TN obo BN v Member of the Executive Council for Health, Eastern Cape (36/2017) [2023] ZAECBHC 3; 2023 (3) SA 270 (ECB) (7 February 2023)

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[2023] ZAECBHC 3
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TN obo BN v Member of the Executive Council for Health, Eastern Cape (36/2017) [2023] ZAECBHC 3; 2023 (3) SA 270 (ECB) (7 February 2023)

HEADNOTE:
PUBLIC
HEALTHCARE REMEDY
Medical
negligence – Future medical expenses – Public
healthcare remedy – Reasonable standard of such
services is
that that available in the public sector – Common law
developed to accommodate the public healthcare
and undertaking to
pay remedies.
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION: BHISHO
Reportable
Case
No:  36/2017
In
the matter between:
TN
obo BN
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE
COUNCIL
FOR HEALTH, EASTERN CAPE
Defendant
JUDGMENT
GRIFFITHS
J:
[1]
According to the Code of Hammurabi
[1]
a physician who in Babylonian times operated on a man with a severe
injury and caused his death, had his fingers cut off.
[2]
Our modern law is, fortunately, less severe on physicians as it
requires reparation in the form of lump-sum monetary compensation

which is assessed on a once and for all basis. The defendant in this
matter alleges that this common law principle has the result
that
this claim, together with many others similar to it, costs the
provincial government an arm and a leg.
[2]
The plaintiff, acting in her representative capacity as mother of the
minor child
BN, has sued the defendant for damages arising from the
negligent conduct of medical staff in a public hospital falling under
the
aegis of the defendant. She alleged that BN suffered severe
injuries during his birth as a result of negligence on the part of
the defendant’s servants. This much has been conceded by the
defendant and this court is called upon to determine an appropriate

remedy. In the normal course, based on the common law as it presently
stands, such remedy would subsist in the payment of a lump
sum duly
assessed in accordance with the common law rules relating to the
various claimed heads of damage.
[3]
The defendant has however pleaded a novel combination of remedies not
falling within
the common law rules, which require an assessment of
such damages in monetary terms on a once and for all basis. These
remedies
are what has come to be known as the “public
healthcare remedy” and the “undertaking to pay remedy”
and
are often referred to as “the DZ defences”. In
advancing various arguments in support thereof, the defendant has
contended
that instead of draining the public healthcare system of a
massive lump-sum award for potential future medical care that BN may

or may not ultimately use, the defendant wishes to provide such care
to him as and when he needs it, if not by the department directly,

then paid for in the private sector as the need therefor arises.
[4]
BN is 11 years of age, and his life expectancy is 22.8 years. When
these proceedings
were instituted, he and the plaintiff lived in
Mdantsane Township, which is close to Cecilia Makiwane Hospital
(“CMH”)
where he was born. His birth followed a period of
prolonged labour and he suffered a brain injury. He has spastic
quadriplegic
cerebral palsy (“CP”), microcephaly,
intellectual impairment and epilepsy. He is hearing and visually
impaired and
has a percutaneous endoscopic gastrostomy (“PEG”)
tube for feeding. He is incontinent and will remain so for life.
Consequently, he has poor head control, is unable to sit, roll,
crawl, stand, walk, or speak. He is furthermore dependent on mobility

transfers and positioning. He is also dependent regarding the general
activities of daily living such as bathing, dressing, general

hygiene, eating and drinking.
[5]
He is classified at level five on the Gross Motor Function
Classification System and
level five on the Manual Ability
Classification System. These are both at the most disabled end of the
spectrum. He has an extremely
low cognitive function and is not
expected to improve. Furthermore, he is unemployable in the open
labour market and thus has suffered
a total loss of earning capacity.
Despite all this, he remains a child that deserves to play and learn.
[6]
The plaintiff has claimed an amount of R 35,489,921.00 on behalf of
BN comprising:
6.1
R30,523,518.00 in future medical care, medical and related
expenses;
6.2
R386,087.00 in future loss of earnings, alternatively earning
capacity;
6.3
R1,800,00 0.00 in general damages;
6.4
R2,780,316.00 representing 8.5% of the total award to protect
and administer
the award.
Settled
Issues
[7]
General damages have been settled in the sum of R 1,800,000.00.
[3]
Loss of earning capacity has likewise been settled in an amount of
R386,146.00. It has further been agreed that an amount of R650,000.00

is to be paid for an adapted motor vehicle on the basis that the
plaintiff will be responsible for ensuring BN’s attendance
at
various consultations and for other medical or surgical requirements.
[8]
In relation to the claim for future medical expenses and supplies the
defendant has
pleaded the public healthcare and undertaking to pay
remedies as were recognized in an obiter dictum by the Constitutional
Court
in
DZ.
[4]
Regarding the claim for protection and administration of the award,
the defendant has contended that, should the DZ defences be
upheld,
the limited amounts payable as lump sums after the application of
such remedies will not justify this.
[9]
In the event of this court rejecting the DZ defences, the parties
have reached agreement
on most of the medical services and supplies
that are required by BN, and the amount payable in respect of each
such service or
supply. These matters have come to be settled over
time and are reflected in a document referred to as annexure “A”

to the pre-trial conference minute.
[5]
It is not necessary to repeat the details thereof in this judgment.
Also, in this event, issues relating to the protection of the
lump
sum award in the form of a trust will have to be further addressed.
Disputed
issues
[10]
The following matters remain in dispute relating to their nature,
frequency, duration, quantity,
cost etc. irrespective of whether the
DZ defences are upheld:
10.1
BN’s caregiving requirements;
10.2
Occupational Therapy;
10.3
Physiotherapy;
10.4
Home alteration costs to accommodate his disability;
10.5
Whether he requires a transporter buggy in addition to a
wheelchair
[6]
;
10.6
Case management.
[11]
As indicated earlier, the claim for cost of protection and
administration of the award likewise
remains in dispute.
[12]
It will have become apparent from the foregoing that the question of
the DZ defences forms a
central issue in this case. In this regard it
is necessary to consider whether the common law should be developed
to accommodate
such remedies, it being common cause that without such
development they cannot be sustained. Should it be concluded that the
common
law ought to be so developed, there is also an issue as to the
appropriate standard at which the hospitals (in this case CMH and

Frere Hospitals (“Frere”)) should be able to provide such
services in order to determine whether the public healthcare
remedy
can be sustained: a reasonable standard, an acceptably high standard,
or a standard equivalent to that in the private healthcare
sector.
[13]
Should these questions be determined in favour of the defendant, it
is then further necessary
to establish which of the disputed services
and supplies the plaintiff has established as being necessary and the
type, amounts
and frequencies thereof. Finally, it will be necessary
to determine whether the required medical services and supplies
should be
provided in terms of the public healthcare remedy to the
extent that the defendant has proved that she is able to do so
according
to the determined standard (or a lesser range of services
and supplies) or in terms of the undertaking to pay remedy.
[14]
Before I consider these questions, it is necessary to deal with
certain preliminary skirmishes
relating to the evidence led, the
determination of which will affect my approach to the core issues. A
dispute has arisen as to
the burden of proof regarding the DZ
defences. Disputes have also arisen regarding the admissibility of
certain evidence.
The
burden of proof
[15]
There is consensus that, absent the plea relating to the DZ defences,
the plaintiff bears the
onus of proving BN’s quantum of
damages. The problem arises regarding whether the plaintiff or the
defendant bears the overall
onus regarding the DZ defences. In this
regard, the plaintiff has argued that where the defendant seeks the
development of the
common law, it bears the onus of proving that such
development promotes the spirit, purport and object of the Bill of
Rights in
terms of section 39(2) of the Constitution, or is in the
interests of justice in terms of section 173 of the Constitution. The
defendant, on the other hand, contends that she bears an evidentiary
burden to rebut any
prima facie
case made out by the
plaintiff.
[16]
In developing the argument, plaintiff’s counsel pointed to the
fact that the Constitutional
Court in the
DZ
judgment did not,
in the ultimate analysis, extend the common law. It did not do so
because it concluded that, whilst it accepted
that the common law
could be so developed, there was insufficient evidence before the
court to make that determination. This, so
it was submitted, points
to the fact that the Constitutional Court, albeit
obiter
, was
of the view by necessary implication that the party pleading for an
extension of the common law bore an overall onus to prove
the
necessity therefor on a balance of probability.
[17]
In my view, this was not the only necessary implication.
DZ
can equally be read to have implied that in an instance where a
plaintiff has provided sufficient evidence to establish a
prima
facie
case regarding the damages claimed, an evidential onus is
cast on the defendant claiming an extension of the common law to
rebut
it. As I read
DZ,
there is no suggestion that this
resulted in a shifting of the overall burden of proof from the
plaintiff to the defendant. Stated
another way, whichever form of
onus the Constitutional Court may have had in mind in concluding that
there was insufficient evidence,
it would have come to the same
conclusion i.e. that there was insufficient evidence before it to
make a determination with regard
to an extension of the common law.
[18]
The plaintiff has further argued that the judgment in
Pillay
v Krishna & Another
[7]
is determinative of this issue. Davis AJA stated in that case that
where a person against whom a claim is made is not simply content
to
deny it but sets up a special defence, “then he is regarded
quoad that defence, as being the claimant; for his defence
to be
upheld he must satisfy the court that he is entitled to succeed on
it
.
”
[19]
The defendant has argued that the use of an onus in the context of
adjudicating a development
of the common law is not appropriate. The
Constitutional Court has never imposed such an onus and it is
ultimately a question of
law and not of fact as to whether the common
law should be developed. Furthermore, the Constitutional Court has
said that it has
the power to develop the common-law
mero
motu
after raising it with the parties and hearing argument on it.
[8]
In this regard, the Constitutional Court has also found that whilst
it may be preferable that the development of the common-law
sought
should be pleaded, the failure to do so does not preclude a litigant
from raising it in the Constitutional Court
[9]
and that indeed section 39(2) imposes a duty on the courts in this
regard, not a discretion.
[20]
The defendant has also contended that
DZ
,
which is the judicial
fons
et origo
of the defences pleaded in this case, indicated that in the context
of this particular development it is for the defendant to adduce

factual evidence to substantiate a carefully pleaded argument.
[10]
As against the background of the earlier cases dealing with this
aspect, this invocation appears to require the provision of a
factual
matrix to enable the court to evaluate the matter properly without
being saddled with the question of an onus.
[21]
In my view the submissions of the defendant in this regard must carry
the day. Whilst the argument
that these defences amount to special
defences in the sense referred to in
Pillay
appears at first
blush to have some merit
,
such special defences as referred to
therein generally involve a form of confession and avoidance whether
by way of a cession,
a contractual provision to exclude liability or
the like. The DZ defences do not fall within this category. It is
implicit in these
defences that the defendant not only admits
liability in full but is also intent upon ensuring that reparation
for the negligent
conduct is made. She however contends that such
reparation should be made in a more equitable fashion given the full
factual matrix
involved. In a sense, and as against the background
facts placed before the court, the court in extending the common law
in this
regard is stating, or interpreting, the law as it is in
accordance with the Constitution and its inherent norms and values.
This
does not seem to fall within the category of a special defence
in the sense referred to in
Pillay
.
[22]
Furthermore, it seems to me that
MSM
[11]
,
a case where Keightley J found on the facts of that case that the
common law ought to be extended regarding the public healthcare

defence, is authority for this view. In that case Keightley J said
that where the MEC provides sufficient cogent evidence to establish

that the identified services will be available in the future at the
hospital concerned at the same or higher level and at no, or
less,
cost to her than those available in the private sector, this will
establish “an evidentiary basis upon which to consider
whether
this is an appropriate case in which to develop the common-law
insofar as the MEC’s public healthcare defence is
concerned.”
[23]
Although
Ngubane
[12]
did not deal with the constitutional defences presently under
consideration in this case, it dealt with what has been referred
to
as the “mitigation of damages defence” which, in and of
itself, amounted to an incremental development of the common
law by
the then Appellate Division. It was made clear in that case that the
burden of proof did not shift to the defendant but
that the defendant
is required to adduce evidence in support of its contention –
an evidentiary onus
.
[13]
[24]
I accordingly conclude in this regard that once a
prima facie
case has been established by the plaintiff apropos her claim for
damages, and where the defendant pleads an extension of the common

law as in the present matter, the defendant bears an evidentiary onus
to rebut the
prima facie
case put up by the plaintiff.
Hearsay
evidence
[25]
The defendant has filed an application to admit the relevant medical
records in terms of section
3(1)(
c
)
of the Law of Evidence Amendment Act.
[14]
I do not understand the plaintiff to have pursued any opposition to
this. The application ultimately was persisted in only in so
far as
particular parts of the medical records were referred to in evidence
or in addressing the court during the trial.
[26]
In
AZ
[15]
,
Stretch J was faced with a similar application, albeit at the stage
of determining liability and not damages. She dealt fully
with the
requirements of the Act in this regard which in no small measure are
applicable to this matter. I agree with the sentiments
expressed
there, and based thereon am satisfied that a proper case has been
made out for the admission of the relevant documents.
Objections
to opinion/expert evidence
[27]
There are certain other preliminary issues relating to the evidence
which the parties agreed
would be argued at the end of the trial.
These are:
27.1
Whether Dr Wagner, the head of the defendant department, and
other witnesses in the employ
of the department have impermissibly
given opinion evidence that ought not to be admitted.
27.2
Whether certain articles and portions of a supplementary report
delivered by the plaintiff’s
expert economist, Prof. Van den
Heever, (and his corresponding testimony on these aspects) ought not
to be admitted.
27.3
Whether the evidence of Ms Caga in support of the plaintiff’s
rebuttal case is inadmissible
on the basis that it was not preceded
by an expert summary and amounts to hearsay.
[28]
Before dealing with these issues, it may be convenient at this stage,
so as to understand the
scheme, scope and extent of the evidence led
in the trial, to briefly and chronologically set out the evidence
which was led before
me. It is important to note that the parties
agreed (without any concession as to the onus of proof) that the
plaintiff would commence
leading her evidence relating to the
common-law claim issues which remain in contention. Thereafter, the
defendant would lead evidence
in rebuttal of the plaintiff’s
claim, together with evidence in support of the constitutional
defences. Finally, it was further
agreed that the plaintiff would be
entitled to lead evidence in rebuttal of the constitutional defences.
On this basis, the plaintiff
commenced by leading the evidence of
three expert witnesses:
28.1
Ms Heather Grace Hughes, the defendant’s expert
physiotherapist, testified with reference
to her medico-legal report,
dated 27 October 2018, and the joint minute between her and the
defendant’s expert.
28.2
Ms Thabisa Caga, the defendant’s expert occupational
therapist, testified with reference
to her medico-legal report dated
24 August 2018, her addendum report dated 15 June 2020 and the joint
minute filed by her and the
defendant’s expert.
28.3
Mr Bulelani Joel Ketsikile, the plaintiff’s expert
architect, testified as to his
report entitled “N[…]
Assessment Report”, a final version thereof and the joint
minute filed by Mr Ketsikile
and the defendant’s architect.
[29]
The defendant thereafter led the evidence of the following witnesses:
29.1
Doctor Rolene Margarette Wagner, the Head of Department of the
defendant department, testified
with reference to her factual witness
statement.
29.2
Doctor Gillian Margaret Saloojee, the defendant’s CP
expert and expert physiotherapist,
testified with reference to her
medico-legal report in respect of BN dated 5 August 2019, together
with a supplementary report
dated 3 April 2020. She further testified
with reference to her report on “Rehabilitation Services for
Children with CP:
CMH and Frere Hospitals”, dated 20 January
2020.
29.3
Mr Godfrey Lawson Howes, a deputy director at the Forensic
Audit Unit of the Eastern Cape
Provincial Treasury likewise testified
pursuant to his factual witness statement.
29.4
Professor Milind Chitnis, the HOD of the Paediatric Surgery
Unit at Frere Hospital and
CMH, testified with reference to a summary
of clinical records dated 3 November 2021 and an addendum thereto.
29.5
Doctor Isabel Michaelis, a paediatrician with specialization in
neurodevelopmental and
neuropaediatrics at CMH and Frere hospitals,
testified with regard to her witness statement.
29.6
Mr. Andrew Robert Donaldson, the defendant’s expert
economist, testified regarding
his expert report entitled “Public
finance considerations relating to the method of settlement of
damages claims against
the state based on medical negligence”
dated 17 December 2019, his supplementary report dated 19 June 2020
and his updated
data relating to those reports.
29.7
Mr Sean Bernard Frachet, the Chief Director, Integrated Budget
Planning of the defendant
department, testified regarding his factual
witness statement.
29.8
Professor Cooper did not testify because, apart from certain
aspects thereof which had
been objected to, his report was eventually
admitted. The court heard argument regarding the objection and
admitted the whole report,
subject to the plaintiff’s right to
seek an adjournment to lead evidence in rebuttal.
29.9
Ms Kabi Krige, the defendant’s expert occupational
therapist, testified regarding
her medico-legal report dated 24 June
2019 and a report dated 29 October 2021 which she prepared in
response to an addendum produced
by Mrs Caga.
29.10
Ms Shaida Bobat, the defendant’s expert industrial
psychologist, testified virtually regarding her supplementary
report
on Ms N[…]’s prospects of employment, dated 18 March
2020.
29.11
Mr Siyabulela Jack, the defendant’s architect, testified
regarding his “Condition Based and Structural
Assessment
Report” dated 22 May 2020 together with his revised report
dated 22 October 2021.
[30]
After the defendant had closed her case, the plaintiff called the
following witnesses in rebuttal
of the defendant’s
constitutional defences:
30.1
Professor Alexander Marius Van den Heever, the plaintiff’s
expert economist, testified
with regard to his report (Version: March
2020), supplementary report (Version: March 2022) and annexures
thereto.
30.2
Ms Busisiwe Moni-Tsawu, a physiotherapist formerly employed by
the defendant department,
testified regarding her experience at Frere
Hospital.
30.3
The plaintiff, Ms N[…], testified.
30.4
Ms Caga was finally recalled to the stand to testify in
rebuttal of the evidence of Doctor
Saloojee pertaining to the
constitutional defences.
[31]
Prior to, and during the evidence of Doctor Wagner, counsel for the
plaintiff raised certain
objections to her evidence as being opinion
evidence without her having been qualified as an expert. Similar
objections were raised
regarding other departmental witnesses. Whilst
it was conceded by the plaintiff that Doctor Wagner herself was not a
layperson,
it was argued that she had not been qualified as an expert
and, in many respects, voiced opinions which intruded into what was
termed “expert territory”. It was however agreed that all
this evidence would be provisionally admitted and argument
in this
regard would be presented at the end of the trial.
[32]
It should be noted that the evidence of these witnesses was preceded
by factual statements which,
although elaborated upon in evidence,
set out a full description of the evidence that they would present at
the trial and that,
when they did indeed testify, they gave their
evidence in chief along the lines and in accordance with these
statements. The plaintiff
submitted that, despite this, certain
aspects of the evidence led by these witnesses amounted to opinion
evidence some of which
was of an expert nature, and because they had
not been qualified beforehand pursuant to the provisions of the rules
of court, especially
by way of the provision of expert summaries,
such opinion evidence was not admissible and the court should not
have regard thereto.
[33]
In response to the plaintiff’s challenge to this evidence, the
defendant submitted that
there are at least three reasons as to why
such evidence ought to be accepted. Firstly, such evidence is indeed
factual evidence
as these witnesses are public servants who, if the
constitutional defences are upheld, will be responsible for ensuring
that the
order sought by the defendant is complied with. Their
evidence was therefore indispensable in demonstrating to the court
that senior
staff existed within the department who had the
competence, capacity, qualifications, experience and responsibility
for ensuring
the proper care of BN. This evidence could not have been
replaced by evidence from outside experts. Such evidence was thus
necessary
to explain what had to be done to ensure compliance with
the proposed order.
[34]
These witnesses likewise were obliged to testify regarding the
factually important standard required
relating to the delivery of
certain medical services and supplies as required by the proposed
order.
[35]
Secondly, even if the court were to consider that the factual
witnesses’ evidence was partially
opinion evidence, it was
submitted that such should nonetheless be admitted. As stated by
Schwikkard and van der Merwe
[16]
:
“
If
the issue [at trial] is of such a nature that the witness is in a
better position than the court to form an opinion, the opinion
will
be admissible on the basis of its relevance. Such an opinion has
probative force… because it can assist the court in

