Mashinini v Member of the Executive Council for Health, Gauteng Province (1352/2017) [2021] ZAGPJHC 26 (11 March 2021)

80 Reportability

Medical Law

Brief Summary

Application for leave to appeal — Plaintiff sought leave to appeal against findings regarding the 'Public Healthcare Defence' and the quantification of general damages — Plaintiff contended that the trial court erred in ordering that future medical expenses be provided by the defendant instead of being paid in cash, and in awarding R450,000 for general damages — Court granted leave to appeal in part, specifically on the Public Healthcare Defence, but dismissed the appeal regarding the quantification of general damages, finding no reasonable prospect of success on that issue.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an application for leave to appeal brought in the Gauteng Local Division, Johannesburg. The application was determined by Adams J and was heard and delivered on 11 March 2021 by way of a virtual hearing and electronic hand-down.

The plaintiff, Ms Nomgqibelo Nelly Mashinini, sought leave to appeal against specified portions of a prior judgment and order granted on 25 January 2021 in her action for delictual damages against the defendant, the Member of the Executive Council for Health, Gauteng Province. Although the underlying merits of the delict claim are not revisited in this judgment, the leave-to-appeal decision is directed at the trial court’s conclusions on remedy and quantum flowing from that earlier decision.

The dispute at the leave stage concerned two discrete aspects of the trial court’s order. The first related to the defendant’s successful reliance on what the judgment termed the “Public Healthcare Defence”, namely that the plaintiff should receive certain future medical and surgical treatment in the public healthcare system at Charlotte Maxeke Johannesburg Academic Hospital rather than being compensated in money for those future costs. The second related to the quantification of general damages, which the trial court had fixed at R450 000.

In procedural terms, the court was required to determine whether the plaintiff met the statutory threshold for leave to appeal under section 17 of the Superior Courts Act 10 of 2013, and if so, to which appellate forum the appeal should be directed.

2. Material Facts

The material facts, as relied upon by the court for purposes of deciding leave to appeal, were those contained in and arising from the trial court’s earlier judgment of 25 January 2021 and the plaintiff’s challenge to identified components of that outcome.

It was common cause for purposes of this application that, in the main action, the trial court had made an order giving effect to the defendant’s Public Healthcare Defence in relation to certain future medical expenses claimed by the plaintiff. The practical effect of that order was that, instead of payment of damages for future surgical costs and treatment quantified at R879 314, the plaintiff would be rendered or provided those services by the defendant at Charlotte Maxeke Johannesburg Academic Hospital.

It was also common cause that the trial court had awarded the plaintiff general damages in the amount of R450 000, and that the plaintiff sought leave to appeal against that quantification.

The plaintiff’s challenge to the Public Healthcare Defence rested on the contention that the trial court had, on the evidence, wrongly found that the required treatment was available within the public system at the same or a higher standard than private care, and that the trial court had allegedly disregarded the plaintiff’s evidence (including expert evidence referred to in the judgment) and the asserted absence of evidence from the defendant. The plaintiff further contended that the order was inconsistent with an earlier order in terms of which the defendant had been held liable to pay the plaintiff’s damages.

In relation to general damages, the plaintiff’s challenge was that the award was substantially out of line with what should have been awarded when regard is had to the facts and to awards in comparable matters. The judgment treated this as a complaint directed at whether the trial court’s discretion had been improperly exercised to a degree warranting appellate interference.

3. Legal Issues

The central legal questions were directed at the statutory and common-law criteria governing leave to appeal and the appropriate appellate forum.

The first issue was whether the plaintiff had established that an appeal would have a reasonable prospect of success as required by section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, in respect of each challenged component of the trial court’s decision, namely the Public Healthcare Defence and the quantum of general damages.

The second issue was whether, if leave were granted, the appeal should be directed to a full court of the Division or to the Supreme Court of Appeal, applying section 17(6)(a) of the Superior Courts Act. This entailed a value judgment as to whether the matter involved a question of law of importance and whether the administration of justice required consideration by the Supreme Court of Appeal.

Although the leave-to-appeal enquiry is not an appeal on the merits, the dispute necessarily involved the application of legal standards to the trial court’s findings, and, in relation to the Public Healthcare Defence, it implicated a broader legal question concerning the compatibility of a remedy in kind with traditional delictual principles (including the “once-and-for-all” approach to damages), as framed in the judgment.

4. Court’s Reasoning

The court approached the application by first identifying that the plaintiff sought leave to appeal against the trial court’s findings and conclusions relating to the Public Healthcare Defence and the quantification of general damages. The court noted that the plaintiff’s submissions did not raise materially new issues beyond those addressed in the main judgment, but the enquiry at this stage remained whether the statutory threshold for leave had been met.

