THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 217/2019
In the matter between:

PHAKAMA NGALONKULU obo EDINAYO NGALONKULU                 APPELLANT

and

THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH OF THE GAUTENG PROVINCIAL
GOVERNMENT

RESPONDENT

Neutral citation:
Phakama Ngalonkulu v The Member of the Executive Council
for Health of the Gauteng Division Government (217/2019) [2019] ZASCA 66 (17
June 2020)

Coram:
NAVSA, SALDULKER and DLODLO JJA and KOEN and MATOJANE
AJJA

Heard:

11 May 2020

Delivered:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is deemed
to be 09h30 on 17 June 2020.

Summary: Delict – damages –admitted negligence by medical staff at hospital in
relation to a birth resulting in child suffering from cerebral palsy-MEC seeking
development of the common law so as to allow her, instead of paying assessed
damages in one payment, to provide hospital, medical and related services and
other items at State hospital, alternatively to secure them at a lower cost,
alternatively to permit her to pay damages in future instalments–whether order by
agreement, prior to amendment by MEC seeking such relief, precluded order sought
by MEC-prior order directed MEC to ‘pay the Plaintiff 100% of her agreed or proven
damages-in circumstances specific to this case prior order precluding subsequent
order sought by MEC.
___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Gauteng Local Division, Johannesburg (Van der Linde J sitting as
court of first instance)

1.
The appeal is upheld with costs, including the costs of two counsel where
employed.

2.
The order of the court a quo is set aside, and the following order is
substituted:

‘It is declared that the terms of the order of Moshidi J dated 24 April 2017 precludes
this court from ordering that the defendant renders services and medical and related
items, instead of paying the plaintiff an amount of money, as pleaded by the
defendant in paragraphs 4A.6 to 4A.18 of the plea, or paying such amount of money
in future instalments, as pleaded in paragraphs 4A.19 to 4A.36 of the amended plea.

___________________________________________________________________

JUDGMENT
___________________________________________________________________
Matojane AJA (Navsa, Saldulker, and Dlodlo JJA and Koen AJA concurring):

Introduction

[1] This appeal is against the following order of the High Court, Gauteng Local
Division, Johannesburg:

‘(a) 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 related items instead of paying to the
plaintiff an amount of money.
(b) S 66 of the [Public Finance Management Act 1 of 1999] (PFMA)] does not preclude this
court from making orders that the state renders services and medical and related items in
the future, or pay the claim in instalments in the future, as pleaded by the defendant in
paragraphs 4A.6 to 4A.18, and 4A.19 to 4A.36.
(c) [Regulation] 8.2.3 of the Treasury Regulations, promulgated under the PFMA does not
preclude this court from making orders that the state renders services and medical and
related items in the future, or pay the claim in instalments in the future, as pleaded by the
defendant in paragraphs 4A.6 to 4A.18, and 4A.19 to 4A. 36.
(d) No order as to the costs of the application for separation of the issues, and as to the
determination of the separated issues is made.’

[2] The background, culminating in this order and giving rise to the present
appeal is set out hereafter.

[3] The appellant instituted an action against the respondent during June 2012,
claiming delictual damages from the respondent for injuries her minor son, Endinayo,
suffered as a result of the now admitted negligence of medical staff at the Chris Hani
Baragwanath Hospital. On 12 September 2006 due to prolonged labour and failure
to timeously perform a Caesarian section Endinayo suffered perinatal asphyxia,
which caused him to sustain severe brain damage resulting in cerebral palsy, mental
retardation and epilepsy.

[4] On 23 August 2012, the respondent served and filed her plea. The plea was
essentially a bare denial. Specifically, it did not contain anything related to the
development of the common law: that the respondent be ordered, if found liable, to
render medical and related services that might be required by Endinayo; or that the
costs thereof, when required to be incurred, be paid in future instalments.

[5] The matter proceeded to trial in respect of the issue of liability only on the
aforesaid pleadings, before Moshidi J in the Gauteng Local Division of the High
Court, Johannesburg on 24 April 2017. The matter was argued on a stated case.
Presumably after Moshidi J determined the extent of the respondent’s liability to be
100%, the parties submitted a draft order to Moshidi J with the terms they wished to
have recorded in the court order to be made in respect of the remaining issues. The
terms of the draft order, which were all incorporated in the order that followed appear
hereunder:

‘1.The issue of liability is separated from the issue of the determination of the quantum of the
Plaintiff’s claim in accordance with the provisions of Rule 33 (4) of the Uniform Rules of
Court;
2. The issue of the determination of the quantum of the plaintiff’s claim is postponed sine
die;
3. The defendant shall pay to the Plaintiff 100% (one hundred per cent) of her proven
damages in her representative capacity for and on behalf of her minor child, Endinayo
Ngalonkulu (from now on referred to as Endinayo”) flowing from the neurological  injury
sustained by Endinayo on or about the 12th of September 2006 and the resultant cerebral
palsy which Endinayo suffers from and its sequelae;
4. The Defendant shall pay the Plaintiff’s costs of suit, such costs to include the following:
(the order then set out detailed provisions regarding the payment of costs of inter alia
experts, and the obligation to pay interest on costs).’(Emphasis added)

[6] The matter was thereafter enrolled for 4 February 2019 for a determination of
the quantum of the appellant’s damages. On 17 January 2019, the respondent,
however, amended its plea to raise defences which the Constitutional Court in MEC

for Health and Social Development, Gauteng v DZ obo WZ1 contemplated might
possibly be raised by state defendants in appropriate instances, in the development
of the common law.

