Prescription ordinarily runs from the date a debt becomes due and a plaintiff has up to three years within which to issue summons on that debt.
In Links v MEC for Health, Northern Cape, the Constitutional Court (“CC”) examined this issue and issued a judgment with potentially far reaching consequences for medical negligence matters.
On 26 June 2006, Mr Links sustained a dislocated thumb for which he was treated with a cast and painkillers. On 5 July 2006, Mr Links’ thumb was amputated. He was discharged in August 2006 and sought legal advice shortly afterwards.
On 6 August 2009, action was instituted against the MEC for Health, Northern Cape, by Links’ attorneys, having obtained an expert opinion. On the strength of Section 12(3) of the Prescription Act, which reads that “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”, the MEC’s special plea of prescription was upheld by the court a quo and full bench of the Northern Cape. Links was granted leave to appeal to the CC.
The CC held that:
“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.”;“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 court accepted that at 5 August 2006, despite Links’ knowledge of the amputation which compelled him to seek legal advice, he did not have knowledge of the negligence of the staff until he obtained an expert medical opinion.
An unintended consequence of this finding is that a defendant alleging prescription of a medical negligence claim cannot show deemed knowledge on the part of the plaintiff for the purposes of section 12(3) without also showing when the plaintiff obtained legal or medical advice.
It seems the better approach would have been to conclude that prescription started running when Links discovered that his thumb had been amputated. This information compelled him to seek legal advice and investigate the possibility of negligence, despite his lack of knowledge of medicine. A finding of this nature would not have resulted in a lack of access to justice for Links, who might have had a claim against his attorneys.
  ZACC 10 Act 68 of 1969  ZACC 10 at para 18