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[2017] ZACC 37
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Member of the Executive Council for Health and Social Development, Gauteng v DZ obo WZ (CCT20/17) [2017] ZACC 37; 2017 (12) BCLR 1528 (CC); 2018 (1) SA 335 (CC) (31 October 2017)
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CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 20/17
In the matter between:
MEMBER OF THE EXECUTIVE
COUNCIL
FOR HEALTH AND SOCIAL
DEVELOPMENT, GAUTENG
Applicant
and
DZ obo
WZ
Respondent
and
MEMBER OF THE EXECUTIVE
COUNCIL
FOR HEALTH, EASTERN
CAPE
First Amicus Curiae
MEMBER OF THE EXECUTIVE
COUNCIL
FOR HEALTH, WESTERN
CAPE
Second Amicus Curiae
Neutral Citation:
MEC, Health and Social Development, Gauteng v DZ
[2017]
ZACC 37
Coram:
Zondo DCJ,
Cameron J, Froneman J, Jafta J, Kathree Setiloane AJ,
Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ
Judgments:
Froneman J (majority): [1] to [60]
Jafta J (concurring): [61] to [98]
Heard on:
17 August 2017
Decided on:
31 October 2017
Summary:
Delictual damages — “once and for
all” rule —
future medical expenses — lump sum award
Section 39(2) of the Constitution —
Section 173 of the Constitution — factual basis for development
of the common law
ORDER
On appeal from the Supreme Court of
Appeal, the following order is made:
1.
No person shall publish a report of the proceedings in this
Court in this matter which reveals, or may reveal, the identity of
the
respondent or the respondent’s child.
2.
Leave to appeal is granted.
3.
The appeal is dismissed with costs,
including the costs of two counsel.
JUDGMENT
FRONEMAN J (Zondo DCJ, Cameron J,
Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J
and Zondi AJ concurring):
Introduction
[1]
On 19 November 2009 the respondent, DZ,
[1]
gave birth to WZ at the Chris Hani Baragwanath Hospital,
Johannesburg. WZ was born by vaginal delivery, following
prolonged
labour, and was subsequently diagnosed with cerebral palsy
due to asphyxia during delivery. DZ instituted action in the
High Court of South Africa, Gauteng Local Division, Johannesburg
(High Court) on behalf of WZ for damages arising from the
allegedly
negligent conduct of the employees of the applicant, the Member of
the Executive Council for Health and Social Development
in the
Gauteng Province (Gauteng MEC), during his birth. The
Gauteng MEC conceded negligence on the part of hospital
staff
and thus accepted vicarious liability on the merits of the claim.
All that remained for determination by the High Court
was the extent
of the compensation to which WZ was entitled.
[2]
That too was agreed, in the total sum of R23 272
303, of which R19 970 631 was in respect of future medical
expenses.
But it was an agreement with a wrinkle. The
wrinkle was contained in the Gauteng MEC’s amended plea, in
which she contended
that she did not have to pay future medical
expenses in a lump sum. Her alternative was an undertaking
to pay service
providers directly, within 30 days of presentation of a written
quotation, for future medical expenses as and when
they might arise.
She contended that the common law allowed her to do this, and that,
if it did not, the Court should develop
it.
[3]
The High Court dismissed the amended
plea, as did the Supreme Court of
Appeal.
The Supreme Court of Appeal held that the “once and for all”
rule at common law precludes payment of future
medical expenses in
the form sought by the Gauteng MEC and that, if intervention is
necessary to correct this alleged defect,
it would best be left to
the legislature. In addition, it held that the Gauteng MEC
failed to present any evidence why her
preferred method would enhance
access to healthcare.
[4]
In this Court, the Gauteng MEC seeks
leave to appeal against the order of the Supreme Court of Appeal.
[5]
The MEC for the Department of Health in the Eastern
Cape Province (Eastern Cape MEC) and the MEC for the Department
of Health
in the Western Cape Province (Western Cape MEC)
sought,
and were granted, admission as
amici
curiae
(friends of the court).
[6]
The Eastern Cape MEC sought to
ensure that the decision in this matter does not prevent her from
raising two defences in pending
trials in the High Court of
South Africa, Eastern Cape Local Division, Mthatha. The
first is a “public healthcare
defence”, according to
which claims for future medical expenses against public healthcare
authorities may be satisfied through
the provision of medical
services in the public healthcare sector. The second is an
“undertaking to pay defence”,
according to which medical
services or supplies that cannot be provided in the public healthcare
sector are paid for when they
arise in the future. She contends
that the first defence requires, at most, a limited development of
the common law, while
the second requires a more extensive
development of the common law.
[7]
The Western Cape MEC similarly seeks
to ensure that our decision in this matter does not pre-empt
consideration of the ambit of
the “once and for all” rule
in relation to certain mechanisms that she is devising to deal with
claims against public
healthcare providers for alleged negligence.
She presented statistical evidence indicating pressure on
public healthcare
resources arising from claims in cerebral
palsy-related cases. Her proposal is to make each damages award
conditional on
the establishment of a ring fenced trust
administered by a case manager and a trustee who can ensure that the
award is used
only for its intended purpose: meeting the child’s
future medical expenses. The deed constituting each trust would
include provisions providing for the “topping-up” of the
fund if it becomes depleted as well as the reversion of the
balance
in the fund to the state upon the child’s death. The High
Court of South Africa, Western Cape Division, Cape
Town, recently
sanctioned the adoption of this model by settlement, but expressed
the view that it was unnecessary to decide on
the development of the
common law in view of the agreement of the parties.
[2]
The Western Cape MEC contends that, in a future case where
there is no agreement, it may well be that the imposition of these
mechanisms will require a development of the “once and for all”
rule.
Leave to appeal
[8]
The development of the common law,
and the potential impact of damages awards in medical negligence
claims against public healthcare
authorities on their ability to
discharge their constitutional obligation to provide access to
healthcare to everyone, raise constitutional
issues that attract this
Court’s jurisdiction.
[3]
As will be seen, there are some factual difficulties for the
Gauteng MEC on the merits of the appeal, but the legal issues
are
important at a wider level. It is thus in the interests of
justice to grant leave to appeal.
The appeal
Factual background
[9]
The factual background is brief and needs no repetition.
[4]
[10]
In the High Court, the Gauteng MEC
elected not to lead any evidence on the damages issue. The High
Court granted judgment
in the agreed sum and the Supreme Court
of Appeal subsequently confirmed this.
Various defences
[11]
The bare bones of the Gauteng MEC’s
amended plea were used in argument to advance a number of different
legal propositions,
veering off in different directions and sometimes
only tenuously connected, if at all, with the wording of the amended
plea. It
is necessary to attempt to distil the essence of these
propositions, and those advanced as future defences by the
amici
,
in order to assess the present state of the common law and whether it
needs further development.
[12]
Two of the propositions advanced by
the Gauteng MEC and the
amici
concern first principles of our law of delict. The first is
that delictual compensation need not necessarily sound in money,
but
may also be paid in kind. The second is that the
“once and for all” rule applies only to
the
determination of liability on the merits of a delictual claim, and
not to the quantification of damages, which (it is said)
lies within
the trial judge’s discretion. The third proposition,
which is perhaps based on these general assertions,
is less
ambitiously formulated. This is that it is open to a defendant
to challenge an amount claimed as damages on the basis
that the sum
is not reasonable because the plaintiff is likely to use public
healthcare rather than private healthcare, the former
being as good
as, and cheaper than, the latter. Allied to this is the
argument that claims for future medical loss may sometimes
best be
satisfied by the provision of actual medical services, rather than
the payment of money.
[13]
The Eastern Cape MEC’s “public
healthcare” defence may fall within the third proposition since
it is based on
an assertion that public healthcare provides as good,
and cheaper, medical services as private healthcare. But it may
also
go outside this proposition if it is based on the contention
that damages awards in medical negligence claims against public
healthcare
authorities must also be assessed against the impact they
may have on healthcare budgets and the adverse effect they may have
on
the provision of access to public healthcare for everyone. Her
alternative “undertaking to pay” defence and
the
“top-up/claw-back” mechanism of the Western Cape MEC may
also be difficult to fit into the third category.
The current common law
[14]
In
Standard Chartered Bank
Harms JA, “conscious
of stating the obvious”, pointed out that—
“The purpose
of an Aquilian claim is to compensate the victim in money terms for
his loss. Bell J pointed out as long
ago as 1863 that when
damages are due by law they are to be awarded in money because money
is the measure of all things[
[5]
]
. . . . This rule still stands.”
[6]
There is little reason to doubt that the
rule still stands today.
[7]
[15]
Another rule that still forms part of our law is the “once
and for all” rule.
[8]
In
Evins
Corbett JA explained its import:
“Expressed in
relation to delictual claims, the rule is to the effect that in
general a plaintiff must claim in one action
all damages, both
already sustained and prospective, flowing from one cause of action.
This rule appears to have been introduced
into our practice from
English law. . . . Its introduction and the manner of its
application by our Courts have been subjected
to criticism . . . but
it is a well-entrenched rule. Its purpose is to prevent a
multiplicity of actions based upon a single
cause of action and to
ensure that there is an end to litigation.
Closely allied to
the ‘once and for all’ rule is the principle of
res
judicata
which establishes that, where a final judgment has been
given in a matter by a competent court, then subsequent litigation
between
the same parties, or their privies, in regard to the same
subject-matter and based upon the same cause of action is not
permissible
and, if attempted by one of them, can be met by the
exceptio rei judicatae vel litis finitae
. The object of
this principle is to prevent the repetition of lawsuits, the
harassment of a defendant by a multiplicity of
actions and the
possibility of conflicting decisions . . . . 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.”
