SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 158/2016
In the matter between:

THE PREMIER OF THE WESTERN CAPE

PROVINCIAL GOVERNMENT N.O.

APPELLANT

and

ROCHELLE MADALYN KIEWITZ
obo JAYDIN KIEWITZ                                               RESPONDENT

Neutral citation:   The Premier of the Western Cape
Provincial Government N.O. v Rochelle Madalyn Kiewitz
obo Jaydin Kiewitz (158/2016) [2017] ZASCA 41 (30 March 2017)

Coram:
Leach, Tshiqi, Majiedt and Swain JJA and Nicholls AJA

Heard:
22 February 2017

Delivered: 30 March  2017

Summary: Delict: damages: compensation for future medical expenses:
impermissible to tender services in lieu of payment of a monetary award.

________
ORDER

___

On appeal from: Western Cape Division, Cape Town (Nuku AJ sitting
as court of first instance):
The appeal is dismissed with costs.

___
JUDGMENT

___

Nicholls AJA (Leach, Tshiqi, Majiedt and Swain JJA concurring):

[1] The question in this appeal is whether plaintiffs in delictual claims
against a provincial government are obliged to mitigate their damages by
accepting a tender for future medical treatment at a provincial health
facility rather than receiving a monetary payment in respect of assessed
future medical expenses.

[2] The respondent, Ms Rochelle Kiewitz, sued the Western Cape
Provincial government for damages suffered by her minor child, Jaydin,
who became blind as a result of retinopathy of prematurity, negligently
undetected at birth. The appellant, the Premier of the Western Cape, in
her capacity as overall head of Health Services in the Western Cape,
including Tygerberg Hospital where Jaydin was born, has conceded the
merits. Save for a claim in respect of future medical expenses, all other
damages have been settled in the sum of R7 million. The only issue for

determination by the High Court was whether the appellant’s so-called
‘plea in mitigation’ should be upheld. The High Court (Nuku AJ)
dismissed the plea with costs but granted leave to appeal to this court.

[3] In its plea in mitigation, the appellant undertook to provide all
future healthcare, reasonably required by Jaydin as a result of his sight
impairment, at provincial healthcare institutions in the Western Cape, at
no cost. The appellant undertook to provide a designated representative
from the provincial health department to deal with Jaydin’s health needs
and proposed a dispute resolution mechanism in the event of
disagreement as to the nature of the treatment required. The appellant
contends that failure to accept this undertaking and mitigate the damages
as set out, must result in a concomitant reduction of the damages. In
essence, the effect of the plea in mitigation is to deny the plaintiff any
monetary award in respect of future medical treatment.

[4] Delictual damages have been defined as the ‘monetary equivalent of
damage awarded to a person with the object of eliminating as fully as possible his or
her past as well as future damage.’1 It is trite that the primary purpose of
awarding delictual damages is to place the injured party in the same
position as they would have been in, absent the wrongful conduct.  As a
general rule, restitution in kind is prohibited where patrimonial loss such
as past and future medical expenses, past and future loss of income and
loss of support has been suffered as a result of personal injury.2 Claimants
have a duty to mitigate their damages but this goes no further than

1  J M Potgieter, P J Visser, L Steyn and T B Floyd Visser & Potgieter: Law of Damages 3 ed Juta Law
at 185
2 Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) at 782 D-E; Van der
Merwe v Road Accident Fund & another (Women’s Legal Centre Trust as Amicus Curiae) 2006 (4) SA
230 (CC) at p252- 253

obliging a plaintiff to take reasonable steps to minimise the loss, either by
reducing the original loss or by averting further loss.3

[5] In support of the plea, the appellant eschews any reliance on the
development of the common law. The somewhat disingenuous contention
of the appellant is that the plea is not an attempt to circumvent the
common law: instead, so it is argued, the respondent should mitigate the
loss by accepting health services based not on the exorbitant cost of
private health care, but free of charge in the public health system. As the
damages in respect of future medical costs would be reduced to zero,
Jaydin and his mother are consequently under a duty to accept the tender.
The result is that the plea absolves the appellant from paying a monetary
award.

