Prescription is frequently raised as a defence in medical negligence litigation, particularly where a patient experiences an adverse outcome or ongoing complications but only seeks legal advice several years later.
A recurring question is when the three-year prescription period begins to run. Is it when the patient experiences the complication, when its cause becomes known, when an expert expresses an opinion that the treatment may have been negligent, or only when the patient obtains legal advice?
Natasha Naidoo and Sibusiso Madisha from Fairbridges Attorneys shed some clarity on the question.
The Mpumalanga High Court considered this particular issue in Nkosi v Gidaga (2443/2024) [2026] ZAMPMBHC 73 (15 July 2026), where a medical negligence claim arising from surgery performed in September 2018 was instituted only in May 2024. The court upheld the medical practitioner's special plea of prescription and dismissed the claim.
Background
The plaintiff was diagnosed with colon cancer and admitted to Nelspruit Mediclinic Private Hospital on 5 September 2018 as a private patient of the defendant medical practitioner – who then performed a laparotomy, including removal of a cancerous tumour. A further surgical procedure, described in the judgment as either a re-laparotomy or colostomy, was performed on 13 September 2018.
After the surgery, the plaintiff experienced ongoing complications, including decreased libido and anejaculation. On 2 June 2020, he consulted a specialist urologist concerning these symptoms. He consulted the same urologist again in October 2022 and another urologist in October 2023.
It was only on or about 23 May 2024 that he consulted attorneys. Summons was issued on 28 May 2024. The defendant subsequently raised a special plea that the claim had prescribed.
The competing positions
The defendant contended that the plaintiff had known the material facts underlying his claim considerably earlier, and had been informed before the first surgery of the possible consequences. The defendant also relied on the plaintiff's consultation with the specialist urologist in June 2020, when a causal relationship between his symptoms and the earlier surgery was identified.
The plaintiff disputed that he had been advised accordingly. He maintained he had not seen the defendant's clinical notes and had not been informed of communications between the urologist and his general practitioner regarding the cause of his condition. His case was essentially that he only became aware he might have a medical negligence claim when he consulted attorneys in May 2024.
The question was therefore when the plaintiff acquired, or should reasonably have acquired, the knowledge contemplated in section 12(3) of the Prescription Act 68 of 1969.
What knowledge is required?
Section 11(d) of the Prescription Act generally provides for a three-year prescription period for a debt of this nature.
Section 12(3) provides that a debt is 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. Importantly, the section also provides that a creditor is deemed to have such knowledge if it could have been acquired by exercising reasonable care.
The court relied principally on the established approach in Truter v Deysel and Minister of Finance v Gore NO. In Truter, the Supreme Court of Appeal held that a claimant need not know that the facts amount in law to negligence, nor is an expert opinion confirming negligence required before prescription can begin to run. An expert’s conclusion that treatment was negligent is evidence or opinion based upon the underlying facts. It is not itself one of the material facts from which the debt arises.
Similarly, Gore confirms that prescription begins once a creditor possesses the minimum facts necessary to institute action. Prescription does not wait until the creditor understands the full extent of their legal rights or possesses sufficient evidence to prove the case comfortably.
There is, however, an important qualification in medical negligence cases. The Constitutional Court’s decision in Links v MEC for Health, Northern Cape 2016 (4) SA 414 (CC) clarifies that knowledge of an adverse medical outcome alone does not necessarily trigger prescription. The party relying on prescription must establish that the claimant possessed sufficient facts to provide reasonable grounds for thinking the injury may have resulted from fault on the part of the medical staff.
The distinction is therefore between knowledge of the material facts suggesting possible negligent treatment and knowledge of the legal conclusion that those facts establish negligence.
Why the claim had prescribed
The court rejected the plaintiff’s contention that he only acquired the necessary knowledge in May 2024. The defendant’s contemporaneous clinical notes recorded the possible negative consequences of the surgery. The Court considered it improbable that the defendant would have recorded those consequences without communicating them to his patient. It therefore accepted, on the probabilities, that the plaintiff had been informed of them in 2018.
The court reached a similar conclusion regarding the June 2020 urology consultation. It regarded it highly improbable that the suggestion that the specialist had identified the relationship between the plaintiff's condition and the earlier surgery, and communicated this to the referring general practitioner, yet neither practitioner had informed the plaintiff when he consulted them precisely to determine the cause of his symptoms.
Even if actual knowledge were disputed, section 12(3) incorporates deemed knowledge. The relevant medical records and specialist information had been available to the plaintiff for years. The court held that, through the exercise of reasonable care, he could have obtained the information necessary to understand the factual basis of his complaint considerably earlier than May 2024.
The court accordingly found that the plaintiff knew or ought reasonably to have known the relevant facts in September 2018 and, at the latest, after the specialist consultation in June 2020.
On either basis, the summons issued on 28 May 2024 fell outside the three-year period. The special plea was upheld, the plaintiff's claim was dismissed, and he was ordered to pay the costs of the application, including the costs incurred by the defendant in defending the main action.
The court was particularly critical of pursuing the matter in circumstances where the principles concerning deemed knowledge and the distinction between factual knowledge and legal conclusions were well established.
Practical significance for healthcare facilities, practitioners and insurers
The judgment has several practical implications for the defence of medical negligence claims.
First, prescription should be investigated at the outset of every claim where there has been a substantial delay between the treatment complained of and institution of proceedings. A chronology should identify when the patient first experienced the relevant complication, what the patient was told, subsequent consultations, investigations and diagnoses, when medical records were requested or available and when legal or expert advice was ultimately obtained.
Second, contemporaneous clinical records can be crucial. In Nkosi, the practitioner's notes concerning the potential consequences of surgery materially assisted the court in determining what had probably been communicated to the plaintiff. For healthcare practitioners and hospitals, proper documentation of discussions regarding risks, complications, diagnoses and follow-up advice may therefore become important evidence many years later in determining not only the merits but also prescription.
Third, later consultations with other practitioners may be significant. Correspondence between specialists and referring practitioners, follow-up notes and records explaining the cause of a complication may assist in establishing when the claimant acquired sufficient factual knowledge to investigate a potential claim.
Finally, Nkosi should not be interpreted as establishing that prescription automatically runs from the date of treatment or from the first appearance of an adverse outcome. Each case remains fact-specific. In medical negligence litigation, the enquiry is whether the claimant knew, or through reasonable care, could have known, sufficient facts to reasonably suspect that the harm may have resulted from that treatment.
The important distinction is that a claimant need not wait for an expert or attorney to tell them those facts amount in law to negligence.
For healthcare practitioners, hospitals and their insurers, that distinction can make prescription a potentially decisive defence where the factual chronology supports it.
The case is Nkosi v Gidaga (2443/2024) [2026] ZAMPMBHC 73 (15 July 2026). The full judgment may be accessed by clicking here Nkosi v Gidaga.
Naidoo (Director)
Sibusiso Madisha (Candidate Attorney)
Fairbridges Attorneys
Johannnesburg
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