[9]
[16]
What can be drawn from these authorities is
that, in relation to delictual claims, the “once and for all”
rule is to
the effect that a plaintiff must generally claim in one
action all past and prospective damages flowing from one cause of
action.
The corollary is that the court is obliged to award
these damages in a lump sum, the object of which is to prevent the
repetition
of lawsuits, the harassment of a defendant by a
multiplicity of actions and the possibility of conflicting
decisions.
It is buttressed by the
res judicata
principle, the
purpose of which is to prevent a
multiplicity of actions based upon a single cause of action and to
ensure that there is an end
to litigation.
[17]
The Gauteng MEC’s first two general and bold
propositions – that delictual compensation need not sound in
money and
that the “once and for all” rule does not
relate to the quantification of damages, but only to the
determination of
liability on the merits – are thus not borne
out by an analysis of our current law.
[18]
The third proposition – that
it
is open to counter the method and measure of the claim for damages on
the basis that the amount claimed is not reasonable because
a
plaintiff is more likely to use public healthcare, which is as good
as, and cheaper than, private healthcare – appears
to be on a
surer footing.
[19]
In
Ngubane
the appellant claimed future medical expenses on the premise that he
would be treated by private medical practitioners and, when
necessary, in a private hospital.
[10]
The respondent contended, however, that these medical services
could be provided at state or provincial hospitals, free of
charge,
or at no more than a nominal fee, and that it was therefore
reasonable to expect the appellant to make use of these
facilities.
[11]
It was argued that there was no general authority that entitled
the plaintiff to the costs of private medical treatment,
and that,
whenever the possibility of cheaper treatment arose, a claimant had a
general onus to deal with these possibilities.
[12]
[20]
Kumleben JA rejected this:
“
Though
the onus of proving damages is correctly placed upon the plaintiff,
this submission, which is really concerned with the duty
to adduce
evidence, is to my mind unsound. 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.”
[13]
But he then
continued:
“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 not
excessive.”
[14]
On the facts on
record it was held that the respondent had led insufficient evidence
to substantiate the assertion that medical
services of the same or
higher standard would have been available to the appellant.
[15]
[21]
Ngubane
is
authority for allowing a defendant to produce evidence 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. If
that evidence is of a sufficiently cogent
nature to disturb the
presumption that private future healthcare is reasonable, the
plaintiff will not succeed in the claim for
the higher future medical
expenses. This approach is in accordance with general
principles in relation to the proving of
damages.
[16]
[22]
This approach does not offend the
“once and for all” rule. It is a “once and
for all” factual
assessment on the evidence adduced that,
although the claimant will need medical care in future, it has not
been proved on a balance
of probabilities that this entails a loss in
the sense that the claimant’s patrimony after the delict is
less than it would
have been had the delict never occurred.
[17]
It is not the mere injury and its future consequences that
justify an award of damages, but the actual diminution in the
claimant’s patrimony.
[18]
[23]
In the recent case of
Kiewitz,
the Supreme Court of Appeal rejected a
“mitigation of damages” defence similar to the one raised
in
Ngubane
because it “offends against both the ‘once and for all’
rule and the rule that compensation, in personal injury
matters, must
comprise a monetary award”.
[19]
On the basis of that holding, the Court found it “unnecessary
to deal with the evidence relating to the adequacy of
medical care
offered at provincial hospitals”.
[20]
It appears that the Court was not referred to
Ngubane
.
[21]
For the reasons given, its conclusion – that a mitigation
defence of the kind raised in
Ngubane
offends both the “once and for all” rule and the rule
that delictual compensation must sound in money – cannot
be
sustained. Only after assessing the evidence proffered on the
adequacy of alternative future medical care can a court
assess, “once
and for all”, whether the damages claimed have been proven
reasonable. If so, a lump sum assessment
must be made of the
future loss.
[22]
[24]
If not, it appears that at least
four possibilities exist. The first is that no damages for
future medical expenses should
be awarded if the evidence shows that
the claimant is likely not to suffer
any
loss in the future.
[23]
The second is that, if the evidence establishes only a
lesser
loss, then that sum must be awarded as the monetary damages. The
third is that the assessed loss may be ordered to be paid
in
instalments. The fourth is that the defendant be ordered to
ensure the actual rendering of the medical services that it
claims
obviates or reduces the claimant’s monetary loss. The
first two possibilities fall comfortably within the current
law of
monetary compensation that must be paid “once and for all”.
The latter two may not.
[25]
I am only aware of a single instance
in our law where the assessed loss was ordered to be paid in
instalments. In
Wade
,
the defendant was ordered to pay the claimant’s lost earnings
by way of indexed instalments until the latter’s death
or
remarriage.
[24]
That case has apparently not been followed, and doubt has been
expressed as to whether the Court had the inherent jurisdiction
to
make the order.
[25]
In
Roxa
,
the Appellate Division considered it advisable to make provision for
the proper care and administration of a minor’s assessed
damages. With the consent of the parties, it therefore ordered
that its award be paid to a building society and made provision
for
both periodic payments and recourse to the Court in the event of
disputes.
[26]
It is said that courts have no power to order periodic
payments,
[27]
but this issue may not yet have been squarely addressed. And,
in any case,
Wade
may
now be more persuasive in view of section 173 of the
Constitution.
[28]
Although my brother Jafta J considers that the existing law
already allows damages to be ordered by way of periodic payments,
[29]
I adopt the somewhat more cautious approach that this has not yet
been definitively decided for the reasons set out at the end
of this
judgment.
[30]
[26]
Our law currently requires evidence
to substantiate a defence that a claimant has suffered no damages, or
less than is claimed,
for reasonable future medical expenses. The
Gauteng MEC chose not to present any evidence to
show that DZ’s
claim for future medical expenses was unreasonable. The plea
therefore has to fail on the state of our
existing law. C
an
development of the law save the day for her?
Development of the
common law
[27]
To start the enquiry one must be
clear on (1) what development of the common law means; (2) what the
general approach to such development
is; (3) what material must be
available to a court to enable the development; and (4) the limits of
curial, rather than legislative,
development of the common law.
[28]
As O’Regan J explained in
K
,
the common law develops incrementally through the rules of precedent,
which ensure that like cases are treated alike.
[31]
Development occurs not only when a common law rule is changed
altogether or a new rule is introduced, but also when a court
needs
to determine whether a new set of facts falls within or beyond the
scope of an existing rule.
[32]
Thus development of the common law cannot take place in a
factual vacuum.
[29]
Whether a new set of facts falls
within or beyond the scope of an existing rule may, in appropriate
circumstances, be decided on
exception, a procedure whereby the facts
are assumed to be those pleaded for the purpose of determining
whether they legally sustain
a cause of action or a plea.
[33]
But where a common law rule is to be changed altogether, or a new
rule is to be introduced, it will usually be better to
make a
decision only “after hearing all the evidence” so that
“the decision can be given in the light of all
the
circumstances of the case, with due regard to all relevant
factors”.
[34]
[30]
Section 39(2) of the Constitution
requires the courts to promote the spirit, purport and objects of the
Bill of Rights when developing
the common law.
[35]
This requires the courts to be alert to the normative framework
of the Constitution, “not only when some startling
new
development of the common law is in issue, but in all cases where the
incremental development of the rule is in issue”.
[36]
[31]
The general approach to development
of the common law under section 39(2) is that a court must: (1)
determine what the existing
common law position is; (2) consider its
underlying rationale; (3) enquire whether the rule offends section
39(2) of the Constitution;
(4) if it does so offend, consider how
development in accordance with section 39(2) ought to take place; and
(5) consider the wider
consequences of the proposed change on the
relevant area of the law.
[37]
[32]
In
Mokone
,
this Court held that there are instances in which the common law may
suffer from a deficiency that is not at odds with the Bill
of Rights.
If this deficiency necessitates the development of the common
law, this cannot be done in terms of section 39(2).
However, development may be possible in terms of section 173 of
the Constitution,
[38]
which stipulates that the Constitutional Court, the
Supreme Court of Appeal and the High Court have the
inherent
power to develop the common law, taking into account
the interests of justice.
[39]
In these cases, the general approach to the development of the
law will be similar, except that the enquiry into the common law
will not be restricted to whether it offends the normative framework
of the Constitution. The enquiry will be whether, even
if the
common law is constitutionally compliant, there are wider interests
of justice considerations that necessitate its development.
[40]
[33]
The common law may also be developed
when applying a provision of the Bill of Rights to a
natural or juristic person,
[41]
in order to give effect to the right to the extent that legislation
does not do so, and to limit a right, provided that the limitation
is
in accordance with section 36(1) of the Constitution.
[42]
[34]
When exercising their authority to
develop the common law, courts should be mindful that, in accordance
with the principle of the
separation of powers, the major engine for
law reform should be the legislature.
[43]
Relevant factors here include whether the common law rule is a
judge-made rule,
[44]
the extent of the development required
[45]
and the legislature’s ability to amend or abolish the common
law.
[46]
[35]
To return, then, to the sequential
steps in the general approach to the development of the common law
under section 39(2): the first
two – identification of the
existing common law and its rationale – have been dealt
with.
[47]
In relation to compensation in money, a defendant in a
delictual claim is allowed to adduce evidence that medical services
of the same or higher standard, at no or lesser cost than private
medical care expenses claimed, will be available to the plaintiff
in
future. If that evidence is of a sufficiently cogent nature to
disturb the presumption that private healthcare is reasonable,
the
plaintiff will not succeed in the claim for the higher future medical
expenses.
[48]
[36]
The third step is to enquire whether
these common law rules offend the normative structure of the
Constitution and, if not, whether
there are wider interests of
justice considerations that require their further development.
