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[2020] ZASCA 66
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PN v Member of the Executive Council for Health of the Gauteng Division Government (217/2019) [2020] ZASCA 66 (17 June 2020)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 217/2019
In
the matter between:
P[…] N[…] obo E[…]
N[…]
APPELLANT
and
THE MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH OF THE
GAUTENG PROVINCIAL
GOVERNMENT
RESPONDENT
Neutral
citation:
P[…]
N[…]
v
The
Member
of
the
Executive
Council
for
Health of the Gauteng Division Government
(217/2019)
[2019] ZASCA
66
(17 June 2020)
Coram:
NAVSA, SALDULKER and DLODLO JJA and KOEN and MATOJANE AJJA
Heard:
11 May 2020
Delivered:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on
the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h30 on 17 June 2020.
Summary:
Delict – damages –admitted negligence by medical
staff at hospital in relation to a birth resulting in child suffering
from cerebral palsy-MEC seeking development of the common law so as
to allow her, instead of paying assessed damages in one payment,
to
provide hospital, medical and related services and other items at
State hospital, alternatively to secure them at a lower cost,
alternatively to permit her to pay damages in future
instalments–whether order by agreement, prior to amendment by
MEC seeking
such relief, precluded order sought by MEC-prior order
directed MEC to ‘pay the Plaintiff 100% of her agreed or proven
damages-in
circumstances specific to this case prior order precluding
subsequent order sought by MEC.
ORDER
On
appeal from:
Gauteng Local Division, Johannesburg (Van der Linde
J sitting as court of first instance)
1.
The appeal is upheld with costs, including the costs of two
counsel
where employed.
2.
The order of the court a quo is set aside, and the following
order is
substituted:
‘
It
is declared that the terms of the order of Moshidi J dated 24 April
2017 precludes this court from ordering that the defendant
renders
services and medical and related items, instead of paying the
plaintiff an amount of money, as pleaded by the defendant
in
paragraphs 4A.6 to 4A.18 of the plea, or paying such amount of money
in future instalments, as pleaded in paragraphs 4A.19 to
4A.36 of the
amended plea.
JUDGMENT
Matojane
AJA (Navsa, Saldulker, and Dlodlo JJA and Koen AJA concurring):
Introduction
[1]
This appeal is against the following order of the High Court, Gauteng
Local Division, Johannesburg:
‘
(a)
The terms of the order of Moshidi J, dated 24 April 2017 do not
preclude this Court from ordering that the defendant renders
services
and related items instead of paying to the plaintiff an amount of
money.
(b)
S 66 of the [Public Finance Management Act 1 of 1999] (PFMA)] does
not preclude this court from making orders that the
state renders
services and medical and related items in the future, or pay the
claim in instalments in the future, as pleaded by
the defendant in
paragraphs 4A.6 to 4A.18, and 4A.19 to 4A.36.
(c)
[Regulation] 8.2.3 of the Treasury Regulations, promulgated under the
PFMA does not preclude this court from making orders
that the state
renders services and medical and related items in the future, or pay
the claim in instalments in the future, as
pleaded by the defendant
in paragraphs 4A.6 to 4A.18, and 4A.19 to 4A. 36.
(d)
No order as to the costs of the application for separation of the
issues, and as to the determination of the separated
issues is made.’
[2]
The background, culminating in this order and giving rise to the
present appeal is set out hereafter.
[3]
The appellant instituted an action against the respondent during
June
2012, claiming delictual damages from the respondent for injuries her
minor son, E[…], suffered as a result of the
now admitted
negligence of medical staff at the Chris Hani Baragwanath Hospital.
On 12 September 2006 due to prolonged labour and
failure to timeously
perform a Caesarian section E[…] suffered perinatal asphyxia,
which caused him to sustain severe brain
damage resulting in cerebral
palsy, mental retardation and epilepsy.
[4]
On 23 August 2012, the respondent served and filed her plea. The
plea
was essentially a bare denial. Specifically, it did not contain
anything related to the development of the common law: that
the
respondent be ordered, if found liable, to render medical and related
services that might be required by E[…]; or that
the costs
thereof, when required to be incurred, be paid in future instalments.
