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Court furore over Eastern Cape attempt to stop medical negligence writs

A “shameful and bad faith” 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 dozens of lawyers acting for clients who have substantial medical negligence claims against that department, writes Daily Dispatch.

The report says the Eastern Cape High Court (Makhanda) was packed on Thursday (11 November) with dozens of senior and junior counsel and instructing attorneys representing some 35 law firms as well as the Personal Injury Plaintiff Lawyers Association (Pipla). The 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.

This novel argument first popped up in October in another matter in which the Public Works and Health departments had been ordered to pay Ikamva Architects more than R100m in a damages claim. The Daily Dispatch reported 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 rands in medical negligence cases. It sought this interim relief against about 35 law firms and about 40 of their clients. Nineteen of them had resorted to attaching the department’s bank account after it failed to pay them the court-ordered amounts. While all of the departments accept that these court orders must be complied with, Treasury said if they have to fork out such huge lump sums, the Health Department would face total collapse, compromising the little capacity it has left to deliver health services in the province.

But last week – days before it was to argue this complex matter in the Eastern Cape High Court – the departments changed tack. The Daily Dispatch reported that it successfully resorted to court to amend its 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 said they went 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 Thursday 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. 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. The matter was duly postponed.

 

Daily Dispatch Pressreader article – Makhanda court fight over medical negligence claims heats up (Open access)

 

See more from MedicalBrief archives:

 

Eastern Cape Health: R3.8bn in unpaid bills and R37bn in legal claims

 

Eastern Cape Health interdicts attorney's R79m payout move

 

Eastern Cape application to freeze R364m in medical negligence awards

 

Landmark ConCourt application on soaring claims

 

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