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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 28157/2019
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between:
T[… ] N[...]
ADVOCATE JOHAN KILIAN N.O., obo N[...] (M[...]), N P
First Plaintiff
Second Plaintiff
and
MEC FOR HEALTH AND SOCIAL DEVELOPMENT:
GAUTENG PROVINCE Defendant
JUDGMENT
Mfulwane, AJ
Introduction
[1] This is a judgment on quantum in a matter where the Defendant has conceded
100% liability for damages suffered by the minor child, N[...] P[...] M[...] (“N[...]”),
arising from severe brain damage sustained due to negligence during her birth.
The matter set down for a ten day hearing of evidence. It was concluded after 4
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(four) days of evidence and argument and now is before this Court for the final
determination of the capital award.
[2] The Second Plaintiff, Advocate Johan Kilian, was appointed as the Curator ad
Litem to represent the minor child’s interests throughout these proceedings.
[3] The parties have commendably reached agreement on several significant
heads, including the minor child’s life expectancy (31 years) and the Loss of
Earnings (R1,974,926.00) and the amounts of R13,653,418.83 in respect of the
claim for future medical, hospital and related expenses, after the deduction of
the agreed 10% contingency, as set out in (Annexures 'A1').
[4] The Defendant has also agreed to provide an extensive list of specific medical
services and good at designated public hospitals as detailed in the schedule
marked “Annexure B”. The Plaintiff has in principle, agreed to accept this
provision (the “public healthcare remedy”) but reserves her right to claim
monetary compensation should the Defendant fail to meet these commitments.
[5] The issues remaining for determination by this Court and which constitute the
final cash component of the award, are the quantum for:
a) General Damages.
b) The cost of Schooling.
c) The cost of House Alterations.
d) The necessity for and cost of establishing a trust and
e) Whether the common law should be developed to allow for periodic
payment of the capital amount, rather than a lump sum.
Analysis of Determined Heads of Damages
A. General Damages
[6] This is the most significant and complex issue in dispute. The Plaintiff claims
R3.5 million, arguing for an award of R2.6 million based on comparable
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cases. The Defendant argues, in the first instance, that no award for general
damages should be made. In the alternative, the Defendant suggests a
nominal award of R500,000.
[7] The Defendant's primary submission relies heavily on the recent Supreme
Court of Appeal (SCA) judgment in MEC for Health: Gauteng v AAS obo
CMMS. ZASCA
1. In that matter, the SCA overturned an award of general
damages, finding that the minor child was in an "unconscious state." The
Defendant argues that "unconscious" in this context does not mean
comatose, but rather a lack of intellectual appreciation of suffering or loss.
The Defendant contends that where a child is in such a state, no award for
pain and suffering is competent and an award for loss of amenities of life
serves no functional purpose, especially where special damages already
provide for all the child's needs.
[8] The Defendant supports this argument by drawing extensive parallels
between the expert reports in AAS and the reports in this matter. Indeed, the
paediatric neurologists (Dr Keshave and Dr Mogashoa) are the same in both
cases and their diagnoses are strikingly similar: microcephalic mixed cerebral
palsy, GMFCS Level V, global developmental delay, intellectual disability and
profound physical dependence. Based on this comparison of reports, the
Defendant argues that N[...], like the child in AAS, is in an "unconscious state"
and thus entitled to no general damages.
[9] The Plaintiff argues that AAS is distinguishable on the facts. The Plaintiff's
counsel submits that N[...] is not "unconscious" in the AAS sense. The critical
difference between this case and AAS is that this Court heard viva
voce evidence from N[...]'s father, Mr T[ …] M[...] and the Plaintiff's
occupational therapist, Ms Kirsten Du Toit. The Defendant, by contrast, led no
oral evidence to rebut their testimony, relying instead on a comparison of the
written expert reports.
written expert reports.
1 MEC for Health, Gauteng Provincial Government v AAS obo CMMS [2025] ZASCA 91 (20 June
2025). The majority judgment was authored by Makgoka JA (with Goosen JA and Dawood AJA
concurred), while the minority judgment was penned by Kgoele JA (with Baartman AJA concurring).
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[10] Mr M[...]'s evidence was clear and compelling. He described a child who,
while profoundly disabled, is interactive. He testified that she responds to
sounds, particularly his voice and can lift her head when her name is called.
