SAHRC vacancies; State Liability Amendment Bill: briefing

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Justice and Correctional Services

26 January 2021
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services, 26 January 2021

Gauteng MEC for Health v Zulu

The Committee considered its first quarter committee programme, with Members raising concerns about the lack of oversight over Correctional Services whist it tries to tackle the deadlines for the Correctional Services Bill and the Gender Based Violence (GBV) Bills. It resolved to try and meet in the evenings to address some of its timing constraints ahead of the State of the Nation Address.

The Committee Content Advisor briefed the Committee on the procedure for filling the two South African Human Rights Commission (SAHRC) vacancies. The Committee had a number of procedural questions, which it resolved to seek advice from Parliamentary Legal Services such as if appointments could be made from current commissioners and interviewing procedure given the new legal framework. Concern was raised about the timelines to process the 57 applications. It was decided there be a collective shortlisting process through the efforts of the Committee Secretariat rather than via a subcommittee. Concerns about gender and age composition were raised given the urgent need to fill the positions and replenish SAHRC’s capacity.

The Department of Justice and Constitutional Development (DoJ&CD) briefed the Committee on the State Liability Amendment Bill. This was recommended by the South African Law Reform Commission (SALRC) which was involved with a research project on medico-legal claims. DoJ&CD explained the Bill aims to create an option for courts to order structured periodic payments to compensate for future costs instead of paying out a once-off lump sum  in successful claim against the state that exceed R1 million. It noted the public comments about the Bill received towards the end of the Fifth Parliament when the Bill was first introduced.

The Department of Health said the Amendment Bill provides courts with another option against spiralling claims. It presented the Provincial Departments of Health concern that lump sum payments often end up benefiting the estates of claimants, who often do not live long after the court finds in their favour. Courts will be able to order that treatment in public or, if need be, private hospitals be an alternative to lump sum payments for future medical expenses although past and present damages would remain a lump sum.

Some Committee members were concerned that these options took away rights from the claimants in medico-legal negligence cases and placed a burden on their family. They suggested SALRC should not present a piecemeal suggestion when it was still researching a more holistic approach to medico-legal claims. The Committee asked that the Bill be remitted to the Executive for further consultation especially with National Treasury and that it bring a detailed implementation plan. This would ensure that the Committee has sufficient information on whether the change will actually benefit the South African people.


Meeting report

Introductory remarks
The Chairperson asked all present to observe a moment of silence for those lost to COVID-19 during the festive season. He expressed the hope that the departed would rest in eternal peace.

Adv G Breytenbach (DA) expressed her condolences to the ANC for the loss of Minister in the Presidency, Mr Jackson Mthembu.

The Chairperson said that he appreciated the spirit of the sentiment, particularly from opposition parties. In all times of pain such as at the passing of Adv Hishaam Mohamed and other ANC members, the ANC has received support from members of the other parties. This is what defines the country’s humanity.

Mr S Swart (ACDP) added his condolences for the passing of Minister Mthembu, saying that he was a dear friend of his, that he will be dearly missed and that he would be praying for Minister Mthembu’s family.

Committee Programme
The Chairperson commented on the backlog of minutes which the Committee had and proposed that in future meetings, the Committee begin by adopting the previous meeting minutes. He asked that Members apply their minds on how it should deal with the outstanding minutes.

He asked that Members bear in mind that the programme was adjusted to take into account the programme issued by the Office of the Deputy Speaker, which declared that the next two weeks will be reserved for Members’ training. The Committee had asked for two days within that fortnight as it has the Correctional Services Amendment Bill to finish as a matter of urgency to give the National Council of Provinces (NCOP) time to process the Bill. The Committee has asked for the date of 5 February to hold public hearings. These hearings will likely be short as so far there has only been interest from the Helen Suzman Foundation that wants to make an oral submission; in addition, it has one written submission. He asked the Committee if it had any thoughts on the programme.

Mr Swart expressed concern as the Committee had committed to dedicating Fridays for addressing Correctional Services. On the programme, Fridays were no longer set aside for Correctional Services.

The Chairperson replied that he had a similar concern about the programme; however he felt that it was important to pass the GBV Bills.