In applying the leave-to-appeal test, the court emphasised that the traditional “reasonable prospect that another court may come to a different conclusion” test has been codified in section 17(1)(a)(i), which requires the judge to be of the opinion that the appeal would have a reasonable prospect of success. The court accepted the view, supported by authority, that the enactment of section 17 has raised the bar for the granting of leave to appeal, making the threshold more stringent than under the repealed Supreme Court Act 59 of 1959.

On the Public Healthcare Defence, the court concluded that the plaintiff had identified issues on which another court was likely to reach different conclusions. This satisfied the court that there were reasonable prospects of success on appeal in respect of that part of the judgment. The reasoning reflects the court’s acceptance that, notwithstanding its own view in the main judgment that the evidence supported the availability of the relevant specialist services in the public system at no or lesser cost than private care, the questions raised by the plaintiff were sufficiently substantial to warrant appellate reconsideration.

On the general damages component, the court applied the principle that a trial court enjoys a wide discretion in determining general damages and that an appellate court is slow to interfere. The judgment stated the established approach that interference is justified only where there is a substantial variation and striking disparity between the award made and the award that the appellate court would have made. Applying that standard, the court was not persuaded that another court was likely to award a different amount, and therefore held that the proposed appeal on general damages lacked reasonable prospects of success.

As to the appropriate forum, the court considered section 17(6)(a) and concluded that the matter fell within the proviso requiring referral to the Supreme Court of Appeal rather than a full court. The judgment characterised the relevant question as one of law of importance with general application, namely whether the common law has developed to the point that, in certain circumstances, delictual compensation may properly be ordered in kind instead of in cash, in the context of the once-and-for-all rule. The court also expressed the view that the administration of justice, particularly in medical negligence matters, warranted consideration by the Supreme Court of Appeal.

5. Outcome and Relief

The court granted leave to appeal in part. Leave was granted against the portion of the judgment and order of 25 January 2021 that upheld the Public Healthcare Defence and directed that the plaintiff receive future surgical costs and treatment (quantified at R879 314) by being rendered or provided such services at Charlotte Maxeke Johannesburg Academic Hospital, instead of receiving payment in money.

The court directed that the appeal be heard by the Supreme Court of Appeal.

The costs of the application for leave to appeal, insofar as leave was granted on the Public Healthcare Defence, were ordered to be costs in the appeal.

The plaintiff’s application for leave to appeal against the portion of the judgment and order relating to the quantification of general damages (R450 000) was dismissed with costs.

Cases Cited

MSM obo KBM v Member of the Executive Council for Health, Gauteng Provincial Government 2020 (2) (SA567) (GJ).

Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (Land Claims Court) (unreported).

Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).

Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC 489 (24 June 2016).

Legislation Cited

Superior Courts Act 10 of 2013, section 17(1)(a)(i).

Superior Courts Act 10 of 2013, section 17(6)(a)(i)–(ii).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the plaintiff met the statutory threshold for leave to appeal under section 17(1)(a)(i) of the Superior Courts Act 10 of 2013 in respect of the trial court’s acceptance of the Public Healthcare Defence, because there were reasonable prospects that another court would reach different conclusions on that issue.

The court held that the plaintiff did not meet the leave-to-appeal threshold in respect of the quantum of general damages, because the assessment of general damages is discretionary and the plaintiff had not shown reasonable prospects that an appellate court would find a substantial variation or striking disparity warranting interference.

The court further held that the appeal, insofar as leave was granted, should be directed to the Supreme Court of Appeal under section 17(6)(a), on the basis that the matter involved a question of law of importance and that the administration of justice required consideration by that court.

LEGAL PRINCIPLES

The judgment applied the principle that leave to appeal may be granted only where the judge is of the opinion that the appeal would have a reasonable prospect of success, as required by section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, and that this statutory formulation imposes a higher and more stringent threshold than the earlier common-law approach.

The judgment applied the principle that appellate courts are slow to interfere with a trial court’s award of general damages, because such an award involves a wide discretion. Interference is justified only where there is a substantial variation and a striking disparity between the award made and what the appellate court would have awarded.

The judgment applied the principle in section 17(6)(a) of the Superior Courts Act 10 of 2013 that, where leave is granted from a decision of a single judge, an appeal should ordinarily be directed to a full court unless the matter involves a question of law of importance or the administration of justice requires consideration by the Supreme Court of Appeal. In this case, the court treated the question whether delictual compensation may, in certain circumstances, be ordered in kind rather than by monetary payment (in light of the once-and-for-all approach) as a question of law of importance warranting referral to the Supreme Court of Appeal.