THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 216/2017

In the matter between:

NOKUTHULA  NOMSA KHOZA obo
ZAMOKUHLE KHOZA

APPELLANT

and

THE MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH
OF THE GAUTENG PROVINCIAL GOVERNMENT                            RESPONDENT

Neutral citation:
Khoza v MEC for Health, Gauteng (216/17) [2018] ZASCA 13
(15 March 2018)
Coram:

Lewis, Majiedt, Willis and Dambuza JJA and Pillay AJA
Heard:

2 March 2018
Delivered:

15 March 2018

Summary:  Medical negligence – quantum of damages – court a quo erred in this
regard – award for general damages increased – contingency deduction for future
loss of earnings reduced – appeal upheld.

ORDER

On appeal from:  Gauteng Local Division, Johannesburg (Mashile J sitting as court
of first instance):
1 The appeal is upheld, with costs, including the costs of two counsel.
2 Paragraphs 1 and 2 of the orders of the court a quo are set aside and are
replaced with the following:
‘1 The Defendant shall pay an amount of R19 048 290 to the plaintiff in her
representative capacity, for and on behalf of her minor child, Zamokuhle Khoza,
which amount is computed as follows:

(a) Past medical expenses:

R1 375
(b) Future hospital, medical and related expenses:
R14 490 799
(c) Future loss of earnings:

R1 427 166
(d) General damages:

R1 800 000

SUB-TOTAL:

R17 719 341

(e) Trust (7.5% of R17 719 340.40):

R1 328 950

TOTAL AMOUNT:

R19 048 291

2 The total amount mentioned in paragraph 1 above, less the amount of
R15 578 983.93 that was paid by the defendant on 29 February 2016, shall be paid
in accordance with the provisions of section 3(a)(i) of the State Liability Act 20 of
1957 within 30 days  from the date of this order directly into the trust account of the
plaintiff’s attorneys of record. The banking details are as follows:

WIM KRYNAUW ATTORNEYS TRUST

Bank:

ABSA – Trust account

Account number:
405 735 0513

Reference:

H NORTJE I MEC0003

3 The amount of R19 048 290.93 shall be retained by the plaintiff’s attorneys in an interest-
bearing account in terms of section 78(2)(A) of the Attorneys Act 53 of 1979 for the
benefit of the minor child.’

JUDGMENT
___________________________________________________________________

Willis JA (Lewis, Majiedt and Dambuza JJA and Pillay AJA concurring):
Introduction
[1] This appeal is concerned with two issues arising from a claim for medical
negligence. The first is the award made for general damages, and the second is the
amount that should be deducted for contingencies in respect of the loss of future
earnings. For general damages, the court a quo awarded R200 000 but the appellant
contends that it should have been R1 800 000. The agreed loss of future earnings
was R1 159 642. From this amount, the high court made a 35 per cent contingency
deduction. The appellant submits that the deduction should have been 20 per cent.
She appeals to this court with the leave of the court a quo.

[2] The appellant instituted the action as the parent and natural guardian of her
minor son, Zamokuhle Khoza. She gave birth to him at the Chris Hani Baragwanath
Hospital on 25 May 2008. The Gauteng Provincial Government is responsible for the
administration and management of the hospital. The respondent is the political head
of the Provincial Department of Health.

[3] During the course of his birth, Zamokuhle experienced foetal distress, more
particularly a hypoxic-ischaemic incident, due to perinatal asphyxia. As a result, he
has severe brain damage, which manifests itself in spastic cerebral palsy,
quadriplegia, mental retardation, epilepsy, marked delays in development, speech

deficits, general spasticity, compromised respiratory function, subluxation of the hip,
scoliosis of the spine and behavioural problems. The appellant claimed that it was
the negligence of the staff at the hospital which caused Zamokuhle’s maladies and
extensive suffering.

[4] The parties agreed that there should be a separation of the merits of the case
from the quantum and an order was made to this effect in terms of Rule 33(4) of the
Uniform Rules of Court.  The merits were adjudicated by Spilg J. On 2 February
2015, he found that Zamokuhle’s brain damage was indeed the result of the
negligence of the staff at the hospital and that the respondent was liable for 100 per
cent of the plaintiff’s proven damages. The court a quo (Mashile J) adjudicated the
damages.

