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[2016] ZASCA 185
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Member of the executive Council for Health and Social Development of the Gauteng Provincial Government v Zulu obo Zulu (1020/2015) [2016] ZASCA 185 (30 November 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1020/2015
In
the matter between:
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH AND SOCIAL DEVELOPMENT OF
THE
GAUTENG PROVINCIAL
GOVERNMENT
APPELLANT
and
DUMILE
JUDITH ZULU
obO
wandile maqhawe
zulu
RESPONDENT
Neutral
citation
:
The
MEC for Health and Social Development of the Gauteng Provincial
Government v Zulu
(1020/2015)
[2016] ZASCA 185
(30
November 2016)
Coram
:
Maya AP, Swain JA, Fourie, Dlodlo and Potterill AJJA
Heard
:
16 November 2016
Delivered:
30
November 2016
Summary:
Delictual
damages – ‘once and for all’ common law rule –
future medical expenses – lump sum award
– section 39(2)
of the Constitution – development of common law – payment
of future medical expenses as and when
required – no proof that
access to healthcare services in terms of s 27(1) or s 28(1)
(c)
of the Constitution compromised by common law rule – law reform
more appropriately dealt with by legislature.
Contingency Fees Act 66
of 1997
– exclusion of award for future medical expenses from
agreement – not permitted.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg
(Francis
J sitting as court of first instance).
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Swain
JA
(Maya
AP, Fourie, Dlodlo and Potterill AJJA concurring):
[1]
The
appellant, the Member of the Executive Council for Health and Social
Development of the Gauteng Provincial Government, was the
defendant
in an action instituted before the Gauteng Local Division,
Johannesburg by the respondent, Ms Dumile Judith Zulu. Damages
were
claimed on behalf of the respondent’s minor child, Wandile
Maqhawe Zulu, on the ground that due to the negligence of
the staff
of the Chris Hani Baragwanath Hospital during her birth, she suffered
brain damage.
[2]
At
the initial hearing on the issue of liability, Claassen J made an
order on 29 July 2014 that ‘the defendant shall pay the
plaintiff’s agreed or proven damages . . .’
Prior
to the further hearing to determine the quantum of the respondent’s
damages, the appellant amended her plea to include
two further issues
for determination. It is these issues that form the subject of the
present appeal.
[3]
The
issues were pleaded as follows:
First
issue
’
12.1
The defendant admits that this
Honourable Court found that she was liable for the admitted and
/ or
proved damages sustained by the Plaintiff as a result of the
negligence of the employees.
12.2
The defendant however pleads that she should be directed that instead
of the monetary compensation
sought in respect of medical expenses as
set out in paragraph 9 of the Plaintiff’s amended particulars
of claim, to pay directly
to the person / s who will provide services
to him within 30 days of presentation of a written quotation to its
accounting officer.
12.3
In the event that it is found that the South African Law does not
make provision for such
relief and, only in that event, the defendant
avers that the South African Law must be developed to make such
provision.’
Second
issue
’
15
In the event that the Court were to find that the amounts claimed by
the
Plaintiff are both reasonable and are payable upon its order, the
Defendant pleads that:
15.1
The Plaintiff has entered into a contingency fee agreement with its
attorneys of record;
15.2
Such contingency fee agreement is in terms of Contingency Fee Act and
such contingency
fee agreement will reduce the amount that is due to
the minor for his future medical care;
15.3
Furthermore the Defendant avers that the reduction of such future
medical expense will
put the child out of pocket and that it will not
be in the best interest of the child.
15.4
In the circumstances the amount awarded for future medical expenses
should not be part
of the amount taken into consideration for the
calculation, determination and payment of money in terms of the
contingency fee
agreement.’
[4]
The
amended relief that the appellant sought in consequence of these
amendments was framed as follows:
‘
WHEREFORE
the defendant prays that:
(1)
she should be directed
that instead of the monetary compensation sought in
respect of
medical expenses as set out in paragraph 9.1 of the Plaintiff’s
amended particulars of claim, to pay directly
to the person / s who
will provide services to the minor child within 30 days of
presentation of a written quotation to its accounting
officer.
(2)
Alternatively that the amount awarded for future medical expenses
should
not be part of the amount taken into consideration for the
calculation, determination and payment of money in terms of the
contingency
fee agreement(s).’
[5]
On
the third day of the hearing before the court a quo (Francis J) the
quantum of the respondent’s damages was settled between
the
parties in the amount of R23 272 303. Of this amount the
sum of R19 970 631 was agreed as Wandile’s
future
medical expenses. The additional issues were decided against the
appellant and she was ordered to pay this amount to the
appellant in
her representative capacity. An application for leave to appeal was
refused by the court a quo. The present appeal
is with the leave of
this court.
[6]
The
order sought by the appellant in substitution of the lump sum award
made by the court a quo, is precluded by the common law
rule that a
person or his dependent, is only accorded a single, indivisible cause
of action to recover damages for all the loss
or damage suffered as a
result of the wrongful act causing disablement or death.
