The Mthatha High Court has refused an application by the Special Investigations Unit (SIU) to intervene in a three-year-old R9-million settlement in a medico-legal matter brought against the Eastern Cape department of health.

The SIU wanted the bulk of the payout to be blocked and for the claimant, who had already received R2.6-million in interim payments, to return the money.

The SIU is investigating maladministration in the office of the state attorney in relation to work performed on its behalf, particularly cases relating to medical negligence in the Eastern Cape. The SIU has been assigned, by presidential proclamation, to recover any public funds lost in the process.

There are a number of ongoing efforts in the province to stop ballooning medico-legal claims. The total contingent liabilities in respect of these claims for the Eastern Cape health department is about R30-billion. This is more than the department’s total 2020/21 budget allocation of R26.4-billion.

The SIU had applied to the Mthatha High Court to reopen the matter involving a R9-million settlement on the basis that the office of the state attorney had failed to call crucial witnesses to defend the claim and to have the payout of the funds blocked pending further litigation.

“Given the indubitable scourge of corruption in this country and the hue and cry of the society to stamp it out in all spheres of government, it cannot be denied that the work of entities like the SIU is laudable,” Judge Bantubonke Tokota said in his judgment.

“This pandemic has resulted in the depletion of the public purse and is beneficial only to the rich rather than the poor community. For this reason it is imperative that where possible the performance of the courageous work by the SIU and other entities empowered to do so in this regard should be encouraged rather than discouraged. 

“There may be merits in the suspicion of corruption in handling medical negligence cases, especially in the Eastern Cape. However, be that as it may, cases are decided on facts and not on suspicions,” he added.

He said he was not convinced that the presidential proclamation allowed for the SIU to reopen cases that had already been concluded.

“If it does so, in my view it is [outside] the powers of the president,” he said.

The case was finalised on 12 September 2017 when the court found the department of health was liable for damages suffered by a child who was treated at Canzibe Hospital, but following a failed surgery was left with urinary and faecal incontinence.

The state settled the matter for R9-million in 2019 and the payout to the mother was due to be made.

The SIU now wants the judgment rescinded on the basis that the state’s legal team had failed to call a crucial expert witness who is a paediatric neurosurgeon, and wants the payout of the bulk of the claim halted pending further litigation.

The SIU argued that a fair trial is a constitutional right and that this right has been unjustifiably infringed by the failure to call the witness.

“If the organs of state clothed with powers to investigate corruption and related maladministration in the government resulting in wasteful and irregular expenditure were allowed to reopen cases in which they were not involved, even though the department with the budget has been involved, that would bring about chaos and uncertainty,” said the judge. 

“Once a judgment is pronounced by court, it is final and can only be reopened on permissible grounds recognised in law. 

“The exercise of inherent power by high courts, as envisaged in section 173 of the Constitution, to protect and regulate their own process, and to develop the common law, taking into account the interests of justice, cannot be interpreted as a wide net to cover random reopening of cases that have been concluded,” Tokota said.

“In my view, to grant the application will amount to reopening a can of worms in cases which were fully ventilated in a court of law by all parties who had a direct and substantial interest. If this were to be acceded to, simply because there is an allegation of remissness on the part of the state attorney or any legal representative appointed by him, that would open a floodgate to endless litigations. 

“It is true that litigation does not have to be controlled in a straight-jacketed manner, but a fair trial implies finality of the issues and not to allow any party who was remiss at the trial to be afforded a second bite, especially after judgment. 

“This would open a wide gate for unscrupulous litigants to fill up gaps which have resulted in the judgment against them. If the defendant suffered any financial detriment by failing to call an expert witness who was available, that injury was self-inflicted and the plaintiff cannot be prejudiced thereby by reopening the case,” he added.

“In my view, the investigation of the state attorney cannot be extended to include reopening of cases, which were fully canvassed in a court of law. The remedy cannot lie in the reopening, but in the recovery of damages from the state attorney concerned, if there is a room for such recovery,” Tokota added.

He said he was mindful of the fact that the SIU had been appointed in July 2019. 

“By that time, as far as the process in court was concerned, the horse had already bolted,” he said. 

Spokesperson for the SIU, Kaizer Kganyago, has not yet responded to a request for comment. DM/MC

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