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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO)
CASE NO: 288/2019
REPORTABLE
In the matter between:-
AW obo MUW Plaintiff
and
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH, EASTERN CAPE Defendant
In re the negligence of the staff at the Holy Cross Hospital, Mthatha
JUDGMENT IN RE QUANTUM
HARTLE J
Introduction:
[1] The plaintiff in this action is the mother and legal guardian of a minor boy
(“M”) who suffers from cerebral palsy which he sustained as a result of the
negligence of the staff at the Holy Cross Hospital in Mthatha where he was born.
[2] The issue of liability was determined on 29 November 2022 in favour of the
plaintiff. The defendant was ordered by this court to pay to her 100% of her proven
and agreed damages arising from such negligence.
[3] Following upon this order, the issue of general damages for the plaintiff in
both her personal and representative capacit ies was disposed of as well as M’s
claim for future loss of earnings and earning capacity.
[4] On 25 March 2024 further heads of damages were settled including the costs
of housing and related expenses to accommodate M’s permanent disability , the
provisioning of a motor vehicle, and the costs relative to the appointment of a case
manager, leaving to be determined upon trial only the question of the range of
medical and related services that M will reasonably require as a result of his
condition for the rest of his expected lifetime , as well as the manner of payment of
these future expenses given the defendant’s amended plea that raise d the public
healthcare and undertaking to pay remedies.
[5] These costs were itemized in a document (A nnexure “C”) presented to this
court. They total the sum of R10 333 353.00. The plaintiff asserts that this amount
represents the fair and reasonable cost s of such anticipated services and the
nominal extent to which her patrimony has been diminished by the delict in respect
of their necessary provision.1
[6] Indeed, there is no contest that the treatment, modalities, therapies and
adaptive aids for M, which the various experts agreed are essentially required in the
1 It is not the mere injury and its future consequences that justify an award of damages, but the actual
diminution in the claimant’s patrimony. The claimant’s patrimony after the delict must be less than it
would have been had the delict never occurred. See Member of the Executive Council for Health and
Social Development, Gauteng v DZ obo WZ (“DZ”) (CCT20/17) [2017] ZACC 37; 2017 (12) BCLR
1528 (CC); 2018 (1) SA 335 (CC) (31 October 2017) at [22]. See also Transnet Ltd v Sechaba
Photoscan (Pty) Ltd (98/03) [2004] ZASCA 24; 2005 (1) SA 299 (SCA) (1 April 2004) at [15].
future to meet every exigency to cater for his severe disability, have been fairly and
reasonably costed at rates applicable to the private healthcare sector.
[7] The plaintiff prepared a draft order representing these agreed upon amounts
plus the related trust costs to protect the award , calculated on the capital amount at
the customary rate . She asks that this amount be paid by the defendant to her
attorneys as a lump sum award in accordance with the provisions of Section
3(3)(a)(i) of the State Liability Act, No. 20 of 1957.
[8] The legal expectation according to this provision is that a final court order
against a state department for the payment of money must be satisfied within 30
days of the order becoming final, or within the time period agreed upon by the
judgement creditor and the accounting officer of the department concerned.
[9] The defendant however ha s a different expectation regarding the manner of
payment based on her having filed an amended plea in which she raised the “public
healthcare defence” (according to which claims for future medical expenses against
public healthcare authorities may be satisfied through the provision of medical
services in the public healthcare sector) 2 as well as an “alternative” (sic) that the
defendant should be permitt ed, where the provincial Department of Health (“ the
Department”) cannot itself provide the required services or items that M will
reasonably require, to itself procure such services or items in the private healthcare
sector as and when needed, or to reimbu rse the plaintiff in circumstances where she
is obliged to first incur these expenses herself.3 (As I will elaborate upon further
below the public healthcare defence was abandoned as an option by the time of trial,
leaving only what the parties referred to as the “curtailed plea” to be determined by
this court).
2 This is how the court in DZ characterized the first of the two “ future defences” of the defendant who
had been joined in the appeal as an amicus. The second “ undertaking to pay defence ” entails that
medical services and supplies that cannot be provided in the public sector are paid for when they
arise in the future.
3 This plea is similar to the Gauteng MEC’s amended plea that she had raised in DZ, in which she
contended that she did not have to pay future medical expenses in a lump sum. Her alternative was
an undertaking to pay service providers directly, within 30 days of presentation of a written quotation,
for future medical expenses as and when they might arise. She contended that the common law
allowed her to do this, and that, if it did not, that the Court should develop the common law in this
respect.
[10] The plaintiff does not accede to any departure from th e normative prospect
that she be paid the agreed damages which have been calculated on the customary
basis and in money terms in accordance with accepted common law rules and, more
especially, she does not wish to be placated by an undertaking to be indemnified for
these expenses after they have been incurred.
The relevance of the Constitutional Court’s decision s in “ DZ” and “PN”, the
development of the common law “ once and for all ” rule in “ MSM”, and this
court’s decision in “TN”:
[11] The defendant’s amended plea incorporating both constitutional defences
resembles one taken in a like action for damages initiated by a mother on behalf of a
minor child born at a public hospital also resorting under the Department’s control,
where the child suffered a brain injury during the birth and developed spastic
quadriplegic cerebral palsy. In that matter too the severe injuries suffered by the
child were found to have been the result of negligence on th e part of the hospital
staff. In TN obo BN v Member of the Executive Council for Health, Eastern Cape
(“TN”),4 the court was called upon to determine an appropriate remedy to
compensate the plaintiff for her damages premised upon such a plea that entailed “a
novel combination of remedies not falling within the common law rules.”
[12] As pointed out by the court in its opening remarks in the judgment , the
defendant (the self-same defendant as in the present action), in advancing various
arguments in support of her plea, had contended that instead of draining the public
healthcare system of a massive lump -sum award for potential future medical care
that the child may or may not ultimately use, the Department wished to provide such
care to him as and when he would need it, if not by the Department directly, then
paid for in the private sector as the need therefor would arise in the future.5
[13] The court in TN recognized that in the normal course and based on the
[13] The court in TN recognized that in the normal course and based on the
common law as it then stood, the remedy availing the plaintiff would subsist in the
4 (36/2017) [2023] ZAECBHC 3; 2023 (3) SA 270 (ECB) (7 February 2023).
5 See paragraph [3] of the judgment.
payment of a lump sum duly assessed in accordance with the common law rules
relating to the payment of her various he ads of damages. 6 However, the “winds of
change” were already blowing concerning the need to consider alternative ways of
reimbursing a plaintiff for damages rather than in the conventional manner by the
payment of a lump sum award as was brought into sharp focus by the Constitutional
Court in Member of the Executive Council for Health and Social Development,
Gauteng v DZ obo WZ (“DZ”)7 in the specific context of the potential impact of
damages awards in medical negligence claims against public healthcare authorities
on their ability to discharge their constitutional obligation to provide access to
healthcare to everyone. 8 In that matte r, guardians of the entrenched rule that
compensation (calculated prospectively) must always be paid in money , were
encouraged to look afresh at the question whether the legal norms of the past still
fitted in with those of our Constitution. This was in pa rt due to the defendant in the
present matter joining together with the Member of the Executive Council for Health,
Western Cape, as amici curiae (friends of the court) in the appeal to ensure that the
decision in DZ might not later prevent her from raising the same constitutional
defences presently in contention in the action before this court.9
[14] In an academic discourse on the subject, since there was no factual
foundation in DZ on which to determine if it was appropriate to develop the common
law “ once and for all ” rule or to change the existing model of compensation ,
represented in the form of the payment of money, the Court concluded equivocally
6 The common law once and for all rule requires that a 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. The full import of the rule is explained in Evins
v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 835C-H. The second rule there intended is that The
purpose of an Aquilian claim is to compensate the victim in m oney terms for his loss because “ money
is the measure of all things”. Standard Chartered Bank of Canada v Nedperm Bank Ltd [1994] ZASCA
146; 1994 (4) SA 747 (A) at 782 D-F; DZ at [14] -[16].
7 (CCT20/17) [2017] ZACC 37; 2017 (12) BCLR 1528 (CC); 2018 (1) SA 335 (CC) (31 October 2017).
8 The challenge that this problem pres ents, and the possible need to develop the common law to
ameliorate its affect, is what engaged the jurisdiction of the Constitutional Court to hear the appeal.
9 The MEC for Health in the Western Cape was equally concerned not to be frustrated in introducing
different mechanisms she was devising to de al with claims against public healthcare providers for
alleged negligence. She , for example , proposed to make damages awards conditional on th e
establishment of a ring -fenced trust administered by a case mange r and a trustee who can ensure
that the award is only used for its intended purpose: meeting the child’s future medical expenses.
