SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION , (MBOMBELA MAIN SEAT )
Case No. 1295 /2019
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/NO
DATE : 06 June 2025
SIGNATURE
In the application between:
N[...] , Z[...] obo N[...] PLAINTIFF
and
MEC FOR HEALTH, MPUMALANGA PROVINCE DEFENDANT
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date and time for hand -down is deemed
to be 10:00 on 06 June 2025.
______________________________________________ _________________ ____
JUDGMENT
Moleleki AJ
[1] The plaintiff instituted a claim for delictual damages in her representative
capacity as the mother and natural guardian of her minor child ( N), against
the Member of Executive Council for Health, Mpumalanga Province (the
defendant) , as the employer of the medical personnel at Embhuleni hospital .
The plaintiff’s claim against the defendant was brought on the basis that the
defendant was vicariously liable for the negligent conduct of the medical
personnel that attended to the plaintiff at the hospital during her admission.
The negligence culminated in the minor child developing cerebral palsy
because of perinatal asphy xia event at birth.
[2] The issue of l iability was settled on 30 May 2022. The parties agreed to a
Draft Order in terms of which the Defendant was held vicariously liable for
90% of the plaintiff’s proven or agreed damages , as a result of the negligent
conduct of the medical personnel who attended to the Plaintiff when she was
pregnant and before giving birth to N . The issue of quantum was postponed
sine die.
[3] The minor child passed away on 20 August 2023. The refore, the only
dispute between the parties that still requires determination is the quantum
of general damages to be awarded to the plaintiff , as litis contestatio had
been completed .
Background
[4] The salient facts giving rise to this claim are that, on 10 February 2017, the
plaintiff , who was pregnant at the time, was admitted to the Embhuleni
hospital for the management of her pregnancy, delivery of the m inor child
and for post -parturition care. Following her admission to the hospital , the
plaintiff endured prolonged hours of labour, as a result of which the then
unborn baby suffered foetal distress and a hypoxic ischemic brain injury as a
result of which he suffered permanent brain damage disability and ce rebral
palsy .
[5] The plaintiff claims R4 000 000 (Four Million Rands) for general damages in
respect of N.
[6] The parties rely on the plaintiff’s medico -legal reports from a Neurosurgeon,
Dr Jaques J Du Plessis , a Specialist Physician, Dr A.P.J Botha, a
Physiotherapist, Dr P.C Makatleng and an Occupational Therapist , Ms L
Mashishi.
[7] The expert reports were admitted into evidence by way of affidavit in terms
of Uniform Rule 38(2).
[8] The Neurosurgeon indicated that the minor child had a spa stic quadriplegia
and was unable to communicate.
[9] When the Specialist Physician consulted with the minor child, the latter was
5 years and 5 months. T he minor was multi -disabled with micro cephaly and
severe intellectual impairment . He was unable to move independently , had
to be fed by others and was incontinent. The child was unable to lift his head
when placed in a prone position . He could not sit, stand, crawl or roll. His life
expectancy was up to age 22 .
[10] The Physiotherapist indicated that the minor child presented as a spastic
quadriplegi c with fluctuating tone. The musculoskeletal testing revealed that
the upper limbs were fluctuating, and the muscular tone of the lower limbs
was increased. Predominant posture of the head and neck rotated to the
right with low tone. Shoulders were slightly elevated and in a neutral
position , the kneecap was in an elevated position , toes pointed downwards
and inwards with the heel off the ground. He was wheelchair bound. The
extent of his impairments classified him as a level 5 on the Gross Motor
Function Class ification System (GMFCS). He was unable to si t without
support and could not control his head against gravity .
[11] In establishing the impact of the injuries on the minor child’s occupational
performance, the occupational therapist indicated that, the minor child was
unable to engage in all his occupational performance area .
[12] The parties referred to several authorities in their submissions of what a
reasonable amount in respect of general damages would be.
