- A woman died after receiving treatment at Joe Morolong Memorial Hospital before being transferred to Kimberley Hospital.
- The family reported the case to the HPCSA within weeks and followed the disciplinary process.
- The High Court decided the delay in serving a statutory notice was reasonable, allowing the claim to go ahead.
Nearly 11 years after a North West woman died following hospital treatment, her family has been allowed to continue seeking accountability for the circumstances surrounding her death.
Anna Johanna Badenhorst died on 17 February 2015 after receiving treatment at Joe Morolong Memorial Hospital. When her condition deteriorated, she was transferred to Kimberley Hospital, where emergency surgery was performed. Despite the intervention, she died.
Her husband, Wessel Johann Badenhorst, together with three other family members, alleges that negligent medical treatment by employees of the North West Department of Health caused her death.
Family turned to the HPCSA
Instead of immediately instituting legal proceedings, the family lodged a complaint with the Health Professions Council of South Africa (HPCSA) on 18 March 2015 concerning the treatment Badenhorst received from a medical practitioner described in the judgment only as Dr Dube.
The complaint triggered a disciplinary process that lasted more than three years. On 7 May 2018, the HPCSA informed the family that disciplinary proceedings had resulted in findings against the doctor and the imposition of a sanction.
The family then consulted attorneys, served the statutory notice required by law during October 2018 and instituted legal action the following year.
Health department challenged the claim
The North West MEC for Health opposed the family’s application for condonation, arguing they already knew the material facts surrounding Badenhorst’s death in February 2015 and should have served the statutory notice within six months.
The department further argued that the claim had prescribed before the summons was issued. Acting Deputy Judge President AH Petersen rejected those arguments. “The applicants did not remain passive following the deceased’s death,” Judge Petersen said.
Suspicion did not amount to knowledge
A central issue was whether the family knew enough to conclude that negligent medical treatment may have caused Badenhorst’s death.
The court accepted that while the family suspected something had gone wrong, they were laypeople without medical expertise and could not reasonably determine whether negligence had occurred without further investigation.
“Suspicion, even a reasonable suspicion, is not synonymous with possession of the material facts contemplated by Section 12(3),” Judge Petersen said.
The judgment found that the family’s decision to lodge an HPCSA complaint shortly after Badenhorst’s death demonstrated diligence rather than delay. “Their conduct demonstrates that they sought to obtain information which they did not yet possess, rather than confirmation of conclusions already reached,” Judge Petersen said.
Delay found to be reasonable
The judgment found that the family consistently pursued available avenues to establish whether they had a sustainable medical negligence claim before embarking on civil litigation.
The court also found that the MEC had failed to show that the delay caused any unreasonable prejudice. There was no evidence that witnesses had become unavailable, medical records had been lost or the department’s ability to defend the matter had been materially affected.
Judge Petersen stressed that the ruling does not establish a general rule that prescription in medical negligence matters only begins once disciplinary proceedings have been completed. Each case, the judgment said, must be determined on its own facts.
Matter may now proceed
Having found that the claim had not prescribed, that the family had shown good cause for the delay and that the MEC had failed to establish unreasonable prejudice, the court granted condonation.
The order authorises the family to proceed with their medical negligence action arising from the treatment and death of Mrs Badenhorst.
The North West MEC for Health was also ordered to pay the costs of the application, including the costs of counsel.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
