SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2015-21739
In the matter between:
M[…] K[…] P[…] OBO O[…] M[…] Applicant
and
THE MEMBER OF THE EXECUTIVE COUNCIL FOR
HEALTH OF THE GAUTENG PROVINCIAL GOVERNMENT Respondent
This Judgment was handed down electronically and by circulation to the parties’ legal
representatives by way of email and shall be uploaded on caselines/courtonline. The
date for hand down is deemed to be on 16 February 2026.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
MOGOTSI AJ
Introduction
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED:
........................... ...................................
DATE SIGNATURE
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[1] This matter arises from a medical negligence claim instituted against the Member
of the Executive Council (MEC) for Health, Gauteng Provincial Government.
Background
[2] The minor child, O[…] M[…] , suffers from cerebral palsy and related sequelae
sustained at birth due to the negligent conduct of public healthcare practitioners at
Mamelodi Hospital. The applicant , K[…] P[…] M[…] , in her representative capacity as
the mother of the minor child, instituted an action for damages against the respondent.
[3] The litigation culminated in a settlement order granted by this court on 18 April
2024 in terms of which the respondent undertook to provide specific, urgently required
medical and therapeutic services and devices to the minor child within three months
(the deadline).
[4] The order contained an enforcement clause which stipulated that if the
respondent failed to meet the deadline, the applicant would be entitled to apply to court
for a monetary order for the capitalised value of the unprovided services and items.
[5] The respondent failed to comply with the settlement agreement. Consequently,
the applicant launched the present application to enforce paragraph 8 of the court order,
seeking an order for the payment of the agreed capitalised sum of R1,629,230.00.
The issue
[6] The core issue is whether the applicant is entitled to the specific contract ual
remedy resulting from the respondent's failure to provide the servic es or items before
the deadline.
The Applicant’s submissions.
[7] Firstly, the applicant’s counsel submitted that this is a straightforward application
to enforce a clear remedy within a court order dated 18 April 2024. The application is
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premised on a court order which explicitly states that if the r espondent fails to comply
within three months, the a pplicant is entitled to apply for a monetary order for the
capitalised value of the unprovided services or items.
[8] Secondly, counsel submitted that the r espondent has admitted to failing to
provide required medical services and devices by the court -ordered deadline of 18 July
2024.
[9] Finally, counsel submitted that the respondent raises no legally valid defence and
the respondent’s only excuse is an internal miscommunication between departments,
which is not a ground of justification.
Respondent's submissions
[10] The pith of the respondent’s opposition to the application is that the application is
premature, based on a misinterpretation of the court order, and seeks to monetise
healthcare unjustly.
[11] Secondly, the respondent submitted that it should be afforded another chance to
comply because its failu re to comply with the court order is due to an innocent
miscommunication, not bad faith, asserting that the r espondent is now actively planning
treatment through Steve Biko Hospital.
[12] The respondent further contends that the application is incompetent because,
paragraph 8 of the order only allows the applicant to claim payment
for specific items not provided.
[13] Finally, the r espondent argues that the court should allow the state to fulfil its
constitutional obligation to provide healthcare in k ind through public facilities rather than
ordering monetary payments that drain state resources. The respondent asserts that the
application falls to be dismissed with punitive costs against the a pplicant for bringing a
frivolous claim.
Analysis
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[14] The applicant's case is rooted in the plain text of a court order which was made
as per agreement between the parties. The said order is unambiguous about the
deadline and the consequent remedy for non-compliance.
[15] The clause's purpose, read in context, is clearly to provide a final, alternative
remedy if the state fails to deliver the services or items by the deadline. The clause is
triggered by failure, not by wilful contempt. Consequently, the argument that p aragraph
8 only applies to piecemeal non-compliance is, in my view, not persuasive.
[16] The excuse of internal miscommunication is offered without a detailed
explanation or accountability, and this, in my view, is a last -ditch effort by the
respondent to avoid the financial consequences of its systemic failure.
[17] To compound the r espondent’s difficulties regarding the excuse of
miscommunication, it had the order for months, received reminders, and failed to take
substantive action.
[18] I am duty-bound to follow the Constitutional Court jurisprudence that the state, as
a pri mary agent of the Constitution, must be held to the highest standard in obeying
court orders.1
[19] Furthermore, I am duty-bound to follow precedent laid in the matter of Bell K obo
M S Bell v The MEC for Health Gauteng2 handed down by my brother Twala J on 27
march 2024 which involved the same defendant, a similar court order, a similar failure to
comply, similar excuses, viz, administrative issues, and the same requested remedy.
[20] It follows that the application is bound to succeed.
Costs
[21] It is trite law that costs must follow the results, and I have no reason to deviate
because the respondent has failed to adhere to its Constitutional mandate in a delicate
1 Nyathi v Member of the Excutive Council for the Department of Health Gauteng and Another [2008] ZACC 8, 2008
(5) SA 94 (CC), 2008 (9) bclr 865 (CC).
2 Bell K obo M S Bell v The MEC for Health, Gauteng (Case number 2013/43383).
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matter, with regard to the position of the minor child. I am, therefore, of the view that the
respondent must be mulcted with a punitive cost order.
Order
[22] I therefore make the following order:
1. The draft order marked “X” is made the order of the court.
______________________________
P J M MOGOTSI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
Counsel for applicant: Adv. M. Coetzer (martincoetzer@vodamail.co.za)
Attorney for applicant: Wim Krynauw Attorneys Inc. (janelle@wkattorneys.co.za)
Counsel for respondents: Adv. M. Mhambi (mhambi@vmxenge.co.za)
Attorney for respondents: The State Attorney – Johannesburg (KMaile@justice.gov.za)
Date heard: 09 February 2026
Date of Judgment: 16 February 2026