Ms Vuyisile Eunice Lushaba instituted a delictual claim for damages in the Gauteng Local Division of the High Court arising from medical negligence by employees of the Gauteng Department of Health, resulting in the wrongful birth of her child. The MEC for Health, Gauteng defended the action. The High Court found the MEC liable on the merits and ordered punitive costs on an attorney-and-client scale. In addition, the High Court issued a rule nisi calling upon the MEC to show cause why he should not be held personally liable for costs de bonis propriis, or alternatively to identify departmental officials and State Attorney personnel who should be so held liable. Following affidavits filed by the MEC and officials, the High Court made an order holding three officials personally liable for 50% of the costs de bonis propriis and referred one official to the Law Society. The MEC sought leave to appeal to the Constitutional Court against both the merits and the costs-related orders.
Leave to appeal was granted. The High Court order of 26 November 2014 imposing de bonis propriis costs on officials and making related referrals was set aside in its entirety. The appeal against the merits judgment of 16 October 2014 was dismissed. Paragraph 136 of the 16 October 2014 order, which required the MEC to determine or identify personal liability for costs, was set aside.
The case is significant for reaffirming core constitutional principles governing judicial authority, procedural fairness, and the separation of powers. It clarifies that courts may not delegate judicial decision-making to litigants, nor impose personal cost orders on officials or legal practitioners who are not parties without joinder and a fair hearing. The judgment provides important guidance on the constitutional limits of de bonis propriis cost orders, particularly in the context of medical negligence litigation against the state.