, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
TABLE OF CONTENT
From Van Wyk to the Constitutional Crisis: A Historical Analysis of Civil Court Page 3
Resolution of Medical Negligence Claims in South Africa (1924–2026)
A Comparative Analysis of Civil Resolution of Medical Negligence Claims: Page 14
South Africa and New Zealand
, From Van Wyk to the Constitutional Crisis: A Historical Analysis of Civil Court Resolution of
Medical Negligence Claims in South Africa (1924–2026)
1. Introduction
The escalation of medical negligence litigation against the State in South Africa has reached crisis
proportions, prompting urgent calls for legal reform. The South African Law Reform Commission
(SALRC) has characterised the situation as one where the extent of such litigation "has reached a
level that it is adversely prejudicially impacting in a serious manner on service delivery in the public
health sector and endangering the constitutional right to have access to health care services".¹ This
research undertakes a historical examination of how medical negligence claims have been resolved
in South African civil courts, tracing the evolution from the early common law foundations through
to contemporary constitutional jurisprudence. By adopting a historical approach, this study focuses
exclusively on developments within South Africa, analysing the trajectory of case law, legislative
interventions, and law reform commission proposals that have shaped the current legal landscape.
This research is significant because it addresses a pressing socio-legal problem that directly
implicates fundamental constitutional rights, including the right of access to health care services
(section 27), the right to bodily and psychological integrity (section 12), and the right of access to
courts (section 34). The historical approach enables a nuanced understanding of how the common
law has been applied, interpreted, and challenged in response to changing societal needs and
constitutional imperatives.
2. Problem Statement
The central problem underpinning this research is the apparent paradox between individual justice
and systemic sustainability in the resolution of medical negligence claims against the State. On one
hand, patients who suffer harm due to negligent medical treatment are entitled to full compensation
for their losses under the common law of delict, a right that vindicates their constitutionally protected
interests in bodily integrity and access to courts.² On the other hand, the cumulative effect of
substantial damages awards — particularly in claims involving children born with cerebral palsy —
has placed an unsustainable burden on provincial health departments, threatening their ability to
deliver health care services to the broader population.³
The SALRC has documented that claims against the State have escalated dramatically, with
contingent liabilities running into billions of rands.⁴ This has created what Carstens and Pearmain
describe as a "vicious circle": negligence in under-resourced hospitals generates claims, which
deplete resources further, thereby exacerbating the conditions that give rise to negligence.⁵ The
problem is most acute in provinces such as the Eastern Cape, KwaZulu-Natal and Limpopo, where
the majority of the population relies on public health care and where contingent liabilities have
reached alarming proportions.⁶
¹ South African Law Reform Commission, Issue Paper 32: Medico-Legal Claims (Project 141, 2017) para 1.1.
² Constitution of the Republic of South Africa, 1996, ss 12 and 34.
³ SALRC, Discussion Paper 145: Medico-Legal Claims (Project 141, 2019) para 3.15.
⁴ SALRC Issue Paper 32 (n 1) para 2.8.
⁵ Carstens P and Pearmain D, Foundational Principles of South African Medical Law (LexisNexis 2007) 456.
⁶ Pepper MS and McQuoid-Mason DJ, 'The Crisis in Medical Negligence Litigation in South Africa' (2017) 107 South African Medical
Journal 313 at 314.
TABLE OF CONTENT
From Van Wyk to the Constitutional Crisis: A Historical Analysis of Civil Court Page 3
Resolution of Medical Negligence Claims in South Africa (1924–2026)
A Comparative Analysis of Civil Resolution of Medical Negligence Claims: Page 14
South Africa and New Zealand
, From Van Wyk to the Constitutional Crisis: A Historical Analysis of Civil Court Resolution of
Medical Negligence Claims in South Africa (1924–2026)
1. Introduction
The escalation of medical negligence litigation against the State in South Africa has reached crisis
proportions, prompting urgent calls for legal reform. The South African Law Reform Commission
(SALRC) has characterised the situation as one where the extent of such litigation "has reached a
level that it is adversely prejudicially impacting in a serious manner on service delivery in the public
health sector and endangering the constitutional right to have access to health care services".¹ This
research undertakes a historical examination of how medical negligence claims have been resolved
in South African civil courts, tracing the evolution from the early common law foundations through
to contemporary constitutional jurisprudence. By adopting a historical approach, this study focuses
exclusively on developments within South Africa, analysing the trajectory of case law, legislative
interventions, and law reform commission proposals that have shaped the current legal landscape.
This research is significant because it addresses a pressing socio-legal problem that directly
implicates fundamental constitutional rights, including the right of access to health care services
(section 27), the right to bodily and psychological integrity (section 12), and the right of access to
courts (section 34). The historical approach enables a nuanced understanding of how the common
law has been applied, interpreted, and challenged in response to changing societal needs and
constitutional imperatives.
2. Problem Statement
The central problem underpinning this research is the apparent paradox between individual justice
and systemic sustainability in the resolution of medical negligence claims against the State. On one
hand, patients who suffer harm due to negligent medical treatment are entitled to full compensation
for their losses under the common law of delict, a right that vindicates their constitutionally protected
interests in bodily integrity and access to courts.² On the other hand, the cumulative effect of
substantial damages awards — particularly in claims involving children born with cerebral palsy —
has placed an unsustainable burden on provincial health departments, threatening their ability to
deliver health care services to the broader population.³
The SALRC has documented that claims against the State have escalated dramatically, with
contingent liabilities running into billions of rands.⁴ This has created what Carstens and Pearmain
describe as a "vicious circle": negligence in under-resourced hospitals generates claims, which
deplete resources further, thereby exacerbating the conditions that give rise to negligence.⁵ The
problem is most acute in provinces such as the Eastern Cape, KwaZulu-Natal and Limpopo, where
the majority of the population relies on public health care and where contingent liabilities have
reached alarming proportions.⁶
¹ South African Law Reform Commission, Issue Paper 32: Medico-Legal Claims (Project 141, 2017) para 1.1.
² Constitution of the Republic of South Africa, 1996, ss 12 and 34.
³ SALRC, Discussion Paper 145: Medico-Legal Claims (Project 141, 2019) para 3.15.
⁴ SALRC Issue Paper 32 (n 1) para 2.8.
⁵ Carstens P and Pearmain D, Foundational Principles of South African Medical Law (LexisNexis 2007) 456.
⁶ Pepper MS and McQuoid-Mason DJ, 'The Crisis in Medical Negligence Litigation in South Africa' (2017) 107 South African Medical
Journal 313 at 314.
