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[2019] ZAGPJHC 24
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N P obo N E v Member for the Executive Council for Health of the Gauteng Provincial Government (22473/2012) [2019] ZAGPJHC 24 (7 February 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 22473/2012
In
the matter between
:
N
P obo N
E Plaintiff
and
The
Member of the Executive Council for
For
Health of the Gauteng Provincial
Government Defendant
J
U D G M E N T
On
the separated issues
Van
der Linde, J:
[1]
This trial action is for the quantum of damages to be awarded to the
plaintiff on behalf of her minor son who, when he was born
on […]
September 2006, was left with cerebral palsy as a result of the
negligence of the medical staff at the Chris Hani
Baragwanath
Hospital. The Gauteng Department of Health, for whom the defendant is
nominally cited, is vicariously responsible for
the negligence of the
employees at the hospital. An order by Moshidi, J on 24 April 2017
determined liability in favour of the
plaintiff, and deferred the
remaining issues for later adjudication.
[2]
When the matter was called this past Monday, 4 February 2019,
plaintiff’s counsel opened her case. In the course of the
opening it appeared that there was potential for a separation of
issues under rule 33(4). The court adjourned after lunch on the
basis
that an application for separation would be prepared that afternoon
and launched the next day.
[3]
When the matter was called on Tuesday, 5 February 2019 plaintiff’s
counsel moved a separation application by agreement
between the
parties. Some enquiries satisfied me that the application was
appropriate, and I made an order in the terms suggested
by the
parties. The matter was then adjourned by agreement till Wednesday, 6
February 2019 for the parties to prepare heads of
argument on the
separated issues. The court reconvened on 6 February and heard
argument for the most part of the day. It adjourned,
and this
judgment was prepared to be given at 11h30 the next day, 7 February
2019.
[4]
The three issues separated are the following. First, having regard to
the order of Moshidi, J, is it open to the court to order
that the
defendant renders services and medial and related items instead of
paying the plaintiff an amount in money? Here paragraphs
4A.6 to
4A.18 of the plea as amended are affected.
[5]
The second and third issues are whether either
s.66
of the
Public
Finance Management Act 1 of 1999
, or
regulation 8.2.3
promulgated
under that Act, respectively, or both, preclude the court from
ordering that the state renders services and medical
and related
items in the future, or pays the claim in instalments in the future,
as pleaded by the defendant. Paragraphs 4A.6 to
4A.18, and 4A.19 to
4A.36 of the plea are implicated here.
[6]
The first issue involves an interpretation of the order of Moshidi,
J. I was informed from the Bar that the matter was argued
before his
lordship on a stated case basis. The order appears at page 57 of the
pleadings bundle. The learned judge, acting under
rule 33(4)
, first
separated the issue of liability from the issue of the determination
of the quantum of the claim. He then postponed sine
die the issue of
the determination of the quantum of the plaintiff’s claim. Next
he directed the defendant “
to pay to the plaintiff 100%”
of the plaintiff’s agreed or proven damages. The words in
italics are the contentious ones.
[7]
The defendant’s plea as formulated in the stated paragraphs is
that the defendant is in a position to render the hospital,
medical
and related services that form part of the plaintiff’s claim at
state hospitals at an acceptable quality, and the
court should
therefore order the defendant to ensure that such services are
rendered in that way instead of damages being paid.
It asks the court
to develop the common law, so as to enable the defendant to fulfil
its constitution obligation under s.27 of
the Constitution. The
plaintiff argues that there is no scope in law for these contentions;
in other words, she is effectively
submitting that that defence is
excipiable as disclosing no defence. The plaintiff’s argument
is based both on the doctrine
of res judicata and on an
interpretation of the express words of the order, specifically the
words, “to pay.”
[8]
As I see it, the defence of res judicata implies at least that an
earlier court will have decided the very issue raised on its
merits.
Here that has by definition not occurred. Moshidi, J expressly
separated the quantification of damages from the liability
issue; and
he decided only the liability issue. There is no written judgment;
but the learned judge’s separation of the liability
issue from
the quantification issue, and the court’s endeavour of deciding
only the former and deferring the latter, seems
to me to be
destructive of the defence of res judicata so far as it pertains to
the quantification issue.
