Mashinini v Member of the Executive Council for Health and Social Development Gauteng Provincial Government (335/2021) [2023] ZASCA 53; 2023 (5) SA 137 (SCA) (18 April 2023)

Mashinini v Member of the Executive Council for Health and Social Development Gauteng Provincial Government (335/2021) [2023] ZASCA 53; 2023 (5) SA 137 (SCA) (18 April 2023)

The Supreme Court of Appeal held that the appellant discharged the onus of proving both the need for future medical treatment and the quantum thereof. The respondent failed to adduce any evidence that equivalent medical services would be available in the public sector at no or lesser cost, nor did it rebut the expert evidence presented by the appellant. The public healthcare defence was unsupported by evidence and did not justify compensation in kind. The common law does not require development in this context, and the appellant is entitled to monetary compensation for future medical and hospital expenses. The high court's order was set aside and replaced with an order granting the...

Citation
[2023] ZASCA 53
Parties
Appellant: Nomgqibelo Nellie Mashinini; Respondent: Member of the Executive Council for Health and Social Development, Gauteng Provincial Government
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
18 April 2023
Case Number
335/2021
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal upheld. High court order set aside and replaced with monetary compensation for future medical and hospital expenses.
Judges
Zondi, Schippers, Gorven, Mali, Siwendu
Legal Topics
Medical Negligence, Aquilian Action, Public Healthcare Defence, Quantum of Damages, Mitigation of Damages
Delict Civil Procedure Medical Negligence Aquilian Action Public Healthcare Defence Quantum of Damages Mitigation of Damages

Case Brief

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Parties

Nomgqibelo Nellie Mashinini

Appellant

Member of the Executive Council for Health and Social Development, Gauteng Provincial Government

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether the appellant is entitled to monetary compensation for future medical and hospital expenses arising from medical negligence.
  2. 2 Whether the public healthcare defence advanced by the respondent is supported by sufficient evidence to justify compensation in kind rather than money.
  3. 3 Whether the common law requires development to allow compensation in kind in delictual claims for medical negligence.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant discharged the onus of proving both the need for future medical treatment and the quantum thereof. The respondent failed to adduce any evidence that equivalent medical services would be available in the public sector at no or lesser cost, nor did it rebut the expert evidence presented by the appellant. The public healthcare defence was unsupported by evidence and did not justify compensation in kind. The common law does not require development in this context, and the appellant is entitled to monetary compensation for future medical and hospital expenses. The high court's order was set aside and replaced with an order granting the...

Court Disposition

Appeal upheld. High court order set aside and replaced with monetary compensation for future medical and hospital expenses.

Orders

  • The appeal is upheld with costs, including the costs of two counsel where so employed.
  • The order of the high court is set aside and replaced with judgment in favour of the plaintiff against the defendant for payment of R3,213,564.40.