SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO),
CASE NO. 240/2014
In the matter between:
N P D First Plaintiff
Y P D represented
by ADVOCATE SANDA MLALANDLE N.O.
as duly appointed curator ad litem Second Plaintiff
and
MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH: EASTERN CAPE PROVINCIAL
GOVERNMENT Defendant
In re the negligence of the staff at the Dora Nginza Hospital, Gqeberha
JUDGMENT IN RE QUANTUM
HARTLE J
Introduction:
[1] The second plaintiff, assisted in these proceedings by Advocate Mlalandle as
curator ad litem (“the curator”), came before this court for the determination of
the quantum of certain heads of damages arising from the negligence of the
medical and/or nursing staff at the Dora Nginza Hospital ( “the hospital” ). The
complained of negligence was committed during her bir th, resulting in her having
suffered a brain injury with ensuing cerebral palsy.
[2] The first plaintiff originally sued in her personal and representative capacity
as the mother and guardian of the second plaintiff who attained majority in 2024.
Given the second plaintiff’s serious physical and cognitive disabilities, a curator
was appointed to represent her in the pursuit of the recovery of her own damages.
[3] Liability was settled in favour of the first plaintiff in terms of an order of this
court granted on 22 March 2022. In accordance with that order, the defendant was
found liable for the proven or agreed damages suffered by her in both her personal
and representative capacities.
[4] The parties agreed unequivocally at a pretrial conference held on 18
February 2025 that the issues for resolution by this court would concern only the
quantification of the second plaintiff’s claims for loss of earnings and her adapted
accommodation requirements, external (vehicular) mobility, and caregiving needs.
[5] The issue of the remainder of both plaintiffs’ claims for future medical
expenses, as per the parties’ agreement, is to be determined in a subsequent hearing
in which the defendant’s pleaded public healthcare defence will loom large.
[6] It was brought to the court’s attention during the plaintiff’s opening address
that the defendant, when signing the pretrial minutes after the earlier conference,
unilaterally purported to delete the issue of caregivers which it had been agreed
would be determined at the present hearing, as opposed to later on when the public
healthcare defence is expected to receive especial consideration. From the minutes
of a later meeting held between the parties on 7 March 2025 it appeared that the
defendant remained hopeful that she might ringfe nce this expense as one covered
by an undertaking to pay for such services as and when they arise under the ambit
of the public healthcare defence pleaded by her.
[7] Despite the fact that the determination of the defendant’s undertaking to pay
defence resort s more conveniently under the separate determination of the
defendant’s public healthcare defence, the curator indicated that he would persist
with the claim for the rendering of private caregiving services to the second
plaintiff as a trial issue in the p resent hearing. The defendant did not argue against
the proposition, neither did she ask for any directive in this regard.
[8] The separation of issues along the lines agreed upon by the parties in the
initial conference appeared as an afterthought to be i ll-considered, regard being
had to the fact that the undertaking to pay defence cannot as a constituent part of,
or as an adjunct to, the public healthcare defence (the consideration of which the
parties have agreed to defer) be extricated therefrom.
[9] The defendant was however confident that she could press on for such relief
on the basis of her understanding that the common law has already been developed
to automatically permit of an undertaking to pay remedy being substituted in the
place of a lumpsum da mages award in respect of cerebral palsy cases arising from
the negligence of medical staff in hospitals falling under her control. The
defendant’s expectation in this respect stems from this court’s judgment in TN obo
BN v Member of the Executive Council for Health, Eastern Cape (TN”)1 in which,
according to her understanding of its import, the common law was developed for
all like cases so as to accommodate the public healthcare and undertaking to pay
remedies provided for therein.2
[10] In the course of th e parties’ pretrial discussions, the future expenses under
contention in the present hearing were conceded by the defendant as reasonable
and necessary, but with the last minute reservation expressed on her behalf of some
1 (36/2017) [2023] ZAECBHC 3; 2023 (3) SA 270 (ECB) (7 February 2023) .
2 See prayer 19 of the court’s order in TN under the heading: “DEVELOPMENT OF THE COMMON LAW”, read
together with prayers 9 to 12 thereof which envisage the practical implementation of the undertaking to pay remedy.
of these being “ too high”, and cap able of being reduced. 3 She had a solution in
mind for this dilemma. In respect of the second plaintiff’s mobility expenses claim
(which the defendant preferred to refer to as the “ transport claim”), she proposed
that the Department pay the costs of the purchase of the first motor vehicle
together with adaptions upfront, with the remainder of this reasonably anticipated
expense being revisited afterwards in terms of an undertaking to pay for upgrades
as and when the need arises.
[11] In respect of the agreed accommodation costs, the defendant qualified at the
final pretrial conference that because she considered this outlay “ too high ”, she
might, “as a possibility ”, seek a contingency deduction of 20% from the amount
costed under this head of damages.
[12] These reservations expressed on her behalf, in keeping with her obvious
agenda to keep the cash lumpsum that falls to be awarded for the medical expenses
under consideration to a minimum, set the tone for the cross examination of the
witnesses called on b ehalf of the second plaintiff who in the trial set out to prove
her entitlement to these heads of damages on the customary basis enunciated in
Ngubane v South African Transport Services (“Ngubane”).4
3 With hindsight it appears that it would have been more appropriate to have included the separate claims of the
second plaintiff presently under consideration under the wider ambit of future medical expenses, because it is likely
that at the later hearing the defendant’s pleaded defences will receive due and proper consideration by the leading of
evidence. In any event, the defendant persisted with her view that the common law has alre ady been developed to
permit of her tender of an undertaking to pay as opposed to the payment of a lump sum award, this on the premises
of the court's order in TN. Another possibility would have been for the tender to be made in answer to a rule 34A
claim for an interim payment whilst the uncertainty around the form of the order in TN and the arguments around the
issue of the development of the common law in respect of like cases prevails.
4 1991 (1) SA 756 (A) at 784 C- F and at 785 C – D.
