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The ultimate objective of the Prescription Act 68 of 1969 is to bring certainty and finalisation to any legal dispute. The Act subsequently also penalises a creditor who fails to take the reasonable steps that he/she is required to take in terms of the Act. It is, therefore, of utmost importance to familiarise oneself with the provisions of the Act. Section 11(d) of the Act provides that debt shall prescribe within three years from the date that the debt arose. Moreover, Section 12 (1) of the Act provides that the prescription period will commence as soon as the debt is due.

It should be borne in mind that the provisions of the Prescription Act are indeed applicable to claims for medical negligence, and one should therefore be mindful of the time limits that are placed on medical negligence claims. If you fail to institute legal action within the prescribed time limit, you bear the consequences of missing your chance to pursue a personal injury claim. This essentially means that you have to institute your court action within three years of the incidence of the medical malpractice.

Furthermore, it is important to familiarise oneself with the requirements for instituting medical negligence claims against the state. In the event that your claim for medical negligence is against a state hospital or a governmental department, such as the Department of Health, the provisions of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 finds application. In terms of the Act, one is required to send a written notification of your intention to institute legal action to the relevant organ of state. The said notification should be referred within six months of the occurrence of the medical negligence. Thereafter, legal proceedings can only be instituted against the organ of state 30 days of after the notice has been sent. Failure to send this notification does bear certain consequences. However, one can apply to a court of law for condonation if you have compelling reasons for the condonation to be granted.

Moreover, it is also important to bear in mind that there are indeed some exceptions to these requirements and in some limited instances, the prescription period for claims for medical negligence against the state can be extended. These exceptions include:

  • Where injury or death occurs after the incident of medical negligence
  • Where the person claiming medical negligence is a minor
  • Where the person claiming medical negligence is mentally disabled

Lastly, the harsh implication of the law of prescription is that one cannot simply apply for condonation when your time to institute legal action has run its course. In essence, once the prescription period has lapsed, the debt is also accordingly extinguished by the prescription. It is, therefore, vitally important to immediately seek legal assistance after the incidence of medical negligence.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

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