Context is important here. We
are dealing with a child
suffering from,
inter alia
,
cerebral palsy occasioned by medical negligence in a public
healthcare institution. It is within that context that it is
argued that the law should allow either an order to ensure the actual
rendering of the necessary medical care or periodic payments
of the
assessed loss.
[37]
The common law rule that damages
must sound in money has, as we have seen, an ancient ancestry.
[49]
But that ancestry has its own quirks. The law of delict
originated in private vengeance: a victim originally had the
right to
kill a wrongdoer, although this eventually became a right to merely
exact the same kind of harm that he or she had suffered
and then to
demand the payment of money to cover any patrimonial loss caused by
the wrong.
[50]
This development of the Aquilian action to cover purely
patrimonial loss happened “rather surreptitiously” and
with “[n]o specific precedent for this development . . .
available in the Roman sources”.
[51]
It found its theoretical foundation in the natural law
expounded by (among others) Hugo Grotius.
[52]
[38]
Even in its origin in this jurisdiction –
the
Wynberg Valley Railway Company
case to which Harms
JA referred in
Standard Chartered Bank
– the proposition
that when damages are due by law they are to be awarded in money
because “money is the measure of
all things” was said to
be an abstract one “that . . . may fail in its application
according to the particular circumstances
of the case to which its
application is directed”.
[53]
And it appears that the three judges in that case would have
easily accepted the fairness of a partial award of compensation
in
kind had it not been for the specific wording of the applicable
legislation.
[54]
[39]
There is a further reason for caution in letting the past bind
us. Whose past? Professor Zimmermann’s
magisterial
work on the law of obligations was, in his own words, an
attempted “comparison of legal solutions against the background
of a common ‘Western’ civilisation”.
[55]
In a later work he wrote:
“The three
Graces of the South African legal system are civil law, common law
and customary law. The free spirit of
the third Grace makes it
difficult for her to join in the circle. To enable her to do so
may be one of the great challenges
of the new South African
legal order. Someone may then, perhaps, be able to tell the
story of the Africanisation of
Roman-Dutch law in twenty-first
century South Africa.”
[56]
As a great friend of this country,
Professor Zimmermann undoubtedly understands that Western legal
systems form only part of our
heritage, and that one of the great
challenges of our new legal order is indeed to bring about the
Africanisation of the common
law.
[40]
In
Mhlongo
, an argument that, because a contract of
loan was made in cash, and cash was earlier unknown in Africa, the
common law and not
customary law applied was rejected as “illogical
since money is in itself only a token and . . . other articles served
as
tokens before contact was made with Europeans”.
[57]
Although the decision is couched in the unacceptable language of the
past, and was in any case made in the context of determining
whether
customary or common law should apply to the transaction, it
represents a glimmer of recognition that different cultural
and legal
traditions may offer valuable insights on the kind of compensation
that may be sufficient to redress wrongs.
[41]
The free spirit of our third Grace has an important role to
play in giving content to the normative value system of our
Constitution
and thereby shaping the development of our common law.
Of course, customary law will also continue to play its
independent
role under the Constitution as a pluralist choice of law
to govern aspects of legal life.
[58]
It is, however, also necessary to start giving serious
attention to how African conceptions of our constitutional values
should be used in the development of the common law in accordance
with those values.
[59]
[42]
In order to determine the appropriateness of monetary
compensation for delictual wrongs, one must look at whether that form
of compensation
is the only one that properly redresses damage to a
victim’s patrimony. In
Sechaba
Photoscan
,
Howie P stated:
“It is now
beyond question that damages in delict (and contract) are assessed
according to the comparative method. . . . The
award of
delictual damages seeks to compensate for the difference between the
actual position that obtains as a result of the delict
and the
hypothetical position that would have obtained had there been no
delict. That surely says enough to define the measure.”
[60]
[43]
Future medical expenses are awarded in respect of medical
services that the victim may need in the future, which would have
been
unnecessary had there been no delict. In principle, the
actual rendering of these services would fulfil the two-fold purpose
of redressing damage and compensating the victim. This method
may be even more appropriate where the victim does not intend
to put
any money that he or she might receive towards medical treatment.
Comparativists have pointed out that “[i]n
German law
medical expenses cannot be claimed if they have not actually been
incurred or, at the very least, it can be shown that
the plaintiff
does not intend to use the money for medical treatment”.
[61]
[44]
In logic and principle compensation in a form other than money
does not appear to be incompatible with the aim of making good “the
difference between the actual position that obtains as a result of
the delict, and the hypothetical position that would have obtained
had there been no delict”.
[62]
To require compensation in money as the “measure of all
things” therefore appears to be an evaluative normative
choice.
Does the common law’s choice in this regard offend the
normative underpinnings of our legal order?
[45]
In general terms, this seems doubtful. Neither the
Constitution nor the realities of modern life oblige us to find that
money
cannot be the measure of things. But it is arguable that
the fundamental right of everyone to have access to healthcare
services
and the state’s obligation to realise this right by
undertaking reasonable measures introduce factors for consideration
that
did not exist in the pre constitutional era. Aligned
to this is “the ever-increasing shift from the classical model
of individual loss bearing towards a collectivisation of losses”
that is reflected in the “gradual absorption
of [delict] law,
or at least large parts of it, into the modern social-security
system”.
[63]
[46]
The “once and for all” rule is derived from
English law
[64]
and is said to be so entrenched in our law that it is not possible to
oppose it on historical grounds.
[65]
But, as in the case of the entrenched rule that compensation
must always be paid in money, the Constitution does not absolve
us
from interrogating our history and whether the legal norms of the
past still fit in with those of the Constitution.
[47]
In the rule’s place of origin,
the legislature has intervened in order to provide for what was first
called “structured
settlements” and is now called
reviewable periodic payments.
[66]
On the recommendation of the Law Commission of England and
Wales,
[67]
section 2(1) of the Damages Act 1996 was enacted to allow the
courts to make an order for the whole or part of a damages award
to
take the form of periodic payments, provided the parties agree. The
Law Commission recommended that in the absence of
agreement there
should be no judicial power to impose a structured settlement. This
incurred the displeasure of Lord Steyn
in the
Wells
case:
“
[T]he
lump sum system causes acute problems in cases of serious injuries
with consequences enduring after the assessment of damages.
In
such cases, the judge must often resort to guesswork about the
future. Inevitably, judges will strain to ensure
that a
seriously injured plaintiff is properly cared for whatever the future
may have in store for him. It is a wasteful
system since the
courts are sometimes compelled to award large sums that turn out not
to be needed. It is true, of course,
that there is statutory
provision for periodic payments: see section 2 of the Damages Act
1996. But the Court only has this
power if both parties agree.
Such agreement is never, or virtually never, forthcoming. The
present power to order periodic
payments is a dead letter. The
solution is relatively straightforward.
The
Court ought to be given the power of its own motion to make an award
for periodic payments rather than a lump sum in appropriate
cases.
Such a power is perfectly consistent with the principle of full
compensation for pecuniary loss.
Except perhaps for the distaste of personal injury lawyers for
change to a familiar system, I can think of no substantial
argument
to the contrary. But the judges cannot make the change. Only
Parliament can solve the problem.”
[68]
(Emphasis added.)
[48]
It is not clear if Lord Steyn’s
deference to the legislature was occasioned merely by the fact that
the existing legislation
forbade court approval in the absence of
agreement between the parties. He may well have considered that
the courts could
have developed the law had it not been for this
fact. But in other common law jurisdictions the prevailing view
appears to
be that it is not within the courts’ remit to order
periodic payments because of the “once and for all” rule.
For example, the Supreme Court of Canada declined to make an
order for periodic payments in the absence of enabling legislation
or
the consent of all parties in
Watkins
.
[69]
The Court
acknowledged the argument for law reform in
order for the common law to evolve to meet the realities of
contemporary society, but
considered that to accede to it would be to
go beyond the “limits on the power of the judiciary to change
the law”:
“There are
sound reasons supporting this judicial reluctance to dramatically
recast established rules of law. The court
may not be in the
best position to assess the deficiencies of the existing law, much
less problems which may be associated with
the changes it might make.
The court has before it a single case; major changes in the law
should be predicated on a wider
view of how the rule will operate in
the broad generality of cases. Moreover, the court may not be
in a position to appreciate
fully the economic and policy issues
underlying the choice it is asked to make. Major changes to the
law often involve devising
subsidiary rules and procedures relevant
to their implementation, a task which is better accomplished through
consultation between
courts and practitioners than by judicial
decree. Finally, and perhaps most importantly, there is the
long-established principle
that in a constitutional democracy it is
the legislature, as the elected branch of government, which should
assume the major responsibility
for law reform.
Considerations such
as these suggest that major revisions of the law are best left to the
legislature. Where the matter is
one of a small extension of
existing rules to meet the exigencies of a new case and the
consequences of the change are readily
assessable, judges can and
should vary existing principles. But where the revision is
major and its ramifications complex,
the courts must proceed with
great caution.
The change in the
law which we are asked to endorse in this case would constitute a
major revision of the long-standing principles
governing the
assessment of damages for personal injury in particular, the
principle that judgment is to be rendered once and for-all
at the conclusion of a trial, and the correlative entitlement of the
plaintiff to immediate execution on the entire award.
Permitting courts to award periodic damages for personal injuries
does not involve the extension of an existing rule, but the adoption
of a new principle.”
[70]
[49]
For those schooled in the common law tradition it might
come as a surprise that “[t]he comparative law of personal
injuries
offers few divergences as striking as that between systems
which award [delictual] compensation in the form of a capital sum or
periodic payments”.
[71]
There are four legal possibilities of what
form payments for future expenses may take. On the outer limits
lie, on the one
side, the common law systems with lump sum awards not
payable periodically and, on the other, some socialist systems, which
allowed
only periodic payments or annuities; in between these
extremes are those systems that neutrally accept either lump sums or
periodic
payments (such as those of France and Switzerland) and
systems like Germany’s, which accepts that awards can take
either
form but prefers periodic payments.