[13] Based on the relevant joint minutes of the parties’ r espective experts and the
agreed actuarial calculations flowing therefrom, the parties were at least agreed
that the second plaintiff’s claims in respect of the heads of damages under
consideration were reasonably projected as follows:
Loss of earnings R1 896 101.00.5
External Mobility (vehicular) R1 763 596.00.
Housing and Accommodation R2 343 990.00.
[14] Significantly the curator conceded on behalf of the second plaintiff that the
calculations by the defendant’s actuaries in respect of the three sub -sets would
prevail over her own, which came in lower than the calculations by the actuaries
employed on the second plaintiff’s behalf. The curator likewise proposed that the
lesser of the two actuarial calculations be accepted for purposes of the agreed
mobility costs. On the issue of accommodation the defendant’s actuaries’
calculations were greater than the second plaintiff’s. In that respect the parties
settled on the lesser figure.
[15] Also agreed in respect of the second plaintiff’s claim for loss of earnings is
that it is reasonable that a contingency deduction of 15% be made against the
accepted actuaria l calculation by the defendant’s experts, the lesser of the two
experts’ projections of her loss in this respect, which was computed in the sum of
R2 230 707.00.
[16] Since the parties agreed to defer the determination of the claims for the bulk
of the remaining future medical expenses under the scope of the public healthcare
5 This amount reflected here is the nett of the agreed contingency deduction of 15%. See paragraph 15 below.
defence, the defendant tendered an interim payment of R50 000.00 towards the
fees of a case manager in the meantime.
[17] The parties were further ad idem that a trust should be established
consequent to the granting of the award anticipated at this juncture of the
proceedings to manage the money award on the second plaintiff’s behalf. This
came with the necessary concession by the defendant to pay the costs associated
with its establishment and the costs of managing it at the customary rate of 7.5% of
the total amount of damages that fall to be awarded at this time.
[18] The parties however remained at odds on the subject of the caregivers
although not in respect of the projected cost of such ser vices. The defendant
insisted upon limiting her tender to the provision of an undertaking to pay these
costs as and when they arise (without intending to lead any evidence thereanent as
I will shortly elaborate upon), whereas the curator indicated that he would push on
and adduce evidence for the second plaintiff’s part that would establish her loss for
this head of damages assessed at private medical sector rates, 6 payable upfront
according to the “once and for all” common law damages rule.7
[19] I should add, in respect of the premise of the latter head of damages that the
parties were at least agreed that caregivers were necessary around the clock to
6. See Ngubane at 784 C – F as to the parameters within which the plaintiff is required to establish her damages.
7 The common law “ once and for all ” rule requi res 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 component of the rule is that the purpose of an Aquilian claim is to compensate the
victim in money terms for his loss because “ money is the measure of all things ”. Standard Chartere d Bank of
Canada v Nedperm Bank Ltd [1994] ZASCA 146; 1994 (4) SA 747 (A) at 782 D -F; 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 [14] - [16].
attend to the second plaintiff’s special needs for the rest of her expected lifetime, 8
the only po int of difference entailing the defendant’s expert recommending three
caregivers, working alone in 8 hour shifts as opposed to the defendant’s expert
suggesting a different division of labour. The parties were agreed however that the
actuarialized compensation in this respect amounts to R5 453 433.00.
The second plaintiff’s testimony:
[20] In respect of the second plaintiff’s caregiving needs and requirements, the
curator led the evidence of Sue Anderson, a nursing expert.
[21] She testified generally about the physical and mental condition of the second
plaintiff. Of importance - these premises not being in contention between the
parties at all, the second plaintiff is severely disabled, immobile, with numerous
contractures and scoliosis, suffers epilepsy and is incontinent (bladder and bowel).
She weighs 40kgs.
[22] Ms. Anderson recommended the use of two day caregivers because of the
second plaintiff’s weight. She opined that the second plaintiff cannot be safely
managed and cared for by a single day caregiver b ut must necessarily be assisted
by a second caregiver during the day to assist with the heavy lifting. She explained
that the second plaintiff would further require a night caregiver to turn her while
she sleeps, change her nappies, and provide such furth er care as may be required
during the night shift.
8 The second plaintiff’s total life expectancy was agreed at 32.8 years. She was at the time of trial 19 years.
[23] She gave evidence regarding the costing for the three caregivers required on
the basis contended for by her, which went unchallenged by the defendant.
[24] The first plaintiff also testified to give a con text to the second plaintiff’s
condition, the relevant circumstances pertaining to the management of her severe
disability, and the family’s current living arrangements. The cross examination did
not challenge the gist of her evidence concerning the need for the special outlay of
services required to manage the second plaintiff’s severe disability but, rather
uncomfortably, implied that the need for a night -time assistant could be dispensed
with on the basis that she herself might pitch in and render night -time care.9 Also
suggested to the first plaintiff, despite her strong indication to the contrary that she
was desirous of establishing accommodation away from her parental home, is that
it is distinctly possible, because of the second plaintiff’s strong bond with her
grandmother and the fact of the family having lived at her grandmother’s house for
all nineteen years of the second plaintiff’s life, that the first plaintiff may be
disinclined to use the benefit costed for accommodation adjustments on beh alf of
daughter if awarded the full actuarialized compensation in this respect.10
[25] In the presentation of the second plaintiff’s case the several medico legal
reports of the implicated experts were introduced into evidence and marked as
accepted exhibits in the trial.
The defendant’s case:
9 The purpose of this line of questioning was no doubt to establish a context in which it could later be argue d that a
contingency deduction of 20% against the total projected cost of such services ought to be applied.
10 The contention pressed in on in this regard too is that given the strong likelihood that the money ringfenced for
this expense may not be applied in the intended manner, a deduction of 20% was reasonable to apply.
[26] The defendant did not lead any evidence to support her expert’s
recommendation of three caregivers per day working alone in eight -hour shifts,
neither in general why she felt it justified that the total compensation award
payable in monetary terms be attenuated in the respects contended for, namely by
way of a standalone undertaking to pay (in the case of the expenses of the
caregivers on an invoice basis) and, in respect of the transport claim, as and wh en
the need may arise, confirmed by the respective case managers, and then procured
by the Department.11
[27] Indeed the defendant closed her case without leading any evidence at all.