The deed constituting each trust would include provisions providing for the “ topping up” of the fund if it
became depleted as well as the reversion of the balance in the fund to the State upon the child’s
death. Though this model had been sanctioned by the High Court in settlement orders , the MEC did
not want to be caught short of asking for the common law “ once and for all ” rule to be developed in
those matters where agreement could not be reached with the relevant plaintiffs.
with its eminent answer to the question what to make of the common law position as
follows :
“Although the “once and for all” rule, with its bias towards individualism and
the free market, cannot be said to be in conflict with our constitutional value
system, it can also not be said that the periodic payment or rent system is out
of sync with the high value the Constitution ascribes to socio-economic rights.
There is no obvious choice at this highest level of justification. What appears
to be called for is an accommodation between the two. Is that possible?”.10
[15] As to the proposed accommodation, and although the Court expressed a
preference in favour of law reform by the legislature, it offered that the resolution of
the dilemma (of deciding which of the two payment choices fared more favourably)
may lie “ in leavi ng the choice at the level of each individual case, depending on
which form of payment will best meet its particular circumstances.”
[16] The Court concluded with the important observation concerning the limitations
that it was faced with regarding the argumen t for the development of the common
law made before i t, namely that any such development requires factual material
upon which the assessment whether to develop the law must be made , which had
been ‘absent” in that scenario and or “woefully inadequate to ground development of
the common law in the manner that had been sought by the Gauteng MEC”.11
[17] Despite dismissing the appeal, the Court however laid down the foundation for
the development of the affected common law rules in the future in t he following
seminal passage:
“But the failure of the appeal does not mean that the door to further
development of the common law is shut. We have seen that possibilities for
further development are arguable. Factual evidence to substantiate a
carefully pleaded argument for the development of the common law must be
10 At [58].
carefully pleaded argument for the development of the common law must be
10 At [58].
11 What had been contended is that the defendant did not have to pay the future medical expenses in
a lump sum. Her alternative was an un dertaking to pay service providers directly, within 30 days of
presentation of a written quotation, for future medical expenses as and when they arose.
properly adduced for assessment. If it is sufficiently cogent, it might well carry
the day.”
[18] The Court also declined the invitation in Member of the Executive Council for
Health, Gauteng Provincial Government v PN (“PN”)12 to develop the common law
“once and for all ” rule at the behest of the present defendant who had joined th ose
proceedings too as an amicus, on the basis that the significant implications of the
proposed development of the rule at issue ought to entail the leading of “ extensive
evidentiary material and the presentation of legal arguments of some magnitude ”
that was not before it . The main issue in that matter was one of the interpretation of
an order of th e Gauteng High Court in which the question arose whether the
interpretation preferred by the plaintiff respondent had the effect that the MEC may
not lead evidence at the quantum stage of a like action to support an argument for
the development of the common law.
[19] The Court repeated its opinion expressed in DZ on the balancing of the
competing interests between a plaintiff to be fairly compensated in a delictual claim
for damages and a defendant such as the present one to present evidence of the
desirability and practical implications of the development of the affected common law
rules as follows:
“In DZ Froneman J opined that the common law rule that damages must be
paid in one lump sum may be reflective of a pre -constitutional era where
individual loss -bearing was prioritised, and the right of access to healthcare
services did not exist. This does not mean the i ndividual interest of the
respondent and similarly placed individuals must be relegated to
insignificance. Each must be afforded an appropriate remedy and
compensated fairly for loss suffered. But in that process the applicant – who
is well-placed to ass ist the High Court in balancing these competing interests
– is entitled to lead evidence on the desirability and practical implications of a
– is entitled to lead evidence on the desirability and practical implications of a
development of the affected common law rules. Since Moshidi J’s order is
12 (CCT 124/20) [2021] ZACC 6; 2021 (6) BCLR 584 (CC) (1 April 2021)
reasonably capable of an interpretation t hat permits the applicant to lead this
type of evidence in the High Court, that interpretation should be preferred.”13
[20] In MSM obo KBM v Member of the Executive Council for Health, Gauteng
Provincial Government (“MSM”)14 the High Court took up an invitation to develop the
common law, in the first instance, to permit it to make an order of damages that does
not sound wholly in money and to include an order of compensation in kind. In
essence, the MEC’s case before that court was that some of the future medical
requirements of the minor child, K, could be provided to her by the Charlotte Maxeke
Johannesburg Academic Hospital, and that the level of service she would receive
there would be equal to that she would otherwise receive in the private healthcare
sector. The relevant MEC contended that he should not be ordered to pa y damages
based on the costs of these services in the private healthcare sector. Instead of a
damages award for these future medical expenses sounding in money, he asked the
court to order that the hospital provides the services to the child . In the secon d
instance, the court was asked to order, insofar as any monetary award was expected
to be made, that it be payable by way of periodic payments, rather than in one lump
sum.
[21] In respect of the second instance the court noted that this involved a more
extensive development of the “once and for all ” rule and whereas the MEC had
pleaded for this development, his plea “was not supported by sufficient evidence ”.
Indeed, no witnesses had addressed the questions of in what amounts, and at what
intervals, the envisaged periodic payments would be made, and how this would
affect the actuarial calculations. In the circumstances, the court did not consider it
necessary to address the question of whether the “once and for all ” rule should be
13 At [29]. See also Member of the Executive Council for Finance, Economic Development,
13 At [29]. See also 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 whi ch the court noted at [68] that DZ and PN have given a clear indication of “the likely
development of the common law in this field ”, but that the Court had emphasized that “this does not
mean that the individual interest of [a plaintiff] and similarly plac ed individuals must be relegated to
insignificance. Each must be afforded an appropriate remedy and compensated fairly for the loss
suffered”.
14 (4314/15) [2019] ZAGPJHC 504; 2020 (2) SA 567 (GJ); [2020] 2 All SA 177 (GJ) (18 December
2019).
developed to permit peri odic payments in this case but remarked that “ that question
must wait until a proper case is presented on the issue”.15
[22] In respect of the first instance , the court in a thorough and pedantic manner
followed the approach recommended in DZ step by step and concluded in favour of
the MEC that a proper case had been made out on the pleadings and evidence to
develop the common law to permit a court to consider an order of compensation in
kind in an appropriate case where the plaintiff suffers f rom cerebral palsy as a result
of negligence committed in a public hospital.
[23] It ought to be emphasized that although MSM was not appeal ed against, it
has come up for criticism by the Supreme Court of Appeal in Mashinini v Member of
the Executive Council for Health and Social Development Gauteng Provincial
Government (“Mashinini”)16 on the basis that the order which it made was “ not an
order which went beyond the common law, but (was) one consented to by the
defendant in that matter on the basis that this would result in the monetary award
being reduced.” In other words, so the court in Mashinini noted, the order that MSM
granted was “ one based on delictual principles ,” in accordance with the Ngubane
principle.17
[24] Although the “payment in kind” package deal especially crafted by MSM in the
interests of justice has as a n essential feature of it that the treatment (that is the
identified and ring -fenced services that the hospital in question was held to be able
to provide and to be able to source or procure under its own budget) would be akin
to the level of care and treatment that the child would receive in the private
healthcare sector and be available at no or lesser cost than the cost of the private
healthcare claimed by the plaintiff , suggesting thereby that it would follow, according
to ordinary delictual principles, that the defendant had succeeded in establishing on
15 MSM at [204] and [205].
15 MSM at [204] and [205].
16 (335/2021) [2023] ZASCA 53; 2023 (5) SA 137 (SCA) (18 April 2023).
17 Ngubane v South African Transport Services (“Ngubane”) ( 92/1989) [1990] ZASCA 148 (28
November 1990). As was clarified by the Constitutional Court in DZ at [21] “ Ngubane is authority for
allowing a defendant to produce evidence that medical services of the same or higher standard, at no
or lesser cost than private medical care will be available to a plaintiff in future. If that evidence is of a
sufficiently cogent na ture to disturb the presumption that private future healthcare is reasonable, the
plaintiff will not succeed in the claim for the higher future medical expenses. This approach is in
accordance with general principles in relation to the providing of damages.”
the “voldoende getuienisbasis”18 that concerned it19 that the projected future medical
expenses claimed were unreasonable or excessive , the court particularly noted that
the “ mitigation of healthcare costs defence ” that is consistent with the Ngubane
approach indeed accords with existing common law principles and that no
development of the common law would be ne cessary in making a determination on
that defence. However, it was constrained to go further in considering what the MEC
had prayed for beyond the confines of the ordinary because of the financial
predicament that was at play, hence the court’s careful explanation in this regard that
explains the context in which it felt obliged to develop the common law:
“29. However, it is important to draw a distinction between the mitigation of
healthcare costs defence, on the one hand, and the public health care
defence, on the other. What they have in common is that the defendant must
adduce evidence to show that the plaintiff may access the future medical
services to the same or higher standard in the public healthcare sector. But
they differ in an import ant respect: while the mitigation of healthcare costs
defence falls within the existing principles of the law of delict, the public
healthcare defence may not.
30. This is particularly so if, in a case like the present, the MEC has raised the
prospect of a n order in kind, i.e. an order that obliges the MEC to render
specific medical services to K at the Charlotte Maxeke Johannesburg
Academic Hospital. An order of this nature goes beyond the existing common
law rule that delictual compensation must sound in money. Accordingly, it
would be necessary for a court to develop the common law to permit an order
of this kind.