Adv Breytenbach supported Mr Swart. She was concerned that if they continued sidelining Correctional Services during the first term, it would be very hard to catch up. She suggested that the Committee consider other meeting times such as in the evenings. She requested that the Committee consider having a meeting with the Minister as soon as possible to discuss the appointment of retired judges to deal with the case backlog as it continues to grow and the performance of the High Court continues to decline. If the Judges President are of the view they need retired judges then it is difficult to understand how the Minister can merely say that there is no money. The Committee needed a fuller understanding of the problem and would like a discussion on this sooner rather than later.

Mr Swart agreed about Correctional Services and the concerning backlogs in the High Court in particular provinces where very few court dates are being given. He supported the suggestion that the Minister come and explain the situation to the Committee. He recalled that the Chairperson had alluded to a meeting with the Chief Justice and Judges President to understand the allocation of High Court trial dates during lockdown. He was particularly concerned about long civil matters and the impact it has on the economy when those dates are not given. He again emphasised the importance of Correctional Services oversight. He supported first dealing with the Correctional Services Bill, followed by the GBV Bills as the Committee will have to account to the Whippery and the Programming Committee on the degree of oversight it can exercise over Correctional Services and the Justice Department, given that addressing Correctional Services is probably more urgent although Justice equally has many challenges.

The Chairperson thanked the speakers.

Mr W Horn (DA) said he felt that it was problematic that the Committee will perform oversight over both Correctional Services and Justice later. The reality is that there are unaddressed issues identified by the Committee and agreed to by the Minister himself, that require urgent interventions implemented by both departments to address things falling apart at the Department of Justice and Correctional Services under the Minister's watch. The Committee would not be discharging its duties if it allowed that oversight to be postponed until March. As a constructive proposal, he suggested that the Committee look at having those engagements a few days prior to the State of the Nation Address (SONA), to fulfil the commitments received from the two departments in the last year.

Ms J Mofokeng (ANC) supported the comments about Correctional Services and Adv Breytenbach's suggestion that the Committee meet in the evenings. The Correctional Services Amendment Bill will take a lot of time and the Committee also has to work on the GBV Bills. She felt it was important to come up with a way to cover the work.

Dr M Ndlozi (EFF) said he was covered. However he added that the Committee should be careful not to create the impression that the GBV Bills are not important, as it should be considered an important legacy which this Committee leaves.

The Chairperson said that, in planning, it will look into meetings in the evenings. The days before SONA have been reserved for Member training. If the Committee were to apply to meet on those days, it is likely that the meetings would take place in the evenings. This may result in meetings on the GBV Bills likely to be in the mornings and evenings to meet the deadlines given by the Whippery. He asked if it was fair to conclude that Members do not have a problem with the programme apart from more time must be given towards Correctional Services.

He noted that the Committee Secretariat is circulating a response from the Office of the Chief Justice, and the secretariat is considering changes to the programme to accommodate this meeting.

South African Human Rights Commission (SAHRC) vacancies
Committee Content Advisor, Ms Christine Silkstone, outlined the appointment process for Commissioners to the SAHRC. The vacancies arose when the SAHRC Chairperson wrote to alert Parliament of an imminent vacancy due to the term expiry of Adv Ameermia, followed by another letter informing Parliament of a subsequent vacancy arising from the passing of Deputy Chairperson, Commissioner Priscilla Jana. The letters requested that both vacancies be filled as soon as possible, with the Committee taking into consideration the gender, age and composition of the Commission. The second letter also provided details as to the expectations of the roles which would be fulfilled by a Commissioner and Deputy Chairperson.

The Commission consists of eight commissioners, no less than six of whom must be appointed in a full-time capacity and no more than two in a part-time capacity. In this case, both appointments need to be full-time according to section 5(2) of the South African Human Rights Commission Act.

Slide 5 detailed the current commissioners appointed for a renewable period of seven years. Section 193(1) and (2) of the Constitution requires that commissions established by Chapter 9 of the Constitution should broadly reflect the race and gender composition of South Africa. The Commission highlighted gender and age as factors which the Committee may want to consider when making its recommendations as there is now only one woman serving as a commissioner.

Section 4(1) of the SAHRC Act lists the need for independence and impartiality and Section 5(1)(a) lists the essential criteria for appointment. Grounds for disqualification are noted in section 5(1)(b).

Appointment Process
Section 193(4) and (5) of the Constitution provide that the President is to appoint members of the SAHRC on the recommendation of the National Assembly (NA) which come from nominations by a multi-party committee of the Assembly and are approved by the Assembly with a majority vote.

