N P obo N E v Member for the Executive Council for Health of the Gauteng Provincial Government (22473/2012) [2019] ZAGPJHC 24 (7 February 2019)

N P obo N E v Member for the Executive Council for Health of the Gauteng Provincial Government (22473/2012) [2019] ZAGPJHC 24 (7 February 2019)

The court held that the prior order of Moshidi, J did not preclude consideration of compensation by services or periodic payments, as it only determined liability and not the manner of compensation. The doctrines of res judicata and literal interpretation of 'to pay' were rejected in favour of a contextual and purposive approach. The statutory provisions relied upon by the plaintiff, namely section 66 of the PFMA and regulation 8.2.3, do not restrict the court's power to order compensation by services or instalments in delictual matters. The court affirmed its constitutional duty to develop the common law where appropriate, but noted that such development requires a proper factual...

Citation
[2019] ZAGPJHC 24
Parties
Plaintiff: N P obo N E; Defendant: Member for the Executive Council for Health of the Gauteng Provincial Government
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 February 2019
Case Number
22473/2012
Procedural Posture
Civil Trial / Determination of Separated Issues on Quantum and Statutory Defences
Outcome
All separated issues are decided in favour of the defendant. No order as to costs.
Judges
Van der Linde
Legal Topics
Quantification of Damages, Vicarious Liability, Public Finance Management Act, Once and for All Rule, Development of Common Law
Delict Civil Procedure Quantification of Damages Vicarious Liability Public Finance Management Act Once and for All Rule Development of Common Law

Case Brief

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Parties

N P obo N E

Plaintiff

Member for the Executive Council for Health of the Gauteng Provincial Government

Defendant

Procedural Posture

Civil Trial / Determination of Separated Issues on Quantum and Statutory Defences

Legal Issues

  1. 1 Whether the prior order of Moshidi, J precludes the court from ordering the defendant to render services and medical items instead of monetary payment.
  2. 2 Whether section 66 of the Public Finance Management Act or regulation 8.2.3 preclude the court from ordering the state to render services or pay damages in instalments.
  3. 3 Whether the common law may be developed to allow compensation by services or periodic payments in medical negligence cases.

Ratio Decidendi

The court held that the prior order of Moshidi, J did not preclude consideration of compensation by services or periodic payments, as it only determined liability and not the manner of compensation. The doctrines of res judicata and literal interpretation of 'to pay' were rejected in favour of a contextual and purposive approach. The statutory provisions relied upon by the plaintiff, namely section 66 of the PFMA and regulation 8.2.3, do not restrict the court's power to order compensation by services or instalments in delictual matters. The court affirmed its constitutional duty to develop the common law where appropriate, but noted that such development requires a proper factual...

Court Disposition

All separated issues are decided in favour of the defendant. No order as to costs.

Orders

  • The terms of the order of Moshidi, J dated 24 April 2017 do not preclude this court from ordering that the defendant renders services and medical and related items instead of paying to the plaintiff an amount of money.
  • Section 66 of the PFMA does not preclude this court from making orders 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.