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MEC may have to pay legal fees from her own pocket

Judge demands that MEC explains who is responsible for extreme negligence.

A judge in the South Gauteng High Court (SGHC) has ordered the current MEC for Health in Gauteng, Qedani Mahlangu, to appear before her and to explain why she should not pay for the costs of a medical negligence trial out of her own pocket.

Acting-Justice Ronée Robinson said in a scathing judgement that she “cannot appreciate why the taxpayer should bear the sole brunt of the failure by the public service to perform its duties adequately”.

In the judgement regarding a medical negligence case she lambasted medical staff at the Charlotte Maxeke Academic Hospital, the previous Johannesburg General Hospital, the MEC for Health in Gauteng, and the State Attorney. 

She ordered that they pay costs on a punitive scale.

The case followed when heavily pregnant Vuyusile Eunice Lushaba went to the hospital in June 2000 in a state of emergency.  It took the staff nearly two hours to attend to her properly.  Her son, Menzi, was born with spastic quadriplegic cerebral palsy as a result of the delay.  He can neither sit nor walk.

In the High Court

Lushaba sued the MEC for Health in 2012, and the matter was heard earlier this month.  The MEC for Health is the political head of Gauteng’s public hospitals. 

Acting-Judge Robinson found that the hospital and the State Attorney had been negligent.  “That Ms Lushaba could be left essentially unattended for around two hours; speaks of a disquieting indifference by the hospital towards its public duty.”

State attorney

Acting-Judge Robinson was similarly scathing concerning the quality of legal representation proffered by the State Attorney.  She observed that the MEC (read, State Attorney) failed to respond to court notices from the plaintiff, failed to comply with court orders that it should furnish documents, and had filed an expert medical report way out of time.  “No explanation was provided at the trial for this failure.”

Acting-Judge Robinson’s judgment follows on similar judgments handed down last month in the North Gauteng High Court in which Judges Eberhard Bertelsmann and Natvarlal Ranchod, presiding in two different matters on the same morning, hauled the State Attorney over the coals.  Government departments are obliged by law to make use of no other law firm except for the State Attorney.  During argument, Judge Bertelsmann commented that this was the worst case of professional neglect that he had come across in all his years as a judge.

Read High Court Judges lash the State Attorney

Failures by the State Attorney

Acting-Judge Robinson also berated the MEC for defending the matter on spurious grounds. “The defendant’s persistent denial of negligence raises concerns that it persists in not appreciating its obligation towards the public it is meant to serve.”

The judge also commented on, “the lamentable conduct of the litigation by the State Attorney,” saying that, “at no stage during the trial was a representative of the State Attorney in court,” and that, “blame would also have to be ascribed to the State Attorney’s office for the failure to comply with time periods and court orders.”  The professional rules of the legal profession require that the instructing attorney always accompany an advocate to court.

The cost orders

When the matter was argued in court, Acting-Judge Robinson asked counsel appearing for the MEC to make written submissions why she should not lumber the MEC (in his representative capacity) with a punitive costs order.  “I received no such submissions.”

She noted:  “Our Constitution and particularly the values enshrined in the Bill of Rights require committed service from the public sector, a commitment eerily absent in this case.”

She ordered that the MEC appear before her later this month to show cause why she (the MEC) should not be ordered to pay the costs out of her personal funds. She ordered that if the MEC denies personal liability that she must then, under oath, “identify such persons in the department of Health of Gauteng, as well as such persons in the office of the State Attorney, who should be personally held liable for the costs as well as the reasons why they should be so held liable.”

“I fail to appreciate why the taxpayer should bear the sole brunt of the failure by the public service to perform its duties adequately.”

Lushaba’s attorney, Justice Reichlin Ramsamy told Moneyweb: “We feel grateful that the court has recognised that our clients were failed by the health system.  The orders for costs reflect the frustration felt by lawyers – and the courts – at the callous manner in which the state tends to litigate.  Their approach seems to consist only in an effort to delay proceedings forever, if possible, without any care for the waste of costs or the hardship of victims. Ms Lushaba is so poor that that she carries her 14-year-old cerebral palsied son on her back since there has been no money for a wheelchair.”

Comment was sought from the MEC for Health, Qedani Mahlangu.  Her spokesman, Prince Hamnca, undertook to provide his email address so that we could forward a copy of the judgment for comment.  He had not responded by the time of publication.

Jay Kruuse of the Public Service Accountability Monitor in Grahamstown commented: “Orders of such a nature will increasingly be made where members of the executive, public servants and the state attorney conduct themselves in ways that are unconstitutional and result in gross violations of human rights. Until disciplinary action (and criminal charges,where warranted) is routinely brought against those who breach the law, service delivery will remain compromised and in no way progressive as required by the SA constitution.”

Read the judgment here.

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