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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 33807/2021
DATE: 6 March 2026
(1)REPORTABLE: NO
(2)OF INTEREST TO OTHER JUDGES: NO
(3)REVISED:
Date: 6 March 2026
Signature:
In the matter between:
M[...], B[...] L[...] obo M[...], K[...] Plaintiff
and
MEC FOR THE DEPARTMENT OF HEALTH AND SOCIAL
DEVELOPMENT, GAUTENG PROVINCIAL GOVERNMENT
Defendant
Coram: M Van Nieuwenhuizen, AJ
Heard on: 8 December 2025
Delivered: 6 March 2026
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JUDGMENT RE DEFENDANT’S APPLICATION FOR LEAVE TO APPEAL
M VAN NIEUWENHUIZEN, AJ:
[1] This is an application for leave to appeal to the Supreme Court of
Appeal, alternatively the Full Court of the High Court, Gauteng Division,
Johannesburg in respect of my “whole judgment and order” dated the
10th of February 2025.
[2] For ease of reference, the parties are referred to herein, as in the action,
i.e. the applicant as the defendant and the respondent as the plaintiff.
[3] Although the notice of application for leave to appeal (“the notice”) refers
to the “whole judgment and order” , this is not correct as conceded to by
the defendant in argument. It is common cause that:
[3.1] liability on the merits was conceded;
[3.2] general damages, loss of earnings/earning capacity, and the
actuarial quantification of future medical expenses on a private
sector basis were agreed between the parties;
[3.3] certain amounts have been paid.
[4] The central issue of the application for leave to appeal is whether K[...]’s
future medical costs should be paid in a lumpsum or whether the
defendant should be allowed to render in -kind public services and effect
period payments.
[5] The Supreme Court of Appeal in TN obo BN v Member of the Executive
Council for Health of the Eastern Cape Government and Others ,1 an
appeal against TN obo BN v MEC for Health, Eastern Cape , 2 the
Supreme Court of Appeal inter alia held that fundamental principles of
the law of damages should be changed by the legislature rather than the
Courts and that Judges should be mindful of the fact that the major
engine for law reform should be the legislature and not the judiciary .
1 (Case No. 383/23) [2026] ZASCA 14 (11 February 2026)
2 2023 (3) SA 270 (ECD)
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The Supreme Court of Appeal held, as follows:
“The development of the common law is inappropriate
[45] The starting point is Mighty Solution s in which the
Constitutional Court said this:
‘Before a court proceeds to develop the common law, it must
(a) determine exactly what the common -law position is; (b)
then consider the underlying reasons for it; and (c) enquire
whether the rule offends the spirit, purport and object of the Bill
of Rights and thus requires development. Furthermore, it must
(d) consider precisely how the common law could be amended;
and (e) take into account the wider consequences of the
proposed change on that area of law.’
[46] The High Court’s development of the common law – based on
an obiter dictum in DZ – is superficially attractive, but in my
judgment, unsound. The court neither considered the
underlying reasons for the rule, nor the wider consequences of
its radical development of the law of damages and the creation
of new kinds of remedies. So drastic a reform, in my view,
should not be made by judges.
[47] Fundamentally, the court disregarded the caution sounded in
Carmichele – reiterated in Mighty Solutions:
‘. . . “[j]udges should be mindful of the fact that the major
engine for law reform should be the Legislature and not the
Judiciary”. The principle of separation of powers should thus
be respected.’
[48] As is evidenced by its judgment, the High Court did not
consider the underlying reasons for the rule. In Evins, Corbett
JA stated that the object of the rule is finality of litigation:
‘The 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.’
[49] The purpose of the rule, Corbett JA went on to say, is ‘to
prevent a multiplicity of actions based on a single cause of
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action and to ensure that there is an end to litigation’. The rule
is not immune from criticism, and lump sum compensation
cannot be perfect compensation for the future. Despite this, a
court is required, with the assistance of an actuary and other
experts, to determine the amount of compensation not only for
past, but also future loss. And the amount it determines is
awarded once and for all:
‘. . . no matter whether or not the envisaged basis for
calculating the future loss or damage subsequently eventuates,
the contemplated contingencies materialize, or any unforeseen
events overtake the claimant, for example, his death earlier
than expected.’
