REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 1349312018
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
t>'6/a6/~'"2t ~ --
DATE SIGNATURE
In the matter between:
MEMBER OF THE EXCUTIVE COUNCIL
FOR HEAL TH, GAUTENG
and
RSL obo TM
Applicant
Respondent
Delivered: The matter was heard via Microsoft Teams and the judgment was prepared
and authored by the judge whose name is reflected herein and handed down
electronically by circulation to the parties' legal representatives by email and uploading
it to the electronic file of this matter on Caselines. The date and time of handing down
is deemed to be 11:00 on 8 June 2026.
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
SKIBI, AJ
1
[1] This is an application for leave to appeal against the whole judgment of this
Court delivered on 26 January 2026, where the applicant was ordered to pay the
respondent, in her representative capacity, damages claim for future hospital medical
and related expenditure; loss of earnings and damages and protection of the funds in
the total amount of R 30 775 286. The said figure is calculated as follows:
a. future medical and related E:xpenditure: R 22 125 163;
b. loss of earnings: R 3 903 01 0;
c. general; damages: R 2 600 000; and
d. protection of the award: R 2147113.
[2] The application for leave to appeal is accompanied by an application for
condonation for late filing of same. The applicant's leave to appeal is either to the
Supreme Court of Appeal or to the Full bench of this Division.
[3] Both application for leave to appeal as well as the application for condonation
are opposed by the respondent. In addition, the respondent raised a point in limine
regarding the defective notice of the application for leave to appeal served and filed. I
propose to start with the application for condonation and point in limine, before I deal
with the grounds for the application for leave to appeal.
Condonation
[4] The applicant, in its supporting affidavit for the application for condonation,
states as follows:
"31. The judgment uploaded on Caselines on the 29th of January 2026 and after
studying the judgment sent to the client for consideration and advise.
31.1 The client instructed to proceed to appeal the judgment.
31.2 After receiving instructions to proceed with the appeal, the SCA
handed down the decision, TN obo BN V MEC HEAL TH (EC) CASE
NO. 383/23 (2026) ZASCA 14 on the 11th February 2026.
2
31.3 The Applicant is the fourth Amicus Curiae in the matter.
31.4 Counsel then advised that we need to seek further instructions from
client in the light of the decision.
31.5 We had been advised that decision has now been taken of an appeal
to the CC and accordingly we should proceed with our appeal, hence,
there was delay in bringing this application". 1
[5] It is important to mention that the respondent's answering affidavit at paragraph
7 states:
"7. This application is, therefore, as far as leave to appeal is concerned, fatally defective
and stands to be dismissed on this ground alone. However, seeing that there is a minor
child in dire: need of medical care and that finality is important, we have decided to file
this answer, which should not be seen as us condoning the fatal defects, but rather just
an attempt to expedite finality in the best interest of the minor."2
[6] It is common cause that the applicant was two months late in filing the
application for leave to appeal. However, the application for leave to appeal is
accompanied by an application for condonation. The argument by the respondent
does not end on the applicant's lateness in filing the application for leave to appeal,
but also that the explanation provided is inadequate. The respondent also argues that
the applicant was late in filing its heads as it should have filed heads of argument on
18 May 2026, in terms of the court directive, but the applicant's heads were only filed
on 19 May 2026 with no explanation whatsoever. In reply, the applicant insists that its
heads were filed on the due date, being 18 May 2026, albeit after court hours, hence
an apology has been tendered.
[7] Rule 49 (1 (b) of the Uniform Rules of Court prescribes the period of 15 days
from the date of the judgment or order within which an aggrieved applicant may serve
and file an application for leave to appeal. However, Rule 49(1)(b)(ii) provides for
indulgence, i.e. extension of the time period upon 'good cause' shown. The
indulgence, i.e. extension of the time period upon 'good cause' shown. The
respondent's contention that the applicant has failed to provide an adequate
explanation for the delay relies on the judgment by the Constitutional Court in Van
