and 38 shall apply to the
hearing of such oral evidence.
(d)
The costs of the application are reserved for decision by the
court hearing such oral evidence.’
The costs of the appeal, including the costs of the application for
leave to appeal, are to be costs in the application.

M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
P J de Bruyn SC (with him V Kunju)
Instructed by:
The State Attorney, Mthatha and Bloemfontein.

For respondent:

A G Dugmore
Instructed by:
Nonxuba Inc, Johannesburg and
Webbers, Bloemfontein.