In a significant judgment handed down by the High Court of Lesotho, the legal system has taken a progressive step toward protecting victims of continuous and ongoing harm caused by medical negligence and state inaction. The case of Limakatso Khalanyane v. Sankatana HIV/AIDS and Oncology Centre and Others (CIV/T/0548/2023) grapples with the tension between statutory prescription and the right to access justice under the Constitution.
Background: Medical Negligence and Lasting Harm
Ms. Limakatso Khalanyane, the plaintiff, sought medical assistance at Sankatana HIV/AIDS and Oncology Centre in 2019. Due to a misdiagnosis, she was subjected to an unnecessary and harmful surgical procedure known as the Loop Electrosurgical Excision Procedure (LEEP). This resulted in the rupture of her bladder, leaving her with permanent and debilitating incontinence, discomfort, and emotional distress.
Although the facts of misdiagnosis were undisputed, the defendants (various state health institutions and the Attorney General) raised the defence of prescription, relying on section 6 of the Government Proceedings and Contracts Act 4 of 1965, read with the Prescription Act 6 of 1861. They argued that Khalanyane’s claim was time-barred, as it was instituted more than two years after the injury.
Key Legal Issues: Prescription, Constitutionality, and Continuous Harm
The case presented two pivotal legal questions:
- Whether the defence of prescription was properly raised via exception or should have been pleaded as a special plea requiring evidence;
- Whether section 6 of the Government Proceedings and Contracts Act, which imposes a two-year prescription period, was constitutional, particularly when it does not distinguish between different types of causes of action.
The Court delved into the Roman-Dutch common law distinction between three types of causes of action:
- A cause that arises once and for all;
- A cause founded on continuous and recurring harm;
- A cause arising from future or apprehended harm.
Ms. Khalanyane’s injury was not static. The Court accepted that her condition involved continuous harm, with daily suffering and indignity, thus making her claim ongoing in nature.
Judgment: Section 6 Declared Invalid for Ongoing Harm
Justice Mahase ruled that section 6 of the Government Proceedings and Contracts Act is invalid and unconstitutional, but only to the extent that it does not recognise claims based on continuous harm. The judgment reaffirmed the principle that legislation must align with constitutional protections, including the right to equality before the law and access to courts. The Court read down the provision using section 156(1) of the Constitution to make it compliant by acknowledging the continuous cause of action exception.
Importantly, the declaration of invalidity operates prospectively, meaning it applies from the date of judgment and not retroactively.
Implications: Strengthening Access to Justice in Lesotho
This ruling has far-reaching implications for the interpretation of prescription laws in Lesotho. It affirms that victims of ongoing state-inflicted harm should not be locked out of the courts due to rigid statutory time limits. The case provides a much-needed clarification that prescription laws must accommodate complex medical and constitutional realities, especially when the state is the defendant.
Moreover, it reinforces the judiciary’s role in enforcing constitutional supremacy, even when dealing with statutory defences that restrict access to justice.
Conclusion
The High Court’s decision in Khalanyane underscores the need for a nuanced and rights-based approach to prescription. It highlights how constitutional interpretation can act as a powerful tool to protect the dignity and rights of individuals suffering harm at the hands of the state. This is a welcome development in Lesotho’s jurisprudence, one that signals a shift toward a more compassionate and principled understanding of justice.