determining the issue. This explains why the opinions of laypersons
and experts are at times received.”
[36]
In this regard the court was referred to the Appellate Division case
of
R
v Vilbro & Another
[17]
and the English case of
Multiplex.
[18]
In
Vilbro,
the
appeal court in essence found that where a witness is in a better
position than the court to form an opinion, such opinion will
be
admissible based on its relevance as stated above. In
Multiplex
,
a matter similar to the present in that there had not been compliance
with the relevant rule pertaining to expert evidence but
a factual
statement had previously been delivered, the English High Court held
that in construction litigation an engineer who
gives factual
evidence may also tender statements of opinion which are reasonably
related to the facts within his knowledge and
relevant comments,
based upon his own experience
[19]
.
[37]
Counsel for the defendant submitted that by virtue of the issues
raised by the public healthcare
defence, the evidence of such factual
witnesses from the department was both relevant to the issues and
necessary for the court
to decide the issues in dispute. Their
positions, qualifications and experience including, in the case of
Professor Chitnis and
Doctor Michaelis, their having treated BN
themselves, placed them in an extraordinary position to be able to
provide valuable evidence
after applying their minds to the questions
at hand.
[38]
Thirdly, it was submitted by the defence that the plaintiff was, in
any event, given full warning
in relation to this evidence. In this
regard, the court was referred to correspondence dated 11 October
2021, well before the commencement
of the trial, in which the
defendant’s attorneys drew the plaintiff’s attention to
the evidence of certain factual
witnesses which she intended to call,
including Doctor Wagner, Mr Frachet, Doctor Michaelis and Mr Howes.
This letter proceeded
as follows:
“
Because
the factual witnesses hold professional qualifications, because some
of the factual evidence will be of a financial or technical
nature,
and further as a matter of caution to provide for the eventuality
that the court might deem any component of their evidence
in the
nature of opinion evidence, we intend to provide you and the court
with written summaries of the evidence before trial.”
[39]
Indeed, such summaries were, well in advance of trial, supplied by
the defendant to the plaintiff
as foreshadowed in this
correspondence. No objection was raised by the plaintiff nor was
there any response to this letter. The
factual statements referred to
were detailed to the extent that they provided the plaintiff with far
better advance notice of the
evidence that was to be given than is
required by rule 36(9)(
b
).
[40]
In my view, the defendant’s submissions must hold sway. Given
the nature of the constitutional
defences to which they testified,
which shall be elaborated on more fully later, it was the defendant’s
obligation to place
before the court as much evidence as possible
relating thereto. By its very nature, this evidence in many respects
not only relates
to the past performance of the medical staff at the
two hospitals concerned, but also to future conduct, particularly
regarding
BN’s treatment by the staff in these hospitals in the
event that such defences are upheld. Such future conduct required
these
witnesses, and in particular Doctor Wagner, to testify as to
the expected future performance of the hospitals and their staff
which
by its very nature involves a degree of inference from facts
which are entrenched and well known by Doctor Wagner by virtue of her

position and experience. Because of her special and unique position
in the department, and her experience, she is in a far better

position than the court to interpret these known facts and to make
inferences therefrom which may amount to opinion evidence.
[41]
Additionally, the main purpose of Rule 36(9) is to give the other
party sufficient information
about the expert evidence so as to
remove the element of surprise. However, it does make inroads into
the fundamental right of
a party to call a witness and requires such
party to disclose the nature of the evidence in advance. It has
accordingly been held
that the provisions of the rule should be
interpreted restrictively.
[20]
I am of the view that the plaintiff had ample opportunity to absorb
and digest all the information provided and that any element
of
surprise was removed. In so far as Doctor Wagner and the other
witnesses may have strayed to a minor extent into the terrain
of
experts (given that she and they do have specialized knowledge), this
was practically unavoidable in the circumstances and a
necessity. In
any event, the plaintiff had ample opportunity to consider all this
evidence and to tailor the evidence available
to her where necessary
and/or to, wherever possible, obtain evidence in rebuttal.
[42]
Plaintiff’s counsel argued that despite all this, the failure
to comply with the rules
of court in this regard allowed the
plaintiff to take the stance that she could simply disregard this
evidence as a matter of strategy.
I disagree. Given all that I have
said, particularly the nature of the defences and all that
foreshadowed this testimony, such
an approach was, to my mind,
incautious.
[43]
I will accordingly have regard to all the evidence of these
witnesses. I will also take heed
of the fact that, to the extent that
their objectivity may be affected by them being employed within the
department, this is to
a degree counterbalanced by their professional
status and in the case of the medical professionals, their being
bound by the Hippocratic
Oath and their willingness to subject
themselves to cross examination.
Defendant’s
objections to the supplementary report of Professor Van den Heever,
certain newspaper articles and the evidence
of Ms Caga in rebuttal.
[44]
Shortly before the resumption of trial after an adjournment, the
plaintiff filed a 79-page supplementary
report prepared by Professor
Van den Heever together with two newspaper articles. These were
objected to in writing by the defendant
because there was no prior
warning that they were to be filed and the defendant was given a
short time to prepare. As regards the
newspaper articles, they were
also objected to on the basis that they amounted to inadmissible
hearsay evidence and were not reliable
on their own to prove the
point intended without independent evidence to support them.
[21]
[45]
As regards the evidence of Ms Caga, it was objected to as it was not
preceded by an expert summary
and the evidence was not put to the
defendant’s witnesses. It also, to some extent, involved
hearsay evidence and strayed
beyond her areas of expertise as an
occupational therapist and case manager.
[46]
I have considered the submissions in this regard and concluded that,
largely because of the various
reasons I have set out above relating
to the constitutional defences, I will allow all this evidence
subject to the qualification
that I will consider the weight to be
attached to it wherever necessary. It seems to me that this is the
fairest and most reasonable
way of dealing therewith.
Should
the common law be developed?
[47]
In this part of the judgment, I intend to deal with the evidence led
relating to the development
of the common law, and thereafter to deal
with the question as to whether it ought to be developed, and whether
this is supported
by the evidence. I shall also deal with the
disputed issue as to the standard at which the departmental services
should be measured.
Evidence
led for and against the development of the common-law.
[48]
In this regard the defendant led the evidence of Mr Donaldson, Mr
Frachet, Mr Howes and to a
lesser extent the evidence of Doctor
Wagner. In rebuttal, the plaintiff led the evidence of Professor Van
den Heever.
Mr.
Donaldson
[49]
Mr. Donaldson holds an M.Phil Economics degree from Cambridge
University amongst various other
qualifications. He has had extensive
academic experience and is presently a Senior Research Associate at
the University of Cape
Town’s Economics Department. He has held
senior positions in the National Treasury and the former Department
of Finance over
a period of some 23 years. He has worked extensively
in the fields of public finance, expenditure planning and budget
coordination.
He has also researched and published widely in the
fields of social services, health and education.
[50]
He testified that state resources are unavoidably constrained when
one considers the range and
diversity of possible purposes or uses to
which they may, or ought, to be put. Society has a range of needs
which require to be
prioritized and if it is to meet its needs and to
advance the social and economic well-being of its people, the state
must use
the resources at its disposal both efficiently and
effectively. Professor Van den Heever largely accepted these
propositions adding
that the public health system would never not be
“resource constrained”.
[51]
Mr Donaldson further made the point that the state resources are,
whilst substantial, held in
stewardship on behalf of the wider
community. He said that it is not the state that ultimately suffers
loss if unreasonable, excessive
or unnecessary payments are made for
particular purposes, it is the state’s capacity to meet its
obligations that is diminished,
including its constitutional
obligations.
[52]
He stated further that in determining whether the common law
regulating payment of delictual
damages should be developed, the
capacity of the state to meet its manifold other obligations is a
relevant consideration. Compensation
which is paid in any particular
instance is a charge of equivalent value against the state’s
capacity to meet other social,
economic or developmental obligations
– as is implicit in the economic concept of “opportunity
cost”. He explained
that opportunity cost refers to “the
things that might otherwise be done if spending was not allocated to
any particular
purpose”. It is relevant to these court
proceedings in that by making an award “there is a sense in
which the court
takes on that responsibility that otherwise would be
exercised by a treasury”.
[53]
He explained that the cost of claims against an organ of state are
expected to be made from within
the available baseline of expenditure
allocations to that organ of state. In exceptional circumstances
however, taking into account
the impact of such claims on service
delivery, a provincial treasury or expenditure planning committee
might recommend an addition
to baseline for the purposes of meeting
or partially meeting compensation claims.
[54]
Regarding the constitutional defences as pleaded, his view was that
in circumstances where there
exist material uncertainties about
future costs and requirements, such defences are consistent with the
requirements of economy,
efficiency and effectiveness to which the
state is obliged to adhere. They are also consistent with the
constitutional and statutory
obligations pertaining to the management
of public finance. Under cross examination he emphasized that in his
view this position
remained extant irrespective as to whether a
particular department was facing elevated financial challenges such
as the defendant
department, as compared with other provinces that
did not face quite such high or extensive claims. In essence, these
defences
would bring the court system into sync with the way the
budgetary and appropriation of funds systems operate in terms of the
Constitution,
through the national and provincial treasuries.
[55]
He said that an advantage of a commitment to meeting service needs as
they arise is that one
can reduce the uncertainty involved in courts
having to estimate and predict future needs when awarding upfront
payments. Resulting
from this, is a cost-effectiveness argument in
favour of an approach that focuses on meeting needs as they arise.
[56]
Mr Donaldson agreed that there were instances where it would be
sensible to settle certain aspects
of damages claims upfront, such as
general damages. However, an undertaking to provide services or to
pay when the expenses arise
would enable the department to better
match its actual expenditure to needs and to adapt those commitments
over time if needed.
He also stressed that in his view an added
benefit of moving to a pay-as-you-go basis, is that the parties are
likely to settle
claims sooner.
[57]
Mr Donaldson further described the restrictive budgetary forecast
which is faced by the department
in that in the present fiscal
consolidation phase the country is experiencing limited budgetary
increases both in the national
and provincial departments. In the
foreseeable future, government departments face considerable resource
limitations even in nominal
numbers which do not take inflation into
account. Indeed, he said that the department is already “in a
state of considerable
financial stress” which in turn leads to
stresses within the facilities such as congestion, excess demands,
busy hospitals
and challenges maintaining assets, amongst others.
[58]
He also pointed to the fact that medical negligence claims against
the state are rising even
though there have been improvements in
services. In this context, he described how the public healthcare
service provides primary,
secondary and tertiary services, largely
without charge, to over 80% of South Africa’s population. As at
2018, this represented
approximately 48 million adults and children
and involved approximately 120 million primary health care visits per
annum over 32
million hospital patient days.
[59]
Because approximately 92% to 93% of the population in the Eastern
Cape is uninsured, approximately
6,726,000 people are therefore
reliant on the health department which is considerably higher than
Gauteng and the Western Cape.
However, over the long term there has
been improvement in health service delivery with reference to
improvements in the under-five
mortality rate, infant mortality,
early neonatal deaths and the proportion of births which occur in
health facilities. Despite
improvements in healthcare services over
time, several provinces have experienced rapid increases in medical
negligence claims,
particularly the Eastern Cape.
[60]
The contingent liability in respect of medico-legal claims lodged
increased in the Eastern Cape
from about R3.5 billion in 2013/2014 to
R16.7 billion in 2016/2017 and up to R38.8 billion as 31 March 2020.
He added that the
proportion of claims in the Eastern Cape is
considerably higher than in most other provinces. In the most recent
financial year
in which financial statements had been finalized,
almost R1 billion had been spent by the department in actual
pay-outs.
[61]
According to Mr Donaldson, the accumulated contingent liability in
respect of medical negligence
claims against health departments
countrywide amounted to over 40% of the 2018/2019 public health
spending nationally. The increasing
claims against provincial health
departments between 2018 and 2019 was 24%, whereas the resources
available to provincial health
departments are increasing between 7%
and 8% per year, or 2% to 3% per annum in real terms. He added that,
whilst there existed
some uncertainty in this regard and that not all
lodged claims would indeed materialize, it was clear that the claims
are increasing
considerably faster than available resources.
[62]
He also stressed the point that claims are increasing more than the
budget increase. In this
regard, he said in his report that “Although
not all claims result in awards against the State, it is readily
apparent that
the rise in medical negligence claims against the State
represents a threat to the capacity of the State to provide and
improve
health service delivery. On present trends, the annual
increase in claims against State health departments already exceeds
the
real (after inflation) increase in resources available for health
service delivery, and will soon exceed even the nominal annual