………
32. In summary, then, in terms of our existing common law, a plaintiff who
claims damages for the cost of future medical expenses bears t he onus of
establishing that the damages claimed (and hence the cost of the medical
establishing that the damages claimed (and hence the cost of the medical
expenses) is reasonable. Generally, it will be accepted that the costs of the
services offered in the private healthcare sector will be reasonable. However,
18 Ngubane, Supra, at 785C-D.
19 That is to show that an alternative or cheaper source of medical services is available to the claimant
at no or at a lesser cost than claimed by him/her.
in order to c ounter the plaintiff’s case in this regard, a defendant may adduce
evidence to establish that the expenses claimed are not reasonable, based on
the availability of the same medical services in the public sector at no or
lesser cost to the plaintiff. On this basis, and in accordance with our existing
common law, the defendant may either plead for the claim to be dismissed or
reduced. No development of the common law is necessary in this scenario.
33. However, if the defendant wants to go further and to ple ad either for an
order that it render services in kind (the public healthcare defence) or for
payment of the damages to be made in instalments, some development of the
common law will be necessary.”
(Emphasis added)
[25] The court also heralded what the process would entail, as follows:
“41. What process should be followed in making a determination in this
regard? It is necessary as a preliminary step to determine what K’s future
medical and related needs are, what the claimed costs are of these service s
are, and which of these services are to be categorised as identified services
for purposes of the public healthcare defence.
42. Thereafter, and based on my analysis of the DZ judgment, it seems to me
that the proper approach to adopt is as follows.
42.1. The first question to consider is whether the MEC has placed sufficient
cogent evidence before me to establish that, insofar as the identified services
are concerned, they will be available in the future for K at the CMJAH, at the
same or hi gher level and at no or less cost to her than those available in the
private sector. If the MEC provides such cogent evidence, it will be important
for two reasons:
42.1.1.It will rebut the plaintiff’s case that her claim for the full cost of future
medical expenses is reasonable.
42.1.2.In addition, it will establish an evidentiary basis upon which to consider
whether this is an appropriate case in which to develop the common law
whether this is an appropriate case in which to develop the common law
insofar as the MEC’s public healthcare defence is concerned.
42.2. The next question to consider is whether, based on that evidence, the
MEC has established a need to develop the common law rule that currently
requires that compensation for future medical expenses must sound in
money. In other words, has the MEC made out a case t hat the common law
should be developed to permit an order that the identified services be
rendered to K at CMJAH?”
[26] The court then went on to hear evidence of the specially fashioned package
deal as it were , constituted by the multidisciplinary and holistic treatment plan and
services that the relevant department would primarily provide under the auspices of
the hospital, that went beyond the mere evidentiary question whether the evidence
established an alternative and cheaper source of medical services that would be the
result of her receiving treatment at that public institution instead of at the higher cost
that had been claimed by her for these services rated at private healthcare rates.
The curated plan would involve firstly the actual rend ering of services in the
designated hospital, failing which the identified services that could not be provided
would be procured by the hospital under its own budget . This would mean that the
relevant department would keep under its control the objective o f the acquisition of
cheaper services (the costs saving factor that is key in Ngubane), in the process
precluding the burden on the relevant department having to part with vast sums of
money and indeed forking out down the line only as and when such services would
be required.
[27] To be clear that the court did not consider that the MEC had been intent on
framing his defence only within Aquilian principles, which would not require any
development of the common law, it set the tone for the premise upon which its
ultimate development of the common law ensued as follows:
“73. The MEC pleaded, in his amended plea, that it would be unreasonable
for the court to order that he be directed to pay to K the costs of her future
medical expenses sourced from the private sector. In light of my finding on
medical expenses sourced from the private sector. In light of my finding on
the factual evidence adduced , there is merit in this aspect of the plea.
However, it is not the end of the matter, as the MEC has gone further in his
defence: he asks the court instead to make an order in kind, and to direct the
MEC to make provision for her to access these services in the public
healthcare sector. As I have already discussed, this aspect of the MEC’s
case requires a development of the common law. My finding on the evidence
lays a basis for the next stage of the inquiry, viz. whether the MEC has made
out a case for the development of the common law to permit an order in kind.”
[28] The court clarified further what lay ahead for its consideration as follows:
“176. The MEC in this case pleaded his case for an extension of the common
law on the basis of s173 of the Constitution, rather than s39(2) of the
Constitution. In other words, the case he makes out is that there are wide
interests of justice consideration s that require a development of the common
law to permit an order of compensation in kind in respect of K. Therefore, I
will assume, for purposes of this case, that the common law rule that
damages must sound in money, is not in conflict with our normativ e
constitutional framework.”
[29] Hence the court’s consideration of the defendant’s plea to permit an order of
compensation in kind by balancing the competing rights of the plaintiff to seek fair
reparation for the harm and of the State to manage its resource s, impelled it in the
direction of finding a different panacea that introduced flexibility for the presenting
problem:
“179. While the existing common law rule that damages must sound in money
may not be in direct conflict with this obligation (and I leav e this question
open), it seems to me that there is a clear constitutional imperative for the
state to consider, and to pursue alternative means of making reparations in
cases like the present. This is evident from the injunction placed on the state
in s27(2) that it must take reasonable measures to achieve this right, and that
it must do so progressively within its available resources: if reparation in kind
achieves the purpose of making good the harm that has been inflicted, while
at the same time acting as a measure to guard against a reduction in the
state’s resources, and hence its ability to meet its obligations under s27(2),
state’s resources, and hence its ability to meet its obligations under s27(2),
this would seem to me to be a reasonable and compelling basis on which to
consider developing the common law.”
[30] Despite the court concluding in favour of the MEC that the development of the
common law (to the extent that had been warranted) and the provision of the
peculiar remedy was in the interest of justice, 20 the court sounded the important
caution that has been expressed variously by our courts that such development is
not necessarily indicated in every such like case, as follows:
“192. However, I am not faced with the question of what will happen in the
future and whether a roll -out will be feasible. As I have already indicated, my
concern in this case is whether the common law should be developed to
permit courts, in appropriate cases, to depart from the current position which
restricts them to making orders of monetary compensation. A development of
the common law by me will open the door to courts to consider making orders
in kind in appropriate cases. However, if I find that K’ s case is an appropriate
case in which to order compensation in kind, this will not bind a court in
another matter to follow suit. This is something that each court faced with a
similar defence will have to consider on the evidence before it. If the plan to
roll out similar treatment for other litigants is not underpinned by proper
resourcing, then it seems to me that a court would be justified in dismissing
the defence when it is raised in those circumstances.”
[31] In my view the criticism of MSM that ordering the MEC to provide the
especially identified services to the child at the relevant hospital did not warrant the
court’s finding that it had developed the common law in granting that aspect of the
relief, since such an order does not fall under the ambit of delictual relief, might
benefit from a look at it from a different perspective and more especially with the fact
in mind that the court intended to craft a different equitable remedy entirely to
correspond with its finding that there were wider i nterests at play that necessitated
correspond with its finding that there were wider i nterests at play that necessitated
the development of the common law as contemplated in section 173 of the
Constitution.21
20 In terms of section 173 of the Constitution a High Courts are granted the inherent power to protect
and regulate their own processes, as well as to develop the common law, while considering the
interests of justice. See also paragraph [32] of DZ.
21 This the court in MSM did by following the sequential steps articulated at [31] in DZ. See also
paragraphs [32], [35]-[36] and [42-[44]
[32] The court in DZ was prescient of this kind of development of the common law
in the following observation made by it:
“[13] The Eastern Cape MEC’s “public healthcare” defence may fall within the
third proposition since it is based on an assertion that public healthcare
provides as good, and cheaper, medical services as private healthcare. 22 But
it may also go outside this proposition if it is based on the contention that
damages awards in medical negligence claims against public healthcare
authorities must also be assessed against the impact they may have on
healthcare budgets and the adverse effect they may have on the provision of
access to public healthcare for everyone. 23 Her alternative “undertaking
to pay” defence and the “top -up/claw-back” mechanism of the Western Cape
MEC may also be difficult to fit into the third category.”
[33] Whilst the court in DZ stated that the “third proposition” referred to above is on
a “ surer footing” because of the Ngubane principle which the Supreme Court of
Appeal in The Premier, Western Cape N.O v Kiwietz (“Kiwietz”)24 was not referred to
(hence its observation that the conclusion in Kiewitz –“that a mitigation defence of
the kind raised in Ngubane offends both the “once and for all” rule and the delictual
rule that delictual compensation must sound in money ” – cannot be sustained ), the
Court noted that it is only after assessing the evidence proffered on the adequacy of
alternative future medical costs that a court can assess, “once and for all ”, whether
the damages claimed have been proven reasonable.
[34] What it says next is important: “ If so, a lump sum assessment must be made
of the future loss.”25
[35] This step was followed by the court in MSM.
