A healthcare practitioner, who is the subject of malicious HPCSA proceedings, may institute a damages claim for malicious prosecution against the complainant who initiated the proceedings within three years from the date the HPCSA informs the practitioner of its decision to dismiss the complaint.

The claim only arises, and prescription starts to run, from the date that the HPCSA informs the practitioner that the complaint has been dismissed.

In Holden v Assmang Limited, the defendant employer referred its employees to the plaintiff, a counselling psychologist registered with the HPCSA. On 30 June 2008, the employer laid a complaint against the plaintiff with the HPCSA for gross breach of professional ethics, alleging that she had made a diagnosis of the disease of manganism when she was neither qualified nor competent to even attempt to make such a diagnosis.

On 29 September 2008, the plaintiff submitted a detailed written explanation, in response to the complaint, to the HPCSA. The complaint was considered by the HPCSA’s Committee of Preliminary Inquiry of the Professional Board for Psychologists. On 13 November 2009, the HPCSA informed the plaintiff that the Committee accepted her explanation and resolved that there were no grounds for taking further action.

On 6 August 2012, the plaintiff instituted an action for damages against the employer for malicious proceedings. In defending the claim, the employer argued that the claim had prescribed. The employer contended that the claim arose, and prescription began to run, when the complaint was first lodged with the HPCSA and therefore, the three-year prescription period had already lapsed in terms of section 11 of the Prescription Act 1969.

The Supreme Court of Appeal rejected the employer’s prescription argument. The claim was premised on malicious prosecution. In order to succeed with a claim for malicious prosecution, the claimant must prove that the prosecution failed. Therefore a claim will only arise, and prescription start to run, once the case has been concluded in the claimant’s favour. The institution of a claim for damages before such finalisation may amount to prejudging the results of pending proceedings. The claim for malicious prosecution will accordingly prescribe three years from the date that the malicious proceedings are finalised in favour of the claimant.

There is no discernible distinction between criminal proceedings and proceedings before statutorily created professional tribunals such as the HPCSA. The court in Holden v Assmang Limited concluded that the claim arose, and prescription started to run, on 13 November 2009 when the HPCSA informed the plaintiff of its decision. It was only then that the plaintiff would have been able to prove that the proceedings had been terminated in her favour. Therefore, as the three-year period had not lapsed when the summons was issued, the claim had not been extinguished by prescription.