North West Health MEC must pay R17m to Zim woman after child developed cerebral palsy

North West’s Health MEC will have to fork out R17.2 million to a Zimbabwean woman for her 10-year-old child’s future medical expenses.

The mother filed a claim for damages against the North West Health MEC after hospital staff were found to be negligent during her child’s birth in 2013.

This led to the child developing cerebral palsy.

Disagreement on medical costs

In 2021, the North West High Court in Mafikeng had ruled that the Health MEC was liable to pay the mother’s “proven damages”, however, the amount was not determined by Judge Andre Petersen at the time.

The mother’s claim was in respect to general damages, loss of income, future hospital and medical expenses as well as expenses related to establishing and overseeing a trust for her child.

The case went back to the high court for calculation before Judge Sandiswa Mfenyana, with the judgment being reserved in October 2023.

Mfenyana has now determined the amount owed to the mother for her child’s future medical costs and setting up of the trust.

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During the trial proceedings, the court heard of a disagreement over the sum designated for medical expenses, despite reaching a settlement regarding the establishment of a trust.

Initially, a figure of R18.8 million had been mutually accepted by the mother and the North West Health MEC.

However, the MEC petitioned the high court for a slightly reduced amount to be disbursed, citing the mother’s Zimbabwean citizenship as a factor. The MEC’s lawyers had argued in court that the plaintiff could return to Zimbabwe at any time.

Family plans to stay in SA

The mother testified that she is a Zimbabwean national who came to South Africa in 2005. She moved to North West in 2009 and worked as a domestic worker until August 2023.

She left employment to take maternity leave for the birth of her second child, however, her services were terminated on her return.

Since then, she has been doing “piece jobs” once a week as a domestic worker.

For the rest of the week, she cares for her children. The mother informed the court that she depends on her husband’s income from his job as a cleaner at a private company.

She testified that her family intends to remain in South Africa and raise their two children in the country having obtained a Zimbabwean Exemption Permit (ZEP) in 2010.

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The mother is currently awaiting results of her waiver application since the ZEP permit will end on June 2024.

Furthermore, the plaintiff revealed that she lives in a shack with her husband and their children.

She informed the court of her future plans to enroll her 10-year-old at a special school for handicapped children in Brits.

The Zimbabwean national also indicated that it would be ideal for her to remain in Brits as this would allow her child to retain relationships with their friends should a suitable home be built for the benefit of the minor.

The MEC’s lawyers had suggested that the family be provided with suitable adjustable accommodation with a room for a caregiver.

High court judgment

In her ruling, Mfenyana rejected the MEC’s request to give the mother a higher contingency for medical expenses because of the plaintiff’s non-citizen status, which “excludes her from owning land” in the country.

The judge explained the Bill of Rights with the Constitution guaranteed equal protection of the law to everyone regardless of their nationality.

“I could not find any support, nor did the defendant provide such, for the suggestion that a foreign national is entitled to less protection of the law while in the republic. To my mind the submission is not only unfortunate, but unconstitutional,” the judgment reads.

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Mfenyana concluded that the mother was entitled to R17.2 million, which is to be paid by the MEC. It will go towards medical expenses and will be controlled by a trust.

Some of the awarded money will be allocated to establishing the trust.

“The amount of R17 260 423.20 is made up as follows: R16 056 207.60 (R18 889 656.00 less 15% contingency allowance) in respect of the plaintiff’s claim for future medical expenses.

“A final amount R1 204.215.57 in respect of the costs associated with the administration of the trust to be formed in terms of the order of Hendricks JP of 1 November 2022,” the judge ruled.

The MEC was further ordered to pay the travel and accommodation fees of the mother and her child if any, as well as the costs of two counsel.