[5]
The matter proceeded to trial in respect of the issue of liability
only on the aforesaid pleadings, before Moshidi J in the Gauteng
Local Division of the High Court, Johannesburg on 24 April 2017.
The
matter was argued on a stated case. Presumably after Moshidi J
determined the extent of the respondent’s liability to
be 100%,
the parties submitted a draft order to Moshidi J with the terms they
wished to have recorded in the court order to be
made in respect of
the remaining issues. The terms of the draft order, which were all
incorporated in the order that followed appear
hereunder:
‘
1.The
issue of liability is separated from the issue of the determination
of the quantum of the Plaintiff’s claim in accordance
with the
provisions of Rule 33 (4) of the Uniform Rules of Court;
2.
The issue of the determination of the quantum of the plaintiff’s
claim is postponed
sine
die;
3.
The defendant
shall pay
to the Plaintiff 100% (one hundred
per cent) of her proven damages in her representative capacity for
and on behalf of her minor
child, E[…] N[…] (from now
on referred to as E[…]”) flowing from the neurological
injury sustained by
E[…] on or about the 12
th
of
September 2006 and the resultant cerebral palsy which E[…]
suffers from and its
sequelae;
4.
The Defendant shall pay the Plaintiff’s costs of suit, such
costs to include the following: (
the order then set out detailed
provisions regarding the payment of costs of inter alia
experts,
and the obligation to pay interest on costs
).’(Emphasis
added)
[6]
The matter was thereafter enrolled for 4 February
2019 for a determination of the quantum of the appellant’s
damages. On 17
January 2019, the respondent, however, amended its
plea to raise defences which the Constitutional Court in
MEC
for Health and Social Development, Gauteng v DZ obo WZ
[1]
contemplated might possibly be raised by state defendants in
appropriate instances, in the development of the common law.
[7]
The amendments to the plea introduced by, inter alia, paragraphs
4A.6
to 4A.36, included that it was unreasonable to require the respondent
to pay the amounts claimed in respect of hospital, medical
and
related services and items required by E[…] from private
healthcare providers when the State Health facilities could
provide
such services at the same standard at no cost to the appellant or
E[…]. The respondent pleaded that she was in a
position to
ensure that hospital, medical and related services and items that
were recommended, would be rendered and supplied
by her Department,
or by private healthcare providers which her Department will secure,
at a cost lower than the costs that the
appellant claims in respect
of such services and items. In conclusion, it was pleaded that taking
into account the interest of
justice, and acting in terms of s 173 of
the Constitution, the court should develop the common law and should
order that the respondent,
instead of being required to compensate
the appellant in money in respect of the hospital, medical and
related services and items
claimed for, be directed to ensure that
the services are rendered, or the items are supplied. In broad
outline, the respondent
contended that the common law should be
developed to allow for an order that the respondent compensate the
appellant by providing
the required medical services at state health
facilities, as opposed to paying monetary compensation to acquire
such services from
the private sector. In the event that it was
ordered that monetary compensation be made, it was pleaded that
payment should be
directed to be made in instalments, when required
and incurred, as opposed to being paid in a lump-sum.
[8]
The envisaged trial, to determine the quantum of damages to be
awarded
to the appellant on behalf of her minor son, came before Van
der Linde J in the court a quo. He acceded to a request by the
parties
that an order be granted in terms of rule 33(4) separating
the following issues for determination before any evidence was led:
the first was whether, having regard to the order of Moshidi J, it
was open to the court to order that the respondent renders services
and medical and related items, instead of paying the appellant an
amount in money; and the second and third were whether
s 66
of the
Public Finance Management Act 1 of 1999
or Regulation 8.2.3 of the
Treasury Regulations promulgated under the PFMA respectively, or
both, precluded the court from ordering
that the state renders
services and medical and related items in the future, or to make
payment thereof in instalments.
