Member of the Executive Council for Health, Gauteng v Lushaba

Ms Lushaba instituted a damages claim in the High Court against the MEC for Health, Gauteng, arising from medical negligence at a state hospital that resulted in the wrongful birth of her son. The MEC defended the action based on an expert opinion by Dr Mashamba, who disputed negligence. The trial court found in favour of Ms Lushaba, holding the MEC liable for 100% of damages and ordering costs on an attorney-and-client scale. The trial court was critical of how the decision to defend was taken, finding it was made without perusal of crucial documents. On 16 October 2014, the High Court issued an unusual further order calling on the MEC to show cause why he should not be personally liable for costs de bonis propriis, or alternatively to identify officials in his department and the State Attorney's office who should be held personally liable. The MEC filed affidavits explaining the decision-making process, with supporting affidavits from Dr Cele, Mr Macheke, and State Attorney Mr Matlou. On 26 November 2014, without joining these officials as parties or giving them proper notice, the High Court ordered Messrs Matlou, Macheke and Dr Cele to pay 50% of the costs de bonis propriis jointly and severally with the MEC.

• Whether the High Court was competent to authorize a party to litigation to exercise judicial authority in determining their own liability and identifying others who should be liable
• Whether the High Court violated section 165 of the Constitution by allowing the MEC to be a judge in his own case
• Whether the three officials (Matlou, Macheke and Cele) were denied their right to a fair hearing under section 34 of the Constitution when ordered to pay costs personally without being joined as parties or given proper notice
• Whether the High Court's cost order against the officials was procedurally irregular
• Whether leave to appeal should be granted on the merits of the liability finding

1. Leave to appeal is granted. 2. The order issued by the Gauteng Local Division of the High Court on 26 November 2014 is set aside. 3. The appeal against the order of 16 October 2014 on the merits of the case is dismissed. 4. Paragraph 136 of the order of 16 October 2014 is set aside.

The binding legal principles established are: (1) A court cannot authorize a party to litigation to exercise judicial authority, including determining their own liability or identifying who else should be liable - this violates section 165 of the Constitution which vests judicial authority in the courts. (2) The principle that no one can be a judge in their own case is fundamental to the constitutional order and must be observed. (3) Before a person can be ordered to pay costs personally (de bonis propriis), they must be properly joined as a party to the proceedings and given proper notice and an opportunity to be heard - failure to do so violates the section 34 constitutional right to a fair hearing. (4) Affidavits filed in support of one party's case cannot be treated as a hearing for purposes of making orders against the deponents personally. (5) The rule of law requires that no one should be condemned without a hearing, and court orders should not be made without affording the affected party a reasonable opportunity to state their case.

The Court made sympathetic observations about the frustration trial courts experience with the flood of medical negligence litigation against provincial health departments, noting the staggering increases in claims in recent years at enormous cost to public capacity to render health services. The Court acknowledged it is understandable that trial courts feel frustration as litigation costs mount, delays become protracted, and injured claimants suffer, while litigious lawyers prosper and bureaucrats seem to escape responsibility. However, the Court emphasized that despite these legitimate concerns, "the Court here sought to apply inapposite implements to a profound structural problem" and that "the quest to bring accountability to those who are responsible for the tragic proliferation of damages claims, and the seeming morass of never-ending litigation amidst which deserving claimants are sometimes made to suffer, must take a different form." This suggests that while accountability is important, it must be pursued through appropriate legal mechanisms that respect constitutional rights rather than through irregular procedural innovations.

This case is significant in South African constitutional jurisprudence for several reasons: (1) It reinforces the constitutional principle under section 165 that judicial authority is vested exclusively in the courts and cannot be delegated to parties in litigation. (2) It reaffirms the ancient principle that no one can be a judge in their own case, applying it in the context of cost orders. (3) It emphasizes the procedural requirements for joining parties and the constitutional right to a fair hearing under section 34, particularly in the context of punitive cost orders against non-parties. (4) It demonstrates the limits of judicial innovation in addressing systemic problems like the proliferation of medical negligence claims, emphasizing that accountability mechanisms must comply with constitutional requirements. (5) It provides guidance on when individuals can be held personally liable for costs de bonis propriis and the procedural safeguards that must be observed. The case serves as an important reminder that even when courts are frustrated by systemic problems and seeking to impose accountability, they must adhere to fundamental constitutional principles of fair procedure and the rule of law.