The provincial health department, which claims in court papers to be too broke to pay out a R3.5-million damages claim, yesterday failed in an urgent court bid to prevent its assets such as ambulances and computers being seized and sold off.
In dismissing the application, Grahamstown High Court judge Judith Roberson also ordered provincial health department superintendent-general Dr Thobile Mbengashe and national Treasury Director General Dondo Mogajane to show why they should not be made to jointly and personally foot the punitive legal costs of the application out of their own pockets.
According to court papers, the department in November last year agreed to pay out more than R3.5-million in damages to the mother of a severely mentally and physically disabled child after it admitted that staff at two of its major hospitals were, at least in part, responsible for her condition due to their negligence.
The agreement was made an order of court. The child, who is now nine years old, may not be identified due to her youth and disability.
The department’s legal advisor, Zekhaya Bastile, said in an affidavit that the payment could not be made due to “budget restraints”.
“Payment was impossible due to lack of funds.”
She said health MEC Pumza Dyantyi had sought alternative ways to fund the payment but was unable to do so. A warrant of execution for all the department’s assets, including its vehicles and office equipment at its Bhisho headquarters, was issued.
She said the sale in execution of assets such as computers, ambulances and pathology vehicles would seriously disrupt services and threaten lives and was not in the interest of justice.
The department would have the funds at the end of April and would pay out the damages claim before mid-May.
“The funds have been approved and will be received by the department and have been allocated to payment of this judgment debt.”
She said the mother and child would suffer no prejudice as interest would accumulate on the capital amount in the interim.
But court papers reveal the child’s mother is single and poor and battling to cope. Her child was left a quadriplegic with cerebral palsy after birth complications and neglect by hospital staff. The little girl cannot move, drink or eat without assistance and has no control over her bodily functions.
The department had asked for a stay of execution until May 7, by which time it hopes to have honoured its undertakings. The warrant indicates the sheriff may begin removing the goods from mid-March.
But an infuriated attorney for the mother and child, Lunen Meyer, yesterday described the department as callous and heartless in its approach.
He said their poor circumstances were known to the department. He described the child’s mother as remarkable in her attempts to keep body and soul together through piecemeal jobs and designing and making clothes, while seeing to the care of her seriously disabled child.
He said Bastile, as a legal advisor, was not in a position to enlighten the court about the budgetary constraints allegedly faced by the department. This duty lay at the door of Mbengashe as the department’s accounting officer. Mbengashe’s failure to spell out the allegedly precarious financial position of the department was contemptuous of the court, the little girl and her mother.
“Surely this honourable court is entitled to a full and detailed explanation as to why a provincial department and treasury find themselves in a position where they are unable to fulfil their constitutional and statutory obligations and satisfy an order of this court.”
He said without such an explanation, they could not expect an indulgence from the court.
Not once had the department even offered to make a small interim payment to address the immediate needs of the disabled child.
He said no ambulances or medical equipment had been lined up for attachment.
The correspondent attorney for the mother, Mark Nettelton, yesterday confirmed that the application had been dismissed with costs.
“The judge has also ordered that the show cause why they should not pay the costs personally.”
Health ‘too broke’ to pay child
In dismissing the application, Grahamstown High Court judge Judith Roberson also ordered provincial health department superintendent-general Dr Thobile Mbengashe and national Treasury Director General Dondo Mogajane to show why they should not be made to jointly and personally foot the punitive legal costs of the application out of their own pockets.
According to court papers, the department in November last year agreed to pay out more than R3.5-million in damages to the mother of a severely mentally and physically disabled child after it admitted that staff at two of its major hospitals were, at least in part, responsible for her condition due to their negligence.
The agreement was made an order of court. The child, who is now nine years old, may not be identified due to her youth and disability.
The department’s legal advisor, Zekhaya Bastile, said in an affidavit that the payment could not be made due to “budget restraints”.
“Payment was impossible due to lack of funds.”
She said health MEC Pumza Dyantyi had sought alternative ways to fund the payment but was unable to do so. A warrant of execution for all the department’s assets, including its vehicles and office equipment at its Bhisho headquarters, was issued.
She said the sale in execution of assets such as computers, ambulances and pathology vehicles would seriously disrupt services and threaten lives and was not in the interest of justice.
The department would have the funds at the end of April and would pay out the damages claim before mid-May.
“The funds have been approved and will be received by the department and have been allocated to payment of this judgment debt.”
She said the mother and child would suffer no prejudice as interest would accumulate on the capital amount in the interim.
But court papers reveal the child’s mother is single and poor and battling to cope. Her child was left a quadriplegic with cerebral palsy after birth complications and neglect by hospital staff. The little girl cannot move, drink or eat without assistance and has no control over her bodily functions.
The department had asked for a stay of execution until May 7, by which time it hopes to have honoured its undertakings. The warrant indicates the sheriff may begin removing the goods from mid-March.
But an infuriated attorney for the mother and child, Lunen Meyer, yesterday described the department as callous and heartless in its approach.
He said their poor circumstances were known to the department. He described the child’s mother as remarkable in her attempts to keep body and soul together through piecemeal jobs and designing and making clothes, while seeing to the care of her seriously disabled child.
He said Bastile, as a legal advisor, was not in a position to enlighten the court about the budgetary constraints allegedly faced by the department. This duty lay at the door of Mbengashe as the department’s accounting officer. Mbengashe’s failure to spell out the allegedly precarious financial position of the department was contemptuous of the court, the little girl and her mother.
“Surely this honourable court is entitled to a full and detailed explanation as to why a provincial department and treasury find themselves in a position where they are unable to fulfil their constitutional and statutory obligations and satisfy an order of this court.”
He said without such an explanation, they could not expect an indulgence from the court.
Not once had the department even offered to make a small interim payment to address the immediate needs of the disabled child.
He said no ambulances or medical equipment had been lined up for attachment.
The correspondent attorney for the mother, Mark Nettelton, yesterday confirmed that the application had been dismissed with costs.
“The judge has also ordered that the show cause why they should not pay the costs personally.”
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