Matshidiso v Member for the Executive Council for Health (Gauteng Provincial Government)

• Jurisdiction: South Africa
• Judge: B Mashile J
• Judgment Date: 30 April 2014
• Docket Number: 2010/02456
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 25 February 2014
• Citation: 2014 JDR 1012 (GSJ)

Mashile, J:

[1]

This is a delictual claim for damages. The Plaintiff instituted the action following the death of her father at Leratong Hospital and the subsequent

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Mashile J

donation of his corpse by the latter to the Third Defendant in terms of the now repealed Section 2(2)(b) of the Human Tissue Act No. 68 of 1983, which has since been replaced by Section 63 of the National Health Act No. 61 of 2003.

[2]

The facts surrounding this claim are briefly that:

2.1

On 16 July 2003 the deceased, Mr Petrus Ngakane, the father of the Plaintiff, was admitted and detained at the Second Defendant in order to receive medical treatment;

2.2

When members of the deceased's family, the Plaintiff included, subsequently visited the Second Defendant to check on his health and general well-being, they were sent from pillar to post;

2.3

This carried on for a period of approximately 1 year 6 months when the Plaintiff eventually traced her father's corpse to the Third Defendant in February 2005;

2.4

The Director General donated the corpse of the Plaintiff's father in contravention of Section 62(3)(b) of the National Health Act No. 63 of 2003, which reads:

"The Director-General may only donate the specific tissue if all the prescribed steps have been taken to locate the persons contemplated in subsection (2)."

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Mashile J

2.5

The Third Defendant made arrangements for the Plaintiff to collect the corpse on 21 February 2005.

[3]

The Plaintiff avers that during the period, July 2003 and 21 February 2005, she suffered psychological trauma as a result of the Second Defendant's unlawful act of failing to disclose what had transpired with her father's corpse. She alleges that in consequence of that shock she incurred damages amounting in all to R12 000 000.00, payment of which she is demanding from the Defendants jointly and severally the one paying the other to be absolved.

[4]

When the matter served before court though the Plaintiff had withdrawn the action against the Third Defendant. The case is therefore only against the First and the Second Defendants.

[5]

The Defendants have raised a special plea against the claim of the Plaintiff. The special plea is that the claim of the Plaintiff against both Defendants has prescribed. In the circumstances it is imperative to consider the prescription of the claim.

[6]

Section 12(1), 12(2) and 12(3) of the Prescription Act No. 68 of...