Durban - In a stern warning to civil servants “who cannot be bothered to do their work”, a judge has ordered two State lawyers and a doctor to pay from their own pockets half the bill for the legal costs of a birth defect case.
“Studying judgments dealing with the conduct of public officials over the course of the past six years or so reveals that shaming public officials no longer works. Even the strongest exhortation falls on deaf ears,” Gauteng high court acting Judge Ronee Robinson said in her unusual judgment.
She named the errant officials who had used the public purse to fund unjustified and reckless litigation, as Ezekial Matlou, an attorney who works for the State Attorneys office; Jabulani Macheke, senior legal administration officer in the Gauteng department of health; and Dr Kgoposi Cele, medical legal adviser in the same department.
Off the hook was Gauteng Health MEC Qedani Mahlangu who, in an affidavit, said she had to rely on her officials and could not be held personally responsible.
The attorney handling the matter, Justice Ramsamy, told The Mercury on Tuesday that the costs had not yet been calculated but would be about R500 000. This meant the officials would have to collectively cough up R250 000.
However, he said, the department had applied for leave to appeal and a decision was expected on this before the end of the month.
In the meantime, his client Vuyusile Lushaba, who sued the department for R17 million after she gave birth to a quadriplegic cerebral palsied child, Menzi, at Charlotte Maxeke hospital 14 years ago, would still be waiting for compensation.
She and her experts blamed Menzi’s condition on a two-hour delay in giving her an emergency caesarian.
Lushaba, the judge noted, had not only been let down by the doctors and nurses on duty, but also by the officials who dealt with her claim who had, with no legal or medical justification, decided to defend it.
The judge said: “I observed Lushaba, far from a hefty woman, carry her 14-year-old son out of court on her back. She did not have a wheelchair in court. During proceedings she had to cradle him in her arms because, paralysed as he is, he could not sit by himself.
“This is symbolic of the destruction wrought by the callous, incompetent, indifference on the part of public officials inflicting South Africa at the moment. Lushaba and her son deserved much better.”
The judge ruled in favour of Lushaba last month, saying the department was 100% liable for her claim, and ordered the MEC to explain why she should not pay the legal costs or to name those who should.
In her judgment, she said no one had been able to explain why the matter had been defended or why the officials believed they had a case “when one searches in vain for the reasons for these conclusions” because medical records were not produced.
“A large quantum is no reason to defend a claim on the merits in the absence of a defence,” the judge said.
“No-one was in a position to fully consider the merits of the case because no-one studied the ante-natal and labour records. The damage to Menzi did not occur after his birth. It occurred antenatally.
“Even for a lay person, the facts of the case are not insurmountable. A foetus needs oxygen supplied through the wall of the uterus. When the placenta starts moving, that supply is threatened and the baby must be gotten out without delay.
“What occurred pre-birth was of the utmost importance. And yet all three professionals remained indifferent to the records.”
She said personal cost orders were not awarded easily and only when there had been negligence in a serious degree.
“Erring when trying to do one’s work well is one thing. Not even caring about doing it is quite another. The public should not have to suffer this complete indifference and incompetence,” she said noting that the officials had also not stuck to time-frames in the pre-trial process, incurring more costs.
“The State should not conduct a case as if it were at war with its own citizens.
“Such incompetence undermines the Constitutional order not arrived at easily. It cannot be permitted to die with a whimper, sunk away under a swamp of slothful indifference.
“Drastic measures are called for to turn the tide. Somehow these officials must be conditioned to care… and when mistakes are made, then there must be courage and intellectual honesty, not lies and foot dragging.”
The effect of the judge’s order is that the health department must pay the costs and the recover half back from the three officials.The judge also ordered that her judgment be sent to the Law Society of Northern Provinces with regards to possible action against Matlou.