[9]
Take the issue of payments in instalments, a defence raised by the
defendant later on in its plea, and an issue again dealt
with below.
The wording in the Moshidi, J order of “to pay” cannot
preclude an argument that his lordship did not decide
that the
damages must necessarily be paid in one lump sum. So it seems to me
that the “
text, context and purpose”
(a concept on
which I expand below) of the court order was that his lordship
concerned himself only with the question of liability,
and not in any
way with the question of the quantification of the damages. The
replication of res judicata therefore cannot succeed.
[10]The
second point argued by the plaintiff underscored the clear language
of the order, and in particular the words, “to
pay”. Here
the plaintiff relied on
COOPERS
& LYBRAND AND OTHERS v BRYANT,
[1]
in
which the court stressed what it referred to as the “
Golden
Rule”
of interpretation, which was that the ordinary grammatical meaning of
words was to be applied, unless it led to absurdity.
[11]This
judgment was indeed the vade mecum of interpretation for many years.
But that changed relatively recently with the judgment
of the same
court in
BOTHMA-BATHO
TRANSPORT (EDMS) BPK v S BOTHMA & SEUN TRANSPORT (EDMS) BPK,
[2]
which expressly held that Bryant was no longer consistent with our
law. This is what that court said (emphasis supplied):
“
[12] That
summary is no longer consistent with the approach to interpretation
now adopted by South African courts in relation to
contracts or other
documents, such as statutory instruments or patents.
Whilst
the starting point remains the words of the document, which are the
only relevant medium through which the parties have expressed
their
contractual intentions, the process of interpretation does not stop
at a perceived literal meaning of those words, but considers
them in
the light of all relevant and admissible context, including the
circumstances in which the document came into being
. The
former distinction between permissible background and surrounding
circumstances, never very clear, has fallen away. Interpretation
is
no longer a process that occurs in stages but is 'essentially one
unitary exercise'. Accordingly it is no longer helpful to
refer to
the earlier approach.”
[12]
What may, with respect, be added to this new approach, is the role
played by the Constitution in the interpretation process.
As was said
in
SATAWU
AND ANOTHER v GARVAS AND OTHERS,
[3]
“
[37] This court
has previously held that an interpretation of a statutory provision
that gives rise to an absurdity or irrationality
should be avoided
where there is another reasonable construction which may be given to
that provision. In other words, where a
legislative provision is
reasonably capable of a meaning that keeps it within
constitutional bounds, a court must, through
the use of legitimate
interpretive aids, seek to preserve that provision's constitutional
validity. Thus, to the extent that
it is possible, s 11(2) must
be interpreted in a manner that yields a rational meaning and
preserves its validity, so that the
purpose it was enacted to
serve is realised.”
[13]
This interpretative approach has been described as a consideration of
the “
text,
context and purpose”
of the instrument being examined; see
BETTERBRIDGE
(PTY) LTD v MASILO AND OTHERS NNO.
[4]
See
also
NATAL
JOINT MUNICIPAL PENSION FUND v ENDUMENI MUNICIPALITY;
[5]
AMCU AND
OTHERS v CHAMBER OF MINES OF SOUTH AFRICA AND OTHERS:
[6]
“
All
interpretations of law are themselves in a sense 'factual': certain
textual and other sources (for example, statutes, common
and
customary law) are excavated and marked out as factually 'law', in
contradiction to non-law. But this process itself involves
a
contextual analysis of those sources. See in this regard Natal Joint
Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA)
([2012]
2
All SA 262
;
[2012]
ZASCA 13)
para 18.
Indeed, interpretation and application are simultaneous and
intricated. The most imaginative exponent of this insight is
Ronald
Dworkin. See Dworkin Law's Empire (Harvard University Press 1986) at
vii: 'Legal reasoning is an exercise in constructive
interpretation'
in which we advance 'the best justification of our legal practices as
a whole'.”