increase in resources.” There is thus a cost or a
self-defeating feature of payment of these claims upfront that
undermines
the capacity of the state to improve health service
delivery over time. He also gave examples of this opportunity cost to
public
health in South Africa.
[63]
He further stated that even considering actual payments made in
respect of court cases in contradistinction
to the question of
contingent liabilities, these currently amounted to 3% to 4% of the
health budget of the department and the
difference would mean that
the department would have no effective or real increase in its annual
budget, or may have a real decrease.
The actual expenditure remains a
substantial drain on resources which could be used for other
purposes. In his view, therefore
“for the State rationally to
provide the most cost-effective way possible for these costs, there
is a case to be made for
meeting them as costs arise rather than
upfront.”
Mr.
Frachet
[64]
Mr. Frachet is the Chief Director, Integrated Budget Planning in the
Eastern Cape Department
of Health. He has held this position since
June 2008 and is responsible to the Chief Directorate: Integrated
Budget Planning. He
testified that the Chief Directorate is
responsible for the department’s efficient and effective
financial budget planning,
monitoring and evaluation of the
implementation of the budget, management of budget reviews and
expenditure trend analysis, as
well as management, planning,
monitoring and evaluation of revenue activities.
[65]
He testified that the department has been spending an increasing
portion of its annual budget
on the settlement of medico-legal
claims. At present, these are upfront settlements, but they are
incurred at the cost to the department
of resources which would
otherwise be available for health services for the uninsured
population. Claims totalling R3.462 billion
have been settled within
the period 1 April 2014 to 31 March 2021. Whilst they are obviously
uninsured, they are also not budgeted
for, and unfunded.
[66]
Because of the situation, and particularly because such pay-outs are
unbudgeted, he explained
how these extensive payments in each
financial year require the department to utilize funds which were
budgeted for expenditure
under its various programmes in order to
comply with its responsibility in meeting court orders and/or
settlements. Consequently,
funds which were allocated to the
department by treasury for the purposes of funding programmes such as
emergency medical services,
support services, facilities management
and hospital services are taken out of those programmes to meet these
claims. This results
in such payments being categorized as
“unauthorized expenditure”.
[67]
In practical terms, this affects the delivery of healthcare services
as diminished funds are
available for expenditure on their intended
public healthcare purposes. Additionally, because such expenses
cannot be budgeted,
the department often experiences cash flow
challenges resulting in supplies not being paid within the required
30 days. Those payments
must then, in many instances, be deferred so
that they may be paid out of the budget for the ensuing financial
year. In turn, this
results in the department commencing the
financial year with insufficient cash to achieve the full healthcare
provision required.
This obviously has a detrimental effect on the
ability of the department to deliver healthcare to the public and to
effect improvements
to its services. It also reduces the ability of
the respective programmes to reach their planned targets.
[68]
He further testified that the department has seen rapid increases in
medical negligence claims
over the past years. The contingent
liability of claims as at 31 March 2021 amounted to approximately
R38,842,976,000 in comparison
with R35,425,811,000 as at 31 March
2020. This amount was in excess of the current (as at the time he
testified) annual appropriation
to the department.
[69]
Of great concern, Mr Frachet testified that the department
anticipates that based on the then
current trends in its contingent
liabilities, settlements against the department are likely to
increase rapidly and at a faster
rate than the annual increase in its
budgeted resources. If the department is required to proceed on its
present course in paying
out such claims based on upfront payments,
this will in time overwhelm its capacity to meet its health service
delivery obligations.
In his view, therefore, it has become a
necessity that consideration be given to alternative avenues for
meeting medico-legal claims
against the department.
Dr
Wagner
[70]
Dr Wagner is the head of the Eastern Cape Department of Health and
has held this position since
1 August 2021. She obtained an MBChB
(UCT) in 1996 and read for the M Phil in Public Health and Masters in
Public Health degrees
through the universities of the Western Cape
and Fort Hare during 2003 and 2018. She has held several senior and
executive management
positions predominantly in the public healthcare
sector, and in the private healthcare sector. Approximately five
years of these
has been at an executive level in both the public and
private sectors.
[71]
As regards her experience, it would be helpful to repeat her own
words in her witness statement
as confirmed in her testimony, as
follows:
“
3
My career path since completing my internship at Groote Schuur
Hospital in 1996, commenced with a grounding for six years
as a
Medical Officer in community health centres (CHC) in Mitchell’s
Plain, Western Cape, and in Gompo, in the ECDoH. I was
appointed
Coordinator of the rationalisation of the East London Hospital
Complex and later of all complexes and regional hospital
services in
the ECDoH; was Project Manager of the Vitamin A supplementation
programme; promoted to Director of Complexes and Regional
Hospitals
in September of 2002; in 2005 became Chief Director Human Resource
Development for the Province, and in May 2009 was
appointed acting
Chief Operations Officer (Deputy Director-General: Corporate
Services) for the Department of Health in this Province
in an acting
capacity until I resigned in February 2011 to run a GP practice in
association with colleagues at the Medicross in
Berea.
4
I returned to the public sector in December 2012 as the CEO of the
900-bed Frere Tertiary Hospital where I spearheaded a
turnaround in
patient outcomes and experience of care, with the Frere team. The
improvement in quality of care was recognised when
Frere Hospital
received the prestigious Dr Kwang Tae Kim Merit Award in 2018 from
the International Hospital Federation - the only
African finalist
amongst 27 finalists in the four categories from over 180 public and
private sector entries world-wide.
5
After serving as the Deputy Director-General: Hospitals and Clinical
Support Management Services of the ECDoH, I returned
to the private
healthcare sector. I was appointed as an executive in Netcare, as the
Medical Director of Netcare’s Primary
Care Division on 1 August
2019. The main focus of my position was to promote the consistent
provision of quality primary care services
by implementing programmes
that pursue the quadruple aim of quality healthcare (i.e. enhancing
patient experience, improving population
health, reducing costs, and
improving the working life of healthcare workers). During this
tenure, I developed a strategic framework
that aligned the Division’s
activities with this quadruple aim; and embarked on a road show to 61
Medicross practices across
the country with colleagues, to engage
doctors and secure their buy-in for the proposed activities. The
proposed projects were
aimed at transforming current practice, in
anticipation of major health sector reform, to meet the needs of our
citizens, whilst
ensuring a viable business model.
6
I also headed the team reviewing the Primary Care Division’s
Quality Management System; and, in collaboration with
the key
stakeholders, developed a concept document that looked at not only
simplifying and integrating the various quality assurance
measures
(such as Ideal Clinic, Netcare and British Standards Institute’s
standards) but also explored ways of positioning
quality at the
centre of the Division’s business and promoting the continuous
improvement and maintenance of world class
healthcare standards. We
developed a quality assessment tool that integrated the Ideal Clinic,
British Standards Institute ISO
2009:2015 and Netcare critical
service standards into a single tool for the Medicross facilities.
7
I have a specific interest and passion for developing clinical
performance management systems. I coordinated the primary
Care
Division’s response to the SARS-COVID19 pandemic, providing
clinical leadership to the doctors, nurses, dentists and
staff during
both first and second resurgences and ensuring vaccination of the
Division’s healthcare workers.”
[72]
She confirmed the evidence of Mr Frachet as, as accounting officer,
she is responsible
inter alia
for ensuring that there are
adequate systems in place to prevent, monitor and address financial
misconduct when it occurs. She
is also responsible for budgeting for
provision of necessary healthcare services. She confirmed that lump
sum payments have impacted
negatively on the department’s
operating budget. The outflow of funds from the department for such
claims has increased exponentially
year by year. She affirmed that
each such payment comes with an opportunity cost to the department
and results in money being taken
away from other services. In her
words, she said it is “a never-ending downward tightening, ever
tightening spiral if we
continue to pay in this mechanism.” In
her view, the department’s liquidity problems threaten the
liquidity of the
rest of the provincial government.
[73]
She also testified that such lump-sum payments similarly impacted the
private healthcare sector.
Responding to a question from the court,
she testified that after the Road Accident Fund Amendment Act (19 of
2005) which came
into effect during 2008, there followed a notable
increase in both the volume of medico-legal claims and their quantum
in the private
and public sector. This has resulted in the cost of
professional insurance for obstetricians escalating at an alarming
rate. Indeed,
many such obstetricians have indicated that they do not
see themselves continuing in practice in five years’ time as a
consequence.
This, she said, in turn will become the public sector’s
problem if people with medical insurance can no longer access private

obstetric care. At present there are up to 125,000 births annually in
the private sector. This would increasingly become an additional

burden upon the public healthcare system. She added that neurosurgery
in the private sector is similarly affected. All this, in
turn,
threatens the public’s constitutional right to health care.
Mr
Howes
[74]
Mr Howes is a forensic accountant with a BCom (Accounting) degree
from the University of Cape
Town, employed as a Deputy Director:
Forensic Audit in the Eastern Cape Provincial Treasury. He has been
involved in investigations
into allegations of misconduct by
individuals and/or their attorneys regarding medical negligence
litigation and its proceeds.
[75]
He testified that his investigations have revealed evidence
indicating a high prevalence of abuse
of the system governing
medico-legal claims against the department, and in particular
relating to claims for children with cerebral
palsy. He also
anticipated that his investigations would continue to uncover further
abuse. He highlighted that such abuse not
only impacts on the
department, but results in reduced, and in some instances no benefit
from the claim ultimately being enjoyed
by the intended
beneficiaries.
[76]
In all the cases which he has investigated in the Eastern Cape, the
courts had ordered that a
trust be established to administer the
damages awards. In accordance with the court orders, the trusts are
to be created by the
plaintiff’s attorneys and the full award
is required to be paid into the trusts after a deduction of attorney
and own client
legal fees. These trusts are typically to be
established within three to six months of the date of the court
order. Invariably
in such matters, the plaintiff’s attorney is
engaged on a contingency fee agreement basis. In accordance
therewith, there
is a cap on such fees that the lawyers may claim at
25% of the sum awarded, excluding disbursements. Any legal costs
recovered
from the department, together with the remaining damages
award, are to be paid by the plaintiff’s attorney into a bank
account
established by the relevant trust which is overseen by a bona
fide trustee, or trustees, duly appointed by the Master. Accordingly,

these court ordered trusts are intended as a vehicle to protect the
beneficiaries’ interests. He made the point that most
of these
beneficiaries are minors who are severely disabled and lack the
requisite capacity to manage their own affairs.
[77]
He further said that the department is normally not privy to the
establishment of these trusts
and so would not ordinarily know how
such damages awards are ultimately managed, whether or when the trust
is established or how
much of such damages are paid into the trust,
if any.
[78]
He testified that the investigations have uncovered conduct involving
the following:
78.1
Court ordered trusts for the management of the damages awards
are often set up well past
the timelines mandated in the court
orders, and in some instances have not been set up at all.
78.2
Payments of the awards from the attorneys’ trust accounts
into the trusts are often
made late, in significantly reduced
amounts, and in some instances, not at all.
78.3
The management of the trusts in instances where they have
indeed been created, are fraught
with irregularities including in the
appointment of the trustees themselves, irregular and excessive draws
being made in respect
of trust administration costs, overreaching on
legal fee claims from the award, and other accounting irregularities.
78.4
The plaintiff’s attorneys in some cases recover excessive
legal costs and fees from
the final award even when cases are settled
early, without proceeding to trial. Invariably 25% or more of the
award goes to the
attorneys, regardless that the primary cap is
double the normal fee. A matter that settles early, even with the
double or “success
fee”, should not come close to the
secondary cap of 25% of the legal fees in cases involving a
substantial quantum.
[79]
He further testified particularly relating to an attorney who has
since been charged criminally,
that the experience with this
attorney’s firm is exemplified in his investigations relating
to various other firms. In the
case of this attorney, of 30 trusts
which were court ordered to be set up for the benefit of children
represented by the plaintiffs
in medico-legal claims against the
department, the following has emerged:
79.1
In 16 out of these 30 cases, no trusts have yet been
established, despite the deadline
for the creation of the trusts
having passed, in some cases, over 33 months ago.
79.2
Of the remaining 14 cases where trusts have been set up, 12 of
these trusts were set up
after the court ordered deadline for the
establishment of the trust had passed, in some cases with up to 24
months passing before
the trusts were set up.
79.3
Because no trusts have been established in 16 cases, the
attorney’s firm has not
made any payments into those trusts at
all despite the fact that the department has paid the damages award
as per the court orders
into the attorney’s trust account.
79.4
In 13 of the 14 cases where the relevant trusts have been set
up, even belatedly, significant
delays were recorded between the
creation of the trusts and the first payments by the attorneys into
the trust, some with a delay
of up to 12 months.
79.5
In 28 of the 30 cases, either no monies had been paid to the
trusts by the attorneys, or
the amounts paid were significantly less
than what ought to be due to the beneficiary, even after deduction of
legal costs. Where
the figures for legal costs are available from
these trusts to which payments have been made, it appears that
between 31% and 33.9%
of the award is ultimately claimed by the
attorneys in legal fees, excluding disbursements. If disbursements
are added, it takes
the total amount deducted from the award in
respect of fees and disbursements up to 41%. Although certain monies
recovered upon
taxation are theoretically payable to the client (less
a fee charged for taxation) these are typically relatively small and
are
invariably not paid to the client.
[80]
Mr Howes further testified that in respect of the 30 cases the
department had made payments in
the total amount of approximately
R480 million to this firm of attorneys between 2015 and 2021. His
investigation into these cases
demonstrated that these funds are to a
significant extent not applied to the benefit of the injured parties:
80.1
Only 24% of this amount has been made available to the
beneficiaries’ trusts. An
amount of only R115 million was paid
to these trusts. This leaves a difference of about R365 million
between what was awarded by
the court and paid by the department, and
what has been paid by the attorney’s firm into the
beneficiaries’ trusts.
Whilst some of these funds may have
lawfully been consumed in legal fees and/or may still be paid into
the trusts, some 76% of
the awards has not been applied for the
benefit of the intended beneficiaries.
80.2
Approximately R221 million or 46% of the awards that the
department has paid to this firm
are in respect of beneficiary trusts
that do not presently exist because the attorneys have failed to
comply with their obligation
to establish and register such trusts
with the Master.
80.3
Approximately R163 million or 74% of the R221 million which
ought to be available for payment
to the unformed trusts in the
future is unaccounted for. In this regard, as at 30 July 2021 the
firm’s trust account held
R101 million. Of this, R43 million
was for trusts that had been formed but had not been paid, leaving
about R58 million available
for distribution to the yet to be
established trusts. This leaves R163 million (approximately 74%) of
monies paid by the department
being unaccounted for in respect of
these yet to be established trusts. He further testified that an
examination of the ledgers
of the firm’s trust account
demonstrates that there are hopelessly insufficient funds held in
trust to distribute to these
yet to be established trusts. Even if
one takes into account approximately 40% of the R221 million being
allocated (to a degree
in contravention of the
Contingency Fees Act
No 66 of 1997
) to legal fees and disbursements, the firm remains at
least R74, 6 million short in its trust account for distribution to
these
yet to be established beneficiary trusts.
[81]
He testified that there are further payments to this firm which have
been identified and which
are yet to be investigated. Taking these
together with the R480 million referred to earlier, the total
payments made by the department
between April 2014 and March 2021 to
this firm by way of damages awards amounts to the sum of R612.6
million.
[82]
His investigation also showed that the delay in registering these
trusts cannot be attributed
to the Master’s Office.
Professor
Van den Heever
[83]
Prof. Van den Heever testified on behalf of the plaintiff in rebuttal
of the defendant’s
evidence relating to the constitutional
defences. He holds a BA (Hons) and an MA (Economics), from the
University of Cape Town.
His master’s thesis focused on the
evaluation of health resource allocation requirements in Southern
Africa. He has sat on
numerous advisory committees, boards and
commissions in relation to national health, finance and economics. He
has also been involved
with a strategic management team to support
the establishment of the Gauteng Department of Health and a
functional task team which
established the Medium Term Expenditure
Framework for South Africa. He has had extensive experience in
economic advisory positions,
particularly relating to government and
in the area of health. Apart from his involvement with the Council
for Medical Schemes,
he has consulted with several major clients
including the National Treasury, The National Department of Health
and the Development
Bank of South Africa.
[84]
His expertise lies in the areas of health economics and financing;
public finance, with a specific
emphasis on health policy matters;
strategic government policy, relating primarily to health and social
security; and policy and
planning modelling. He has also conducted
extensive research and published widely. Indeed, from his CV it
appears that he has been
responsible for more than 80 publications,
many of which involve healthcare and social security. Likewise, what
he terms “key
projects” in which he has been involved
relating similarly to health, finance and related matters is
impressive, and extensive.
[85]
The first point which the professor made both in his report and in
his evidence was that to compensate
victims of medical negligence
other than through a lump sum pay-out would result in an unjustified
transfer of risk, and would
amount to a departure from the principle
of social solidarity that underpins the public and private health
systems. He said that
any failure to incur the cost of implementing
reasonable and rational measures to minimize the risk of medical
negligence is not
a saving and would represent a departure from
social solidarity principles of any publicly provided health service,
or a national
health system. He further argued that not to cover the
costs of a rightful claim for damages is equally a departure from the
principle
of social solidarity as it transfers an important risk back
to the private individuals and families who are structurally in a
more
precarious position in terms of carrying such a risk.
[86]
In his reports, and in his evidence, the professor dealt with and
assessed the capability of
the defendant to provide a standard of
healthcare equivalent to that which pertains in the private sector,
based on various proxy
indicators. Having conducted extensive
research in this regard and having provided two lengthy and detailed
reports pertaining
thereto, he expressed strong doubt that the
department indeed has the capacity to provide the healthcare which BN
requires at a
standard equivalent to that which pertains in the
private sector.
[87]
In this regard, he relied on three separate, and in his view
important, proxy indicators. These
are: health outcomes in the form
of maternity mortality ratios (“MMR”); findings of the
Office of Health Standards
Compliance (“OHSC”); and
numerous reports from the Auditor-General of South Africa (“AGSA”).
[88]
In dealing with MMR, he testified that this index stood at 138 in
2015 which was more than double
the ratio in various developing
countries of equivalent economic status, including Argentina, Brazil,
Colombia, El Salvador, Ecuador
and others. In his experience and
coupled with this, he said that South Africa has a poorly performing
public health sector which
cannot simply be explained away by stating
that it is limited by the resources allocated to it. From his
analysis, he concluded
that there are many countries which have a
much lower per capita GDP than South Africa, which perform far better
with reference
to MMR.
[89]
He further contrasted the MMR of certain provinces in South Africa
with what he termed the benchmark.
From this, he said that the
provincial comparison shows that the Western Cape outperforms the
other provinces despite having similar
socio-economic situations and
challenges, such as HIV and AIDS and the recent pandemic, and despite
the fact that it receives fiscal
allocations consistent with all the
other provinces. From this he said that the only reasonable
conclusion which could be reached
is that such services are managed
more efficiently in the Western Cape than in the other provinces and
that, of importance, this
suggests that the MMR reflects structural
differences in managerial capabilities across the provinces.
[90]
Prof. Van den Heever also relied on the OHSC audits in conjunction
with the MMR. He said that
the OHSC attempts to assess the quality
assurance features which are in place within various health
facilities. He noted that by
considering both MMR and OHSC scores
together, there was an indication of a high degree of consistency
i.e. provinces scoring poorly
on outcomes such as MMR also scored
poorly on their quality assurance assessment. This, in his view,
served to fortify his conclusions.
[91]
Upon an analysis of the OHSC audits his reports reflect that the
Eastern Cape health department
has the second lowest weighted average
score for public hospitals from the OHSC compliance scoring and, as
indicated above, a relatively
high MMR. He thus maintained in
evidence that his conclusion based on the MMR itself as dealt with
earlier, was fortified and underscored
by the OHSC audits and that
these combined appeared to be valid indicators of the lack of
managerial capability within the Eastern
Cape Health Department.
[92]
The third proxy indicator which the professor considered to be of
importance and of relevance
to the managerial capability of the
department was the findings of the AGSA. Once again he concluded, on
an analysis of these findings,
that they are, province by province,
broadly consistent with both the MMR and OHC results. In evidence he
explained that the findings
of the AGSA illustrate glaring issues
regarding the capability of the defendant to deliver on its various
promises. Such findings
demonstrate a deep-rooted problem within this
province because they are, along with the OHSC findings, indicative
of general performance.
In his reports, he gave extensive examples of
such comments as made by the Auditor General in relation to various
recent financial
years.
[93]
Regarding the proxy indicators, the professor concluded as follows:
“
So
that’s the kind of issues and I would say over a three-year
period one’s getting a pattern where the performance

