By choosing to continue, you are consenting to the use and functioning of this site as is in accordance with our Privacy Policy.

find an article




20 Apr 2021
BY Aslam Moosajee AND Vishana Mangalparsad

Constitutional Court opens door to alternative methods of compensation

The South African Constitutional Court recently handed down a landmark judgment, ruling that damages may be allowed to be paid by methods alternative to monetary compensation.

The judgment related to  a matter that was previously handled by the High Court and Supreme Court of Appeal. In this matter, the mother of a minor (the “plaintiff/respondent”) who was diagnosed with cerebral palsy following injuries sustained at birth at a state healthcare facility, claimed in excess of ZAR32-million in damages from the MEC for Health, Gauteng (the “defendant/applicant”).

The High Court granted an order pursuant to an agreement between the parties, which stated that “the defendant shall pay to the plaintiff 100% of her agreed or proven damages in her representative capacity for and on behalf of her minor child.” (our emphasis)

The applicant sought to develop the common law to allow for compensation through alternative means such as the provision of medical services in the public healthcare sector in lieu of the payment of monetary compensation. The Constitutional Court had to determine whether the High Court order meant that payment of the damages could only take the form of one lump sum sounding in money.

The Constitutional Court reiterated the general rule relating to the interpretation of court orders, that:

“The starting point is to determine the manifest purpose of the order. In interpreting a judgment or order, the court’s intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual well-known rules relating to the interpretation of documents. As in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention.”

On a purposive reading of the court order, it was held that the inclusion of the word “pay” did not necessarily preclude alternative methods of compensation, but rather that the implication of the order was that the MEC for Health was liable for compensation.

The court also held that the above interpretation is better aligned with the values of the Constitution and that where a viable interpretation of any document promotes constitutional values, that interpretation must be preferred over an interpretation which does not.

The court was of the view that confining the High Court’s order to payment of a lump sum in damages is at odds with the rights of access to courts and potentially undermines the right of everyone to have access to public health services. It also potentially undermines the rights of children to basic health care services. In addition, an interpretation should not limit the courts’ ability to develop the common law in terms of sections 39(2) and 173 of the Constitution.

The Constitutional Court also took into consideration that confining payment to lump sum monetary payments impedes the funding of healthcare programmes, which will be affected if a large portion of the state’s budget gets allocated to medico-legal liabilities.

This judgment opened the door for the development of the common law by interpreting the order in a manner which did not limit the manner of payment.


Aslam Moosajee

Dispute Resolution | Executive

 +27 82 461 5917


Vishana Makan

Dispute Resolution | Associate

+27 66 493 2372