22 Here the Court in DZ was referring to the proposition of the Gauteng MEC that it is open to a
defendant to challenge the amount claimed as damages on the basis that the sum is not reasonable
because the plaintiff is likely to use public healthcare rather than private healthcare, the former being
as good as, and cheaper than, the latter. Allied to this, so the court noted , is the argument that claims
for future medical costs may sometimes best be satisfied by the provision of actual medical services,
rather than the payment of money. [12].
23 This is exactly the kind of problem under scrutiny in all like actions.
24 [2017] ZASCA 41; 2017 (4) SA 202 (SCA) at [13].
25 At [23].
[36] If the application of the Ngubane test does not result in a finding that a
lumpsum assessment ought to be made, the court in DZ suggested “at least” four
possibilities that exist:
“[24] If not, it appears that at least four possibilities exist. The first is that no
damages for future medical expenses should be awarded if the evidence
shows that the claimant is likely not to suffer any loss in the future. The
second is that, if the evidence establishes only a lesser loss, then that sum
must be awarded as the monetary damages. The third is that the assessed
loss may be ordered to be paid in instalments. The fourth is that the
defendant be ordered to ensure the actual rendering of the medical services
that it claims obviates o r reduces the claimant’s monetary loss . The first two
possibilities fall comfortably within the current law of monetary compensation
that must be paid “once and for all”. The latter two may not.”
(Emphasis added)
[37] Hence, while it is apparent that the o rdinary delictual principles are certainly
at the heart of the entire exercise, and that the solution for the problem under
discussion may lie in the application of those principles as they have always been
traditionally applied, creative mechanism s to meet the constitutional challenges
under discussion, might impel a court in the direction of having to develop the
common law as MSM considered it necessary, even if in the limited respects
suggested. It seems though that the issue of the adequacy of medical care offered at
provincial hospitals will always take centre stage once a claimant’s future medical
needs and expenses are identified and accepted.
[38] The approach followed in MSM, beginning with the accepted customary
principles to be adopted in delictual claims of this nature and culminating in the
equitable order which it made , would appear to constitute incremental development
of the common law of the nature described in K v Minister of Safety and Security
(“K”).26 Although the court accepted that the common law rule that damages must
sound in money was not in conflict with the normative constitutional framework, it
went on to find the existence of wider interests of justice considerations that required
its further development.27
[39] Having been unsuccessful as an amicus in influencing the development of the
common law “once and for all ” rule before the Constitutional Court but having
watched the trend of the like actions (more especially MSM), the defendant
approached the case in TN with the specific object of similarly employing the steps
spelt out in DZ so that the development of the common law rule that compensation
be awarded in monetary terms could be considered on its own unique factual
foundation, and an appropriate remedy equitably substituted in its place.
[40] Hence the court in TN heard evidence pertinently going to the issue of
whether the public healthcare remedy could be sustained and whether the common
law ought to be developed to allow damages in kind and/or to permit the plaintiff to
be compensated by way of an undertaking to pay.
[41] Such evidence consisted firstly of factual evidence tendered by public
servants in the employ of the defendant who sought to demonstrate to the court that
senior staff existed within the Department , who had themselves treated the injured
child, and who had the competence, capacity, qualifications, experience and
responsibility for ensuring the proper care and treatment of him within their confines.
The proposition was that the Department would continue to provide such care to him
in the Frere and Cecelia Makiwane hospitals free of charge and in accordance with a
bespoke treatment plan to meet his envisaged future medi cal care. They also
testified as to the standard required relating to the delivery of certain medical
services and supplies so as to assure the court what they were capable of offering
services and supplies so as to assure the court what they were capable of offering
instead of having to commit to payment of the conventional damages award that the
plaintiff was holding out for.
26 (CCT52/04) [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC) ; [2005] 8 BLLR 749
(CC); (2005) 26 ILJ 1205 (CC) (13 June 2005) at paragraph 16.
27 See the suggested approach in DZ at [36].
[42] The defendant in TN also led the evidence of certain experts. A public
finance economist testified regarding the extent to which the State’s capacity to meet
its ordinary financial and constitutional obligations is thwarted by the elevated
financial challenges thrown at it unexpectedly by damages awards ordered by the
courts in similar actions such as t he present which are expected to be redeemed
from within the available baseline of expenditure allocations to respective organs of
State. In essence , so the witness explained, any such demand on its purse is a
charge of equivalent value against the S tate’s capacity to meet other critical social,
economic or developmental obligations, more especially to be able to provide and
improve health service delivery. This is especially true of the Eastern Cape , so he
related, where almost the entire population is med ically uninsured and
approximately 6,726,000 people are reliant on public health services provided by the
Department.
[43] He opined that an undertaking to provide services or to pay as a nd when
expenses arise, rather than paying significant lumps sums, would rationally enable
the Department, embattled by a rapid increase in medical negligence claims more so
than any other province, to better match its actual expenditure to needs and to adapt
those commitments over time if needed.
[44] Also confirming the detrimental impact on the delivery of health services by
the Department spending an increasing portion of its annual budget on the
settlement of medico-legal claims was the Chief Director, Integrated Budget planning
of the Department . He lamented the fact that based on current trends in its
contingent liabilities, settlements against the Department in like actions were likely to
increase rapidly and at a rate faster than the annual increase in its budgeted
resources. He anticipated that this out of control trend would in time overwhelm the
resources. He anticipated that this out of control trend would in time overwhelm the
Department’s capacity to meet its health service delivery obligations . He opined that
this crisis had rendered it necessary at the time of giving his evidence to give
consideration to alternative avenues available to the State to meet medico -legal
claims against the Department.
[45] The then head of the Department , who is also tasked with budgeting for the
provision of necessary health care services in the province , added her voice to the
concern that lump sum payments were impacting negatively on its operating budget
and that the outflow of funds from the Departmen t’s coffers for such claims was
increasing exponentially year by year. She affirmed that each such payment comes
with an “opportunity cost” to the Department and results in money being taken away
from other services. 28 In her words, as the court noted, it is “ a never -ending
downward tightening, ever tightening spiral if we continue to pay in this mechanism .”
In her view, the Department’s financial challenges in turn threatened the liquidity of
the rest of the provincial government which she suggested ought to be ameliorated
by a different expectation than the norm envisaged by the “ once and for all” common
law rule that requires damages awards to be paid in money.
[46] A forensic auditor employed by the Provincial Treasury testified as to his
investigations into allegations of misconduct by individuals or their attorneys
regarding medical negligence litigation and the failure of the vast proceeds to reach
the plaintiffs who are the subjects of these claims either by virtue of success fees
payable in terms of contingency fee agreements substantially reducing the benefit
especially projected for use by the injured patient, the failure to establish the trusts
created by the court to protect the proceeds either timeously or at all, or because of
other irregularities in administering the damages awards.
[47] Guided inter alia by the powerful and persuasive support from the
constitutional court in DZ, albeit by way of obiter dicta, that the common law “ once
and for all ” rule, although not in conflict with ou r constitutional value system, is not
beyond being developed provided that cogent foundational evidence is provided to
support a move away from the evaluative normative choice that requires
compensation in money as the “ measure of all things ”, the court in TN was
compensation in money as the “ measure of all things ”, the court in TN was
comforted by the fact that the resolution of the dilemma that the Department face d
could be met by considering which form of payment would best meet the particular
circumstances of each individual case rather than by implicating a wholesale
rejection of the “once and for all” rule.
28 This concept is evidently an economic one. The witness is reported at [52] to have explained that
opportunity cost refers to “ the things that might otherwise be done if spending was not allocated to
any particular purpose”. The court in TN considered it relevant to the proceedings in the sense that by
making an award “there is a sense in which the court takes on that responsibility that otherwise would
be exercised by a treasury”.
[48] Further, in recognizing the crisis that has evolved in the province by the
alarming increase in medico legal claims against the Department according to the
evidence presented, which the court accepted, it was alive to the important
consideration that the fundamental right of everyone to have access to healthc are
services and the State’s obligation to realize this right by undertaking reasonable
measures, that had not being on the blimp as it were in the pre -constitutional era,
had introduced a worrying conflict of rights to be rationally contended with. ( The
court in MSM referred to this as “a doubled-edged sword hanging over the state”).29
[49] Having careful regard to the evidence presented, the expectation of
embracing a different constitutionally invested approach which was first raised as a
prospect in DZ and MSM’s example commended itself to the court in TN. It reflected
as follows regarding the important question asked of itself whether the evidence
supported the development of the common law . It concluded affirmatively that it did,
for the specific reasons indicated below :
“[158] Particularly regarding the public healthcare defence, this case is, in
many respects, on all fours with MSM. 30Accordingly, the dicta of Keightley J
in this regard are of equal application. Having studied her judgment in this
regard, I agree with her analysis particularly as the evidence led in this case is
largely supportive of the evidence led in that.