[14]
Applying this approach to the court order, instead of fixating on the
words “to pay”, seems to me to justify the
inference that
the Moshidi court deliberately turned its attention away from the
quantification of the defendant’s obligation
to compensate the
plaintiff in respect of her damages. In the context, it seems to me
rather that the words “to pay”
is loose language
for the concept that the defendant was being order to compensate the
plaintiff for all of her damages, no matter
what that may come to.
[15]Put
differently, the focus of that paragraph of the court order was not
to deal with how the damages should be compensated,
but rather with
whether the defendant was at all liable to compensate the plaintiff.
That issue was separated out for prior determination,
and that issue
was determined fully in favour of the plaintiff.
[16]The
first issue is thus decided in favour of the defendant.
[17]The
second and third issues implicate not only the plea that the court
should order the defendant to render medical and related
services to
the plaintiff in lieu of a monetary compensation; they implicate also
the plea that if the defendant is ordered to
pay monetary
compensation, the appropriate portions of such compensation should be
paid in instalments and only for so long as
the injured boy is alive.
[18]It
will be appreciated that the plea potentially raises potentially
other aspect of our law, such as the transmissibility of
damages,
patrimonial and non-patrimonial, an aspect which was fully examined
by a full court of this seat of the Gauteng Division
in
NKALA
AND OTHERS v HARMONY GOLD MINING CO LTD AND OTHERS.
[7]
[19]As
to the imperative to develop the common law, this is what the Nkala
full court said about a court’s duty in that regard
(emphasis
supplied):
“
[199]
In
South Africa this responsibility to reform and refocus the common law
in order to keep it 'abreast of current social conditions
and
expectations' is entrenched in the Constitution, with the added
obligation that the judges do so in a manner that it is consistent
with, and gives expression to, the rights articulated in the Bill of
Rights.
Sections 8(3) and 39(2) of the Constitution
explicitly enjoin the court to develop the common law to the extent
that it is necessary
to make it consistent with the values enshrined
in the Constitution, especially those explicitly mentioned in the
Bill of Rights.
Thus, it is the constitutionally imposed
duty of this court to develop the common law in order to harmonise it
with the Bill of
Rights
. The development must reflect the
'spirit, purport and objects of the Bill of Rights'. We are
duty-bound to develop the common
law so that it does not 'deviate'
from the 'spirit, purport and objects of the Bill of Rights'.
It
is a duty we cannot abdicate
.”
[20]It
is necessary, for a decision on the second and third points, to quote
s.66 and Treasury Reg.8.2.3 of the PFMA (emphasis supplied):
“
66
Restrictions on borrowing, guarantees and other commitments
(1) An
institution
to which this Act applies may not
borrow money or issue a
guarantee, indemnity or security, or
enter into any other
transaction that binds or may bind that institution or the Revenue
Fund to any future financial commitment
, unless such borrowing,
guarantee, indemnity, security or other transaction-
(a)
is authorised by this Act;
(b)
in the case of public entities, is also authorised by other
legislation not in conflict with this Act; and
(c)
in the case of loans by a province or a provincial government
business enterprise under the ownership control of a provincial
executive, is within the limits as set in terms of the Borrowing
Powers of Provincial Governments Act, 1996 (Act 48 of 1996).
[Para. (c) added by s.
37 (a) of Act 29 of 1999 (wef 1 April 2000).]”
“
8.2
Approval
of expenditure
[Section 38(1)(f) and 76(4)(b) of
the PFMA]
8.2.1 An official of
an institution may not spend or commit public money except with the
approval (either in writing or by duly
authorised electronic means)
of the accounting officer or a properly delegated or authorised
officer.
8.2.2 Before approving
expenditure or incurring a commitment to spend, the delegated or
authorised official must ensure compliance
with any limitations or
conditions attached to the delegation or authorisation.
8.2.3 Unless
determined otherwise in a contract or other agreement, all payments
due to creditors must be settled within 30 days
from receipt of an
invoice or, in the case of civil claims, from the date of settlement
or court judgement.”