[50] Since it is unreasonable, indeed impossible, to predict with
accuracy the nature and extent of losses that may arise in the
future, damages awarded will sometimes exceed actual future
medical expenses; and at other times be less than those
expenses. In other words, the rule frequently results in over - or
under-compensation, particularly where the claimant survives
beyond the life expectancy estimated at the time of trial; or
alternatively, dies earlier. But this is not new. In retaining the
rule as part of the common law, the courts have confronted the
difficulties and reasoned that the benefits of the rule outweigh
its shortcomings. In essence, the rationale for the rule is
closure for the parties and judicial efficiency. The principle is
that ‘immediate certainty and finality are to be preferred above
deferred precision’. And damages are awarded in a lump sum
‘to prevent the repetition of lawsuits, the harassment of a
defendant by a multiplicity of actions and the possibility of
conflicting decisions’.
[51] The rule thus ensures finality and protects parties against
multiple, piecemeal actions for damages, thereby ensuring
fairness to both parties. Defendants are not subject to
potentially endless, intermittent and indeterminate claims,
which are difficult to plan for. And plaintiffs are not required to
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bring claims every time they wish to obtain part of the relief,
which a court has already granted them. Yet that is precisely
the effect of the High Court’s order. This also shows that the
court failed to consider the wider consequences of its
development of the common law.
[52] The public healthcare remedy is a case in point. The defendant
was ordered to provide the child, for the duration of his life,
with all services, consultations, therapies, surgeries, supplies,
supplements, medicines, devices and equipment at the
following hospitals in the following order of priority: CMH, FH or
a public hospital nominated by the public case manager in
consultation with the child’s private case manager (in which
case the defendant must provide transport). These medical
services and supplies are required to be of a reasonable
standard. If the plaintiff fails to arrive with the child at a
scheduled appointment for a medical service or fails to collect
a medical supply, the defendant will be deemed to have
complied with her obligations under the order.
[53] Arising from this remedy, there will certainly be disputes that a
court will have to resolve on each occasion that a service,
treatment, medication, device or equipment becomes
unavailable – for whatever reason – and a dispute arises. The
court will be called upon to decide: (i) whether the injury being
treated or the medical supply sought is a consequence of the
harm initially suffered by the child; (ii) whether the medical
service or supply is of a reasonable standard; (iii) whether the
defendant in fact failed to deliver the required service,
medication or equipment; (iv) and whether that failure was
wilful or negligent.
[54] The same applies to the undertaking to pay remedy. In terms
of this remedy, the defendant was ordered, at her election, to
procure medical services and supplies in the private healthcare
sector, ‘to be provided timeously whenever it is required’, in
relation to day -care and permanent residential facilities;
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caregivers; washing machines; and a private case manager
and home visits by that manager. Undoubtedly, there will be
disputes about whether the defendant exercised her election
fairly, lawfully or reasonably; and whether medical services or
supplies were required or rendered timeously.
[55] What all of this shows, is that open-ended remedies undermine
finality, and repeated disputes increase legal costs. The result
is continuous litigation, and an increased burden on the parties
and the court system. And courts could become long -term
administrators of public healthcare, rather than adjudicators.
[56] The rule is designed precisely to prevent these issues from
ever arising. It does so at the cost of perfect accuracy in
calculating damages, but for important reasons related to the
administration of justice. Little wonder, then, aware of future
uncertainty in assessing damages, this Court stated that ‘[n]o
better system has yet been devised for assessing general
damages for future loss’.
[57] The High Court neglected to consider the basic justifications
for the rule, as well as the broader implications of its wholesale
reform, as the discussion above makes clear. In addition, it
disregarded the factors that it was obliged to take into account
in accordance with Mighty Solutions.
