Member of the Executive Council for Finance, Economic Development, Environmental Affairs and Tourism (Eastern Cape) and Others v Legal Practice Council and Others (2091/2021) [2022] ZAECMKHC 58; [2022] 3 All SA 730 (ECG); 2023 (2) SA 266 (ECMk) (21 June 2022)

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[2022] ZAECMKHC 58
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Member of the Executive Council for Finance, Economic Development, Environmental Affairs and Tourism (Eastern Cape) and Others v Legal Practice Council and Others (2091/2021) [2022] ZAECMKHC 58; [2022] 3 All SA 730 (ECG); 2023 (2) SA 266 (ECMk) (21 June 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
REPORTABLE
Case
No: 2091/2021
Date
Heard: 11-13 April 2022
Date
Delivered: 21 June 2022
In
the matter between:
MEMBER OF THE
EXECUTIVE COUNCIL FOR
FINANCE,
ECONOMIC DEVELOPMENT,
ENVIRONMENTAL
AFFAIRS AND TOURISM
(EASTERN
CAPE)
First Applicant
HEAD
OF DEPARTMENT EASTERN CAPE
PROVINCIAL
TREASURY
Second Applicant
MEMBER
OF THE EXECUTIVE COUNCIL FOR
HEALTH,
EASTERN CAPE PROVINCE
Third Applicant
HEAD
OF DEPARTMENT FOR HEALTH (EASTERN CAPE)
Fourth Applicant
THE
PREMIER, EASTERN CAPE PROVINCE
Fifth Applicant
and
THE
LEGAL PRACTICE COUNCIL
First Respondent
THE
BOARD OF SHERIFFS
Second Respondent
ABSA
BANK LIMITED
Third Respondent
NATIONAL
DEPARTMENT OF HEALTH
Fourth Respondent
NATIONAL TREASURY OF
SOUTH AFRICA
Fifth Respondent
HENNIE
JORDAAN N.O. (SHERIFF FOR KING
Sixth Respondent
WILLIAMS
TOWN
COURT, KING WILLIAMS TOWN)
MARKS
THAPELO MANGABA N.O. (SHERIFF,
JOHANNESBURG
CENTRAL)
Seventh Respondent
IG
BEZUIDENHOUT N.O (DEPUTY SHERIFF, HIGH & LOW)
WILLIAMS
TOWN
Eighth Respondent
FANIE
HERMAN N.O. (DEPUTY SHERIFF FOR
CENTURION
EAST)
Ninth Respondent
ASIPHE
MANISE
Tenth Respondent
BABALWA
VANTYI-GWAZU
Eleventh Respondent
ANDILE
GWAXU
Twelfth Respondent
BAPHATHE
NDIYA
Thirteenth Respondent
POZILE
DLUNGANE
Fourteenth Respondent
APHELELE
NDAMASE
Fifteenth Respondent
Luleka
Nophuza
Sixteenth Respondent
LULEKA
NTLAKA
Seventeenth Respondent
NOBUHLE
NDZALA
Eighteenth Respondent
PETER
BOUCHER
Nineteenth Respondent
GRACE
JESSICA BOUCHER
Twentieth Respondent
MAPHELO
ANELISIWE
Twenty-First Respondent
LULEKA
MBINDA
Twenty-Second Respondent
CHATHA
MAHILIHILI
Twenty-Third Respondent
NOMBUSO
VIRONIC MAKALUZA
Twenty-Fourth Respondent
NOSIPHO
AUDREY KATIYA
Twenty-Fifth Respondent
ANEZIWE
TSIPA
Twenty-Sixth Respondent
ZODWA
TETYANE
Twenty-Seventh Respondent
VUYANI
MAYIBENYE
Twenty-Eighth Respondent
SIYOLISE
SITHANGA
Twenty-Ninth Respondent
BABALWA
MBOKODI
Thirtieth Respondent
NOLOYISO
ANELISA MIRANDA MXONYWA
Thirty-First Respondent
ZIKHONA
NDWEBI
Thirty-Second Respondent
NOMFUNDO
MNTUYEDWA
Thirty-Third Respondent
NO-ONEST
MVELO
Thirty-Fourth Respondent
NOWAM
YOBO
Thirty-Fifth Respondent
NOZIBELE
SIKADE
Thirty- Sixth Respondent
LUSANDA
MPHIKISWA
Thirty-Seventh Respondent
THANDISWA
NOYILA
Thirty-Eighth Respondent
NIWE
MADYIBI
Thirty-Ninth Respondent
ZIKHONA
QWABE (nee MPOFU)
Fortieth Respondent
THEMBISA
SIPHETHUKANA
Forty-First Respondent
NELISWA
MBOLA
Forty-Second Respondent
NONESI
MBUTUMA
Forty-Third Respondent
VOYI
VUYISWA
Forty-Fourth Respondent
NOWETHU
C. THAFENI
Forty-Fifth Respondent
NELISWA
MTUTUZELI
Forty-Sixth Respondent
NOKULUNGA
SOMTHI
Forty-Seventh Respondent
NOSANGE
GLADILE
Forty-Eighth Respondent
YONELA
SAHLULO
Forty-Ninth Respondent
ASIPHE
GOGOSE
Fiftieth Respondent
SANDISILE
MATOWANE
Fifty-First Respondent
DUDULA
INC.
Fifty-Second Respondent
W
LANGSON & ASSOCIATES
Fifty-Third Respondent
MJULELWA
INC.
Fifty-Fourth Respondent
WIM
KRYNAUW ATTORNEYS
Fifty-Fifth Respondent
ZYN
NDZABELA INC.
Fifty-Sixth Respondent
AKHONA
PELE ATTORNEYS
Fifty-Seventh Respondent
MGWESHE
NGQELENI INC
Fifty-Eighth Respondent
M
DAYIMANI
INC.
Fifty-Ninth Respondent
DAYIMANI
SAKHELA INC.
Sixtieth Respondent
Mc
WILLIAMS & ELLIOTT ATTORNEYS
Sixth-First Respondent
MT
KLAAS ATTORNEYS
Sixty-Second Respondent
MPENDULO
STOYILE ATTORNEYS
Sixty-Third Respondent
MPAMBANISO
ATTORNEYS
Sixty-Fourth Respondent
CINGA
NOHAJI INC.
Sixty-Fifth Respondent
O
JOUBERT ATTORNEYS
Sixty-Sixth Respondent
T
A NKELE AND SONS INC
Sixty-Seventh Respondent
WT
MNQANDI & ASSOCIATES
Sixty-Eighth Respondent
CAPS
PANGWA & ASSOCIATES
Sixty-Ninth Respondent
NONXUBA
INC.
Seventieth Respondent
S
BOOI &
SONS
Seventy-First Respondent
NTYATYEKA
ATTORNEYS
Seventy-Second Respondent
NIEHAUS
Mc MAHON
Seventy-Third Respondent
FUNEKA
SICITHI
Seventy-Fourth Respondents
MSITSHANA
& ASSOCIATES
Seventy-fifth Respondent
BONGIWE
MAPETU
Seventy-Sixth Respondent
NCEBAZAKHE
MPOFOLWANA
Seventy-Seventh Respondent
WELEKAZI
GOWANA
Seventy-Eighth Respondent
NOXOLO
MATROKO
Seventy-Ninth Respondent
AMANDA
THEMBI PETER
Eightieth Respondent
ANDISWA
NGOXOZA
Eighty-First Respondent
KHUNJULWA
PAYI
Eighty-Second Respondent
NOSIPHO
SANDI
Eighty-Third Respondent
N.
GAMEDE ATTORNEYS
Eighty-Fourth Respondent
LULEKA
QHUPA
Eighty-Fifth Respondent
NOSIPHIWO
MTHI
Eighty-Sixth Respondent
PERSONAL
INJURY PLAINTIFF’S LAWYERS
ASSOCIATION
(‘PIPLA’)
Eighty-Seventh Respondent
Summary
– Stay of execution of judgment – common law and s 173 of
Constitution – rule 45 of rules of court –
delictual debt
airing from medico-legal claim – s 3 of State Liability Act, 20
of 1957 – attachment of right title
and interest to credit
balance in bank account of government department – duties of
accounting officer and treasury –
Public Finance Management
Act, 1 of 1999
– finality of judgments – variation of
final orders – once and for all rule – development of
common law.
JUDGMENT
EKSTEEN J:
[1]
“
I
can get no remedy against this consumption of the purse: borrowing
only lingers and lingers it out, but the disease is incurable”.
[1]
The despairing cry resonates through the applicants’ case. The
third applicant, the Member of the Executive Council for Health,

Eastern Province (the MEC for Health), and the fourth applicant, the
Head of the Department of Health, Eastern Cape (the HOD for
Health)
lament that they struggle to meet their Constitutional obligations in
the face of their deteriorating financial wellbeing,
which they
ascribe to the ever increasing, never ending burden of medico-legal
claims. They have, from time to time, received additional
grants from
national government, but they contend, that due to the parlous state
of the public purse, there is no prospect of further
grants.
Accordingly, they sought an interim interdict to suspend the
execution of all judgments by judgment creditors with delictual

damages awards arising from medico-legal claims.
[2]
The application was initially launched as
an urgent application on 21 July 2021, but it was postponed on
several occasions. The
urgency of the application dissipated, as the
respondents gave an undertaking not to proceed with execution,
pending a decision
by this court. A significant number of plaintiff
respondents and attorney respondents entered an appearance to oppose,
and further
respondents were joined at the instance of the
applicants. The eighty-seventh respondent, the Personal Injury
Plaintiff’s
Lawyers Association (PIPLA) were granted leave to
join as a respondent. Chance at Life and the Medical Malpractice
Lawyers Association
were admitted as
amici
curiae
.
[3]
The
application was brought in two parts. At this stage only part A of
the application is before us for determination. In it the
applicants
sought to interdict various respondents (the plaintiff respondents)
who have obtained judgment against the MEC for Health
for delictual
damages, arising from the negligence of their employees, from
executing, save to the extent set out later, against
any immovable or
movable property, whether corporeal or incorporeal, of the Eastern
Cape Department of Health (the ECDOH). They
further sought to
interdict the attorneys (the attorney respondents), who had acted for
the plaintiff respondents in the underlying
litigation, from
recovering fees in excess of R125 000,00 from their clients. The
relief in part A was in the form of an interim
interdict, pending the
finalization of part B, and the applicants said that they sought the
relief in terms of the common law and
s 173 of the Constitution
[2]
,
alternatively, in terms of rule 45A of the Uniform Rules of Court
(the rules).
[4]
The purpose of the interim interdict, they
said, was to enable them to vary the terms of the final orders made
in favour of the
plaintiff respondents. Thus, they sought an order
that the MEC for Health and the HOD for Health “be directed”
to endeavor
to conclude agreements with the plaintiff respondents to
pay the judgment debts in instalments and, failing such agreement, to
bring an application for the variation of the court orders to permit
instalment payments in a manner that does not disrupt or materially