[21]The
competing arguments here were put up against the backdrop of what was
described as two common law rules: the once and for
all rule, and the
rule that damages must be determined in a globular amount, and then
paid in one tranche. The plaintiff argued
that any future development
of the common law pursuant to s.173 of the Constitution in the manner
suggested by the defendant’s
plea and as presaged by the
Constitutional Court in
MEC
FOR HEALTH AND SOCIAL DEVELOPMENT, GAUTENG v DZ OBO WZ
[8]
was
precluded by these statutory provisions.
[22]Specifically,
the argument was that the compensation of a plaintiff by the
rendering of services into the future, as well as
the payment of any
money compensation in instalments payable into the future, are
precluded by the express provisions of s.66 of
the PFMA which require
that “any transaction” involving future commitment is to
comply with the provisions of that
section; and by the express
provisions of reg.8.2.3 requiring that all payments due to creditors
must be settled within 30 days
from the date of court judgement.
[23]In
regard to the development of the common law in the way the defendant
sees it, Froneman, J said in DZ (footnotes omitted):
“
[44] In logic
and principle compensation in a form other than money does not appear
to be incompatible with the aim of making good
'the difference
between the actual position that obtains as a result of the delict,
and the hypothetical position that would have
obtained had there been
no delict'. To require compensation in money as the 'measure of all
things' therefore appears to be an
evaluative normative choice. Does
the common law's choice in this regard offend the normative
underpinnings of our legal order?
[45] In general terms
this seems doubtful. Neither the Constitution nor the realities of
modern life oblige us to find that money
cannot be the measure of
things. But it is arguable that the fundamental right of everyone to
have access to healthcare services
and the state's obligation to
realise this right by undertaking reasonable measures introduce
factors for consideration that did
not exist in the
pre-constitutional era. Aligned to this is 'the ever-increasing shift
from the classical model of individual loss-bearing
towards a
collectivisation of losses' that is reflected in the 'gradual
absorption of [delict] law, or at least large parts of
it, into the
modern social-security system'.
[46] The 'once and for
all' rule is derived from English law and is said to be so entrenched
in our law that it is not possible
to oppose it on historical
grounds. But, as in the case of the entrenched rule that compensation
must always be paid in money,
the Constitution does not absolve us
from interrogating our history and whether the legal norms of the
past still fit in with those
of the Constitution.”
[24]These
same sentiments were expressed in regard to payment of a money award
in instalments in the future. And the learned Justice
concluded:
“
[56] We must
remind ourselves again of the context in which the argument for
development of the common law is made here. We are
not called upon to
decide the fate of the 'once and for all' rule in all personal injury
cases arising from medical negligence.
The most important future
imponderable is the ultimate one: death. Periodic payments subject to
a 'top-up/claw-back' will give
less speculative expression to the
general principle of compensation for loss. And the likelihood of a
dependant's claim, which
might present problems in other cases, is
less, if not entirely absent, here.
[57] We have seen, in
this regard, that any development of the common law requires factual
material upon which the assessment whether
to develop the law must be
made. Here that factual material is absent. The only possible factual
foundation for an argument that
the common law must be developed is
the mere fact that WZ was born in a public healthcare institution and
that is where the medical
negligence occurred. This is woefully
inadequate to ground development of the common law in the manner
sought by the Gauteng MEC.
The appeal must fail, for that reason.
[58] But the failure
of the appeal does not mean that the door to further development of
the common law is shut. We have seen that
possibilities for further
development are arguable. Factual evidence to substantiate a
carefully pleaded argument for the development
of the common law must
be properly adduced for assessment. If it is sufficiently cogent, it
might well carry the day.”
[25]
It must be accepted then that the scope for development of the common
law in this specific field of delictual liability exists,
but that –
self-evidently – the endeavour cannot be mounted without a case
in fact having been made for it. And that
is what the defendant seeks
to do, and what the plaintiff says is precluded by the two statutory
provisions on which she relies.
