The Health MEC of North West Province in South Africa has been mandated to pay R17.2 million to a Zimbabwean mother for her child’s future medical expenses. This decision comes after the court found that hospital staff were negligent during the child’s birth in 2013, leading to the child developing cerebral palsy.
In 2021, the North West High Court in Mafikeng determined that the Health MEC was responsible for the mother’s proven damages, but the exact amount was not specified by Judge Andre Petersen at the time. The mother’s claim included general damages, loss of income, future medical costs, and expenses for setting up and managing a trust for her child.
Dispute Over Medical Expenses
The case returned to the high court for a precise calculation before Judge Sandiswa Mfenyana, with the judgment being reserved in October 2023. The court needed to resolve a disagreement over the sum allocated for medical expenses despite both parties having previously agreed on setting up a trust.
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Initially, an amount of R18.8 million was agreed upon by both the mother and the North West Health MEC. However, the MEC requested a reduction in this amount, citing the mother’s Zimbabwean citizenship. The MEC’s legal team argued that the plaintiff might return to Zimbabwe, impacting the required amount.
Mother’s Testimony and Family Plans
The mother testified that she has been living in South Africa since 2005 and moved to North West in 2009. She worked as a domestic worker until August 2023, leaving her job for maternity leave and not being rehired upon her return. She now works part-time while primarily caring for her children.
She and her family plan to remain in South Africa, supported by her husband’s income as a cleaner. The mother holds a Zimbabwean Exemption Permit (ZEP) obtained in 2010 and is awaiting the results of her waiver application, as the ZEP permit is set to expire in June 2024. The family lives in a shack and plans to enroll their 10-year-old child in a special school for disabled children in Brits.
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Court’s Final Decision
Judge Mfenyana rejected the MEC’s plea for a higher contingency for medical expenses based on the mother’s nationality, stating that the South African Constitution guarantees equal protection under the law to everyone. The judge deemed the MEC’s argument unconstitutional.
Judge Mfenyana concluded that the mother is entitled to R17.2 million for her child’s future medical expenses, which will be managed by a trust. The breakdown of the amount includes R16,056,207.60 for future medical expenses (after a 15% contingency deduction from the initial R18,889,656.00) and R1,204,215.57 for trust administration costs as per an order from Hendricks JP on 1 November 2022.
In addition to the main award, the MEC was also instructed to cover the travel and accommodation expenses for the mother and her child, if necessary, as well as the costs for two counsels.
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