When a child is left with lifelong disability because of negligence at birth, what does the State owe that child? Money, or treatment?

The Supreme Court of Appeal answered that question earlier this year, and the answer matters to every family with a claim against a provincial health department.

The case

A child sustained quadriplegic cerebral palsy as a result of hospital staff’s negligence. The MEC for Health in the Eastern Cape admitted liability and undertook to make reparation. What remained in dispute was not whether the child should be compensated, but how.

The Department proposed to treat the child within the public health system rather than pay damages, a model sometimes described as a voucher system. The high court in Bhisho agreed, ordering the department to provide treatment.

The State’s argument

It was a financial one, and it was not frivolous. Evidence before the court showed the Department had settled claims totalling around R3.462 billion between April 2014 and March 2021, funds that were never budgeted for, and which had to be taken from other programmes, resulting in expenditure categorised as unauthorised. Its contingent liability for medical negligence claims stood at some R38.8 billion, more than its entire annual appropriation.

What the SCA held

The appeal was upheld and the high court’s development of the common law set aside. Writing for a unanimous court, Schippers JA warned against drastically changing established legal principles, holding that reforms of this kind should be left to the legislature. The once-and-for-all rule stands: all damages, past and future, must be claimed in a single action and expressed as a lump sum.

The Court also found that shifting away from lump sum payments would create uncertainty for patients and could expose them to the risk of inadequate care in a public system that had already failed them.

The South African Medical Malpractice Lawyers Association, admitted as a friend of the court, made the same point from the claimant’s side: developing the common law this way would shift the financial risk of future care away from the wrongdoer and onto poor and injured claimants and their families.

What this means for families

If your child was injured by negligence in a State hospital and liability is established, you remain entitled to be compensated in money: a single award, calculated once, that you and your family control. You cannot be handed a voucher for treatment in the same system, and you are not required to keep returning to it.

What the judgment does not do is make claims easier to prove. Negligence, causation and quantum must still be established, and these cases turn on expert evidence, hospital records and timelines that are often incomplete. They also prescribe. The strength of a claim is usually decided long before it reaches a courtroom, in how carefully it is prepared.

The debate is not over

The Court declined to answer the policy question judicially, not to close it. Structured settlements, periodic payments and mediation have been on the reform agenda for years, and the pressure the numbers place on provincial budgets is real. If reform comes, it will come from Parliament. Until it does, the rule is settled.

Sources: T N obo B N v MEC for Health, Eastern Cape (383/23) [2026] ZASCA 14 (11 February 2026). Financial figures from the evidence recorded in the judgment.

Malcolm Lyons and Brivik Attorneys are leading experts in the field of medical negligence litigation in South Africa. To discuss whether you have a case, contact our offices below:

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