Pursuant to this election Mr. McKelvey acting on behalf of the curator urg ed upon
this court to find that this amounted to her abandoning her reliance on the public
healthcare defence in the respects sought to be relied upon concerning the few
heads of damages presently under consideration.
[28] As articulated elsewhere, however, this election exercised on the defendant’s
behalf was premised on the firm belief that no evidence at all is required to be led
because the court has spoken in TN and that the import of that decision is that a
court can, instead of ordering the defendant to pay a lump sum money award,
merely apply the developed common law by directing the Department to provide
an undertaking to procure the medical service or supply in the private health care
sector whenever it is required or to reimburse the plaintiff, or any trust or other
entity established for the injured party’s benefit, for such expenses reasonably
11 That this was the basis on which the defendant hoped to avert the payment of a lumpsum award appears from the
draft order that was presented on her behalf.
incurred in procuring that service or supply within 30 days of presentation of an
invoice for it.12
The legal principles:
[29] In Ngubane13 the appeal court dealt with the onus on a plaintiff in the
position of the second plaintiff suing in an Aquilian action to prove her damages
for future medical expenses as follows:
‘Though the onus of proving damages is correctly placed upon the plaintiff … by
making use of private medical services and hospital facilities, a plaintiff, who has
suffered personal injuries, will in the normal course (as a result of enquiries and
exercising a right of selection) receive skilled medical attention and, where the need
arises, be admitted to a well -run and properly equipped hospital. To accord him such
benefits, all would agree, is both reasonable and deserving. For this reason it is a
legitimate – and as far as I am aware the customary – basis on which a claim for future
medical expenses is determined. Such evidence will thus discharge the onus of proving
the cost of such expenses unless, having regard to all the evidence, including that
adduced in support of an alternative and cheaper source of medical services, it can be
said that the plaintiff has failed to prove on a preponderance of probabilities that the
medical services envisaged are reasonable and hence that the amounts claimed are
excessive”
12 This appears from paragraph 19 of the order granted in TN which is expressed as follows:
“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 t he 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;
practitioner, provider or institution;
19.3 so that no claim shall lie in respect 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.”
13 Supra at 784 C- F and at 785 C – D.
‘Thus, in the instant case the respondent was required to adduce evidence – a
voldoende getuienisbasis in the words of Jansen JA – in support of its
contention, that is to say, that for the next 35 years, or for some shorter period,
medical services of the same, or an acceptably high, standard will be available
to the appellant at no cost or for less than that claimed by him’
[30] The judgment of Ngubane and the principles laid down therein have been
confirmed by the Constitutional Court in Member of the Executive Council for
Health and Social Development, Gauteng v DZ obo WZ (“DZ”) .14 The principles
also received consideration and were applied in MSM obo KBM v Member of the
Executive Council for Health, Gauteng Provincial Government (“MSM”).15
[31] In Mashinini v Member of Executive Council for Health and Social
Development Gauteng Provincial Government 16 (“Mashinini”) the Supreme Court
of Appeal came to grasp with the concept of the onus in an action for damages
such as the present one in the context of the public healthcare defence being raised
by the Gauteng Health Department. It repeated the acceptance of the Ngubane
approach as follows:
“[13] The Constitutional Court in MEC for Health v DZ endorsed the approach that
was adopted by this Court in Ngubane when faced with the ‘public healthcare defence’.
It expressed the view that Ngubane was authority for a llowing a defendant to produce
evidence that medical services of the same or higher standard, at no or lesser cost than
14 2018 (1) SA 335 (CC) at [21].
15 (4314/15) [2019] ZAGPJHC 504; 2020 (2) SA 567 (GJ); [2020] 2 All SA 177 (GJ) (18 December 2019).
16 2023 (5) SA 137 (SCA).
private medical care, will be available to a plaintiff in future. It stated: ‘If that evidence
is of a sufficiently cogent nature to disturb the presumption 17 that private future
healthcare is reasonable, the plaintiff will not succeed in the claim for the higher future
medical expenses.’”
[32] In A.W obo M.U.W v Member of the Executive Council for Health, Eastern
Cape (“AW”)18 the court analysed the Constitutional Court’s decisions in DZ and
Member of the Executive Council for Health, Gauteng Provincial Government v
PN (“PN”)19 respectively, as well as that of MSM which evidently informed the
court’s decision in TN20, in order t o track the development of the common law
“once and for all” damages rule in like cases and, where applicable, its
implementation through the remedies found suitable in substitution of lumpsum
money awards.
[33] The reason for this is that the present defendan t similarly in AW referenced
TN as authority for the proposition that the court has already developed the
common law in respect of cerebral palsy cases and that it fell to it only to apply the
law on the basis of the stare decisis principle without having to lead the same
evidence again to warrant the incremental changes in the interests of justice
considerations that according to the defendant required it.
17 This presumption stems from a passage in Erasmus v Davis 1969 (2) SA 1 (A) at 9E -G referenced in Ngubane in
which the court observed that: “The onus rests on plaintiff of proving, not only that he has suffered damage, but also
the quantum thereof. Where, however, a plaintiff leads evidence which establishes the reasonable and necessary
cost of repairs to his vehicle damaged in a collision, proof of such cost would, in my judgement, ordinarily be prima
facie proof that payment to him of such cost would place him financially in the same position as he would have b een
in had the collision not occurred. If on all the evidence adduced at the trial there is nothing to show that the
reasonable and necessary cost of repairs might exceed the diminution in value, the prima facie proof may become
proof by a preponderance of probabilities and the plaintiff has then succeeded in proving his damages…”
18 (288/2019) [2025] ZAECBHC 15 (27 June 2025) at paragraphs [111] – [52].
19 (CCT 124/20) [2021] ZACC 6; 2021 (6) BCLR 584 (CC) (1 April 2021).
