NP v The Member of the Executive Council for Health of the Gauteng Provincial Government

• Jurisdiction: South Africa
• Judge: WHG Van der Linde J
• Judgment Date: 07 February 2019
• Docket Number: 22473/2012
• Court: Gauteng Local Division, Johannesburg
• Hearing Date: 06 February 2019
• Citation: 2019 JDR 0377 (GJ)

Van der Linde J:

[1]

This trial action is for the quantum of damages to be awarded to the plaintiff on behalf of her minor son who, when he was born on 12 September 2006, was left with cerebral palsy as a

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result of the negligence of the medical staff at the Chris Hani Baragwanath Hospital. The Gauteng Department of Health, for whom the defendant is nominally cited, is vicariously responsible for the negligence of the employees at the hospital. An order by Moshidi, J on 24 April 2017 determined liability in favour of the plaintiff, and deferred the remaining issues for later adjudication.

[2]

When the matter was called this past Monday, 4 February 2019, plaintiff's counsel opened her case. In the course of the opening it appeared that there was potential for a separation of issues under rule 33(4). The court adjourned after lunch on the basis that an application for separation would be prepared that afternoon and launched the next day.

[3]

When the matter was called on Tuesday, 5 February 2019 plaintiff's counsel moved a separation application by agreement between the parties. Some enquiries satisfied me that the application was appropriate, and I made an order in the terms suggested by the parties. The matter was then adjourned by agreement till Wednesday, 6 February 2019 for the parties to prepare heads of argument on the separated issues. The court reconvened on 6 February and heard argument for the most part of the day. It adjourned, and this judgment was prepared to be given at 11h30 the next day, 7 February 2019.

[4]

The three issues separated are the following. First, having regard to the order of Moshidi, J, is it open to the court to order that the defendant renders services and medial and related items instead of paying the plaintiff an amount in money? Here paragraphs 4A.6 to 4A.18 of the plea as amended are affected.

[5]

The second and third issues are whether either s.66 of the Public Finance Management Act 1 of 1999, or regulation 8.2.3 promulgated under that Act, respectively, or both, preclude the

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court from ordering that the state renders services and medical and related items in the future, or pays the claim in instalments in the future, as pleaded by the defendant. Paragraphs 4A.6 to 4A.18, and 4A.19 to 4A.36 of the plea are implicated here.

[6]

The first issue involves an interpretation of the order of Moshidi, J. I was informed from the Bar that the matter was argued before his lordship on a stated case basis. The order appears at page 57 of the pleadings bundle. The learned judge, acting under rule 33(4), first separated the issue of liability from the issue of the determination of the quantum of the claim. He then postponed sine die the issue of the determination of the quantum of the plaintiff's claim. Next he directed the defendant "to pay to the plaintiff 100%" of the plaintiff's agreed or proven damages. The words in italics are the contentious ones.

[7]

The defendant's plea as formulated in the stated paragraphs is that the defendant is in a position to render the hospital, medical and related services that form part of the plaintiff's claim at state hospitals at an acceptable quality, and the court should therefore order the defendant to ensure that such services are rendered in that way instead of damages being paid. It asks the court to develop the common law, so as to enable the defendant to fulfil its constitution obligation under s.27 of the Constitution. The plaintiff argues that there is no scope in law for these contentions; in other words, she is effectively submitting that that defence is excipiable as disclosing no defence. The plaintiff's argument is based both on the doctrine of res judicata and on an interpretation of the express words of the order, specifically the words, "to pay."

[8]

As I see it, the defence of res judicata implies at least that an earlier court will have decided the very issue raised on its merits. Here that has by definition not occurred. Moshidi, J expressly separated the quantification of damages from the liability issue; and he decided only

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the liability issue. There is no written judgment; but the learned judge's separation of the liability issue from the quantification issue, and the court's endeavour of deciding only the former and deferring the latter, seems to me to be destructive of the defence of res judicata so far as it pertains to the quantification issue.

[9]

Take the issue of payments in instalments, a defence raised by the defendant later on in its plea, and an issue again dealt with below. The wording in the Moshidi, J order of "to pay" cannot preclude an argument that his lordship did not decide that the damages must necessarily be paid in one lump sum. So it seems to me that the "text, context and purpose" (a concept on which I expand below) of the court order was that his lordship concerned himself only with the question of liability, and not in any way with the question of the quantification of the damages. The replication of res judicata therefore cannot succeed.

[10]

The second point argued by the plaintiff underscored the clear language of the order, and in particular the words, "to pay". Here the plaintiff relied on COOPERS & LYBRAND AND OTHERS v BRYANT, [1] in which the court stressed what it referred to as the "Golden Rule" of interpretation, which was that the ordinary grammatical meaning of words was to be applied, unless it led to absurdity.

[11]

This judgment was indeed the vade mecum of interpretation for many years. But that changed relatively recently with the judgment of the same court in BOTHMA-BATHO TRANSPORT (EDMS) BPK v S BOTHMA & SEUN TRANSPORT (EDMS) BPK, [2] which expressly held that Bryant was no longer consistent with our law. This is what that court said (emphasis supplied):

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"[12] That summary is no longer consistent with the approach to interpretation now adopted by South African courts in relation to contracts or other documents, such as statutory instruments or patents. Whilst the starting point remains the words of the document, which are the only relevant medium through which the parties have expressed their contractual intentions, the process of interpretation does not stop at a perceived literal meaning of those words, but considers them in the light of all relevant and admissible context, including the circumstances in which the document came into being. The former distinction between permissible background and surrounding circumstances, never very clear, has fallen away. Interpretation is no longer a process that occurs in stages but is 'essentially one unitary exercise'. Accordingly it is no longer helpful to refer to the earlier approach."

[12]

What may, with respect, be added to this new approach, is the role played by the Constitution in the interpretation process. As was said in SATAWU AND ANOTHER v GARVAS AND OTHERS, [3]

"[37] This court has previously held that an interpretation of a statutory provision that gives rise to an absurdity or irrationality should be avoided where there is another reasonable construction which may be given to that provision. In other words, where a legislative provision is reasonably capable of a meaning that keeps it within constitutional bounds, a court must, through the use of legitimate interpretive aids, seek to preserve that provision's constitutional validity. Thus, to the extent that it is possible, s 11(2) must be interpreted in a manner that yields a rational meaning and preserves its validity, so that the purpose it was enacted to serve is realised."

[13]

This interpretative approach has been described as a consideration of the "text, context and purpose" of the instrument being examined; see BETTERBRIDGE (PTY) LTD v MASILO AND OTHERS NNO. [4] See also NATAL JOINT MUNICIPAL PENSION FUND v ENDUMENI MUNICIPALITY; [5] AMCU AND OTHERS v CHAMBER OF MINES OF SOUTH AFRICA AND...