[7] The amendments to the plea introduced by, inter alia, paragraphs 4A.6 to
4A.36, included that it was unreasonable to require the respondent to pay the
amounts claimed in respect of hospital, medical and related services and items
required by Edinayo from private healthcare providers when the State Health
facilities could provide such services at the same standard at no cost to the appellant
or Endinayo. The respondent pleaded that she was in a position to ensure that
hospital, medical and related services and items that were recommended, would be
rendered and supplied by her Department, or by private healthcare providers which
her Department will secure, at a cost lower than the costs that the appellant claims in
respect of such services and items. In conclusion, it was pleaded that taking into
account the interest of justice, and acting in terms of s 173 of the Constitution, the
court should develop the common law and should order that the respondent, instead
of being required to compensate the appellant in money in respect of the hospital,
medical and related services and items claimed for, be directed to ensure that the
services are rendered, or the items are supplied. In broad outline, the respondent
contended that the common law should be developed to allow for an order that the
respondent compensate the appellant by providing the required medical services at
state health facilities, as opposed to paying monetary compensation to acquire such
services from the private sector. In the event that it was ordered that monetary
compensation be made, it was pleaded that payment should be directed to be made
in instalments, when required and incurred, as opposed to being paid in a lump-sum.

[8] The envisaged trial, to determine the quantum of damages to be awarded to
the appellant on behalf of her minor son, came before Van der Linde J in the court a
quo. He acceded to a request by the parties that an order be granted in terms of rule

1 2018 (1) SA (335) (CC) Froneman J held that the possibility for future development is not excluded
and that structured payments of future medical expenses may well be permitted, provided that
evidence is adduced to support a development of the common law. In the interim, it was held that the
court is open to defendants disputing claims for future medical expenses on the basis that the plaintiff
can obtain less expensive medical services at a public health facility, thereby also potentially
alleviating the financial burden of these claims on the public sector.

33(4) separating the following issues for determination before any evidence was led:
the first was whether, having regard to the order of Moshidi J, it was open to the
court to order that the respondent renders services and medical and related items,
instead of paying the appellant an amount in money; and the second and third were
whether s 66 of the Public Finance Management Act 1 of 1999 or Regulation 8.2.3 of
the Treasury Regulations promulgated under the PFMA respectively, or both,
precluded the court from ordering that the state renders services and medical and
related items in the future, or to make payment thereof in instalments.

[9] As is evident from the order set out at the commencement of this judgment
the court below decided the first issue in favour of the first respondent. The court a
quo found that there was an unjustified fixation on the words “to pay”. It reasoned
that Moshidi J deliberately turned his attention away from the quantification of the
respondent’s obligation to compensate the appellant in respect of her damages, and
that the words “to pay” was simply loose language for an order that the respondent
was to compensate the appellant for her damages, which were yet to be determined.
It was held that the words to pay did not decide that the damages necessarily had to
be paid in one lump sum. The court stated:

‘Put differently, the focus of that paragraph of the court order was not to deal with how the
damages should be compensated, but rather with whether the defendant was at all liable to
compensate the plaintiff. That issue was separated out for prior determination, and that
issue was determined in favour of the plaintiff’.

[10] As is apparent form the order set out in para 1 above, the court a quo also did
not view the provisions of the PFMA or the Regulations to constitute a bar to the
form of relief claimed by the respondent in her amended plea. It did, however, grant
leave to appeal to this court. In light of the conclusion reached later in this judgment
the reasons for the conclusions by the court below in relation to the PFMA and the
Treasury regulations need not be explored. I shall, only in the briefest terms, deal
with that aspect of the appellant’s case later.

[11] I now turn to deal with the finding by the court below that the order by Moshidi
J did not preclude the court from making the orders set out at the beginning of this

judgment. Before us the appellant’s submissions in regard thereto was refined as
follows: Neither party, when they agreed to the draft order, had anything else in mind
other than if the appellant proved her damages she would be entitled to be paid in
the ordinary course in one payment. This was evident from the draft order viewed as
a whole and in context. Moshidi J, in turn, could not be taken to have had anything
else in mind either. He had no plea to turn his attention to the common law being
developed in order to accommodate that which the respondent belatedly sought in
her plea. This court is thus called upon to determine whether the order should be so
construed.

[12] The starting point is to determine the meaning of the phrase shall pay the
plaintiff 100% (one hundred per cent) of her agreed or proven damages …’ within the
context within which the order was granted and having regard to the purpose for
which the order was issued.2

[13] The court a quo erroneously explored the meaning of the term ‘to pay’ in
isolation, without regard to the context within, and the purpose for which the parties
required that the terms of their draft order handed to Moshidi J, was to be made an
order of court. At that stage, on the pleadings, no form of compensation other than
monetary compensation in a lump sum was envisaged or contemplated. The term ‘to
pay’ was also not only used in regard to the payment of damages, but was also used
in the wording of the cost order. The phrase to ‘pay’ accordingly did not allow for any
interpretation, other than a payment in money. Had the parties intended something
different, they would have said so in the draft which they required Moshidi J to make
an order of court.