[5] The damages were claimed under four separate heads: past hospital,
medical and related expenses; future hospital, medical and related expenses; future
loss of earnings and general damages. The parties agreed on past and future
hospital, medical and related expenses in an aggregate amount of R14 490 799.
This amount was to be paid into a trust for the benefit of Zamokuhle. A further 7.5
per cent of this amount was allowed for the costs of establishing and administering
the trust. The parties agreed that the estimated loss of future earnings would be
R1 783 958, subject to an appropriate contingency deduction. Accordingly, the only
issues left for the court a quo to determine were the quantum of general damages
and the contingency deduction from the agreed future loss of earnings. The two
issues are now in contention before this court. The fact that there was no cross-
appeal indicates that the respondent does not contend that there should be no award
for general damages. This was confirmed by counsel for the respondent during the
course of oral argument.
The Issue of Quantum for General Damages
[6] The appellant’s expert witnesses testified that Zamokuhle will be incontinent
for his entire life. This will result in the perpetual use of nappies. The wet and soiled
nappies will have to be changed by caregivers. Moreover, the experts said that he
experiences pain and discomfort as well as unhappiness and frustration with his
situation. He will have to undergo physiotherapy, requiring the regular use of a hoist

in later years. He dislikes being moved by others. He will lose his entire mobility
when he is about 37 years old. He has difficulty eating and, at least to some extent,
he has to be force-fed. This evidence was not disputed. Zamokuhle is not in a state
of ‘unconscious suffering’.

[7] In Marine & Trade Insurance Co Ltd v Katz NO,1 Trollip JA pointed out that, in
awards arising from brain injuries, although a person may not have ‘full insight into
her dire plight and full appreciation of her grievous loss’, there may be a ‘twilight’
situation in which she is not a so-called ‘cabbage’ and accordingly an award for
general damages would be appropriate.2 This case has been followed in numerous
instances.3 Zamokuhle’s awareness of his suffering, albeit diminished by his reduced
mental faculties, puts him in this ‘twilight’ situation. During the course of argument
this became common cause. This confirms that he is entitled to an award for general
damages and that all that remains to be determined, under this head, is how much
would be suitable in all the circumstances.

[8] In coming to its conclusions on the appropriate amount to award as general
damages, the court a quo said that the figure agreed between the parties relating to
past, future and related medical and hospital expenses took Zamokuhle’s loss of
amenities of life into consideration. Accordingly, it held that a further award in that
regard would be a duplication of compensation.

[9] As was said by Nicholas JA in Southern Insurance Association Ltd v Bailey
NO,4 this court has not adopted a ‘functional’ determination as to how general
damages should be awarded. It has consistently preferred a flexible approach,
determined by the broadest general considerations, depending on what is fair in all
the circumstances of the case.5 We do not have to determine what the award will be

1 Marine & Trade Insurance Co Ltd v Katz NO 1979 (4) SA 961 (A).
2 Ibid at 983A-G. Today we may prefer to use the term ‘vegetative state’ to ‘cabbage’. See, for
example, PM obo TM v MEC for Health, Gauteng Provincial Government [2017] ZAGPJHC 346 (7
March 2017) para 55.
3  See, for example, more recently, Road Accident Fund v Delport NO 2006 (3) SA 172 (SCA) para
23; and Mbele v Road Accident 2017 (2) SA 34 (SCA).
4 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 119D-H. See also Sandler v
Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.
5 Ibid.

used for – its purpose or function. What we must consider is the child’s loss of
amenities of life and his pain and suffering.

[10]  The appellant relied on the following unreported cases, dealing with similar
circumstances, in support of her contentions as to the appropriate amount to be
awarded as ‘general damages’: (a) S obo S v MEC for Health, Gauteng6  in which
Louw J on 12 August 2015 awarded R1 800 000; (b) Matlakala v MEC for Health,
Gauteng7 in which Keightley J on 2 October 2015 awarded R1 500 000; (c) Mbhalate
v MEC for Health, Gauteng8 in which Campbell AJ on 17 February 2016 awarded
R1 800 000; and (d) PM obo TM v MEC for Health, Gauteng Provincial Government9
in which Meyer, Weiner and Monama JJ on 7 March 2017 in an appeal to the full
court, also awarded R1 800 000. In PM obo TM v MEC for Health the full court
referred extensively to the judgment of Rogers J in AD & another v MEC for Health
and Social Development, Western Cape Provincial Government.10 The appellant
also referred us to The Quantum Yearbook.11

[11]  We endorse the following position which Rogers J held in AD & another v
MEC for Health and which was followed by the full court in PM obo TM v MEC for
Health:
‘Money cannot compensate IDT [the minor on behalf of whom the claim had been made] for
everything he has lost. It does, however, have the power to enable those caring for him to try
things which may alleviate his pain and suffering and to provide him with some pleasures in
substitution for those which are now closed to him. These might include certain of the
treatments which I have not felt able to allow as quantifiable future medical costs . . .’12