[72]
[50]
Professor Fleming considers that the
“doctrinal rationale of the two basic systems offers rather
little for informed choice”
in that the usual argument for the
periodic payment (or rent) system is based on the natural law theory
of restitution while the
arguments in favour of capital awards
“ten[d] to be wholly pragmatic”.
[73]
At the highest level of legal policy, however, “capital
and rent confront each other, the one as a manifestation of
free
enterprise and individualism, the other as representing a social
philosophy of paternalism”.
[74]
[51]
The “once and for all”
rule has been cogently criticised.
[75]
As Nicholas JA pointed out in
Southern
Insurance Association
, the enquiry into
damages for future loss is “of its nature speculative, because
it involves a prediction as to the future,
without the benefit of
crystal balls, soothsayers, augurs or oracles. All that the
Court can do is to make an estimate, which
is often a very rough
estimate, of the present value of the loss”.
[76]
Professor Fleming calls these shortcomings “lamentable
beyond imagination”:
“
It
would be bad enough if the choice were between guessing either right
or
wrong:
but our methods virtually assure that the choice
must
turn out wrong. For the accredited approach is to compromise,
that is, neither to award the whole amount nor yet to refuse
all, but
instead to assess and
award the value of
the chance
.”
[77]
[52]
Similarly, however, the periodic
payment or rent system is open to criticism. It may involve
piecemeal consideration of the
effect of injuries, administrative
difficulties of enforcement, variations up and down, problems with
adjustment for inflation
and taxation, and the like.
[78]
[53]
What to make of all of this?
[54]
Although the “once and for
all” rule, with its bias towards individualism and the free
market, cannot be said to be
in conflict with our constitutional
value system, it can also not be said that the periodic payment or
rent system is out of sync
with the high value the Constitution
ascribes to socio-economic rights. There is no obvious choice
at this highest level
of justification. What appears to be
called for is an accommodation between the two. Is that
possible? At an
abstract level it might be more difficult, as
Professor Fleming observes:
“
André
Tunc recently described both capital and rent solutions as frankly
‘catastrophic’. This is especially
true if a
categorical choice between them, one way or the other, is demanded in
the abstract as one of overriding general policy.
What makes it
so invidious is that comparison falters really at two levels. At
one level there is the uncertainty about
goals: we are torn between
the paternalistic and the individualistic social philosophy, and yet
cannot have both; one or the other
must be sacrificed. On a
second level, the difficulty is that each system has a different
advantage over the other in meeting
policy objectives which
themselves are incontrovertible: for example, rent is better able to
cope with the problem of death or
other aggravation in the victim’s
physical condition, while capital conceivably provides a better hedge
against inflation.”
[79]
[55]
If the only choice open to us was at
this level then it would probably be better to leave reform to the
legislature. But this
may not be so. Resolution of the
dilemma may lie in leaving the choice at the level of each individual
case, depending on
which form of payment will best meet its
particular circumstances:
“
Reducing
the decision from the abstract or general to the concrete or
particular will frequently allow us to minimize the dilemma
of
subordinating one advantage to another. For example, in cases
of greatly reduced life-expectancy, the spectre of inflation
becomes
negligible compared with the advantages of a periodical award in
coping with the problems associated with the uncertain
date of death
and the desirability of making provisions for the victim’s
family thereafter. Even on what I called the
first-level
problem, the pressure may well be greatly reduced when there
is concrete evidence that the particular plaintiff
is either incapable of being entrusted with a large sum of money or
has, to the
contrary, an attractive plan for employing it in founding
a new career.”
[80]
[56]
We must remind ourselves again of
the context in which the argument for development of the common law
is made here. We are
not called upon to decide the fate of the
“once and for all” rule in all personal injury cases
arising from medical
negligence. The most important future
imponderable is the ultimate one: death. Periodic payments
subject to a “top-up/claw-back”
will give less
speculative expression to the general principle of compensation for
loss. And the likelihood of a dependant’s
claim, which
might present problems in other cases,
[81]
is less, if not entirely absent, here.
[57]
We have seen, in this regard, that
any development of the common law requires factual material upon
which the assessment whether
to develop the law must be made.
[82]
Here that factual material is absent. The only possible
factual foundation for an argument that the common law must
be
developed is the mere fact that WZ was born in a public healthcare
institution and that is where the medical negligence occurred.
This
is woefully inadequate to ground development of the common law in the
manner sought by the Gauteng MEC. The appeal
must fail, for
that reason.
[58]
But the failure of the appeal does
not mean that the door to further development of the common law is
shut. We have seen that
possibilities for further development
are arguable. Factual evidence to substantiate a carefully
pleaded argument for the
development of the common law must be
properly adduced for assessment. If it is sufficiently cogent,
it might well carry
the day.
[59]
As indicated earlier, I differ from
Jafta J’s view that the common law already provides for the
payment of damages in instalments.
Apart from the case of
Wade
,
which has not been followed, the only instances of periodic payments
as part of the damages award have been where the parties
agreed to
it, or where execution followed upon an award already made. If
an order for periodic payments were to be made under
section 173 of
the Constitution – or even section 172(1)(b), on which counsel
for the applicant did not seek to rely at the
hearing – that
would constitute incremental development of the common law insofar as
the court would need to determine whether
a new set of facts falls
within or beyond the scope of an existing rule, as explained by
O’Regan J in
K
.
[83]
Order
[60]
The following order is made:
1.
No person shall publish a report of the proceedings in this Court in
this matter
which reveals, or may reveal, the identity of the
respondent or the respondent’s child.
2.
Leave to appeal is granted.
3.
The appeal is dismissed with costs, including the costs of two
counsel.
JAFTA J:
[61]
I have had the benefit of reading the judgment prepared by my
brother Froneman J (first judgment). I agree that leave
must be granted and that the appeal should be dismissed with costs.
However my reasons differ from those contained in the
first judgment.
[62]
DZ initiated an action in the High Court against the Gauteng
MEC, for payment of damages arising from the negligence of the
Gauteng
MEC’s staff. The damages related to harm suffered
by DZ’s son at birth at a state hospital in Gauteng. The
child suffered brain damage as a result of the negligent conduct of
the Gauteng MEC’s employees. DZ sought to hold
the MEC
vicariously liable for the damage caused by those employees.
[63]
In her amended plea, the Gauteng MEC admitted liability but,
with regard to future medical expenses, she asked for an order
directing
her “to pay directly to the persons who will provide
services to [the child] within 30 days of the presentation of a
written
quotation to [her] accounting officer”. The plea
was formulated in these terms:
“QUANTUM
12.1 The defendant admits that this
Honourable Court found that she was liable for the admitted and/or
proved damages sustained by the plaintiff as a result of the
negligence of the employees.
12.2 The defendant however pleads that she
should be directed that instead of the monetary compensation
sought
in respect of medical expenses as set out in paragraph 9 of the
plaintiff’s amended particulars of claim, to
pay directly to
the person/s who will provide services to him within 30 days of
presentation of a written quotation to its accounting
officer.
12.3 In the event that it is found that the
South African Law does not make provision for such relief and,
only
in that event, the defendant avers that the South African Law must be
developed to make such provision.
. . .
15
In the event that the Court were to find that the amounts claimed by
the plaintiff
are both reasonable and are payable upon its order, the
defendant pleads that:
15.1 The plaintiff has entered into a
contingency fee agreement with its attorneys of record;
15.2 Such contingency fee agreement is in
terms of the Contingency Fee Act and such contingency fee agreement
will reduce the amount that is due to the minor for his future
medical care;
15.3 Furthermore the defendant avers that the
reduction of such future medical expense will put the child
out of
pocket and that it will not be in the best interest of the child;
15.4 In the circumstances the amount awarded
for future medical expenses should not be part of the amount
taken
into consideration for the calculation, determination and payment of
money in terms of the contingency fee agreement.
WHEREFORE the
defendant prays that:
(1) She should be directed
that instead of the monetary compensation sought in respect
of
medical expenses as set out in paragraph 9.1 of the plaintiff’s
amended particulars of claim, to pay directly to the person/s
who
will provide services to the minor child within 30 days of
presentation of a written quotation to its accounting officer.
(2)
Alternatively that the amount awarded for future medical expenses
should not be part
of the amount taken into consideration for the
calculation, determination and payment of money in terms of the
contingency fee
agreement(s).”
[64]
It is apparent
that three issues arise from this plea and that two of them are main
issues. The third issue is an alternative
to the first.
The first issue is whether the High Court could order that
compensation for future medical expenses be
paid directly to service
providers, within 30 days of the presentation of a written quotation
to the accounting officer of the
provincial department.
Alternatively, if the law did not permit direct payment, a
development of the law was requested.
[65]
Evidently, the Gauteng MEC thought
that the order she prayed for was permissible. But in the event
that the Court were to
find that the law did not allow the granting
of such order, she asked that the law be developed to cater for that
kind of order.
Not surprisingly, the Gauteng MEC did not
identify any particular legal rule that required development.
[66]
The second issue raised was whether
the amount awarded for future medical expenses should be part of an
amount considered when determining
the contingency fee payable
to DZ’s attorneys in terms of the agreement between her and
those attorneys.
[67]
On the third day of the trial, the
Gauteng MEC agreed to pay a sum of R23 272 303 to DZ.
This figure included an
amount of R19 970 631 that
represented future medical costs. This turn of events meant
that the only issues that
remained for the trial court to decide were
those raised in the amended plea. It is significant to note
that the original
plea did not raise an issue of payment of damages
in kind or in any form other than money. Therefore, payment of
damages
in any form other than money was not an issue in the High
Court and the Supreme Court of Appeal.