[159] In DZ, Froneman JA’s examination of the common law led to the obiter
conclusion that neither the once and for all rule nor the money damages rule
were in conflict with the constit utional value system. He added that this
problem (which he categorized in vacuo as it were, i.e. without any evidence
as not being prima facie offensive to the Constitution), should be dealt with on
a case-by-case basis. This is such a case. We now have evidence. In addition
a case-by-case basis. This is such a case. We now have evidence. In addition
to what was said in MSM, the evidence in my view discloses at least two
obvious bases upon which such common law rules offend the Bill of Rights.
29 MSM at [186].
30 It is for this reason that I have expounded fully on the import of MSM above.
[160] Firstly, it seems that all the witnesses ultimately accepted that the
department is struggling financially for the various reasons which have been
dealt with. That being so, heaping more “once and for all” claims on the
department averaging approximately R30 million apiece, can only make the
situation worse. This has the result that the department’s ability to carry out its
obligation of realizing access to health for everyone in terms of section 27(2)
is increasingly under pressure. Dr Wagner and Mr Donaldson emphasized
that the stress (and further potential for stress) on the departm ent’s finances
has the result that 80 to 90% of the population of the Eastern Cape (the
balance being serviced by private healthcare as they are insured) are not
receiving the healthcare that they ought to be. As the situation is worsening
year by year, in my view, this is offensive to the Bill of Rights.
[161] Secondly, as correctly pointed out by the plaintiff, whilst the
Contingency Fees Act has not been found to be unconstitutional, in most run -
of-the-mill cases where legal practitioners abide by th e law, it has a salutary
effect in that it allows indigent people to have legal representation albeit that
they have to give up a percentage of the award ultimately given. Where that
award is not very high and does not represent an important component of
damages such as extensive future medical services for a severely
compromised claimant, the 25% deduction for legal fees (or, hopefully, a
lesser percentage if the Act is applied to its full extent) will not make a great
difference to the claimant’s quantum of damages. However, when dealing with
CP cases such as this, it is common cause that a huge component of the
damages award is represented by future medical expenses. This can account
for R20 million or more of the claim. In the once and for all situation, this
amount is carefully determined by actuaries so as to provide future medical
amount is carefully determined by actuaries so as to provide future medical
services for the compromised child on an ongoing basis, hopefully for his or
her life span. When one looks at the tendency of legal practitioners (according
to the evidence l ed in this case) to take 25% of such claims, and sometimes
more, this represents in the region of R5 million or more which punches a
significant hole in the capacity of the once and for all monetary award to
provide fully for the complainant. Indeed, the e vidence of Mr Howes disclosed
that more than 40% in some cases is taken up by lawyers’ fees.
[162] If the CP child claimant lives to his or her life expectancy as calculated
at the time the award is made, he will, in theory at least, run out of funds t o
provide the necessary medical services some time before reaching that point.
This is more so if the child lives beyond its calculated life expectancy. It is
therefore so that in cases such as this where large awards are made in
accordance with the common -law once and for all principle, large deductions
are made for legal services. These deductions are much larger than in cases
where smaller awards are made and represent a reduction in the ability of the
award to sustain the child over his or her lifespan. This places the awards
which are consistently made in similar CP cases in a different category to the
general run of the mill damages awards. This, to my mind, represents a
further assault, if I may use the word, on the constitutional rights of such
individual CP claimants and thus further offends the Bill of Rights, and the
constitutional obligation imposed on the state under section 27 (2) to “take
reasonable legislative and other measures within its available resources, to
achieve the progressive realization of [healthcare services]”.
[163] In this regard, it should be mentioned that the plaintiff has argued that
the contrary would be true where a CP child does not live out its full lifespan.
If he or she indeed were to live three quarters of his or her lifespan as
ascertained at the time of the award, this would translate into him or her
probably having enough funds therefrom to sustain the necessary medical
services until the time of his or her death. However, in my view this argument
is, to a degree, tautologous. The very purpose of ascertaining the longevity in
advance is to try, insofar as is humanly possible, to ensure adequate
compensation in the future. If it cannot be ascertained with any degree of
accuracy, this is a further reason to consid er jettisoning the once and for all
accuracy, this is a further reason to consid er jettisoning the once and for all
rule in such cases. The purpose of such an award is to ensure that the child’s
patrimony is restored to the position it would have been had the cerebral palsy
not occurred and, based on the once and for all rule, an atte mpt is thus made
to provide sufficient funds to sustain the child as best possible and in
accordance with best medical practice, during its anticipated lifespan. It would
be wrong in these circumstances to assume that its lifespan would be 25%
shorter than that calculated by the experts to justify a large lump sum being
paid in legal fees. Furthermore, once the funds do indeed run out sometime
before the child’s anticipated lifespan is reached, it is almost inevitable that
the child’s medical needs will be cast back upon the public healthcare service.
This, in turn, will place more stress upon the public healthcare service despite
it having paid out a large lump sum to avoid this very situation. Again, this
reduces the capacity of the department to carry out its responsibilities in terms
of the Constitution, which is offensive to the Bill of Rights.
[164] Before leaving this aspect, it should be mentioned that the plaintiff
argued that the introduction of the constitutional remedies would result in
reduced interest on the part of legal practitioners to take up the cases of CP
claimants which would, in turn, affect their right of access to the courts. I do
not regard this as a valid argument. I say so because of many reasons, the
more important of which is the fact that if such were to happen, it would be an
indictment on the legal profession. Also, the introduction of such defences
does not eliminate partial lump -sum awards. For example, in the present
matter, the lump sum award will amount to almost R4 mil lion. This is still a
sizable sum for the calculation of contingency fees. RAF cases attracting
similar quantum awards, and indeed less, are regularly handled by legal
practitioners on a contingency basis. It seems to me that this argument is
spurious in these circumstances.
[165] In addition to the foregoing, in my view the evidence overwhelmingly
establishes that there are other areas in which the common law rules conflict
with the constitutional value system. In this regard reference is made to the
rights of everyone under section 27(1)(a) and (2), together with the rights of all
children under section 28(1)(c) and (2), and the right under section 9 (1) to
children under section 28(1)(c) and (2), and the right under section 9 (1) to
equality before the law and to the equal protection and benefit of the law. In
my judgment, the limited and incremental development sought in this case is
therefore justified in terms of section 39(2).
[166] Section 173 also empowers the superior courts to develop the common
law, taking into account the interests of justice. I am satisfied, based on the
evidence led in this case, that it is also in the interests of justice that the
common law be developed so as to provide courts which adjudicate medical
negligence claims with a broader remedial framework, including the remedies
pleaded in this case.
[167] It seems self -evident that both the public healthcare and the
undertaking to pay remedies should be developed together as they operate in
tandem. The evidence discloses that the most expensive items inflating lump -
sum damages awards are those such as caregivers which the state is unable
to provide in kind. If the undertaking to pay remedy is not granted in tandem
with the public healthcare defence, this will serve to substantially reduce its
efficacy.
[168] The draft order proposed by the defendant in which development of the
common law in this regard is articulated is in line with the Constitutional
Court’s direction in Makate which requires that changes to existing law be
articulated with the same clarity as the rules and principles that t hey seek to
replace. I thus conclude that a case has indeed been made out for the
development of the common law as set out in the proposed draft order.”
[50] For the sake of convenience, prayer 19 of the order granted by the court in TN
that corresponds to its conclusion that a case had been made out to it for the
development of the common law in the limited respects found, is repeated below:
“DEVELOPMENT OF THE COMMON LAW
19. The common law is developed –
19.1 so as to accommodate the public healthcare and undertaking to pay
remedies provided for in this order;
19.2 so that the once-and-for-all rule and the rule that damages must sound
in money, are neither the exclusive nor the primary rules for the determination
of a just and equitable remedy in terms of sections 38 and 172(1)(b) of the
Constitution, in a claim arising from harm negligently caused by a public
healthcare practitioner, provider or institution;
19.3 so that no claim shall lie in resp ect of lumpsum money damages to the
extent that –
19.3.1 any of the future medical services and medical supplies required by the
Plaintiff (or the injured party) as a result of the injury are provided, by order of
court, at a reasonable standard at a public healthcare institution; or
19.3.2 where a court does not so order, the Defendant provides an
undertaking to –
(a) procure the medical service or medical supply required in the private
healthcare sector so as to be provided timeously whenever it is required; or,
(b) reimburse the Plaintiff, or any trust or other entity established for the
benefit of the injured party, for their expenses reasonably incurred in
procuring the medical service or medical supply in the private healthcare
sector, within 30 days of presentation of an invoice for it.”
[51] As an important aside the judgment in TN is under appeal to the Supreme
Court of Appeal, but I have set out in some detail the seminal findings made by the
court by reason of the defendant’s constitutional def ences raised in the present
matter, in order to highlight the necessary context.
[52] In this re gard I align myself with the respectful approach adopted by
Govindjee J in SM v MEC for Health, Eastern Cape Province 31 that it is neither
necessary nor desirable to pronounce upon the impact of TN on the development of
the common law and the significance of this finding for the province , especially since
the circumstances of th at matter are also distinguishable from the p resenting
circumstances of the matter at hand . I do however have to reflect on the pleaded
relevance of TN to the present case.