1 Caselines page 01-17.
2 Caselines page 01-26.
3
Wyk v Unitas Hospital and Another, 3 where the Constitutional Court, when dismissing
an application for condonation for, amongst other reasons, lack of full explanation held:
"An applicant for condonation must give a full explanation for the delay. In addition,
the explanation must cover the entire period of delay. And, what is more, the
explanation given must be reasonable". The respondent also relies on the case of
Dengetenge Holdings (Ply) Ltd v Southern Sphere Mining and Development Company
Ltd and Others" where the court, in a unanimous judgment, dismissed an application
for condonation for the late filing of the heads of argument and held that: "factors which
usually weigh with this Court in considering an application for condonation include the
degree of non-compliance, the explanation therefor, the importance of the case, a
respondent's interest in the finality of the judgment of the court below, the convenience
of this Court and the avoiding of unnecessary delay in the administration of justice. "
[8] I have considered written and oral submissions and papers filed on record on
the application for condonation for late filing of the application for to appeal together
with authorities referred to by the parties and have reflected on same. I am not
convinced with the reasons given for the delay in filing the application for leave to
appeal. The judgment was forwarded to the parties on 27 January 2026. The
applicant's application for leave to appeal was uploaded on Caselines on 13 April
2026, two months out of time from the date of judgment. The TN5_ judgment was
delivered by the SCA on 11 February 2026, a period which was within the stipulated
time for filing leave to appeal in this case. After TN judgment was delivered it took not
less than two months for the applicant to lodge this application. It is not indicated the
date when the instructions were sought and obtained from the applicant by the
applicant's legal representative~ .. Despite the respondent's argument that there was
applicant's legal representative~ .. Despite the respondent's argument that there was
no need for the applicant to wait for this judgment as the facts on these matters are
distinguishable, it is common cause that the issue of the development of public
healthcare defence was dealt with in the TN judgment and in this present matter. In
·-
my view, there was hope on the applicant that perhaps the TN judgment was to provide
3 2008 (2) SA 472 (CC) at para 22.
4 [2013] 2 All SA 251 (SCA) at para 11.
5 TN obo B N v Member of the Executive council for Health of the Eastern Cape Government and Others (2026]
1 All SA 500 (SCA).
4
clarity and help the applicant in decision making as to whether to appeal this judgment
or not.
[9] The provision of good cause for the delay is not the end of the enquiry. Case
law provides in depth analysis on the minimum requirements for condonation to be
granted. Amongst the factors considered by the court as to whether to grant
condonation, are the following: the degree of lateness, the explanation thereof, the
prospects of success on the merits of the appeal, and the importance of the case.6 I
have highlighted above that the respondent is also in agreement that reaching finality
will be in the best interest of the minor child involved, although it has been stated
clearly that it does not mean that the respondent abandons the argument that no
adequate explanation is provided by the applicant for the delay in filing this application
for leave to appeal.
[1 O] Having said that, I am inclined to grant condonation for the late filing of the
application for leave to appeal. This is due to the importance of the matter and to see
to it that it reaches finality. It is important for litigants to comply with the time period
prescribed by tlie Rules of Court and court directives. The lateness by the applicant in
launching the application for leave to appeal and filing of the heads of argument are
not inordinately long. The applicant was a few hours late in filing its heads. There is
no reason to reject the apology for such lateness in filing heads of argument as it was
late by few hours. The respondent was not prejudiced, although they deemed it
appropriate to make time and prepare supplementary heads, which was not planned.
The decision reached in this condonation application is adopted to protect the best
interests of the minor child, which are of paramount importance as enshrined in section
28 of the Constitution of the Republic to avoid any unnecessary delay in finalising the
matter.
Point in limine: Defective application for leave to appeal
matter.
Point in limine: Defective application for leave to appeal
[11] The respondent has raised a point in limine in the answering affidavit, in that
the application for leave to appeal has not been properly instituted in terms of Rule 49
6 Melane v Sanlam Insurance Company Ltd 1962 (4) SA 531 (A) at 532. See also Dengentenge supra
5
of the Uniform Rules, which requires that leave to appeal be brought on notice, clearly
and succinctly, stating the grounds upon which the judgment is disputed. Instead, the
application has been instituted on notice of motion, supported by an affidavit. The
respondent places reliance on the judgment of Songono v Minister of Law and Order, 7
which was followed with approval by the full court of the High Court, Easten Cape
Division in_ Xayimpi and Others v Chairman, Judge White Commission (formerly known
as Browde Commission) and Others.8 The respondent also referred this Court to the
judgment of Doorewaard and Another v S9 where Hendricks J (as he then was) said:
"The law governing a notice of appeal (and also notice of application for leave to appeal)
is trite. The grounds of appeal in a notice of application for leave to appeal must be
clearly and succinctly set out in unambiguous terms so as to enable the Court and the
respondent to be fully and properly informed of the case which the applicant seeks to
make out and which respondent is to meet in opposing the application for leave to
appeal. The notice should not contain arguments. Therefore heads of argument must
also be filed and served in which the points to be argued will be set out in much more
detail."
[12) During oral arguments, the applicant argued that the grounds of appeal are
clearly set out in the application without ambiguity. It was contended that this point is
no longer pursued. by the respondent as it has been indicated in the answering affidavit
that in the interest of justice, the respondent decided to file an answering affidavit to
avoid unnecessary delays so that the matter can proceed until it reaches finality. The
applicant was referred to paragraph 26 of the founding affidavit where a wide range of
allegations of court misdirections are highlighted to give an opportunity to address this
point in limine in that it leaves the respondent and the court guessing as to what it is
point in limine in that it leaves the respondent and the court guessing as to what it is
alleged that the grounds of appeal not clearly stated as required by the Rules of Court.