20 (36/2017) [2023] ZAECBHC 3; 2023 (3) SA 270 (ECB) (7 February 2023).
[34] In the present matter Mr. Nyangiwe sought to prevail upon this court
(although arguing prior to the decision in AW) that the second plaintiff’s claim is
on all fours with that of TN in which the undertaking to pay defence was
developed, although he and counsel representing the defendant in AW seem to have
missed the important distinction that the court did not order the undertaking to pay
as a standalone remedy in that matter, but in tandem with or under the auspices of
the public healthcare defence. 21 He strongly submitted that this court is bound by
the finding in TN unless it finds it to be wrong, a lbeit on his understanding that a
standalone undertaking to pay was in the reckoning by the court in TN.
[35] As indicated above the defendant’s contention is that such a remedy ought to
ensue not only in respect of the caregivers’ costs in this instance, bu t also with
regard to the provisioning of motor vehicles to meet the second plaintiff’s mobility
needs in the future if and when the need for replacement vehicles arise.
[36] It is unnecessary to repeat the court’s full discussion in AW (which presents a
ready answer to the question whether this court is expected to merely apply the
“developed common law ” in TN without further ado by permitting standalone
undertakings to be substituted in place of lumpsum prospective damages as a
universally accepted new rule), 22 except perhaps to focus on some of the
conclusions reached therein that bear on the present matter.
[37] Before doing so it is perhaps apposite to sound the warning, as this court did
in AW, that TN is under appeal to the Supreme Court of Appeal and that a judgment
21 AW, Supra, at [59] – [62].
22 The answer is “No”.
is currently awaited, although I am of the opinion that it is unlikely to impact upon
the view that I take in this matter.23
[38] Before I highlight what in AW is relevant to be repeated here, I commence
with a brief analysis of the defendant’s pleaded case.
The defendant’s pleadings:
[39] The tenor of the defendant’s plea is that the Department can as a first
premise provide all the medical treatments, modalities, equipment and services
required by the second plaintiff free of charge and at an appropriate standard in
hospitals under its control. The defendant contends however that inasmuch as the
Department cannot provide such services, it should be the master of procuring such
services as the second defendant needs but which are not available i n the public
healthcare sector. As a further alternative the defendant seeks to be permitted,
instead of paying any lumpsum payments to the second plaintiff in lieu of a
lumpsum award, to provide an undertaking to pay for services that she may require
as a result of her injuries only as and when the need or eventuality arises, or to
reimburse her (or the trust to be established in her interests as the case may be) in
respect of the expenses incurred on her behalf in the private healthcare sector, upon
conditions to be determined by this court.
[40] In the draft order submitted to this court during closing arguments, Mr.
Nyangiwe proposed, in respect of the second plaintiff’s accommodation costs; her
projected loss of earnings; and the costs of the administratio n of the trust, that the
23 AW, Supra, at [52].
total mitigated loss which he urged upon this court to find proven in the form of a
lumpsum, should, further, be payable in two instalments. The first within 30
days,24 and the second within six months of the first payment being made.
[41] Concerning her claim for the costs of the caregivers, his draft order proposes
that the defendant shall pay these amounts “ as and when presented with monthly
invoices as the draw down from the total amount in respect of these items”.
[42] As for the second plaintiff’s “ transportation claim”, the draft order makes
provision for the payment of an amount of R655 000.00 (entailing the costs for the
purchase and adaption of the necessary first motor vehicle to be provided), to be
paid within thirty days o f this court’s order, and the purchase of the second motor
vehicle to be provided only if necessary in the future on the basis of the envisaged
undertaking to pay.
[43] The requested deferment of the payment of the lumpsum where applicable
accords with the defendant’s formal plea that she be permitted to pay any damages
sounding in money in instalments over a period of three years because of the
Department’s critical financial constraints and lack of ability to afford to pay
lumpsum compensation.
[44] Further, although the draft order proposed by the defendant shares the vision
of the establishment of a trust to benefit the second plaintiff in respect of capital
payments as conceptualised by the second plaintiff’s legal representatives, it
purports to introduce th e significant difference of the inclusion of “ top up ” and
24 These are evidently calendar days.
“claw back ” clauses, which kind of arrangement was made provision for in the
order granted by the court in MSM without even so much as having hinted in the
pretrial processes that she would ask for such relief.25
The analysis in AW of the development of the common law through the cases to
permit of payment in kind instead of lumpsum payments to avert a constitutional
crisis:
[45] To return to the discussion in AW, whilst the Constitutional Court in DZ
opened the door for the common law to be developed to remediate the impact of
damages awards in medical negligent claims against the public healthcare
authorities on their ability to discharge their constitutional ob ligation to provide
access to healthcare for everyone the court in AW reiterated the clear prerequisite
that any development of the common law (obviously premised on a properly
pleaded case therefor) requires factual material upon which the assessment to
develop it must be made. This requirement has been stressed in a number of cases
before our courts on the subject.
[46] Mr. Nyangiwe’s riposte to this clear expectation is that the evidence required
to develop the common law in the respects which TN engaged with, and especially
concerning cerebral palsy cases, has already been led and all that remains is for this
development to be applied in cerebral palsy cases.
[47] The second feature of AW is to emphasize that the kind of development of
the common law implicated by the public healthcare defence relied upon by the
defendant that seeks to compensate the second plaintiff differently than by way of
25 See footnote 9 in AW, concerning this mechanism that also came up for discussion in DZ.
the payment of a lumpsum and as eventualised i n MSM and TN, does not resort
within the existing principles of the law of delict. This means that if standalone
remedies are to be crafted such as envisaged in the context of the defendant’s
public healthcare defence beyond what the court determined was permissible in
MSM and TN respectively as wholesale package deals as it were, this should
necessarily entail a development of the common law.
