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[2024] ZAECMHC 19
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Mhlatshana v Member of Executive Council for Health Eastern Cape Province (1433/2015) [2024] ZAECMHC 19 (18 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
NOT REPORTABLE
Case no: 1433/2015
In the matter between:
SINESIPHO
MHLATSHANA
Plaintiff
and
THE MEMBER OF
EXECUTIVE COUNCIL FOR
Defendant
HEALTH, EASTERN CAPE
PROVINCE
REASONS FOR JUDGMENT
Govindjee J
[1]
The
plaintiff sues in her personal and representative capacity on behalf
of her daughter (referred to for convenience as ‘Sinesipho’).
The issues requiring determination at the commencement of these
proceedings were the plaintiff’s claims in respect of
transportation,
carers, domestic and auxiliary services for
Sinesipho, pursuant to paraplegia caused as a result of tuberculosis
of the spine and
due to the defendant’s negligent conduct.
Sinesipho became permanently paralysed in 2011, at the age of six and
has since
been confined to a wheelchair.
[2]
The
defendant has conceded liability in respect of the plaintiff’s
claim in her representative capacity. Various issues were
postponed
for trial, the balance of issues, other than past and future medical
expenses, having been determined by agreement and
made an order of
court before Laing J on 15 March 2023.
[3]
On
the pleadings, the defendant accepted that various forms of medical
treatment and therapy, special adaptive aids and devices
are required
by Sinesipho, but denied that permanent and continuous care would be
required. In addition, the defendant pleaded
that Sinesipho would
only require a caregiver from 35 years of age, and not currently. On
the plaintiff’s pleaded case, Sinesipho
requires caregiver
assistance immediately, the level of support increasing from age 36
onwards to allow for ‘live-in, full-time
care and oversight’.
[4]
A
further pre-trial minute reflects a figure of R1 032 898,00,
being the average between the parties’ respective
actuarial
calculations, for domestic assistance. It may be added that an
interim payment in respect of ‘carers / domestic
workers’
in the amount of R 1 million has already been made, and must be
factored one way or another. There has been agreement
that the
plaintiff is entitled to a motor vehicle to the value of R713 421,00
and auxiliary assistance in the amount of R179 567,00
again
being the average between the respective actuaries’
calculations. The approach adopted by the parties and their
representatives
in these respects appear to me to be fair and
reasonable and I intend to incorporate these amounts in the order to
be issued.
[5]
There
is no disagreement that the joint minute of the occupational
therapists requires the provision of caregiving. Here the combined
average actuarial calculation, including relief caregiving, totals
R4 082 011,00. The only real remaining divergence
is in
respect of whether the plaintiff is entitled to payment of that
amount upfront, in which case there is agreement that the
amount
cited above is to be awarded, or whether ‘the defendant is
entitled to provide this service to the plaintiff and /
or reimburse
the plaintiff on proof of invoice’. In that event, there is
agreement that no monies are to be awarded in respect
of caregiving
at this stage, so that the R1 million already paid may be deducted
from the amount agreed in respect of domestic
worker support.
[6]
The
defendant’s stance stems from its pleaded reliance on the
so-called public healthcare defence and the decision of Griffiths
J
in
TN obo BN v MEC for Health, Eastern
Cape
. In respect of carers, leaving
aside its pleaded denial of the need for a caregiver until the age of
35, the MEC pleads as follows:
‘…
the
Defendant pleads that she is able to provide caregivers to Sinesipho
at a reasonable cost and only in the event that the defendant
is
unable to provide such caregivers, undertakes to pay such caregivers
upon an invoice submitted to the defendant by the plaintiff.’
The draft order prayed
for by the defendant is along these lines.
The evidence
[7]
Ms
Bainbridge, an occupational therapist, testified as to the contents
of a joint minute she had entered into with Ms Omarjee, the
occupational therapist appointed by the defendant, following various
independent assessments by both therapists.