[68]
With regard to the first issue, the
High Court rejected the request for an order directing that payment
be made to service providers
upon submission of a written quotation.
The Court followed earlier decisions where the same request was
declined. In
rejecting the request the High Court held:
“
It
is disconcerting that the defendant persists with the issue about a
certificate of undertaking when four eminent judges of this
Court
have rejected the arguments without fail in four separate judgments.
I align myself with the said judgments.
It is unclear why the
defendant is persisting with this issue which is completely without
any substance. The defendant gives
the impression that it is
concerned about the well-being of [WZ] and has his interests at
heart. This is further from the
truth. The defendant
cannot decide what form of compensation should be awarded to the
plaintiff. She is not seeking
restitution but monetary
compensation. As stated earlier this matter has nothing to do
with indigenous law. [WZ] is
what he is today due to the
negligence of employees of the defendant. To add insult to the
injury the defendant now wishes
him to submit vouchers for future
medical treatment from a defendant that has a poor track record when
it comes to health care.
His interest would be best served by
the Trust that has been established.
The defendant has not made out a
proper case why the defendant should be ordered to issue a
certificate of undertaking which is
akin to a certificate issued in
road accident matters. The defendant is seeking to avoid the
applicable legislation and regulations
governing payments to be made
by the State, which it clearly cannot do in this case. The
common law deals adequately with
the relief that the plaintiff is
seeking and no case has been made out by the defendant why the common
law should be developed
further. The point raised is bad in law
and stands to be dismissed.
”
[84]
[69]
The High Court also refused to
develop the common law as an alternative to finding in the Gauteng
MEC’s favour on the first
issue. That Court concluded
that no proper case had been made out for the development of the
common law as no deficiency
in the common law had been established.
[70]
Regarding the second issue, the High
Court refused to interfere with the terms of the contingency fee
agreement at the instance
of someone who was not a party to that
agreement. Since the conclusion of the agreement had complied
with the Contingency
Fees Act,
[85]
the High Court held that the Gauteng MEC had failed to raise valid
grounds for making the proposed order.
Supreme Court of Appeal
[71]
The Supreme Court of Appeal granted
the Gauteng MEC leave to appeal to it. But the appeal was
dismissed with costs.
With reference to section 2(2) of the
Contingency Fees Act, that Court held that no court has the power to
alter the amount in
respect of which a practitioner’s fees are
determined. This is because the provision stipulates that a fee
is determined
with reference to the “total amount”
awarded.
[72]
In so far as the other issue was
concerned, the Supreme Court of Appeal held that the “once and
for all” rule of the
common law prohibited an order directing
that future medical expenses be paid periodically, upon presentation
of a written quotation
to the accounting officer. The Court
said:
“
The
order sought by the appellant in substitution of the lump sum award
made by the court a quo, is precluded by the common law
rule that a
person or his dependent, is only accorded a single, indivisible cause
of action to recover damages for all the loss
or damage suffered as a
result of the wrongful act causing disablement or death.”
[86]
In this Court
[73]
As noted in the first judgment, the
Eastern Cape MEC and the Western Cape MEC were admitted as
friends of the court and
advanced submissions that sought to leave
the door open for courts to authorise periodic payments of
compensation for future medical
expenses. This would be a
departure from payment in a lump sum.
[74]
The question that arises is whether
here the Supreme Court of Appeal was right in holding that the “order
sought by the appellant
in substitution of the lump sum award made by
the court a quo, is precluded by the common law rule that a person or
his dependent,
is only accorded a single, indivisible cause of action
to recover damages for all the loss”. It seems to me that
that
Court proceeded from the premise that what was sought was
alteration of the amount awarded and not the method of payment of
that
amount. In my respectful view, this was incorrect.
The request related to periodic payment of the amount of R19 970 631,
which had been awarded in respect of future medical expenses.
[75]
But more importantly, I do not agree
that the “once and for all” rule prohibits periodic
payments. This rule regulates
judicial process and not
execution of the payment of a judgment debt. The rule does not
require that once the amount of compensation
is determined it must be
paid in a single payment. It may well be that in a particular
case the judgment debtor does not
have funds or assets which cover
the entire debt. In that event the judgment creditor may exact
payment of part of the debt,
and if the debtor is later in possession
of assets that could cover the balance, the creditor may enforce
payment of the balance
of the debt. The common law does not
prohibit this.
[76]
What is prohibited by the “once
and for all” rule is a multiplicity of lawsuits based on a
single cause of action or
occurrence. In
Evins
,
Corbett JA defined the content of the rule in these words:
“
Expressed
in relation to delictual claims, the rule is to the effect that in
general a plaintiff must claim in one action all damages,
both
already sustained and prospective, flowing from one cause of
action.”
[87]
[77]
The fact that in jurisdictions like
Australia,
[88]
Canada,
[89]
and England and Wales
[90]
the “once and for all” rule includes the so-called
lump-sum rule does not mean that this is also the position in our
common law. The
Evins
definition of the rule does not say so, and I am not aware of a
decision of our courts that says that our common law on this issue
is
identical with the common law in those jurisdictions. As is
evident from
Evins
,
what the rule requires in our context is that all damages arising
from one cause of action be claimed in one action, and presumably
determined in that same action, in order to avoid multiple actions.
[78]
To underscore the purpose of the
rule, Corbett JA pointed out that its ally was the principle of
res
judicata
. He said:
“
The
principle of
res judicata
,
taken together with the ‘once and for all’ rule, means
that a claimant for Aquilian damages who has litigated finally
is
precluded from subsequently claiming from the same defendant upon the
same cause of action additional damages in respect of
further loss
suffered by him (i.e. loss not taken into account in the award of
damages in the original action), even though such
further loss
manifests itself or becomes capable of assessment only after the
conclusion of the original action. . . . 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.”
[91]
[79]
Here the request by the Gauteng MEC
was not that DZ should defer her claim for future medical expenses
for determination in a future
lawsuit. On the contrary, the
Gauteng MEC agreed to pay a fixed amount for medical expenses which
were yet to be incurred.
This case complied with the “once
and for all” rule. The request related to the manner of
effecting payment of
the amount claimed and awarded in one action.
In other words, the Gauteng MEC sought an order which would regulate
execution
of the order for payment of the amount in respect of future
medical expenses.
[80]
Execution is a process that
commences upon the finalisation of judicial process that culminates
in a judgment. The relationship
between a judicial process and
execution was affirmed by this Court in
Chief
Lesapo
, in which Mokgoro J stated:
“Execution is
a means of enforcing a judgment or order of a court and is incidental
to the judicial process. It is regulated
by statute and the
Rules of Court and is subject to the supervision of the court which
has an inherent jurisdiction to stay the
execution if the interests
of justice so require.”
[92]
It is apparent from this statement that
execution is not taken to be part of the judicial process. And
judicial process here
is used in the sense of adjudication which is a
judicial function. Execution is not a judicial function but an
administrative
one. It is commenced by seeking authorisation of
a writ of execution from an administrative functionary like the
registrar
or a clerk of the court.
[93]
[81]
With regard to Magistrates’
Courts, section 66 of the Magistrates’ Courts Act
[94]
empowers those courts to order periodic payments of a judgment
debt.
[95]
It would indeed be odd to hold that the superior courts lack the
power to order periodic payments only because there is no
statute
that empowers them to do so. These courts, unlike the lower
courts, are not creatures of statute. They enjoy
inherent
powers to “regulate their own process, and to develop the
common law, taking into account the interests of justice”.
[96]
[82]
The scope of those inherent powers
is not limited to ordering a stay of execution. It includes the
manner in which execution
may be carried out. Moreover, section
65M of the Magistrates’ Courts Act authorises, in appropriate
circumstances,
execution of judgments of the High Court as if they
were judgments of the Magistrates’ Court.
[97]
In that event a Magistrates’ Court would be empowered to direct
that payment of delictual damages determined by the
High Court be
paid in instalments. In those circumstances it would be absurd
to hold that the High Court lacks the power
to order periodic
payments.
[83]
Indeed in
Schoeman
this Court affirmed the authority of a court to order payment of a
judgment debt in instalments. Mokgoro J said:
“However, the
concept of paying off the debt in instalments is important and the
practicability of making such an order must
be ever present in the
mind of the judicial officer when determining whether there is good
cause to order the execution. The
balancing should not be seen
as an all or nothing process. It should not be that the
execution is either granted or the creditor
does not recover the
money owed. Every effort should be made to find creative
alternatives which allow for debt recovery
but which use execution
only as a last resort.”
[98]
[84]
Although this was stated in the
context of a judgment by a Magistrates’ Court, the Court
intended to declare a general constitutional
principle which requires
judicial oversight over execution on a judgment debtor’s home.
That oversight is necessary
even in respect of debts arising from
monetary orders made by the High Court. This is plain from
Gundwana
where Froneman J held:
“
It is rather ironic that
the effect of this judgment is to restore to the courts a function
that they exercised for close on a century
before the introduction of
rule 31(5) in 1994. The change to the original position has
been necessitated by constitutional
considerations not in existence
earlier, but these considerations do not challenge the principle that
a judgment creditor is entitled
to execute upon the assets of a
judgment debtor in satisfaction of a judgment debt sounding in
money. What it does is to
caution courts that, in allowing
execution against immovable property, due regard should be taken of
the impact that this may have
on judgment debtors who are poor and at
risk of losing their homes. If the judgment debt can be
satisfied in a reasonable
manner, without involving those drastic
consequences, that alternative course should be judicially considered
before granting execution
orders.”