impede the delivery of medical and emergency services at public
health facilities in the Eastern Cape. They said that they would
seek
a further suspension of all execution proceedings pending the final
determination of such applications for variations.
[5]
It
is necessary to transverse briefly the history of the application.
The relief sought has morphed over time. At first, the applicants

tendered to permit each plaintiff respondent to attach R500 000,00 of
its Paymaster General account (PMG account)
[3]
,
of which no more than R125 000,00 was to be paid to the attorney
respondents in respect of legal fees, to which they were
contractually
entitled, and suggested that the remaining R375 000,00
would be sufficient to pay for any urgent medical attention required
by
them, or by persons on behalf of whom actions had been instituted
(the injured parties). They tendered that any further urgent medical

services required by such persons, over and above those services
which are paid for by the R375 000,00, must be delivered by the

applicants’ facilities, failing which respondents may, on five
days’ notice, approach the high court for relief.
[6]
As
I have said, the application was postponed from time to time and, in
November 2021, the applicants amended their notice of motion
to
include, as the main relief, a declaratory order that any attachment
of the ECDOH’s PMG account, in execution was unlawful.
[4]
The declaratory relief is final, both in form and effect, and
involves the interpretation of statutory provisions. Accordingly,
the
interim relief adumbrated earlier, was sought in the alternative to
the declarator.
[7]
During
the course of the argument of the application, Ms
Bawa,
on
behalf of the applicants, advised that they would no longer seek the
relief set out in the notice of motion but, in its stead,
she
proposed three alternative draft orders. The first would apply to the
declaratory relief, to which I revert. Annexed to the
second draft
order was a table that recorded the judgment debts due to each of the
plaintiff respondents and a schedule of proposed
annual instalments,
which the applicants intended to pay in order to settle the judgment
debts. The number of instalments varied
from two annual payments to
ten, depending on the magnitude of the award. The applicants said
that the relief claimed in the second
draft would be interim, pending
the determination of part B of the application
[5]
.
In it they sought to interdict the respondents from issuing writs or
attaching the ECDOH’s provincial revenue fund or the
PMG
account, or issuing writs and attaching and removing, or continuing
with the attachment and removal of any immovable or movable
property
in possession of the HOD for Health or the Premier of the Eastern
Cape.
[6]
In addition they sought
the following further relief:
“
3.
The … Applicants, are directed … to make further
endeavours to conclude agreements with
the (plaintiff respondents) to
pay their damages or awards in instalments in terms of section 3(10)
of the State Liability Act
… within 60 days of this order,
failing such agreement to bring an application for variation of such
awards to permit instalment
payments, and to take all other necessary
steps to address the payments of such awards in a manner that does
not prevent, nor have
the consequence, directly or indirectly of
impeding the delivery of medical and emergency services at Fourth
Applicant’s
health facilities and which also does not impede
the treatment required for the Plaintiff, or any person on whose
behalf the Plaintiff
had instituted the action;
4.
The First Applicant is directed to report to Court in 60 days and
every 60 days thereafter
in relation to any agreements concluded with
plaintiffs in relation to the orders and writs already in existence,
or in the absence
of any such agreements being concluded, any
variation applications instituted in respect of such orders as
granted;
5.
… that any urgent medical services required by the (plaintiff
respondents) or persons
on whose behalf they had instituted the
medico-legal claim, arising from such claims, over and above those
services which are paid
for by the amounts listed in the columns
headed ‘
Current year”
” and “
Plus 1
”
in Annexure “A”, must be delivered by the Fourth
Applicant’s facilities, failing which, such Respondent/s
may,
on 5 days’ notice, or on any other lesser notice, as is
necessary, depending upon the urgency of the situation, on notice
to
the Second and Third applicant, and service at the office of the
Premier Building, … approach this Court for further
relief.”
[8]
In the third alternative draft order the
applicants said that they would seek a final order that, subject to
the payment of an initial
amount by 31 May 2022, the execution of the
judgments in favour of the plaintiff respondents be stayed for a
period of one year
and they made a similar tender in respect of the
urgent medical treatment required by the plaintiff respondents, or
injured parties.
[9]
As I have said, the application was argued
almost nine months after it had been launched. In the interim the
applicants have tried
to negotiate with the plaintiff respondents to
pay their debt in instalments. Those who are inclined to do so have
concluded agreements
with the applicants, which have been made orders
of court. The remainder have rejected the applicants’
approaches. There
can be no purpose for an order now directing the
applicants to endeavor to conclude agreements with the remaining
plaintiff respondents.
In any event, the applicants do not require an
order of court to negotiate with them. Such a prayer can accordingly
not be sustained.
[10]
The relief which the applicants ultimately
sought in part A relates only to final orders already granted in
favour of the plaintiff
respondents and writs already issued. By
contrast, in part B the applicants seek relief only in respect of
“any further orders”
that a court may grant in future in
favour of a plaintiff. Usually the purpose of an interim interdict is
to preserve or restore
the status quo, pending the final
determination of the rights of the parties. Whereas part B relates
only to future, or incomplete
litigation, the suggestion of an
interim interdict, pending the resolution of part B is curious. What
the applicants really sought,
as is evident from the papers and the
argument before us, is an interim interdict pending an application to
vary the final orders
granted against them. I shall approach the
application thus.
Background
[11]
The applicants said that they had brought
the application in their own interest and in the interests of all
persons requiring health
services in the Eastern Cape. They explained
that medical negligence claims, particularly claims arising from
birth injuries, and
consequent cerebral palsy, have rapidly increased
in recent years and they continue to escalate. These claims, by their
nature,
are generally large claims and judgment debts arising from
these claims, which are not budgeted for, have had a devastating
effect
upon the already parlous state of the ECDOH’s finances.
The ECDOH has an annual budget of R26.43 billion, however, in her

budget speech for 2022, the MEC for Health explained that, if one
considers the projected over expenditure on cost of employment
for
2022 and the accruals and payables from 2020/2021, the available
budget for the ECDOH for 2021/2022 financial year becomes
R21.3
billion, of which R17.9 billion, or 84%, is for the cost of
employment. In the result, the ECDOH has approximately R3.4 billion

to render public health care services to the Eastern Cape.
[12]
They
said that they were constitutionally bound to respect, promote,
protect and fulfil the rights in the Bill of Rights
[7]
and to take reasonable legislative and other measures, within their
available resources, to achieve the realization of the right
to
access to health services.
[8]
They explained that they are not permitted to refuse anyone emergency
medical treatment
[9]
and they
are bound to ensure every child’s right to basic health care
services.
[10]
[13]
During the financial year 2020/2021 writs
in execution pursuant to judgment debts arising from medico-legal
claims amounted to more
than R921 million. These writs were issued
against, and paid from, the PMG account. When the application was
argued before us an
amount of R397 million was due to the plaintiff
respondents in respect of judgment debts, which had accumulated from
judgments
delivered over a period from 2019 to mid-2022, and the
department estimated that a contingent liability of R38.67 billion
existed
in respect of unresolved claims.
[14]
The
head of the Eastern Cape Department of Provincial Treasury (HOD for
treasury) explained that due to the country’s precarious

financial position no further financial assistance, beside the
Eastern Cape’s ever diminishing equitable share of the national

revenue, will be forthcoming from national treasury. The applicants,
accordingly, contended that payment of the existing judgment
debts
may lead to the total collapse of health services in the Eastern
Cape.
[11]
The collapse of
health services, they said, threaten the Constitutional rights of all
persons that have existing or potential claims,
suffer illnesses or
injuries and receive health care in the Eastern Cape.
[15]
The
financial constraints imposed on the ECDOH are real and the potential
impact thereof is cause for concern. Excessive medical
malpractice
litigation against the State may, indeed, potentially undermine its
ability to provide public health care.
[12]
However, the symbol of justice is a pair of scales, which requires
the particular circumstances of each plaintiff respondent to
be
weighed.
[16]
The plaintiff respondents are primarily
indigent, rural citizens of the Eastern Cape and the vast majority of
claims arise from
cerebral palsy inflicted upon children through
birth injuries, by the negligence of employees of the ECDOH. The
issue of “excessive
litigation” does not arise in respect
of the relief sought in part A of the application. The applicants
accept that the litigation
in each case was justified, the finding of
their negligence is not disputed and the validity and binding effect
of the judgments
is not challenged. I shall revert to the plight of
the injured parties.
The Statutory Regime
[17]
It
is instructive, before I proceed to consider the predicament of the
applicants, to explore the statutory context which finds
application
to the financial issues in this case. Section 27 of the Constitution
provides for everyone to have a right to access
to health care
services, including reproductive health care. It imposes an
obligation on the State to take reasonable legislative,
and other
measures within its available resources, to achieve the progressive
realisation of such rights. Health services is a
functional area of
concurrent national and provincial legislative competence.
[13]
Pursuant to the obligation conferred in s 27(2) of the Constitution,
parliament passed the National Health Act (the Health Act),
[14]
which confers the responsibility for the delivery of health services
on the provincial health departments.
[15]
[18]
In
order to fulfill its obligations and to deliver services to the
people of the Eastern Cape, the Eastern Cape Government is funded,

partly by its equitable share and allocation of revenue from national
government,
[16]
and partly
from funds it raises.
[17]
All
money received by a provincial government must be paid into the
Provincial Revenue Fund (PRF).
[18]
The PRF is controlled by the Provincial Treasury
[19]
(treasury) and money may only be withdrawn from the PRF in terms of
an appropriation by a provincial act (or as a direct charge
against
the fund in circumscribed circumstances).
[20]
[19]
The
equitable share received from national government is determined each
year by a
Division of Revenue Act (DORA
). Once it is received, the
first applicant (MEC for Finance) is required to present a budget to
the provincial legislature which
must pass legislation to appropriate
the funds to various departments in order to provide for the needs of
the province.
[21]
The budget
must meet certain minimum requirements.
[22]
It must contain,
inter
alia
,
proposals for the financing of any anticipated deficit for the
particular year and provide an indication as to how the province

intends to deal with any public liability that will increase public
debt during that financial year and future financial years.
[23]
As adumbrated earlier, once an appropriation has been made money may
only be withdrawn from the PRF in accordance with the appropriation.