The appointment of the Deputy Chairperson is to be made by the President on recommendation by the NA. The Deputy Chairperson takes on the programme, management or administrative responsibilities as well as leadership of the Commission when the Chairperson is absent or unable to perform these responsibilities.

There are 57 nominations or applications. The Committee needs to decide on the following:
- The number of candidates to shortlist for the two positions, bearing in mind one recommendation is position of Deputy Chairperson.
- The procedure, time and dates for the screening of candidates
- Structure and length of interviews
- Interview questions.

The Chairperson thanked Ms Silkstone and commented that the slides were very professional. The Chairperson asked a question of clarity on the fact that it was not made clear to the applicants in the advertisement, that they could like to be considered for the role of an ordinary Commissioner or Deputy Commissioner. He asked how this has been dealt with in the past.

Ms W Newhoudt-Druchen (ANC) asked for an explanation of age requirements as she did not know the ages of the current Commissioners. She asked that a list of term expiry dates for the Commissioners. She noted they had not received the CVs of the applicants so that the Committee can look at them.

Mr Ndlozi asked if there was a deadline for when this process should be concluded so that it can assist the Committee in creating a programme.

Adv Breytenbach agreed that seeing the CVs would be helpful. She asked if there was a procedure to eliminate people who do not qualify, or if it was the case that all the applicants qualified. It would be easier to deal with a shortened list.

Mr Horn suggested, subject to Ms Silkstone’s correction and advice, that the Committee follow a process of finding out who of the incumbent commissioners would be interested in serving as the Deputy Chairperson, and who of those serving as part-time commissioners now, would want to be become a full-time commissioner. He made this suggestion not having studied the advert on whether it states the vacancies are specifically for full-time commissioners.

The Chairperson said these concerns will mean that the Committee will need serious procedural advice and asked Committee members to take time beyond this meeting to review the procedural matters as they are quite involved. They would need all the Members to think about them thoroughly in determining how it is going to proceed. For instance, it needs to decide if those not being interviewed will be available to be appointed full-time or to the Deputy Chairperson post and what process it should follow.

Mr Swart said that he had been partly covered. Once the Committee creates a shortlist, perhaps it can be published for public comment as the Committee has done this before and it has been very useful.

Ms Mofokeng said that the CVs are very important as there may also be internal applicants who have applied. She thought that it was better to bring in people who are already working at the SAHRC for these posts, than bringing in new people. In addition to gender and age considerations, continuity needed to be an added consideration. She asked that the Committee not lose sight of the inclusion of women and in making the appointments, it should ensure that there is a woman appointed.

The Chairperson added that the Commission is having serious capacity problems which are affecting its effectiveness. This is all the more so since the only woman who is a commissioner has been in hospital since September and is unlikely to return to work soon. Doctors have said that they would be able to advise if she can return to work after February and even then, she would need a lot of support. Effectively, the Commission has one woman left, who is not well. The difficult issues raised by Mr Horn note how the Committee can provide holistic support to the Commission. The filling of vacancies will provide some support, but the Committee needs to think more holistically about this.

Content Advisor response
Deputy Chairperson appointment
In the past, this consideration only applied in one set of interviews in 2016. In that case, interviews were conducted and a Deputy Chairperson was selected from the applicants. In that process, however, interviews were conducted for almost all the roles in the Commission and the Act had also increased the number of commissioners. At that point, it had more vacancies. Technically, she supposed the Committee could also look at the current commissioners and see if the skills which are there would be appropriate if it does not find someone to fill that position.

The SAHRC letter simply refers to the word 'age. She assumed that this meant that there are not enough young people in the Commission and that it is time to have some younger commissioners.

A list of the terms could be sent to Members.

Time frame
SAHRC has serious capacity issues which means it is not a good idea to leave the vacancies open for long.

Procedural issues
The matters raised by Mr Horn would require procedural advice as all these sections in the Act are new. This means the Committee has to look carefully at how to deal with them as it never dealt with the sections before. The advert would be sent to Members.

At the moment, there should not be a continuity challenge. She thought that there will be a continuity issue in 2023, however she would have to double check the existing terms.

Follow-up questions
Ms Newhoudt-Druchen said that the previous Deputy Chairperson was a woman, and asked whether this means the new Deputy Chairperson needs to be a woman as well.