[58] I turn next to the question that the rule – a fundamental
principle of the law of damages – should not be changed by a
court, but only by the legislature. The High Court stated that
the Court in DZ ‘did not, however, regard this consideration as
closing the door on the development of the common law’. It
noted that a draft bill had been presented to Parliament for the
amendment of the State Liability Act to permit periodic
payments and orders to provide treatment to an injured party in
the public health sector. The court followed the approach in
MSM, namely that a litigant does not have to wait for
Parliament to adopt the amendment, since the rule is judge -
Parliament to adopt the amendment, since the rule is judge -
made and it was appropriate for a court to develop it.
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[59] But that is a misconception of the principle of separation of
powers and the role of the judiciary. To begin with, in the case
of DZ itself, Froneman J repeated the warning that the major
engine for law reform is the legislature. The High Court
embarked on a radical departure from an established principle
in which controversial issues on resources and social policy
were at stake. Such policy considerations are matters for
Parliament, not the judiciary.
[60] In this regard, the decision of the Supreme Court of Canada in
Watkins, referred to in DZ, is instructive. There, the appellant,
who was rendered a quadriplegic in a motor vehicle accident,
was awarded a lump sum payment, which included damages
for loss of earning capacity in the future and damages for
future care. The Court of Appeal set aside the lump sum award
for future care and ordered in its stead that the provincial
government pay the plaintiff a monthly payment adjusted
annually for inflation, subject to deductions for ongoing care
which the plaintiff might receive from the provincial
government. One of the issues was whether the Court of
Appeal erred in substituting periodic payments for a lump sum
award.”
[6] The SCA concluded in paragraphs 109 and 110 of the judgment that:
“[109] The High Court’s development of the common law in terms of
ss 39 and 172 of the Constitution, is no ‘incremental
development’: it constitutes structural reform of the law of
damages. A radical change to the law of damages must be
made by the legislature and be applied within a uniform
national framework. Consequently, MSM was wrongly decided
and should not be followed.
[110] On the Department’s own version, the remedies are uncertain
and insecure. This is inconsistent with the principle of law that
a claimant must be fully (and effectively) compensated for the
loss suffered as a result of the defendant’s delict. The High
Court’s order is inappropriate; even well -intentioned judicial
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innovation can cause greater injustice where, as here, the
court lacks institutional competence, and the efficacy of the
remedies is doubtful. The appeal must therefore succeed.”
[7] One of the main issues in the judgment of TN obo BN v MEC for Health
Eastern Cape 3 were whether the common law should be developed to
accommodate the DZ defences. I referred to the aforementioned
judgment and decided against following it.
[8] The facts of this matter are on all fours , in material respects , with the
facts of the TN obo BN v MEC for Health, Eastern Cape matter.
[9] This Court’s finding is consistent with the Supreme Court of Appeal’s
finding.4
[10] Accordingly, no reasonable prospect exists that another Court may find
in the applicant’s favour considering that the central issue in this matter
has been decided by the Supreme Court of Appeal in its aforementioned
recent judgment.
[11] The application for leave to appeal is dismissed with costs on Scale C,
including the costs of two counsel.
______________________________________
M VAN NIEUWENHUIZEN
Acting Judge of the High Court of South Africa
Gauteng Division, Johannesburg
Delivered: This judgment was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation
to the Parties/their legal representatives by email and by uploading
it to the electronic file of this matter on CaseLines. The date for
3 2023 (3) SA 270 (ECD)
4 In particular paragraph 110 of the SCA matter
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hand-down is deemed to be on 6 March 2026.
______________________________________
HEARD ON: 8 December 2025
DATE OF JUDGMENT: 6 March 2026
FOR PLAINTIFF/RESPONDENT:
D T v R du Plessis SC
A Naidoo
INSTRUCTED BY:
Enver Swartz
E-mail: enver@eswartzattorneys.co.za
FOR DEFENDANT/APPLICANT:
Adv V Soni SC
N Kekana
INSTRUCTED BY:
Office of the State Attorney, Johannesburg
North State Building, 8th Floor
95 Albertina Sisulu Street
Johannesburg
Kgotso Maile
Ref: 2296/21/P7
E-mail: kmaile@justice.gov.za