[99]
[85]
I can think of no reason in logic or
principle which warrants that the inherent power of the High Court to
order payment of a judgment
debt in instalments should be restricted
to cases involving execution on one’s home only. The
guiding principle for
the exercise of that power must always be the
interests of justice. If justice would be served by ordering
periodic payments
of a judgment debt, a superior court must consider
making such an order. The duty to find “creative
alternatives which
allow for debt recovery” in lieu of
execution extends to all judgment debts, including orders for payment
of damages.
[100]
[86]
In fact, on the authority of this
Court, judicial oversight is constitutionally necessary whenever
execution against property of
the judgment debtor is contemplated.
This would apply even where what falls to be the subject of execution
is a sum of money.
In
University
of Stellenbosch Legal Aid Clinic
the
majority stated:
“
There
are two major differences with the first judgment. First, we
differ on an issue of principle. The first judgment
assumes,
without affirming definitively, that the Constitution requires
judicial supervision when orders issued from a court are
executed and
finds that this is how the contested provision ought to be properly
interpreted. The High Court in striking
down the contested
provision went further. It pointed out that this Court’s
judgments have repeatedly found that where
an applicant seeks an
order to execute against or seize control of the property of another
person, there must be judicial oversight.
To
my mind, the High Court was right. This is not a principle
that should merely be assumed in deciding this case.
It has
been established in the jurisprudence of this Court that execution of
court orders is part of the judicial process.
It
requires judicial oversight. Though previous cases dealt with
debtors’ homes,
the
principle underlying them was that judicial oversight of the
execution process against all forms of property is constitutionally
indispensable
.”
[101]
Consequently it would
be incongruous to hold that the High Court has no power to order
payment of damages by means of instalments,
but has the power to do
so when exercising oversight in relation to execution of the same
order.
[87]
For all these reasons, I conclude
that in its present form the common law does not prohibit periodic
payments of delictual damages.
In fact, the High Court has an
inherent power to determine whether such damages may be paid in
instalments or as a lump sum.
Ordinarily a lump sum payment
applies unless specific facts warranting a departure from this rule
are placed before a High Court
for the exercise of the inherent power
to order payment by instalments. Here the Gauteng MEC failed to
lead evidence supporting
the periodic payment of the damages in
respect of future medical expenses.
[88]
Therefore, there is no need to
develop the common law. A development of the common law is
necessary where there is a deficiency
or a particular rule is
inconsistent with the Constitution.
[102]
The purpose of the development must be to bring the common law in
line with our supreme law. Absent this inconsistency,
the need
to develop the common law does not arise.
[89]
But even if there was a common law
rule that precluded payment of damages in instalments, this would not
have meant that the granting
of such order was not competent.
This is because the authority of our courts to adjudicate disputes
and issue orders does
not derive from the common law but from the
Constitution.
[103]
Furthermore, the Constitution empowers courts, when deciding a
constitutional matter within their competence, to grant a
just and
equitable remedy.
[104]
This Court has already held that the exercise of the remedial power
conferred by section 172(1)(b) does not depend on a declaration
of
invalidity.
[105]
It will be recalled that the damages we are concerned with here are
for bodily injuries and that their purpose is to vindicate
rights
guaranteed by section 12 of the Constitution.
[106]
[90]
Therefore an approach that says a
High Court may not order periodic payment of damages awarded by it
misses the point. That
approach conflates the High Court’s
competence, which derives from the Constitution, with what may not be
permissible under
the common law. It must be remembered,
however, that the common law also draws its legal force from the same
Constitution.
It would be wrong to hold that the common law
precludes the High Court from exercising its constitutional power.
This illustrates
that, even if there were a common law rule that
prohibited periodic payment of damages, it would not have the effect
of denying
the High Court the authority to make such an order.
To conclude otherwise would be tantamount to placing the common law
above
the Constitution.
[91]
Indeed the first judgment cites two
cases in which our courts have in the past ordered periodic payments
of damages.
[107]
Both of them precede the Constitution. In both cases the courts
did not view themselves as lacking the power to order
periodic
payments. Nor did they hold the opinion that the common law
prohibited the making of such an order. The fact
that these two
decisions were not followed in subsequent cases does not, by itself
alone, mean that our courts do not have jurisdiction
to order
periodic payments.
[92]
That in both
Roxa
[108]
and
AD
[109]
the parties had consented to the order does not change anything.
In our law parties cannot by agreement confer on a court
jurisdiction
or competence it does not have. The question whether a court
has jurisdiction is a question of law. In
other words, courts
derive their jurisdiction or authority from the Constitution or,
where appropriate, from legislation.
Once that authority is
conferred, it cannot be taken away by the operation of the common
law.
[93]
The Supreme Court of Appeal decision
in
Kiewitz
erred when it concluded that periodic payment of damages is not
permitted under the common law. The decision in that matter
was
based on the judgment of the Supreme Court of Appeal in the present
case. In
Kiewitz
the Court held:
“This court
recently had occasion to deal with the proposed abolition of the
‘once and for all’ rule under the
guise of developing the
common law in
MEC for Health and Social Development, Gauteng
Provincial Government v
[
DZ
]. In that matter an
order was sought that future medical costs be paid as and when they
arose, rather than as a lump sum
award. It was argued that
large lump sum payments have the effect of depriving others of much
needed medical care thereby
placing in jeopardy the constitutional
right of access to health care services.
The court rejected the notion
that the abolition of the rule would promote the constitutional right
of all individuals to health
care as provided for in s 27 of the
Constitution. The court went on to state that this was an issue
more appropriately dealt
with by legislative intervention”
[110]
[94]
The Gauteng MEC did not propose the
abolition of the “once and for all” rule in this case, as
the Supreme Court of Appeal
held. On the contrary, she asked
for the development of the common law only in the event that it did
not permit payment for
“future medical costs as and when they
arose”. She did not even identify the rule that required
development.
Instead it was that Court itself which mistakenly
held that the “once and for all” rule prohibited the
order sought
by the Gauteng MEC and that the common law “would
have to be developed by the abolition of the ‘once and for all’
rule and not its modification, where damages are claimed in respect
of future medical expenses”.
[111]
No reasons were advanced for why the rule had to be abolished instead
of modifying it. It will be recalled that the
request was
limited to a method of payment of the agreed amount for future
medical expenses.
[95]
Furthermore, the facts do not
support that Court’s conclusion that to require submission of a
quotation, and “not a
statement or invoice”, would
suggest that the Gauteng MEC had “a discretion not only whether
to approve the particular
medical services, but also whether to make
payment”.
[112]
The facts were that the precondition for payment would be the
submission of the quotation to the accounting officer and not
the
MEC. The mere submission of the quotation would trigger payment
within 30 days. The accounting officer would have
no discretion
to approve the services. Nor would the accounting officer have
any discretion to approve payment. Once
the condition set out
in the order was met, the accounting officer would be obliged to pay.
Medical services in lieu
of money
[96]
In argument before us, the Gauteng
MEC contended that the tender of medical services by her must replace
payment of the monetary
award in respect of future medical expenses.
For a number of reasons we should decline to decide this issue.
First,
the issue was not pleaded and consequently was not determined
by the trial court. Second, the Supreme Court of Appeal refused
to entertain it on the ground that the point was not pleaded and did
not form part of the case.
[113]
Third, the MEC herself had agreed to pay the sum of R19 970 631
in respect of future medical expenses. No
reason was advanced
for exempting the Gauteng MEC from her obligations under an agreement
she voluntarily concluded.
[97]
Although the point reveals
interesting legal issues, we must resist the temptation of expressing
an opinion on it one way or the
other. This is more so in light
of
Ngubane
which implicitly recognised the tender of medical services in lieu of
payment of money in an appropriate case.
[114]
It appears that both here and in
Kiewitz
,
this decision was not brought to the attention of the Supreme Court
of Appeal.
[98]
It is for these reasons that I
support the order proposed in the first judgment.
For the
Applicant:
V S Notshe SC and A M Pheto instructed by The State Attorney
For the
Respondent:
S Budlender, M Coetzer and M Mbikiwa (Pupil) instructed by
Wim Krynauw Incorporated
For the First Amicus
Curiae:
A Dodson SC, A Bodlani, P Seseane and M Finn instructed by The
State Attorney
For the Second Amicus
Curiae:
G
Budlender SC and N Bawa SC instructed by The State Attorney
[1]
Like the applicant in
H v Fetal Assessment Centre
[2014] ZACC
34
;
2015 (2) SA 193
(CC);
2015 (2) BCLR 127
(CC), the minor victim
in this case ought to be anonymous. This is in the best
interests of the child, not merely in light
of the child’s
right to privacy, but because when the child “becomes an adult
the many physical disabilities suffered
by the [child] will result
in vulnerability. If the sums of money at the [child’s]
disposal as a result of this [judgment]
are readily to be found out
on the internet, there will be a risk of the [child] losing that
money to inappropriate friends,
fortune hunters or even thieves”:
Re A (A Child) (Publication of Report of Proceedings:
Restrictions)
[2011] EMLR 18
at para 17. The child’s
parent, the respondent, must also be anonymous in order to ensure
the effectiveness of the
order.
[2]
AD v MEC, Health and Social Development, Western Cape
[2016]
ZAWCHC 116
at para 54.
[3]
Personal injury claims involve the fundamental right to freedom from
all forms of violence and security of the person and bodily
integrity (section 12(1)(c) and (2) of the Constitution); when
applying a provision of the Bill of Rights to a natural or juristic
person a court may develop the rules of the common law to limit the
right in accordance with the limitations clause (section
8(3)(b));
when developing the common law every court must promote the spirit,
purport and objects of the Bill of Rights (section
39(2)); and
everyone has the right to have access to healthcare services, which
the state must take reasonable legislative and
other measures,
within its available resources, progressively to achieve (section
27(1) and (2)).
