The Eastern Cape health department is planning to appeal to the Constitutional Court against a judgment that requires it to resume paying the massive “once-and-for-all” lump sums in medical negligence cases.
The department faces an almost R40bn contingent liability as a result of negligence cases.
It has indicated it simply cannot afford to continue to pay out these massive lump sums without affecting its general health service delivery mandate.
The Bhisho High Court in 2025 ruled in favour of the department in a medical negligence case, finding there was a compelling case to develop the common law in terms of “once-and-for-all” lump sum payment obligations.
It found that if the state had established it was able to provide future medical treatment at a standard equivalent to, or better than that of the private sector, it need not pay out a lump sum for future medical treatment.
This aspect of damages claims is often by far the biggest cost driver and — in the case of children born with disabilities as a result of medical negligence during the mother’s labour – can amount to millions of rand for care throughout a child’s life.
But the Supreme Court of Appeal this week rejected the Bhisho High Court’s reasoning and upheld an appeal against it.
It said the court had overstepped its boundaries in developing the common law to this extent and had strayed into the legislature’s territory.
The legislature was the proper institution for major law reform of this sort, the SCA said.
The department said it believed the matter raised “fundamental constitutional questions that extend beyond the scope of existing common law precedents” and required further and deeper consideration by the Constitutional Court.
It had received legal advice that “an appeal against the judgment of the SCA would fall squarely within that Constitutional Court’s jurisdiction; that such an appeal enjoys strong prospects of success and that it would be in the interests of justice, for the questions raised, to be reconsidered by that court”.
At the centre of this particular case is a child born with spastic quadriplegic cerebral palsy as a direct result of medical negligence during labour and his birth at Cecilia Makiwane Hospital.
The health department conceded liability but argued that the provincial hospitals could take care of the child’s future medical needs and that there was no need for it to pay out an exorbitant amount for this in a “one-off” payment.
The mother had claimed R23m from the department including special and general damages in her personal capacity (R1m); general damages (R5m); future hospital care, medical and related expenses for the child (R7m); and loss of earning capacity (R10m).
While the Bhisho High Court ordered it to pay out about R4m in various other damages caused by the negligence, it ruled that instead of paying out the rest, the department could provide all the services, consultations, therapies, surgeries and other procedures necessary for the child for the duration of his life at its various hospitals.
The application for leave to appeal would put on hold the SCA’s judgment, the department said.
“The appeal is not taken lightly, nor is it an attempt to evade responsibility.
“Liability for the negligent harm in this matter was conceded, and we remain fully committed to ensuring the minor child, receives high-quality, necessary and lifelong care,” the department said.
It said it had already, to date, ensured full medical care to the child during the 15-month period between the high court judgment and the SCA judgment.
“The child’s right to full compensation and care is not in dispute. The core of our appeal lies in the appropriate, just and equitable remedy.”
The department had presented evidence which showed that the “once-and-for-all” rule caused serious fiscal harm to the provincial and healthcare budgets by, among other things, draining the public fiscus of massive, upfront lump-sum payments.
These lump-sum payments were often based on unpredictable future estimations
The department said it was “working tirelessly to correct” systemic failures leading to medical negligence.
But the lump-sum negligence payments drained billions from provincial health budgets which would then be diverted from programmes intended to hire doctors, buy medicine and upgrade infrastructure “for the masses”.
“By appealing this judgment, we are fighting to stem this loss.
“We are fighting to ensure that compensation provides actual care for the patient for the duration of their life, rather than transferring public funds into private trusts that are consumed by inflated legal fees and administrative costs and diverted to funding private-sector services.”
It said it had already, for the past three quarters, provided safer pregnancies and better maternal health outcomes, with significantly reduced maternal morbidity and mortality.
Daily Dispatch