[48] The third feature is that a development of the common law for the common
reason indicated in all the cases discussed in AW, namely that the Department does
not have the resources to meet the exorbitant claims for damages for cerebral palsy
cases without compromising its constitutional obligations to provide adequately for
the healthcare of other health users of its s ervices, by the provision of an equitable
alternative payment remedy, is not necessarily indicated in every such like case. It
calls for an appropriate case (substantiated by adequate evidence) for the common
law to be developed or for different remedies to be fashioned to meet the
exigencies of the challenges coming at the relevant health department concerned. 26
However even ticking that box, an in -kind order departing from the common law
norm of a lump sum payment will not bind a court in another matter to follow suit.
Instead, each matters’ suitability will be determined on the evidence before the
court.
[49] In this respect, it was emphasized in AW that despite the order granted in TN,
this did not mean that it followed automatically that a departure fr om the common
law principles is necessarily warranted in every cerebral palsy case.
26 See MSM at [204] and [205]; AW at [21].
[50] The fourth feature of AW was to especially highlight that the undertaking to
pay remedy that the defendant presently relies on (on the basis of what the court
ordered in TN) is not one that was intended by that court to provide in isolation.
Indeed, the court in TN especially concluded that both the public healthcare
defence and the undertaking to pay remedies should be developed together as they
operate in tandem.27
[51] The very extensive plea of the defendant was supplemented on 12 October
2021. It preceded the judgment in TN but it certainly postdates those of DZ, PN
and MSM where a development of the common law to allow for what the
defendant has in mind were changes c ertainly seen envisaged as coming, or
possible.
[52] The plea is well articulated and covers a range of remedies to counter the
eventuality that the defendant fears most, which is that it will be rendered bereft of
huge sums to meet its day to day constitutional obligations to other citizens equally
entitled to public healthcare services.
[53] The fallacy though is that the defendant imagines that based only on the
findings of TN and the evidence led in that matter, that this court can for the
common reason of the drain on the Department’s resources intended for all health
users, reach in and tweak the compensation awards to conveniently alleviate the
pressure on the Department’s purse in the several ways postulated in argument and
as posited in the dra ft order presented on behalf of the defendant without a single
jot of evidence. In proposing that the court do so, the defendant ostensibly
27 Supra at [167].
overlooks the fact that the hospitals concerned in TN could cater for the specialised
needs of the child according t o a bespoke or especially curated plan that she was
able in that instance to prove the Department was capable of implementing in
every respect. The same situation does not apply here. The standalone
undertakings to pay appeared to be to be a mere aftertho ught and a clutching at
straws.
[54] As indicated above the defendant simply led no evidence in support of her
defences in this round of the proceedings. Whilst the faint cry is heard that the
payment of lumpsum compensation ought to be attenuated in the mann er
contended for the constitutional good of all public healthcare users, the defendant
cannot hope to succeed with her defence in such regard without the necessary
evidence being put up.
[55] Co-incidentally, a party seeking to develop the common law (where
applicable) is also required to give notice in terms of rule 16A (1) of the Uniform
Rules of Court of his/her intention to raise a constitutional issue, lest an interested
party as envisaged by the sub -rule may wish to be admitted to the proceedings as
amici curiae so that they can advance submissions in regard thereto.
[56] It was unfortunate that the defendant imagined that she achieve what she
hoped for without any evidence at all, either to countervail the prima facie case
established on behalf of the seco nd plaintiff that the projected expenses costed by
the experts at private healthcare rates would place her in the same position that she
would have been in but for the hospital’s staff’s negligence, or to prevail upon the
court to “ develop” the common law by issuing standalone undertakings in lieu of
lumpsum payments, by ordering payment thereof to be made in instalments, or by
reimbursing the second plaintiff “upon invoice”.28
[57] The top up and claw back provisions of the trust proposed in the defendant’s
draft order also represent a drastic break with the customary provisions of such a
trust instrument that have thus far been permitted by the courts only in matters
where the parties have consented thereto through extensive settlement negotiations.
[58] The public healthcare defence and its constituent parts raised by the
defendant can only be entertained by a court after hearing relevant and appropriate
evidence on the particular issue. In the absence thereof, the court is left with no
other option but to apply the normal common law principles and expectation of a
lump sum payment.
[59] Even accepting (for purposes of argument) that TN has developed the
common law as suggested and that it is not necessary for this court to do so again
(a proposition that the Supreme Court of appeal may well determine in the
defendant’s favour in the defendants appeal to it against the decision in TN) , the
defendant is still expected to adduce cogent and appropriate evidence as to the
suitability of the proposed alternat ive undertaking and how it will work in
practice.
[60] I assume that in the final round of these proceedings the defendant does
intend to adduce evidence both in support of the fact that the rest of the services
28 See in particular AW at [84] –[85] referencing the failed attempt by the Gauteng Health Department to attempt
something similar 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).
can be provided in the public healthcare secto r (hence at no or at a lesser cost to
her than in the private healthcare sector), as well as in support of the public
healthcare defence raised by her, more especially regarding the suitability of the
remedies which she proposes should be substituted in t he place of a lumpsum
damages award for the services required. Indeed Mr. Nyangiwe prefaced in his
closing arguments that this court is not presently required to deal with the
suitability of the hospital providing the balance of the required medical treat ment
to the second plaintiff, but that the defendant would cross that bridge as it were
when she arrived at the postponed hearing. This amounts to an acknowledgement,
even premised on the defendant’s understanding of the application of TN, that it is
not expecting a copy and paste application of the fit in that scenario to the facts of
the present claim for the balance of the future medical expenses.
[61] In my view the current issues for consideration should have remained under
the compass of all the anticipated future medical expenses. This may have obviated
the quandary the defendant faces in this separated hearing, hoping to controvert the
second plaintiff’s prima facie case made out for her entitlement to the loss suffered
by her for three subsets of her claim for future medical expenses in the form of a
lumpsum payment, on the basis of argument alone.
[62] On the issue of the fact that proof is required and the nature of it, at least two
other judgements of this Division bear mentioning.
[63] In Phumla Stafana-Sohopi v The MEC for Health (“Sohopi”)29 the parties in
a like claim for damages settled liability and quantum, but could not agree on the
29 Unreported judgment of Smith J of the Bhisho High Court in case no 330/2019, delivered on 13 December 2022.
method of payment. The defendant, averring financial difficulties and the inability
to pay the damages in one lump sum, proposed to pay the damages in instalments.