[4]
See [1] to [3].
[5]
With reference to
Wynberg Valley Railway Company v Eksteen
1
Roscoe 70
at 74. Harms JA added that Bell J “qualified
the general proposition but his qualification is not in the present
context germane”. Bell J’s full statement reads:
“It is no
doubt true, as an abstract proposition, that when damages are due by
law they are to be awarded in money, as,
to use the language of the
commentators, ‘money is the measure of all things’ . . .
but that proposition may fail
in its application according to the
particular circumstances of the case to which its application is
directed.”
In an application
to make an arbitration award final the Court declined to do so
because the award of compensation was made partly
in money and
partly in kind, something that the applicable legislation (section
18 of the Wynberg Railway Company’s Act)
did not allow. It
appears at 76 to 80 that, had it not been for the specifics of the
legislation, the court considered
the payment of compensation partly
in money and partly in kind as being fair and reasonable.
[6]
Standard Chartered Bank of Canada v Nedperm Bank Ltd
[1994]
ZASCA 146
;
1994 (4) SA 747
(A) (
Standard Chartered Bank
)
at 782D-F. Harms JA referred to
Santam
Versekeringsmaatskappy Bpk v Byleveldt
1973 (2) SA 146
(A) at
150A-C;
Southern Insurance Association Ltd v Bailey N.O.
1984
(1) SA 98
(A) (
Southern Insurance Association
) at 111D-F; and
Erasmus and Gauntlett “Damages” in
LAWSA
(1979)
vol 7 at paras 1 and 17
.
[7]
See Midgley “Delict” in
LAWSA
3 ed (2016) vol 15
at para 201 and
Van der Merwe v Road Accident Fund
[2006]
ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC) at para 37-8.
[8]
See Midgley id and Visser and Potgieter
Law of Damages
3 ed
(Juta & Co Ltd, Cape Town 2012) at 153-4.
[9]
Evins v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at
835C-H.
[10]
Ngubane v South African Transport Services
[1990] ZASCA
148
; 1991 (1) SA 756 (A).
[11]
Id at 783H-I.
[12]
Id at 784B-C.
[13]
Id at C-F.
[14]
Id at E-G.
[15]
Id at 785C-E.
[16]
See id at 784G-85C. See also Midgley above n 7 at para 215.
That this is so is underscored by the fact that a similar
approach
has been endorsed by the courts of England and Wales. For
example, the Court of Appeal held that a tetraplegic
plaintiff who
was not utilising any services available under the Chronically Sick
and Disabled Persons Act 1970 could not recover
the full amount
claimed in respect of future medical expenses based on the cost of
running a fully-equipped private home with
private nursing staff in
Cunningham v Harrison
[1973] 3 All ER 463
(CA). Orr LJ
considered, at 471, that a reduction had to be made in view of—
“the strong
probability that there will be long periods when the plaintiff will
be unable to obtain nursing and housekeeping
help and will be
obliged to go into a National Health hospital or a home provided by
some benevolent organisation and . . . that
he will benefit in the
years to come from the provisions of the [1970 Act].”
He also explained that—
“[t]o make
such a reduction does not, in my view, conflict in any way with the
provisions of section 2(4) of the Law Reform
(Personal Injuries) Act
1948, since . . . that section does not provide that a plaintiff
shall be entitled to recover expenses
which he will not in fact
incur.”
At the time that
Cunningham
was
decided, the Law Reform (Personal Injuries) Act 1948 governed the
relationship between tort damages and social-security benefits;
the
current legislation is the Social Security (Recovery of Benefits)
Act 1997: see Peel and Goudkamp (eds)
Winfield and Jolowicz on
Tort
19 ed (Sweet & Maxwell Ltd, London 2014) at para
23-091.
[17]
See
Transnet Ltd v Sechaba Photoscan (Pty) Ltd
[2004] ZASCA
24
;
2005 (1) SA 299
(SCA) (
Sechaba Photoscan
) at para
15.
[18]
Compare
Rudman v Road Accident Fund
[2002] ZASCA 129
;
2003
(2) SA 234
(SCA) at para 11.
[19]
The Premier, Western Cape N.O. v Kiewitz
[2017] ZASCA 41
;
2017 (4) SA 202
(SCA) (
Kiewitz
) at para 13.
[20]
Id.
[21]
The Court did rely on its judgment in the present case:
The MEC
for Health and Social Development of the Gauteng Provincial
Government v
[
DZ
]
[2016] ZASCA 185
(SCA judgment).
[22]
Compare
Southern Insurance Association
above n 6 at 113G.
[23]
Compare
Rudman
above n 18.
[24]
Wade v Santam Insurance Company Ltd
1985 1 PH J3 (C).
[25]
Neethling, Potgieter and Visser
Law
of Delict
7 ed (LexisNexis
Butterworths, Durban 2014) at 245 fn 223.
[26]
Roxa v Mtshayi
1975 (3) SA 761
(A)
at 770.
[27]
Erasmus and Gauntlett above n 6 at para 25.
[28]
Section 173 of the Constitution provides:
“The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to
protect and regulate
their own process, and to develop the common law, taking into
account the interests of justice.”
[29]
See [87].
[30]
See [59].
[31]
K v Minister of Safety and Security
[2005] ZACC 8
;
2005 (6)
SA 419
(CC);
2005 (9) BCLR 835
(CC) at para 16.
[32]
Id.
[33]
H
above n 1 at para 14.
[34]
Id (citing
Carmichele v Minister of Safety and Security (Centre
for Applied Legal Studies intervening)
[2001] ZACC 22
;
2001 (4)
SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 80).
[35]
Section 39(2) of the Constitution provides:
“When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum
must promote the
spirit, purport and objects of the Bill of Rights.”
[36]
K
above n 31 at para 17.
[37]
Mighty Solutions t/a Orlando Service Station v Engen Petroleum
Ltd
[2015] ZACC 34
;
2016 (1) SA 621
(CC);
2016 (1) BCLR 28
(CC)
(
Mighty Solutions
) at para 39. Compare
Carmichele
above n 34 at para 40 and
Khumalo v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para 41.
[38]
Mokone v Tassos Properties CC
[2017] ZACC 25
at para 40.
[39]
Id at para 41.
[40]
Id.
[41]
In terms of section 8(2) of the Constitution, which provides for the
so-called “horizontal” application of the Bill
of
Rights.
[42]
Section 8(3) of the Constitution.
[43]
Carmichele
above n 34 at para 36;
Mighty Solutions
above
n 37 at para 40. In this connection, it is important to note
the “major role” that the South African Law
Reform
Commission plays in the “development and reform of the law”
by preparing draft Bills “after doing research
and publishing
a report on a particular topic” that frequently forms “the
core of subsequent legislation tabled in
Parliament”: Heaton
“South Africa: Changing the Contours of Child and Family Law”
in Sutherland (ed)
The Future of Child and Family Law:
International Predictions
(CUP, Cambridge 2012) at 400.
[44]
Innes CJ said this of the law made by judges and jurists in
O’Callaghan N.O. v Chaplin
1927 AD 310
at 327:
“It is the
duty of a court – especially of an appellate tribunal –
so to administer a living system of law as
to ensure – without
the sacrifice of fundamental principles – that it shall adapt
itself to the changing conditions
of the time. And it may be
necessary sometimes to modify or even to discard doctrines which
have become outworn.”
Compare
R v Jogee
;
Ruddock v
The Queen
[2017] AC 387
at para 85, where Lord Hughes JSC and
Lord Toulson JSC considered that—
“[a]s to the
argument that even if the court is satisfied that the law took a
wrong turn, any correction should now be left
to Parliament, the
doctrine of secondary liability is a common law doctrine . . . and,
if it has been unduly widened by the courts,
it is proper for the
courts to correct the error.”
[45]
See for example
Mighty Solutions
above n 37 at paras 44 and
45.
[46]
Paulsen v Slip Knot Investments 777 (Pty) Ltd
[2015] ZACC 5
;
2015 (3) SA 479
(CC);
2015 (5) BCLR 509
(CC) at para 115.
Compare Hoffmann “
Fairchild
and After” in
Burrows, Johnston and Zimmermann
Judge and Jurist: Essays in
Memory of Lord Rodger of Earlsferry
(OUP, Oxford 2013) at 68-70.
[47]
See [14] to [16].
[48]
See [21].
[49]
See [14].
[50]
Zimmermann
The Law of Obligations: Roman Foundations of the
Civilian Tradition
(Juta & Co Ltd, Cape Town 1990) at 914.
[51]
Id at 1022.
[52]
Id at 1032.
[53]
Wynberg Valley Railway Company
above n 5 at 74.
[54]
See n 5.
[55]
Zimmermann above n 50 at xi.
[56]
Zimmermann and Visser (eds)
Southern Cross: Civil Law and
Common Law in South Africa
(Juta & Co Ltd, Cape Town 1996)
at 15.
[57]
Mhlongo v Mhlongo
1937 NAC (N & T) 124 at 125-6.
[58]
Customary law is one of many “elements of traditional African
society” of “noteworthy and continuing cultural
relevance”; this is reflected in the fact that our
constitutional order recognises “cultural pluralism with legal
. . . consequences” and guarantees “the survival of an
evolving customary law” alongside the common law (including
Roman-Dutch law):
Ex Parte Chairperson of the Constitutional
Assembly: In re Certification of the Constitution of the Republic of
South Africa,
1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996
(10) BCLR 1253
(CC) at paras 195, 197 and 200. See Kerr “The
Constitution and Customary Law”
(2009) 126
SALJ
39
at
42-3 and Himonga and Bosch “The Application of African
Customary Law under the Constitution of South Africa: Problems
Solved or Just Beginning?”
