The Daily Dispatch E-Edition

Makhanda court fight over medical negligence claims heats up

ADRIENNE CARLISLE

A last-minute high court bid by the Eastern Cape government to have all writs against the health department’s bank account declared unlawful and invalid has caused a furore among lawyers acting for clients who have substantial medical negligence claims against that department.

The high court sitting in Makhanda was chock-a-block with dozens of senior and junior counsel and instructing attorneys on Thursday, representing some 35 law firms as well as the Personal Injury Plaintiff Lawyers Association (Pipla).

They are all intent on fighting tooth and nail against an application which, if successful, may render it even more difficult to satisfy medico-legal or any other judgment debts against a provincial government notorious for not coughing up.

They argue that in many instances, the only way to secure payment is to execute against the departments’ bank accounts — which the provincial government now argues is not permitted by the State Liability Act (SLA).

This novel argument first popped up in October in another matter in which the public works and health departments have been ordered to pay Ikamva Architects more than R100m in a damages claim.

That judgment is still outstanding, but is likely to have an enormous impact on how litigants recover money from the state.

In the current matter, the provincial treasury, finance and health departments as well as the premier initially launched an application to suspend the execution of orders and writs against the health department’s bank account amounting to hundreds of millions of rand in medical negligence cases.

It sought this interim relief against about 35 law firms and about 40 of their clients — mostly mothers whose babies suffered significant disability during childbirth due to medical negligence — who had successfully litigated the health department.

Nineteen of them had resorted to attaching the department’s bank account after it failed to pay them the courtordered amounts.

While all the departments accept that these court orders must be complied with, treasury head Daluhlanga Majeke says if they cough up such huge lump sums, the health department will face total collapse, completely compromising the little capacity it has left to deliver health services in the province.

It sought the suspension of the execution of orders as interim relief to give it time to put in place measures to better manage the medico-legal landscape.

But last week — mere days before it was to argue this complex matter in the high court sitting in Makhanda — the departments changed tack.

They successfully resorted to court to amend their application papers to instead have any current or future writs against government bank accounts declared unlawful and invalid —a position which aligns itself with the argument by the state in the Ikamva matter.

But this has not gone down well with the respondent lawyers who say they came to court prepared to argue a particular pleaded case which had morphed overnight into something else completely.

Pipla described this in court papers as nothing short of shameful bad faith on the part of the departments.

But judge Murray Lowe ruled on Tuesday that though the relief sought by the department had changed fundamentally, there was an important matter of law — the issue of the legality of writs against government bank accounts and the enforceability of these writs — which required adjudication.

On Thursday, the full bench consisting of judges Nomathamsanqa Beshe, Lowe and acting judge Justin Laing indicated that the amendment had resulted in them being inundated with new heads of argument and other new legal bundles since Tuesday. The matter was duly postponed.

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2021-11-12T08:00:00.0000000Z

2021-11-12T08:00:00.0000000Z

https://dispatch.pressreader.com/article/281539409198565

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