The present matter:
[53] Although the remedies (the first arising upon the “ public healthcare defence ”
and the second “undertaking to pay” being a corollary thereof) were expressed in TN
31 (1433/2015) [2024] ZAECMHC 15 (18 March 2024) at [23].
to operate in tandem, 32 the defendant in the present instance pertinently abandoned
her reliance on the primary public healthcare defence/remedy. The reason why she
no longer wishes to pe rsist with it as an equitable remedy, so Mr . Mapoma who
appeared on her behalf explicated, is becaus e the plaintiff has relocated with her
child to Durban, KwaZulu-Natal.
[54] This notwithstanding, her alternative defence implicated by the undertaking to
pay remedy according to which the conventional lumpsum award should as a matter
of course be substituted on the pretext that the common law has already been
developed in TN, remains and falls to be determined by this court.
[55] Reliance on the alternative remedy (dubbed the “undertaking to pay” remedy)
is pleaded as follows in the curtailed plea:
“28. Alternatively to paragraph (27), 33 and only in the event of the Court
finding that the future medical care or any component of it is not available in
the public healthcare sector at a reasonable standard, 34 the defendant
undertakes, at her, alternatively the plaintiff’s election, to –
28.2.1 either procure the future medical care that is not so available in the
public healthcare sector, in the private healthcare sector whenever it is
required; or
28.2.2 reimburse the plaintiff, or any trust established for the benefit or her
minor child, for expenses reasonably incurred in the private healthcare sector
in procuring the future medical care that it is not so available in the public
32 See in this regard the observation of Griffiths J expressed in TN at par [167] that the undertaking to
pay remedy ought to be granted in tandem with the public health care defence, otherwise “ this will
serve to substantially reduce its efficacy ”. Read in context it is necessary to keep the substantial
expenses that are not receivable in the hospital and are therefore expected as a starting point to be
payable in a lump sum, to a minimum, which effect is achieved by providing the undertaking instead,
this being the whole purpose of the ameliorating, constitutionally justified , remedy. The benefit of the
efficacy is the defendant’s.
33 Paragraph 27 of the amended plea asserts “ the public healthcare remedy ” which the defendant
abandoned.
34 Implicit in the defendant’s abandonment of the primary healthcare defence and the given reason
therefor, is that such future medical care or provisioning is, as a necessary premise for the
undertaking to kick in, unavailable in the public health care sector. Technically speaking it properly still
is available, although in a different province, but these issues of boundari es and individual budgets of
each province and the hospitals under each provinces area of responsibility have not received the
attention of our courts in an appropriate matter . This militates against an argument of general
applicability of the development of the common law in individual cases decided by our courts.
healthcare sector, whenever it is required, within 60 days of presentation to
the defendant of an invoice for it.”
[56] Evidently the defendant expects that such a remedy should in principle and
without further ado avail the Department because of her success in raising the
constitutional defences in TN35. In this regard the plea goes on to assert that:
“29. The common law was developed in TN obo BN v Member of the
Executive Council for Health, Eastern Cape (36/2017) [2023] ZAECBHC 3;
2023 (3) SA 270 (ECB) (7 February 2023) –
29.2.1 so as to accommodate the healthcare and undertaking to pay remedies
as contemplated in paragraphs 27.2 and 28 above respectively;
29.2.2 so that the once-and-for-all rule and the rule that damages must sound
in money, are neither the exclusive nor the primary rules for the determination
of a just and equitable remedy in terms of sections 38 and 172(1)(b) of the
Constitution, in a claim arising from harm negligent ly caused by a public
healthcare practitioner, provider or institution;
29.2.3 so that no claim shall lie in respect of lumpsum, money damages to the
extent that-
29.2.3.1 any of the future medical services and medical supplies required
by the plaintiff (or the injured party) as a result of the injury are provided, by
order of court, at a reasonable standard at a public healthcare institution36; or
29.2.3.2 where a court does not so order, the defendant provides an
undertaking to -
29.2.3.2.1 procure the medical service or medical s upply required in
the private healthcare sector so as to be provided timeously whenever
it is required; or,
29.2.3.2.2 reimburse the plaintiff, or any trust or other entity
established for the benefit of the injured party, for their expenses
reasonably incurred in p rocuring the medical service or medical supply
in the private healthcare sector, within 30 days of presentation of an
invoice for it.
35 (36/2017) [2023] ZAECBHC 3; 2023 (3) SA 270 (ECB) (7 February 2023).
invoice for it.
35 (36/2017) [2023] ZAECBHC 3; 2023 (3) SA 270 (ECB) (7 February 2023).
36 This subparagraph is not being proceeded with.
30 In the circumstances, it is just and equitable that, to the extent that the
plaintiff proves that her minor child requires the future medical care, this court
make an order to provide it under the public healthcare remedy and/or the
undertaking to pay remedy as pleaded in paragraphs 27.2 and 28, along with
the further relief provided for below”.37
[57] It is app osite to demonstrate further how the defendant intend ed for the
proposed remedy to operate on the assumption that this court might uphold what
remains of her defence, as is indicated by the excerpt below from the proposed draft
order that was presented to this court on her behalf to counter the plaintiff’s draft
predicated on the payment of these damages as a lump sum payment:
“1. The Defendant shall in respect of the medical services and the medical
supplies listed in annexure “A” 38 at the Defendant’s election –39
1.1 procure the medical service or medical supply required in the private
healthcare sector so as to be provided tim eously whenever it is required in
terms of annexure “C”; or
1.2 reimburse the Plaintiff, or any trust established for the benefit of as, for
their expenses reasonably incurred in procuring the medical
service or medical supply in the private healthcare sector, within 30 days of
presentation of an invoice for these.
1.2.2 By no later than 30 June of each year, AS’s 40 private case manager
and the public case manager shall jointly submit to the Chief Financial Officer
of the Department of Health, Eastern Cape, a care and management plan for
the following financial year setting out the medical services and supplies to be
provided to AS in terms of annexure “A” during the next financial year and the
estimated cost of each item.
37 In this paragraph 30, only the part relating to the undertaking to pay remedy is being proceeded
with.
38 This should be a reference to annexure C, or at least the list is the same that was presented to the
court by the plaintiff as comprising the total outlay of M’s future medical expenses costed in the
private health care sector. It thus refers to the whole gambit of services M reasonably and necessarily
requires in the future.
39 This is notably different from the plea that purports to at least recognize the plaintiff’s election in this
respect.
40 This is clearly a copy and p aste mistake where ver the child ’s moniker is referenced in the draft
order.
1.2.3. Within 30 days of this order and, in subsequent years, by no later than
31 August in each year, the public case manager shall communicate to the
Plaintiff, or any trust established for the benefit of AS’s private case manager,
the Defendant’s election referred to in paragraph 1 above.
1.2.4. In order to access the medical services and medical supplies referred
to in paragraph 1.1 and to c laim reimbursement in terms of paragraph 1.2 the
public case manager will act as liaison person.”
UNFORSEEN DEVELOPMENTS
2. In the event of it becoming reasonably necessary for AS to receive any
medical service or medical supply additional to that provided f or in the
annexure “A” as a result of AS’s cerebral palsy at any point in the remainder
of his life, the Defendant shall continue to as ordered as per paragraph 1
above.
3. Where it is reasonable to amend any provision of annexure “A”, where
for the purposes of paragraph 2 or otherwise, the parties may, by agreement
Between AS’s private case manager and the public case manager,
provisionally amend annexures “A” without approaching a court provided
that an updated, amended court order shall be plac ed before a judge in
chambers every second year at the end of the financial year, to be made an
amended order of court.
4. Absent agreement on any proposed amendment to annexure “A” either
party may apply to this court for the variation of annexures “A” on go od cause
shown and/or for the enforcement of this order, provided that –
4.1 upon instituting any such proceedings, the party commencing the
proceedings must refer the dispute to mediation in terms of Rule 41A the
Uniform Rules of Court and the parties must –
4.1.1 conclude the minute and agreement contemplated in Rule 41A (4) (a)
and (b) within five court days of service of the process commencing
proceedings;
4.1.2 convene the first meeting in the mediation within ten court days of
service of the process commencing proceedings;
4.1.3 address the first item for consideration in the mediation, the interim
provision of medical services and medical supplies pending the outcome of
the mediation, or failing that, the litigation; and
4.1.4 conclude the mediation within 30 ordinary days.”
5. The Defendant shall bear all the attorney and client costs of any such
proceedings and mediation, regardless of outcome, save where the court
finds that the proceedings were not reasonably commenced by the Plaintiff or
any person or trust acting on behalf of or in the interests of AS.
ADULT CARE
6. AS’s private case manager and the public case manager shall meet no
later than his 17 th birthday and endeavour to agree on his care arrangement
from the age of 18.