[9]
As is evident from the order set out at the commencement of
this
judgment the court below decided the first issue in favour of the
first respondent. The court
a quo
found that there was an
unjustified fixation on the words “
to pay
”. It
reasoned that Moshidi J deliberately turned his attention away from
the quantification of the respondent’s obligation
to compensate
the appellant in respect of her damages, and that the words “to
pay” was simply loose language for an
order that the respondent
was to compensate the appellant for her damages, which were yet to be
determined. It was held that the
words to pay did not decide that the
damages necessarily had to be paid in one lump sum. The court stated:
‘
Put differently, the focus of that paragraph of
the court order was not to deal with how the damages should be
compensated, but
rather with whether the defendant was at all liable
to compensate the plaintiff. That issue was separated out for prior
determination,
and that issue was determined in favour of the
plaintiff’.
[10]
As is apparent form the order set out in para 1 above, the court a
quo also did not
view the provisions of the PFMA or the Regulations
to constitute a bar to the form of relief claimed by the respondent
in her amended
plea. It did, however, grant leave to appeal to this
court. In light of the conclusion reached later in this judgment the
reasons
for the conclusions by the court below in relation to the
PFMA and the Treasury regulations need not be explored. I shall, only
in the briefest terms, deal with that aspect of the appellant’s
case later.
[11]
I now turn to deal with the finding by the court below that the order
by Moshidi
J did not preclude the court from making the orders set
out at the beginning of this judgment. Before us the appellant’s
submissions in regard thereto was refined as follows: Neither party,
when they agreed to the draft order, had anything else in mind
other
than if the appellant proved her damages she would be entitled to be
paid in the ordinary course in one payment. This was
evident from the
draft order viewed as a whole and in context. Moshidi J, in turn,
could not be taken to have had anything else
in mind either. He had
no plea to turn his attention to the common law being developed in
order to accommodate that which the respondent
belatedly sought in
her plea. This court is thus called upon to determine whether the
order should be so construed.
[12]
The starting point is to determine the meaning of
the phrase
shall pay the plaintiff 100% (one
hundred per cent) of her agreed or proven damages …’
within the
context
within which the order was granted and having regard to the purpose
for which the order was issued.
[2]
[13]
The court a quo erroneously explored the meaning of the term ‘
to
pay
’ in isolation, without regard to the context within,
and the purpose for which the parties required that the terms of
their
draft order handed to Moshidi J, was to be made an order of
court. At that stage, on the pleadings, no form of compensation other
than monetary compensation in a lump sum was envisaged or
contemplated. The term ‘
to
pay
’ was
also not only used in regard to the payment of damages, but was also
used in the wording of the cost order. The phrase
to ‘pay’
accordingly did not allow for any interpretation, other than a
payment in money. Had the parties intended
something different, they
would have said so in the draft which they required Moshidi J to make
an order of court.
[14]
As alluded to
earlier,
the matter was argued before Moshidi J on a stated case.
Moshidi
J
was
required
to
accept
the
statement
of
facts
submitted
to
him
by
the parties and was further restricted to a
consideration of the then prevailing common
law,
namely
the
‘once
and
for
all’
rule
that
damages
could
not
be
paid
in
instalments.
[3]
At that stage the decision of the Constitutional
Court in
DZ
had not
yet
been delivered.
[15]
The order was drafted and agreed upon by the parties with the
knowledge that monetary
damages were claimed as per the appellant’s
particulars of claim and that such damages would be payable in a lump
sum. A
plea for the development of the common law or any plea that
services should be rendered was neither raised, let alone pleaded, at
the time. Moreover, as a careful consideration of the draft order
will show the order was more than just the standard one which
separated quantum from liability. It extended to over two typed
pages. It accepted liability on the part of the respondent for
the
costs associated with the obtaining of medico-legal reports in
relation to four named expert witnesses. It accepted responsibility
for costs on behalf of the defendant for the qualifying fees and
preparation costs in respect of those witnesses and the costs
of two
counsel as part of ‘costs of suit’, presumably in
relation to liability. Furthermore it provided for interest
to be
paid on taxed or agreed costs. This was a draft order that must have
been carefully and consciously arrived at. Counsel on
behalf of the
respondent was constrained to concede before us that there must have
been deliberate consideration of its terms by
the respective legal
representatives and that at that stage the plea now raised was not in
contemplation. It is within that context
that the meaning of the word
‘pay’ has to be considered, namely to give effect to the
agreement of the parties. Pleas
based on the decision by the
constitutional court’s decision in DZ have subsequently been
raised in a number of cases. In
the present case one is left with the
impression that it was raised opportunistically.
