SCA overturns high court decision preventing R7m settlement for stricken child

The Supreme Court of Appeal (SCA) has overturned a high court ruling and granted an Mpumalanga mother a R7m settlement with the province’s health department after her child was diagnosed with cerebral palsy that was possibly due to health officials’ negligence.

The high court had refused to sign off on the settlement in 2021 due to concerns about lawyers’ conduct, but the SCA criticised it for leaving the mother and child “in desperate straits” and exceeding its authority.

Background

Thobile Mucavele and her lawyers, VZLR Incorporated, instituted a claim in 2016 against the Mpumalanga health department after her child, born in 2011, was diagnosed with cerebral palsy.

By 2021, the health department and Mucavele agreed the health department had been partially responsible and the department agreed to pay R7m into a trust for the benefit of the child.

MEC for health Sasekani Manzini signed an agreement to make this an order of court.

However, after Mucavele’s lawyers filed the relevant papers, the Mpumalanga high court was unsatisfied, taking issue with how the lawyers and others involved would be paid, despite an explanation from the lawyers and no opposition from the state. The court also ordered the MEC to file a sworn affidavit confirming the settlement, even though her lawyers had already confirmed she was only there as the ranking government official and not part of the claim.

In 2021, the court ruled that the fee arrangement for the lawyers was “illegal” because it didn’t adhere to relevant laws. The court ordered the money be paid to another firm of lawyers and Mucavele’s lawyers be reported to the Legal Practice Council for investigation.

The trust could not be set up as a result and payment could not be made.

Mucavele and her lawyers appealed to the SCA.

In the SCA

Acting SCA judge Thina Siwendu agreed with Mucavele and her attorneys. Writing for a unanimous court, Siwendu noted that the consequence of the high court’s order, in undermining the settlement agreement, left Mucavele “and her minor child in desperate straits”.

Mucavele argued the high court’s findings were “judicial overreach”, as it made orders not sought by any of the parties.

Siwendu noted that the high court had no issue with the settlement agreement and amount and that have been the end of the matter.

Concerns about fees “would not necessarily invalidate the underlying settlement agreement”, as that was not an issue between the parties.

Therefore, the high court had erred and overreached in making findings about fee arrangements.

Siwendu overturned the high court’s ruling and made the original settlement agreement an order of court.

The health department was also ordered to pay Mucavele’s legal costs at the SCA.

moosat@businesslive.co.za