- August 12, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
CIVIL PROCEDURE – SPECIAL PLEA OF PRESCRIPTION – SUSPENSION OF PRESCRIPTION ACT BY COVID-19 REGULATIONS
The plaintiff who was about 7 months pregnant at that time, was admitted in the Katutura State Hospital on 12 December 2017 after complaining about back and lower abdominal pains. During a vaginal examination, it was discovered that the plaintiff was in labour and had to deliver her baby by way of an emergency caesarean section. After the emergency delivery, she remained in the hospital for about four days and was then discharged.
She returned to the Windhoek Central Hospital on 17 December 2017, a day after her discharge and complained about excruciating abdominal pain, neck pain and vomiting. She was examined by a doctor and received treatment for an infection for about five days. She was then informed that her body is not responding to the antibiotics and that an operation should be done to diagnose her condition. After the operation when she came to, she was informed that her womb had rotten and had to be removed. This was done without informing the Plaintiff of the said procedure and without obtaining her consent. She is therefore alleging that she suffered unbearable pain and discomfort and will not have any further children. She alleges that the Defendant and/or his medical staff failed to execute their duties professionally and reasonably as can be expected from trained and qualified medical professionals. She is claiming N$3 850 000 in total for the injuries she suffered due to an infringement of her rights guaranteed under the Namibian Constitution.
The Defendant raised a special plea of prescription in that the periods of prescription of debts shall be the following under section 11 of the Prescription Act, 68 of 1969. It was further pleaded that the plaintiff alleges in her particulars of claim that the cause of action arose on or about December 2017, when the defendant intentionally or negligently caused permanent damage to the plaintiff’s womb, by subjecting her to a sterilization procedure without her informed consent and leaving her sterilized. The Combined Summons that commenced this action was issued by the Registrar of the High Court on Ejustice on 15 January 2021 and served on the defendant on same day which is more than three (3) years after the date on which the claim arose.
The defendant specifically referred to the COVID – 19 Regulation dealing with the ‘Suspension of Operation of Provisions of Certain Laws and Ancillary Matters Regulations’ under Proclamation 16 of 2020 and pleaded that only suspended the Prescription Act period as from 14:00 on 28 March 2020 and ending at 23:59 on 17 April 2020 which calculates the suspension to be for only twenty-one (21) days which than dictates that the plaintiff’s cause of action should than have prescribe on or before 11th of January 2021. RAKOW J had to determine whether the period of suspension of prescription was only from 28 March 2020 to 17 April 2020 as per the defendant’s contention or whether it was from 28 March 2020 to 4 May 2020 as per the plaintiff’s assortment, and concluded that:
‘[15] In order to determine the period of days in which prescription was stayed under the Covid-19 regulations, as set out above, the court needs to interpret specifically the intention of the legislature with regard to the lockdown period. If one uses the definition in Proclamation 16 of 2020 for “period of lockdown” and impose that definition into the reading of regulation 7(1) and (7(2) it will read something like the following:
(1) Despite anything to the contrary in the Prescription Act, 1969 (Act No. 68 of 1969), the running of prescription under any provision of that Act is deemed to be interrupted during the duration of the period of lockdown referred to in Regulation 3 of the Regulation and includes the period of lockdown, commencing at 14:00 on 28 March and ending at 23:59 on 17 April 2020, that was imposed prior to the amendments to the Regulations.
[16] From reading the above, it is clear that the legislature intended whichever period of lockdown, to also include the period of lockdown commencing at 14:00 on 28 March 2020 and ending at 23:59 on 17 April 2020, which was the position prior to the amendments to the regulations. The amendment to the regulations therefore refers to the amendment in Proclamation 13 of 2020 where the “period of lockdown” which was announced in the initial regulations under Proclamation 9 of 2020 was replaced with the words lockdown starts from 23:59 on 17 April 2020 and ends at 23:59 on 4 May 2020. The period of lockdown, therefore, is the period from 14:00 on 28 March 2020 until 23:59 on 4 May 2020.
[17] It is then also for this period that the operation of the Prescription Act, of 1969 was suspended and as such totals to 38 days, if both the starting and ending days are included. The prescription period in respect of the current matter was therefore after the expiry of 3 years and 38 days from 12 December 2017, being the date that the Plaintiff was first treated by the staff members in the employ of the Defendant. This in essence will take the date of prescription of the claim to a few days after the claim was filed.’
As a result, the special plea was dismissed with costs of disbursements.
Festus v Minister of Health and Social Services NAHCMD 12 August 2022