It was submitted on behalf of the applicant that the said paragraph is a summation of
the issues raised by the applicant. Furthermore, the applicant's contention is that the
grounds of appeal clearly and succinctly stated in the notice of application for leave to
appeal.
7 $ongono v Minister .of Law and Order 1996 (4) SA 384 (E) at 386A-B.
8 [2006] JOL 16596 (E) at para 8c-d.
9 [2019) ZANWHC 25 at para 3.
6
[13] I agree with the respondent, the application is defective. However, be as it may
I am going ·to deal with the enlisted grounds of appeal or rather what has been
described as purported grounds of appeal. The Songono10 & Doorewaard 11
judgments cited above clearly $tate what is required in an application for leave to
appeal. The notice of motion with supporting affidavit is used when leave is sought
from the President of the Supreme Court of Appeal and/or the Constitutional Court.
Paragraphs 26 and 27 of the applicant's affidavit listed general allegations of
misdirection. In th8 answering affidavit, the respondent has responded to what it has
described as purported grounds of appeal. It is only in the applicant's heads of
argument where it highlights what it states are grounds of appeal, something which
should have been articulated in the notice of application for leave to appeal. There are
additional points of attack on the judgment and new issues raised i.e. the argument on
Rule 27(3). However, since the decision on condonation has been made, there is no
need of addressing the issue raised on Rule 27. As indicated on the issue of
condonation, the interests of minor child require that the matter reaches finality.
The legal principles on application for leave to appeal
[14] The legal principles for leave to appeal are situated in section 17(1) of the
Superior Courts Act.12 The section reads as follows:
"(1) Leave to appeal may only be given where the judge or judges concerned are of
the opinion that-
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should
be heard, including conflicting judgments on the matter under
consideration;"
[15] There are several judgments dealing with the test for leave to appeal
encapsulated in Section 17(1) of the Superior Courts Act:
10 Above n 8.
11 Above n 10.
12 Act 10 of 2013.
7
15.1. Democratic Alliance v President of the Republic of South Africa and
Others, 13 a judgment by a full court of this Division regarding the test for leave to
appeal is authoritative:
"[4] The test as now set out in section 17 constitutes a more formidable
threshold over which an applicant must engage than was the case. Previously
the test was whether there ·was a reasonable prospect that another court might
come to a different conclusion ... The fact that the Superior Courts Act now
employs the word "would" as opposed to "might" serves to emphasise this point.
As the Supreme Court of Appeal said in Smith v S 2012 (1) SACR 567 (SCA)
at para 7:
[5]
'More is required to be established than that there is a mere possibility
of success, that the case is arguable on appeal or that the case cannot
be categorised as hopeless. There must in other words be a sound,
rational basis for the conclusion that there are prospects of success on
appeal.'
[6] The second basis upon which leave should be granted is that there is a
compelling reason, that is apart from the existence of conflicting judgments on
the matter under consideration which require clarification from a higher court.
In essence the compelling reason is whether the case raises issues of
significant public importance ... "
15.2. T~e.. Supreme Court of Appeal in MEG for Health, Eastern Cape v
Mkhitha and Another14 remarked as follows:
"[16] Once again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable prospect of
success. Section 17(1 )(a) of the Superior Courts Act 1 O of 2013 makes it clear
that leave to appeal may only be given where the judge concerned is of the
opinion that the appeal would have a reasonable prospect of success; or there
is some other compelling reason why it should be heard.
13 (2020) ZAGPPHC 326, coram: Mlambo .;;:,, O.::vis JP and Molefe J.
14 (2016) ZASCA 176.
8
• (17] An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of success on
appeal. A mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to conclude that
there is a reasonable prospect of success on appeal.15 "
15.3 In Rex v Baloi, 16 the Appellate Division (now SCA) held that " ... leave
to appeal should not be granted unless the applicant will have a reasonable
prosect of success on appeai,"
[16) From the above mentioned cases it is clear that the threshold for granting leave
to appeal has become more stringent, in that the test to be applied is not "may" but
"would". The issue, now is whether another court, siting as a court of appeal, would
come to a different conclusion/decision. 17 The applicant referred to the judgment of
Van Heerden v Cronwright & Others, 18 where it was held that the use of the word
"would" in the new statute indicates a measure of certainty that another court will differ
from the court whose judgment is sought to be appealed against. However, I could not
locate the quoted passage at page 343 on the cited case on anywhere in the judgment
referred to.
