PH obo SH v MEC for Health, KZN

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mngadi J
• Judgment Date: 31 August 2020
• Court: KwaZulu-Natal Local Division, Durban
• Hearing Date: 31 August 2020
• Citation: 2021 (1) SA 530 (KZD)
• Counsel: VI Gajoo SC for the plaintiff. I Pillay SC for the defendant.
• Docket Number: 11198/2016

Mngadi J:

[1] There are two applications for determination. The plaintiff in the first application applies for an interim payment in terms of rule 34A of the Uniform Rules of Court. The defendant opposes the plaintiff's application. In the second application, the defendant applies in terms of rule 28(4) for leave to amend the plea by invoking the defence commonly referred to as 'the public healthcare defence'. The plaintiff opposes the second application. The applications relate to a matter which is the subject of existing litigation between the plaintiff and the defendant, and the applications are interrelated to a certain extent. With the consent of the parties, the applications were heard together and this judgment deals with both applications.

Mngadi J

[2] The plaintiff is PH, an adult female who is the mother and natural guardian of SH, a boy born on 14 July 2013. The defendant is the member of the executive council for health in the province of KwaZulu-Natal, who is responsible for the administration of healthcare services in the province.

[3] On 14 July 2013 SH was born in a hospital under the administration of the defendant. During birth, because of a delayed and incorrect mode of delivery, hypoxic ischaemic damage was caused to SH's brain, resulting in cerebral palsy, which left SH severely mentally retarded and physically handicapped. On 31 October 2016 an action for delictual damages on behalf of SH was instituted against the defendant. On 1 February 2017 the defendant delivered a plea, which constituted a bald denial. On 23 April 2018 the defendant conceded 100% liability for damages to be proved. On 26 March 2020 the defendant delivered a notice of her intention to raise a public healthcare defence to which the plaintiff objected. The defendant filed an application for leave to amend the plea. The plaintiff, anticipating a delay in the trial, launched an application for interim payment.

Application for interim payment

[4] The trial on quantum was set down for hearing on 8 June 2020. It did not proceed because of the Covid-19 pandemic. The basis of the plaintiff's application for an interim payment is that considerable costs have been incurred for SH's medical costs and related expenses. The delay would necessitate further costs to be incurred. The intended introduction of the public healthcare defence, if granted, would also result in further delays. The plaintiff claims R23 million in damages. The interim payment claimed is an amount of R2 898 366. The amount includes past medical expenses of R464 366,51 and immediate future medical expenses in the sum of R565 400, as well as R1,5 million for general damages and loss of earning capacity.

[5] The amounts claimed for past medical expenses and immediate future medical expenses are no longer challenged by the defendant. Therefore, it is not necessary to traverse the averments in the founding affidavit in support of those claims. In the founding affidavit, the plaintiff avers that the defendant has tendered to pay R500 000 towards general damages, which offer the plaintiff accepts. The tender is confirmed in the heads of argument with a proviso that it is with prejudice. In oral argument the defendant's counsel submitted that the defendant tenders an inclusive amount of R1,5 million. In a letter dated 19 August 2020 it stated that:

'Our client tenders R1,5 million as part payment in settlement of your client's claim in the action under the above case number. The payment is not made in terms of Uniform Rule 34A but as part settlement.'

It is clear that the defendant offers R1,5 million as interim payment, but reserves the right to dispute the reasonableness of the expenditure constituting the total amount and without in any way compromising the pursuit of the public healthcare defence at the trial on quantum.

Mngadi J

Therefore, R500 000 as advance payment towards general damages, made without prejudice, is the amount to be added to the past and immediate future medical expenses.

[6] In the answering affidavit, the defendant denied liability for medical and related expenses. She stated that the expenses of a medical nature were available in the public healthcare sector at no cost to the plaintiff and that the other items were non-medical expenses. Further, the defendant referred to the fact that she intended to rely on the public healthcare defence. The effect thereof is that medical services, including medical supplies of a standard equivalent to or higher than that in the private healthcare sector, were available for use by the plaintiff. As stated above, this stance, correctly so in my view, was not persisted with. In my view it is telling that no decision has been made on the so-called public healthcare defence, and the plaintiff is utilising a mechanism provided for by law. It cannot be argued that such mechanism ought to be suspended pending a decision on the public healthcare defence. The plaintiff is claiming past medical expenses and immediate future medical expenses for the child. It is important that the child continue to receive the necessary medical attention.

[7] The defendant states that the amount of R1,5 million claimed for general damages and loss of earnings does not fall within the ambit of rule 34A. The plaintiff states that the court has an inherent jurisdiction to direct the defendant to make an interim payment. In the circumstances of this case, general damages awarded in similar cases are in the region of R1,8 million and R2 million. The loss of earning capacity has been actuarially determined at R784 861. The court is the upper guardian of children, with an obligation to act in the best interest of the child. In my view, even if the court has an inherent jurisdiction to order an interim payment outside the strict provisions of rule 34A, no basis has been established to exercise such inherent jurisdiction. The plaintiff, under medical expenses, has included items which are disputably non-medical items. Previously the plaintiff applied for and was granted interim payments, and rule 34A remains available to the plaintiff should it be needed. The plaintiff might be of the view that it will be easy to prove quantum, but the fact of the matter is that the trial on quantum is still to be held and this court cannot make a decision on issues which are the subject-matter before the trial court. Rule 34A relates only to medical expenses and loss of income. It does not provide for general damages or loss of earning capacity. See Karpakis v Mutual & Federal Insurance Co Ltd 1991 (3) SA 489 (O) at 495G; Fair v SA Eagle Insurance Co Ltd 1995 (4) SA 96 (E) at 100B – C.

[8] The plaintiff has on the balance of probabilities proved the claim for interim payment for past medical expenses in the amount of R464 366,51, and immediate future medical expenses of R565 400. In addition, an amount of R500 000 is added as advance payment for other damages to be proved. The plaintiff is entitled to the costs of the application on party and party scale, including costs of two counsel where so employed.

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