MEC for Health and Social Development, Gauteng v DZ obo Wz

• Jurisdiction: South Africa

MEC for Health and Social Development, Gauteng v DZ obo WZ
2018 (1) SA 335 (CC)

2018 (1) SA p335

Citation	2018 (1) SA 335 (CC)
Case No	CCT 20/17; [2017] ZACC 37
Court	Constitutional Court
Judge	Zondo DCJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ
Heard	October 31, 2017
Judgment	October 31, 2017
Counsel	VS Notshe SC (with AM Pheto) for the applicant.; S Budlender (with M Coetzer and M Mbikiwa) for the respondent.; A Dodson SC (with A Bodlani, P Seseane and M Finn) for the first amicus.; G Budlender SC (with N Bawa SC) for the second amicus.

Flynote : Sleutelwoorde

Damages — Bodily injuries — Medical expenses — Future medical expenses — Once and for all rule and rule that damages must sound in money — Development of common law to provide for periodic payments and C payment in kind — Insufficiency of evidence tendered — Question of development left open — Possibilities discussed.

Headnote : Kopnota

Having admitted liability in a claim for damages by DZ (on behalf of her child WZ) flowing from medical negligence during WZ's birth, the defendant (the D Gauteng MEC), in an amended High Court plea, sought to satisfy the award of R20 million in respect of WZ's future medical expenses by paying them as they arose instead of in a lump sum. The Gauteng MEC argued that if the common law did not allow her to do this, it should be developed. The High Court and the Supreme Court of Appeal dismissed the amended plea. The SCA found that the common-law 'once and for all' rule precluded E defendants from making periodic payments instead of a global one, and declined to develop the common law on the grounds that s 39 of the Constitution did not require it and that delictual reform was in any event the province of the legislature. In an appeal to the Constitutional Court the MECs for Health of the Eastern and Western Cape were on various grounds (see [5] – [7]) admitted as amici. They were concerned about legal defences or programmes that might be compromised by the present judgment. F

In issue was the suggested development of the common-law rules that delictual compensation must sound in money and be claimed at once (the once and for all rule). The Gauteng MEC and the amici advanced three propositions: (i) that delictual compensation need not sound in money but could be paid in kind; (ii) that the once and for all rule applied to the determination of G

2018 (1) SA p336

liability, A not to the quantification of damages; and (iii) that a defendant could challenge the amount claimed on the ground that the plaintiff was likely to use cheaper public healthcare of equal standard. There were also arguments based on the deleterious effect of malpractice awards on public finances; an alternative 'undertaking-to-pay' defence; and a suggested 'top-up/claw-back' mechanism used in the Western Cape.

Held B per Froneman J for the majority

While propositions (i) and (ii) above clashed with the abovementioned common-law rules, (iii) was on surer footing: it was currently open to a defendant who wished to dispute a claim for future medical expenses to show that the plaintiff could reasonably obtain similar services from a public healthcare facility (or elsewhere) at a lower rate than the one underlying the claim. C If the evidence was sufficiently cogent, the plaintiff's claim for higher (private) expenses would fail. Whether the courts were entitled to order periodic payments had not yet been conclusively decided, but such a system would not in principle be unconstitutional. (See [14] – [25], [35], [49].)

Since the Gauteng MEC had failed to show that DZ's claim was unreasonable, her amended plea would fail on the existing common law (see [26]). Because D development of the common law could not happen in a factual vacuum, and because the Gauteng MEC had failed to provide a factual matrix for it, the court would not extend the common law in the way sought by her (see [28] – [32], [57]). The fact that the appeal would therefore fail did not, however, mean that the door to further development of the common law was shut: if in the future the factual evidence was sufficiently cogent, it E could carry the day (see [58]).

The judgment discussed the possibilities for the future development of the common-law rules (see [37] – [55]). It pointed out that compensation in a form other than money was not incompatible with the aim of redressing damages, and that the actual rendering of medical services would fulfil the twofold purpose of redressing damage and compensating the victim (see F [43] – [44]). While the common-law rule of measurement in money was not contrary to constitutional principles, the right to universal healthcare and the state's obligation to provide it introduced factors that did not exist in the pre-constitutional era (see [45]). An award for periodic payments was an alternative to a lump-sum award, and both forms were compatible with the Constitution (see [49], [54]). An accommodation between the two systems G at the individual level was called for (see [54] – [55]). Periodic payments subject to a 'top-up/claw-back' would comply with general principles (see [56]).