In respect of the ECDOH, money appropriated to it is transferred into
its PMG account to which it then has access.
[20]
The
finances of the ECDOH resort under the control of the accounting
officer, the HOD for Health
[24]
.
He or she is obliged to take into account all relevant
considerations, including issues of proprietary, when proposals
affecting
his responsibilities are considered and, when necessary, to
bring those considerations to the attention of the responsible
executive
authority.
[25]
His
general responsibilities are set out in
s 38
of the
Public Finance
Management Act (PFMA
) and include:
(i)
The
duty to ensure that the department has and maintains an effective,
efficient and transparent system of financial and risk management
and
internal control
[26]
;
(ii)
The
management of the liabilities of the department
[27]
;
and
(iii)
The
payment of all money owing within the prescribed or agreed
period.
[28]
[21]
In
the context of judgment debts the system of financial and risk
management,
[29]
and the
prescribed or agreed periods for payment,
[30]
emerge from the State Liability Act, as amended (the SLA),
[31]
to which I revert hereafter.
[22]
In
addition to his general responsibilities the accounting officer is
required to ensure that effective and appropriate steps are
taken to
prevent unauthorised expenditure
[32]
and, to this end, he must report any impending shortfalls in budgeted
revenue to the executive authority and the relevant treasury.
[33]
He is guilty of financial misconduct if he willfully or negligently
fails to comply with sections 38 or 39 or permits unauthorised

expenditure.
[34]
Where such
financial misconduct is willful or grossly negligent it is an offence
punishable with imprisonment of up to five years.
[35]
[23]
As previously indicated, this case is
concerned with the execution of judgments in favour of the plaintiff
respondents. The judgments
are common cause and the applicants said
that they recognize the validity and binding effect of the judgments.
None have been rescinded
or appealed and many arise from settlement
agreements concluded by the MEC for Health. The judgments have not
been satisfied and
a number of plaintiff respondents have issued
writs of execution, notably for the attachment of the MEC for Health
and the HOD
for Health’s rights, title and interest in the PMG
account.
[24]
Execution
of judgment debts against the state is governed by the SLA.
[36]
It lays out the structural scheme created to ensure satisfaction of a
judgment debt against the state.
[37]
Where a judgment is entered against a department, as in each instance
in this case, the accounting officer is obliged to pay the
judgment
debt from the appropriated budget, within 30 days of the final
judgment, unless a different period is agreed with the
judgment
creditor.
[38]
If the
accounting officer fails to pay, whether in dereliction of his duty
or as a result of insufficient funds in the appropriated
budget, the
judgment creditor may bring the judgment to the attention of the
executive authority, the state attorney and treasury.
[39]
Treasury is then obliged to pay the debt within 14 days of receipt of
the judgment, in the prescribed manner, unless, in the event
of the
insufficient funds, he has made an acceptable arrangement with the
judgment creditor.
[40]
In
order to do so, he is mandated by s 18(2)(i) of the PFMA to do
anything that is necessary to fulfill his responsibilities. If

treasury satisfies the judgment debt it must record this fact and
debit the amount thereof against the appropriated budget of the

department concerned.
[41]
In
the event that there are insufficient funds available in the
appropriated budget of the department for the current year, treasury

is empowered to debit the payment to the appropriated budget for
future years.
[42]
[25]
The
accounting officer is obliged to put in place appropriate budgeting
procedures, in accordance with instructions issued by the
relevant
treasury,
[43]
in order to
ensure the timeous satisfaction of final court orders.
[44]
These budgeting procedures must include measures for the appropriate
identification and recording of potential contingent liabilities

which may arise as a result of claims which have been instituted
against the department.
[45]
An
accounting officer who fails to comply with this duty is guilty of
financial misconduct,
[46]
and
the satisfaction of the judgment debt by treasury does not absolve
him of liability for his misconduct.
[47]
[26]
If
both the accounting officer and the relevant treasury fail to satisfy
the judgment debt, the judgment creditor may proceed, in
the
prescribed manner, to execution of the judgment against movable
property owned by the state and used by the department concerned.
[48]
Unless agreement can be reached in respect of the movable property
which may not be attached and sold,
[49]
the SLA permits the attachment of “any movable property”.
The plaintiff respondents in this case have judgments outstanding
and
unpaid, which have accumulated over several years starting in 2019.
As I have said, some of the judgment creditors have attached
the
applicants’ PMG account, which self-evidently, has serious
implications that may impact upon the ability of the MEC for
Health
and the ECDOH to deliver services in the execution of their
Constitutional mandate. Hence the application.
Declaratory Relief
[27]
I turn to the declaratory relief sought,
which, as adumbrated earlier, is a purely legal issue. The applicants
seek the following
orders:
“
2.
Declaring that the
State Liability Act 20 of 1957
does not permit
writs to be issued against the Third and Fourth Applicant’s
right, interest and title in its Pay Master General
Bank Account …
held at the Third Respondent (ABSA Bank);
3.
Declaring that all current and future writs issued against the PMG
account are unlawful and
invalid;
4.
Setting aside the writs issued by or on behalf of the Tenth to
Sixteenth, Eighteenth to Twenty-Fourth,
Twenty-Sixth to Twenty-Ninth,
Thirty-Second to Thirty-Fourth, Thirty-Sixth to Thirty-Seventh,
Thirty-Ninth to Seventy-Second, Seventy-Fourth
to Eighty-Sixth
Respondents and by any other plaintiffs who have obtained writs
(which remain unsatisfied) against the PMG account;
5.
Interdicting the Sixth to Ninth Respondents and any other Sheriff of
the Court from issuing
of executing writs against the
[50]
PMG account.”
The relief sought in
paragraphs 4 and 5, they said, would flow from the declarators in
paragraphs 2 and 3. As this relief is final,
both in form and in
substance, and is purely a matter of law, it is convenient to
consider these prayers before proceeding to the
main relief which has
bearing also on the movable property used by the department.
[28]
The issue was first raised in the replying
papers where it was sought to categorise the PMG account as a
subsidiary account of the
PRF and it was therefore contended that
withdrawals from the PMG account could only occur in accordance with
s 226 of the Constitution
and s 22 of the PFMA. Neither the
Constitution nor the PFMA makes reference to a PMG account. On the
applicants own averments,
however, the argument cannot be sustained.
In its founding papers the second applicant, who attested to the
founding affidavit
on behalf of all the applicants, articulated the
harm which the ECDOH would suffer if writs of attachment were issued
against the
PMG account. He identified the harm as follows:
“
1.
… the ECDOH will effectively lose control of
its
bank account;
2.
the
ECDOH will not be able to pay
its suppliers and service
providers and as a result, services and suppliers will be impeded,
and ultimately halted;
3.
ABSA will potentially place a stop on payments to suppliers, where
writs are issued; and
4.
… the removal of such funds
from the ECDOH’s bank
account
will wreak havoc on the ECDOH placing it in a position
where it will be unable to execute its constitutional obligations ….”
(Emphasis supplied)
[29]
In
the replying affidavit he explained that treasury has an exchequer
account,
[51]
which has
sub-accounts known as PMG accounts. Each department’s
allocation is deposited into its own PMG account for the
requirements
of the respective departments. The ineluctable conclusion is that the
monies allocated to the various departments,
in terms of the
Provincial
Appropriation Act, are
withdrawn from the PRF and paid
over to the account of the department concerned, as envisaged in s
226(2)(a) of the Constitution
and s 21(1)(b) of the PFMA. The PMG
account, is accordingly, not an account protected under s 226 of the
Constitution.
[30]
In
Ikamva
[52]
a full court of this division was called upon to consider the issues
raised in support of the declaratory relief, in particular
whether
the MEC for Health’s right, title and interest in the PMG
account was susceptible to attachment in execution. The
core argument
for the applicants was that, on a proper construction of the SLA, it
permitted attachment only of corporeal movable
assets. The full court
embarked upon a detailed analysis of the relevant provisions of the
SLA. It found that, as a matter of interpretation,
there was nothing
in s 3 that points to a conclusion that “movable property”
must be limited to corporeal movables.
[53]
It proceeded to conclude:
“
The
attachment of a judgement debtor’s right to monies in a banking
account is authorised by Uniform Rule 45(8). It provides
that an
attachment of an incorporeal right is only complete when the sheriff
has given notice of the attachment to all the interested
parties, and
has taken possession of the writing or document that evidences the
judgement debtor’s ownership of the right.
The requirements for
a complete and effective attachment of the right in a banking account
are not inconsistent with the process
of execution prescribed by
section 3 of the Act in that they:
(a)
allow the sheriff not to remove the
attached property immediately;
(b)
enable the sheriff and the relevant state
or provincial department to instead agree on the property to be
attached, removed and
sold in execution;
(c)
do not immediately deprive the relevant
department of its use of the property, avoiding the potential for the
disruption of service
delivery obligations; and
(d)
provide for the sale of the right of the
judgement debtor at a sale in execution to the highest bidder as
envisaged in section 3
of the Act.
Provided
that the monies standing to the credit of a state or provincial
department are capable of being identified as monies which
are being
‘used’ by the department concerned, in that it had been
appropriated to the vote of that department, an attachment,
as
envisaged in Uniform Rule 45(8) accordingly does not appear to
conflict with the framework provided by s 3 of the Act.”
[54]
[31]
The finding of the full court is decisive
of the relief sought in these paragraphs and binding on this court, a
full court of the
same division, unless I am persuaded that it is
clearly wrong. Ms
Bawa,
for
the applicants, urged me to conclude that it was. Two contentions for
this conclusion were advanced. First, that adopting the
accepted
approach to the interpretation of statutes, and viewing the
provisions of the SLA in their context, they clearly provide
for the
attachment of corporeal movables only. Secondly, it was contended
that the full court had erred in having regard to the
provisions of
rule 45(8) in seeking to interpret the provisions of the SLA.
[32]
The
full court correctly recognized the approach to the interpretation of
statutes set out in
Endumeni
,
[55]
where the SCA stated:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors.”
[56]
[33]
It
is convenient to consider first the material known to parliament at
the time of the promulgation of the amendment to the SLA.
In common
law, incorporeal property has, since time immemorial, been
susceptible to attachment in execution.
[57]
Thus, in
Snow
[58]
the SCA remarked:
“
Some
trite observations may be necessary to introduce a discussion of the
subject. Rights in relation to the (contractual) performance