General Damages
[13] In Sandler v Wholesale Coal Supplies Limited1 it was stated that :
“… it must be reco gnised that though the law attempts to repair the wrong
done to a sufferer who has received personal injuries in an accident by
compensating him in money, yet there are no scales by which pain and
suffering can be measured, and there is no relationship bet ween pain and
money , which makes it possible to express the one in terms of the other with
any approach to certainty. The amount to be awarded as compensation can
only be determined by the broadest general considerations and the figure
arrived at must necessarily be uncertain, depending upon the judge’s view of
what is fair , in all the cir cumstances of the case. ”
[14] It is an established principle of our law that awards in previous cases can
only offer broad and general guidelines in view of the differences that
inevitably arise in each case . The process of comparison is not a meticulous
examination of awards and should not interfere upon the court’s general
discretion2. It is no doubt that, even in instances where facts were similar,
the awards in those cases are not to be slavishly followed as they are
guidelines only. Neithe r can the court rigidly apply the consumer price
indices when comparing earlier awards.
1 Sandler v Wholesale Coal Supplies Limited 1941 AD 194 at 199.
2 Protea Assurance v Lamb 1971(1) SA 530 (A) at 535H -536
[15] In Du Bois v Motor Vehicle Accident Fund3, Stratford J (as he then was),
took into consideration the principle set out in Sandler v Wholesale Coal
Suppliers Ltd4, and stated as follows:
“I… take into consideration that I am logically and legally compensating the
claimant but in effect the claimant’s two sons , her heirs, for the claimant’s
five and a half years of pain and suffering , disability and her loss of
amenities of life . In the normal course of events this award would have
benefitted the claimant … during her lifetime. … any award I make for
claimant’s suffering ultimately devolves on her heirs. This factor influences
me on the conservative sid e of what I should award… for the claimant’s pain
and suffering .”
[16] The Supreme Court of Appeal has no ted the tendency towards increased
awards in respect of general damages in recent times. It therefore reaffirmed
conservatism as one of the multiple factors to be considered in awarding
general damages.
[17] I have sadly come to the realisation that money cannot compensate the
plaintiff for that which the minor child experienced .
[18] In De Bois5 the court awarded R60 000 for general damages, pain and
suffering, disability , loss of amenities, including the fact that the complainant
died 5 years and six months after the collision which caused her paraplegia.
The award is currently valued at R 413 000.
[19] I was also referred to Geldenhuys NO v Road Accident Fund6 where an
amount of R250 000 in general damages was awarded to a quadriplegic
man, aged 22 years old at the time of the collision . He passed away six
years after the collision. The court stated that the purpose of making such
3 Du Bois v MVA Fund [1992] 4 QOD A3 -113 [T ].
4 Sandler fn 1above.
5 Note 3
6 Geldenhuys NO v RAF [2002] 5 QOD A2 -11 (C)
awards is to compensate persons who have suffered damages and not to
benefit their heirs . The … effect of taking that factor into consideration is that
a conservative approach needs to be taken. The amount is todays
equivalent of R415 500 after apportionment.
[20] I am of the view that an amount of R 600 000 before the agreed
apportionment, represents a fair and reasonable amount to be awarded as
compensation for the general damages in all the circumstances of this case.
Order
[21] In the result the following order is made:
1. The defendant shall pay to the plaintiff the total amount of R5 40 000
in respect of the general damages , together with any interest due in
accordance with the Prescribed Rate of Interest Act , 55 of 1975 from
the date of the Taxing Master’s Allocatur to date of final pa yment .
2. The defendant shall pay the plaintiff’s party and party costs , which
costs shall include the costs of :
a. Senior Counsel up to the death of the minor child (20 August
2023) .
b. Costs which were reserved on 29 August 2023
________________________
M.R MOLELEKI AJ
ACTING JUDGE OF HIGH COURT , MBOMBELA
Counsel for the Plaintiff : Mr. M Sibuyi
Mafori Lesufi Incorporated
No. 4 Houghton Drive
Corner Houghton Drive & ST John Road,
Johannesb urg
C/O Ramarumo LP Attorneys
32 Bell Street
Office 413, Caltex Building
Mbombela
Counsel for the Defendant : Mr. Z Mokatsane
3rd Floor, 32 Bell Building
Caltex Building
Mbombela
Matter heard on 22 April 2025
Judgment delivered on 06 June 2025