information is repeatedly regarded as unreliable. There are repeated
problems with financial management and there are repeated
problems
that deal with compliance with legislation. I think that all of
these, again when looking at this information as a kind
of proxy
indicator, suggests that the department has trouble implementing
systems. And without those systems it is very difficult
for the
department to address systemic issues that it has to face. And now I
think that does have to be understood that provincial
health
departments are very complex departments dealing with very complex
problems. And you can’t actually resolve them effectively

without designing your system to be sufficiently agile to cope with
complex problems. That means that you have got to build constantly

your capability to deal with those things that you can predict, but
you have got to have systems and services for which you have
got a
systemic response, the planned things, the TB’s, the HIV’s,
your elective surgeries, all of those things can
be subject to
reasonable levels of planning. And then there are things that happen
that you cannot predict and you must have a
department that is
sufficiently agile to be able to respond to those. My assessment is
that the Eastern Cape, as with most of the
other provinces, lacks the
agility to respond to the complex problems and also to relatively
simple problems, and that is certainly
a concern. If we go to page
512 and table 6, this just provides a summary now as I have been
doing all the way through, consistently
using the Western Cape as a
benchmark. And in comparing the Eastern Cape with the Western Cape in
terms of irregular expenditure
accruals and unauthorized expenditure
and fruitless and wasteful expenditure, this just basically
demonstrates the difference in
the patterns.”
[94]
The professor used these proxy indicators in comparison with other
provinces to determine the
department’s comparative
performance. In this regard he found that the most apposite
differential would be the Western Cape
Department of Health for
various reasons. He found that the Western Cape department is
materially more capable than the Eastern
Cape and that the
performance weaknesses arising from the differences in capability are
revealed through poor health outcomes and
poor financial management.
He also found that the Eastern Cape, in comparison with the Western
Cape, lacks the systems in place
to ensure continuous improvements in
performance.
[95]
Prof. Van den Heever devoted a fair portion of his evidence to
describing how the department
is the author of its own downfall and
its arguments that the financial and other difficulties which it
experiences, and which were
described in the evidence of Dr Wagner
and Mr Donaldson as being a consequence of the large CP claims and
awards which have emerged
over the past eight to ten years, are not
correct. This outcome, he opined, was due in part to the poor
management capability of
the department as described above. However,
a major contributing factor in his view was the way the department
budgets, or does
not budget, for these awards.
[96]
As foreshadowed above in the summary of Mr Donaldson’s
evidence, the department, as with
all of government, does not budget
in advance for its contingent liability in respect of damages awards
as will likely be made
by the courts, or through agreements duly
executed in settlement of these claims. This, according to the
evidence of Mr. Donaldson,
is in accordance with accounting
convention which spans many years and, as a result, a Treasury
instruction has been issued to
all departments in the province not to
budget for such claims.
[97]
According to Prof. Van den Heever, this approach
by the Provincial Treasury is incorrect, and indeed unlawful.
He went
further and alleged that compliance with Treasury’s instruction
not to budget for medical negligence claims amounts
to financial
misconduct and a wilful failure to “take effective and
appropriate steps to prevent unauthorized irregular and
fruitless and
wasteful expenditure… resulting in criminal conduct.”
[98]
In my view, and because of reasons which I shall deal with later in
this judgment, it is not
necessary to spend time summarizing the
extensive and various arguments advanced by these witnesses for and
against the requirement
to budget in advance for such claims.
The
existing common law and the rationale for its development
[99]
In claims for compensation which arise out of delict, the plaintiff
must claim in a single action
all damages already sustained, or
expected to arise in the future, insofar as they are based on a
single cause of action.
[22]
This is the “once and for all” rule which has its
foundations in English law
[23]
and has been adopted and applied in the South African courts. It
comprises two components: firstly, that all damages, present and

future, should be claimed in a single action and secondly, that such
damages are claimed as a lump sum.
[24]
[100]
Under the
Aquilian
action a defendant is obliged to make good the difference between the
value of the plaintiff’s estate after the commission
of the
delict, and the value it would have had if the delict had not been
committed
[25]
. This must be
done in money and not in kind.
[26]
[101]
In
Ngubane
[27]
,
the Appellate Division was faced with the following argument in
opposition to a claim for damages in respect of future medical

expenses and adaptive aids:
“
Once
the possible alternative of State medical services is raised, counsel
for the respondent submitted that
‘
(t)here
is no general authority that a plaintiff is entitled to be awarded
the costs of a private clinic in preference to the costs
of a public
hospital’, and that therefore
‘
(w)hen
the possibility that cheaper treatment is possible than that claimed
by the plaintiff it becomes his duty in discharge of
the general onus
resting on him to deal with these possibilities. It is not for the
defendant to quantify his damages for him.’”
[102]
This argument was rejected by the appeal court which set out the
legal position as follows:
“
Though
the
onus
of proving damages is correctly placed upon the
plaintiff, this submission, which is really concerned with the duty
to adduce evidence,
is to my mind unsound. By making use of private
medical services and hospital facilities, a plaintiff, who has
suffered personal injuries,
will in the normal course (as a
result of enquiries and exercising a right of selection) receive
skilled medical attention and,
where the need arises, be admitted to
a well-run and properly equipped hospital. To accord him such
benefits, all would agree,
is both reasonable and deserving. For this
reason it is a legitimate - and as far as I am aware the
customary - basis on which
a claim for future medical expenses is
determined. Such evidence will thus discharge the
onus
of
proving the cost of such expenses unless, having regard to all the
evidence, including that adduced in support of an alternative
and
cheaper source of medical services, it can be said that the plaintiff
has failed to prove on a preponderance of probabilities
that the
medical services envisaged are reasonable and hence that the
amounts claimed are not excessive.
This
approach conforms, in my view, to the requirements of proof in any
claim for delictual damages.”
[28]
[103]
And later:
“
Thus
in the instant case the respondent was required to adduce evidence -
a 'voldoende getuienisbasis' in the words of Jansen JA
- in support
of its contention, that is to say, that for the next 35 years, or for
some shorter period, medical services of the
same, or an acceptably
high, standard will be available to the appellant at no cost or for
less than that claimed by him.”
[29]
[104]
The Constitutional Court in
DZ
expressed the view that
Ngubane
was authority for allowing the defendant to produce evidence that
medical services of the same or higher standard at no, or lesser

cost, than private medical care, will be available in the future to
the plaintiff to defeat or reduce a claim for future medical

services. In this regard it said:
“
If
that evidence is of a sufficiently cogent nature to disturb the
presumption that private future healthcare is reasonable, the

plaintiff will not succeed in the claim for the higher future medical
expenses. This approach is in accordance with the general
principles
in relation to the proving of damages.”
[30]
[105]
The Constitutional Court further said in this regard that:
“
This
approach does not offend the ‘once and for all’ rule. It
is a ‘once and for all’ factual assessment
on the
evidence adduced that, although the claimant will need medical care
in future, it has not been proved on a balance of probabilities
that
this entails a loss in the sense that the claimant’s patrimony
after the delict is less than it would have been had
the delict never
occurred. It is not the mere injury and its future consequences that
justify an award of damages, but the actual
diminution in the
claimant’s patrimony”.
[31]
[106]
The court referred to this as the “mitigation of damages
defence”. The defendant in this matter argued
that whilst it
does not rely on this defence, it is important to recognize its
existence and ambit because this demonstrates that
the development of
the common law sought by the defendant is incremental, and not
radical.
Ngubane
itself represented an incremental development of the common law. The
common law position before
Ngubane
was as stated in
Williams
[32]
,
that there is no authority for the proposition that “where a
potential patient demands provision for future medical treatment
he
is entitled to be awarded the cost of a private clinic in preference
to the cost of a public hospital”.
[33]
Authority
for the development of the common law
[107]
As foreshadowed earlier in this judgment, it is
DZ
which
opened the door for the possible introduction of the constitutional
defences pleaded in this case. The majority found,
obiter
,
that the way was open for such defences but that it could not
entertain them as the foundational evidence in support thereof had

not been placed before it. It however explored the scope for the
development of the common law in this regard.
[108]
In doing so, the Court considered the origins of the once and for all
rule and its corollary, that a court is
obliged to award damages in a
lump sum, and the delictual principle that damages sound in
money.
[34]
It further found
that the common law requirement, to the effect that damages should
sound in money, is not beyond scrutiny and
that to “require
compensation in money as the ‘measure of all things’
therefore appears to be an evaluative normative
choice.”
[35]
The Court also held that it was “arguable that the fundamental
right of everyone to have access to healthcare services and
the
state’s obligation to realize this right by undertaking
reasonable measures introduce factors for consideration that
did not
exist in the pre-constitutional era.”
[36]
[109]
In dealing with the public healthcare defence, the Constitutional
Court said:
“
Future
medical expenses are awarded in respect of medical services that the
victim may need in the future, which would have been
unnecessary had
there been no delict. In principle the actual rendering of these
services would fulfil the twofold purpose of redressing
damage
and compensating the victim…
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.'” [Footnote omitted.]
[110]
The Court further pointed out that the lump sum and once and for all
rules are similarly not beyond scrutiny and
added:
“
As Nicholas
JA pointed out in
Southern Insurance Association
, the enquiry
into damages for future loss is-
'of
its nature speculative, because it involves a prediction as to the
future, without the benefit of crystal balls, soothsayers,
augurs or
oracles. All that the Court can do is to make an estimate, which is
often a very rough estimate, of the present value
of the loss.'
Professor
Fleming calls these shortcomings 'lamentable beyond imagination':
'It
would be bad enough if the choice were between guessing either right
or
wrong: but our methods virtually assure that the choice
must
turn out wrong. For the accredited approach is to compromise, that
is, neither to award the whole amount nor yet to refuse all,
but
instead to assess and
award
the value of the chance
.'”
[37]
[111]
In dealing with the undertaking to pay defence the Constitutional
Court likewise indicated that there is room
for development of the
common law as follows:
“
Although
the 'once and for all' rule, with its bias towards individualism and
the free market, cannot be said to be in conflict
with our
constitutional value system, it can also not be said that the
periodic payment or rent system is out of sync with
the high
value the Constitution ascribes to socioeconomic rights. There is no
obvious choice at this highest level of justification.
What
appears to be called for is an accommodation between the two. Is that
possible?...
If
the only choice open to us was at this level then it would probably
be better to leave reform to the legislature. But this may
not be so.
Resolution of the dilemma may lie in leaving the choice at the level
of each individual case, depending on which form
of payment will best
meet its particular circumstances…
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”. [Footnote omitted.]
[112]
Having regard to the sentiments expressed by the majority of the
Constitutional Court in dealing with the constitutional
defences
presently before me, I can only but conclude that these
dicta
amount to powerful and persuasive support from the apex court, albeit
that they are
obiter
.
[113]
As noted in the
DZ
judgment, other jurisdictions have departed from a strict presumption
that delictual damages for medical negligence claims should

necessarily sound in money or should be paid out in a lump sum.
[38]
The judgment concludes by noting that “[t]here is no obvious
choice” between the once and for all rule and the alternative

systems at the level of principle.
[39]
[114]
An aspect which was of some concern to me during this trial was the
question as to why it has been left to the
courts to assist the
government with a problem which could be solved by approaching the
legislature. The Constitutional Court in
DZ
did not however regard this consideration as closing the door on the
development of the common law in this regard, particularly
if such
development were not to involve the wholesale rejection of the
common-law rules themselves as is sought by the defendant.
As alluded
to by Dr Wagner during her evidence, and referred to in
MSM,
[40]
a draft bill has been presented before Parliament for the amendment
the State Liability Act to permit both periodic payments and
orders
for the state to provide treatment to an injured party at a public
health establishment. This was gazetted in May 2018.
We are now
entering 2023 and it has not yet made the statute books. To repeat
the words of Keightley J in this regard “It
is simply no answer
to the defence raised by the MEC to say that he should wait until
Parliament decides to adopt the amendment,
if indeed this comes to
pass.”
[41]
She added
that as these rules are judge made, it would be appropriate for the
courts to develop them.
[42]
Indeed, Dr Wagner testified that the problem was escalating in the
interim. It is also well known that legislation of this nature
which
may impact upon the income of the legal profession is likely to face
powerful opposition in the committee stages of the bill’s

passage.
[115]
It is also of some relevance to bear in mind that the common law
rules were developed in the English courts, the
origin of the once
and for all rule having been traced back to
Fetter
v Beale,
[43]
a 1701 judgment. The rules were absorbed into the South African
common law driven by contemporary policy concerns, and it may well
be
appropriate that they be revisited to accommodate the present-day
situation.
[44]
[116]
The principles set out in this regard in the
DZ
judgment have generally been well received by academic
commentators
[45]
, whilst also
cautioning that the legislature should be the “engine of
reform”.
[46]
[117]
The importance of the DZ defences was affirmed by Madlanga J in the
PN
judgment in substantiating why the court should interpret an order
separating liability and quantum to permit the MEC in that matter
to
lead evidence raising the DZ defences.
[47]
[118]
The principles set out in the
DZ
judgment have found expression in several subsequent judgments from
the high courts in Gauteng, KwaZulu-Natal and the Eastern Cape.
In
MSM
[48]
the Gauteng division considered a claim similar to the present. In
that matter, the defendant raised the public healthcare defence
and
pleaded that any amount due by way of monetary damages should be paid
by way of periodic payments, rather than a lump sum.
The court
considered both the existing common law and what a defendant would be
required to establish for the development of the
common law.
[49]
The defendant led the evidence of the CEO of the hospital that it
intended should provide services in kind, a senior manager in
the
provincial health department and the evidence of medical specialists
who would primarily be responsible for the care of the
child, in
order to lay a basis for the ability of the state to care for the
child.
[50]
On the basis of
this evidence, it was concluded that sufficient evidence had been
adduced by the defendant to establish that the
state was indeed able
to provide the services at a standard equivalent to, or better than,
the standard prevailing in the private
sector.
[119]
In coming to this conclusion, the court considered various aspects
including the following:
119.1
The
socio-economic constitutional obligations of the state pursuant to
the provisions of section 27(2) of the Constitution;
[51]
119.2
The
fact of the increasingly large damages awards against the state in
similar cases and the resultant reduction in resources
available to
meet its constitutional obligation to progressively realize the right
to healthcare services for the populace;
[52]
119.3
Should
the reparation in kind make good the harm inflicted whilst at the
same time guard against a reduction in the state’s
resources
and capacity to meet its obligations in terms of section 27(2), this
would amount to a compelling basis for the development
of the common
law;
[53]
119.4
As emphasized in
DZ
, the development would be limited in
ambit as it would be confined to the case of a child with CP injured
at a public hospital
and would not affect all medical negligence
cases;
119.5
Based on the evidence led before the court, Keightley J further
commented that there is a:
“
double
edged sword hanging over the state: while it faces expensive damages
claims for cerebral palsy births, it remains constitutionally
obliged
to continue to render health services to everyone. Axiomatically, the
more the state must pay out in monetary compensation,
the less
resources are available to it to comply with its constitutional
obligation.”
[54]
119.6
On
the strength of the evidence led before it, the court found that it
was both necessary and in the wider interests of justice
that the
common law be developed to “make orders for compensation in
kind as opposed to being restricted to making orders
for monetary
compensation for future medical expenses”.
[55]
[120]
As I understand the
MSM
judgment, it provides compelling support for the development of both
DZ
remedies pleaded in this case. The
ratio
decidendi
of that case was, furthermore, approved of and applied in the
subsequent case of
Mashinini
.
[56]
[121]
It should be mentioned that
PH
obo SH
[57]
would appear to be authority against the development of the common
law. However, I must respectfully differ with the findings made
by
that court in this regard. In the main, the court found that:
“
It
appears to me, with respect, that the Court in
DZ
did not sufficiently consider the impact of the fundamental aspects
of the so-called public healthcare defence on the provisions
of the
Constitution.”
[58]
[122]
In an interlocutory judgment delivered by Zilwa J in this case,
[59]
it was found that this matter is distinguishable from
PH
as
a matter of interpretation of the antecedent court orders in each
matter in terms of which the defendants were found to be liable
on
the merits. Despite what was said in
PH
,
Zilwa J’s judgment is generally supportive of the development
of the common law as contended for by the defendant and it
considered
the plea in this matter to be one that complied with the requirement
of “a carefully pleaded argument” as
laid down in
DZ
.
[60]
[123]
As against this background, the defendant has contended that the
development of the common law is justified in
terms of sections
39(2), 173 and 172(1)(b) of the Constitution based on the evidence
led by her. On the other hand, the plaintiff,
pursuant to what was
said in
PH
relating to the alleged failure of the
Constitutional Court to sufficiently consider the impact of the DZ
defences on the provisions
of the Constitution, has contended that
various rights of the plaintiff (and her child) and of other
similarly placed individuals,
would be infringed should the common
law be so developed. The plaintiff has also contended that the
defendant has not established,
for the purposes of section 39(2),
that the existing common law is contrary to a specific constitutional
right or, more broadly,
the spirit, purport and object of the Bill of
Rights.
[124]
Before dealing with these arguments, it will be necessary to consider
the evidence led by both the defendant and
the plaintiff and as to
whether, on a conspectus of all the evidence, it is sufficiently
cogent in the defendant’s favour
to “carry the day”.
[61]
Before doing so however there is one further aspect which requires
determination as it is intertwined with the various matters
I must
consider before reaching this conclusion. That is the question of the
standard against which the defendant’s services
should be
measured.
What
is the standard required by the law against which the defendant’s
services should be measured?
[125]
Should the court conclude that the common law ought to be developed
to include the public healthcare remedy, it
is necessary to determine
the standard which it should set for the defendant to establish that
it can provide the required future
medical services. In this regard,
the defendant has pleaded the required standard as being a reasonable
standard, alternatively
an acceptably high standard, alternatively a
standard “at least equivalent to that provided in the private
health sector”.
[126]
In
MSM
it was concluded that, pursuant to
Ngubane
,
the required standard ought to be the equivalent of that existing in
the private healthcare sector, or an acceptably high standard.
[62]
In this regard, the defendant has a submitted that this court ought
to depart from the approach in
MSM
for the following reasons:
126.1
There is no scientific or empirical basis for the assumption that the
private sector is automatically the
provider of a
suitable standard of care. Dr Saloojee and Dr Wagner testified to the
flaws in that assumption. Prof. Van den Heever
also referred to
certain problems in the private healthcare sector, albeit different
ones to those in the public sector. No real
evidence has been led in
this case to establish that the standard in the private sector is
indeed superior.
126.2
The standard of private healthcare is not universal. It may be that
the standard is low in a particular area where
a plaintiff might find
him or herself. In the circumstances, holding the defendant to the
standard in private healthcare for purposes
of applying the public
healthcare defence may operate to the plaintiff’s prejudice.
The adoption of a “reasonable standard”
is thus more
capable of objective application which is consistently beneficial to
the injured party.
126.3
The
Ngubane
judgment, upon which the aforementioned conclusion
in
MSM
was based, predates the Constitution. Section 27(2)
thereof as read with the jurisprudence on socio-economic rights, has
adopted
the reasonableness standard as the one which guides the level
at which state policy and practice should deliver on socio-economic