(
obligatio
)
of another have since time immemorial been classified as
incorporeal. The obligation of the debtor is not property; it is
the
right (often referred to as the 'action') of the creditor.
Obligations can therefore not be attached because they do not form

part of the patrimony of the creditor, whereas rights can be attached
and do form an asset in the estate of the creditor.”
[34]
Incorporeal
property was, in common law, classified as movable or immovable. In
Ex
Parte Master of the Supreme Court
[59]
Innes CJ, reliant on
Voet,
[60]
held
that incorporeal rights should, wherever possible, be divided into
movable or immovables.
[61]
The
necessity for such a classification derives from the fact that
Roman-Dutch law adopted the Roman classification of corporeals
and
incorporeals, as well as the Germanic distinction between movable and
immovable property.
[62]
The
practical importance of the distinction between movable and immovable
incorporeal property in South African law includes the
fact that on
attachment in execution, a judgment debtor’s movable property
is attached first and, only if it is insufficient
to satisfy the
judgment debt, can execution be levied against his or her immovable
property.
[63]
The right title
and interest in a credit balance in a bank account is an incorporeal
movable asset, susceptible to attachment.
[64]
The legislature must accordingly be deemed to have known, when the
SLA was adopted that movable assets, generally, include incorporeal

movable assets, for purposes of execution.
[35]
The
apparent purpose of the provisions in s 3(5), (6) and (7) emerges
from the circumstances giving rise to the amendment of the
SLA and
the incorporation of the amended s 3, in its current form, in 2011.
Prior to the amendment of the SLA, it provided that
no execution,
attachment or like process was permitted against property of the
state. In
Nyathi
[65]
the Constitutional Court held the provisions of the SLA (in its
unamended form) did not treat judgment creditors as equal before
the
law. It emphasized that the effect of sections 8, 34 and 165 of the
Constitution, in particular s 165 (5), was that an order
issued by a
court is binding on all persons to whom, and organs of state to
which, it applies. These provisions of the Constitution
do not treat
state litigants differently from private litigants. It held,
accordingly, that s 3 of the SLA was unconstitutional
because it
effectively prevented private litigants from executing effectively on
a judgment legitimately obtained against the state.
The apparent
purpose of the amended s 3 is, accordingly, as the heading of the
section suggests, to ensure the satisfaction of
final court orders
against the state, sounding in money.
[36]
The structure of the SLA, and the context
in which s 3(6), (7) and (8) appear, has been set out earlier. The
SLA prescribes that
a judgment debt must be paid from the
appropriated budget of the relevant department, which, as I have
said, is held in the PMG
account of the ECDOH. Where both the
accounting officer of the ECDOH and treasury have failed to comply
with their obligations
in terms of the SLA, s 3(6) to (9) provides
for the attachment and sale in execution of movable property. Failing
agreement on
the movable property which may not be attached the
sheriff is authorised to attach “any movable property”.
Adopting
the approach to the interpretation of statutes set out in
Endumeni
,
and viewing these provisions against the backdrop of
Nyathi
,
and in the context in which they appear in the SLA, it would be
inimical to the structure of the SLA to exclude the single asset,

which has been specifically identified in the SLA as the source from
which the debt is to be paid, from the movable property that
is
available for attachment. For these reasons I am unpersuaded that the
full court was “clearly wrong” in
Ikamva
.
On the contrary, I consider that they were correct.
[37]
I do not understand the judgment in
Ikamva
to mean that the full court had recourse to rule 45(8) to interpret
the provisions of the SLA. Rather, having ascertained the meaning
of
the SLA, it noted that s 3(9) provided for the application of the
rules of court and that rule 45(8) permits the attachment
of money
held in a bank account. Even if I err in my understanding of the
judgment, for the reasons set out earlier, I am not persuaded
that
the conclusion reached in
Ikamva
is wrong. The declaratory relief sought can therefore not be
sustained.
Cause of Financial
predicament
[38]
I revert to the applicants’ financial
embarrassment. As adumbrated earlier, they ascribe their financial
woes to medico-legal
claims, which undeniably have escalated
dramatically, not only in the Eastern Cape, but throughout the
country. It is indeed cause
for concern and, as I shall show later,
the Constitutional Court has foreshadowed the possible development of
our law to ameliorate
the effect thereof on the fiscus and public
health care.
[39]
The applicants acknowledge that the
difficulty should preferably be resolved by legislation, but they
contend that they cannot be
expected to wait for government to
legislate given their prevailing predicament. They attribute their
current embarrassment to
numerous factors, including: the “excessive”
litigation against the ECDOH; unscrupulous and dishonest attorneys;
the
incompetent and under resourced state attorney, particularly in
the Mthatha office, who is unable to provide effective legal advice

or representation; awards which have over-compensated plaintiffs in
medico-legal matters; and the national government, which has
failed
to heed their call for legislative measures.
[40]
The respondents, on the other hand, have
attributed the ECDOH’s financial embarrassment to corruption,
“state capture”
and mismanagement.
[41]
The state attorney is not a party before us
and it is not appropriate for me to make findings in respect of their
conduct when they
have not had the opportunity to be heard. The
election to legislate, or not to legislate, is a matter for
parliament, not the courts.
As I have said, neither the fairness of
the awards to the plaintiff respondents, nor the conduct of their
attorneys, are in issue
in the application. The applicants accept the
validity of all the judgments, and most resulted from settlement
agreements. There
is no attack on the judgments. There is also no
evidence in the papers to justify the sweeping suggestions of
corruption or state
capture and I do not intend to address these
issues any further.
[42]
Whilst the applicants firmly denied any
suggestions of mismanagement, on their own version, the fiscal
management of the ECDOH,
and, indeed of treasury, is cause for grave
concern.
[43]
The HOD for treasury explained that the
ECDOH is allocated a budget annually for its various programs.
However, the ECDOH has instead,
been spending an ever increasing
portion of its allocated annual budget on the settlement of
medico-legal claims, which has had
the result of funds being shifted
from other service delivery budget items in order to pay these
claims, that are unbudgeted and
unfunded. He proceeded to contend
that the ECDOH is not permitted to budget for these payments as they
are not categorised as health
service delivery related items (in
terms of s 27 of the Constitution) and they need to be legitimised by
the SCOPA processes. He
said that the ECDOH does not budget for
medico-legal claims on the instructions of treasury. They preferred a
consequence management
approach.
[44]
As
a direct result of the conscious decision not to budget for these
claims, any payment of a judgment debt constitutes an unauthorised

expenditure in terms of the PFMA.
[66]
In his consolidated general report on national and provincial
outcomes: PFMA 2019/2020, the Auditor-General reported:
“
The
poor internal control environment negatively affected the outcomes at
the key service delivery departments of Health, Transport
and
Education, and transgressions of legislation at these departments had
an adverse impact on how they spent the money allocated
to them. At
R1.59 billion, the unauthorised expenditure of the Eastern Cape is
the highest of all the provinces. The Eastern Cape
Department of
Health made payments of R763 million relating to medical claims that
were not budgeted for, which resulted in unathorised
expenditure. By
year-end, the Department still had R36.75 billion in unpaid medical
claims – the highest of all national
and provincial
auditees.”
[67]
[45]
The HOD for treasury has explained that the
R36.75 billion is a reference to contingent liability which has not
yet arisen. The
Auditor-General proceeded to express concern about
the financial state of health in the provinces. He reported:
“
Departments
usually do not budget for claims. Especially in the health sector,
not budgeting for medical negligence claims means
that all successful
claims will be paid from funds earmarked for the delivery of
services, resulting in these departments using
more than what had
been allocated to them. The provincial health and education
departments alone incurred R2.37 billion (79%) in
unauthorised
expenditure.”
[68]
[46]
The
suggestion of the HOD for treasury that the ECDOH is not permitted to
budget for judgment debts is unfounded. Section 27 of
the
Constitution contains no line items. It provides for everyone to have
a right to access to health care and obliges the state
to take
reasonable measures, within its available resources, to achieve the
progressive realization of each of the rights set out
in the section.
The available resources are the difference between the income flow of
the department and its liabilities. There
is nothing in s 27 of the
Constitution which prevents the ECDOH from budgeting for known
liabilities and contingent liabilities.
The PFMA
[69]
requires the HOD for Health to advise the MEC for Finance and the MEC
for Health on policy proposals affecting his responsibilities.
The
preparation of the budget is central to his responsibilities. Where
the payment of known debts, as outstanding judgment debts
are, and
contingent liabilities give rise to an anticipated deficit in the
financial year, the MEC for Finance is obliged to set
out proposals
in his budget to meet these liabilities.
[70]
Where they would result in an increase in public liability during
that financial year the MEC for Finance is obliged, in his budget,
to
provide an indication of his intentions regarding such liability.
[71]
The applicants are silent on the budget tabled by the MEC, but where
they openly declared that they have taken a conscious decision
not to
budget for judgment debts it may be accepted that no provision was
made in the budget for these liabilities, as required
by the PFMA.
[47]
As
I have said, the finances of the ECDOH resort under the control of
the accounting officer. He is obliged to budget for these