[8]
From
her evidence, and the latest joint report, it may be noted that there
is agreement between the occupational therapists that
Sinesipho will
benefit from a live-in companion caregiver, for purposes of obtaining
necessary assistance, care and security, should
she choose to live
alone in the community in future. This follows the agreement in the
first joint minute (dated 12 October 2021)
that Sinesipho would
require ‘ongoing assistance by a caregiver trained in the
monitoring and management of SCI persons;
able to help with the
heavier aspects of household and community living’. As Mr
Mtshabe
for the defendant emphasised, the parties argued the matter on the
basis that caregiver support would practically only be required
from
age 35, with domestic worker support prior to that point being deemed
adequate.
[9]
That
caregiver support will be required is readily apparent from the
evidence of Ms Bainbridge and Sinesipho herself, which I accept.
The
cost of time and energy when attending to basic functioning, absent
caregiving, for a person with paraplegia of the kind afflicting
Sinesipho, has been such that it impacted negatively on her studies
during 2023. The various positive links between caregiver
provisioning and Sinesipho’s ability to reclaim maximum
independence, dignity and a sense of agency, was well-explained by
Ms
Bainbridge. She also expressed concern at the prospect of the state
assuming control of caregiver selection, given the intimate
relationship between caregiver and the person being cared for, and
the need for flexibility, as well as scepticism as to the state’s
ability to successfully manage such a system with the necessary
consistency. She added that the joint reports of the occupational
therapists did not provide for this possibility and that there would
be no cost saving in the event that the caregiving services
were
provided by the state via a private agency.
[10]
Sinesipho,
now 19 years of age, herself provided background information about
her life, including a year spent in a private residence
while she
studied at Eduvos College in 2023. Her difficulties in coping,
including challenges with socialising and resultant depression,
were
explained. In future, she hopes to stay by herself and be
independent, living on her own with the necessary assistance and
support outside of a residential situation.
[11]
The
need for caregiver support was apparent from her testimony, given the
difficulties she experiences, for example, in bathing,
and concern as
to lack of support should she suffer an asthma attack or become
otherwise unwell. She demonstrated concern as to
the possibility of
state intervention in the process of the appointment of a caregiver
to assist her, expressing that she would
prefer to make such
decisions on her own.
[12]
Mr
Matshotyana, employed by the defendant as chief director responsible
for clinical support services, was the only witness to testify
on the
defendant’s behalf. He explained that a new mechanism had been
introduced by the department of health in the province
for caregiving
pursuant to two cases decided last year, in terms of which a private
institution, namely St Bernard’s Hospice,
in East London, was
engaged to provide caregiving services in those two cases, both
involving cerebral palsy. The arrangement was
for St Bernard’s
to place the caregivers, attend to training where necessary,
supervise and pay the monthly wages of the
caregivers.
[13]
Mr
Matshotyana suggested that it would be possible for similar
provisioning to be made in other orthopaedic cases in future, and
referred to a designated medico-legal budget that was being
ring-fenced for this purpose, along with the undescribed possibility
of additional ways to continue to provide services if the budget was
exhausted, coupled with a multidisciplinary task-team created
to
monitor such activities on a weekly basis. The present reality was
that such services were provided only by St Bernard’s
in East
London in the two instances mentioned, seemingly following court
orders. The hoped-for expansion of arrangements would
be required to
cater for Sinesipho’s needs.
[14]
Mr
Matshotyana suggested that individual involvement of caregiver
selection and management may be possible, while acknowledging
that
private institutions would retain autonomy over the management of
staff on their payroll. As for caregiver appointments in
Gqeberha, he
hoped that St Bernard’s might use their network to identify and
recruit a caregiver, even though their work
was limited to East
London, alternatively the department might do so itself. It was clear
that the mechanism for such an appointment
had not been clearly
ascertained or articulated to date, the hope being that this would
eventuate once the planned system matured
in time-to-come, possibly
including the creation of a database of organisations similar to St
Bernard’s throughout the province.
These plans were contained
in the 2024/2025 departmental procurement plan, the details of which
were not disclosed during evidence.