rights. This would operate to prevent inconsistent treatment as
between CP children with, and those without, the benefit of medical

negligence claims.
126.4
The testimony of Dr Wagner, Prof. Chitnis and Dr Michaelis highlight
why this assumption should not prevail. They
demonstrated in the
witness box that they are highly qualified, skilled and award-winning
professionals who possess a sincere concern
for their patients and a
commitment to public service. Ms Moni-Tsawu, who was called by the
plaintiff and criticized the capacity
of Frere hospital, also
accepted that the healthcare workers at that hospital are efficient,
hard-working, compassionate, very
skilled, competent and dedicated.
126.5
To require a standard of service that is relative only to the private
sector, does not take into account the uncontested
evidence that the
public and private sectors each have their strengths and limitations.
It would be better for the plaintiff to
have the best of the
strengths of both sectors which a “reasonable standard”
would allow. This would also be consistent
with section 28(2) of the
Constitution which requires the court to consider the best interests
of the child.
126.6
There was also evidence to the effect of “overservicing”
in    the private healthcare
sector, and it would be
wasteful to hold the defendant to a standard which to some extent is
based on overservicing.
[127]
It was the plaintiff’s argument in this regard that the
standard set by
DZ
was indeed that it is necessary to
establish that the public healthcare services are the equivalent of,
or a higher standard than,
that existing in the private healthcare
sector. It was submitted that this was indeed the standard accepted
in
MSM
.
[128]
It is of importance to note three things about the dictum relied on
by the plaintiff in
DZ
in this regard. Firstly, in dealing with the required standard,
Froneman J was dealing with the mitigation of damages defence,
a
defence which the defendant has purposefully jettisoned and not
relied upon in this case. Secondly, whilst it is correct that

Froneman J said
Ngubane
is authority for allowing a defendant to produce evidence of medical
services of the same or a higher standard, in doing so he
was
effectively summarizing the dictum in
Ngubane
.
[63]
Thirdly, insofar as the public healthcare defence is concerned, and
insofar as this part of the dictum may be related thereto,
it is
accepted that it was an
obiter
dictum
.
[129]
The difficulty which I have with the statement that
Ngubane
is
indeed authority for this contention, is that Kumleben JA in
Ngubane
did not say that the evidence in rebuttal by a defendant should
establish that medical services “of the same or higher
standard”
will be available to the plaintiff in the future. He
said that the respondent was required to produce evidence in
rebuttal:
“…
..in
support of its contention, that is to say, that for the next 35
years, or for some shorter period,
medical services of the same,
or an acceptably high, standard
will be available to the
appellant at no cost or for less than that claimed by him.” [My
underlining]
[130]
Indeed, during the course of reaching this conclusion, Kumleben JA
stressed the question of reasonableness in
this regard particularly
by reference
[64]
to the cases
of
Erasmus
[65]
and
Janeke
.
[66]
On my reading of
Ngubane
,
the underlying premise relating to the standard required was one of
“reasonableness” which is in harmony with section
27(2)
of the Constitution and its jurisprudence as dealt with earlier. When
Froneman J summarized this aspect of the
Ngubane
judgment, he did not say that he differed therefrom and thus, because
of his reliance on that case, one can assume that he intended
to
accurately restate the law as set out in
Ngubane
.
Thus, one can conclude on this aspect that Froneman J intended to say
that the standard required was that of a standard equating
to that in
the private sector, “or an acceptably high, standard”
which, in my view, and because of the reasons I have
set forth above,
translates into his saying that the standard of “reasonableness”
is what is required.
[131]
I am further fortified in this view by the practicalities involved in
comparing a vast private healthcare sector
in the country with that
of an equally vast, if not greater, public healthcare sector. As
submitted by the defendant, a number
of geographical factors will
play into this and in particular the fact that each separate province
has its own health department.
A requirement that the courts should
reach a conclusion as to whether the public healthcare in a
particular province, or indeed
in a particular locality, is the same
or of a higher standard than the private healthcare in that province
or locality would be
very difficult. On the other hand, a requirement
that such medical services are available at a reasonable standard,
whilst at first
blush may seem to be a case of ‘lowering the
bar’, does, in my view, allow the courts more leeway to examine
the exigencies
of each particular case and to reach a reasoned and
logical conclusion on the evidence before them. In this regard it is
so, as
testified to by various witnesses, that the standard of
healthcare in the private sector itself is not universal.
[132]
Furthermore, there is much merit in the contention that it would be
better for the plaintiff to have the best
of the strengths of both
sectors which a “reasonable standard” would accommodate,
and it allows for consistency with
section 28(2) of the Constitution
and it’s imperative that a child’s best interests are of
paramount importance in
every matter concerning the child.
[133]
For these reasons I conclude that a “reasonable standard”
is the standard against which this court
must assess the future
medical services available in the public sector, in the event that
the common law is developed.
Assessment
of the evidence led regarding development of the common law
[134]
The evidence summarized earlier in this judgment has reference to
this part thereof. Regarding the evidence of
the defendant’s
witnesses, namely Mr Donaldson, Mr Frachet, Mr Howes and Dr Wagner,
it is so as submitted by the defendant
that there was no real direct
evidence presented by the plaintiff to contradict the factual
assertions contained therein. In any
event, having listened to these
witnesses I am satisfied that they gave evidence in a forthright and
direct manner, were thoroughly
truthful in their factual assertions
and tried their best to give the court a full and complete picture of
the situation pertaining
in the public sector. In this regard, I am
fully alive to the fact that Mr Frachet, Mr Howes and Dr Wagner may
be imbued with a
degree of self-interest as they are employed by the
defendant department. However, throughout their evidence I perceived
no sign
of bias in favour of the defendant. In fact, I was most
impressed with the way each of these witnesses strove to assist the
court
and, in particular, made concessions where such were warranted.
They were also alive to the fact that the public healthcare sector
in
the Eastern Cape has not, over the years, been a model of virtue and
efficiency. In this regard, they readily conceded deficiencies
in
administration and, in some instances, maladministration in the
department over the years. I am accordingly satisfied that I
can
accept their evidence as being both sincere and truthful.
[135]
Indeed, the cross examination of these witnesses was, in the main,
predicated on the various reports of the plaintiff’s
witness,
Prof. Van den Heever, and the criticism of their evidence stemmed
directly from his reports together with the evidence
of the professor
himself. It is therefore necessary to examine the evidence of Prof.
Van den Heever and to consider whether it,
in its totality,
undermined the case put up by the defendant through the
aforementioned witnesses.
[136]
At the outset, it is necessary to state that Prof. Van den Heever’s
credentials are beyond reproach. As
foreshadowed in the earlier
summary of his evidence, he is a highly qualified economist
particularly in the field of health. Not
only this, but his
experience in the field of governance and, again, particularly in the
field of health governance, is very extensive.
His expertise in this
regard is beyond question and he impressed me with his immense
knowledge of the economics relating to both
the private and public
health sectors within the country. He also impressed me regarding his
knowledge of, and retention of, facts
and figures pertaining thereto.
[137]
However, despite this, there are several aspects of his evidence
which are of concern. It is necessary in this
regard to observe that
his evidence amounted to an extraction of words and figures from
various reports pertaining to the health
department of the country in
general, and in particular to the health department of the Eastern
Cape. His analyses relied almost
exclusively on such facts and
information as he gleaned in this regard. At no stage did he tender
evidence in direct rebuttal of
the defendant’s witnesses. In my
view, his evidence was akin to the evidence of an accident
reconstruction expert attempting
to undermine the evidence of
eyewitnesses to the event in a motor vehicle accident case. Having
made these observations, it is
necessary to deal with further aspects
of his evidence which are troublesome.
[138]
In his first report he argued that compensating victims of medical
negligence other than through a lump sum pay-out
would result in an
unjustified transfer of risk and a departure from the principle of
social solidarity which underpins both the
public and private health
systems, and that, because he viewed the defendant department as
being poorly managed, the DZ remedies
would transfer the risk of that
poor performance into a vulnerable household. In this regard, he
claimed that the department “endemically
lacks the systems and
leadership to competently run a health department”.
[139]
A difficulty I have with this contention is the simple fact that he
came to this conclusion without a consideration
and analysis of the
actual remedies, their nature and in particular the finely tuned
draft order which has been proposed by the
defendant. It has been
accepted that this draft order, in essence, amounts to the heart of
this case as it sets out in precise
detail how the proposed remedies
would operate in a manner to ensure BN’s rights are fully
protected.
[140]
In my view, had the professor considered the defendant’s
proposed remedies and in particular the nature
of the draft order, he
may well have changed his view in this regard. He accepted that both
the public and private healthcare systems
fall within a formal system
of social protection but did not consider that the proposed remedies
involve provision of the required
medical services for free. On this
basis, it does not seem to me that the argument that there is a
transfer of risk back to a vulnerable
household can hold any water as
via these remedies, BN would remain within a system of social
protection.
[141]
A further difficulty with this contention is the fact that the
defendant has described a number of serious risks
which have arisen
from, and are thus attendant upon, the grant of a lump sum in a case
such as this. By way of example, the evidence
discloses in fine
detail how many millions of rands have been misappropriated by
lawyers and trustees who have not administered
funds properly.
Indeed, the professor conceded that there exists a transfer of risk
to the families of injured parties if it remains
possible for such
funds awarded to a claimant to be misappropriated when damages are
awarded on a once and for all basis. Furthermore,
he conceded that
significant amounts paid out in compensation are lost in contingency
fees paid to lawyers, disbursements and costs
of administering
trusts. By contrast, the public healthcare remedy in operation with
the undertaking to pay remedy would provide
entirely for the
plaintiff’s future medical needs and not only 75%, or less, as
is the case when 25% or more is extracted
from the award.
[142]
A further pertinent aspect relating to the transfer of risk is the
possibility of BN’s future medical needs
exceeding the sum
awarded, particularly in the event of his living beyond his life
expectancy. On the other hand, the DZ remedies
would ensure that BN
receives continued future medical care even if he were to outlive his
estimated life expectancy or were he
to experience unanticipated
medical complications.
[143]
Mr Donaldson differed with the contention that lump-sum awards
resulted in the risk effectively being passed back
to the individual,
vulnerable families of the claimants for various valid reasons, some
of which I have already dealt with. He
further pointed out, as
accepted by the professor, that should the funds awarded to a
particular claimant run out (either by effluxion
of time,
misappropriation of funds or unanticipated medical expenses) this
would result in the state effectively paying twice for
that
claimant’s damages as such claimant would in that event be
entitled to approach public healthcare for assistance. One
way of
eliminating such risk would be the application of the DZ remedies.
Furthermore, whilst Mr Donaldson agreed with the professor
that if
the state failed to minimize the risk of medical negligence, this
would not be a saving but a departure from the principle
of social
solidarity, he noted that the state had extensive efforts underway to
address the underlying causes of similar medical
negligence cases
which, according to Mr Donaldson, was an important part of the
response of the state. Such efforts are being coordinated
nationally
under the direction of a committee, and the Eastern Cape was moving
in the right direction in this regard. This evidence
was supported to
the hilt by that of Dr Wagner.
[144]
Regarding the demeanour and presentation of his evidence, whilst I am
hesitant of being critical of a person of
his stature, qualifications
and experience, it is of some importance to note that Prof. Van den
Heever tended in evidence to become
wedded to his propositions and/or
arguments. On several occasions under cross examination, when
contrary propositions or arguments
of some merit were put to him, he
refused to make any concessions. He also tended to ignore the
question or proposition put to
him and regaled the court with lengthy
hypotheses unrelated thereto. This was, to my mind, epitomized by his
production of several
newspaper reports (some of which were
attributed to him) which severely criticized the defendant
department. Quite apart from the
fact that many of these articles
amount simply to hearsay upon hearsay and are unable to be tested in
court, it appeared to me
that he was determined to fortify his views
in any way he could. In my view, had he indeed fully believed in his
empirical analysis
of what he perceived the facts to be, it would
have been unnecessary to resort to the production of such evidence. I
am accordingly
not prepared to take into account any such articles
from newspapers or other publications.
[145]
An additional, and important, fact in this regard is that a
substantial portion of the professor’s evidence
was contained
in his supplementary report which, as indicated earlier in this
judgment, was delivered after both Dr Wagner and
Mr Donaldson had
testified. They were accordingly not able to answer many aspects
which he raised and dealt with in evidence based
on that report, and
I do not believe that much weight can accordingly be attached
thereto.
[146]
Much time during the professor’s evidence, and in argument, was
spent on the question of the failure to
budget in advance for damages
awards based on medical negligence of departmental employees. He went
so far as to say that such
failure had, for various reasons set out
at length by him, criminal implications for Dr Wagner as head of the
department. The defence,
rightly in my view, spent much time in
establishing the contrary. However, I do not believe that it is
necessary to waste much
time on this aspect as it is, in my judgment,
largely a red herring vis-à-vis the proposed constitutional
defences.
[147]
It is an accepted fact that up until approximately 2010 large claims
of this nature did not exist. Whilst there
were a few medical
negligence claims, the quantum thereof as awarded by the courts was a
drop in the ocean compared to the awards
which are made today.
Additionally, for various reasons which were debated extensively
during evidence and argument, there has
been a vast increase in the
number of such claims over the past 12 years, particularly CP claims.
Their attendant damages awards
have evolved dramatically and appear
to average in the region of R25 million to R30 million, and in some
cases more. Accordingly,
in the earlier days such medical negligence
claims formed a small drop in the ocean of the department’s
budget, and indeed
of the national budget. In a relatively short
space of time, as I have described, this drop has grown
exponentially.
[148]
Mr Donaldson described how international accounting standards have
not accommodated such contingent liability
and may well have to be
adjusted in this regard. However, Parliament is unlikely to
prospectively approve a health department anticipating
its own
negligence. Rather, the accounting convention as it stands requires
that government departments prevent and contain these
costs and, if
such costs do occur, the relevant parliamentary committee is able to
review the settlements after the fact and, where
appropriate, assign
responsibility and recover costs. He testified that, in part, this
accounting convention operates to disincentivise
departments from
simply settling claims without investigation. Indeed, this is how
contingent liabilities are managed in the public
administration
system generally, including the police department and correctional
services.
[149]
Flowing from this, Mr Donaldson said that the instruction from
National and Provincial Treasury not to budget
for contingent
liabilities is thus an incident of accountability and parliamentary
oversight. It is an additional check and balance,
and accounting
officers are legally obliged to follow treasury’s instructions
and regulations. The system would fall apart
otherwise.
[150]
I have already mentioned how long it has taken for the legislature to
consider legislation dealing with the endemic
issue of medical
negligence claims against the state. It seems to me highly unlikely
that this accounting convention which the
department faces annually
is likely to be changed, and if it is, such change will only happen
far in the future. This being so,
it is a fact that the department
must live with this issue and all the debates in that regard appear
to me to be largely irrelevant.
Indeed, it is the very existence of
these vast claims and their effect on efficient governance coupled
with this convention which,
in my judgment, point ineluctably to the
constitutional defences having to be granted.
[151]
As regards the proxy indicators which the professor relied upon to
conclude that the department is poorly managed
and that this was a
good reason not to depart from lump-sum awards, in my view Mr
Donaldson’s evidence was far more balanced
and cautious. For
example, Mr Donaldson’s opinion was that Prof. Van den Heever’s
views were incautious in the way
in which they abstracted general
critiques based on such proxy indicators to determine a hospital’s
capability to meet particular
needs or care for children with such
needs. He stressed that if one takes a long-term view on health
service delivery, there is
marked improvement in performance
represented by many indicators over time despite the existence of
extraordinary stresses on the
system.
[152]
Mr Donaldson also said that whilst he accepted the professor’s
assertion that the management of health services
is important in
determining maternal mortality, a range of socio-economic
circumstances beyond the control of the public health
system are of
importance, such as the vast distance to hospitals, nutritional
levels, obesity, hypertension and the prevalence
of tuberculosis. He
testified that there has been a concerted effort at national level to
address maternal mortality, and that
the Eastern Cape has shown a
steady decline in in-facility maternal mortality rates. The professor
indeed conceded that there has
been such a decline.
[153]
Dr Wagner likewise presented cogent evidence pointing to problems
with the use of these proxy indicators as a
method of assessing the
capability of the public healthcare sector. She also stressed that
the Eastern Cape in particular carries
a historically poor investment
in healthcare infrastructure as a former “Bantustan”
under the apartheid government.
As regards the OHSC reviews, she
acknowledged that their assessments focus largely on input and
process measures and do not directly
measure the outcomes of service
delivery, which are of singular importance. Indeed, the professor
himself expressed some doubt
as to the reliability of OHSC
assessments in relation to the capability of the Gauteng Department
of Health and questioned the
logic underlying some aspects of the
data.
[154]
The third proxy indicator relied upon related to reports of the
Auditor General. The professor testified that
any qualification in an
audit is suggestive of managerial fault which is systemic in a
government entity. He testified further
that these findings relating
to health expenditure are consistent with the view that the public
health system is in crisis.
[155]
In this regard I must lean once again towards the view of Mr
Donaldson. He testified that such findings are incapable
of informing
as to the capability and commitment of the department to meet
particular needs of children in certain circumstances,
and indeed to
do so in terms of a framework to which the court will contribute in
framing. Such audit findings, he said, are not
necessarily a good
indicator of service delivery capacity. In his experience, such
performance assessment as reflected in the Auditor-General’s

