In a significant ruling, the High Court of South Africa, Gauteng Local Division, Johannesburg, recently delivered a judgment in favor of Ms. Nombuso Emma Fanana, who is seeking damages from the MEC for Health Gauteng Province following alleged medical negligence at Chris Hani Baragwanath Hospital. The case revolved around whether she had complied with legal requirements in notifying the state of her claim and whether her delay in serving notice should be condoned.
Ms. Fanana, the applicant, was admitted to Chris Hani Baragwanath Hospital in November 2019 while 38 weeks pregnant and suffering from hypertension. She gave birth via Caesarean section on 30 November 2019 and was discharged on 1 December 2019. However, she soon experienced severe complications, including excessive bleeding and infection at the surgical site, leading to her readmission on 5 December 2019.
During her second hospitalization, doctors performed a hysterectomy, permanently removing her womb. According to Ms. Fanana, she was informed that this procedure was necessary due to negligence in her initial Caesarean surgery, where her womb was not properly cleaned. She continued to require medical treatment well into 2020, including a tracheotomy in March 2020 due to complications from prolonged time spent in ICU.
Under Section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act, individuals seeking to sue the state must serve notice of their claim within six months of the date on which the debt becomes due. The MEC for Health Gauteng Province argued that Ms. Fanana failed to meet this deadline and sought to have her claim dismissed.
In response, Ms. Fanana applied for declaratory relief, asserting that her notice complied with legal requirements. Alternatively, she sought condonation for the delay, arguing that:
• She only became aware that she had a valid medical negligence claim on 23 March 2021, when she consulted her attorney.
• She was emotionally and physically unfit to pursue legal action sooner due to the trauma and ongoing medical treatment.
• She lacked financial resources to initiate legal proceedings earlier.
The court carefully examined whether Ms. Fanana’s delay in serving notice was justified. It noted that:
• While she may have suspected negligence following her hysterectomy in December 2019, she was unaware of her legal rights or the identity of the responsible party until she received legal advice in March 2021.
• Her continued reliance on the hospital for treatment delayed her ability to seek legal counsel.
• Given her traumatic experience and ongoing medical complications, her delay was reasonable.
Even if the court had found that Ms. Fanana’s notice was late, it ruled that condonation should be granted. Under Section 3(4) of the Act, condonation is allowed if:
1. The debt has not prescribed (i.e., it is still legally valid).
2. Good cause exists for the delay.
3. The state was not unreasonably prejudiced by the late notice.
The court found that all three conditions were met. It also criticized the MEC’s shifting stance—initially agreeing not to oppose the condonation request but later changing its position based on a cost dispute.
The court ruled in Ms. Fanana’s favor, making the following orders:
1. Her notice dated 9 April 2021 was deemed compliant with Section 3(2) of the Act.
2. The MEC for Health Gauteng Province was ordered to pay her legal costs.
This judgment underscores the importance of access to justice for medical negligence victims, particularly those unaware of their legal rights. The court acknowledged the realities of trauma, financial constraints, and emotional distress, reaffirming that justice should not be denied due to procedural technicalities. With this victory, Ms. Fanana can now proceed with her damages claim, bringing her one step closer to obtaining accountability and compensation for the harm she endured.
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