[15]
Mr
Matshotyana conceded, during cross-examination, that he could not
describe with any level of confidence what the picture would
look
like by time Sinesipho attained the age of 35. He also conceded that
the department’s track record in respect of timeous
payments
left much to be desired, but placed reliance on the envisaged system.
As for the mechanics of payment, there could be
various modalities
adopted so as to ensure that a person in Sinesipho’s position
would not be out of pocket.
[16]
Mr
Matshotyana concluded his testimony in chief by assuring the court
that a system had been established, coupled with a team that
could be
mobilised in a short space of time, so as to identify and place a
caregiver for Sinesipho in Kariega, properly supported
and timeously
paid, and that come 2040 this system would run seamlessly. Part of
the rationale for the defendant’s position
was explained as
being related to the need to monitor the benefit received by those
receiving state funds for healthcare purposes,
given the state’s
duty to provide healthcare to the populace. To this was added the
financial benefit to the department in
the event that it could avoid
paying large lumpsums, which would exhaust its budget, and instead
defer such payments in the manner
proposed.
The legal position
[17]
Given
that this is an Aquilian action, the 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. The purpose of
an award of damages
is to compensate the victim in money terms for the loss suffered. A
plaintiff must allege and prove the quantum
of damages suffered
because of the defendant’s wrongful act. In other words, in
this instance it was for the plaintiff to
lead evidence establishing
the reasonable and necessary cost of future caregiving expenses.
[18]
Although
the ‘once and for all’ rule favours individualism and the
free market, the decision in
DZ
has confirmed that this does not conflict with the constitutional
value system. Periodic payment may, however, be countenanced,
based
on the particular circumstances of a case. As to the public
healthcare defence, and the parameters of its applicability in
the
present instance, I can do no better than to quote the judgment of
the SCA in
Ngubane
v South African Transport Services
,
which was cited with approval by the Constitutional Court in
MEC
for Health v DZ
,
and more recently confirmed by the SCA in
Mashinini
v MEC for Health, Gauteng
:
[1]
‘
Though
the onus of proving damages is correctly placed upon the plaintiff …
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 excessive.’
[19]
The
court in
Ngubane
added the following:
[2]
‘
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
’.
(Own emphasis).
[20]
These
principles must apply with equal force in respect of the present
claim for caregiver support. The point, as articulated by
the
Constitutional Court in
DZ
,
is that it is for the defendant to produce evidence that medical
services, of the same or higher standard,
at
no or less cost than private medical care
,
would be available to a plaintiff in future, the emphasis being on
cost-saving. To quote:
[3]
‘
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.’
[21]
It
is immediately apparent that this case is distinguishable, based on
the evidence presented, from
TN
obo BN v MEC for Health, Eastern Cape,
as
Mr
Schoeman
for the plaintiff argued.
[4]
To
cite the most obvious illustration, in that matter the court heard
the evidence of various expert witnesses, including an esteemed
public finance economist who testified as to state resource
constraints in the face of medical negligence claims, undertakings
to
pay and cost-effectiveness. The evidence in that matter disclosed, in
fine detail, the risks associated with lump sum payments
and the
department’s financial struggles. Perhaps most significantly,
at issue was the ability of the department to provide
services and
supplies, that were of the kind available at public hospitals, at the
required standard. The evidence presented in
that matter was held to
point ineluctably to the conclusion that this was the case.
[22]
In
deciding whether to develop the common law, the court held that the
facts before it were on all fours with the case of
MSM
obo KBM v MEC for Health, Gauteng
,
and followed that decision in ultimately developing the common
law.
[5]
It must be noted that
the SCA has subsequently, in
Mashini
v MEC for Health, Gauteng
,
and without any reference to
TN
obo BN
,
criticised the finding of Keightley J in
MSM
that the common law was being developed.
[6]
The order in
MSM
was, in fact, based on delictual principles.