reports is assessed by auditors and in many instances amounts to a
mechanical accounting exercise as opposed to an ascertainment
of the
actual performance of an individual department. Moreover, South
Africa sets comparatively high standards in public financial

management. He disagreed with the insinuations made by the professor
of corruption and maladministration against the department
based
solely on such audit findings.
[156]
Dr Wagner also undermined the usefulness of such reports. Professor
Van den Heever relied on the 2018 Auditor-General’s
report
which showed poor current performance by the department. Not only is
that report outdated, but the qualification to the
financial
statements relates to the amount of the department’s contingent
liabilities arising from medicolegal claims. It
is these very claims
which she seeks to address.
[157]
Having examined the evidence of Prof. Van den Heever, I am satisfied
that it does not undermine the evidence and
conclusions placed before
the court by the various witnesses who testified on behalf of the
defendant. In my view, the evidence
of Mr. Donaldson in particular
stands to be preferred. His written reports and his oral evidence
were both measured and objective,
and his reasoning process was not
shown to be flawed. He also readily made concessions when such were
necessary and appropriate.
He was able to explain complex and
technical issues in a simple and accessible manner and careful
reasoning supported his opinions.
Likewise, his experience in
relation to public finance is extensive and unparalleled. There is
little doubt that he has a deep
understanding, based on his
experience over many years, of the financial management of government
departments from every perspective,
including budgeting, planning,
expenditure of public revenue, financial reporting and auditing.
Does
such evidence support the development of the common law?
[158]
Particularly regarding the public healthcare defence, this case is,
in many respects, on all fours with
MSM
.
Accordingly, the
dicta
of
Keightley J in this regard are of equal application.
[67]
Having studied her judgment in this regard, I agree with her analysis
particularly as the evidence led in this case is largely
supportive
of the evidence led in that.
[159]
In
DZ
,
Froneman JA’s examination of the common law led to the obiter
conclusion that neither the once and for all rule nor the
money
damages rule were in conflict with the constitutional value
system.
[68]
He added that this
problem (which he categorized
in
vacuo
as it were, i.e. without any evidence as not being
prima
facie
offensive to the Constitution), should be dealt with on a
case-by-case basis. This is such a case. We now have evidence. In
addition
to what was said in
MSM
,
the evidence in my view discloses at least two obvious bases upon
which such common law rules offend the Bill of Rights.
[160]
Firstly, it seems that all the witnesses ultimately accepted that the
department is struggling financially for
the various reasons which
have been dealt with. That being so, heaping more “once and for
all” claims on the department
averaging approximately R30
million apiece, can only make the situation worse. This has the
result that the department’s
ability to carry out its
obligation of realizing access to health for everyone in terms of
section 27(2) is increasingly under
pressure. Dr Wagner and Mr
Donaldson emphasized that the stress (and further potential for
stress) on the department’s finances
has the result that 80 to
90% of the population of the Eastern Cape (the balance being serviced
by private healthcare as they are
insured) are not receiving the
healthcare that they ought to be. As the situation is worsening year
by year, in my view, this is
offensive to the Bill of Rights.
[161]
Secondly, as correctly pointed out by the plaintiff, whilst the
Contingency Fees Act has
not been found to be unconstitutional, in
most run-of-the-mill cases where legal practitioners abide by the
law, it has a salutary
effect in that it allows indigent people to
have legal representation albeit that they have to give up a
percentage of the award
ultimately given. Where that award is not
very high and does not represent an important component of damages
such as extensive
future medical services for a severely compromised
claimant, the 25% deduction for legal fees (or, hopefully, a lesser
percentage
if the Act is applied to its full extent) will not make a
great difference to the claimant’s quantum of damages. However,

when dealing with CP cases such as this, it is common cause that a
huge component of the damages award is represented by future
medical
expenses. This can account for R20 million or more of the claim. In
the once and for all situation, this amount is carefully
determined
by actuaries so as to provide future medical services for the
compromised child on an ongoing basis, hopefully for his
or her life
span. When one looks at the tendency of legal practitioners
(according to the evidence led in this case) to take 25%
of such
claims, and sometimes more, this represents in the region of R5
million or more which punches a significant hole in the
capacity of
the once and for all monetary award to provide fully for the
complainant. Indeed, the evidence of Mr Howes disclosed
that more
than 40% in some cases is taken up by lawyers’ fees.
[162]
If the CP child claimant lives to his or her life expectancy as
calculated at the time the award is made, he will,
in theory at
least, run out of funds to provide the necessary medical services
some time before reaching that point. This is more
so if the child
lives beyond its calculated life expectancy. It is therefore so that
in cases such as this where large awards are
made in accordance with
the common-law once and for all principle, large deductions are made
for legal services. These deductions
are much larger than in cases
where smaller awards are made and represent a reduction in the
ability of the award to sustain the
child over his or her lifespan.
This places the awards which are consistently made in similar CP
cases in a different category
to the general run of the mill damages
awards. This, to my mind, represents a further assault, if I may use
the word, on the constitutional
rights of such individual CP
claimants and thus further offends the Bill of Rights, and the
constitutional obligation imposed on
the state under
section 27(2)
to
“take reasonable legislative and other measures within its
available resources, to achieve the progressive realization
of
[healthcare services]”.
[69]
[163]
In this regard, it should be mentioned that the plaintiff has argued
that the contrary would be true where a CP
child does not live out
its full lifespan. If he or she indeed were to live three quarters of
his or her lifespan as ascertained
at the time of the award, this
would translate into him or her probably having enough funds
therefrom to sustain the necessary
medical services until the time of
his or her death. However, in my view this argument is, to a degree,
tautologous. The very purpose
of ascertaining the longevity in
advance is to try, insofar as is humanly possible, to ensure adequate
compensation in the future.
If it cannot be ascertained with any
degree of accuracy, this is a further reason to consider jettisoning
the once and for all
rule in such cases. The purpose of such an award
is to ensure that the child’s patrimony is restored to the
position it would
have been had the cerebral palsy not occurred and,
based on the once and for all rule, an attempt is thus made to
provide sufficient
funds to sustain the child as best possible and in
accordance with best medical practice, during its anticipated
lifespan. It would
be wrong in these circumstances to assume that its
lifespan would be 25% shorter than that calculated by the experts to
justify
a large lump sum being paid in legal fees. Furthermore, once
the funds do indeed run out sometime before the child’s
anticipated
lifespan is reached, it is almost inevitable that the
child’s medical needs will be cast back upon the public
healthcare
service. This, in turn, will place more stress upon the
public healthcare service despite it having paid out a large lump sum
to
avoid this very situation. Again, this reduces the capacity of the
department to carry out its responsibilities in terms of the

Constitution, which is offensive to the Bill of Rights.
[164]
Before leaving this aspect, it should be mentioned that the plaintiff
argued that the introduction of the constitutional
remedies would
result in reduced interest on the part of legal practitioners to take
up the cases of CP claimants which would,
in turn, affect their right
of access to the courts. I do not regard this as a valid argument. I
say so because of many reasons,
the more important of which is the
fact that if such were to happen, it would be an indictment on the
legal profession. Also, the
introduction of such defences does not
eliminate partial lump-sum awards. For example, in the present
matter, the lump sum award
will amount to almost R4 million. This is
still a sizable sum for the calculation of contingency fees. RAF
cases attracting similar
quantum awards, and indeed less, are
regularly handled by legal practitioners on a contingency basis. It
seems to me that this
argument is spurious in these circumstances.
[165]
In addition to the foregoing, in my view the evidence overwhelmingly
establishes that there are other areas in
which the common law rules
conflict with the constitutional value system. In this regard
reference is made to the rights of everyone
under section 27(1)(a)
and (2), together with the rights of all children under section
28(1)(c) and (2), and the right under section
9 (1) to equality
before the law and to the equal protection and benefit of the law. In
my judgment, the limited and incremental
development sought in this
case is therefore justified in terms of section 39(2).
[166]
Section 173 also empowers the superior courts to develop the common
law, taking into account the interests of
justice. I am satisfied,
based on the evidence led in this case, that it is also in the
interests of justice that the common law
be developed so as to
provide courts which adjudicate medical negligence claims with a
broader remedial framework, including the
remedies pleaded in this
case.
[167]
It seems self-evident that both the public healthcare and the
undertaking to pay remedies should be developed
together as they
operate in tandem. The evidence discloses that the most expensive
items inflating lump-sum damages awards are
those such as caregivers
which the state is unable to provide in kind. If the undertaking to
pay remedy is not granted in tandem
with the public healthcare
defence, this will serve to substantially reduce its efficacy.
[168]
The draft order proposed by the defendant in which development of the
common law in this regard is articulated
is in line with the
Constitutional Court’s direction in
Makate
which
requires that changes to existing law be articulated with the same
clarity as the rules and principles that they seek to replace.
[70]
I thus conclude that a case has indeed been made out for the
development of the common law as set out in the proposed draft order.
Does
the evidence establish a reasonable standard in public healthcare at
the relevant hospitals?
[169]
In this part I intend to deal briefly with the evidence led for and
against the ability of the department to provide
the medical services
and supplies at the required standard, together with an analysis and
conclusion in that regard.
[170]
Dr Wagner’s qualifications and experience have already been
dealt with. In essence, she testified that:
170.1
There is extensive interaction between public and private
healthcare in the province.
170.2
Both Frere and CMH are accredited academic hospitals falling
within the East London Academic Complex and
are the exclusive
practical training grounds for both undergraduate healthcare workers
and specialist doctors irrespective of whether
they end up in the
public or private sectors.
170.3
There are certain benefits which the public sector enjoys in
contrast to the private sector. An example
she gave was the question
of economies of scale. In the private sector doctors and specialists
work as independent contractors
whereas a large number of healthcare
workers are employed by the public sector. Thus, a single specialist
employed in the public
sector is able to treat many more children
with greater efficiency as profit margins are built into the cost of
care in the private
sector. Economies of scale also assist in
procurement.
170.4
The public sector enjoys higher utility from capital investments such
as MRI machines.
170.5
In the public sector the employment structure makes it easier
to arrange and implement multidisciplinary
platforms which has
benefits for the patients such as the review of complex cases and in
ensuring the continuity of care.
170.6
Dr Wagner also testified that the public sector is better able
to take advantage of the collegiate environment
and relationships
that the public sector employment structure enables. In this regard,
she used the word “collegiate”
to convey both the
continuing professional development and training that is built into
daily practice, such as during ward rounds
with specialists, and
continuity of care that is promoted by having specialists and
clinical staff under the same umbrella, and
physically under the same
roof.
170.7
She was supported in her evidence by Mr Donaldson to the effect
that the trajectory is towards improvement
and expansion of
healthcare services throughout the public healthcare system. In her
view, the likelihood would be that the services
available to all CP
children in the public healthcare system, including both those who
have and those who do not have medico-legal
claims, will improve and
expand over time. Additionally, despite the huge burden of servicing
the vast majority of the population,
there has been considerable
progress in the availability and effectiveness of healthcare services
during the past two decades.
170.8
During her time as CEO of Frere Hospital, Dr. Wagner
implemented a turnaround plan which improved operations
and
leadership in the hospital. This led to measurable improvements in
mortality and morbidity and to the hospital winning an international

