N.S obo A.S v Member of the Executive Council for the Department of Health Eastern Cape Province (2782/2019) [2023] ZAECMHC 35 (4 July 2023)

N.S obo A.S v Member of the Executive Council for the Department of Health Eastern Cape Province (2782/2019) [2023] ZAECMHC 35 (4 July 2023)

The court found that the application was urgent due to the ongoing prejudice suffered by the minor child as a result of delays in the trial regarding quantum, and that the applicant had set out explicit circumstances justifying urgency. The merits had already been decided in favour of the applicant, with 100% liability awarded. Expert joint minutes and actuarial reports demonstrated a high degree of agreement on the quantum of damages, and the respondent had not provided evidence to dispute the immediate medical needs of the child. The respondent's offers of interim payment were found to be arbitrary and unsupported by evidence. The court held that Rule 34A provides a discretionary remedy...

Citation
[2023] ZAECMHC 35
Parties
Plaintiff: N[...] S[...] obo A[...] S[...]; Defendant: Member of the Executive Council for the Department of Health, Eastern Cape Province
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
4 July 2023
Case Number
2782/2019
Procedural Posture
Urgent Application / Interlocutory Application for Interim Payment Under Rule 34 a After Merits Decided; Quantum Pending
Outcome
Application for urgent interim payment granted in part; respondent ordered to pay R3,200,000 to applicant within 30 days, with interest if unpaid; costs awarded to applicant except for reserved costs of 4 April 2023.
Judges
Notyesi
Legal Topics
Interim Payment, Medical Negligence, Children S Rights, Urgent Application, Quantum of Damages
Civil Procedure Family and Children Interim Payment Medical Negligence Children S Rights Urgent Application Quantum of Damages

Case Brief

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Parties

N[...] S[...] obo A[...] S[...]

Plaintiff

Member of the Executive Council for the Department of Health, Eastern Cape Province

Defendant

Procedural Posture

Urgent Application / Interlocutory Application for Interim Payment Under Rule 34 a After Merits Decided; Quantum Pending

Legal Issues

  1. 1 Whether the application for interim payment under Rule 34A should be heard as urgent.
  2. 2 Whether the applicant has met the requirements for interim payment under Rule 34A and the appropriate amount to be awarded.

Ratio Decidendi

The court found that the application was urgent due to the ongoing prejudice suffered by the minor child as a result of delays in the trial regarding quantum, and that the applicant had set out explicit circumstances justifying urgency. The merits had already been decided in favour of the applicant, with 100% liability awarded. Expert joint minutes and actuarial reports demonstrated a high degree of agreement on the quantum of damages, and the respondent had not provided evidence to dispute the immediate medical needs of the child. The respondent's offers of interim payment were found to be arbitrary and unsupported by evidence. The court held that Rule 34A provides a discretionary remedy...

Court Disposition

Application for urgent interim payment granted in part; respondent ordered to pay R3,200,000 to applicant within 30 days, with interest if unpaid; costs awarded to applicant except for reserved costs of 4 April 2023.

Orders

  • The applicant is granted leave to proceed by way of urgency and non-compliance with the rules is condoned.
  • The respondent is ordered to make an interim payment to the applicant, in her representative capacity, in the sum of R3,200,000 within 30 calendar days of this order.