[12]   Compensation for pain and suffering – to the extent that one can ever
‘compensate’ for it – is neither a duplication of the amount awarded for past and

6 S obo S v MEC for Health Gauteng (2009/27452) [2015] ZAGPPHC 605.
7 Matlakala v MEC for Health, Gauteng Provincial Government (2011/11642) [2015] ZAGPJHC 223 (2
October 2015).
8 Mbhalate v MEC for Health, Gauteng Provincial Government (2012/45017/12) (dated 17 February
2016).
9 PM obo TM v MEC for Health supra fn 2.
10 AD & another v MEC for Health and Social Development, Western Cape Provincial Government
(27428/10) [2016] ZAWCHC 116 (7 September 2016).
11 Robert J Koch The Quantum Yearbook 2017 at 126.
12 AD & another v MEC for Health supra fn 12 para 618. See also PM v MEC for Health supra fn 2
para 56.

future medical and hospital expenses, nor for loss of amenities of life. The court a
quo was clearly wrong in regard to the ‘duplication’ issue and, accordingly, its award
must be interfered with by this court. There is, moreover, a striking disparity between
what the court a quo has ordered and what this court thinks should have been
awarded.13

[13]  Counsel for the respondent submitted that this court should not, without
further ado, make an award that accords with other awards made by the high court in
various divisions and, especially, this court should guard against assuming that all
brain injury cases deserve the same award. Of course, this court will scrutinise past
awards carefully and, in each case before it, make its own independent assessment.
It is trite that past awards are merely a guide and are not to be slavishly followed, but
they remain a guide nevertheless.14 It is also important that awards, where the
sequelae of an accident are substantially similar, should be consonant with one
another, across the land. Consistency, predictability and reliability are intrinsic to the
rule of law. Apart from other considerations, these principles facilitate the settlement
of disputes as to quantum.  We have had particular regard to the cases upon which
counsel for the appellant has relied and, especially AD & another v MEC for Health
and PM obo TM v MEC for Health, where the issues are substantially similar to those
before us. The appellant has asked for an award of R1 800 000 as general
damages. This has been justified in all the circumstances of this case.

The Deduction for Contingencies

[14]  At the trial the appellant argued for 20 per cent and the respondent 50 per
cent as a deduction for contingencies. The high court decided that ‘the best
approach would be to divide the difference’ between the two, arriving at a figure of
35 per cent. Counsel for the respondent defended the court a quo’s deduction of 50
per cent for ‘contingencies’ on the basis that this had been the deduction in Katz.
Two points operate to diminish the force of that argument. The first is that the
deduction for contingencies was made by agreement between the parties in that

13 See, for example, AA Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A) at 809B-D;
Road Accident Fund v Guedes 2006 (5) SA 583 (SCA) at 587B-D.
14 See, for example, Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) paras 17-19;
and  Minister of Safety and Security v Tyulu  2009 (5) SA 85 (SCA) para 26.

case.15 The second is that the facts of that case were very different and, in particular,
the contingency deduction took into account the likelihood of the patient’s
remarriage.16

[15]   As Nicholas JA said in Bailey17 the deduction for contingencies is meant to
take into account the ‘vicissitudes of life’.18 These include:
‘[T]he possibility that the plaintiff may in the result have less than a “normal” expectation of
life; and that he may experience periods of unemployment by reason of incapacity due to
illness or accident, or to labour unrest or general economic conditions.’19
Counsel for the respondent also relied very strongly on the following, which follows
shortly after what Nicholas JA had to say about the vicissitudes of life: ‘The rate of
the discount cannot of course be assessed on any logical basis: the assessment
must be largely arbitrary and must depend upon the Judge’s impression of the
case.’20 He did so to defend what he conceded may seem to have been an arbitrary
assessment of the appropriate deduction.

[16] The leading case, in recent years, of the meaning of ‘arbitrary’ is First
National Bank of SA Ltd t/a Wesbank v Commissioner for the South African Revenue
Service & another; First National Bank of SA Ltd t/a Wesbank v Minister of
Finance.21 Ackermann J, delivering the unanimous judgment of the court,
emphasised that although ‘arbitrary’ may often mean without any ‘rational connection
between means and ends’, it does not always carry the same meaning and context
is important.22  Ackermann J was also referring to the interpretation of a statute and
not a word used in a judgment. To my mind, simply taking the median between what
the respective parties ask for on the deduction or contingencies without any further
explanation, is indeed devoid of any rational connection between the means by