award for improvements in quality of care. She has also instituted a
turnaround strategy for the entire department since she has
become
the head thereof. She testified that the need for this strategy
arose, amongst others, because of the approximately R4.5
billion
budget deficit largely caused by medicolegal claims as well as
increasing demands caused by the pandemic. While in its
early stages,
this turnaround strategy has already made significant progress.
170.9
She emphasized that BN will receive priority treatment and that
a budget has been ring fenced for this purpose.
This budget will be
incrementally enhanced should the court grant the constitutional
defences to cater for further CP cases.
[171]
Prof. Cooper, who is both a paediatrician and a neonatologist,
examined the hospitals concerned with a clinical
eye. It was his
opinion that both CMH and Frere hospitals are able to cater for BN’s
clinical needs at a standard equivalent
to that which is available in
the private sector. In this regard, he dealt with all the disciplines
which may be required by BN
and, except for child psychiatry,
concluded that they satisfy the necessary test. As regards child
psychiatry, there appears to
be no indication that BN requires this.
Prof. Cooper added that CMH is a newly built hospital which has
attractive and spacious
paediatric wards whilst those of Frere are
smaller and in poorer condition. However, he was satisfied that the
hospitals have always
been able to accommodate children in the wards
of one or other of the hospitals. As regards intensive care, he
conceded that the
beds in the paediatric section are usually at a
premium. However, ICU care for children with CP is rarely needed but,
should it
occur and no accommodation be available, they could be sent
to the private sector.
[172]
Dr Saloojee who is a physiotherapist in private practice, and a
researcher, has an extensive and impressive CV.
Not only is she
highly qualified academically, but she has had considerable
experience with CP children and in particular in dealing
with their
rehabilitation. In brief, she testified as follows:
172.1
At the two hospitals concerned, children with CP are seen
monthly in a group setting by a multidisciplinary
therapeutic team.
This offers several advantages over individual therapy.
172.2
In addition thereto, both hospitals have a number of therapists with
postgraduate training in working with CP
children.
172.3
As fortified by the evidence of Dr Wagner and Prof. Cooper, she
considered that it was possible that all of BN’s
therapy needs
could be accommodated in the public sector.
172.4
She was satisfied that the department is actively training its
therapists to provide the type of specialist
care required by BN
whereas, as there is no regulation limiting therapists working with
CP children, therapists in the private
sector can treat children with
CP without necessarily having the postgraduate specialization to do
so. She added that there were
relatively few practitioners in East
London and even fewer, if any at all, at Mdantsane, who are
experienced in working with children
with CP.
172.5
She was happy with the rehabilitation department at CMH
describing it as “beautiful” and “fairly
new”
with plenty of space. She was also happy with the equivalent centre
at Frere.
172.6
She commended the CP clinics run at the two hospitals as being
multidisciplinary and providing a teamwork
and one-stop shop approach
to such rehabilitation together with psychological support.
172.7
A variety of dietary supplements are provided at CMH at no cost
for children with gastronomy tubes such
as BN.
173.8
She indicated her neutrality by testifying that the biggest
limitation of the services available at the
hospitals was the
caseload of children with CP and the ratio of staff available. She
however was of the opinion that because BN
would receive prioritized
treatment he would not be affected by such limitations. She also
identified certain shortcomings in the
rehabilitative facilities,
which concerns were communicated to Dr. Wagner. In turn, Dr. Wagner
testified that the department has
taken note of these concerns and
has already made substantial progress in addressing the shortcomings.
[173]
Mrs Caga, an occupational therapist in private practice, testified on
behalf of the plaintiff in rebuttal of the
defendant’s evidence
on this aspect. She said that she had noted that BN had recently lost
weight which, whilst in many respects
was a positive attribute,
indicated that his growth was stunted from undernourishment. She
however admitted that she was not a
dietitian. She also indicated
that he had not been properly cared for by the state as she
considered his PEG tube to be infected,
and his epilepsy to be poorly
managed. Again, she conceded that she was not an expert in diagnosing
such infections or problems.
She was also re-called after the
defendant had closed her case. It was this evidence which was
objected to as foreshadowed earlier
in this judgment. During this
subsequent evidence, she referred to her experience in case managing
two children as a basis for
her opinion that as far as occupational
therapy is concerned, CMH and Frere hospitals were not able to
deliver therapy to BN at
the required standard.
[174]
The plaintiff herself also testified in rebuttal. In the main, she
testified as to emotional difficulties when
having to take BN to
hospital, and that she felt traumatized in doing so. With due
respect, and empathy, for her state of mind,
it is so that the
psychotherapists for both parties agreed that Ms N[…] has been
severely affected by BN’s condition
and has developed a mood
disorder. Indeed, the defendant has agreed to provide her with
psychotherapy to assist in coping with
her son’s condition as
recommended by the psychotherapists. This was done even though her
claim had prescribed. For these
and other reasons, I cannot accept
her evidence as undermining the purport and effect of the evidence in
this regard as tendered
by the defendant.
[175]
The only other evidence tendered by the plaintiff in this regard was
that of Ms Moni-Tsawu. Once again, I do not
take her evidence into
account as it was shown to be unreliable and plainly wrong in several
respects. Furthermore, none of it
was put to Dr Wagner or Dr
Michaelis for them to answer thereto.
[176]
Dr. Wagner, as alluded to earlier in this judgment, was a most
impressive witness. She is energetic and enthusiastic
about her work
and has both the mental ability and managerial capability to put her
ideas into place, and to improve the quality
of medical care in the
province. Indeed, on her evidence, this is already well on its way.
Prof. Cooper was not cross-examined,
and his evidence clearly falls
to be accepted. Dr Saloojee was extensively cross-examined. I am
constrained to state that she was
an extremely impressive witness
with an extensive list of credentials. Her passion, her concern, her
experience and her ability
with regard to CP children is considerable
and palpable. Her neutrality and objectivity shone through during her
evidence in many
respects, but particularly in the way she not only
expressed positivity relating to the department, but also highlighted
the negative
aspects.
[177]
Regarding the evidence of Ms Caga, it seems from the hospital records
that BN is indeed receiving sufficient treatment
from a dietitian at
Frere Hospital. Prof. Chitnis, the head of Department of paediatric
surgery at Frere and CMH hospitals, and
who also operates in private
practice, testified with regard to the gastronomy tube fitted to BN.
He is clearly fully
au fait
with the problems relating to BN
and was satisfied that he had correctly treated all the problems that
had arisen. Indeed, during
the trial, a problem arose in this regard
and the case had to be stood down to the following day whilst the
hospital immediately
treated BN without demur. Furthermore, the
plaintiff herself testified that whenever BN has experienced
significant leakage from
this tube, it was immediately treated at
Frere Hospital. This evidence, in my judgment, demonstrates once
again that the department
is fully capable of implementing the public
healthcare remedy, and the high quality of services available for the
paediatric surgical
needs of BN.
[178]
Dr Michaelis, a paediatric specialist at Frere Hospital, also
testified regarding the neuro-developmental clinics
at both hospitals
and the nature of BN’s epilepsy care. Her qualifications and
experience indicate that she is more than
qualified to do this. She
was satisfied that BN had been receiving sufficient therapy in this
regard.
[179]
As regards the rebuttal evidence of Ms Caga when she subsequently
testified, it is so, as argued by the defendant,
that no expert
summary had been filed in this regard and that it was not put in
cross examination to the plaintiff’s witnesses.
This, to my
mind, serves to reduce its veracity. However, not only this, but her
evidence in criticizing the department relied
largely on hearsay and
speculation and, in my view, must be accorded a low probative value.
[180]
In the final analysis, it is my view that the defendant has tendered
extensive and valuable evidence which points
ineluctably to the
conclusion that both hospitals, working in tandem, are capable of
providing BN with the medical services and
supplies he requires at a
reasonable standard or above. This is even more so in view of the
fact that funds have been ring fenced
specifically for this purpose.
Having studied the evidence closely and in particular that tendered
in this regard on behalf of
the plaintiff, I am of the view that it
does not undermine the strength of the evidence tendered by the
defendant. I accordingly
conclude that the defendant has established
that the hospitals concerned are able to provide these services and
supplies at the
required standard.
The
remaining issues
[181]
In summary, the remaining issues for determination are: caregiving
requirements, occupational therapy, physiotherapy,
home alteration
costs, a transporter buggy and case management.
[182]
As regards the question of the transporter buggy, it seems to me that
no real challenge has been put forth in
this respect. In my view, a
case has been made out for the provision thereof.
[183]
Additionally, the question of the cost of protection and
administration of the award will also fall away because
the
constitutional remedies are to be preferred. This being so, the
relatively small lump sum award will not justify this.
Caregivers
[184]
The parties are poles apart in this regard. The plaintiff claims that
five caregivers are required for the care
of BN whereas the defendant
maintains that one is sufficient, together with a relief caregiver
whilst the primary caregiver is
on annual leave.
[185]
Extensive evidence was led, and arguments made, in this regard. The
defendant’s prime submission motivating
her claim that only one
caregiver is needed is the contention that the plaintiff, having been
BN’s primary caregiver for
his life thus far, should continue
to play an important if not a primary role in his caregiving which
would reduce the necessity
for more than one caregiver.
[186]
In developing the argument, the defendant relied on the case of
De
Jongh.
[71]
It is so that De Jongh’s case does to a degree support the
argument made on behalf of the defendant in this regard but, in
my
view, that case is distinguishable. As mentioned earlier in this
judgment, the plaintiff has already suffered extensively from
a
psychological point of view as a consequence of BN’s
incapacity. Indeed, she is receiving therapy to assist her. Whilst
I
accept that it is of vital importance for her to remain in the loop
as it were in pursuing the normal functions required of a
parent, I
do not believe that in the circumstances she should be visited with
the formal, additional, responsibilities of a caregiver.
[187]
Having come to this conclusion, and accepting that one caregiver in
the circumstances would be insufficient, the
question remains as to
the number of caregivers required to assist BN. It is common cause
that BN is totally dependent on a caregiver
to help him with the
activities of daily living such as dressing, undressing, eating,
drinking, going to the toilet, and turning
him at night when he
sleeps. It is also so that the parties have agreed that he should
attend a day care centre
[72]
every day. The plaintiff contends that even when he is at the
day-care centre, he should have a caregiver available in addition
to
the caregivers employed by the centre. I do not agree. In my view,
the evidence establishes that he is properly cared for whilst
at the
centre (which he has been attending for some time) and that an
additional caregiver in this regard is not required.
[73]
[188]
In considering the number of caregivers required, it is also
important to note that the court is bound to ensure
that its decision
is fair not only to the plaintiff, but also to the defendant. It is
further of importance to ensure that the
employment of such
caregivers will result in compliance with the Basic Conditions of
Employment Act.
[74]
[189]
In her initial report, Ms Caga recommended the employment of two
full-time caregivers in addition to BN’s
attendance at the day
care centre. She also submitted that a full-time domestic worker was
required while he was under 18 years
of age. In subsequent reports
she changed her mind and recommended a minimum of three caregivers
currently, which should be increased
to five when BN reaches the age
of 19. In argument before me, five caregivers were contended for.
[190]
I have considered all the evidence and arguments in this regard. In
my view, two caregivers will be sufficient taking
into account the
full-time care on weekdays during the day at the care centre, and the
fact that an alternate caregiver will be
made available when the
full-time caregivers are on annual leave. In this regard, as is
self-evident, the full-time caregivers
should not be given annual
leave at the same time. Once he turns 18, a mechanism will be
provided for in the order for agreement
as to caregivers from that
age onwards.
Physiotherapy
and occupational therapy
[191]
This has been another hotly contested issue. However, I do not intend
to enter that debate as I believe that there
is a better way forward.
As is clear from this judgment, the constitutional defences will be
introduced. The focus in terms of
these remedies is away from the
determination in advance of the actual requirements vis-à-vis
medical services. Without
in any way impugning the highly competent
expert witnesses who testified before me on behalf of the plaintiff
in this regard, I
am satisfied that Dr Saloojee has suggested a
regime based on her many years of experience which will, in all
probability, suit
BN’s unique situation. However, the order
which I intend to grant will allow for an increase (and indeed if
necessary, a
decrease) in the extent of the therapy to be provided.
Paragraphs 13, 14 and 15 of the order will provide for a mechanism in
terms
of which, were it to be necessary in the future, this regime
can be altered by agreement or, if absolutely necessary, by the court

including a clause to the effect that the defendant is to pay the
costs thereof. It is thus, lest there be any doubt, the intention
of
this judgment and its concomitant order, that the regime which I
intend to order regarding physiotherapy and occupational therapy
will
be subject to potential variation in terms of the clauses of the
order to which I have referred.
Alterations
to house
[192]
Both parties led the evidence of architects in this regard, it being
common cause that there is a necessity for
alterations to be made to
any residence that BN may in future live in, to accommodate his
disability. On the one hand, the plaintiff’s
expert maintained
that it was necessary for a completely new house to be built
elsewhere with many bedrooms and allied accommodation
for an extended
family. On the other, the defendant’s architect took a
conservative approach indicating that it would be
possible to
renovate a house in which the plaintiff and BN used to live with her
parents. This would cost in the region of R795,242.00.
[193]
I am not satisfied that the plaintiffs architects’ contentions
in this regard are reasonable or comply with
the existing common law
in restoring BN’s patrimony. On the other hand, considering
inflationary pressures and the fact that
the plaintiff and BN are at
present living in rented accommodation in East London, it seems to me
that the amount tendered by the
defendant in this regard is on the
low side. In my view, an amount of R1,100,000.00 would serve to
compensate BN in this regard.
Private
case manager
[194]
It is common cause, in the event of the constitutional defences being
granted, that both the public case manager
and a private case manager
are required. There is however a residual dispute regarding the
number of hours that should be provided
for the private case manager
to be paid for by the defendant. However, the plaintiff’s
expert in this regard, Ms Caga, did
not appear to challenge the
assertion under cross examination that the tendered regime with
regard to the private case manager
in the event that the
constitutional defences are granted, is reasonable, especially
bearing in mind that there will also be a
public case manager who
will procure the provision of services and supplies at the hospital.
To my mind, this is a reasonable concession
and the regime suggested
by the defendant cannot be faulted.
Costs
[195]
In the event of the constitutional defences being granted, and
pursuant to
Biowatch
,
[75]
the defendant does not seek costs.
[196]
In the circumstances, the following order will issue:
LUMP
SUM AWARD
1.
The Defendant shall pay to the Plaintiff the sum of
R2,136,146-00 as set out in Annexure “D”.
PUBLIC
HEALTHCARE REMEDY
2.
The Defendant is directed to provide free of charge to B[…]
N[…] (“BN”) –
2.1
All of the services, consultations, therapies, surgeries and
other procedures itemised in annexure “A” (‘the
medical
services’); and
2.2
All of the supplies, supplements, medicines, devices, and
other equipment itemised in annexure “B” (‘the
medical
supplies’),
at
one of the following hospitals, in order of priority, depending on
where the particular medical service or supply is available
at the
time that it is required:
2.2.1
the Cecilia Makiwane Hospital, Mdantsane (“CMH”);
or
2.2.2
the Frere Hospital, East London (‘Frere’); or
2.2.3
a public hospital nominated by the public case manager
(referred to in paragraph 18 below) in consultation with BN’s
private
case manager appointed in terms of annexure “C”,
for the duration of his life, or such other duration as may be
specified
in any particular instance in annexures ‘A’ and
‘B’ to this order, provided that if the service or supply

is to be made available in terms of paragraph 2.2.3, the Defendant
will provide appropriate transport between CMH or Frere and
the
hospital nominated in terms of paragraph 2.2.3 free of charge.
3.
The Defendant shall ensure that all of the medical services
and medical supplies will be of a reasonable standard, provided that

where any particular medical supply is –
3.1
available on a standing government tender; or
3.2
identified by brand and model in annexure “B”; or
3.3
a generic equivalent medicine, as the case may be, it shall be
deemed to be of the required standard.
4.
In the event of the Plaintiff, or any person responsible for
BN’s care, failing to arrive with BN at a scheduled appointment

for a medical service identified in annexure “A” or
failing to collect a medical supply to be provided in terms of

annexure “B”, the Defendant will be deemed to have
complied with her obligations in terms of this order in respect
of
the medical service for which the appointment was scheduled or the
medical supply to be provided.
5.
In the event that an item in annexure “B” is in
reasonable working order at the scheduled time for replacement, the
Defendant will be exempted from replacing the item until such time as
the item is no longer in good working order, and the scheduled
dates
for further replacement will be delayed accordingly.
6.
In the event that an item in annexure “B” is no
longer in reasonable working order prior to the time scheduled for
replacement,
the Defendant shall replace it unless the condition of
the item is manifestly the result of unreasonable use or neglect.
7.
In order to access all the medical services and medical
supplies itemised in annexures “A” and “B” to
this
order at the hospital as and when they become due, the public
case manager will act as liaison person.
8.
The public case manager shall notify the Plaintiff and BN’s
private case manager in writing of –
8.1
his or her contact details, including cell phone number,
landline number, email address and office location within the
hospital,
immediately upon appointment; and
8.2
any change of the incumbent public case manager within 14
(fourteen) days of such change; and
the
plaintiff and the private case manager must notify the public case
manager of their contact details, including cell phone numbers,

landline numbers, email addresses and office or home addresses, upon
notification in terms of paragraph 8.1 and 8.2 or upon any
change in
such contact details.
UNDERTAKING
TO PAY REMEDY
9.
The Defendant shall in respect of the medical services and the
medical supplies listed in annexure “C” at the
Defendant’s
election-
9.1
procure the medical service or medical supply required in the
private healthcare sector so as to be provided timeously whenever it

is required in terms of annexure “C”; or
9.2
reimburse the Plaintiff, or any trust established for the
benefit of BN, for their expenses reasonably incurred in procuring
the
medical service or medical supply in the private healthcare
sector, within 30 days of presentation of an invoice for these.
10.
By no later than 30 June of each year, BN’s
private case manager and the public case manager shall jointly submit
to the Chief
Financial Officer of the Department of Health, Eastern
Cape, a care and management plan for the following financial year
setting
out the medical services and supplies to be provided to BN in
terms of annexure “C” during the next financial year and

the estimated cost of each item.
11.
Within 30 days of this order and, in subsequent years,
by no later than 31 August in each year, the public case manager
shall communicate
to the Plaintiff, or any trust established for the
benefit of BN and BN’s private case manager, the defendant’s
election
referred to in paragraph 9 above.
12.
In order to access the medical services and medical
supplies referred to in paragraph 9.1 and to claim reimbursement in
terms of
paragraph 9.2 the public case manager will act as liaison
person.
UNFORESEEN
DEVELOPMENTS
13.
In the event of it becoming reasonably necessary for BN
to receive any medical service or medical supply additional to that
provided
for in annexures “A”, “B” and “C”
as a result of BN’s cerebral palsy at any point in the

remainder of his life, the Defendant shall provide same at one of the
hospitals referred to in paragraph 2.2.1, 2.2.2, or 2.2.3
if it is
available at such hospital, or, failing that, in accordance with
paragraphs 9 to 12 above.
14.
Where it is reasonable to amend any provision of
annexures “A”, “B” or “C”,
whether for the
purposes of paragraph 13 or otherwise, the parties
may, by agreement between BN’s private case manager and the
public case
manager, provisionally amend annexures “A”,
“B” or “C” without approaching a court,
provided
that an updated, amended court order shall be placed before
a judge in chambers every second year at the end of the financial
year,
to be made an amended order of court.
15.
Absent agreement on any proposed amendment to annexures
“A”, “B” or “C” either party may
apply
to this court for the variation of annexures “A”,
“B” or “C” on good cause shown and/or for
the
enforcement of this order, provided that –
15.1
upon instituting any such proceedings, the party commencing
the proceedings must refer the dispute to mediation in terms of rule

41A of the Uniform Rules of Court and the parties must –
15.1.1
conclude the minute and agreement
contemplated in rule 41A(4)(a) and (b) within five court days of
service of the process
commencing proceedings;
15.1.2
convene the first meeting in the mediation within ten
court days of service of the process commencing proceedings;
15.1.3
address as the first item for consideration in the
mediation, the interim provision of medical services and medical
supplies pending
the outcome of the mediation, or failing that, the
litigation; and
15.1.4
conclude the mediation within 30 ordinary days.
15.2
the Defendant shall bear all the attorney and client costs of
any such proceedings and mediation, regardless of outcome, save where

the court finds that the proceedings were not reasonably commenced by
the Plaintiff or any person or trust acting on behalf of
or in the
interests of BN.
ADULT
CARE
16.
BN’s private case manager and the public case
manager shall meet no later than his 17
th
birthday and endeavour to agree on his care arrangement from the age
of 18.
17.
Failing agreement, the matter must be resolved in terms of paragraph
15 above.
PUBLIC
CASE MANAGER
18.
The head of the Department of Health of the Eastern Cape
Province shall appoint a suitably qualified person from
the
management of the hospital where BN receives the majority of his
services and supplies, to perform the functions of public
case
manager provided for in this order.
DEVELOPMENT
OF THE COMMON LAW
19.
The common law is developed –
19.1
so as to accommodate the public healthcare and undertaking to pay
remedies provided for in this order;
19.2
so that the once-and-for-all rule and the rule that damages must
sound in money, are neither the exclusive
nor the primary rules for
the determination of a just and equitable remedy in terms of sections
38 and 172(1)(b) of the Constitution,
in a claim arising from harm
negligently caused by a public healthcare practitioner, provider or
institution;
19.3
so that no claim shall lie in respect of lumpsum money damages to the
extent that –
19.3.1
any of the future medical services and medical supplies required by
the Plaintiff (or the injured party) as a result of the
injury are
provided, by order of court, at a reasonable standard at a public
healthcare institution; or
19.3.2
where a court does not so order, the Defendant provides an
undertaking to –
(a)
procure the medical service or medical supply required in the private
healthcare sector
so as to be provided timeously whenever it is
required; or,
(b)
reimburse the Plaintiff, or any trust or other entity established for
the benefit of the
injured party, for their expenses reasonably
incurred in procuring the medical service or medical supply in the
private healthcare
sector, within 30 days of presentation of an
invoice for it.
R
E GRIFFITHS
JUDGE
OF THE HIGH COURT
COUNSEL
FOR THE PLAINTIFF :
Mr
Alberts SC with
:Mr
Stemela
INSTRUCTED
BY:
S.
Booi & Sons
COUNSEL
FOR THE DEFENDANT:
Mr
Dodson SC with
:Ms
Raw
INSTRUCTED
BY
:State
Attorney
HEARD
ON   :
15
NOVEMBER 2021 – 19 NOVEMBER 2021;
22
NOVEMBER 2021 – 26 NOVEMBER 2021;
19
PRIL 2022 – 22 APRIL 2022;
25
APRIL 2022 – 29 APRIL 2022;
3
MAY 2022 – 6 MAY 2022;
29
AUGUST 2022 – 30 AUGUST 2022;
12
SEPTEMBER – 15 SEPTEMBER 2022.
DELIVERED
ON
:07 FEBRUARY
2023
ANNEXURE
“A”
N[…]
v MEC HEALTH EC
LIST
OF FUTURE CONSULTATIONS, THERAPIES AND SURGERIES
1
DIETICIANS’ CONSULTATION

FREQUENCY
1.1
Dietician

3 annually for the first year
1.2
Dietician

2 annually until 18 years
1.3
Dietician

1xAnnually-18 years for life
1.4
Dietician consultations until age
12
3x Annually
2
CLINICAL PSYCHOLOGISTS

