The common law ‘public healthcare defence’ remains a viable defence despite the SCA ruling in Mashinini

July 1st, 2023

By Muano Mudzanani

The Mashinini v Member of the Executive Council for Health and Social Development Gauteng Provincial Government (SCA) (unreported case no 335/2021, 18-4-2023) (Zondi JA (Schippers and Gorven JJA and Mali and Siwendu AJJA concurring)) case raises questions. Before the common law development of the ‘public healthcare defence’ the Department of Health used to settle claims of medical negligence in monetary compensation. Sometimes these compensations would be in the millions per case as in MEC for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC). This reality affected the fiscal responsibilities of the department and would mean that with each payment honoured, the citizens of South Africa who cannot afford private healthcare and rely on public sector healthcare were left with fewer resources in their health care system. To solve this problem, the government has been pleading ‘public healthcare defence’ in most of its disputes. Court judgments show that when pleaded, this defence has the capacity of reducing monetary penalties significantly.

The common law ‘public healthcare defence’ has been an effective legal plea for the Department of Health since it was first successfully raised in the case of MSM obo KBM v Member of the Executive Council for Health, Gauteng Provincial Government [2020] 2 All SA 177 (GJ). This remained the case until it was raised and was unsuccessful in the case of Mashinini. The objective of this article is to assess whether the ‘public healthcare defence’ remains a viable defence for the Department of Health on medical negligence matters wherein the department has been found liable.


The applicant in the Mashinini case was a 39-year-old professional nurse who underwent a surgical procedure at Tambo Memorial Hospital. During the procedure the appellant sustained a bile duct and hepatic artery injury. This meant that emergency management, endoscopic management and a bile duct reconstruction was required, and same was performed at Greys Hospital. However, because of the injuries sustained during the failed operation the appellant had to undergo various corrective surgical procedures aimed at correcting the damage done to her. It was on these facts that the appellant brought a case against the Gauteng Department of Health and its organs on 18 January 2017 for the failed surgical procedure. The appellant claimed for general damages, loss of future earnings, past medical expenses, and future medical expenses. The Department of Health did not dispute the claims and raised the common law ‘public healthcare defence’.

Common law public healthcare defence

The ‘public healthcare defence’ was first raised as a theory in the case of DZ obo WZ. In this case the Gauteng Department of Health was found to be liable for R 23 272 303 of which R 19 970 631 was in respect of future medical expenses. They raised a defence to pay directly for each future medical expense each time it was required. However, the court found this defence to be contrary to the ‘once and for all’ rule and, therefore, was unsuccessful. However, the Member of the Executive Council for the Department of Health in the Eastern Cape who was amici curiae raised two defences, one, ‘public healthcare defence’ in terms of which the delict claims for future medical expenses against the Department of Health may be satisfied by providing healthcare services in the public sector. Second, the ‘undertaking to pay defence’ to pay for those medical services that public healthcare sector could not provide. Though the Gauteng Department of Health was unsuccessful in this case, the Constitutional Court was more willing to hear the later defence brought by the Eastern Cape Department of Health.

The same defence (‘public healthcare defence’) was properly brought in the Gauteng Local Division High Court, and the court had an opportunity to rule on ‘public healthcare defence’ in the matter of MSM obo KBM. When the ‘public healthcare defence’ was raised, the court held the wider interest of justice provides a requirement for common law to be developed where it permitted compensation in kind. This meant that the Department of Health need not offer monetary compensation in cases were the plaintiff claimed money for private future medical expenses that may also be offered in the public healthcare sector to the same standard. The common law ‘public healthcare defence’ was further developed in case of TN obo BN v MEC for Health, Eastern Cape 2023 (3) SA 270 (ECB) from the Eastern Cape Local Division High Court, and the court held that the standard of health provided in the public sector need not be the same as that of the private sector, it only needed to be of a reasonable standard. This meant that before the Mashinini case, the Department of Health need not pay compensation in monetary form where they can provide medical services required, in the public sector, and the medical services provided need only to be of a reasonable standard. So, if the standard has become easier to meet; then why was the department unsuccessful in pleading the ‘public healthcare defence’ in the Mashinini case?

In the Mashinini case the SCA held that the Department of Health had failed to provide evidence to counter that offered by a medical expert, Professor Damon Bizos, who stated that the way government institutions were operated meant they were not capable of providing medical services to an appellant with complicated medical conditions, which would require immediate access to specialist surgeons. The SCA then ruled that the lack of evidence led by the defence, and available evidence led by the appellant, which remained unchallenged meant that the medical treatment in the future and the cost of providing such treatment would be paid in monetary form amounting to R 879 314. The lack of evidence challenging Prof Bizos testimony was imperative in this case and the decision of the court appeared to have been driven by his submission. This judgment has raised a lot of questions with some suggesting that the court might revert to the standard where compensation for medical expenses was paid in monetary form and not in kind.


The Mashinini case does not overrule the established common law ‘public healthcare defence’. It simply places the burden of proof on the Department of Health to fully challenge testimony submitted by the plaintiff. For now, the Mashinini case and future similar cases like it, are best viewed as an exception to the common law rule, where the Department of Health has failed to prove that it will fully undertake the duty to provide future medical services to a reasonable standard to that in the private sector. Therefore, the Mashinini case is the exception and not the rule. Litigants should be aware that the common law ‘public healthcare defence’ remains a defence accepted by the court. Litigants should also expect the Department of Health and other state organs to raise some form of the common law ‘public healthcare defence’ as it has been effective when raised. Common law has been set, but it is not without a requirement to meet its burden of proof. Each time a state organ raises this kind of defence, they would be expected to reasonably prove that they can offer the services the plaintiff needs to a reasonable standard.

Muano Mudzanani LLB (Northwest University) is a Legal Intern at the Department of Health.

This article was first published in De Rebus in 2023 (July) DR 5.