He described how she communicates her likes and dislikes through sounds
and gestures and how she smiles and experiences pleasure. Ms Du Toit's
evidence corroborated this. She testified that N[...] is a conscious and
interactive child who experiences pain. This evidence was not seriously
challenged. It paints a picture of a child who, unlike the child in AAS (who was
found to be in a "persistent vegetative state"), possesses what the AAS court
itself termed "twilight moments." She has a limited but definite awareness of
her surroundings and an intellectual, albeit rudimentary, appreciation of her
suffering and her pleasures.
[11] I therefore make the factual finding that N[...] is not in an "unconscious state"
as defined by the majority in AAS. She is aware, feels pain and experiences a
limited range of pleasures and discomforts. The AAS judgment is therefore
distinguishable on its facts and does not preclude an award for general
damages.
[12] Having found that an award is competent, I must determine the quantum. The
Plaintiff relies on several comparable cases, most notably PM obo TM v MEC
for Health, Gauteng
2 a Full Court decision that also distinguished its facts
from cases involving unconscious claimants and awarded R1.8 million (with a
current value of approximately R2.65 million).
[13] N[...]'s life is one of profound disability. She is wheelchair -bound, incontinent
and entirely dependent on others for every aspect of her life. She will never
walk, talk or have the joys of everyday life. She has, however, retained the
capacity to feel pain and discomfort and to experience a limited range of
positive interactions. The damages awarded must provide solace for this
positive interactions. The damages awarded must provide solace for this
existence. The Defendant's alternative submission of R500,000 is, in my view,
unduly low and inconsistent with the line of authorities relating to conscious,
profoundly disabled children. Considering the awards in PM, NK obo ZK v
2Case No A5093/2/2014
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MEC for Health, Gauteng 3 and Khosa v MEC for Health, Gauteng 4 and
adjusting for inflation, I find that a fair and reasonable award for general
damages in this matter is R2,400,000.00.
B. Cost of Schooling
[14] The Plaintiff claims for a private special needs school (Item P67), which Ms Du
Toit clarified in her evidence is more of a stimulation centre. The Defendant
argues for the more affordable public option (Muriel Brand School, Item 66),
which would save approximately R500,000. Ms Du Toit's expert evidence was
that, given N[...]'s very low cognitive function, a curriculum -based school like
Muriel Brand is inappropriate. She opined that N[...] requires a stimulation
centre to meet her specific needs. Any countervailing expert testimony from the
Defendant did not rebut this evidence. While the Court is mindful of the need to
conserve public funds, the award must be for what is reasonably necessary for
the child's care. Therefore, the Court shall only award a reduced allocation
equivalent to 50% of the claimed amount to cover short-term, necessary private
inputs, thereby deferring to the public undertaking for the primary long- term
support. The award for private schooling is therefore limited to R250,000.00.
C. Cost of Alterations to the Family Home
[15] The parties' quantity surveyors met and agreed on the cost of alterations to
N[...]'s father's home in the amount of R1,803,442.06. The Defendant now
argues that this amount is unreasonable, being more than double the purchase
price of the house and involving an outbuilding. The Defendant suggests a cap
of R1.2 million, based on a passage in her own architect's report.
3 CaseLines, Exhibit 14, p 100-284
4 (2017/17) (2018) ZASCA
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[16] This argument cannot succeed. The proper course for a party that wishes to
dispute an agreed expert minute is to repudiate it timeously and lead evidence
to challenge it. The Defendant has not done so. The joint minute of the quantity
surveyors is the best evidence before this Court as to the reasonable and
necessary cost of the required alterations. As held in Bee v RAF
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minutes are binding on the parties in the absence of a timeous repudiation and
contradictory evidence. The Defendant's architect's report does not override
the joint minute of the quantity surveyors.
[17] The net amount, after the 10% contingency deduction is R1,623,097,85
(R1,803,442,06 less 10%). This amount is awarded.
C. The Trust
[18] The Defendant disputes the necessity of a trust and argues that any fees
should be based on hours worked, not a percentage. Given the very substantial
award, N[...]'s profound and permanent disabilities and her minority, the
establishment of a trust to manage the funds on her behalf is not merely
reasonable, it is an absolute necessity. It is the only responsible way to ensure
the funds are protected and used exclusively for her benefit for the rest of her
life.
[19] As to the costs, the Plaintiff claims the "customary" 7.5% for the creation and
administration of the Trust. This practice is well -established in our courts, as
evidenced by the cases cited by the Plaintiff, such as Singh6 and Monyai7 It
provides a practical and certain basis for securing the long- term professional
management required.