[1]
[7]
It
is trite that in this action ‘the trial Court has to determine
the
quantum
of damages or compensation for past and future loss or damage. It
determines the latter by reasoned estimate, but sometimes by
sheer
speculation or even mere guesswork, doing the best it can on the
available testimony. The amount it so determines is awarded
once and
for all, no matter whether or not the envisaged basis for calculating
the future loss or damage subsequently eventuates,
the contemplated
contingencies materialize, or any unforeseen events overtake the
claimant, for example, his death earlier than
expected. . . .’.
[2]
[8]
The
appellant’s response to this obstacle in the path of the relief
claimed, is that the common law must be developed by this
court to
modify the ‘once and for all’ rule.
[3]
The grant of the order sought would permit the appellant to pay for
the future medical expenses of Wandile as and when they may
arise.
Payment is, however, only to be made within 30 days of the appellant
receiving a quotation from the person who will provide
medical
services to Wandile. That a quotation and not a statement or invoice
is envisaged as a necessary precondition for payment,
suggests that
the appellant will have a discretion not only whether to approve the
particular medical services, but also whether
to make payment of the
quoted ‘price’.
[9]
The
common law would have to be developed by the abolition of the ‘once
and for all’ rule and not merely its modification,
where
damages are claimed in respect of future medical expenses. To
determine whether a development of the common law is desirable,
the
correct approach is that ‘there are two stages to the inquiry a
court is obliged to undertake. They cannot be hermetically
separated
from one another. The first stage is to consider whether the existing
common law, having regard to the objectives of
s 39(2) of the
Constitution, requires development. This inquiry requires a
reconsideration of the common law in the light of s
39(2). If this
inquiry leads to a positive answer, the second stage concerns itself
with how such development is to take place
in order to meet the s
39(2) objectives’.
[4]
[10]
The
sole basis upon which the appellant maintains that the common law
must be developed, is that payment of the sum of R19 970 631
to the respondent will deprive other persons of much needed medical
care. It appears that the appellant relies upon the provisions
of s
27 of the Constitution, which provides for everyone’s right of
access to health care services. A concomitant obligation
is imposed
upon the State to take reasonable legislative and other measures,
within its available resources to achieve the progressive
realisation
of this right in terms of s 27(2) of the Constitution.
[11]
No
evidence was led, however, by the appellant to show that a
development of the common law, by the abolition of the ‘once
and for all’ rule in cases where damages are claimed in respect
of future medical expenses, would promote the constitutional
right of
access to health care services, relied upon by the appellant. It was
also necessary to show how the appellant would make
provision in its
annual budget in the future for the indeterminate and intermittent
claims of claimants in the position of Wandile,
to ensure that their
right to medical treatment would not be denied. Numerous practical
difficulties which impinge upon these claimants’
right of
access to healthcare services are readily apparent. Where emergency
treatment is required the appellant’s obligation
to make
payment only within 30 days of the presentation of a quote, would in
most cases frustrate vital treatment. Where the appellant
declined to
accept the quote, the claimant would be forced to institute action.
The result would be a plethora of actions against
the appellant with
the concomitant denial of medical treatment to claimants. It is no
answer to these concerns for appellant’s
counsel to submit that
they could be allayed by carefully crafted court orders. There is
accordingly no evidence to show that the
‘once and for all’
common law rule requires development in the manner suggested by the
appellant. It has not been shown
that the ability of the appellant to
discharge the constitutional obligation of providing everyone with
access to health care services,
would be compromised by an obligation
to pay damages for Wandile’s future medical expenses, by way of
a lump sum payment
of R19 970 631.
[12]
In
any event, in exercising their power to develop the common law,
judges have to be ‘mindful of the fact that the major engine
for law reform should be the Legislature and not the Judiciary’.
[5]
‘The judiciary should
confine itself to those incremental changes which are necessary to
keep the common law in step with
the dynamic and evolving fabric of
our society’.
[6]
The
development of the common law sought by the appellant is not an
incremental change, but one of substance and more appropriately
dealt
with by the legislature, being an issue of policy. Any legislated
change in the common law rule could only be effected after
the
necessary process of public participation and debate.
[7]
[13]
This
conclusion renders it unnecessary to consider two further issues
raised by the respondent. These were whether the form of the
order
granted by Claassen J, as well as the provisions of Regulation 8.2.3
promulgated in terms of
s 76
of the
Public Finance Management Act 1
of 1999
, precluded the grant of the relief sought by the appellant.
[14]
The
appellant, in support of an argument that patrimonial damages need
not necessarily be calculated in money terms, relied upon
a rule of
indigenous law that cattle may be awarded as damages.