7. Failing agreement, the matter must be resolved in terms of paragraph 4
above.
PUBLIC CASE MANAGER
8. The Head of the Department of Health of the Eastern Cape Province
shall appoint a suitably qualified person from the Department where AS
receives the majority of his services and supplies, to perform the functions of
public case manager provided for in this order.
9. The Defendant shall in respect of the medical services and the medical
supplies listed in annexure “A” at the Defendant’s election –
9.1 procure the medical service or medical supply required in the private
healthcare sector so as to be provi ded timeously whenever it is required in
terms of annexure “A”; or
9.2 reimburse the Plaintiff, or any trust established for the benefit of AS,
for their expenses reasonably incurred in procuring the medical service or
medical supply in the private healthcare sector, within 60 of presentation of an
invoice for these.
10. By no later than 30 June of each year, AS’s private case manager and
the public case manager shall jointly submit to the Chief Financial Officer of
the Department of Health, Eastern Cape, a care and management plan for the
following financial year setting out the medical services and supplies to be
provided to AS in terms of annexure “A” during the next financial year and the
estimated cost of each item.
11. Within 30 days of this order and , in subsequent years, by no later than
31 August in each year, the public case manager shall commun icate to the
Plaintiff, or any trust established for the benefit of AS ’s private case manager,
the Defendant’s election referred to in paragraph 9 above.
12. In order to access the m edical services and medical supplies referred
to in paragraph 9.1 and to claim reimbursement in terms of paragraph 9.2 the
public case manager will act as liaison person.”
[58] I should clarify additionally that although the plea and draft order especially
envisage a right to the Department to procure services at the defendant’s election
which it cannot itself provide as a corollary of the public healthcare remedy , Mr.
Mapoma assured this court during argument that the defendant was only persisting
with that part of the plea that implicates the undertaking to pay remedy.
[59] It is immediately apparent that the standalone remedy that the defendant asks
this court to order represents a striking difference from how it was intended to be of
application in the TN scenario as I will shortly illustrate.
The issues for determination:
[60] The question that arises from the defendant’s plea is whether the essential
finding in TN that the common law is developed as the court considered it
appropriate in that matter can or ought merely to be “applied” to the circumstances
of the present matter on a stare decisis basis as the defendant contends for . The
further question that occurs to me in any event is whether the undertaking to pay
remedy, flung off from the primary healthcare remedy as the necessary tangent it
was supposed to be in TN, can survive on it s own as an independent remedy
bearing in mind that in that matter it formed part of a tailored order especially crafted
by the court to meet the exigencies of that situation.
by the court to meet the exigencies of that situation.
[61] Although the defendant believes that the present case is “on all fours” with TN
it appears to me that little thought was given to the impact of her abandoning the
primary health care defence and soldiering on with the slender remains of her
constitutional defence without reimaging the peculiar relief sought, interrogating
whether the common law should be especially developed to cater for an undertaking
somewhat akin to that envisaged in section 17 (4) if the Road Accident Fund Act, No
56 of 1996 , or to demonstrate even (on the defendant’s insistence that a new rule
came into being sinc e TN) why she says that the facts pertaining to the present
matter fall within the scope of that purported new rule.
[62] The plaintiff for her part does not agree with the pleaded assertion that the
common law has already been developed in TN or that the import of that decision is
of general application so that the defendant can insist on an alternative payment
remedy as a matter of course . She maintains instead, and fairly so as I discuss
below, that for such a defence to be able to be adjudicated upon and to seize the
imagination of th is court, she would as an essential premise have had to have
pleaded why the common law ought to be developed in the peculiar circumstances
of the present matter to permit the granting of the remedy contended for in place of a
conventional damages award, which she has evidently not done.
The evidence:
[63] The plaintiff adduced no oral testimony in the matter and indeed it is accepted
that none was required by her in the circumstances .41 Since the total cost of M’s
medical expenses were agreed to be fair and reasonable, she closed her case
confident that s he has established that M deserves, on the customary basis upon
which damages are assessed for future medical expenses in claims for personal
injury, to receive private healthcare on the basis of the estimated costs supported by
the common views of the relevant experts that they are reasonable and necessary.42
41 Neither was it necessary for her, after the defendant testified, to offer any rebuttal evidence
concerning the remaining constitutional defence.
concerning the remaining constitutional defence.
42This accords with the principle enunciated in Ngubane at 784C-F that: “ By making use of private
medical services and hospital facilities, a plaintiff, who has suffered personal injuries, will in the
normal course (as a result of enquiries and exercising a right of selection) receive skilled medical
attention and, where the need arises, be admitted to a well-run and properly equipped hospital. To
accord him such benefits, all would agree, is both reasonable and deserving. For this reason it is a
legitimate - and as far as I am aware the customary - basis on which a claim for future medical
expenses is determined. Such evidence will thus discharge the onus of proving the cost of such
expenses unless, having regard to all the evidence, including that adduced in support of an alternative
[64] The defendant tendered only the factual testimony of Mr. Kidwell Matshotyana
who is employed by the Department as Chief Director of Clinical Support Services .
He could not take the matter much further. Mr. Mapoma h eralded in his opening
address that the witness would testify, in his role as administrat or, regarding “ the
application of paragraph 28 … of the defendant’s plea”.
[65] The witness related that the Department has a developing system in place to
coordinate, monitor and oversee the implementation of the “ constitutional remedies”
that have thus far successfully been granted by this Court in, inter alia, TN. 43
[66] In the event of the remedy prayed for availing the defendant in the present
matter, so he sought to assure this court, it would be his obligation, as part of a team
set up by the Department for these purposes, to capture the list of future medical
expenses and set up an individual plan for the hopefull y successful implementation
of the anticipated order, evidently along the lines of the trial and error basis that has
developed since the first such orders were granted by this court and in accordance
with policy guidelines that are evolving.
[67] As an aside the parties agreed that the policy guidelines would not be
introduced into evidence for failure on the part of the defendant to have discovered
them, but also by reason of the fact that the protocol is not yet even in place. 44
[68] Whilst the witness stated that he was unaware of any complaint against the
Department that it had not complied with any of the three court orders “where the
and cheaper source of medical services, it can be said that the plain tiff has failed to prove on a
preponderance of probabilities that the medical services envisaged are reasonable and hence that the
amounts claimed are not excessive. This approach conforms, in my view, to the requirements of proof
in any claim for delictual damages.”
in any claim for delictual damages.”
43 There are in fact only two other matters other than TN that resort under the group of “ special case”
plaintiffs managed under the auspices of the Department. These orders were however issued by
agreement.
44 The plaintiff also raised the concern that the document was either irrelevant or that she would be
prejudiced by its admission given the defendant’ s plea (and her difference in this respect) that the
common law has already been developed and needed only to be applied. On the other hand, if the
defendant was holding out for a development of the common law, this was not the premise on the
pleadings and the submission was that she should not be allowed after the fact and in the absence of
a properly pleaded case for such a development, come in through the back door as it were.
undertaking to pay remedy ” was ordered , in reality he did not offer any practical
application of the so-called undertakings.
[69] As for the injured plaintiff being out of the province, he readily conceded that
the Department had no experience of managing cerebral palsy cases outside of its
area of responsibility.
[70] He suggested that any issues arising co uld however probably be worked out
between the case managers. He acknowledged though that the case manger in mind
in the draft order presented to the court was required to be in the same district where
the child lived.
[71] He was unaware that the defendant had abandoned the public healthcare
remedy. He further offered no advice regarding how an undertaking would work
apart from an integrated special patient plan or even within the context of the roll -out
of an existing plan.
[72] Notably absent from h is account was any evidence why the remedy would
enhance access to healthcare.
[73] Further, how the stand alone undertaking to pay, or rather to reimburse, was
supposed to work was simply left to one’s imagination. The witness did not explain,
for example, as I expected of him to, how the defendant imagined the plaintiff could
afford to pay for medical expenses out of pocket, and thereupon wait for
reimbursement of these within 60 days of the presentation of an invoice.45
[74] Neither did the witness lead any ev idence to discharge the evidential burden
on the defendant to show that the costs of the private healthcare outlined in
Annexure “C” were not reasonable or necessary in the circumstances of the matter.
Discussion:
45 Sixty days are mentioned in par 28.2.2 of the plea but this is contrasted wi th 30 days mentioned in
par 29.2.3.2.2 thereof. Days implicated in a court order would also be computed as court days,
making the proposed period for repayment excessively long.
[75] As I have already indicated above the defence that remains, bare boned, was
not helpfully pleaded and was doomed to fail at conception, at least at the point at
which the defendant cast off reliance on that part of it pertaining to her public
healthcare remedy.
[76] Whilst TN and MSM provide examples of how a carefully envisaged treatment
plan can be held in the interests of justice to be suitable and appropriate in
substitution of the payment of customary lump sum awards, the point was well taken
by Mr. van der Walt who appeared on behalf of the plaintiff that the court intended,
especially in TN which is of relevance for present purposes, for the undertaking to
pay to operate in tandem with the especially devised plan of treatment.