The Chairperson asked that the Content Advisor not answer the question as it is one that the Committee needs to grapple with together with the point raised by Mr Horn on the procedure the Committee is to follow. He wondered if there was the possibility of making a member who is already in the Commission the Deputy Chairperson. The Commissioner needs to decide as to if the new Deputy Chairperson can be selected from the new Commissioners or if the Committee should choose from the applicants. It needs to decide on how it will go about deciding this as in other Acts of Parliament, it is usually easier as Parliament simply makes recommendations of commissioners or board Members, at which point it becomes the responsibility of the President to choose who becomes the Chairperson and the Deputy Chairperson respectively. In this case, however, it is the NA that makes the recommendation for the two roles. The Committee therefore needs to recommend who should become the Deputy Chairperson. He did not think that there was an answer on hand as to if or not the role could be filled by a current commissioner, however, this needed to be considered further to ensure the Committee did not run into procedural irregularities. Gender issues are issues which will be grappled with going forward and CVs would be distributed to Members. He asked if Members want the 57 original CVs or summarised versions of the CVs.

Ms Mofokeng requested an abridged version of the 57 CVs.

In response to the Chairperson asking if this was the view of the whole Committee, all Members except Mr Ndlozi agreed. Mr Ndlozi said that he would not like a summary; he would like the full CVs and everything accompanying the applications as he felt that the applicants were applying to the Committee Members themselves. He felt that Members had an obligation to apply their minds to the applications.

The Chairperson said that this could be resolved by sending Members summaries with the full versions as annexures. On how many to shortlist, the Committee needs to decide on a process to bring the number down from 57. He asked Ms Silkstone if this will happen when the Committee makes its shortlist selection.

Ms Silkstone replied that this would likely come up when shortlisting. The first step would be to look at the CVs and decide which applicants the Committee would like to interview.

The Chairperson noted this and said that the CVs and summaries would be sent to the Committee. He asked if Members were happy with the proceedings, bearing in mind there are still difficult procedural questions  needing to be looked at by Ms Silkstone and Parliamentary Legal Services.

Mr Ndlozi asked if there should not be a subcommittee which creates a shortlist and presents it to the Committee before making recommendations to the House. He thought this might be a better process from a workload basis.

The Chairperson thanked Mr Ndlozi and noted the suggestion. In drafting the Committee Programme, the workload, the three GBV Bills, the complexity of the issues and the fact that when the first term comes to an end, it would reflect badly on Parliament if the SAHRC is still limping and Parliament has not fulfilled its obligation to fulfil all the work that needs to be done. It used to be easier in years past as the Committee was much bigger in 1999. The current size of the Committee today would have been the size of a subcommittee.

Ms Y Yako (EFF) agreed with Mr Ndlozi as it would make the workload more manageable. She asked when they could expect the CVs. She would like a benchmark.

The Chairperson asked the secretariat and research unit, how long it would take to finalise the summaries and when Members could expect the summaries of the CVs.

The Committee Secretary and Content Advisor agreed that these should be ready by 28 January.

Ms Mofokeng said the question of a subcommittee as suggested by Mr Ndlozi, still needed to be addressed.

The Chairperson said that Members need to decide if they accept the subcommittee proposal and if so, how many Members should be a part of it; what form it will take; the reporting mechanism to the broader Committee and timeframes.

Mr Swart said that he understood that in the past, the Committee had subcommittees. However, he used the example of the Committee’s consideration of the Public Protector shortlist. In that case, the whole Committee deliberated over the shortlist. He thought that the tricky part will be the shortlisting, and although he did not have a particular objection to the shortlisting, he bore in mind the small membership of parliamentary committees. At the very least, the subcommittee would need to consist of all parties which might result in it almost being the whole committee. Should, however, the Committee decide to use a subcommittee, it could help with the processing of the 57 CVs.

Adv Breytenbach similarly had no objection in principle to a subcommittee; however, she thought that it may defeat the purpose if it ends up comprising the majority of the Committee. She therefore suggested that the Secretariat create a mechanism to screen the applicants who do not qualify for whatever reason and then tell the Committee how many are left for it to deal with those left. She did not think it should take more than one Committee sitting meeting to create a shortlist.

Ms Mofokeng said it seemed clear that a subcommittee would not be possible and she agreed. An extra day or evening was needed, where the Committee looks at CVs and decides on who the most suitable persons are for the vacancies as part of the shortlisting procedure.

