The Premier of the Western Cape Provincial Government N.O. v Rochelle Madalyn Kiewitz obo Jaydin Kiewitz

The respondent sued the Western Cape Provincial Government for delictual damages arising from medical negligence. Her minor child, Jaydin Kiewitz, became permanently blind due to retinopathy of prematurity that was negligently undetected at birth at Tygerberg Hospital. The Premier conceded liability on the merits, and most damages were settled for R7 million. The only outstanding issue concerned future medical expenses. Instead of paying a lump-sum monetary award for these expenses, the appellant tendered to provide all future medical treatment at provincial health facilities free of charge and argued that the respondent was obliged to accept this tender in mitigation of damages.

The appeal was dismissed with costs, and the High Court’s rejection of the appellant’s plea in mitigation was upheld.

This case reaffirms fundamental principles of South African delict law, particularly that compensation for patrimonial loss arising from bodily injury must take the form of a monetary award and that restitution in kind is not permissible. It confirms the continued application of the 'once and for all' rule and limits attempts by state defendants to avoid lump-sum awards for future medical expenses through mitigation arguments. The judgment also underscores the separation of powers by holding that substantive reform of damages law is a matter for legislative, not judicial, intervention.