[77] Self evidently the premise for the alternative “ undertaking to pay ” being
triggered (as per the plea) is that the identified services and medical supplies
required by the child is not available in the public healthcare sector at the desired
standard, despite the special treatment plan or under its ambit. In this regard, all the
indications were, until the primary public healthcare defence was abandoned, that
the identified services would have been available but for the plaintiff’s relocation to a
different province.
[78] The point however is that their fictionally being “ unavailable”46 cannot
automatically trigger the alternative undertaking in a situation where there is a
relocation. The original thinking of the public healthcare remedy, undergirded by the
undertaking to procure or to pay , is that the fall back on the procurement or
undertaking options would only arise if there was a service or a supply that was not
available, and as a final resort, but the entire effort is directed at maintaining the
cheaper alternative to private healthcare costs, and avoiding having to fork out lump
sums needed to provide for the healthcare of other citizens , or delaying these
sums needed to provide for the healthcare of other citizens , or delaying these
payments until later when they are strictly needed, as the case may be.
46 They are surely still notionally available in the private healthcare secto r somewhere else in the
country at least. The defendant needs to be more thoughtful about how special case patients may be
received and adequately attended to and matters of budget and case managing handled across
territorial borders. The situation would certainly be different, as Mr . van der Walt opined, if the injured
patient was to move out of the country.
[79] In TN the warning sound ed that the remedies should operate in tandem is
evidently intended for the defendant’s benefit, to maximise the opportunity for the
Department not to have to part with lump sums that cripple its budget to the
prejudice of others in need of public healthcare.
[80] This is not the defendant’s motive here. She asks opportunistically, since she
has missed that boat, to hang on to the undertaking to pay remedy to be used as a
measure to deny the plaintiff to be properly redressed for the damage to her
patrimony without coming in through the front door with a p roper plea that explains
why she is entitled to this remedy instead of the customary one, accepting that she
cannot provide cheaper alternative care through the public healthcare services, and
hoping in the process to avoid having to say or make out a case why the common
law ought to be developed in these bizarre circumstances.
[81] Indeed the court in DZ noted the contention of the defendant herself that
whilst the province’s public healthcare defence required, at most, a limited
development of the common law , the second “ undertaking to pay ” requires “ a more
extensive development of the common law”.47
[82] There is simply no merit therefore in the submission on behalf of the
defendant that the common law has already been developed in this scenario and
must simply be applied.
[83] In any event it has been emphasized in every judgment of our courts on the
subject that each case must be decided on its own merits and unique factual
foundation.
[84] Co-incidentally, the court in Member of the executive Council for Health and
Social Development of the Gauteng Provincial Government v Zulu obo Zulu 48
declined, for very good reasons, to develop the common law to permit the relevant
department, instead of paying the monetary compensation sought in respect of
47 At [6].
48 (1020/2015) [2016] ZASCA 185 (30 November 2016).
medical expenses of the plaintiff in a like action , to pay directly to the person/s who
would provide services to the minor child within 30 days of presentation of a written
quotation to its accounting officer . The sentiments expressed by the court in that
matter may provide a useful indication to the defendant why the remedy postulated
in the present matter, to reimburse the plaintiff for future medical costs paid out of
pocket, is simply unworkable.
[85] There is quite a difference between asking the court to accept a plan that
purports to save costs to operate as a remedy rather than paying a lumpsum, than
asking it to permit the defendant instead of paying the lump sum to the plaintiff which
she has prima facie established as being entitled to , without a jot of evidence that
cheaper treatment is possible, to sit back and wait to be asked to reimburse by her
once she has paid these expenses out of pocket. To my mind it is quite
unconscionable for the defendant t o imagine that the plaintiff would have any
resources of her own to advance these kinds of payments, not to mention the
hardship or calamity that may befall the child if he does not get the medical attention
for his very serious condition that it is vitally agreed he needs.
[86] DZ and other subsequent cases on the subject confirm that a development of
the common law cannot take place in a factual vacuum or without any factual
foundation.49 Given the peculiar nature of an “undertaking to pay” remedy as
understood in DZ, the affected common law rules would certainly require evidence. 50
I can confidently determine that there is none here, though I am comforted by Mr .
Matshotyana’s enthusiasm a nd hope that the treatment plan s curated in the
successful matters where the constitutional defence was raised, are working to plan.
Conclusion:
49 At [28] and [57].
50 At [24] where the Court highlights that the kind of possibility entertained does not resort comfortably
within current law of monetary compensation that must be paid “once and for all”, at [29] where it is
stated that a common law rule is to be changed altogether, or a new rule is to be introduced (certainl y
implied by the standalone undertaking to pay remedy envisaged in the present instance) that it would
usually be better for a court to make a decision “ only after hearing all the evidence so that the
decision can be given in the light of all the circumsta nces of the case, with due regard to all relevant
factors.” An example of what such relevant factors may entail are especially highlighted in Member of
the executive Council for Health and Social Development of the Gauteng Provincial Government v
Zulu obo Zulu (1020/2015) [2016] ZASCA 185 (30 November 2016) , at [11], in which that health
department sought a similar remedy which, needless to say, was denied.
[87] I am satisfied that t he plaintiff has made out a case on a balance of
probabilities that she is entitled to payment of the amount of damages as set out in
the draft order below.
[88] The defendant’s undertaking to pay defence (as framed) is rejected as bad in
law for want of having raised a c arefully pleaded argument for the development of
the common law. There is in any event further no evidence to support a
development of the common law in the manner contended for.
Order:
[89] In the result I issue the following order:
1. The Defendant shall pay the capital amount of R11 108 354.48 as full
and final compensation to the Plaintiff in her representative capacity as
mother and natural guardian of M (“the minor”) for the delictual damages
suffered by him as a result of severe birth asphyxia.
2. The total amount referred to in paragraph 1, is calculated as follows:
2.1. Future medical expenses R10 333 353.00.
2.2. Trust Costs calculated at 7.5% of the total capital amount in
respect of paragraph 2.1, supra: R 775 001.48
3. The capital amount of R11 108 354.48 shall be paid by the Defendant
to the Plaintiff’s attorneys in accordance with the provisions of Section
3(3)(a)(i) of the State Liability Act, 20 of 1957 (as amended).
4. The amount referred to in paragraphs 2.1 to 2.2 above, shall be paid
into the Trust account of the Plaintiff’s Attorneys of record with the following
details:
Name of account : Sakhela Inc Attorneys
Bank : First National Bank
Acc No : 6[...]
Branch Code : 250109
who shall, after deduction of attorney and client’s fees, costs and
disbursements (including past medical - and paramedical expenses), retain
same in an interest -bearing account in terms of Section 86(4) of the Legal
Practice Act, No. 28 of 2014.
5. The Plaintiff’s attorney shall thereafter pay the remaining amount into
the Trust created in terms of the Court order of Zilwa J of 1 September 2023.
6. The Defendant shall pay the Plaintiff’s taxed or agreed costs on the
party and party High Court Scale, whi ch include the costs of senior and junior
counsel on Scale C, as above, to date hereof, such costs to include the
following:
6.1 The costs of the reservation fees for trial for 21 January 2025 of:
6.1.1 Nursing Expert - Ms. Anderson
6.1.2 Dentist - Dr. Singh
6.1.3 Dietician - Ms. Read
6.1.4 Speech and Language - Ms. Thanjan
6.1.5 Physiotherapist - Ms. Hughes
6.1.6 Orthopaedic Surgeon - Dr. Decon
6.1.7 Orthotist - Mr. Nothling
6.1.8 Occupational Therapist - Ms. Caga
6.1.9 Urologist - Dr. Steyn
6.1.10 Actuary - Mr. Lootz.
6.2 The costs of the expert reports and appendices thereto , including
consultations, reservation fees for trial for 21 January 2025 and qualifying
fees of:
6.2.1 Rehabilitation and public Health
services in the Eastern Cape
Dr. Campbell
6.2.2 Economist Prof Van Den Heever.
6.3 The costs of senior and junior counsel, including but not limited to,
preparation and associated trial costs for 21 January 2025, 22 January 2025
and 23 January 2025, attendances at pre -trial conferences and/or roundtable
meetings.
6.4 The costs of junior counsel for the preparation and drafting of the
revised Schedule in respect of Future Medical Expenses.
7. The Plaintiff shall serve the notice of taxation on the Defendant’s
attorneys of record and the Defendant shall be allowed a period of one
calendar month to make payment of the taxed costs.
__________________
B HARTLE
JUDGE OF THE HIGH COURT
DATE OF HEARING : 20-24 January 2025
DATE OF JUDGMENT : 27 June 2025
Appearances:
For the Plaintiff: Mr. N van der Walt SC together with Ms . R Andrews, instructed by
Sakhela Incorporated, East London (Ref Mr. Sakhela).
For the Defendant: Mr. S X Mapoma SC, instructed by The State Attorney, East
London. (Ref Mr. M Maqambayi).