Mapula Sedutla – Editor

Amidst recent controversial media reports on medico-legal claims, the South African Law Reform Commission (SALRC) recently released Issue Paper 33, which is the first document to be published during the course of Project 141 – Medico-legal Claims for information and comment. The paper announces the SALRC’s investigation into medico-legal claims. The investigation was conducted as per the request from the Department of Health and the Minister of Justice, especially on claims against the state.

The main objective of the SALRC in terms of s 4 of its establishing legislation, the South African Law Reform Commission Act 19 of 1973, is to do research with reference to all branches of the law of South Africa and to study and to investigate all such branches of the law in order to make recommendations for the development, improvement, modernisation or reform thereof.

• A number of concerns have been raised with regard to the current medico-legal claims system. The SALRC requests respondents to consider whether:
• The traditional common law system is still the most appropriate response to dealing with medical negligence in the current environment.
• If the response to the above item is no, there is scope for the development of the common law.
• The adversarial system is the best option for dealing with this particular area of the law, bearing in mind –
  • the personal nature of the claim for the persons affected by medical negligence; and
  • the highly technical and specialised evidence required to prove both the cause of action as well as the quantum of damages.
• Applying the inquisitorial system or aspects of the inquisitorial system to medical negligence claims would be beneficial.
• Alternative measures for dealing with medical negligence claims other than through the courts are available in current South African law.
• The only way in which the current state of the law can be changed is by means of legislation.
• If the problem can only be addressed through legislation, options that could be considered in view of the international experience as applied to challenges unique to South Africa.
• The common law – once and for all rule is problematic in the context of medical negligence claims.
• The doctrine of avoidable consequences (the doctrine that places the responsibility of minimising damages on the person who has been injured) has a place in South African law.
• Prescription periods as currently applied in South African law, especially with regard to minors, are satisfactory in the field of medical malpractice legislation.
• The Contingency Fees Act 66 of 1997 and the principle of contingency fees should be reviewed.

Respondents are requested to submit written comment, representations or requests to the SALRC by no later than 30 September. Respondents are not restricted to the questions posed and issues raised in the paper, and are welcome to draw other matters to the SALRC’s attention as long as they are related to this topic.

• All comments and representations must be sent for the attention of Ronel van Zyl to the following address: The Secretary, South African Law Reform Commission, Private Bag X668, Pretoria, 0001
• E-mail: Rovanzyl@justice.gov.za
• Issue Paper 33 is available on: http://salawreform.justice.gov.za
• Issue Paper 33 can also be obtained free of charge from the SALRC on request. Contact Jacob Kabini at Jakabini@justice.gov.za or (012) 622 6327.

This article was first published in De Rebus in 2017 (Sept) DR 3.