Eastern Cape health department to appeal against SCA ruling on lump-sum negligence payouts

The Eastern Cape health department is planning to appeal to the Constitutional Court against a judgment that requires it to resume paying the massive “once-and-for-all”lump sums in medical negligence cases. The department faces an almost R40bn contingent liability as a result of negligence cases. It has indicated it simply cannot afford to continue to pay out these massive lump sums without affecting its general health service delivery mandate.

The Bhisho High Court in 2025 ruled in favour of the department in amedical negligence case, finding there was a compelling case to develop the common law in terms of “once-and-for-all” lump sum payment obligations. It found that if the state had established it was able to provide future medical treatment at a standard equivalent to, or better than that of the private sector, it need not pay out a lump sum for future medical treatment. This aspect ofdamages claimsis often by far the biggest cost driver and — in the case of children born with disabilities as a result of medical negligence during the mother’s labour – can amount to millions of rand for care throughout a child’s life.

But the Supreme Court of Appeal this week rejected the Bhisho High Court’s reasoning and upheld an appeal against it. It said the court had overstepped its boundaries in developing the common law to this extent and had strayed into the legislature’s territory. The legislature was the proper institution for major law reform of this sort, the SCA said.

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The department said it believed the matter raised “fundamental constitutional questions that extend beyond the scope of existing common law precedents” and required further and deeper consideration by the Constitutional Court. It had received legal advice that “an appeal against the judgment of the SCA would fall squarely within that Constitutional Court’s jurisdiction; that such an appeal enjoys strong prospects of success and that it would be in the interests of justice, for the questions raised, to be reconsidered by that court”. At the centre of this particular case is a child born with spastic quadriplegic cerebral palsy as a direct result of medical negligence during labour and his birth at Cecilia Makiwane Hospital.

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