[23]
I
do not consider it necessary to pronounce upon the impact of
Mashinini
,
if any, on the development of the common law in
TN
obo BN
. Of importance is that the
latter case is clearly distinguishable from the present
circumstances. In addition to the reasons already
provided for this
conclusion, caregiving clearly fell outside the parameters of the
decision. That aside, the evidence in the present
matter is
altogether of a different sort.
[24]
Everyone
has the constitutional right to have access to healthcare services.
The state must take reasonable legislative and other
measures, within
its available resources, to achieve the progressive realisation of
this right. Plans, however laudable, must be
reasonable in their
conceptualisation and implementation, as detailed by the
Constitutional Court in
Government
of the Repbublic of South Africa v Grootboom
.
[7]
In support of legislative measures, it has been held that the
formulation of a programme is only the first stage in meeting the
state’s obligations. The programme must also be reasonably
implemented. An otherwise reasonable programme that is not
implemented
reasonably will not constitute compliance with the
state’s obligations.
[25]
In
the present circumstances it is impossible to say whether the plan
depicted is workable. It was shorn of all detail and presented
in the
vaguest of terms, also absent any supporting documentation. The
defendant’s approach failed to give serious consideration
to
matters such as the realities of changes in leadership personnel,
future budgetary priority changes, and how to accommodate
Sinesipho
should she move abroad. The logistical, nitty-gritty support for what
would be necessary to make the plan a reality was
absent, heightening
the sense of concern as to the agility of the system being proposed
for present purposes. On the evidence,
and unsurprisingly considering
that state provision of caregivers is in its infancy in the province,
there are serious concerns
as to the bureaucratic realities
associated with the proposal, its scalability and efficacy. Much of
what was presented was in
hope and anticipation of what might be
possible in future. Absent any proof of the pudding, it amounted to
nebulous crystal-gazing
of the over-optimistic variety.
[26]
The
application of the various authorities considered by the SCA in
Mashinini
is instructive on these facts. As was the case in that matter, the
plaintiff has discharged the onus of proving, not only that
she has
suffered damages in respect of which caregiver support will be
required in the future (along with domestic and transportation
support, as calculated by the respective actuarial scientists), but
also the quantum thereof. In fact, even leaving aside the evidence
led, this is now a matter of agreement between the parties. This
constitutes prima facie proof that payment to the plaintiff of
such
amounts would place her financially in the same position as she would
have been in had she not suffered as a result of the
defendant’s
negligent conduct. There is no basis for concluding that the amount
of just over R4 million claimed in respect
of caregiver support is
not a reasonable and necessary amount by which Sinesipho’s
patrimony was diminished by the conduct
of the defendant’s
employees. As was the case in
Mashinini
,
none of this has been contested by the MEC and the evidence adduced
on her behalf falls short of establishing that the necessary
caregiving services would be available to Sinesipho at the requisite
standard 16 years from now at no or reduced cost to the state.
Bearing in mind inflation and the defendant’s plan to involve
the private sector in identifying and engaging suitable caregivers,
that threshold has not been met.
[27]
The
position may have been different, as it was in
MSM
,
had the evidence shown that the public sector could provide the same,
or better, services than could be received by Sinesipho
in the
private sector through the payment of monetary compensation by the
defendant. In
MSM
,
the MEC discharged an evidential burden showing that the costs of the
private healthcare in question were not reasonable or necessary
in
the circumstances of that matter. As a result, the order for damages
excluded those costs. The MEC tendered the requisite services,
so
that the court made an order granting the relief sought by the MEC by
consent, thereby reducing the monetary award for that
specific
reason. In the present circumstances, the plan is really to utilise
the private sector as an intermediary or agent, while
retaining a
modicum of control over the services to be provided to Sinesipho. As
indicated, leaving aside concerns as to the practicalities
of the
proposed arrangement come 2040, the evidence fails to show that the
services to be procured will result in any cost saving
for the
defendant, which is fatal to the proffered defence.
[28]
Having
pleaded the public healthcare defence, it was incumbent upon the
defendant, who bore an evidentiary burden, to rebut the
prima facie
case established by the plaintiff.