liabilities.
[72]
His failure
to do so constitutes financial mismanagement.
[73]
One of the central obligations of the HOD for Health is to prevent
“unauthorised expenditure”
[74]
and a willful failure to do so constitutes an offence punishable by
imprisonment of up to five years.
[75]
[48]
I
have explained earlier that the treasury is entitled to issue
instructions, provided that they are not inconsistent with the
PFMA.
[76]
It is not empowered
to issue directives in conflict with the provisions of the PFMA. As
adumbrated earlier, it is the failure to
budget for judgment debts,
as prescribed by the SLA, which results directly in unauthorised
expenditure. An instruction not to
budget for these known debts,
[77]
and for contingent debts, is an unlawful instruction.
[49]
The conclusion is inescapable that the
management of the finances of the Eastern Cape Government, and in
particular the Eastern
Cape Department of Health, falls far short of
the standard demanded by the PFMA. The unlawfulness of the
modus
operandi
was drawn to their attention
by the Auditor-General as long ago as 2020. He concluded then, that
the transgressions of legislation
had an adverse impact on how the
ECDOH spent the money allocated to them. The flagrant disregard for
legislation designed to ensure
proper financial planning of the
fiscus is ominous. In the circumstances it is appropriate to refer
this judgment to the National
Director of Public Prosecutions to
consider whether to institute a prosecution in terms of s 86 of the
PFMA.
[50]
Notwithstanding
the disturbing financial mismanagement of ECDOH, the HOD of treasury
said that even if the expenses had been budgeted
for it would simply
mean that less would be available from the inception to be allocated
to the ECDOH’s programs unless further
funding was available.
It is, of course, true of any enterprise that the payment of its
debts will result in it having less money
available for the
implementation of its business. The current position has, at the very
least been exacerbated by the continued
failure to comply with the
legislation. However, it is undeniably so that state coffers,
including those of the Eastern Cape Government
and the ECDOH, are
under significant pressure. Whilst the applicants have clearly
demonstrated the severe fiscal constraints imposed
on the ECDOH, I do
not think that its imminent collapse is reasonably anticipated. The
SLA provides for the payment of judgment
debts by the treasury, if
the ECDOH fails or is unable to pay, and in the final analysis,
health is a joint competency of national
and provincial government.
The obligation imposed by s 27 of the Constitution binds the national
government as much as it does
the applicants. Moreover, the Eastern
Cape government has it within its power to raise revenue of its
own.
[78]
Application to vary
orders of court
[51]
As adumbrated earlier, the applicants, in
part A of their notice of motion, sought an interim interdict pending
the finalisation
of part B of the application. I have explained
earlier that the relief now sought relates only to the orders already
obtained by
the plaintiff respondents and can therefore only be
interim to the determination of the applications for variation.
[52]
In
its founding papers the applicants gave no indication of the nature
of the variation that they would seek. When challenged that
they had
no plan for the payment of instalments, the respondents, in reply,
produced a schedule, currently annexed to the second
draft order,
which attributes to each plaintiff respondent an initial payment, as
adumbrated earlier, and thereafter equal payments,
in some cases
extending over ten years. The schedule made no provision for the
payment of interest that has already accrued, or
that will accrue in
future, on the outstanding balance. It gave no indication of the
manner in which these amounts were calculated,
made no mention of the
circumstances or needs of the individual plaintiff respondents and
injured parties, and the applicants contended
that the amounts have
been arrived at solely on the basis of their affordability. They gave
no indication of where these funds
would be sourced from, given that
they have not been budgeted for, nor have they shown that the MEC for
Finance has put forward
any proposals to meet these liabilities in
the annual budget.
[79]
[53]
The circumstances of the plaintiff
respondents differ from case to case. The vast majority of claims, as
I have observed before,
are cerebral palsy related claims. These
judgments often include an award to provide for private caregivers,
alterations to the
primary residence so as to provide for the need
for specialised access for wheelchairs, specialised bathing
facilities, specialised
sleeping facilities, onsite residence for
caregivers and the storage of medical equipment. Where the plaintiffs
are resident in
remote rural areas the award may often provide for
the acquisition and adaptation of specialised transport to bring the
child to
a centre where specialised medical or educational needs may
be met. In extreme cases, the applicants acknowledge, provision is
sometimes made for a second apartment or home in the city where such
services are available. These constitute very considerable
expenses
which may be required immediately and, if an order were made to pay
the judgment debt in instalments, would require quantification
in
order to determine the extent of the first instalment. The need may
change as the child reaches school going age, and evidence
would be
required to determine what the extent of the need might be at that
particular time. These expenses do not relate directly
to the
provision of the emergency medical care that the applicants have
tendered and no consideration has been given to it.
[54]
There
were, initially, forty plaintiff respondents, of which fourteen had
obtained orders for interim payments, in terms of rule
34A, to
provide for their immediate needs, pending the final quantification
of their claims. The remainder had obtained final judgment
in respect
of the underlying litigation and the majority of them were orders
granted by consent. Some of the orders stipulate the
date for
payment
[80]
.
[55]
A
significant feature of rule 34A is that a court is not empowered to
make an interim order unless it appears to the court that
the
defendant is insured in respect of the plaintiff’s claim, or
that he has the means at his disposal to enable him to make
such
payment.
[81]
Where the
defendant (the MEC for Health) consented to a judgment to make
payment, in terms of rule 34A, at a particular time, it
seems to me
that the settlement included at least a tacit warranty that he is
able to pay. Where the court delivered a reasoned
judgment, a factual
finding in this regard had to be made and the judgments are not
attacked.
[56]
Many of the final judgments, too, were
taken by agreement between the parties and stipulated the date for
payment. They provided
for interest to be paid where the defendant
(the MEC for Health), is in default of payment.
[57]
Rule 42 provides for the variation or
rescission of judgments. It is purely a procedural mechanism designed
to correct an obviously
wrong judgment and it must be read against
the common law background. It is common cause that the judgments in
issue are not wrong
and it has not been suggested that they were
erroneously sought or erroneously granted. The failure by a party to
seek relief to
which it was entitled is not covered by the rule. The
variation that the applicants intend to seek is to the date of
payment, to
provide for various amounts to fall due as set out in the
schedule of instalments proposed. The effect of the intended
variation
is to change the substance of the order.
[58]
Ordinarily,
in the case of an award for delictual damages, the judgment debt will
bear interest from the date on which the judgment
debt is payable,
unless the judgment provides otherwise.
[82]
Some of the judgments in issue do stipulate the date from which
interest will run, but others do not.
[83]
A variation of the date for payment would, in these cases, bring
about a reduction in the compensation which the plaintiff’s

would receive, because interest on the sum awarded would only
commence to run in respect of each payment when it falls due.
[59]
Moreover,
where an award is made in respect of obligations which will be
incurred, or benefits which would arise in future, it is
ordinarily
expressed by calculating the present value thereof, having regard to
interest which would be received on the award.
[84]
A variation in the date for payment may, depending on the damages
awarded, affect the substance of the award. It is not merely

procedural.
[60]
At
common law the court has no power to set aside or alter its own final
order, as opposed to an interim order or an interlocutory
order. In
Zondi
[85]
the Constitutional Court explained the foundation for the rule thus:
“
The
rationale for this principle is two
-
fold
(
sic)
.
In the first place a Judge who has given a final order is
functus
officio
.
Once a Judge has fully exercised his or her jurisdiction, his or her
authority over the subject matter ceases. The other equally
important
consideration is the public interest in bringing litigation to
finality. The parties must be assured that once an order
of Court has
been made, it is final and they can arrange their affairs in
accordance with that order.”
[86]
[61]
There
were certain exceptions to the rule where obvious errors have been
made. These are supplementary, accessory or consequential
matters
such as cost orders or interest on judgment debts; clarification of a
judgment or order so as to give effect to the court’s
true
intention; correcting clerical and arithmetical or other errors in
its judgment or orders; and altering an order for costs
where it was
made without hearing the parties.
[87]
[62]
The variations, which the applicants
contend for, are considerably more substantive and far-reaching, as I
have demonstrated earlier.
The applicants contend that they are
entitled to the variation by the development of the common law in
respect of the “once
and for all” rule to permit for the
payment of the judgment debt in instalments.
[63]
The
“once and for all” rule was explained by Corbett JA in
Evins
[88]
as follows:
“
This
rule appears to have been introduced into our practice from English
law … Its introduction and the manner of its application
by
our Courts have been subjected to criticism …, but it is
a well-entrenched rule. Its purpose is to prevent a multiplicity
of
actions based upon a single cause of action and to ensure that there
is an end to litigation.
Closely
allied to the 'once and for all' rule is the principle of
res
judicata
which
establishes that, where a final judgment has been given in a matter
by a competent court, then subsequent litigation
between the same
parties, or their privies, in regard to the same subject-matter and
based upon the same cause of action is not
permissible and, if
attempted by one of them, can be met by the
exceptio
rei judicatae vel litis finitae
.
The object of this principle is to prevent the repetition of
lawsuits, the harassment of a defendant by a multiplicity of

actions and the possibility of conflicting decisions … The
claimant must sue for all his damages, accrued and prospective,

arising from one cause of action, in one action and, once that action
has been pursued to final judgment, that is the end of the

matter.”
[89]
[64]
In
DZ
[90]
the Constitutional Court explained that the corollary of the “once
and for all” rule is that a court is obliged to
award these
damages in a lump sum. They proceeded to examine the application of
the “once and for all” rule and concluded
at para [54]:
“
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 socio-economic rights.”
[65]
They opined
that there was no obvious choice at the highest level of
justification between the two. With this, the Constitutional
Court
opened the door for the development of the common law so as to
provide for payment by instalments.
[66]
In
PN
[91]
the issue again arose before the same court. They recognized the
increasing prevalence of medico-legal claims and that they result
in
a large portion of the health care budget being allocated to
medico-legal liabilities. They expressed their concern at the impact

