For the second time, the Eastern Cape High Court has rebuffed attempts to revisit a medical negligence claim that was previously settled but is now being challenged by the Special Investigation Unit (SIU), writes MedicalBrief. In both cases, punitive costs were awarded against the SIU.
The application dates back to a 2017 finding by the Court that Eastern Cape Health was liable for damages suffered by a child who was treated at Canzibe Hospital, but following a failed surgery was left with urinary and faecal incontinence. The State settled the matter for R9-million in 2019 and a R2.6m payout to mother already made and the balance due. The SIU wanted to the payment already made refunded and any further payment blocked.
The application was part of the SIU's ongoing investigation into maladministration in the office of the State Attorney in relation to work performed on its behalf relating to medical negligence in the Eastern Cape. The SIU has been assigned, by presidential proclamation, to recover any public funds lost in the process and wanted the case revisited on the grounds of a crucial expert witness not being called.
In his judgment, High Court (Mthata) Judge Bantubonke Tokota not only rejected the SIU's arguments but was also scathing of the quality of the SIU's founding affidavit before the Court, describing the reading of it as "tiring, boring and irritating". "The use of legal argument supported by case law in the founding affidavit … makes the founding affidavit verbose… One must search diligently and possibly in vain for the main plank of the applicant’s case among a forest of assorted trees."
The SIU now wants the judgment rescinded on the basis that the state’s legal team had failed to call a crucial expert witness, a paediatric neurosurgeon, and argued that its constitutional right to a fair trial has been infringed.
Tokota wrote in his judgment:
"The applicant has not set out any facts relating to an investigation as to why these witnesses, it claims should have been called, were not called. It merely asserts that this failure has resulted in the defendant having suffered financial prejudice. The claim by the applicant that this witness would have bolstered the defendant’s case is based on speculation and in any event denied by the second respondent. The applicant in essence seeks the setting aside of the judgment of this court so that it may be permitted to enter the fray and lead further evidence in support of the defendant’s defence.
"In my view the application is ill-conceived … If the organs of State clothed with powers to investigate corruption and related maladministration in the government resulting in wasteful and irregular expenditure were allowed to re-open cases in which they were not involved, even though the department with the budget has been involved, that would bring about chaos and uncertainty.
"Once a judgment is pronounced by court, it is final and can only be re-opened on permissible grounds recognised in law … To grant the application will amount to re-opening of a can of worms in cases which were fully ventilated in a court of law by all parties who had a direct and substantial interest. If this were to be acceded to, simply because there is an allegation of remissness on the part of the State Attorney or any legal representative appointed by him, that would open a flood gate to endless litigations.
"The applicant is an organ of State. An organ of State was present at the trial which took a full course. It would be unfair and prejudicial to the defendant if the State would be allowed a second bite simply because there is an allegation of conducting the trial recklessly. In my view, the investigation of the State Attorney cannot be extended to include re-opening of cases, which were fully canvassed in a court of law. The remedy cannot lie in the re-opening but in the recovery of damages from the State Attorney concerned if there is a room for such recovery.
"Given the indubitable scourge of corruption in this country and the hue and cry of the society to stamp it out in all spheres of government, it cannot be denied that the work of entities like the applicant is laudable. This pandemic has resulted in the depletion of the public purse and is beneficial only to the rich rather than the poor community.
"For this reason it is imperative that where possible the performance of the courageous work by the applicant and other entities empowered to do so in this regard should be encouraged rather than discouraged. There may be merits in the suspicion for corruption in handling medical negligent cases especially in the Eastern Cape. However be that as it may, cases are decided on facts and not on suspicions.
"I am not persuaded that this [Presidential] Proclamation authorises the applicant to endeavour to re-open cases already concluded. If it does so in my view it is ultra-vires the powers of the President."
Earlier this year, the SIU lost another Eastern Cape High Court bid to stop the payout of R72m of damages in four medical negligence matters which the SIU claimed were "maladministered" by Eastern Cape Health and its lawyers.
Acting Eastern Cape High Court (Bhisho) Judge Siphokazi Jikela – in dismissing the SIU’s application – expressed her displeasure with the SIU by awarding punitive costs against it. The respondents to the SIU’s court action were four mothers whose children suffer cerebral palsy as a direct result of serious negligence of the public hospitals where they gave birth. While the SIU sought to interdict what they believed, on the basis of "preliminary investigations" were suspect payouts, the lawyers for the four women argued that the children were not receiving the medical and other assistance they desperately needed.
Jikela described as "unfair and unjustified" that the SIU had sought to deprive the four caregivers of the cerebral palsy children of the benefit of court orders without the judgments ever having been appealed. "By law such judgments stand until reviewed or set aside by an appropriate court order and the plaintiffs were entitled to execute on them." Jikela said in all four cases the women had been waiting to benefit from the judgments in their favour "for some time".
"Why should they be prejudiced? A judgment creditor who obtained judgment is entitled to execute against a litigant to obtain satisfaction of the judgment debt."
[link url="http://www.saflii.org/za/cases/ZAECMHC/2020/57.pdf"]Full Tokota judgment[/link]
Jikela judgment not reported