(2000) 117
SALJ
306
at 309
and 312-3.
[59]
Like the determination of the common law, the determination of
customary law is a question of law – albeit one that must
be
answered cautiously in view of the nature of customary law:
MM v
MN
[2013] ZACC 14
;
2013 (4) SA 415
(CC);
2013 (8) BCLR 918
(CC)
at paras 44 and 47. However, what is immediately necessary is
to articulate, and pay heed to, the African philosophical
values
underlying customary law in order to ensure that the content of our
constitutional values take cognisance of them.
[60]
Sechaba Photoscan
above n 17 at para 15. See also
Erasmus and Gauntlett above n 6 at para 21.
[61]
Markesinis and Unberath
The German Law of Torts: A Comparative
Treatise
4 ed (Hart Publishing, Oxford 2002) at 908 (citing
(1986) BGHZ at 142).
[62]
In Widmer
Unification of Tort Law: Fault
(Kluwer Law
International, The Hague 2005) at 376, this is said:
“Instead of damages, restoration
in kind can be claimed by the injured party as far as it is possible
and not too burdensome
to the other party.”
This is one of
many “principles” formulated by the European Group of
Tort Law; these have no official standing but
represent an attempt
to set out the principles of European tort law in a manner akin to
the American Restatement.
[63]
Zimmermann above n 50 at 904. See also Markesinis and Unberath
above n 61 at 903.
[64]
See [15]. See also
Cape Town Council v Jacobs
1917 AD
615
at 620.
[65]
Visser and Potgieter above n 8 at 153.
[66]
See Jones, Dugdale and Simpson (eds)
Clerk and Lindsell on Torts
21 ed (Sweet & Maxwell Ltd, London 2014) at paras 28-72-28-76.
[67]
Law Commission of England and Wales
Structured Settlements and
Interim and Provisional Damages
(report 224, September
1994).
[68]
Wells v Wells
;
Thomas v Brighton Health Authority
;
Page v Sheerness Steel Co plc
[1998] UKHL 27
;
[1998] 3 All ER 481
(HL) at
502.
[69]
Watkins v Olafson
[1989] 2 SCR 750 (SCC).
[70]
Id at 760-2.
[71]
Fleming “Damages: Capital or Rent?”
(1969) 19
U
Toronto LJ
295
at 295.
[72]
Markesinis and Unberath above n 61 at 911-2; Fleming id at 298-9:
“Moreover,
it is necessary at the outset to dispel the possible delusion as if
there were but one model of the rent system.
Variations are
marked and intimately affect their competitive attractions. In
the first place, there is actually little
support outside the
socialist bloc for making rent the only authorized form of
tort-compensation for continuing disability.
All other legal
systems countenance capital awards as an alternative: some (like
Germany and Sweden) only as an exceptional expedient,
most, however,
without such a pronounced bias. Many but by no means all
countries permit subsequent variation of awards,
though some (like
Switzerland) only if authorized in the original award. France
permits modification only for changes in
the physical condition of
the victim, while many others following the German pattern impose no
restriction whatever. Most
entertain reduction as well as
increase, but France and Sweden only increase. Finally, in
some countries, the periodical
pattern is considered mandatory for
settlements as well as judicial awards; while in others, most
notably in Germany, lump-sum
settlements have like termites reduced
the rent system to but a hollow shell.”
[73]
Fleming above n 71 at 299.
[74]
Id at 299-300:
“A capital
sum obviously offers the recipient a much wider range of choice of
how to fashion his future. Quite often,
by being furnished
with a fund he could never have hoped to amass ordinarily, he is put
within reach of economic opportunities
that would otherwise have
been foreclosed. By the same token, he may dissipate his
chances by failings either of temperament,
requisite knowledge, or
luck. Either event, however, falls within that calculus of
economic opportunity which is widely
regarded as a mainstay of our
capitalist-oriented way of life. By all indications it is also
far and away the most favoured
choice among injury victims,
apparently for precisely the same reason.
Periodical
payments, on the other hand, find spokesmen among both doctrinaire
socialists and people endowed with a more pessimistic
view of human
capacity to rise to new challenges. Not without significance,
it was the German jurists of nearly a century
ago who supported
their advocacy of the rent-system with the argument that the hapless
victims of accident were typically too
ill-educated to be entrusted
with large sums of money. The state, it is argued, cannot
afford to remain indifferent to
this plight because, for one, it
owes a duty to protect these victims of misfortune against their own
folly and, for another,
it is concerned in its own fiscal interest
against their becoming a charge on public funds.”
[75]
Visser and Potgieter above n 8 at 154-5. See also Spandau
“Inflation and the Law” (1975) 92
SALJ
31.
[76]
See [22].
[77]
Fleming above n 71 at 302.
[78]
Id at 302-23. See also Markesinis and Unberath above n 61 at
912-5.
[79]
Fleming above n 71 at 323.
[80]
Id at 323-4.
[81]
See, for example, id at 310-1.
[82]
See [29] to [30].
[83]
K
above n 32 at para 16.
[84]
MEC for Health and Social Development, Gauteng v
[
DZ
]
obo
[
WZ
], unreported judgment of the Gauteng Local
Division, Johannesburg, Case No J2013/9204 (26 June 2015) at
paras 27-8.
[85]
66 of 1997.
[86]
SCA judgment above n 21 at para 6.
[87]
Evins
above n 9 at 835C-D. See also
Slomowitz v
Vereeniging Town Council
1966 (3) SA 317
(A) at 330E-G.
[88]
Grey v Richards
[2014] HCA 40
;
(2014) 253 CLR 660
(HCA) and
Todorovic v Waller
[1981] HCA 72; (1981) 150 CLR 402 (HCA).
[89]
Krangle v Brisco
2002 SCC 9
;
[2002] 1 SCR 205
and
Watkins
above n 69.
[90]
Simon v Helmot
[2012] UKPC 5
at paras 10-25 and
Wells
above n 68.
[91]
Evins
above n 9 at 835G-6A.
[92]
Chief Lesapo v North West Agricultural Bank
[1999] ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
at para 13.
[93]
Rule 46 of the Uniform Rules of Court.
[94]
32 of 1944.
[95]
Section 66(1) of the Magistrates’ Courts Act provides:
“
(a)
Whenever a court gives judgment for the payment of money or makes an
order for
the payment of money in instalments, such judgment, in
case of failure to pay such money forthwith, or such order in case
of
failure to pay any instalment at the time and in the manner
ordered by the court, shall be enforceable by execution against the
movable property and, if there is not found sufficient movable
property to satisfy the judgment or order, or the court, on good
cause shown, so orders, then against the immovable property of the
party against whom such judgment has been given or such order
has
been made.
(b)
Upon such failure to pay any instalment in accordance with any court
order, execution may be effected in respect of the whole of the
judgment debt and of costs then still unpaid, unless the court,
on
the application of the party that is liable, orders otherwise.”
[96]
Section 173 of the Constitution provides:
“The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to
protect and regulate
their own process, and to develop the common law, taking into
account the interests of justice.”
[97]
Section 65M provides:
“If a
judgment for the payment of any amount of money has been given by a
division of the Supreme Court of South Africa,
the judgment creditor
may file with the clerk of the court from which the judgment
creditor is required to issue a notice in
terms of section 65A (1),
a certified copy of such judgment and an affidavit or affirmation by
the judgment creditor or a certificate
by his attorney specifying
the amount still owing under the judgment and how such amount is
arrived at, and thereupon such judgment,
whether or not the amount
of such judgment would otherwise have exceeded the jurisdiction of
the court, shall have all the effects
of a judgment of such court
and any proceedings may be taken thereon as if it were a judgment
lawfully given in such court in
favour of the judgment creditor for
the amount mentioned in the affidavit or affirmation or the
certificate as still owing under
such judgment, subject however to
the right of the judgment debtor to dispute the correctness of the
amount specified in the
said affidavit or affirmation or
certificate.”
[98]
Jaftha v Schoeman
;
Van Rooyen v Stoltz
[2004] ZACC 25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC) (
Schoeman
) at
para 59.
[99]
Gundwana v Steko Development CC
[2011] ZACC 14
;
2011 (3) SA
608
(CC);
2011 (8) BCLR 792
(CC) at para 53.
[100]
Schoeman
above n 98 at para 59.
[101]
University of Stellenbosch Legal Aid Clinic v Minister of Justice
and Correctional Services
;
Association of Debt Recovery
Agents NPC v University of Stellenbosch Legal Aid Clinic
;
Mavava
Trading 279 (Pty) Ltd v University of Stellenbosch Legal Aid Clinic
[2016] ZACC 32;
2016 (6) SA 596
(CC);
2016 (12) BCLR
1535
(CC) at para 129.
[102]
S v Thebus
[2003]
ZACC 12
;
2003
(6)
SA 505
(CC);
2003 (10) BCLR 1100
(CC) at para 28;
Carmichele
above n 34 at
paras 39-40.
[103]
Section 165(1) of the Constitution provides:
“The judicial authority of the
Republic is vested in the courts.”
[104]
Section 172(1) of the Constitution provides:
“When
deciding a constitutional matter within its powers, a court—
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency; and
(b)
may make any order that is just and equitable, including—
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period
and
on any conditions, to allow the competent authority to correct the
defect.”
[105]
Head of Department, Mpumalanga Department of Education v
Hoërskool Ermelo
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010
(3) BCLR 177
(CC) at para 97.
[106]
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at paras 60-1.
[107]
See [25].
[108]
Roxa
above n 26.
[109]
AD
above n 2.
[110]
Kiewitz
above n 19 at paras 9-10.
[111]
SCA judgment above n 21 at para 9.
[112]
Id at para 8.
[113]
Id at para 14.
[114]
Ngubane
above n 10.