which it has on the delivery on health care services to “everyone”
and “every child”.
[92]
[67]
The
Constitutional Court declined, in
PN,
to make any finding on the development of the common law and
commented:
“
Considering
the significant implications of the development of the common law
rules at issue, which – in the context of a
matter of this
nature – may entail the leading of extensive evidentiary
material and the presentation of legal arguments
of some magnitude,
it is simply not in the interests of justice for this court to depart
from the general principle.”
[68]
I
accept, for purposes of this judgment, that
DZ
and
PN
have given a clear indication of the likely development of the common
law in this field, but they emphasised that “this does
not mean
that the individual interest of [a plaintiff] and similarly placed
individuals must be relegated to insignificance. Each
must be
afforded an appropriate remedy and compensated fairly for the loss
suffered”.
[93]
[69]
The prayer for
periodic payments constitutes a special defence to the “once
and for all” rule, which must be properly
pleaded. Evidence
must be led to substantiate the defence and the court must, after
consideration of all the relevant evidence
craft an appropriate
remedy for the individual plaintiff. This will require an assessment
of medical evidence as to the nature
and condition of the injured
party, the extent of the immediate need, which would vary from one
victim to another, the time of
the likely future need and the extent
and time of the relevant instalments. Each individual case must be
considered on the basis
of the particular circumstances pertaining to
it.
[70]
The immediate
difficulty which the applicants encounter is that the defence which
they now seek to raise was not raised at the trial.
As a direct
result thereof, and flowing from the settlement agreements, medical
evidence required to determine the extent of the
initial instalment
and the time and extent of subsequent instalments has not been heard
or considered. It would require the reopening
of the trial in each
case, which, in turn, would have a detrimental impact on the
plaintiff respondents, mostly poor people who
have been victims of
the ECDOH’s negligence, and have already litigated their
matters to finality. All the evidence that
is now raised in the
application, and that may arise in the application for variation, was
always available to the applicants at
the trial and they chose not to
raise the issue or to tender the evidence.
[71]
For these
reasons, the development of the common law contended for, is a matter
for trial. It cannot be raised after the issues
have been finally
decided, simply because the applicants feel the financial pinch.
Interim interdict
[72]
I
have canvassed earlier the periodic evolution of the relief sought.
The main relief currently sought is for an interim interdict
pending
the finalisation of part B. As I have demonstrated earlier,
[94]
the relief currently sought relates only to the judgments granted in
favour of the plaintiff respondents and the writs issued pursuant

thereto. Those judgments have no bearing on the relief sought in part
B, which relates exclusively to further orders which may
be made in
favour of a plaintiff. For that reason alone, the interim interdict,
as currently framed, could not succeed. However,
I have approached
part A of the matter, as I think the papers do and as the argument
did, as an interim interdict pending the finalisation
of the
application for variation.
[73]
The well-established requirements for the
granting of an interim interdict are:
(a)
A
prima facie
right, although open to some doubt;
(b)
a well-grounded apprehension of irreparable
harm if the interim interdict is not granted and the ultimate relief
is eventually granted;
(c)
a balance of convenience in favour of the
granting of an interdict; and
(d)
the absence of any other satisfactory
remedy.
[74]
On behalf of the applicants it was
contended that the
prima facie
right which the applicants seek to protect is the right of all its
inhabitants to be afforded access to health care services and
to
prevent the collapse of health care services. The argument cannot be
sustained. Of its own, the applicants have no right as
against the
plaintiff respondents. The ECDOH, through its employees, as the
wrongdoer, has inflicted a lifetime of suffering upon
the injured
parties through its negligence. They have had to issue summons to
obtain redress and have litigated their matters to
finality. The
ECDOH, through the HOD for Health, and subsequently treasury, are in
breach of their statutory obligations set out
in the SLA and in the
PFMA. They have no
prima facie
right.
[75]
As I have said, they also approached the
court in the interests of all persons requiring health services in
the Eastern Cape. Section
38 of the Constitution provides,
inter
alia
, for anyone acting as a member of
or in the interests of a group or class of persons to approach a
competent court, alleging that
a right in the Bill of Rights has been
infringed or threatened. Section 27 of the Constitution is contained
in the Bill of Rights.
Persons requiring health services in the
Eastern Cape have an undeniable right, as against the applicants, to
demand the delivery
of health care services as contemplated in s 27
of the Constitution. But the applicants cannot assert the right of
the general
public to demand services from themselves to the
detriment of other health care users who have suffered harm in
consequence of
the conduct of the ECDOH. These are predominantly
indigent, rural citizens of the Eastern Cape.
[76]
The applicants have not, in my view,
demonstrated a threatened infringement of a right in the Bill of
Rights, as envisaged in s
38 of the Constitution. The right in issue
is contained in s 27 of the Constitution to which I have referred. It
is a progressive
right, which must be pursued within the available
resources of the state. I have recognised earlier that payment of
judgment debts
will, as the payment of any other liability would,
reduce the available resources, but that is not an infringement of
the provisions
of s 27. Ms
Bawa
candidly admitted in her heads of argument, that the health demands
in the Eastern Cape far exceed what is available in monetary
terms.
Whatever the outcome of these proceedings, there will always be a
shortfall, as measured against the ideal, because the
available
resources are limited.
[77]
The
third requisite for the grant of an interim interdict is that the
balance of convenience must favour the granting of the order.
In
resolving this consideration the court must weigh the prejudice the
applicant will suffer if the interim interdict is not granted
against
the prejudice which the respondent will suffer if it is.
[95]
The exercise of this discretion usually resolves itself into a
consideration of the prospects of success and the balance of
convenience;
the stronger the prospects of success, the less the need
for such balance to favour the applicant; the weaker the prospects of
success the greater the need for it to favour him.
[96]
For the reasons set out earlier the prospects of success in an
application for the variation of final orders already granted, are

slim, if they exist at all.
[78]
The prejudice which arises for the
applicants, is a reduction in the standard of health care services
that they are able to provide.
The reduction flows, however, at least
in part, from its own making. As I have said, the ECDOH is the
wrongdoer and is the cause
of the liability that it has incurred. As
against the prejudice to them is the suffering of injured parties and
the hardship of
the plaintiff respondents. Ms
Bawa
was constrained to concede, during argument, that some of the injured
parties may even die as a consequence of the delay in payment
of the
judgment debts.
[79]
For these reasons I conclude that the
applicants have no
prima facie
right to the relief sought nor does the balance of convenience favour
them.
[80]
There
is a further and more compelling reason why the relief sought cannot
be granted. I have referred earlier to
Nyathi
where
the Constitutional Court declared s 3, prior to the amendment in
2011, to be unconstitutional,
inter
alia
,
because it treated state litigants differently from private
litigants. The stance which the applicants currently adopt is that

the plaintiff respondents are not entitled to attach any of its
moveable assets, whether corporeal or incorporeal. It says that
no
execution may be levied against any of its property. The effect is a
reversion to the position, which the Constitutional Court
declared to
be unconstitutional in
Nyathi
.
[97]
Section 9(1) of the Constitution provides for everyone to be equal
before the law and to have equal rights to the protection and
benefit
of the law. What the applicants seek is to prevent execution, in
terms of the SLA, by judgment creditors in medico-legal
claims
against the Eastern Cape government, but those who have obtained
judgment in similar cases against private health care providers,
or
public health authorities in other provinces, would be treated
differently. They asserted that only approximately 10% of the

population in the Eastern Cape, the wealthier sector, have access to
private health care. Thus, the relief which they sought would
also
discriminate against the poorer majority who have been compelled to
rely on public health care.
[81]
In addition, they seek to interdict only
those who have judgments arising from medico-legal claims against
them, but not creditors
who obtain judgments for contractual debts.
The discrimination is not constitutionally defenceable.
Suspension of writs in
execution
[82]
I
turn to the stay of execution sought in the third draft order.
[98]
Execution is a means of enforcing a judgment, or order of court, and
is incidental to the judicial process.
[99]
The court has the inherent power to regulate its procedures in the
interests of proper administration of justice, and s 173 of
the
Constitution reaffirms this power.
[100]
Regulating the process of execution is purely procedural, not
substantive. The inherent jurisdiction of the high court does not,