15 Katz supra fn 1 at 979H.
16 Ibid at 979C-G.
17 Bailey supra fn 4 1984 (1) SA 98 (A).
18 Ibid at 116H.
19 Bailey supra fn 4 at 116H-117A.
20 Ibid.
21 First National Bank of SA Ltd t/a Wesbank v Commissioner for the South African Revenue Service
& another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC)
para .
22 Ibid paras 61-69.

which the decision was made and the result (or end) of the decision-making process.
Nevertheless, in context, something more reasoned is required, not only if a court is
to depart from the normal range of between 15 and 20 per cent, but also simply to
take the median of what the respective parties asked for. It is like the rolling of a
dice. A court is not a casino. Of particular relevance is that there are no special
circumstances present to indicate that, but for his perinatal asphyxia, the vicissitudes
of Zamokuhle’s life are likely to be more adverse than the norm. Conjecture may be
required in making a contingency deduction, but it should not be done whimsically.

[17] In regard to the deduction for contingencies, the appellant enjoined us to have
particular regard to the judgment of this court in Singh v Ebrahim,23  in which a 15
per cent contingency deduction was approved, and PM obo TM v MEC for Health in
which 20 per cent was deducted.24 The appellant made it plain that she would
consider 20 per cent to be eminently fair and reasonable to both parties.

[18] As with the award for general damages, the disparity between what the court
a quo ordered and what this court thinks should have been awarded is again too
striking to be left undisturbed. A 20 per cent deduction for contingencies in respect of
future loss of earnings, as asked for by the appellant, would be appropriate.

[19]  The order which follows is that which the parties agreed should be made in
the event that the appellant succeeded to the extent that R1 800 000 was to be
awarded as general damages and a 20 per cent deduction for contingencies made
from estimated future earnings:
1 The appeal is upheld, with costs, including the costs of two counsel.
2 Paragraphs 1 and 2 of the orders of the court a quo are set aside and are
replaced with the following:
‘1 The Defendant shall pay an amount of R19 048 290 to the plaintiff in her
representative capacity, for and on behalf of her minor child, Zamokuhle Khoza,
which amount is computed as follows:

23 Singh & another v Ebrahim (413/09) [2010] ZASCA 145 (26 November 2010); 2010 JDR 1431
(SCA).
24 PM obo TM v MEC supra fn 2 para 51.

(a) Past medical expenses:

R1 375
(b) Future hospital, medical and related expenses:
R14 490 799
(c) Future loss of earnings:

R1 427 166
(d) General damages:

R1 800 000

SUB-TOTAL:

R17 719 341

(e) Trust (7.5% of R17 719 340.40):

R1 328 950

TOTAL AMOUNT:

R19 048 291

2 The total amount mentioned in paragraph 1 above, less the amount of
R15 578 983.93 that was paid by the defendant on 29 February 2016, shall be paid
in accordance with the provisions of section 3(a)(i) of the State Liability Act 20 of
1957 within 30 days  from the date of this order directly into the trust account of the
plaintiff’s attorneys of record. The banking details are as follows:

WIM KRYNAUW ATTORNEYS TRUST

Bank:

ABSA – Trust account

Account number:
405 735 0513

Reference:

H NORTJE I MEC0003

3 The amount of R19 048 290.93 shall be retained by the plaintiff’s attorneys in an
interest-bearing account in terms of section 78(2)(A) of the Attorneys Act 53 of 1979
for the benefit of the minor child.’

______________________
N P WILLIS
Judge of Appeal

APPEARANCES:

For Appellant:

N Van der Walt SC (with him, M Coetzer)
Instructed by:
Wim Krynauw Inc
Johannesburg
c/o Martins Attorneys
Bloemfontein

For Respondent:

V Soni SC
Instructed by:
The State Attorney
Johannesburg and Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

15 March 2018

STATUS

Immediate

Khoza v MEC for Health, Gauteng (216/17) [2018] ZASCA 13 (15 March 2018)

Please note that the media summary is for the benefit of the media and does
not form part of the judgment.

This morning, the Supreme Court of Appeal (SCA) unanimously upheld an appeal,
with costs, in respect of the quantum of damages and the deduction for
contingencies for a child who had suffered severe brain damage but was conscious
of his suffering, as a result of a hypoxic-ischaemic incident during his birth at the
Chris Hani Baragwanath Hospital. Having regard to other awards in similar cases
across the country, the SCA held that R1 800 000 and not R200 000 was
appropriate as general damages. Insofar as the deduction for contingencies was
concerned, the SCA found that there was no proper justification for a figure of 50 per
cent and that 20 per cent was appropriate.