[26]
As I see it, applying the approach of text, context and purpose,
neither provision relied upon by the plaintiff set out to
limit the
power of courts to apply the law as they find it, including as they
might develop it, in the field of quantifying delictual
damages. The
text does not say so; the context does not add anything; and
certainly the purpose of the two provisions was not to
attain that
consequence.
[27]As
to text: take s.66 of the PFMA. It concerns itself with
“transactions” to which relevant institutions are
parties.
Now undoubtedly “transaction” is a word of wide
import, but it can hardly be suggested that it includes a court
judgment
and order, if only for the reason that the former implies
consensual activity on the part of the institution concerned and the
latter not. Take reg. 8.2.3: it does not say anything about what a
court order might or might not entail. What it says, is that
–
whatever the court order says – the obligation in the court
order must be satisfied within 30 days of the date of
the court
order. There is scope for the proposition that that applies only when
the court order is silent as to when payment must
be made, so that if
the court order says payment must be made within ten days, that must
be complied with. But that question need
not be explored further,
because it was not addressed before me.
[28]
As to context: s.66 seeks to regulate any freewheel borrowing or the
entering into of other commitments by state institutions.
It
therefore seeks to impose financial constraints on government. Its
focus is not the imposition of constraints on orders that
courts of
law may make. Reg.8.2 is concerned with the approval of expenditure,
and the timeous payment of debts. It has nothing
to do with
limitations on order a court may make.
[29]
As to purpose: s.66 aims to achieve responsible government, not to
hamstrung courts. And reg.8.2.3 is no different.
[30]
For these reasons the plaintiff’s submissions concerning the
reach of the two contentious statutory provisions cannot
be accepted,
and the second and third separated issues must also be decided in the
defendant’s favour. Since the separation
and the issues are
part of the trial, I make no order as to costs.
[31]In
the result I make the following order:
(a) The terms of the
order of Moshidi, J dated 24 April 2017 do not preclude this court
from ordering that the defendant renders
services and medical and
related items instead of paying to the plaintiff an amount of money.
(b) S.66 of the PFMA does
not preclude this court from making orders that the state renders
services and medical and related items
in the future, or pay the
claim in instalments in the future, as pleaded by the defendant in
paragraphs 4A.6 to 4A.18, and 4A.19
to 4A.36.
(c) Reg.8.2.3 of the
Treasury Regulations promulgated under the PFMA does not preclude
this court from making orders that the state
renders services and
medical and related items in the future, or pay the claim in
instalments in the future, as pleaded by the
defendant in paragraphs
4A.6 to 4A.18, and 4A.19 to 4A.36.
(d)
No order as to the costs of the application for separation of issues,
and as to the determination of the separated
issues, is made.
WHG
van der Linde
Judge,
High Court
Johannesburg
Date
argued: 06 February 2019
Date
judgment: 07 February 2019
Counsel
for the Plaintiff
Adv.
N van der Walt, SC
With
him
Adv.
P Uys
Instructed
by
Wim
Krynauw Attorneys
Plaintiff’s
Attorneys
6th
Floor, Marbe Towers
208/212
Jeppe Street
Johannesburg
Tel:
011 955 5454
Fax
:011 9552547
Ref:MEC
0007/LS/RB/LW
Counsel
for the Defendant
Adv.
V Soni, SC
With
him
Adv.
L Mtukushe
Instructed
by
The
State Attorney
Defendant’s
Attorney
10th
Floor, North State Building
94
Albertina Sisulu Street
Johannesburg
Tel:
011 330 7785
Fax:
011 330 7185
Ref:
T Mantlhwa/P50/PM/4488/12/P50/pm
[1]
[1995] ZASCA 64
;
1995
(3) SA 761
(A)
.
[2]
2014
(2) SA 494
(SCA)
.
[3]
2013
(1) SA 83
(CC)
.
[4]
2015
(2) SA 396
(GP)
.
[5]
2012
(4) SA 593
(SCA)
at [18].
[6]
2017
(3) SA 242
(CC) at
footnote 28 per Cameron, J.
[7]
2016
(5) SA 240
(GJ) at [176] ff.
[8]
2018
(1) SA 335
(CC).