- The trial concerns emotional shock arising from alleged medical negligence that resulted in the death of Tshepo Selepe on 3 December 2018.
- His family alleges that medical practitioners and nurses failed in their duties while treating him at several North West hospitals.
- The MEC for Health argued that the claim had prescribed and challenged the standing of some plaintiffs before the main evidence could be heard.
The family of Tshepo Selepe is seeking R1.25 million for the emotional shock and psychological trauma they say followed his death after alleged medical negligence.
The case came before Judge T Masike in the High Court in Mahikeng as a trial concerning the consequences of Selepe’s death, but the evidence could not begin until two preliminary challenges raised by the MEC for Health had been determined.
Selepe died at approximately 7.30pm on 3 December 2018 while admitted at Klerksdorp Hospital. His family alleges that medical procedures had been performed on him at Bophelong, Joe Morolong, Schweizer Reneke and Klerksdorp Provincial Hospitals and that the medical practitioners and nurses involved failed to provide the care required of them.
Family links Selepe’s death to negligent medical treatment
The family members bringing the claim are Thapelo Molly Selepe, Sokokola Sina Selepe, Lienttikile Alfred Selepe, Kenalemang Soffie Selepe, Simane Shadrack Selepe, Hendrick Selepe and Moses Selepe.
They allege that the healthcare workers had a duty to provide Selepe with proper and appropriate medical treatment and to exercise the degree of skill and care reasonably expected from medical practitioners and nurses. They say that duty was breached and that the medical practitioners and nurses failed to comply with their legal and statutory duties, including duties relating to healthcare services and emergency medical treatment.
The family says the alleged conduct resulted in Selepe’s unnecessary death and caused them pain, discomfort, embarrassment, loss of amenities of life, emotional shock and psychological trauma. They are claiming R1.2 million in general damages, and R50 000 for funeral expenses, with the MEC cited in his capacity as the official responsible for the provincial Department of Health and Social Development.
Before the family could lead evidence on those allegations, the MEC raised two special pleas. The first was that the claim had prescribed because Selepe died on 3 December 2018 and summons was served on 19 April 2022. The second challenged the legal standing of the family members and alleged that Thapelo Molly Selepe had died before the claim was instituted.
Judge rejects challenge to family’s standing
The parties agreed that the special pleas should be determined before the main trial. Judge Masike found that the issues could conveniently be dealt with separately and stayed the further proceedings until they had been decided.
On the standing challenge, the judge found that the family members had been cited in their individual capacities and not because of their relationship with Thapelo Molly Selepe. Judge Masike also questioned the basis for the MEC’s assertion that Thapelo Molly Selepe was already deceased when the claim was instituted.
“I could not understand the basis on which the defendant pleads that the first plaintiff is deceased and his death predates the institution of the claim,” Judge Masike said.
The judge found that even if Thapelo Molly Selepe had died before the action was instituted, this would not affect the claims of Sokokola Sina Selepe, Lienttikile Alfred Selepe, Kenalemang Soffie Selepe, Simane Shadrack Selepe, Hendrick Selepe and Moses Selepe.
Because the claim concerned emotional shock, Thapelo Molly Selepe’s personal claim would die with him if he had already died, but that would not extinguish the claims of the other family members.
“The claim of Thapelo Molly Selepe, Sokokola Sina Selepe, Lienttikile Alfred Selepe, Kenalemang Soffie Selepe, Simane Shadrack Selepe, Hendrick Selepe and Moses Selepe is for emotional shock,” Judge Masike said. “If Thapelo Molly Selepe is deceased and his death predates the institution of the claim, his claim dies with him.”
MEC fails to establish that the claim had prescribed
The court then considered the prescription challenge, with the MEC relying heavily on the date of Selepe’s death as the point when prescription began running.
Judge Masike found that the date of death alone could not establish prescription. The MEC had to prove when the family knew the facts giving rise to the debt and the identity of the debtor.
The family relied on Section 12 of the Prescription Act and argued that the MEC had failed to establish when they acquired the knowledge required for prescription to begin. The court accepted that the burden rested on the party relying on prescription. “The onus was on the defendant to satisfy this court that prescription started running on 3 December 2018,” Judge Masike said.
The court found that the MEC had produced nothing showing that the family knew the identity of the defendant and the facts giving rise to their claim on the date Selepe died. There was also nothing to establish that no events occurred afterwards that could have delayed or interrupted prescription. The prescription special plea therefore failed.
Family’s emotional shock claim remains to be heard
Judge Masike dismissed both special pleas and ordered the MEC to pay the family’s costs on a party and party scale, Scale B. The main trial is to proceed on a date and time to be arranged with the registrar of the High Court in Mahikeng.
The judgment does not determine whether medical negligence caused Selepe’s death. That remains for the main trial, where the family will have to prove its allegations about his treatment and establish its claim for damages arising from the emotional shock and psychological trauma they say followed his death.
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