The applicant's grounds of appeal
[17] The applicant contends that the Court erred in law and/ or fact in respect of the
ruling against upholding the development of common law public healthcare defence;
further, that the Court erred on the ruling on the repudiated joint expert minutes and,
further, erred by granting an order of an award which is unreasonably excessive. There
15 S v Smith 2012 (1) SACR 567 (SCA) at para 7. See also Mont Chevaux Trost (IT 2012128) v Tina Goosen and
18 Others Unreported, LCC Case No LCC14R/2014 dated 3 November 2014 and Notshokovu v S [2016] ZASCA
112.
16 1949 (1) SA 523 (A) at 524. See also Fusion Properties 233 CC v Stellenbosch Municipality [2021] ZASCA 10
at para 18; Nwafor v The Minister of Home Affairs and Others [2021] ZASCA 58 at para 25 and Four Wheel Drive
Accessol}' Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) at para 34.
17 Mont Chevaux Trost (IT2012128) v Tina Goosen & 18 Others above n 15 at para 6 where Bertelsmann J held as
follows: • 11 is clear that the threshold for granting leave to appeal against a judgment of the High Court has been
raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that
another court might come to a different conclusion ... "
18 1985 (2) SA 342 (T) at 343C-D.
9
is also criticism of the Court's findings on the credibility of witnesses. The submissions
on the grounds of appeal are dealt with below:
17 .1. The applicant's first ground of appeal is that the Court erred on its
findings to decline to develop the common law public healthcare defence (PHO)
based on the impact this judgment has on the resources of the applicant in
fulfilling _ its constitutional obligations to its public healthcare facilities. It is
submitted further that that the appellate court would find that the Court erred in
the awarding of damages to the respondent in the amount of R 30 775 286 as it
is expected, in terms of Section 3(3)(a) of the State Liability Act,19 to make
payment within 30 days of the order becoming final, or within a period agreed
upon by the judgment creditor and accounting officer of the department
concerned. The applicant contends that it had a different expectation regarding
the mann~~ of payment based on its amended plea in which public healthcare
defence was pleaded (in terms of which claims for future medical expenses
against public healthcare authorities, may be satisfied through the provision of
medical services in the public healthcare sector), alternatively, the respondent
would be permitted, where the provincial department of health cannot itself
provide the required services or items that the respondent will reasonably
require, to procure such services or items in the private healthcare sector as and
when needed or reimburse the respondent in the circumstances where he is
obliged to first incur these expenses himself.
17 .1.2. The applicant further argues that the Court erred as a matter of
law when it incorrectly applied the law to the facts in that it erred to have
regard to the fact the applicant planned to call witnesses from Chris Hani
Baragwanath Hospital (CHBH) to discharge its evidential burden of proof
through _factual witnesses that the services at that public hospital are of
through _factual witnesses that the services at that public hospital are of
similar standard as those provided in the private healthcare sector or
reasonable, had it not been concession by senior counsel for respondent
that CHBH provides healthcare services on Occupational therapy, Neuro
development therapy, Speech therapy and an Orthotist. It further submits
that calling the said witnesses would have amounted to wasting of the
19 Act 20 of 1957.
10
Court's time. Based on such concession, the applicant argues it was not
required to go further than that, i.e. to lead evidence and Court erred in
finding that the applicant presented no evidence as required by the
judgments of Ngubane v South African Transport Services20(Ngubane),
Member of the Executive Council for Health and Social Development,
Gauteng v DZ obo WZ21 (DZ) and MSM obo KBM v Member of the
Executive Council for Health, Gauteng Provincial Governmenfl2 (MSM).
Furthermore, the applicant contends that since the respondent gave birth
to all her children at CHBH, that is an indication that the said facility renders
services of good standard or reasonably acceptable standard. The
applicant further argues that this matter presents novel legal issues and
leave to appeal should be granted. The applicant concludes that the court
ought to have upheld the public healthcare defence.
17 .1.3. During oral arguments, I engaged the respondent's counsel
during oral submissions as to whether the concession by the respondent's
senior counsel would not be a compelling reason for granting leave to
appeal so that there could be certainty in future similar cases where such
concession is made. The respondent argued as reflected in the main
judgment that there was no concession was made regarding the required
reasonable standard of healthcare services which are available at CHBH.
The respondent submits or suggests that the reason for the applicant not
calling those factual witnesses even after listening to the recording of what
was conceded is that it knew that those witnesses were not going to assist
it in discharging the evidential burden that those services are of similar to
those provided in the private health care sector.
17.2. The second ground of appeal is that the Court misdirected itself in the
manner the expert's evidence was dealt with.
20 Ngubane v South African Transport Services 1991 (1) SA 756 (A)
20 Ngubane v South African Transport Services 1991 (1) SA 756 (A)
21 Member of the Executive Council for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335
(CC).