Held per Jafta J concurring

The once and for all rule prohibited a multiplicity of lawsuits based on a single cause of action, not periodic payments (see [75] – [76], [79], [87]). And H even if the common law precluded payment of damages in instalments, this did not mean that the granting of such order was not competent (see [89]).

Cases cited

Southern Africa

AD v MEC, Health and Social Development, Western Cape [2016] ZAWCHC 116: I referred to

Cape Town City Council v Jacobs 1917 AD 615: referred to

Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): dictum in para [80] applied

Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC) J (1999 (12) BCLR 1420; [1999] ZACC 16): referred to

2018 (1) SA p337

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A): referred to A

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253; [1996] ZACC 26): applied

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851; [1997] ZACC 6): referred to

Gundwana v Steko Development and Others 2011 (3) SA 608 (CC) B (2011 (8) BCLR 792; [2011] ZACC 14): referred to

H v Fetal Assessment Centre 2015 (2) SA 193 (CC) (2015 (2) BCLR 127; [2014] ZACC 34): dictum in para [14] applied

Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another 2010 (2) SA 415 (CC) (2010 (3) BCLR 177; [2009] ZACC 32): referred to C

Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) (2005 (1) BCLR 78; [2004] ZACC 25): referred to

K v Minister of Safety and Security 2005 (6) SA 419 (CC) (2005 (9) BCLR 835; [2005] ZACC 8): dicta in paras [16] – [17] applied

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): dictum in para [41] applied D

MEC for Health and Social Development, Gauteng Provincial Government v DZ [2016] ZASCA 185: confirmed on appeal

MEC for Health and Social Development, Gauteng v DZ obo WZ GJ 2013/9204: approved

Mhlongo v Mhlongo 1937 NAC (N&T) 124: approved

Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and Another E 2016 (1) SA 621 (CC) (2016 (1) BCLR 28; [2015] ZACC 34): dicta in paras [39] – [40] applied

MM v MN and Another 2013 (4) SA 415 (CC) (2013 (8) BCLR 918; [2013] ZACC 14): dicta in paras [44] and [47] applied

Mokone v Tassos Properties CC 2017 (5) SA 456 (CC) ([2017] ZACC 25): dicta in paras [40] – [41] applied F

Ngubane v South African Transport Services 1991 (1) SA 756 (A): dicta at 783H – 785E applied

O'Callaghan NO v Chaplin 1927 AD 310: dictum at 327 applied

Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) (2015 (5) BCLR 509; [2015] ZACC 5): dictum in para [115] applied G

Premier, Western Cape v Kiewitz 2017 (4) SA 202 (SCA) ([2017] ZASCA 41): criticised

Roxa v Mtshayi 1975 (3) SA 761 (A): discussed

Rudman v Road Accident Fund 2003 (2) SA 234 (SCA) ([2002] 4 All SA 422; [2002] ZASCA 129): compared H

S v Thebus and Another 2003 (6) SA 505 (CC) (2003 (2) SACR 319; 2003 (10) BCLR 1100; [2003] ZACC 12): referred to

Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A): referred to

Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A): referred to

Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A): referred to I

Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A): referred to

The Wynberg Valley Railway Company v Eksteen 1 Roscoe 70: referred to

Transnet Ltd v Sechaba Photoscan (Pty) Ltd 2005 (1) SA 299 (SCA) ([2004] ZASCA 24): dicta in paras [11] and [17] applied J

2018 (1) SA p338

University A of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others 2016 (6) SA 596 (CC) (2016 (12) BCLR 1535; [2016] ZACC 32): referred to

Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC) (2006 (6) BCLR 682; [2006] ZACC 4): referred to

Wade v Santam Insurance Co Ltd 1985 1 PH J3 (C): discussed.

Australia B

Grey v Richards [2014] HCA 40 ((2014) 253 CLR 660): referred to

Todorovic v Waller [1981] HCA 72 ((1981) 150 CLR 402): referred to.

Canada

Krangle C v Brisco 2002 SCC 9 ([2002] 1 SCR 205): referred to

Watkins v Olafson [1989] 2 SCR 750 (SCC): referred to.

England

Cunningham v Harrison and Another [1973] 3 All ER 463 (CA): referred to

R v Jogee [2016] UKSC 8 ([2017] AC 387): referred to

Re D A (A...