The plaintiff rejected this offer. In determining the issue whether the defendant
should be permitted to pay the damages in instalments, it was contended on her
behalf that it is public knowledge that the Department is in a financially precarious
position and consequently unable to pay damages awarded against it in a lump
sum. Counsel for the Defendant refer red in this regard to MEC for Finance,
Eastern Cape and others v Legal Practice Council and Others (“MEC for
Finance”),30 in which the court acknowledged the Department's precarious
financial situation, describing it as a “cause for concern”.
[64] Counsel for the defendant (in Sohopi) made capital of this acknowledgement
in MEC for Finance that the defendant had demonstrated the severe fiscal
constraints imposed on the Department against its acceptance that a system of
periodic payments is not irreconcilable w ith the high value that the Constitution
ascribes to socio -economic rights. He argued that since it is a “ matter of public
knowledge” that the Department's financial position is so precarious that it is
unable to pay monetary awards in one lump sum, his cl ient was not required to
lead any evidence in this regard. The defendant consequently contended for the
development of the common law principles regarding the award of damages which
would permit the payment of damages in instalments.
[65] The court did not agree with these submissions. It noted that the court’s
comments in MEC for Finance regarding the Department's precarious financial
30 (2091/2021) [2022] ZAECMKHC 58; [2022] 3 All SA 730 (ECG); 2023 (2) SA 266 (ECMk) (21 June 2022)
position were made by it in the context of the circumstances of that matter. It
qualified that “they cannot be applied by rote to all cases where such a defence has
been pleaded”. Further and in any event, in the light of the relatively small sum of
damages awarded in the matter before it, at least in a fiscal context, the court
observed that it was inconceiv able that the defendant would be able to establish
inability to settle the judgement debt in a lump sum.
[66] The court was further mindful of counsel for the plaintiff’s submission
before it that a prayer for periodic payments constitutes a special defence to the
“once and for all ” damages rule which has to be properly pleaded. In MEC for
Finance the court had also emphasized that evidence must be led to substantiate
such a defence and that it must, “ after consideration of all the relevant evidence
craft an appropriate remedy for the individual plaintiff ”. The court furthermore
cautioned that “ each individual case must be considered on the basis of the
particular circumstances pertaining to it.” Further, and in any event, so the court
went on, the defendants liability to comply with court orders sounding money is
stipulated for in section 3 (a) of the State Liability Act, No. 20 of 1957, which
provides 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 judgment creditor and the accounting officer of the
department concerned. The court held that since the plaintiff did not agree to
different time periods for the settlement of the judgment debt that the defendant
was accordingly compelled in terms of the statutory inju nction to pay the debt
within 30 days of the order becoming final. It held further that the defendant had
also not established a factual basis for the contented development of the common
law or deviation from the provisions of the State Liability Act. It thus concluded
that it was not at liberty to grant the order allowing the defendant to settle the
judgement debt in instalments.
[67] In BN obo AN v Member of the Executive Council for the Department of
Health Eastern Cape 31 the court was similarly invited to determine whether the
defendant should be permitted in law to satisfy a final court order sounding in
money in periodic payments - citing the same dilemma of its being in a precarious
financial position and having to contend with an ever - diminishing equitable share
of the national revenue as well as the reason sought to be promoted in the present
action and several other like cases that payment of a lump sum of the agreed
damages would materially and detrimentally impact the Department's ability to
discharge its statutory and constitutional obligations to provide access to health
care for everyone, and to deliver public health care services to the inhabitants of
the Eastern Cape province. Also contended for in that matter is that it would be in
the interests of all persons who require access to public health care services that the
compromised damages be paid in instalments. Similarly, the defendant adduced no
evidence to support the relief sought by her. 32 The court emphasized that a prayer
for periodic pay ments as an alternative way of satisfying a final court order
sounding in money (which is how a standalone undertaking to pay may well be
construed) is a special defence that must be pleaded and evidence led to establish
31 (1013/2021) [2025] ZAECMHC 20; [2025] 3 All SA 420 (ECM) (25 March 2025) , at [13].
32 The court noted what sort of evidence would be essential to be led in this respect, as follows:
“This evidence, according to Mr. Bodlani, would be in relation to:
(a) How the lumpsum payment. specifically in medical negligence claims and not in other claims against
it, materially and detrimentally impacts on its ability to discharge its obligations.
it, materially and detrimentally impacts on its ability to discharge its obligations.
(b) What short falls it incurred in the financial year and their impact on its ability to discharge its
obligation to provide access to healthcare to everyone in the Eastern Cape Province.
(c) The effect of the historic payout of excessive amounts for medico -legal claims over the years on the
Eastern Cape Government’s equitable share of national revenue in the medium -term economic framework,
the accruals and payables.
(d) The dire implications of any budgetary shortfalls on the Eastern Cape Department of Health’s ability
to render health services.”
the defendant’s entitlement to the claim of making payment of damages in
instalments. It was satisfied though that the law permits an alternative to a
lumpsum payment norm “ where a case has been made for such relief ”. However,
the court concluded that no case had been made out before it:
“[33] Whether the defendant has, in this matter, made out a case for an order that she pays
the agreed damages in periodic payments it the question I turn to next. In this regard, it was
contended on behalf of the plaintiff that since no evidence has been led by the defendant to
substantiate the relief it seeks, her case in that regard must fail.
[34] Regarding how the defence of periodic payments must be asserted, the court,
in MEC Finance33 went further and said:
‘[69] The prayer for periodic payments constitutes a special defence to the “once and for all”
rule, which must be properly pleaded. Evidence must be led to substantiate the defence and
the court must, after consideration of all the relevant evidence craft an appropriate remedy
for th e individual plaintiff. This will require an assessment of medical evidence as to the
nature and condition of the injured party, the extent of the immediate need, which would vary
from one victim to another, the time of the likely future need and the exten t and time of the
relevant instalments. Each individual case must be considered on the basis of the particular
circumstances pertaining to it.’