22 MSM obo KBM v Member of the Executive Council for Health, Gauteng Provincial Government (2020] 2 All SA
177 (GJ).
11
17.2.1. The applicant's further criticism is that the Court erred in
dismissing the application for the repudiation of the expert joint minutes at
the conception of the trial. It is contended that the Court's ruling on the
admissibility of the repudiated expert joint minutes was prejudicial. The
applicant argues that it repudiated the joint minute to which its own expert
is a party, did so clearly at the very latest, at the outset of the trial. The main
argument here was that the decision by this Court to dismiss the application
for the repudiation at the conception of the trial was incorrect and
erroneously granted, as the ruling had final effect and will therefore result
in a miscarriage of justice, in that the applicant will not be allowed to lead
evidence contrary to the agreements that have been made by experts on
these joint minutes. It was further argued that the Court should have found
that there was timeous repudiation, and the applicant was restricted in the
evidence that was highly prejudicial in the conduct of the trial. This
argument is made on the basis that the applicant brought this at the earliest
time as is required in terms of the law.
17.2.2. The respondent's counter-argument is that the applicant cannot
complain of having been deprived an opportunity when the ruling was on
the admissibility of non-contested joint minutes and on repudiated expert
joint minutes. The Court ruled that each party would be entitled to call
witnesses where it deems necessary. The Court ruling admitted
uncontested joint minutes to avoid unnecessary formal proof and allowed
evidence to be led where expert witnesses disagree. This approach that
was adopted is in line with the legal prescripts enunciated in Van der Merwe
obo MH v Member of the Executive Council for Health & Social
Development, Gauteng Provincial Governmenf23 and Glenn Marc Bee v
The Road Accident Fund. 24 The respondent concluded that the applicant
was not barred from calling the-operational witnesses at CHBH it intended
was not barred from calling the-operational witnesses at CHBH it intended
to call.
23 [2024) ZAGPJHC 437.
24 2018 (4) SA 366 (SCA).
12
17.3. The third ground is the criticism regarding the conclusion on the award
quantum of damages claim, in that the Court erred in awarding quantum of
damages which is excessive, placing more emphasis or reliance on the
respondent's expert witnesses' recommendations. The applicant submitted that
the Court failed to consider the comparative judgments referred to during
argument. The Court failed to have regard to the fact that the cerebral palsy was
not severe; the child attended school at the mainstream and never repeated a
grade from grade 1 to grade 7 etc. On the other hand, the respondent argued
that the court did consider comparison of previous judgments and concluded to
award R 2 600 000 for general damages.
17 .3.1. The respondent's submission to this ground of appeal was that
the applicant's criticism on quantum of damages is levelled in general and
broad terms. This appears at paragraph 26 of the applicant's affidavit where
there are general allegations of misdirection, such as scoliosis diagnosis;
which expert evidence should not have been accepted; inadmissible or
changed evidence; overlaps; inflated relief and inadequate regard to the
public budgetary impact.
17 .3.2. The respondent's further argument is that on future hospital
medical and related expenditure, the applicant does not identify a single
item where the Court misunderstood the law and reached a conclusion that
no reasonable court could reach. The respondent further contended that
there were around 500 itemised medical and related items presented in
Court, and the Court dealt extensively with them and considered
contingencies where applicable, as well as overlaps to eliminate
duplications.
The Court's evaluation and conclusion
[18] With regard to the contention of misdirection on public healthcare defence,
reliance is found mainly on the concession by the respondent's senior counsel that
certain healthcare services are available at CHBH is misplaced as it does not meet
13
the Mashininf25 standard requirement. In other words, a concession that CHBH
provides certain public healthcare services (Occupational therapy, Neuro
development therapy, Speech therapy and an Orthotist) does not meet the standard
of healthcare set out in Mashinini, which requires proof of services similar to those
provided at private healthcare sector or healthcare services which are at an acceptable
-
standard at no or lesser cost26. For completeness in Mashinini the SCA quoting with
approval a passage in Ngubane judgment at para [12) says 'This Court went on to
further state that '. 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 it 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'27.
[19) A lot has been said that the Court erred in failing to consider the implications of
granting an order without making a proper analysis as per the DZ28 judgment in that
instead of making an order that the respondent be compensated in monetary terms,
the Court should have instead granted an order directing the applicant to provide
healthcare services, and where it is unable to provide same, direct that the applicant
procure such. This criticism is found on the basis that an order for payment of lump
sum could hamper the applicant's constitutional ability to fulfill its constitutional
obligation in providing healthcare services to other people. In as much as this may be
viewed as a valid argument, this point has been dealt with in more detail in the main
judgment.29 Afte~ considering the arguments by both parties and applicable case law,30
the Court reached a conclusion that the public healthcare defence could not be
sustained.