[6] Despite the appellant’s assertion that it does not seek to develop the
common law, this cannot be construed as anything other than an attempt
to abolish the long-established common law rule that compensation for
patrimonial loss should sound in money. The appellant seeks to provide
restitution in kind instead of making a monetary award, which is
impermissible in delictual claims for patrimonial loss as a result of bodily
injuries. The purpose of an Aquilian claim is to compensate a victim in
money terms for any loss suffered.4

[7] In any event the acceptance of the appellant’s undertaking would
not finally dispose of the issues between the parties. The nature of the
treatment Jaydin will require and whether his needs will be adequately

3 Swart v Provincial Insurance Co Ltd 1963 (2) SA 630 (A) at 633; Da Silva  & another v Coutinho
1971 (3) SA 123 (A) at 145
4 Standard Chartered Bank of Canada v Nedperm Bank Ltd fn at 782 D-E; J Neethling JM Potgieter PJ
Visser: Law of Delict 5 ed LexisNexis at 217

met by the services that the provincial health authorities will be able to
provide in future, are issues that remain undetermined. Indeed this will
provide fertile ground for future litigation, a situation that the ‘once and
for all’ rule was designed to avoid.

[8] The rule is that a delictual claim is based on a single, indivisible
cause of action and a plaintiff must claim once, and be compensated,  for
all damage suffered, not only for loss already suffered but prospective
loss as well.5  This has been settled law for over a century. In 1917
Solomon JA in Cape Town Council v Jacobs 6 stated:
‘That in an action at common law for damages for injuries sustained by an accident
the plaintiff is only entitled to sue once and for all cannot, I think, be questioned.’

[9]   This court recently had occasion to deal with the proposed abolition
of the ‘once and for all’ rule under the guise of developing the common
law in The MEC for Health and Social Development of the Gauteng
Provincial Government v Zulu. 7 In that matter an order was sought that
future medical costs be paid as and when they arose, rather than as a lump
sum award. It was argued that large lump sum payments have the effect
of depriving others of much needed medical care thereby placing in
jeopardy the constitutional right to access to health care services.

[10] The court rejected the notion that the abolition of the rule would
promote the constitutional right of all individuals to health care as
provided for in s 27 of the Constitution. 8  The court went on to state that

5 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 835; Custom Credit Corporation (Pty) Ltd v
Shembe 1972 (3) SA 462 (A) at 472
6 Cape Town City Council v Jacobs 1917 A.D. 615 at 620
7 The MEC for Health and Social Development of the Gauteng Provincial Government v Zulu
(1020/2015) [2016] ZASCA 185 (30 November 2016)
8 27  Health care, food, water and social security
(1) Everyone has the right to have access to-

this was an issue more appropriately dealt with by legislative
intervention:
‘. . . in exercising their power to develop the common law, judges have to be ‘mindful
of the fact that the major engine for law reform should be the Legislature and not the
Judiciary’.9  The Judiciary should confine itself to those incremental changes which
are necessary to keep the common law in step with dynamic and evolving fabric of
our society.’10 The development of the common law sought by the appellant is not an
incremental change, but one of substance and more appropriately dealt with by the
legislature, being an issue of policy. Any legislated change in the common law rule
could only be effected after the necessary process of public participation and
debate.’11

[11] Furthermore, in the event of a dispute over the treatment required
for Jaydin, the tender provides for the determination thereof by ‘a
registered health professional agreed to by the parties, and failing such agreement, by
a person nominated by the Dean of the University of Stellenbosch Faculty of Health
Sciences.’  This appears to be an attempt to exclude judicial oversight in
regard to future medical treatment. Without an agreement with a plaintiff,
a defendant cannot unilaterally divest a court of its jurisdiction to deal
with one of the triable issues properly placed before it, by tendering an
alternative procedure to determine that which a court has been called
upon to decide - in the present instance the respondent’s damages in
respect of future medical expenses.