The Chairperson asked if there were any further inputs.

Mr X Nqola (ANC) said he had no further inputs and he hoped his connection was better now.

The Chairperson said that it was better and that these considerations had been part of creating the draft agenda. Looking at the programme, effort has been made to include time for shortlisting and interviews. Two days had been set aside for interviews and this was guided by how the Committee dealt with the appointment of the Deputy Public Protector and the Information Regulator. Looking at the programme, he felt that the work could be finished reasonably soon, within this quarter. After SONA, however, it will need to look at the programme again to reprioritise its time.

The Chairperson noted the three top priorities for the term. The first priority is the Correctional Services Amendment Bill, because the Constitutional Court deadline ends in May and the Committee needs to give the NCOP time to process the Bill. Another consideration is that the read-in provision for the Correctional Services Amendment Bill lapses in May, which will mean there will be a gap in the law. The second priority is the three GBV Bills. The Committee has been given the end of the term as the completion deadline. The third priority is the SAHRC. The Committee set itself a deadline that by the end of the term it should have submitted the names to the House for consideration. He suggested that the Committee meet as to do a bulk shortlisting of the candidates for the SAHRC vacancies. The Committee had done this for the Information Regulator and it should not take long if the CVs are received by Thursday. This will give time for Members to consult with their political parties, before continuing. He thought this was a manageable workload and asked if the Members can pass this suggestion.

The Committee agreed.

The Chairperson said that Parliamentary Legal Services needed to be consulted on the procedural issues raised by Mr Horn as it was the first time that the Committee was dealing with issues of this nature.

State Liability Amendment Bill: briefing by Departments of Justice and Health
The Chairperson introduced the Bill saying it has a long history which started in the Fifth Parliament. The Committee had looked at the presentations which were circulated. He did not think that the Committee would spend a lot of time on the Bill because based on the presentations, it was clear that quite a lot of work still needs to be done. For example, the South African Law Reform Commission (SALRC) still needs to be complete Project 141 on Medico-Legal Claims and still needs to consult National Treasury as well as both the Department of Health and the DOJ&CD. According to Project 141, the process for dealing with claim payments is supposed to be completed by the middle of this year. That process has not yet been submitted, meaning that a half-baked process was currently before the Committee. He acknowledged Mr Henk Du Preez from the DoJ&CD and was present and Adv Lufuno Makhoshi from the Department of Health.

DoJ&CD presentation on the State Liability Amendment Bill
Mr Henk Du Preez, State Law Advisor: Department of Justice, apologised for the Acting Director General who was trying to connect but the weather was impeding this. He would be presenting in her place.

Mr Du Preez said that the SALRC Research Project 141 on Medico-Legal Claims was in progress. However, its Issue Paper 33 already indicated that the Bill could be promoted as an interim measure.

The ‘once and for all’ rule
An amendment would be effected to the ‘once and for all’ rule, which provides that if a plaintiff suffers damages, then that plaintiff can only claim once for past and future damages. Therefore, if the court awards in favour of the plaintiff, a lump sum is paid out to cover past, present and future damages. The SALRC recommends that one consider amending the State Liability Act to provide for structured payments. This would mean that in the case of a claim instituted due to medical negligence, a structured payment could be ordered by a court so that past and present damages can be paid out immediately to the person suffering the damages and future payments would be ordered in terms of structured payments.

Lump sum payments
When it was introduced in 2018, public hearings were held by the Committee and the matter ended at that point at the end of the Fifth Parliament. The Amendment Bill is promoted as an interim measure, pending the outcome of the SALRC larger investigation into medico-legal claims. It does not mean that the Bill cannot be pursued pending the outcome of that investigation. It can proceed as a separate initiative intended to address concerns about lump sum payments.

Clauses 1 and 2
Clause 1 introduces structured settlement of claims for claims to new section 2A of the Act. The new section 2A(1) provides that in a successful claim against the state that exceeds payments over R1 million, compensation would be paid in terms of a structured settlement. The new section 2A(2)(a), (b) and (c) speak to: periodic payments of future medical treatment and loss of earnings adjusted annually in terms of the consumer price index, as well as the state providing treatment to injured person. The new section 2A will exclude medico-legal claims for future medical expenses from the ‘once and for all’ rule. This has created a need to amend the savings provision in section 4 of the principal Act.

