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

Ms Dumile Judith Zulu instituted an action on behalf of her minor child, Wandile Maqhawe Zulu, claiming damages against the MEC for Health and Social Development of the Gauteng Provincial Government. The claim was based on brain damage suffered by the child during birth due to the negligence of staff at Chris Hani Baragwanath Hospital. Claassen J found the appellant liable for agreed or proven damages on 29 July 2014. Prior to the quantum hearing, the appellant amended her plea to raise two additional issues: (1) whether future medical expenses should be paid directly to service providers as required, rather than as a lump sum, and (2) whether the award for future medical expenses should be excluded from the contingency fee agreement. The quantum was settled at R23,272,303, of which R19,970,631 represented future medical expenses. Francis J decided both issues against the appellant, who then appealed with leave of the Supreme Court of Appeal.

• Whether the common law 'once and for all' rule for damages should be developed to permit payment of future medical expenses as and when required, rather than as a lump sum
• Whether such development of the common law is required by section 39(2) of the Constitution to promote the right to healthcare services in section 27
• Whether the court has power under the Contingency Fees Act 66 of 1997 to exclude the award for future medical expenses from the contingency fee agreement
• Whether the best interests of the child in terms of section 28(2) of the Constitution require exclusion of future medical expenses from the contingency fee agreement

The appeal was dismissed with costs, including the costs of two counsel.

The binding legal principles established are: (1) The common law 'once and for all' rule for damages in delictual claims, including for future medical expenses, remains applicable and will not be developed by the courts in the absence of evidence that it compromises constitutional rights. (2) Development of the common law under section 39(2) of the Constitution requires a two-stage inquiry: first, whether the existing common law requires development having regard to constitutional objectives, which necessitates evidence that the common law compromises constitutional rights; and second, if so, how such development should take place. (3) Substantive changes to the common law involving policy considerations are more appropriately dealt with by the legislature, as the major engine for law reform, rather than the judiciary, which should confine itself to incremental changes necessary to keep the common law in step with society. (4) Under the Contingency Fees Act 66 of 1997, section 2(2) determines a practitioner's fees by reference to the total amount awarded or obtained by the client, and courts have no power to exclude portions of an award (such as future medical expenses) from the calculation of fees under a contingency fee agreement. (5) Upholding contingency fee agreements is consistent with constitutional values underlying freedom of contract.

The court made several non-binding observations: (1) Payment of future medical expenses as and when required (rather than as a lump sum) would create practical difficulties, including that a 30-day payment period after receiving quotations would frustrate emergency treatment, and that disputes over quotations would result in a plethora of actions against the state with concomitant denial of medical treatment to claimants. (2) It would be necessary for the state to show how it would budget for indeterminate and intermittent future claims to ensure claimants' rights to medical treatment would not be denied. (3) It is no answer to practical concerns to suggest they could be allayed by carefully crafted court orders. (4) The issue of whether indigenous law (which permits awards of cattle as damages) is relevant in the context of compensation for patrimonial loss was raised in argument but did not require determination, as it had not been pleaded, argued before the court a quo, or considered by that court. The appellant's case remained one where money was to be paid. (5) Whether Regulation 8.2.3 promulgated under section 76 of the Public Finance Management Act 1 of 1999 or the form of the order granted by Claassen J precluded the relief sought did not require consideration given the court's conclusion on the main issue.

This case is significant in South African law for affirming the 'once and for all' rule for delictual damages, particularly in relation to future medical expenses. It establishes that development of the common law under section 39(2) of the Constitution requires not only identification of a constitutional right that would be promoted, but also evidence that the existing common law actually compromises that right. The judgment reinforces the principle that substantive law reform involving policy considerations should be left to the legislature rather than the judiciary, particularly where practical implementation difficulties exist. The case also clarifies the limited scope of judicial intervention in contingency fee agreements under the Contingency Fees Act 66 of 1997, confirming that courts cannot vary the amounts subject to such agreements in the absence of express statutory authority. It upholds the principle of freedom of contract in litigation funding arrangements as consistent with constitutional values. The judgment is important for state liability cases, particularly where the state seeks to avoid lump sum payments for future medical expenses in favor of periodic payment systems.