The High Court in Johannesburg earlier this week ordered three government officials ordering to pay punitive costs of a litigation out of their own pockets.
Over a period of four years the MEC and the Department of Health in Gauteng contested a case of gross negligence without justification. They also did not comply with court timetables and procedures to answer the challenges. This severely inflated the legal costs of the case, and Judge Robinson now wants the responsible individuals to pay this bill.
This judgment follows the sad story of Vuyusile Eunice Lushaba, who sued the Gauteng MEC for Health in 2012 for professional negligence.
In June 2000 she arrived, heavily pregnant and in a state of emergency, at the Johannesburg General Hospital, now known as the Charlotte Maxeke Academic Hospital.
The nursing staff had ignored her desperate pleas for help. It took two hours before a doctor noticed Lushaba’s plight and rushed her into an operating theatre. Her son, Menzi, was born with spastic quadriplegic cerebral palsy as a result of the hospital’s negligence and can neither sit nor walk.
In a damning judgment handed down last month, Acting-Justice Ronée Robinson noted that she “cannot appreciate why the taxpayer should bear the sole brunt of the failure by the public service to perform its duties adequately”. For this reason she ordered the MEC for Health, Qedani Mahlangu, and three other functionaries to appear before her in open court to explain why she should not hold them financially responsible for the lackadaisical manner in which they had conducted themselves during the course of the litigation.
In the event that Mahlangu was of the view that she was not personally liable, she was called upon to identify the persons responsible in her department as well as in the office of the State Attorney. Each of these officials identified themselves and deposed to affidavits.
Judge Robinson also took issue with the manner in which the government had conducted itself in the litigation: “The argument was also made that the extent of the plaintiff’s claim of R17 million obliged the defendant to defend the case. I cannot agree with either submission.”
In her judgment earlier this week, having considered submissions by the MEC and three officials, Judge Robinson let the MEC off the hook in her personal capacity but ordered the officials to pay 50% of Lushaba’s litigation costs on a punitive scale.
The principles of justice dictate that before taking such drastic steps against individuals who are not named litigants, that they be allowed to explain to the court why they should not be held personally liable. Having done so, Judge Robinson declared: “I am satisfied that they have properly been heard.”
These officials are:
- Ezeziel Matlou, an attorney in the employ of the State Attorney.
- Jabulani Macheke, a senior legal administrative officer employed in the legal services section of the Gauteng Department of Health.
- Dr Kgoposo Cele, a medical practitioner employed as a medico-legal advisor by the Gauteng Department of Health.
Judge Robinson ordered that once the MEC for Health had paid all of Lushaba’s costs (in her professional capacity) that she, “is ordered to recover 50% of the costs paid by her to the plaintiff from Messrs Matlou, Macheke and Cele jointly and severally.”
Shaming of public officials ineffective
Judge Robinson analysed and quoted extensively from a number of judgments over the last six years in which public officials had merely been shamed and no further action had been taken against them. She concluded: “Even the strongest exhortation of our highest courts falls on deaf ears.”
Judge Robinson used Menzi Lushaba’s paralysis as a metaphor for the state of the public service in South Africa: “I observed the plaintiff, a far from hefty young woman, carry her fourteen-year-old son out of court on her back. She did not have a wheel chair in court. During the court proceedings she had to cradle him in her arms because, paralysed as he is, he could not sit by himself. This is symbolic of the destruction wrought by the callous, incompetent indifference on the part of public officials inflicting South Africa at the moment. The plaintiff and her son deserved much better.”
Jay Kruuse, director of the Public Service Accountability Monitor in Grahamstown told Moneyweb: “Yesterday’s (Wednesday’s) authoritative judgment by Judge Robinson details a mechanism to exact meaningful accountability from public servants who violate human rights and the ideals contained in the South African Constitution. That such a mechanism should result from drawn-out and for the most part, indefensible opposition to court action brought by a plaintiff mother whose child was severely disabled due to medical negligence committed by the Health Department, is an appalling indictment against the state.
“It is becoming overwhelmingly apparent that incompetence and associated acts of negligence are not being adequately dealt with by senior managers and members of the executive. The judiciary is increasingly being called upon to make rulings against officials who have grossly violated people’s rights, and this is often due to the absence of adequate checks and balances within government departments to ensure that staff are routinely held accountable for their actions. “The consequences of incompetence which have resulted in this reasoned judgment should be conveyed widely to public servants by the Department of Public Service and Administration, trade unions, members of the executive and civil society.”
Lushaba’s attorney, Justice Reichlin Ramsamy, told Moneyweb that his clients were happy with the outcome of the matter. On behalf of Lushaba he expressed gratitude to the Moneyweb reader who recently donated a wheelchair for Menzi, and to Mango Airlines who collected it in Johannesburg and delivered it to him in Durban.
No response has been received from the MEC for Health, Department of Justice, or the three named officials.