Clause 2 inserts a provision in section 4 to clarify that proceedings resulting from (negligent) wrongful medical treatment which have not been instituted or concluded prior to the commencement of section 2A must be instituted, continued and concluded in accordance with the new section 2A.

Comments received on State Liability Amendment Bill
The presentation included a summary of public comments to do with:
a. Public Health system generally
b. Comments in support of the Bill
c. Implementation challenges
d. General comments.

Department of Health (DoH) presentation on the State Liability Amendment Bill
Adv Lufuno Makhoshi, Department of Health Legal Advisor,  said that the Department supports the Bill as it helps it deal with contingent liability, which has risen substantially. The approach of the provincial departments of health is that those departments render the future medical services in public hospitals instead of paying future medical expenses in lump sums. Where such facilities are unable to provide the services, the services would be rendered in private hospitals at the cost of the state, so that the contingent liability is reduced. These are some of the concerns which provincial departments of health have raised. Almost 80% of claims are for future medical expenses and some studies suggest that the majority of injured persons tend to die within five years, leaving the balance of the payment to their estate.

The National Department of Health (NDoH) is in favour of the Bill empowering the courts to order that future medical expenses be rendered at a public facility. Apart from that, it is in favour of the Bill and the development of the common law rule that was raised in the Zulu judgement [for payment of future medical expenses as and when required or access to healthcare services]. In that judgment, the Constitutional Court said that if the state can prove that it has the capacity to provide the services, there is no reason for the services not to be granted instead of a lump sum of money. It is critical that the common law rule is changed through legislation, hence the Department’s support of the State Liability Amendment Bill.

Ms Newhoudt-Druchen noted there were objections during the previous Parliament's public hearings. She asked for examples of the kinds of objections so she can better understand them.

She asked how the Department of Health deals with negligence. Her concern was about the heavy burden medical negligence places on families as most of the time negligence results in disability, which is a heavy burden for South Africans as it results in additional expenses. She did not want this Bill to be a burden for families. She asked what the Department does to ensure that the negligence of doctors does not end up being the family’s burden. She asked if the Amendment Bill did not cause a further financial burden to families who have to deal with the damage that was not there before.

Mr Horn asked why the Amendment Bill is being brought back now in the face of the pending investigation going further. One of the challenges of the Committee is making stop-gap measures. He asked why this interim measure is of importance now if the whole system is going to be overhauled.

Adv Breytenbach said she was covered.

Mr Swart said that some Committee members were present in the Fifth Parliament Committee when strong objections against this Bill were raised by a number of members of the medical fraternity. Those submissions are available to the Committee. He reminded the Committee that it is dealing with GBV. A part of this violence is women in childbirth as South Africa has a very high maternal mortality rate. This is preventable. What is now being considered is a change to the common law right of women being able to claim who have difficulties in childbirth as a result of obstetric negligence. This has significant impact.

He supported the Chairperson's view that SALRC needs to be very cautious in how the matter is dealt with. This Bill will change the common law right of poor people to claim for medical negligence. 29 000 women have died giving birth in public healthcare facilities from 1999 to 2014. There are also a lot of children born with cerebral palsy that are entitled to compensation. This Act affects people who have suffered at the hands of public health facilities, of which only six out of 649 adhere to public health standards. These people must go back to those same health authorities for future treatment.

There are also significant implications for the budget of the nation as the Public Finance Management Act does not make provision for staggered payments over many years. The finance standing committee budgets for a three-to-five-year period not for twenty to thirty years. This is effectively kicking the can down the road. The actuaries who spoke to the previous Parliament said that it would cost more for the state in the long down. Whilst he appreciated the dilemma, he felt that the heart of the matter was indicated on slide nine of the presentation, where expert opinion said that the majority of medical negligence was preventable and as a result of the poor quality of care in public health facilities. The Bill had very serious issues to deal with and this was part of GBV. The whole approach by the SALRC needed to be considered as it would be coming up with a full recommendation and it is a very complex issue with medical negligence at the heart of it.

Ms Yako said that she was partly covered by Mr Swart. The Bill speaks to negligence that is life changing resulting in cerebral palsy in children or women having their ovaries removed as a result. She asked how the law intends to deal decisively with hospitals that are not coming forward about lack of capacity, which result in these problems – the scars and deaths that arise from negligence. She wanted to know how the Bill would deal with this.

