The Eastern Cape Government went the legal route to stop money in the Health Department’s account from being attached by successful medical negligence claims, but yesterday the High Court ruled against the state in a damning judgment, reports GroundUp.

The Eastern Cape MECs of Finance and Health, as well as the heads of these departments, applied for the interdict to stop dozens of claimants from recovering what they are owed in terms of their court orders.

Most of the claimants are poor parents of children born with cerebral palsy due to negligence.

Eastern Cape High Court (Makhanda) Judges Jannie Eksteen, Nomatamsanqa Beshe and Justin Laing refused to grant the interdict and criticised senior officials, including the provincial heads of Health and Treasury, for not budgeting for the rise in medical negligence claims.

The judges have also directed that their judgment be brought to the attention of the NDPP ‘to consider possible prosecution in terms of the Public Finance Management Act’.

The applicants had argued that they needed the interdict in order to retain control of the bank account pending applications to ‘vary' the court orders to make payments in instalments.

The applicants said that in the 2020/21 financial year the department had an annual budget of R26.4bn, but after payment of salaries and other commitments, it was left with R3.4bn for health care services.

In the same year, writs of execution arising from medico-legal claims amounted to almost R921m.

The department also estimated it has a contingent liability of nearly R39bn in unresolved claims, reports GroundUp.

Eksteen, who penned the judgment, said it was argued that these debts could lead to the ‘total collapse’ of the health service in the Eastern Cape.

However, he said, ‘the symbol of justice is a pair of scales’ and the particular circumstances of each of the claimants has to be weighed.

The judge noted that the applicants had accepted that the litigation in each case was justified, the finding of negligence was not disputed, and the validity of the judgments was not challenged.

Eksteen said the applicants were wrong in contending that the State Liability Act, which governs how debt can be collected against the state, precluded the attachment of monies in the Paymaster-General Account.

He said while the applicants denied any suggestion of mismanagement ‘even on their own version, the fiscal management of the department and indeed of Treasury is cause for grave concern’.

With regards to the proposal that the judgments be revised, the judge said the common law precluded a court from setting aside or altering a final order.

‘The application was ill-advised and cannot succeed,’ he said, dismissing it with costs.

Full GroundUp report

Judgment

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