[20] The law has been consistently followed by the higher courts, the Mashinini SCA
[20] The law has been consistently followed by the higher courts, the Mashinini SCA
judgment, and was also followed with approval in the latest TN judgment. As much as
periodic payment rather than a once-off payment was pleaded in the applicant's
amended plea, the applicant chose not to lead evidence that it may not be in a position
25 Mashinini v Member of Executive Council for Health and Social Development Gauteng Provincial Government
2023 (5) SA 137 (SCA).
26 Mashinini SCA Judgment at para (11) to (13)
27 Quote in Mashinin i, from Ngubane judgrtje0t, at 785C-D
28 Above n 21.
29 Judgment page 27 at paragraphs 48.1 - 48.7 & 49.
30 Judgment page 5 at paragraphs 8 - 46.
14
to make a once off payment or requesting the court to direct that such payment be
paid in kind or instalments. It has not been pointed out that the Court overlooked or
ignored such evidence as there is none (regarding non affordability to pay
compensation in a lump or budgetary constraints) which was led by the applicant
during the trial. It is surprising that the applicant is pursuing leave to appeal on the
public healthcare defence as one of its grounds of appeal as it stated that, amongst
the reasons for the delay in launching the leave to appeal, it awaited the SCA
Judgment on the TN matter as the judgment had a direct bearing on the legal principle
on lump sum damages in medical negligence cases, before it could decide whether or
not to appeal this judgment. However, this should not be construed to mean that it was
prohibited to pursue this ground of appeal in its application as it has every right to
pursue any ground including this one on PHO.
[21] The applicant's contention that the Court erred by failing to measure the
damages reasonably and placed more weight on the respondent's expert evidence as
opposed to the applicant's expert evidence, who, in fact, led evidence that of
healthcare is just as good (or at least good enough) to cater for the needs of the
respondent is inaccurate. The applicant's reliance on this submission is based on the
concession made by the respondent's senior counsel and the concession by the
respondent (under cross-examination) that she gave birth to all the victim's siblings at
CHBH. This statement (respondent's senior counsel concession) is inaccurate, senior
counsel didn't concede that the services provided at CHBH are as good as those at
the private healthcare sector, he only conceded that such services are available at
CHBH. The record of the proceedings reveals that no evidence was led by the
applicant regar~ing the provision of reasonable healthcare services CHBH.
[22] It has not been demonstrated where the Court erred on the quantum of the
[22] It has not been demonstrated where the Court erred on the quantum of the
future hospital, medical and related expenditure. I agree with the respondent's
submission that the applicant's criticism of the 'court's not challenging' the applicant's
election not to call factual witnesses has no legal basis. This has been confirmed in a
few cases, amongst others is the case of President of the Republic of South Africa
and Others v South African Rugby Football Union and Others, 31. As stated in the main
judgment, the record shows that the proceedings were halted and counsel for the
31 1999 (4) SA 147 (CC).
15
applicant was given an opportunity to listen to what was conceded by the respondent's
senior counsel. After listening to the recording of the proceedings, the applicant's legal
team elected to close their client's case. There was no need for the court to seek
clarity on the applicant's election to close its case.
[23] The TN judgment is a classical case where the high court was provided with
evidential material and asked to develop common public healthcare defence. In that
case (TN,) the trial court heard voluminous record from departmental and treasury
witnesses', economics and rehabilitation evidence, nonetheless, the SCA set aside
the public healthcare defence remedies and held that fundamental reform, in once
and-for all rule and damages law, is for the legislature and not the Courts.
[24] With regard to the alleged misdirection on the repudiated joint minute. the Court
ruling was that each party may call its expert witnesses if it deems necessary as the
parties were far apart in reaching an agreement on the above-mentioned areas of
specialisations. The applicant chose not to call its witnesses. It was not stopped to do
so, contrary to what is contended. The Court admitted the undisputed joint minutes
and held that each party may call is respective witnesses deemed necessary. Although
at the time the ruling was made, the contents of the joint minutes had yet to be handed
in, once they were handed and other evidence led, the parties' expert
recommendations and conclusions, any differences of experts' conclusions and
recommendations have been addressed in the application of contingency deductions
in order to deal with any the issue of unfairness and/or any injustice would have been
caused.
[25] With regard to the finding on the quantum of damages, (general damages claim
and loss of future earnings) no misdirection is pointed out that the Court
misunderstood and erred in law. The argument that the Court was generous in the
misunderstood and erred in law. The argument that the Court was generous in the
award of general damages and future loss of earnings has no merit. The court had
regard to the judgments32 it was referred to by both parties, analysed the facts and
applied the law.33 Furthermore, the court had regard to the comparable decided cases
on cerebral palsy, and based on experts' evidence, contingencies were applied where
32 MEC for Health, Gauteng Provincial Governmen t v AAS obo CMMS (2025 (6) 152 (SCA), delivered on 20 June
2024 at para 51 to 59
33 Judgment page 98 at paragraph 184 to page 100 at paragraph 185.4 & page 102 at paragraph 193 to page
102 & pages 106 at paragraph 198.4 to page 109 at paragraph 207 .1.