[35] That the defendant, in its plea, pleaded the defence of periodic payments of any award
of damages is not subject to any controversy. However, in the stated case presented, there are
no agreed facts between the parties regarding, inter alia, the extent of the AN’s immediate
need, and what the proposed first instalment will be able to cover of the agreed damage s.
Neither are there any facts which provide a factual basis for the contention that the defendant
makes that paying the lumpsum of the agreed damages in this case will materially and
makes that paying the lumpsum of the agreed damages in this case will materially and
detrimentally impact its ability to discharge its statutory and constitu tional obligations of
providing access to health care to the inhabitants of the Eastern Cape Province.
[36] Smith J, in Phumla Stafana Sohopi v MEC for Health, reiterated that factual basis must
be laid for the deviation from statute which a party conten ds for. 34 The Learned Judge
cautioned against mechanically applying to all cases involving medical malpractice the
approach of an acceptance as a general position that the Department of Health’s precarious
financial position is public knowledge, and theref ore no evidence need be led to substantiate
the defence of periodic payments. The Learned Judge put it this way:
‘The comments regarding the department’s precarious financial position cannot be
33 Supra
34 Supra at
applied by rote to all cases where such a defence has been pleaded. . .’35
[37] The defendant has agreed to compensate the plaintiff not in kind as in the sense of the
public health care defence, but in monetary terms to the extent agreed by the parties in the
draft order that I was presented with. A general, unsu bstantiated assertion regarding her
budgetary constraints and obligation towards other beneficiaries of the right enshrined in
section 27 does not assist her. This is not to say it is not acknowledged that the defendant’s
coffers continue to be significant ly affected by the extent of medical malpractice
litigation. But as Eksteen J observed in MEC Finance, it is quintessential of any enterprise
that the payment of its debt will result in less money for the implementation of its business.
[38] Therefore, w ithout any evidential basis for the periodic payments contended for, it
cannot be just to accede to the defendant’s request in this case, for that would mean that AN’s
interests have arbitrarily been relegated to insignificance. For this reason, the defend ant’s
request for an order that she pays the agreed damages set out above in instalments must be
turned down.”
[68] The final conclusion highlighted above commends itself to me.
[69] Absent any evidence on the suitability of the proposed standalone remedy of
the two proposed undertaking, there is no reason to depart from the common law
approach regarding the proof of the second plaintiff’s claim in this respect. It is
not known where the money will come from and if there will be money in future to
pay for th ese expenses. There is simply no evidence before the court that the
undertaking sought by the defendant suits the needs of the second plaintiff, or that
demonstrates that a lump sum payment upfront is unreasonable and inappropriate,
or that provides an assurance that the undertakings will promptly be reimbursed.36
[70] In short, there is no evidence before the court which displaces the prime
[70] In short, there is no evidence before the court which displaces the prime
facie evidence of the second plaintiff for compensation of her agreed mobility costs
35 I have referenced this observation under the discussion above of the Sohopi matter.
36 AW, Supra, at [84] –[85]. I mention as an aside that although both parties referred me to the reasons furnished in
S M v Member of Executive Council for Health, Eastern Cape Province (1433/2015) [2024] ZAECMHC 15 (18
March 2024) in respect of the Department’s failu re to have succeeded in persuading the court that it should be
permitted to put up caregiving services itself in lieu of paying a lump sum in respect of such services, the
undertaking conceptualised in casu is of an entirely different nature.
and caregiving services (at the actuarialized projection of these) to be paid in a
monetary award upfront.
Contingencies:
[71] On the issue of the contingencies which Mr. Nyangiw e suggested should be
applied (as an alternative to accepting his proposition that this court can instead of
ordering the defendant to pay a lumpsum permit her to furnish the standalone
undertakings to pay), I am satisfied concerning the second plaintiff’s proven
accommodation costs, that this is an imminent expense and that no contingency
deduction ought to be made thereagainst in this respect.
[72] Regarding the mobility/transport expenses, however, I am inclined to agree
that a contingency factor should be a pplied against the prospect that the second
plaintiff may not require an upgrade of her first motor vehicle during her lifetime.
In this regard I am satisfied that a contingency deduction of 15% is reasonable
against the amount which is nett of the proven cost of the first motor vehicle and
its adaption.
[73] So confident was the defendant in her belief that an undertaking to pay for
caregiving services on an invoice basis was for the mere asking, that no
contingency deduction was proposed in respect of the pr ojected award for these
anticipated services. However these needs were costed conservatively and there is
no room for such services to be dispensed with, which in the private sector come at
a considerable premium. There is no reason in my view to adjust this loss.
Conclusion:
[74] The failure of the defendant to lead any evidence in support of its defences
(the public healthcare defence and standalone undertakings to procure and or pay
for services) precludes this court from entertaining any aspect of the d efendant’s
pleaded defences. Contrariwise, I am satisfied that the second plaintiff has
established that she is entitled to all the agreed and proven damages set out above,
payable in a lump sum monetary award.
Order:
[75] In the premises, and with the assent of the curator who confirmed that the
order proposed is in the second plaintiff’s best interest, the following order issues :
1. The defendant shall pay the second plaintiff the amount of R12 191 393.00 which is
made up as follows:
1.1 Loss of earnings – R1 896 101.00
1.2 Accommodation/Housing – R2 343 990.00
1.3 Mobility – (1) R655 000.00
(2) R942 307.0037
1.4 Interim case manager’s fee – R50 000.00
1.5 Caregivers – R5 453 433.00
1.6 Costs of administration of trust
@ 7.5% of total monetary award – R850 562.00.38
37 The lesser actuarial figure is R2 343 990.00 minus the immediate outlay for the first motor vehicle of
R655 000.00 leaving a balance of R1 108 596.00. A contingency deduction of 15% is applied against the net
amount of R 942 306.60, rounded off to the nearest rand.
38 The total monetary award is R 11 340 831.00.
2. The amount referred to paragraph 1 shall be paid within 30 calendar days of this
order.