[20] Accordingly, I find that a trust is necessary and that an award of 7.5% of the
total capital award for the costs of its creation and administration is reasonable.
5 [2018] ZASCA 52
6 (413/09) [2010] ZASCA 145
7Case No 33807/2021 Gauteng Province (17 September 2025)
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C. Development of the Common Law
[21] The Defendant's final plea is for this Court to develop the common law, in
terms of section 173 of the Constitution, to allow for: a) An "undertaking to
pay" remedy for future medical costs not covered by the public healthcare
remedy and b) the payment of loss of earnings and general damages in
periodic instalments rather than a lump sum. The Plaintiff opposes this,
relying on the Constitutional Court's judgment in MEC for Health and Social
Development, Gauteng v DZ obo WZ
8.
[22] The Court in DZ held that a development of the common law cannot take
place in a "factual vacuum." A party seeking such a development bears the
onus of placing a comprehensive factual matrix before the Court to justify
such a departure from established principles like the "once and for all" rule.
The Defendant in this matter, while referencing the TN
9 case (which is on
appeal), has placed no evidence before this Court to discharge that onus.
There is no evidence on the Defendant's financial position, the systemic
challenges of lump- sum payments, or the feasibility and mechanics of a
periodic payment system. The Defendant elected not to call any witnesses on
this issue.
[23] Without a factual foundation, this Court is in no position to consider such a
"radical departure" from the common law. The DZ judgment binds me. The
Defendant's prayer for the development of the common law to permit an
undertaking or periodic payment must therefore fail.
Order
I accordingly make the following order:
1. The Defendant shall pay 100% to the Second Plaintiff, in his
8 2018 (1) SA 335 (CC)
9 TN obo BN v MEC for Health, Eastern Cape: Case No: 36/2017
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representative capacity on behalf of the minor child, N[...].
2. The Defendant shall pay to the Plaintiff the total capital sum
of R19 901 749.85 comprising the following:
a. R1 974 726.00 in respect of future loss of earnings;
b. R2 400 000.00 in respect of general damages;
c. R13 653 926,00 in respect of future medical and related
expenses after the deduction of the agreed contingency itemised in
Annexure "A1" to the Plaintiff's Heads of Argument;
d. R250 000,00 in respect of the costs of special schooling and
e. R1 623 097.85 in respect of the costs of house alterations.
3. The Defendant shall pay an amount equal to 7.5% (seven and a
half percent) of the total capital sum referred to in paragraph 2
above, in respect of the costs for the creation and administration of
a Trust, which shall include the First Plaintiff , that is the mother of
the minor child, N[...], as a Trustee.
4. The total amounts in paragraphs 2 and 3 shall be paid into a trust
account, to be established for the benefit of the minor child, N[...]
within 180 (0ne Hundred and eighty) days of the establishment of
such Trust and the provision of the relevant bank account details to
the Defendant's attorneys.
5. By agreement between the parties the Defendant shall provide the
medical services, goods, and treatment to the minor child as
identified in Annexure "B" to the Plaintiff's Heads of Argument, at
the Tambo Memorial Hospital, Charlotte Maxeke Hospital, and/or
the Wits Dentistry School.
6. Should the Defendant fail to provide any of the services or items in
paragraph 5 above, or should such services or items not be
available or be of a substandard quality, the Plaintiff (on behalf of
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the Trust) is granted leave to approach this Court, on the same
papers, duly supplemented, for an order for the cash equivalent of
such service or item.
7. The Defendant shall pay the Plaintiff's taxed or agreed party -and-
party costs of suit, such costs to include:
a. The reasonable costs of the preparation of all expert-legal reports
and joint minutes of the Plaintiff's experts;
b. The reasonable qualifying and reservation fees, if any, of the
Plaintiff's experts and
c. The costs of two counsel (senior counsel on Scale C and junior
counsel on Scale B) and the Curator ad Litem.
8. The First Plaintiff’s claim for past medical and hospital expenses is
postponed sine die.
___________________________
MFULWANE AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Appearances
Counsel for the plaintiff: Adv G Strydom SC and Adv Viljoen
Instructed by: de Broglio Attorneys Inc
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Counsel for the defendant: Adv. Vas Sonic SC and Adv T. Monene
Instructed by: State Attorney
Date of the hearing: 6 October 2025
Date of the judgment: 7 November 2025