Mashinini
is authority for holding that absent
the presentation of any evidence of the cost of the provision of
caregiver services in the
public sector, the public healthcare
defence stands to be dismissed. As in that matter, there is simply no
evidence that the same,
or an acceptably high, standard would be
available through public provision
at no
cost or for less than that claimed
by
the plaintiff.
[29]
While
one may speculate, or even take judicial notice of the realities of
healthcare challenges in the province, and country, and
the
alleviation of pressure that may result from reduced lump sum
payments, to deprive a claimant of delictual damages to which
she is
entitled requires a lawful basis, to be determined case-by-case. What
the defendant seeks, in effect, is an unprecedented
extension of the
public healthcare defence to develop the common law in circumstances
where the ordinary application of delictual
principles results in it
being liable for immediate payment of caregiver support for
Sinesipho. On the evidence before the court,
the invitation to
develop the common law must be declined. As Mr
Schoeman
submitted,
the
Zulu
decision
explains the approach to the development of common law and the
department has fallen short of making out a case for this.
[8]
To accept the defendant’s position would deprive Sinesipho of a
payment to which she is entitled and the independent choice
of how to
utilise those funds to procure the services she requires. That
significance of that right of selection, as alluded to
in
Ngubane
,
ought not to be diminished without proper justification. To do so
will, somewhat perversely, afford the defendant, the party
responsible for causing the delictual harm she suffered, the option
of how to make good, either by providing caregivers, alternatively
paying in the event that this proves difficult 16 years from now.
[30]
I
have considered the argument that a contingency should be applied to
the amounts to be awarded and decline to do so, also on the
authority
of
P obo P v MEC for Health
.
That argument stems from the terms of a further pre-trial minute
dated 17 November 2021, which contains reference to the application
of a 5% contingency deduction on future medical expenses. In terms of
paragraph 7 of that minute, it was specifically recorded
that the
plaintiff’s compromise of her claim was conditional on the
defendant electing to settle the matter
in
its entirety
on the terms contained in
that document, failing which it was expressly agreed that the
plaintiff would be entitled to proceed
to prove her full claim. That
argument is therefore without merit.
[31]
It
is for these reasons that the court made the order dated 23 February
2024, a copy of which is attached.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard: 19-22 February
2024
Date of order and
ex
tempore
judgment: 23 February 2024
Written reasons provided:
18 March 2024
Appearances:
Counsel for the
Plaintiff:
Adv AD Schoeman SC and Adv HB Ayerst
Makhanda,
Chambers
Instructed
by:
Mpambaniso Attorneys
Plaintiff’s
Attorneys
63
Grey Street
Komani
C/o:
Vapi Inc. Attorneys
08
Mirriam Raziya Street
Mthatha
Email:
mpambanisoattorneys@gmail.com
For the
Defendant:
Adv NR Mtshabe SC and Adv Z Madlanga
Mthatha,
Chambers
Instructed
by:
The State Attorney
Defendant’s
Attorneys
Sissons
Street
Fortgale
Mthatha
Email:
nqiwamncedisi@gmail.com
[1]
Ngubane
v South African Transport Services
[1990] ZASCA 148
;
1991
(1) SA 756
(A) at 784C–F.
[2]
Ibid
at 785C–D.
[3]
MEC
for Health and Social Development, Gauteng v DZ obo WZ
2018
(1) SA 335
(CC) para 35.
[4]
TN
obo BN v MEC for Health, Eastern Cape
2023
(3) SA 270 (ECB).
[5]
MSM
obo KBM v MEC for Health, Gauteng
2020
(2) SA 567 (GJ)
[6]
Mashinini
v MEC for Health, Gauteng
2023
(5) SA 137
(SCA) para 25.
[7]
Government
of the Republic of South Africa and Others v Grootboom
and
Others
2001 (1) SA 46
(CC) para 42.
[8]
MEC
for Health and Social Development, Gauteng Province v Zulu
[2016]
ZASCA 185.