The Webber Wentzel insurance team provides clients with regular updates on new developments in insurance law in South Africa. This update unpacks a recent medical malpractice case.
In a recent medical malpractice case, Ishmael 1, the plaintiff incorrectly instituted action against a property entity and later sought to join the doctors and the practice.
The High Court had to decide on two salient issues: (i) Does the institution of a joinder application interrupt prescription? (ii) Does the granting of the joinder order interrupt prescription?
To answer these questions in the affirmative, the following conditions set out in section 15 of the Prescription Act, 1969, must be met: (i) there must be service of a process; (ii) on the debtor; and (iii) whereby the creditor claims payment of the debt.
Regarding the first issue, the High Court had to consider two conflicting judgments on the point. It agreed with the SCA's decision in
Peter Taylor 2, and not the decision in
Huyser  3. The Court found that the effect of a joinder application was to include defendants who were potentially liable under the claim but did not move the substantive process toward the enforcement of a claim for payment of a debt.
Regarding the second the High Court agreed with the decision in
Nativa  4, which applied
Peter Taylor. The High Court held that the order with the amended summons and particulars of claim had to be served on the defendants within the prescription period.
In this case, the order for joinder was granted on 5 November 2018. The date of prescription was 4 December 2018; however, the plaintiff only served the amended combined summons and particulars of claim, on 25 January 2019.
The High Court upheld the defendant's special plea of prescription as the amended summons and particulars of claim were not served within the prescription period.
Also, for those of you who enjoy a bit of knowledge testing, we set out below a quick quiz "The Webber Wentzel Insurance Cipher", to try and test your insurance law knowledge in practical ways.