The Eastern Cape health department says it will seek to negotiate a payment arrangement after the Bhisho High Court ordered it to pay more than R15m in damages to a patient left disabled during birth, saying the huge amount could affect its ability to deliver services to other patients.
Describing the injuries suffered by the infant as "very unfortunate", department spokesperson Siyanda Manana said there had been no intentional negligence on the part of the department or its staff.
Manana said the department was concerned about the impact of the judgment on its finances and would try to reach an agreement on how the amount would be paid.
“In relation to the payment, because the amount is so huge and it affects the purse of the department, what we normally do is that we try to negotiate so that ... we don’t then impact on the delivery of [services] to other patients,” he said.
The judgment, handed down in August, found the department liable for damages arising from the child’s birth at Mthatha General Hospital in June 2019.
The court ordered the department to pay more than R15m, including amounts for general damages, loss of earnings, accommodation, transportation, a case manager and lifelong caregiving needs.
Manana said: “There’s no indication on our side that we are going to appeal, rather we can then agree on a payment method."
The court had to consider whether the department’s newly introduced caregiving mechanism for children with disabilities could be relied on instead of the child receiving the amount claimed for lifelong care.
The court found that the department had failed to show that the caregiving programme would provide the child with the standard and security of care she would need for the rest of her life.
Judge Avinash Govindjee ordered the department to pay R2.1m in general damages, R2.3m for loss of earnings, R1.4m for accommodation needs, R3.8m for transportation needs, nearly R500,000 for a case manager and R4.9m for caregiving.
The order excludes the costs of expert witnesses, travel, accommodation, expenses and subsistence incurred by the child, her representatives and experts for consultations, preparation and attendance at the hearing.
It also excludes legal representation costs.
Govindjee said the evidence before him established that the department had taken steps to procure caregiving services for children with disabilities, including those with cerebral palsy, through district-based service providers.
A letter of award had been concluded between the department and the Mount Frere Paralegal Advice Centre for the provision of caregiving services to children with disabilities, including cerebral palsy, in the OR Tambo and Alfred Nzo districts for 36 months.
The letter was signed at the end of October 2025.
"I accept that the award letter contemplates caregiving services for a period of 36 months, and that the department does not intend to charge the plaintiff, or the child, for those services.
"I also accept that Ms Xuma [the deputy director responsible for therapeutic and medical support services in the Eastern Cape department of health] gave her evidence in good faith and that the department presently intends to continue making such services available.
"While those facts are relevant, they do not answer the applicable inquiry," Govindjee said.
He said the first difficulty was the absence of documents that would allow the court to assess the content and enforceability of the proposed arrangement.
The award letter itself recorded that it was subject to the conclusion of a service-level agreement, Govender said.
He said it did not detail with sufficient precision the service provider’s obligations, the standard its caregivers would have to meet or the mechanisms for ensuring performance.
It also did not show what recourse the plaintiff or child would have if the care proved inadequate or the arrangement failed.
The judge said there were also concerns about the standard of the proposed service and its future availability.
He said the award was for 36 months, while the child’s need for care was lifelong, taking into account her reduced life expectancy and the practicalities of implementing the arrangement.
"Ms Caga [the occupational therapist called on behalf of the plaintiff], who works as a case manager and sources caregivers in the area, testified that she had never come across state-appointed service providers providing such caregiver services in that part of the country.
"Finally, it must be noted that the department does not itself employ or provide the caregivers in question, and the entire arrangement depends on an independent service provider," Govindjee said.
He said that though Xuma had expressed confidence that the department would intervene if the plaintiff or a case manager was unhappy with the quality of services, the court did not have enough information about how such intervention would work.
"In particular, the court does not know what rights the plaintiff would have, what obligations the service provider owes, whether the department can require the replacement of a caregiver or what happens if the provider refuses to comply or terminates the agreement."
Govindjee said the possibility that the department might intervene if difficulties arose did not establish that the child would have effective recourse if the service proved inadequate or the arrangement broke down.
"Viewed cumulatively, these difficulties prevent me from treating the proposed outsourced arrangement as a reliable substitute for the plaintiff’s quantified claim.
"The difficulty for the department is that the evidence in this case does not establish with the required cogency that caregiving services of the same, or an acceptably high, standard will be available to this child, at no cost or for less than that claimed, for the period for which care is required.
"That conclusion rests on the evidence led at this trial and in respect of this head of damages alone.
"It follows that the defendant has not displaced the plaintiff’s proof of the reasonable cost of the caregiving required by the child.
"The claim must therefore be calculated on the basis of Ms Caga’s evidence and the plaintiff’s actuarial calculation," Govindjee said.
He ordered that the payment be made in three equal instalments, with the first due within 30 days, the second within 60 days and the balance within 90 days of the order.
"Any instalment not paid on its due date shall bear interest at the prescribed legal rate from the due date to date of payment."
Children’s rights activist Petros Majola said despite its size, the award would not undo the damage done to the child and her family.
“It will not give back the normal life of [the] child. It [negligence] has left some scars even [on] the mother, who carried a child for nine months, and a child was left to suffer within minutes or seconds.
“Most times when we raise issues of the carelessness and negligence on the side of the department, we are seen as people who are fighting with government where the department doesn’t want to accept that it has a problem in terms of providing healthcare services to the community."
Health portfolio committee chairperson Koliswa Vimbayo said the committee noted with concern the judgment.
“While the committee would not comment on the merits of an individual case that has been adjudicated by the courts, cases involving harm to patients, particularly children, are deeply concerning.“From an oversight perspective, the committee is also concerned about the broader impact of medico-legal claims on the department’s limited resources.”
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