16
applicable and a conclusion was reached that the award of damages was fair and
reasonable. It has not been pointed where the appellate court may find that there is
misdirection in the Court's exercise of its discretion save to state that the court erred
to award excessive damages claim.
[26] On the question of excessive award of damages, the legal position is that a
court of appeal may only step in or interfere in the findings of the court a quo if there
is a material misdirection or a clear problem with the award. This includes a situation
where the trial court acted on a wrong principle of law, the court misdirected itself on
facts, the award is so inordinately high or low that it induces a sense of shock or the
court failed to properly consider relevant factors, for example comparable awards. If
none of these are present, a court_ of appeal will not interfere, even if it might have
awarded a different amount itself. 34 In this particular case, the court even took into
account the already awarded special damages35 when considering the general
damages, considered comparative case law and revisited expert reports before fixing
general damages.at R 2,6 million. In the cases referred to above on general principles
for leave to appeal, case law36 states that a mere possibility another court may reach
a different conclusion is not enough as the test for leave to appeal became more
stringent.
[27] The applicant's other additional ground takes an issue with various factual and
credibility findings in relation to the oral evidence presented in court, namely; credibility
finding concerning Ms Radzuma;37 Ms Mokgata;38 Dr Mteshana;39 Dr Close and Dr
Ramokgopa (preferred the evidence of Dr Close as there was corroboration by Dr
Botha and other clinicians on the issue of mild scoliosis diagnosis);40 Ms Greef and
Ms Radzuma on the issue of caregiver and case management; the issue of
educational needs, mobility, orthotics, and neurology/Botox. In each objection raised
educational needs, mobility, orthotics, and neurology/Botox. In each objection raised
by the applicant, the issues are dealt with. For example, on the challenge with regards
34 See Protea AssuranC6 Co Ltd v Lamb 1971 {1) SA 530 {A); Road Accident Fund v Marunga 2003 (5) SA 164
(SCA) and Sou/hem Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A).
35 Judgment page 110 at paragraph 207.2.
36 Cases referred to in this judgment at para 15.1 to 15.3
37 Judgment at paragraph 36.1: witness tailored her evidence, paragraph 139.3: recommendations lacked
consistency, no plausible explanation for rechanged recommendations, short-period postulations contrast to Ms
Greet lifelong approach.
38 Judgment at paragraph 36.2.
39 Judgment at paragraphs 36.3 and 39.
40 Judgment at paragraphs 135, 136 and 137.
17
to schooling costs, no evidence was presented to show that costs were lower or that
bursary-related assumptions displaced the agreed expert need;41 the claimed overlap
figure was not explained, and the court was not persuaded to deduct it in the absence
of evidence to the contrary. 42 The Court engaged the argument that Botox services
existed at CHBH·, ·but weighed that against the respondent's evidence of failed referral
and failed access.43 The court held that even if orthotic services are provided at CHBH,
the applicant had still not proved comparable private-sector standard or acceptable
reasonable standard. These are factual findings, none of which have been shown to
be contaminated by an error of law or failure to consider relevant evidence, or a
conclusion no reasonable court could reach. It is trite law that the court of appeal does
not interfere lightly with credibility findings of the trial court unless they are of material
nature.
[28] The respondent raises an issue regarding the conduct of the applicant, namely;
bringing new issues or grounds of c:ppeal on its heads of argument, which are not in
the applicant's notice of application for leave to appeal. The respondent argues that
this is against the spirit of fairness - giving an opportunity to the opponent to prepare
for th~ case to meet. The respondent has asked the Court to reject the new issues
raised for the first time in the applicant's heads of argument. Amongst the new issues
raised in the applicant's heads of argument which are not contained in the notice of
application for leave to appeal are in broad terms about excessive damages and
evidentiary misdirection. The new detailed complaints relate to the criticism on the
admissibility of the respondent's experts' witnesses' evidence regarding scoliosis
diagnosis, life expectancy, experts allegedly changing evidence in the witness box,
experts testifying beyond expertise, overlaps and duplication, inflated relief,
insufficient reasoning and unreasonable awards.44
insufficient reasoning and unreasonable awards.44
[29) It is contended that in the notice, the applicant does not plead alternative
amounts for loss of earnings, general _damages or contingencies, whereas in the
heads of argument, it does exactly that.45 In the heads of argument, the applicant also
alleges that the respondent made an admission necessary for the development of the
