When does a claim for damages prescribe?

In Mavuso v Member of the Executive Council for the Department of Health, Mpumalanga, heard in the Pretoria High Court, the issue before the court was whether Mavuso’s claim for damages against the Defendant – launched more than three years from the date of his injury – had prescribed.

The Defendant raised a special plea of prescription. The court found that the Defendant bore the onus of proving that prescription barred the plaintiff from proceeding with his claim.

In terms of section 11(d) of the Prescription Act 68 of 1969 (“the Act”) a claim is subject to a three-year prescription period which starts to run when the debt is due. Section 12(3) provides 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 defendant contended that the plaintiff’s claimed for damages, showed that he had knowledge of the identity of the defendant and of the facts giving rise to the debt on which the claim was based, when he was discharged from hospital following his injury in an accident. 

The defence was bad in law. There was nothing to indicate why the plaintiff, on being discharged from hospital, would at that stage have had material facts for a cause of action. It was only when a medical report subsequently obtained by the plaintiff was received, that the plaintiff could have realise that he had a cause of action against the defendant. The special plea of the defendant was thus dismissed with costs.