The Member of the Executive Council for Health and Social Development of the Gauteng Provincial Government v Zulu

The respondent, Ms Dumile Judith Zulu, acting on behalf of her minor child Wandile Maqhawe Zulu, instituted a delictual claim against the MEC for Health and Social Development of the Gauteng Provincial Government. The claim arose from negligent conduct by staff at Chris Hani Baragwanath Hospital during Wandile’s birth, which resulted in severe brain damage. Liability was conceded, and prior to determination of quantum, the MEC amended her plea to seek (a) an order substituting a lump sum award for future medical expenses with payment of such expenses as and when incurred, and alternatively (b) exclusion of future medical expenses from the calculation of attorneys’ fees under a contingency fee agreement. The High Court rejected these contentions and awarded agreed damages of R23,272,303, including R19,970,631 for future medical expenses, payable as a lump sum.

The appeal was dismissed with costs, including the costs of two counsel. The lump sum award for future medical expenses remained intact, and no exclusion from the contingency fee agreement was ordered.

The case reaffirms the continued application of the common law 'once and for all' rule in South African delictual damages, particularly in medical negligence claims involving future medical expenses. It clarifies the limits of judicial power to develop the common law under section 39(2) of the Constitution and underscores that substantial law reform affecting state liability and public finances is a matter for the legislature. The judgment also confirms the strict application of the Contingency Fees Act and the protection of freedom of contract in litigation funding.