DoJ&CD response
Mr Du Preez replied that the public objections to the Amendment Bill were largely covered by Mr Swart and he would not regurgitate them. The last few slides of the presentation mention the recurring themes in these objections, saying that although some were repetitive, they were very relevant.

Why proceed with the Bill pending the SALRC investigation
To a certain extent, this was a difficult question to answer, however on Saturday he contacted a SALRC who said that the Bill can proceed as it involves a change to the common law. The State Liability Act merely provides procedures and guidelines on how a claim can be instituted against the national or provincial government. It also provides guidelines on how payments should be made to successful claimants.

Rights of injured parties
Mr Du Preez replied that in his view it is not the case that the rights of injured parties are taken away. If someone is entitled to R5 million now, one would still be entitled to R5 million after the amendment. The approach to be followed is that claimants will immediately be compensated in a lump sum for past and present damages and assistive aids such as wheelchairs. When it comes to future damages, the court will determine the quantum of damages; however, it may determine this be paid periodically to the injured party at least once a year.

How the Bill addresses poor hospitals
Mr Du Preez replied that the Health Department should have an opportunity to answer this. He reiterated that the State Liability Amendment Bill deals with how claims should be instituted against the state and how those claims should be compensated. Strictly speaking, this Bill does not deal with poor hospital service.

Department of Health response
Damages burdening families
Adv Makhosi replied that there are two parts to claims. One part deals with pain and suffering, and the other part deals with future medical expenses for the patient. This will still ensure that families have general damages and it is not a matter of taking away a poor family’s right to compensation. He used the example of a R10 million claim with R3 million of that being general damages— the R3 million will still need to be paid as is. He asked that the Committee consider the meaning of ‘future medical expenses’ which means that the person must be treated in the future. In the example he gave, future medical expenses would be the R7 million balance. What the Department has argued is that due to the fact that some people do not live long, the compensation goes to the family through the estate. To avoid this, it is suggested that those people are treated, either at a state or private facility, where the state will pay for such treatment.

Number of negligent hospitals
In 2015, the Minister of Health held a medico-legal summit to deal with these concerns, the most important of which was patient safety. Adv Makhosi emphasised that the state is not trying to absolve itself from the responsibility of rendering quality services. The summit’s declaration covered a number of priority areas:
- Patient safety
- Good management to ensure there is ongoing treatment
- Improve capacity and skills
- Ensure a safe environment for patients and workers
- Ensure that human resources employ appropriate numbers of competent staff.

These are some of the measures DoH has put in place to ensure it provide quality services. NDoH has through the National Declaration on the Medico-Legal Summit, addressed a number of concerns which provincial hospitals should be able to deal with to address poor conduct. The Department acknowledges instances where poor conduct was preventable. As such, there need to be systems to prevent such conduct and to ensure that there is consequence management where the staff are the cause of the harm. This will ensure that the harm is not repeated. The declaration is part of the Department’s plan to ensure patient safety is the main focus. The Bill is as a result of the medico-legal summit, where it was decided that the SALRC must embark on a holistic approach for best way of dealing with medico-legal claims, while managing to ensure that people are compensated fairly and equitably and that the health system is strengthened in its approach to claims.

Committee resolution
The Chairperson said that he liked Adv Makhosi’s comment that the SALRC has to deal holistically with the matter. As the Committee, it does not place much weight on summits, but rather emphasises the impact on the ground.  The Committee did not understand why a Bill is being brought now when the matter is still being holistically investigated. As such, he suggested to the Committee that the Bill be referred back to the Executive so that proper consultations are conducted, not only with the Departments of Health and Justice but with National Treasury as well. He asked about the urgency of dealing with this mater in a piecemeal way when it could have a holistic and impactful solution that could meaningfully change the lives of people for the better.  He asked that SALRC bring a detailed implementation plan before it suggests a Bill and not merely information from summits or conferences. This would ensure that the Committee has sufficient information and whether the change will actually benefit the people. When the Executive approaches Parliament, it should present something that Parliament can properly engage with, and not merely approach Parliament to pass Bills as a stop-gap measure, without assurances that it would benefit the people. The Committee cannot process a Bill which has not been fully processed without all the available information before the decision makers. This was his summary as Chairperson and he asked if the Members agreed.

The Committee agreed.

The Chairperson said that the next meeting was on 5 February and a revised programme would need to be presented. He adjourned the meeting.


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