An Eastern Cape judge has given the provincial health department a drubbing for unnecessarily delaying a matter in which former Daily Dispatch staff member Bonisile Ndaliso sued it for negligence.Ndaliso had an operation on his knee at Frere Hospital in 2004 and suffered pain and discomfort for years afterwards.
In 2011, it was discovered that a piece of k-wire or surgical pin had been left behind during the operation and had lodged in his knee. Medical evidence suggests Ndaliso suffered injury involving the articular surfaces of the knee for almost seven years as a result.
Ndaliso sued Eastern Cape health MEC Dr Pumza Dyantyi for just over R1-million, alleging Frere Hospital staff negligently failed to provide him with proper medical care and treatment.
But four years later, the case has gone nowhere, leading Judge Jeremy Pickering to remark on the “tyranny of litigation”.
In 2012, the department responded to the case by raising an exception to Ndaliso’s particulars of claim saying they were vague and embarrassing.
Judge John Smith dismissed the exception in 2012.
The department then filed a special plea claiming Ndaliso had not sued them within the required three years after the operation in 2004 and claimed the matter had prescribed.
Even though Ndaliso said he had only become aware of the problem in 2011 and had sued soon thereafter, the health department maintained he should have sought condonation from the court.
The East London High Court later dismissed the department’s special plea. Appeals and cross appeals followed from both Ndaliso and the department.
Judge Pickering, with Judge Murray Lowe and Acting Judge Bulelwa Nomjana-Ndzondo concurring, found the court should first have established when the “debt” – or damages sued for – became due.
If it was found that Ndaliso was correct and he had only gained knowledge of the facts giving rise to the “debt” during June 2011 then he could not have given notice of his intention to sue before then.
Pickering said the onus was on the health department to show that Ndaliso was aware of the facts giving rise to the debt during September 2004.
The health department’s approach to the matter had led to it dragging on for four years since summons had been issued.
“There is such a thing as the tyranny of litigation. It should come to an end one way or another as soon as possible.”
Although the judges found partly in favour of the department and partly in favour of Ndaliso in the appeal and cross appeal, Pickering said the department should foot the whole legal bill.
He referred the matter back to the high court to determine the merits of Ndaliso’s claim.
Judge slams health dept in botched leg op case
Ndaliso had an operation on his knee at Frere Hospital in 2004 and suffered pain and discomfort for years afterwards.
In 2011, it was discovered that a piece of k-wire or surgical pin had been left behind during the operation and had lodged in his knee. Medical evidence suggests Ndaliso suffered injury involving the articular surfaces of the knee for almost seven years as a result.
Ndaliso sued Eastern Cape health MEC Dr Pumza Dyantyi for just over R1-million, alleging Frere Hospital staff negligently failed to provide him with proper medical care and treatment.
But four years later, the case has gone nowhere, leading Judge Jeremy Pickering to remark on the “tyranny of litigation”.
In 2012, the department responded to the case by raising an exception to Ndaliso’s particulars of claim saying they were vague and embarrassing.
Judge John Smith dismissed the exception in 2012.
The department then filed a special plea claiming Ndaliso had not sued them within the required three years after the operation in 2004 and claimed the matter had prescribed.
Even though Ndaliso said he had only become aware of the problem in 2011 and had sued soon thereafter, the health department maintained he should have sought condonation from the court.
The East London High Court later dismissed the department’s special plea. Appeals and cross appeals followed from both Ndaliso and the department.
Judge Pickering, with Judge Murray Lowe and Acting Judge Bulelwa Nomjana-Ndzondo concurring, found the court should first have established when the “debt” – or damages sued for – became due.
If it was found that Ndaliso was correct and he had only gained knowledge of the facts giving rise to the “debt” during June 2011 then he could not have given notice of his intention to sue before then.
Pickering said the onus was on the health department to show that Ndaliso was aware of the facts giving rise to the debt during September 2004.
The health department’s approach to the matter had led to it dragging on for four years since summons had been issued.
“There is such a thing as the tyranny of litigation. It should come to an end one way or another as soon as possible.”
Although the judges found partly in favour of the department and partly in favour of Ndaliso in the appeal and cross appeal, Pickering said the department should foot the whole legal bill.
He referred the matter back to the high court to determine the merits of Ndaliso’s claim.
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