[16]
The meaning of the words “
shall pay the plaintiff 100% (one
hundred per cent)
of her agreed or proven damages”
construed in their ordinary grammatical sense, in the context and
circumstances set out above, meant that respondent’s liability
and the manner of compensation had been finally adjudicated.
Accordingly, the court a quo was simply required to quantify the
appellant’s damages. It was precluded from making any order
other than that payment of the appellant’s damages had to
be in
money, as the respondent had agreed, as per the draft order, to pay
the appellant 100% of her proved or agreed to damages.
[17]
'We were referred to a number of judgments of the
high court
[4]
which construed the word 'pay' in orders
preceding an assessment of damages, after liability was established,
to mean payment in
the ordinary course. In other words that
it meant payment in money all at once and not in
instalments, and that the provision of medical services was not
contemplated. No
purpose is served by an analysis of those judgments.
Each case is to be determined on its own merits.
[18]
The parties were agreed that a decision on this
point in favour of the appellant
would
be dispositive of the appeal. There is accordingly no need to
consider the effect of the provisions of
s 66
of the
Public Finance
Management Act
[5
]
or the regulations,
save
to
record
that
counsel
on
behalf
of
the
appellant
were
rather
muted.in
relation thereto, advisedly so.
[19]
When the quantum of the appellant’s claim
is being assessed there is nothing to prevent the respondent form
proving that the
necessary medical services of
acceptable standard could be obtained at lesser
cost. That would be in contestation, in the ordinary course, of the
quantum claimed
[6]
.
[20]
Finally, it is worth noting that there is
presently before Parliament a bill that
will
regulate claims of the kind in question, including dealing with the
manner and time of payment. The legislature is arguably
best suited
to that kind of regulation.
[7]
[21]
In the result the following order issues:
1.
The appeal is upheld with costs, including the costs of two counsel
where
used.
2.
The order of the court of the first instance is set aside, and the
following
order is substituted:
‘
The terms of the order of Moshidi J dated 24
April 2017 precludes this court from ordering that the defendant
renders services and
medical and related items instead of paying the
plaintiff an amount of money, as pleaded by the defendant in
paragraphs 4A.6 to
4A.18 of the plea.’
K
MATOJANE
ACTING
JUDGE OF APPEAL
APPEARANCES
For
appellant:
N Van der Walt SC and P Uys Instructed by:
Martins
Attorneys, Johannesburg
Wim
Ktynauw Inc Attorneys, Bloemfontein
For
respondent:
V Soni SC and L Mtukushe Instructed by
State
Attorneys, Johannesburg State Attorneys, Bloemfontein
[1]
2018 (1) SA (335) (CC) Froneman J held that the possibility for
future development is not excluded and that structured payments
of
future medical expenses may well be permitted, provided
that evidence is adduced to support a development of the
common law.
In the interim, it was held that the court is open to defendants
disputing claims for future medical expenses on
the basis that the
plaintiff can obtain less expensive medical services at a public
health facility, thereby also potentially
alleviating the financial
burden of these claims on the public sector.
[2]
Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport
(Edms) Bpk.
2014 (2) SA 494
(SCA). See also Natal Joint Municipal
Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at para
18.
[3]
DZ para 59.
[4]
Mshibi v The MEC for Health of the Gauteng Provincial Government
(GLD) – Case NO. 2012/32085. Allee v The MEC for Health
and
Social Development of the Gauteng Provincial Government (GLD) Case
No.2013/44276. Slabbert v The MEC for Health and Social
Development
(GLD) – Case No. 2013/63333.
[5]
Act 1 of 1999.
[6]
See Ngubane v South African Transport Services 1991(1) SA 756 (A).
[7]
State Liability Amendment Bill (B16-2018) published in Government
Gazette No.41658 of 25 May 2018).