however, include the right to tamper with the principle of finality
of judgments other than in the specific circumstances, which
do not
arise in this case.
[101]
[83]
The
power to suspend execution will not be exercised as a matter of
course and should be used sparingly to come to the assistance
of an
applicant outside of the provisions of the rules of court, when the
court is satisfied that the interests of justice require
it to do so
and that justice cannot be properly done unless relief is granted to
the applicant
[102]
. The
discretion of the court must be judicially exercised, but it cannot
be otherwise limited.
[103]
[84]
Rule 45A of the Uniform Rules of
Court does no more than to restate the common law and it is not
necessary to consider the provisions
of the rule any further for
purposes of this application.
[85]
In
the third draft order the applicants sought a stay of execution for a
period of one year. The prayer is curious as no case has
been made
that the applicants will be in a position to meet their commitments
in one year. On the contrary, in the founding affidavit
[104]
the HOD for treasury declared that they need at least six months to a
year to come up with a funding solution. The application,
as
previously observed, was heard nine months later, when the third
draft was presented.
[86]
Applicants
relied heavily on
Road
Accident Fund,
[105]
where a full court in Gauteng, Pretoria, gave an order suspending all
writs of execution and attachments against the Road Accident
Fund
(RAF) in respect of court orders already granted or settlements
already reached, in terms of the
Road Accident Fund Act, 56 of 1996
,
for a period of six months. On behalf of the applicants it is argued
that the present application is on all fours with the
Road
Accident Fund
.
[87]
In my view
there are material differences between
Road
Accident Fund
and the present application. First, the RAF is a statutory body
established to compensate victims of motor vehicle accidents in
South
Africa. They are not a wrongdoer in respect of any of the motor
accidents and they compensate victims who suffer harm as
a result of
the negligence of others. They have no control over the number of
motor vehicle accidents or the injuries inflicted.
By contrast the
plaintiff respondents have obtained judgments to recover damages that
arose as a result of the wrongdoing of the
ECDOH.
[88]
Second, the
RAF has no control over the extent of its finances. It is
predetermined by the volume of fuel sold. By contrast, as
I have
shown, the applicants are funded partly by national government, in
respect of a competency which they share with national
government,
and they have it within their means to raise further revenue of their
own by passing legislation and raising taxes.
[89]
Third,
the RAF approached the court for a suspension of execution in order
to enable them to pay the judgment debts for which they
were liable.
In particular, they did not seek an order for a stay of payments or
payment of interest. By contrast the applicants
have come to court to
stay the execution of judgments in order to afford them time to vary
the judgments. For the reasons set out
earlier it seems to me that is
not merely procedural, but the proposed variation would change the
substance of what the plaintiff
respondents would receive. After a
final judgment resulting from a settlement has been given a court
does not, at common law, have
the jurisdiction to vary the order,
save in limited circumstances, such as fraud, or perhaps
iustus
error
.
[106]
Neither can arise in this case.
[90]
Fourth,
the RAF has at its disposal an “offer to pay defence”.
[107]
Years of experience in our courts have shown that the RAF invariably
invokes the provisions of s 17(4) of the RAF Act. No suspension
of
the undertakings given was sought in
Road
Accident Fund
and victims of road accidents who had obtained judgment against the
RAF were therefore at liberty to obtain all services covered
by s
17(4) of the RAF Act including, home care, adaptation of homes and
motor vehicles and the like. By contrast, the applicants
require the
plaintiff respondents to utilise the initial payment tendered for
medical expenses and tendered further treatment at
the applicants’
facilities, failing which, the said plaintiff respondents may apply
to court for further relief. There are
two fundamental difficulties
which flow from the tender. First there is no attempt in the papers
to establish that the particular
treatment, required by the plaintiff
respondents or the injured parties, is available at a health care
institution at a centre
where they may be resident. Second, it
requires of indigent parties to litigate again in order to obtain
treatment, where such
treatment is not available close to their
residence, when an award in respect thereof has already been made. I
can conceive no
justification to subject successful litigants to this
hardship.
[91]
In addition,
the constitutional issue flowing from s 9 of the Constitution
referred to earlier finds equal application to relief
sought in the
third draft. For these reasons I am unable to find that justice
demands the relief sought. The application was ill-advised
and cannot
succeed.
Costs
[92]
The historic
development of the relief sought, from time to time, is set out
earlier. Initially the applicant sought to interdict
attorneys who
had acted on behalf of plaintiff respondents from exercising their
contractual rights against their clients, by interdicting
them from
recovering more than R125 000,00 of their legitimate charges. This
understandably, prompted the attorney respondents
and PIPLA to enter
the fray.
[93]
To add insult
to injury, the applicants made a thinly veiled charge against
personal injury attorneys, generally, and the attorney
respondents,
of excessive litigation, raising unscrupulous charges, and even of
dishonesty. The applicants clearly have no
prima
facie
right to interfere with a contract to which they were not party and,
wisely, the relief was abandoned midway through argument of
the
application. Mr
Willis
,
on behalf of PIPLA, and the attorney respondents, accordingly, sought
costs on a punitive scale against the applicants. On a careful

consideration of the application I think that the relief sought
against the attorney respondents and the unjustified allegations
made
in respect of their conduct was clearly an abuse of the court
process. The request for a punitive costs order is therefore

justified.
[94]
For the
reasons set out earlier, and adopting the usual rule that costs
follow the result, the plaintiff respondents are entitled
to their
costs in the application. Only the 37
th
respondent had given notice of his intention to seek such an order on
a scale as between attorney and client. At the hearing, however,
Mr
Dugmore,
representing a number of plaintiff respondents sought an order of
punitive costs in favour of his clients. The remaining plaintiff

respondents followed suit.
[95]
I have already
held that the application was ill-conceived and it had no prospect of
success. I am not, however, persuaded that
it was
mala
fide
.
Whilst much criticism was levelled at the ECDOH for the manner in
which the underlying litigation, and this application, had been

conducted, I am not persuaded that it justifies an order of costs on
a punitive scale.
[96]
The sheriff
respondents did not enter an appearance to defend and the South
African Medical Malpractice Lawyers Association, as
an
amicus
curiae
,
did not seek an order for costs. I am indebted to Ms
Pillay
and her junior colleagues, who acted on behalf of the South African
Medical Malpractice Lawyers Association, for their very helpful

submissions, which have assisted the court substantially.
[97]
The second
amicus
curiae
,
Chance at Life, did seek an order for costs, they said because of the
manner in which the litigation had been conducted. I do
not consider
that it is generally appropriate to make a costs order in favour of
an
amicus
curiae
in
proceedings of this nature, because they are not a party to the
litigation in the ordinary sense. Whilst the plaintiff attorneys
may
have cause to complain about the manner in which the litigation has
been conducted, it has little or no impact on the
amicus
curiae
. I
am disinclined to make a costs order in favour of the
amicus
.
[98]
Finally, there
is a matter of reserved costs. The matter was initially enrolled on
17 August 2021, when it was postponed to 11 November
2021. On 11
November 2021, leave was granted to PIPLA to join as a party and the
matter was postponed for argument on 18 to 21
January 2022. In
preparing the roll for the first term of 2022 the Judge President
resolved that the matter should be heard by
a full court and he
allocated 11 to 14 April 2022 for argument. This led to the
inevitable postponement of 18 January. On each
occasion to costs
occasioned by the postponement were reserved.
[99]
The
respondents urged me to include the costs occasioned by these
postponements in the costs orders referred to earlier. The applicants

contended that the costs occasioned by the postponement in January
2022 should be excluded from any order for costs as the postponement

