Cape Times E-dition

EC health MEC sued for R22mill, now wants to back out of payment


AFTER conceding liability for injuries and damages suffered during a child birth at Mthatha General Hospital, Eastern Cape Health MEC Nomakhosazana Meth has now sought the relief of the court over an order to pay the patient the quantitative sum of just over R22million.

Earlier this week, the Supreme Court of Appeal (SCA) upheld an appeal against an order of the Eastern Cape Division of the High Court, Mthatha making a proposed draft settlement order an order of court.

The mother had instituted legal action against the health MEC at the time for damages arising from harm caused to her child during birth at the public health facility.

The court issued a rule nisi order on June 30 2020 after the calculation of damages by the relevant experts came to R22 716 489.

The parties agreed to the total and in his order, Judge Robert Griffiths said it represented “a fair and reasonable quantum of damages... and provisional agreement has been reached that an order incorporating this sum and in the usual ancillary terms should be granted”.

“The (MEC's) representatives do not currently have instructions to settle the matter in the aforesaid sums, therefore, a rule nisi is issued by agreement calling upon the Superintendent General of the Department of Health to appear in this court and show cause why an order should not be granted in favour of the plaintiff in terms of the draft order.

“The service of this order is to be effected on the Office of the Superintendent General and/or Legal Services of the MEC by (their) attorneys of record… Failing the appearance of the Superintendent General as aforesaid a final order will be issued,” Griffiths' order read.

Seemingly wanting to backtrack out of the payment due to the patient, the MEC filed an affidavit setting out reasons why the rule nisi should not be confirmed.

The rule nisi was however confirmed by Judge Richard Brooks at the same court, issuing the order in accordance with the draft.

The SCA judgment read: “(Brooks) found that the context in which the rule came to be issued pointed to a firm and binding agreement.

“An important element of the high court's reasoning concerned the adoption of a practice, in that court, to deal with persistent failures on the part of the MEC to fully and properly engage with litigation in similar matters, and the failure to furnish timeous instructions to the State Attorney…The high court concluded that no reasonable basis had been demonstrated why the order should not be confirmed.”

Judge Glenn Goosen said two aspects required emphasis. “The first is that the trial issue concerned the quantification of the claim. Such quantification would ordinarily involve determination of the nature, extent and consequences of the harm suffered; the nature and extent of medical treatment and assistance required in the future to deal with the consequences of that harm; the reasonable costs of such treatment and assistance; and the capitalisation and discounting of those costs.

“In this case that would have required extensive expert evidence. None of that evidence was before the court. All that was before the court was an agreement between the legal representatives as to what was an appropriate assessment. The rule nisi called upon the MEC to show cause why the quantification of loss should not be decided on the opinion of the legal representatives, without the court being able to satisfy itself that such determination was a proper basis to decide the case,” said Goosen.

The SCA found it was not within the power of the high court to issue the rule nisi and therefore not open to the high court to confirm the rule nisi. The order of the high court was set aside, granting the MEC leave to appeal.





African News Agency