[8]
In the appellant’s heads of argument it was submitted on this
basis that the appellant could provide for the medical needs
of
Wandile. Where this was not possible, the appellant should be
directed to pay the necessary medical costs. The obligation to
compensate Wandile would be satisfied by the provision of the
necessary medical treatment, and not by the payment of a monetary
award. Counsel for the appellant, however, correctly conceded that
this was not an issue in the appeal. It had not been pleaded
by the
appellant, nor argued by either party and had not been considered by
the court a quo. The appellant’s case remained
one where money
was to be paid by the appellant to compensate Wandile, albeit in the
future when medical treatment was required
and the necessary quote
provided. Accordingly whether indigenous law is of relevance in the
present context, does not have to be
considered.
[15]
I
turn to consider the alternative issue, namely whether it should be
ordered that the amount awarded for future medical expenses,
be
excluded from the calculation, determination and payment of the
amount due to the respondent’s attorney, in terms of the
contingency fee agreement. The appellant submits that as a result of
the contingency fee agreement, the amount available for the
future
medical treatment of Wandile will be reduced, which is prejudicial to
the interests of Wandile. In addition, if the reduced
amount
available for Wandile’s future medical expenses is depleted,
Wandile will nevertheless be entitled to treatment in
public
hospitals controlled by the appellant. The complaint is that the
appellant will effectively pay twice for Wandile’s
medical
treatment.
[16]
The
appellant ostensibly basis this claim upon the provisions of s 28 of
the Constitution. Section 28(1)
(c)
provides that every child has the right to basic healthcare services,
whilst s 28(2) provides that a child’s best interests
are
paramount. What is immediately apparent, is that the right of Wandile
to health care services, is not compromised by the provisions
of the
contingency fee agreement. The appellant accepts that if the fund
provided for the payment of future medical expenses is
depleted,
Wandile will be entitled to treatment in a public hospital controlled
by the appellant. It is not the appellant’s
case that this
treatment will deprive other children of their right in terms of s
28(1)
(c)
to health care services. Indeed, no evidence was led by the appellant
to prove that this would occur. The appellant’s concern
is
solely a financial one.
[17]
The
appellant also relies upon what is referred to as the court’s
‘monitoring function’ in terms of the Contingency
Fees
Act 66 of 1997 (the Act) to vary the contingency fee agreement. The
appellant’s reliance upon a court’s ‘monitoring
function’ in terms of the Act is misplaced. It is clear that
‘upholding agreements between a litigant and a third party
who
finances the litigation for reward is also consistent with the
constitutional values underlining freedom of contract’.
[9]
In addition, s 2(2) of the Act provides that a practitioner’s
fees are determined by reference to ‘. . . the total
amount
awarded or any amount obtained by the client in consequence of the
proceedings concerned. . .’. No power is granted
to a court in
terms of the Act to alter this amount which forms part of the
contingency fee agreement. It should not be overlooked
that had it
not been for the contingency fee agreement, the respondent would not
have been able to obtain the judgment on behalf
of Wandile.
[18]
In
the result the following order is made:
The
appeal is dismissed with costs including the costs of two counsel.
K G
B Swain
Judge
of Appeal
Appearances:
For the Appellant:
V S Notshe SC (with A Phetho)
Instructed
by:
The
State Attorney, Johannesburg
The
State Attorney, Bloemfontein
For the
Respondent:
N Van der Walt SC (with M Coetzer)
Instructed
by:
Wim
Krynauw Attorneys, Johannesburg
Martins
Attorneys, Bloemfontein
[1]
Casely, NO v
Minister of Defence
1973 (1) SA 630
(A) at 642C-D.
[2]
Marine &
Trade Insurance Co Ltd v Katz NO
1979 (4) SA 961
(A) at 970E-G.
[3]
This issue has
been unsuccessfully raised by the appellant in a plethora of cases
in the high court, too numerous for their individual
citation in
this judgment.
[4]
Carmichele v
Minister of Safety and Security & another (Centre for Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) para 40.
[5]
Carmichele
supra
para 36.
[6]
R
v
Salituro
(1992) 8 CRR (2d) 173;
[1991] 3 SCR 654
cited by Kentridge AJ in
Du
Plessis
& others
v
De
Klerk
& another
[1996] ZACC 10
;
1996 (3) SA 850
(CC) para 61.
[7]
The legislature
performed a similar role by the introduction of
s 17(4)
(b)
of the
Road Accident Fund Act 56 of 1996
, that allows future medical
expenses of road accident victims, to be catered for by an
undertaking to pay these expenses by the
fund.
[8]
Visser and
Potgieter
Skadevergoedingsreg
3
ed (2012) at 186 para 8.4 fn37. Reference is made to the cases of
Madolo
v Munkwa
1894
SC 181
and
Dantile
v M’Tirara
1892 SC 452
, where cattle were awarded as damages in accordance with
indigenous law.
[9]
Price
Waterhouse Coopers Inc & others v National Potato Co-operative
Ltd
2004
(6) SA 66
(SCA) para 44.