(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their dependants,
appropriate social assistance.
(2) The state must take reasonable legislative and other measures, within its available resources, to
achieve the progressive realisation of each of these rights.
(3) No one may be refused emergency medical treatment.
9 Carmichele v Minister of Safety and Security & another (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC) para 40
10  R v Salituro  [1991]  SCR 654 (Canada) as cited by Kentridge AJ in Du Plessis & others v De Klerk
& another 1996 (3) SA 850 (CC) para 61.
11 The MEC for Health and Social Development of the Gauteng Provincial Government v Zulu at para

[12] When the Road Accident Fund was faced with unaffordable claims
for future medical costs, the legislature intervened and effected changes
in legislation. As a result the future medical expenses of accident victims
may now be catered for by the introduction of a undertaking in terms of s
17(4) (b) of the Road Accident Fund Act 56 of 1996 in terms of which
the Fund undertakes to pay the medical expenses of a claimant at a public
healthcare institution, as and when the need arises. Whether a similar
arrangement needs to be made in respect of cases such as this, is a policy
decision for the legislature and not one for judicial reform.

[13] Despite the disavowal of any reliance on the development of the
common law, the plea in mitigation, therefore, offends against both the
‘once and for all’ rule and the rule that compensation in bodily injury
matters must comprise a monetary award. On both these grounds the plea
in mitigation is ill-conceived and unsustainable. In view of this finding, it
is unnecessary to deal with the evidence regarding the adequacy of
medical care offered at provincial hospitals. Suffice it to say that the court
a quo did not err in dismissing the appellant’s plea in mitigation.

[14] In the result the following order is made:

The appeal is dismissed with costs.

__________________
C NICHOLLS

ACTING JUDGE OF APPEAL

APPEARANCES:

For Appellant:
A C Oosthuizen SC (with B Joseph)
Instructed by:
The State Attorney Cape Town

The State Attorney Bloemfontein

For Respondent:
J S Saner SC
Instructed by:
Heyns & Partners Inc
C/o Rosendorff Reitz Barry Attorneys
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM :

The Registrar, Supreme Court of Appeal

DATE

30 March 2017

STATUS

Immediate

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

The Premier of the Western Cape Provincial Government NO v Rochelle Madalyn Kiewitz OBO
Jaydin Kiewitz (158/2016) [2017] ZASCA 41 (30 March 2017)

MEDIA STATEMENT

The Supreme Court of Appeal (SCA) today dismissed an appeal against a judgment
by the Western Cape Division of the High Court in terms of which the appellant’s
‘plea in mitigation’ was dismissed.

The respondent had sued the appellant, the provincial government, for damages
suffered by her minor son, arising out of medical negligence.  The issue in this
appeal was whether a claimant in a medical negligence matter is obliged to accept a
tender for future medical treatment at a provincial healthcare facility instead of
receiving a monetary payment for future medical expenses.

The court held that the plea in mitigation would offend against two well established
common law rules. The first is that compensation in bodily injury matters must sound
in money. The very purpose of an award for delictual damages is that it seeks to
place the injured party in the same position they would have been in, absent the
wrongful conduct. The second is the ‘once and for all’ rule that a plaintiff in a
delictual claim must claim and be compensated once, and only once, for all
damages suffered including both past and future losses.

For these reasons the Supreme Court of Appeal dismissed the attempt by the
appellant to oblige the respondent to mitigate her loss by accepting health services
that were free of charge as opposed to health services based on exorbitant private
health care costs.

Whether an undertaking should be provided in lieu of future medical expenses is a
policy decision that needs to be made by the legislature.  Any changes to the
common law must be effected by legislative intervention rather than by the courts.

Consequently, the appeal was dismissed.

.
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