2.1. In the event that the defendant fails to pay the amount referred to in
paragraph 1, within 30 calendar days of the order, the defendant shall be
liable to pay interest thereon at the prescribed rate of interest.
3. The Defendant shall pay Second Plaintiff’s costs of suit (on the High Court scale) to
date hereof, such costs to include:
3.1. the costs of two counsel (Scale C).
3.2. the costs attendant upon the obtaining of payment of the full sums including
any interest referred to in paragraphs 1, 2, 3 and 4.
3.3. the cost s associated with the appointment of a curator ad litem for and on
behalf of the second plaintiff as well as the costs associated with the creation of
the trust referred to herein.
3.4. the costs incurred in obtaining the medico -legal reports including
supplementary reports, addendums, actuarial reports and joint minutes, as
well as, where necessary, the qualifying, attendance, reservation and
preparation fees of:
Sue Anderson (Nursing)
Retha Milne (mobility expert)
Tabisa Caga (Occupational Therapy)
Bulelani Ketsekile (Architect)
Dr Robert Campbell (Life Expectancy)
A Sakonda (Industrial psychologist)
Tsebo Actuaries (Actuary)
4. The defendant shall pay interest on the aforesaid costs at the current prescribed legal
rate of interest from date of allocatur or agreement to date of payment thereof.
5. The amounts referred to in paragraph 1, and any interest referred to in paragraph 2.1;
all costs referred to in paragraph 3; and interest referred to paragraph 4, shall be pai d
to the second plaintiff’s attorney’s trust account with account details as follows:
ABN ATTORNEYS TRUST ACCOUNT
BANK: FIRST NATIONAL BANK
ACCOUNT NO: 6[…]
BRANCH: VINCENT, EAST LONDON
6. The net balance remaining, after recovery of all amounts owing in terms of this order
and payment of all costs and expenses for which the Plaintiffs are liable, shall be
dealt with on the basis that the Second Plaintiff’s attorneys shall transfer the said net
balance thereof to the “Y… P… D… Trust” 39, which trus t shall be established and
registered in accordance with the terms set out herein:
6.1 within 60 calendar days from upliftment of this order the trust shall be
established in accordance with the Trust Property Control Act No. 57 of 1988,
such Trust to be a “special trust ” as defined in Section 1 of the Income Tax
Act, No. 58 of 1962 (as amended) and to report to this court for further
direction should the necessary letters of authority not have been issued within 6
months hereof.
6.2 to pay all monies, to be hel d in trust for the benefit of the second plaintiff
(hereinafter referred to as “ the beneficiary ”), to the trust upon registration of
the trust.
7. The trust instrument shall make provision for the following:
7.1 That the beneficiary shall always be the sole beneficiary of the trust.
7.2 That the trustee(s) and their successors are to provide security to the
satisfaction of the Master.
39 The full moniker of the trust to be established is withheld to protect the identity of the vulnerable second plaintiff.
7.3 That the powers of the trustee(s) shall specifically include the power to make
payment from the capital and income for the reasonable maintenance of the
beneficiary, or for any other purpose which the trustee(s) may decide to be in
the beneficiary’s interest, and if the income is not sufficient for the aforesaid
purpose, that the trustee(s) may utilise capital.
7.4 That the ownership of the trust property vests in the trustee(s) of the trust in
their capacity as trustees.
7.5 Procedures to resolve any potential disputes, subject to the review of any
decision made in accordance therewith by this Honourable Court.
7.6 The exclusion of all benefits (in come and/or capital) accruing to the second
plaintiff as beneficiary of the trust from any community of property and/or
accrual system in any marital regime.
7.7 That the amendment of the trust instrument be subject to the leave of this
Honourable Court.
7.8 The termination of the trust upon the death of the beneficiary, in which event
the trust assets shall pass to her estate.
7.9 That the trust property and the administration thereof be subject to an annual
audit.
8. Until such time as the trustees are able to take control of the capital amount and to
deal therewith in terms of the provisions of the trust, the second plaintiff’s attorneys
are authorized and ordered to pay from the capital amount:
8.1. Any reasonable payments that may arise to satisfy any reasonable need f or
treatment, therapy, care, aids, equipment or otherwise that may arise.
8.2. Such other amounts as reasonably indicated and/or required for the wellbeing
of second plaintiff and/or which are in her best interests.
8.3. The attorneys shall be entitled, only to the extent that the beneficiary’s primary
reasonable needs indicated in paragraphs 8.1 and 8.2 above are not
compromised, to make payment of expenses incurred in respect of accounts
rendered by expert witnesses as identified in this order as well as counsel’s fees
rendered by expert witnesses as identified in this order as well as counsel’s fees
from the aforesaid funds held by them for the benefit of the second plaintiff.
8.4. The attorneys shall be entitled, only to the extent that the beneficiary’s primary
reasonable needs indicated in paragraphs 8.1 and 8.2 above are not
compromised, to payment from the aforesaid funds held by them for the benefit
of the second plaintiff of their fees in accordance with their written fee
agreement.
9. Until such time as the trust is established, the aforesaid award shall be paid to the
second plaintiff’s attorneys to be invested in an interest -bearing account in terms of
section 86 of the Legal Practice Act, No. 28 of 2014 and in due course to account f ully
to the trustees appointed, of all costs, fees, expenditure and/or disbursements paid from
the award once the Trust has been registered and the balance of the award is paid over.
10. The issue of the plaintiffs’ remaining claims for future medical expens es is postponed
sine die.
_________________
B HARTLE
JUDGE OF THE HIGH COURT
DATE OF HEARING : 10 & 13 March 2025
DATE OF JUDGMENT : 14 October 2025
Appearances:
For the plaintiff: Mr. C McKelvey together with Mr. B Ndamase instructed by ABN Attorneys,
East London (Mr. Nyeniso).
For the defendant: Mr. X Nyangiwe instructed by The State Attorney, East London c/o Shared
Legal Services, King William’s Town (Mr. Mgujulwa).