41 Judgment at paragraphs 122.5 to 123.
42 Judgment at paragraphs 125 -126.
43 Judgment at paragraphs 129 -130.
44 Applicant's heads at paragraphs 3.6 - 3.7.
45 Applicant's heads at paragraphs 22 - 24.
18
common law.46 The applicant also brings the issue that the Court should have used
wide discretion to obtain clarity, this is not in the notice as well. The respondent
contends that the addition of the new or fresh criticism on the judgment is not merely
to elaborate the issues in the notice of application for leave to appeal but materially
enlarges and reformulates the case by doing that effectively supplement the grounds
of appeal in the original application for leave to appeal and is asking the court to reject
the n~.w arguments. The respondent referred the court to the case of Songono v
Minister of Law and Order,47 Leach J stated the following profound remarks:
"It seems to me that, by a party of reasoning, the grounds of appeal required under Rule
49(1 )(b) must similarly be clearly and succinctly set out in clear and unambiguous terms
so as to enable the Court and the respondent to be fully and properly informed of the
case which the applicant seeks to make out and which the respondent is to meet in
opposing the application for leave to appeal. Just as Rule 49(3) is peremptory in that
regard, Rule 49(1)(b) must also be regarded as being peremptory. In my view the lengthy
and rambling notice of appeal filed in casu falls woefully short of what was required. Mr
Bursey suggested that grounds of appeal could be gleaned from the notice but that is
not the point - the point is that the notice must clearly set out the grounds and it is not
for the Court to have to analyse· a lengthy document in an attempt to establish what
grounds the applicant intended to rely upon but did not. clearly set out. On this basis
alone the application seems to me to be fatally defective and must be dismissed."
[30) I am in ag~eement with the respondent's argument that the fresh criticisms or
new issues ought to have been included in the original application. It should be noted
that paragraph 26 of the applicant's affidavit includes some of the so called new
that paragraph 26 of the applicant's affidavit includes some of the so called new
grounds but not as specific but in broad terms. However, the said issues have been
dealt with in the main judgment and the argument against same has have been
addressed at the end of paragraph 27 above.
[31) I am not persuaded by the argument that the judgment raises a number of novel
legal issues which are of significant public importance. The OZ, 48 Mashinini49 and,
lately, TN5° judgments have provided extensive jurisprudence and guidance when it
46 Applicant's heads at paragraphs 63 - 64.
47 Above n 8 at 385H - 386B.
48 Above n 21 .
49 Above n 25.
50 Above n 5.
19
comes to public healthcare defence, and the issue of the repudiation of expert joint
minutes has been dealt with in our jurisprudence. The only thing new in this matter is
the concession by the respondent's senior counsel which is still less than the required
standard as required by law in negligent damages claim. Moreover, the SCA in
Mashinini refers to the very same DZ judgment (in terms of which the applicant
contends the court failed to have regard with) says: "[13] The Constitutional Court in
MEC for Health v DZ endorsed the approach that was adopted by this Court in
Ngubane when faced with 'public healthcare defence'. It expres·sed that medical
services of the same or higher standard, at no or lesser cost than private medical care,
will be available to a plaintiff in future. It stated: 'if that evidence is of a sufficiently cogent
' ·.•
to disturb the presumption that private future healthcare is reasonable, the plaintiff will not
succeed in the claim for higher future medical expenses'.51" (own underlining)
[32] The applicant has not shown that there was a material misdirection on the
award of damages which would warrant the appellate court interference, save to allege
that the quantum of damages is generously excessive without pointing out how the
Court's discretion was not exercised judiciously or was exercised improperly.
[33] Having considered comprehensive written submissions and case law referred
thereto by applicant's legal team and counter argument by the respondent in respect
of all the grounds of appeal based on the reasons highlighted on each ground above,
I am not persuaded that there is either a reasonable prospect of success or any
compelling reason why the appeal should be heard.
Order
[34] Consequently , the following order is made:
1. The application for condonation for the late filing of the application for leave
to appeal is granted.
51 MEC for Health v DZ at para (21
20
2. Leave to appeal is dismissed with costs, including the costs consequent
upon the employment of two counsel on scale C.
Date heard:
Date of Judgment:
Appearances:
For the Applicant:
Instructed by:
Email address:
Tell:
For the Respondent:
Instructed by:
Email address:
Tell:
NL SKIBI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
22 May 2026
8 June 2026
Adv. S.J Myburgh S.C assisted by Adv. AL Easte
Werner Boshoff Incorporated
laura@wb-inc.co.za
012 752 7702
• Adv. N. Makopo assisted by Adv. J. Daniels
State Attorney
wmabaso@justice.gov.za
011 330 7600
21