[14] As alluded to earlier, the matter was argued before Moshidi J on a stated
case. Moshidi J was required to accept the statement of facts submitted to him by
the parties and was further restricted to a consideration of the then prevailing
common law, namely the ‘once and for all’ rule that damages could not be paid in

2 Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk. 2014 (2) SA 494
(SCA). See also Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
at para 18.

instalments.3 At that stage the decision of the Constitutional Court in DZ had not yet
been delivered.

[15] The order was drafted and agreed upon by the parties with the knowledge
that monetary damages were claimed as per the appellant’s particulars of claim and
that such damages would be payable in a lump sum. A plea for the development of
the common law or any plea that services should be rendered was neither raised, let
alone pleaded, at the time. Moreover, as a careful consideration of the draft order will
show the order was more than just the standard one which separated quantum from
liability. It extended to over two typed pages. It accepted liability on the part of the
respondent for the costs associated with the obtaining of medico-legal reports in
relation to four named expert witnesses. It accepted responsibility for costs on behalf
of the defendant for the qualifying fees and preparation costs in respect of those
witnesses and the costs of two counsel as part of ‘costs of suit’, presumably in
relation to liability. Furthermore it provided for interest to be paid on taxed or agreed
costs. This was a draft order that must have been carefully and consciously arrived
at. Counsel on behalf of the respondent was constrained to concede before us that
there must have been deliberate consideration of its terms by the respective legal
representatives and that at that stage the plea now raised was not in contemplation.
It is within that context that the meaning of the word ‘pay’ has to be considered,
namely to give effect to the agreement of the parties. Pleas based on the decision by
the constitutional court’s decision in DZ have subsequently been raised in a number
of cases. In the present case one is left with the impression that it was raised
opportunistically.

[16] The meaning of the words “shall pay the plaintiff 100% (one hundred per cent)
of her agreed or proven damages” construed in their ordinary grammatical sense, in
the context and circumstances set out above, meant that respondent’s liability and
the manner of compensation had been finally adjudicated. Accordingly, the court a
quo was simply required to quantify the appellant’s damages. It was precluded from
making any order other than that payment of the appellant’s damages had to be  in

3 DZ para 59.

money, as the respondent had agreed, as per the draft order, to pay the appellant
100% of her proved or agreed to damages.

[17] 'We were referred to a number of judgments of the high court4 which
construed the word 'pay' in orders preceding an assessment of damages, after
liability was established, to mean payment in the ordinary course. In other words that
it meant payment in money all at once and not in instalments, and that the provision
of medical services was not contemplated. No purpose is served by an analysis of
those judgments. Each case is to be determined on its own merits.

[18] The parties were agreed that a decision on this point in favour of the appellant
would be dispositive of the appeal. There is accordingly no need to consider the
effect of the provisions of s 66 of the Public Finance Management Act5  or the
regulations, save to record that counsel on behalf of the appellant were rather
muted.in relation thereto, advisedly so.

[19] When the quantum of the appellant’s claim is being assessed there is nothing
to prevent the respondent form proving that the necessary medical services of
acceptable standard could be obtained at lesser cost. That would be in contestation,
in the ordinary course, of the quantum claimed6.

[20] Finally, it is worth noting that there is presently before Parliament a bill that
will regulate claims of the kind in question, including dealing with the manner and
time of payment. The legislature is arguably best suited to that kind of regulation.7

[21] In the result the following order issues:
1.
The appeal is upheld with costs, including the costs of two counsel
where used.

4 Mshibi v The MEC for Health of the Gauteng Provincial Government (GLD) – Case NO. 2012/32085.
Allee v The MEC for Health and Social Development of the Gauteng Provincial Government (GLD)
Case No.2013/44276. Slabbert v The MEC for Health and Social Development (GLD) – Case No.
2013/63333.
5 Act 1 of 1999.
6 See Ngubane v South African Transport Services 1991(1) SA 756 (A).
7 State Liability Amendment Bill (B16-2018) published in Government Gazette No.41658 of 25 May
2018).

2.
The order of the court of the first instance is set aside, and the
following order is substituted:

‘The terms of the order of Moshidi J dated 24 April 2017 precludes this court from
ordering that the defendant renders services and medical and related items instead
of paying the plaintiff an amount of money, as pleaded by the defendant in
paragraphs 4A.6 to 4A.18 of the plea.’

_______________________
K MATOJANE
ACTING JUDGE OF APPEAL

APPEARANCES

For appellant:

N Van der Walt SC and P Uys
Instructed by:

Martins Attorneys, Johannesburg

Wim Ktynauw Inc Attorneys, Bloemfontein

For respondent:

V Soni SC and L Mtukushe
Instructed by

State Attorneys, Johannesburg
State Attorneys, Bloemfontein