FREQUENCY
2.1
Psychotherapy for mother

15
sessions over 15 weeks once

off
2.2
Psychologist support

5
sessions over 4 periods
2.3
Couple therapy

5
sessions over 5 weeks once off
3
PHYSIOTHERAPEUTIC ITEMS

FREQUENCY
3.1
Physiotherapy for complex CNS

35
annually until age 12
3.2
Physiotherapy for complex CNS

30
annually from 13-18

years
3.3
Physiotherapy for complex CNS

20
annually from age 18 for

life
3.4
Domiciliary physiotherapy

4
visits per annum till 12
3.5
Domiciliary physiotherapy for

3
visits per annum 13 – 18
3.6
Domiciliary physiotherapy for

4
visits per annum 18 for life
3.7
Chest physiotherapy

8
per episode for life
3.8
Physiotherapy following

As
and when needed
orthopaedic surgery:
in-

patient
3.9
Physiotherapy following orthopaedic

As and when needed
Surgery: out-patient
3.10
Physiotherapy following orthopaedic

As and when needed
Surgery
3.11
Seating assessment/fitting and
8
hours per annum for the next
2 years thereafter as
and when

required
3.12
Modification of postural support
if and when
required
4.
OCCUPATIONAL THERAPY ITEMS
4.1
Multidisciplinary group therapy

35 hours annually (incl Physio and Speech)
4.2
Block therapy

5 days of block therapy once
off (30 hours)
4.3
Occupational therapy

20 annually until age 13
4.4
Occupational therapy

12 hours annually 14 until 18
4.5
Occupational therapy

2 hours annually after 18 years for

life
5.
ORTHOTIC CONSULTATIONS

FREQUENCY
5.1
Orthotic consultations

1
hour per annum for life
5.2
Laboratory

Annually for life
6.
ORTHOPEDIC CONSULTATION,

FREQUENCY SURGERIES
6.1
Orthopaedic consults

Annually for life
6.2
Bilateral abductor releases

if and when recommended
by the senior
orthopaedic
surgeon of Cecilia
Makiwane
Hospital in consultation with the plaintiff’s case manager
6.3
Fracture treatment

All fractures suffered as a
result of cerebral
palsy if
and when they occur
7.
REHABILITATION CONSULTATIONS

FREQUENCY
7.1
Paediatric Neurologist

Once off immediately
7.2
Paediatric Neurologist

6 sessions annually
until 11
7.3
Paediatric Neurologist

4 sessions annually
12 –
17
7.4
Mild Respiratory infections

if
and when they occur
7.5
Major Respiratory infections

if and when they occur
8.
SPEECH THERAPY

FREQUENCY
8.1
Speech & language therapy

Twice a week for 12
months immediately
8.2
Speech & language therapy

once a week for 12
months in the second
year
8.3
Speech & language therapy

Once a month from the
third year for life
8.4
Feeding/Swallowing assessment

Once every 2 years
8.5
Annual meetings to determine

Twice a year at 6 hours
Progress each for 3
years

only
9.
DENTAL CONSULTATIONS

FREQUENCY
9.1
Dental check-ups

Every 6 months
9.2
Decay/Caries

If
and when needed
9.3
Extraction of teeth

if
and when needed
9.4
Scale & Polish

Every 6 months
9.5
Radiographs

if and when needed
9.6
Infection control

if
and when needed
9.7
Day stay in hospital & theatre

if and when needed
9.8
Anaesthetist

if
and when needed
9.9
Dentist consultation in theatre

if and when needed
9.10
Periodontal surgery

if
and when needed
10.
NURSING COSTS

FREQUENCY
10.1
Minor Pressure sore treatment
if
and when needed
10.2
Major Pressure sore treatment
if
and when needed
11.
CAREGIVER TRAINING

FREQUENCY
11.1
Caregiver training for

As
and when required
Domestic worker,
family members,
caregivers
ANNEXURE
“B”
N[…]
v MEC HEALTH EC
LIST
OF FUTURE SUPPLIES, MEDICAL DEVICES & OTHERS
1
DIETICIAN’S ITEMS

FREQUENCY
1.1
Nutrimel/Pediasure/Ensure

Monthly until the age of 18 years
1.2
Nutrimel/Pediasure/Ensure

Monthly after age 18 years for life
1.3
MIC Key

3x
annually for life
1.4
EXTSET/SECUR LOK

5
boxes annually for life
1.5
BOLUS

5
boxes annually for life
1.6
Measuring device

Once off
1.7
Silver nitrate sticks

Annually for life
1.8
Blood tests iron studies

Annually for life
1.9
Calcium tests

Annually for life
1.10
Parathyroid hormone test

Annually for life
1.11
Vitamin D test

Annually for life
1.12
Carnitine test

Annually for life
1.13
Vitamin D supplement

Every 7 months for life
1.14
Iron supplement

Every 7 months for life
1.15
Calcium supplement

Every month for life
1.16
Carnitine supplement

Every month for life
1.17
Mineral supplement

Every month for life
2
DENTISTRY ITEMS

FREQUENCY
2.1
Electric toothbrush

Every 2 years for life
2.2
Replacement heads

Every 3 months for life
2.3
Hand held brush

3
x annually for life
2.4
Toothpaste

Annually for life
3
ORTHOTIC TEMS

FREQUENCY
3.1
AFOs

Replaced every 2 years until the

age of 18 years
3.2
AFOs

Replaced every 4 years after 18

years for life
3.3
AFO straps/strings

Annually for life
3.4
Ortho footwear to 18

Annually until 18 years
3.5
Ortho footwear 19+

Every 2 years from 19 for life
3.6
Footwear tuning

Once off and then if and when

required
3.7
Leckey horizontal stander

Every 10 years for life
3.8
Splints to 18

Every 2 years until 18
3.9
Splints 19+

Every 4 years from 19 for life
3.19
Hydraulic Hoist

Once off
3.11
Sling

Every 5 years for life
3.12
Car safety chair

1
in childhood, 1 in teens, 1 in

adulthood
3.13
Wproof bed sheet

Every 2 years for life
3.14
Shower chair

Every 5 years for life
3.15
Custom made elbow splints

Every 2 years until 18 years
3.16
Custom made elbow splints

Every 3 years from 19 years for

life
4
PHYSIOTHERAPEUTIC ITEMS

FREQUENCY
4.1
wheelchair/buggy

Every 4 years
4.2
Transporter & buggy

Every 4 years if necessary
4.3
Posture support chair

Every 4 years
4.4
Sleeping and positioning system
Once
off
4.5
Foam and cushion covers

Annually
4.6
Bobath therapy plinths

Once off
4.7
Recovering/repair/replacement

Annually
4.8
Portable home suction unit

Every 5 years
4.9
Accessories for the home

Annually to age 18 thereafter
suction unit (saline &
catheter

biannually for life
4.10
Nebuliser

Every 2 years
5
OCCUPATIONAL THERAPY ITEMS      FREQUENCY
5.1
Bench

Every 5 years for life
5.2
Table

Every 10 years for life
5.3
Manual crank adjustable bed/

Twice over life
Hi Low bed
5.4
Extra bed linen

Every 5 years
5.5
Disposable Nappies

Monthly for life
5.6
Bibs

Annually for life
6
NURSING ITEMS

FREQUENCY
6.1
Skin care

Monthly for life
6.2
Bed wedge

Every 3 years
6.3
Vaseline

Monthly for life
6.4
Lacson to 12

Monthly until 12
6.5
Lacson 13+

Monthly from age 13
6.6
Dulcolax to 12

Every month until 12
6.7
Dulcolax 13+

Every month from 13
6.8
KY Jelly

Monthly for life
6.9
Disp. Gloves

Every month for life
7
REHABILITATION ITEMS

FREQUENCY
7.1
EEG

Twice for life
7.2
Serum drug level testing

Twice annually for life
7.3
Epilim 1120 mg daily

Monthly until 3 years
7.4
Epilim 1400 mg daily

Monthly from 4 until 8
7.5
Epilim 1600 mg daily

Monthly from 9 until 13
7.6
Epilim 1750 mg daily

Monthly from 14 years for life
7.7
Baclofen 30 mg daily

Monthly until 6 years
7.8
Baclofen 50 mg daily

Monthly from 7 years for life
8
SPEECH & LANGUAGE THERAPY ITEMS

FREQUENCY
8.1
Specialised spoons and cups

Once off
8.2
Oro motor skills kit

Once off
8.3
Low technology and therapeutic toys

Annually
ANNEXURE
“C”
N[…]
v MEC HEALTH EC
LIST
OF ITEMS IN RESPECT OF WHICH UNDERTAKING TO PAY APPLIES
SERVICE
/ SUPPLY

FREQUENCY
Day
care facility

Every month until 18 years
Two
caregivers¹

Full time 6 days per week with

Sunday work paid at 1.5 times in

terms of S 16(1) of Act 75/1997
Alternative
to two caregivers from

From 18 years for life 18

permanent residential facility
Washing
machine

Every 10 years
Private
case manager

8
hours at commencement
Private
case manager

8
hours at 17
th
birthday
Private
case manager

4
hours every June
Private
case manager

Save for June, 2 hours monthly for

the first 2 years
Private
case manager

Save for June, 1 hour per month

after the first 2 years for life
Private
case manager home visits        2
visits in the first 2 years
¹Caregiver
does not require a nursing qualification and would be a domestic
worker or other person with required training in
caring for a CP
child, the training to be provided by the defendant.
ANNEXURE
“D”
N[…]
v MEC HEALTH EC
LIST
OF ITEMS IN RESPECT OF WHICH LUMP SUM DAMAGES PAYABLE
ITEM

AMOUNT
Loss
of earnings

R386,146
Adapted
vehicle and transport

R650 000
Adaptations
to home

R1, 100, 000
TOTAL

R 2,136,146
[1]
A Babylonian legal text composed c. 1755–1750 BC (Wikipedia).
[2]
Section 218: "If a physician operate on a man for a severe
wound with a bronze lancet and cause the man's death; or open
an
abscess (in the eye) of a man with a bronze lancet and destroy the
man's eye, they shall cut off his fingers."
[3]
This amount has already been paid.
[4]
Member
of the Executive Counsel for Health and Social Development, Gauteng
v DZ obo WZ
2018 (1) SA 335
(CC).
[5]
Annexure "A" also reflects the interest payable on the
agreed amounts from the date of agreement of each item in terms
of
the relevant provision of the Prescribed Rate of Interest Act (No 55
of 1975).
[6]
Defendant's counsel indicated that he had no instructions to concede
this but would not advance any argument against the provision

hereof.
[7]
1946 AD 946.
[8]
Carmichele
v Minister of Safety and Security
and
Another
[2001] ZACC 22
;
2001 (4) SA 938
(CC) at para 39.
[9]
Phumelela
Gaming and Leisure Limited v Grundlingh and Others
[2006] ZACC 6
;
2007 (6) SA 350
(CC) at paras 25-26.
[10]
DZ
(note
4 above) at paras 57-8.
[11]
MSM
obo KBM v MEC for Health, Gauteng
2020 (2) SA 567
(GJ) at para 42.1.
[12]
Ngubane
v South African Transport Services
1991 (1) SA 756 (A).
[13]
Ibid at 784C-E &785C-D.
[14]
No 45 of 1988
[15]
AZ
v MEC for Health, Eastern Cape
(ECB) unreported judgment case no 140/2016 of 14 August 2018 at
paras 137-142.
[16]
P. J. Schwikkard, S. E. Van der Merwe
Principles
of Evidence
4
ed
(2016) at p 93.
[17]
[1957] 3 All SA 200
(A) at 228-9.
[18]
Multiplex
Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another
[2008] EWHC 2220 (TCC).
[19]
Ibid at para 672.
[20]
Boland
Construction Co (Pty) Ltd v Lewin
1977
(2) SA 506
(C)
at
508H;
Doyle
v Sentraboer (Co-operative) Ltd
1993
(3) SA 176
(SE)
at
180G–J.
[21]
SAMWU
& Another v The Nelson Mandela Metropolitan Municipality &
Others
[2007] JOL 20536
(LC) at para 21.
[22]
Boberg,
The
Law of Delict
at p746. See also
Custom
Credit Corporation (Pty) Ltd v Shembe
1972 (3) SA 462
(A) at 472: ‘The law requires a party with a
single cause of action to claim in one and the same action whatever
remedies
the law accords upon such cause.’ See further
Signature
Design Workshop CC v Eskom Pension and Provident Fund and Others
2002 (2) SA 488
(C) at 498B-E;
Symington
and Others v Pretoria-Oos Privaat Hospitaal Bedryfs
(Pty) Ltd
[2005] 4 All SA 403
(SCA) at 412.
[23]
Cape
Town Council v Jacobs
1917 AD 615
;
Coetzee
v SAR & H
1933 CPD 565
at 574. The rule was formulated in
Fitter
v Veal
(1701) 12 Mod 542; 88 ER per Holt CJ. The case is also reported as
Fetter
v Beale
(1701) 1 Salk11; ER. It concerned a plaintiff who sued successfully
for damages for assault and battery, but later discovered
that “a
piece of his skull was come out” from the same incident. A
second action claiming damages for the newly discovered
harm to the
plaintiff’s skull failed.
[24]
DZ
(note 4 above) at para 16.
[25]
Dippenaar
v Shield Insurance
Co
Ltd
1979 (2) SA 904
(A) at 917B and E.
[26]
DZ
(note 4 above) at para 14.
[27]
Ngubane
(note 12 above).
[28]
Ibid at 784C-E;
[29]
Ibid at 785C-D
[30]
DZ
(note 4 above) at paras 21-2.
[31]
Ibid at para 22.
[32]
Williams
v Oosthuizen
1981 (4) SA 182
(C) at 184H-185D.
[33]
Ibid at 184H-185D. See also
Dyssel
NO v Shield Insurance Co Ltd
1982 (3) SA 1084
(C) at 1086H- 187A.
[34]
DZ
(note
4 above) at paras 41and 44.
[35]
Ibid at para 45.
[36]
Ibid at para 45.
[37]
DZ
,
paragraph 51
[38]
DZ
(note 4 above) at paras 47-8 —
English
law
: Jones, Dugdale and Simpson (eds)
Clerk and Lindsell on
Torts
21 ed (Sweet & Maxwell Ltd, London 2014) at paras 28-7
2 to 28-76. See further: See Lord Steyn in
Wells v Wells
[1998] UKHL 27
;
[1998] 3 All ER 481(HL)at
502
e
-
h
.
Canadian
Law
: Provincial governments in Canada have put in place
legislative frameworks regulating the periodic payment of damages in
medical
negligence matters [see, for example, the 1990 Ontario
Courts of Justice Act (sections 2 and 116). Prior to this, the
Supreme
Court of Canada refused to exercise judicial powers to vary
the once and for all rule [
Watkins v Olafson
[1989] 2 SCR
750 (SCC)].
[39]
Ibid at para 54.
[40]
MSM
(note
11 above).
[41]
Ibid at paragraph 188.
[42]
See further:
Paulsen
and Another v Slip Knot Investments 777 (Pty) Limited
2015 (3) SA 479
(CC) paras 15-16.
[43]
Fitter
v Veal
(note 23 above) and
Fetter
v Beale
(note 23 above).
[44]
Van der Walt CFC
Die
Sommeskadeleer en die ‘Once and for all’-Reël
(LLD thesis Unisa 1977) at pp308-314.
[45]
P Pauw ‘Alternative Relief in Delictual Claims – A Step
in the Right Direction’ (2018) 81.1
TSAR
176,
180; AB Wessels “The Expansion of the State’s Liability
for Harm Arising from Medical Malpractice: Underlying
Reasons,
Deleterious Consequences and Potential Reform” (2019) 1
TSAR
,
15.
[46]
MX Shibe (2020).
A
Feasibility Study of the Legislative Intervention to Reform the
Medical Negligence Litigation and
Damages
in South Africa
[Unpublished masters’ dissertation]
University of Pretoria,18.
[47]
Member
of the Executive Council for Health, Gauteng Provincial Government v
PN
2021 (6) BCLR 58
(CC) at para 28.
[48]
MSM
(note 11 above).
[49]
Ibid at paras 16-42.
[50]
Ibid at paras 92-172.
[51]
Ibid at para 177.
[52]
Ibid at para 178.
[53]
Ibid at para 179.
[54]
Ibid at para 186.
[55]
Ibid at para 194.
[56]
Mashinini
v Member of the Executive Council for Health, Gauteng Province
(GJ) unreported judgment case 1352/2017 of 25 January 2021.
[57]
PH
obo SH v MEC for Health, KwaZulu-Natal
2021 (1) SA 530 (KZN).
[58]
Ibid at para 28.
[59]
TN
obo BN v MEC for Health, Eastern Cape
[2020] JOL 48994 (ECB).
[60]
Ibid at para41.
[61]
DZ
(note 4 above) at para 58.
[62]
MSM
(note 11 above) at paras 92-172;
Ngubane
(note
12 above) 783F-785D.
[63]
DZ
(note 4 above) at paras 20-21.
[64]
Ngubane
(note 12 above) at 784F-785D.
[65]
Erasmus
v Davis
1969
(2) SA 1 (A).
[66]
Janeke
v Ras
1965 (4) 583 (T)
[67]
MSM
(note
11 above) at paras 174-196.
[68]
DZ
(note 4) at paras 44-5 and 53-4.
[69]
MSM
(note 11 above) at paras 178-179.
[70]
Makate
v Vodacom
Ltd
2016 (4) SA 121
(CC) at para 160.
[71]
De
Jongh v Du Pisanie
NO
2005
(5) SA 457
SCA at paras 22-40.
[72]
The parties have agreed upon the Canaan Centre in East London.
[73]
Ms. Krige (the defendant's expert occupational therapist) testified
convincingly that this was unnecessary, having visited the
centre
herself.
[74]
Act 75 of 1997.
[75]
Biowatch
Trust v Registrar, Genetic Recources, & Others
2009 (6) SA 232
(CC) at para 56.