The Eastern Cape authorities went to court docket to cease cash within the health division’s account from being connected by profitable medical negligence claims. But, on Tuesday, the High Court dominated towards the state in a damning judgment.
The Eastern Cape MECs of finance and health, in addition to the heads of these departments, utilized for the interdict to cease dozens of claimants from recovering what they are owed in phrases of their court docket orders. Most of the claimants are poor dad and mom of youngsters born with cerebral palsy resulting from negligence.
Judges Jannie Eksteen, Nomatamsanqa Beshe and Justin Laing refused to grant the interdict and criticised senior officers, together with the provincial heads of health and the treasury, for not budgeting for the rise in medical negligence claims.
‘Unable to meet constitutional obligations’
The judges have additionally directed that their judgment be dropped at the eye of the National Director of Public Prosecutions “to consider possible prosecution in terms of the Public Finance Management Act (PFMA)”.
The candidates had argued that they wanted the interdict as a way to retain management of the checking account pending functions to “vary” the court docket orders to make funds in instalments.
“[The applicants] lament that they are unable to meet their constitutional obligations in the face of their deteriorating financial well-being which they ascribe to the ever increasing, never-ending burden of medico legal claims,” mentioned Judge Eksteen, who penned the judgment.
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In explicit, the candidates wished to cease the claimants and their attorneys from attaching cash within the Department of Health Paymaster General Account.
The candidates mentioned that within the 2020/21 monetary 12 months the division had an annual price range of R26.4 billion, however after fee of salaries and different commitments, it was left with R3.4 billion for health care companies.
In the identical 12 months, writs of execution arising from medico-legal claims amounted to nearly R1-billion (R921-million). The division additionally estimated it has a contingent legal responsibility of practically R39-billion in unresolved claims.
Rights of claimants have to be weighed towards these of state
Judge Eksteen mentioned it was argued that these money owed might result in the “total collapse” of the health service within the Eastern Cape. However, he mentioned, “the symbol of justice is a pair of scales” and the actual circumstances of every of the claimants must be weighed.
“They are primarily indigent, rural citizens, the vast majority of claims arise from cerebral palsy inflicted on children through birth injuries, by negligence,” he mentioned.
The decide famous that the candidates had accepted that the litigation in every case was justified, the discovering of negligence was not disputed, and the validity of the judgments was not challenged.
The candidates had submitted that it could “lose control of its bank account”, wouldn’t have the ability to pay its suppliers, and this is able to “ “wreak havoc” and imply the division could be unable to execute its constitutional obligations.
But Judge Eksteen mentioned the candidates had been flawed in contending that the State Liability Act, which governs how debt may be collected towards the state, precluded the attachment of monies within the Paymaster General Account.
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He mentioned whereas the candidates denied any suggestion of mismanagement “even on their own version, the fiscal management of the department and indeed of treasury is cause for grave concern”.
Failure to price range is violation of PFMA
“As a direct result of the conscious decision not to budget for these claims, any payment of a judgment debt constitutes an unauthorised expenditure in terms of the PFMA,” the decide mentioned.
This “unlawfulness” had beforehand been identified to them by the Auditor-General and the suggestion that they weren’t permitted to price range for judgment money owed was “unfounded”.
In reality, he mentioned, the PFMA required correct budgeting.
“The accounting officer’s failure to do that constitutes monetary mismanagement. The conclusion is inescapable that the administration of funds of the Eastern Cape Government, significantly the Department of Health, falls far brief of the requirements demanded by the PFMA.
“In the circumstances, it is appropriate to refer this judgment to the National Director of Public Prosecutions to consider whether to institute a prosecution,” he mentioned.
With regards to the proposal that the judgments be revised, the decide mentioned the candidates had produced a schedule for every of the claimants, proposing preliminary funds and subsequent funds, some extending over ten years.
There was no provision for the fee of curiosity already accrued or that will accrue. There was additionally no point out of the circumstances or wants of the injured events.
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“Many of them were taken by agreement between the parties … and stipulate the date for payment … a variation in the date of payment may affect the substance of the award,” he mentioned, noting that the applicant’s advocate had conceded in argument that some might even die as a consequence of the delay in fee.
He mentioned the frequent regulation precluded a court docket from setting apart or altering a remaining order.
The candidates, in asking that they be allowed to make periodic funds, had raised a particular defence to the “once and for all rule”, with out main proof to substantiate this.
‘Lifetime of suffering’ inflicted
“This would require the re-opening of the trial in each case, which would have a detrimental impact on [the claimants] who are mostly poor people who have been victim to the department’s negligence and have already litigated their matters to finality.”
He mentioned the division had already inflicted a “lifetime of suffering” on the injured events by the negligence of its workers and its breach of its statutory obligations as set out within the State Liability Act and the PFMA.
“The prospect of success in an utility for variation of remaining orders already granted are slim, if they exist in any respect.
“The prejudice is a discount in the usual of health care companies. That discount flows at the least partially from its personal making. The division is the wrongdoer and is the trigger of the legal responsibility.
“The application was ill-advised and cannot succeed,” he mentioned, dismissing it with prices.
This article first appeared on GroundUp and was republished with permission. Read the unique article here
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