occurred at the instance of the Judge President. Whilst I accept that
these costs were occasioned by the decision of the Judge
President, I
think that they are best considered to be costs in the cause and
should follow the result.
[100]
The costs
order set out below will exclude the costs of those respondents who
have settled with the applicants after the issue of
the application.
[101]
In the result:
1.
Part A of the
application is dismissed.
2.
The applicants
are ordered to pay the costs of all the respondents who have entered
an appearance to defend, including the Personal
Injury Plaintiff’s
Lawyers Association, and such costs are to include the costs of two
counsel, where so employed in each
instance, and the costs reserved
on 17 August 2021, 11 November 2021 and 18 January 2022.
3.
The costs, as
set out in paragraph 2 above, incurred by the Personal Injury
Plaintiff’s Lawyers Association and the attorney
respondents
are to be paid on a scale as between attorney and client.
4.
The registrar
of this court is directed to deliver a copy of this judgment to the
National Director of Public Prosecutions to consider
a possible
prosecution in terms of s 86 of the Public Financial Management Act.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
BESHE
J:
I
agree.
N
G BESHE
JUDGE
OF THE HIGH COURT
LAING
J:
I
agree.
J
G A LAING
JUDGE
OF THE HIGH COURT
Appearances:
Amicus Curiae for the
South African Medical Malpractice Lawyers Association
Adv K Pillay SC and Adv Z
Cornelissen instructed by Joseph’s Attorneys c/o Huxtable
Attorneys, Makhanda
Amicus
Curiae for Chance at Life
Mr T Ndabeni instructed
by Ndabeni Inc, c/o Netteltons, Makhanda
Applicants:
Adv N Bawa SC, Adv M O’Sullivan, Adv N
Redpath-Molony instructed by The State Attorney, East London
c/o N N
Dullabh & Co., Makhanda
10
th,
15
th
, 16
th
, 24
th
,26
th
,27
th
,28
th
, 34
th
, 42
nd
,
46
th
, 49
th
, 50
th
, 51
st
,
56
th
, 57
th
, 70
th
, 72
nd
,
77
th
, 79
th
, 83
rd
, 84
th
,
85
th
Respondents:
Adv A G Dugmore SC instructed by Enzo Meyers Attorneys, East London
29
th
Respondent:     Adv A D Schoeman SC
instructed by Dayimani Inc, Mthatha
36
th
Respondent:     Adv A D Schoeman SC and Adv H
Ayerst instructed by Mjulelwa Inc, Mthatha
37
th
Respondent:      Adv A G Dugmore SC and Adv
T S Miller Mjulelwa Inc, Mthatha
39
th
Respondent:
Adv A D Schoeman SC and Adv H Ayerst instructed by
Mpambaniso Attorneys, Queenstown
41
st
& 52
nd
Respondent:   Adv D
du Plessis SC instructed by Mlonyeni & Lesele Inc, King Williams
Town
45
th
Respondent:
Adv A D Schoeman SC instructed by W T Mnqandi &
Associates, Mthatha
54
th
Respondent:      Adv A D Schoeman SC and
Adv H Ayerst instructed by Mjulelwa Inc, Mthatha
59
th
Respondent:     Adv A D Schoeman SC
instructed by Dayimani Inc, Mthatha
64
th
Respondent:      Adv A D Schoeman SC and
Adv H Ayerst instructed by Mpambaniso Attorneys, Queenstown
68
th
Respondent:      Adv A D Schoeman SC and
Adv H Ayerst instructed by WT Mnqandi & Associates, Mthatha
82
nd
Respondent:     Adv D du Plessis SC instructed by
Dudula Attorneys, Johannesburg
86
th
Respondent:      Adv A D Schoeman SC
instructed by Mjulelwa Inc, Mthatha
87
th
Respondent:     Adv R S Willis and Adv G Badela
instructed by De Broglio Attorneys c/o Huxtable Attorneys, Makhanda
[1]
William
Shakespeare: Henry IV,
Part
2
[2]
The
Constitution of the Republic of South Africa, 1996
[3]
The
function of the PMG account is set out in para [28] and [29] of the
judgment.
[4]
The
declaratory relief sought is set out in para [27] of the judgment.
[5]
The
relief sought in part B is described in para [10] of the judgment.
[6]
The
schedule was prepared in 2021 reflecting an initial payment in 2021
(the current year) and a second payment in 2022 (plus
one). The
interim interdict contained in the second draft order is subject to
the payment of these two annual instalments before
31 May 2022.
[7]
Section
7(2) of the Constitution
[8]
Section
27(1)(a) and s 27(2) of the Constitution
[9]
Section
27(3) of the Constitution
[10]
Section
28(1)(c) of the Constitution
[11]
In
respect of the contingent liabilities the applicants have instructed
their legal representatives to raise a public health defence
in
respect of future medical expenses and to seek orders developing the
common law to provide for payments in instalments in
respect of such
claims. They will be dealt with in the individual trials as and when
they arise.
[12]
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 1
at 15, referred to by the Constitutional Court in
MEC
for Health, Gauteng v
PN
[2021]
ZACC
6
;
2021 (6) BCLR 584
(CC)
[13]
Schedule
4 to the Constitution
[14]
Act
61 of 2003
[15]
Section
25 of the Health Act
[16]
Section
214 of the Constitution
[17]
Section
228 as read with s 227(2) of the Constitution
[18]
Section
226(1) of the Constitution, s 22 of the Public Finance Management
Act, 1 of 1999 (PFMA)
[19]
Section
21(1) of the PFMA
[20]
Section
226(2) of the Constitution and s 21(1)(b) of the PFMA
[21]
Section
26 and 27(2) of the PFMA
[22]
Section
27(2) and (3) of the PFMA
[23]
Section
27(3)(g) and (h), as read with s 18(1)(c) of the PFMA
[24]
In
terms of s 36(1) of the PFMA every department must have an
accounting officer and s 36(2) provides that it would usually be
the
head of the department.
[25]
Section
38(1)(l)
[26]
Section
38(1)(a)(i)
[27]
Section
38(1)(d)
[28]
Section
38(1)(f)
[29]
As
envisaged in s 38(1)(a)(i) of the PFMA
[30]
As
envisaged in s 38(1)(f) of the PFMA
[31]
Amended
by Act 14 of 2011
[32]
Section
39(1)(b) of the PFMA
[33]
Section
39(2)(b)(ii) of the PFMA
[34]
Section
81(1) of the PFMA
[35]
Section
86(1) of the PFMA
[36]
Act
20 of 1957, as amended from time to time
[37]
The
heading to Act 14 of 2011 (The
State Liability Amendment Act)
records
: “To amend the
State Liability Act &hellip
;, so as to
regulate the manner in which a final court order sounding in money
against the State must be satisfied”.
[38]
Section
3(3)(a)
and (b) of the SLA and
s 38(1)(f)
of the PFMA
[39]
Section
3(4)
of the SLA
[40]
Section
3(5)
of the SLA
[41]
Section
3(11)
of the SLA
[42]
Section
3(12)
of the SLA
[43]
Section
18(2)(a)
of the PFMA empowers treasury to issue instructions which
are not inconsistent with the PFMA
[44]
Section
3(15)(a)
of the SLA
[45]
Section
3(15)(b)
of the SLA
[46]
Section
3(16)
of the SLA
[47]
Section
3(13)(b)
of the SLA
[48]
Section
3(5)
-
3
(9) of the SLA
[49]
Section
3(7)(b)
and (c) of the SLA
[50]
The
sixth to ninth respondents are sheriffs who have made attachments on
the PMG accounts.
[51]
The
account envisaged in
s 21(2)
of the PFMA
[52]
The
MEC for the Department of Public Works and Others v Ikamva
Architects and Others
,
a judgment of the full court of this division delivered on 17 March
2022 (case number 235/2021) [2022] ZAECBHC 6
[53]
At
para [41]
[54]
At
para [46]
[55]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA)
[56]
Endumeni
at para [18]
[57]
Voet
42.1.42
[58]
MV
Snow Delta: Serva Ship Limited v Discount Tonnage Limited
2000
(4) SA 746
(SCA) at 753E-F
[59]
1906
TS 563
at 566
[60]
1.8.18
[61]
The
decision has been criticized on the ground that Innes CJ failed to
have regard to other portions of the writings of
Voet
,
in particular, 1.8.29. However, the decision has remained
uncontradicted for more than hundred years.
[62]
CG
van der Merwe: Sakereg
(2
nd
ed) at 41;
Wille’s
Principles of South African Law
(9
th
ed) at 421 and
The
Law of South Africa (
2
nd
ed) volume 27 para [46]
[63]
Wille’s
Principles
at 424
;
Sakereg
at 46-47 and
LAWSA
at para [46]
[64]
Bobroff
and Another v National Director of Public Prosecutions
2021 (2) SACR 53
(SCA) at para [10]
[65]
Nyathi
v Member of the Executive Council for the Department of Health,
Gauteng and Another
[2008]
ZACC 8
[66]
Section
1
of the PFMA defines “unathorised expenditure” to mean,
inter
alia
,
“expenditure not in accordance with the purpose of a vote or,
in the case of a main division, not in accordance with the
purpose
of the main division”.
[67]
At
p 16 of the report
[68]
At
p 61 of the report
[69]
Section
38(1)(l)
[70]
Section
27(3)(g)
of the PFMA
[71]
Section
27(3)(h)
of the PFMA
[72]
Section
3(15)
of the SLA
[73]
Section
3(16)
and
3
(13)(b) of the SLA
[74]
Section
39(1)
of the PFMA
[75]
Section
86(1)
of the PFMA
[76]
Section
18(2)(a)
of the PFMA
[77]
Judgments
delivered in preceding years
[78]
Section
227 and 228 of the Constitution
[79]
Section
27(3)(g) and (h) of the PFMA
[80]
The
time for payment is stipulated in the SLA referred to earlier. Some
of the interim orders stipulated a time for payment at
variance with
the statutory provision and in one instance (the 86
th
respondent) an agreement was concluded (on 20 July 2021) for the
payment in two separate instalments to be paid on 31 August
2021 and
20 August 2023, respectively, and an order was made accordingly. The
applicants sought to vary these orders on the ground
that they are
unable to pay.
[81]
Rule
34A(5)
[82]
Section
2
of the
Prescribed Rate of Interest Act, 55 of 1975
[83]
For
example, the order in respect of the sixteenth respondent directs
the defendant to compensate the plaintiff and her minor
son in the
amount of R16 500 000, within 30 days of the order. It is silent in
respect of interest. Similarly, the order in respect
of the
twenty-first respondent is silent. In the case of the twenty-third
respondent the court ordered that the awarded damages
were to be
paid within 14 days from the date of the order and that it would
attract interest “in terms of
section 2
of the Prescribed Rate
of Interest Act”. The order in respect of the thirty-seventh
respondent provided that, in the event
that the defendant fails to
make payment, it was “to pay interest at the legal rate from
the date of default to the date
of payment”.
[84]
Compare
Goldie
v City Council of Johannesburg
1948 (2) SA 913
(W), where an interest rate of 3.5% was used; and
New
India Assurance Co, Ltd v Naidoo
1949 (2) PH J15, confirmed on appeal 1950 (1) PH J4 (AD), where an
interest rate of 4% was employed in the calculation of the
future
loss of earnings.
[85]
Zondi
v MEC Traditional and Local Government Affairs and Others
2006
(3) SA 1
(CC) at para [28]
[86]
See
also
Freedom
Stationery (Pty) Ltd and Others v Hassam and Others
2019 (4) SA 459
(SCA) at para [16]
[87]
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977 (4) SA 298
(A) at 306F-G
[88]
Evins
v Shield Insurance Co. Ltd
1980 (2) SA 814 (A)
[89]
Evins
at 835D-H
[90]
MEC
for Health and Social Development, Gauteng v DZ obo WZ
2018
(1) SA 335 (CC)
[91]
Member
of the Executive Council for Health, Gauteng Provincial Government v
PN
[2021] ZACC 6
;
2021 (6) BCLR 584
(CC)
[92]
PN
at para [28] and [29]. See also
MSM
obo KBM v Member of the Executive Council for Health, Gauteng
Provincial Government
2020
(2) SA 567 (GJ); [2020] 2 All SA 177 (GJ).
[93]
PN
para [29]
[94]
In
the second draft order referred to in para [7]
[95]
LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
;
Cape Town Municipality v LF Boshoff Investments (Pty) Ltd
[1969] 1 All SA 430
(C);
969 (2) SA 256
(C)
at
267.
[96]
LAWSA
(2
nd
ed) vol 11 para [406]
[97]
See
also
Moodley
v Kenmont School and Others
2020
(1) SA 410
(CC) paras [17] to [22]
[98]
Referred
to in para [8] above.
[99]
Chief
Lesapo v The North West Agricultural Bank and Another
2000 (1) SA 409
(CC),
1999 (12) BCLR 1420
,
[1999] ZACC 16
para [13];
Mjeni
v Minister of Health and Welfare, Eastern Cape
2000 (4) SA 446
(TkH) at 453C-D; and
Road
Accident Fund v The Legal Practice Council and Others
2021 (6) SA 230
(GP) at 244 para [28]
[100]
Universal
City Studios Incorporated and Others v Network Video (Pty) Ltd
[1986]
ZASCA 3
;
[1986] 2 All SA 192
(A); and
Road
Accident Fund
at para [30]
[101]
Moraitis
Investments (Pty) Ltd and Others v Montic Dairy (Pty) Ltd and Others
2017 (5) SA 508
(SCA) para [12]; and
JN
v NN
(unreported)(Eastern Cape Division, Makhanda)(case no. 2283/2021) at
para [22]
[102]
Moulded
Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and
Another
1979 (2) SA 457
(W) at 462H-463B; and
Whitfield
v Van Aarde
1993 (1) SA 332
(E) at 337E-G
[103]
Whitfield
at 337F-G
[104]
Attested
to on 14 July 2021
[105]
Referred
to in fn 99
[106]
Moraitis
para [112] and [15]; and
Childerley
Estate Stores v Standard Bank of South Africa
1924 OPD 163
[107]
Section
17(4) of the Road Accident Fund Act, 56 of 1996 (the RAF Act)
provides:
“
(4)
Where a claim for compensation under subsection (1)-
(a)
includes a claim for the costs of the
future accommodation of any person in a hospital or nursing home or
treatment or rendering
of a service or supplying of goods to him or
her, the Fund or an agent shall be entitled, after furnishing the
third party concerned
with an undertaking to that effect or a
competent court has directed the Fund or the agent to furnish such
undertaking, to compensate-
(i)
the third party in respect of the said
costs after the costs have been incurred and on proof thereof; or
(ii)
the provider of such service or treatment
directly, notwithstanding section 19(c) and (d),”