- The mother appealed the R600,000 in general damages awarded for her child, who was born with cerebral palsy.
- The judges said the fact that the child died before the award was made was a crucial factor.
- The High Court dismissed the appeal and decided that each side should pay its own legal costs.
A mother returned to the High Court in Mbombela, seeking what she believed was fair compensation for the pain and suffering her daughter endured after being born with cerebral palsy as a result of medical negligence.
The family argued that the R600,000 awarded by the trial court was far too little, given the severity of the child’s condition, and asked the court to increase the amount to R2.5 million, even though the child had died before the damages award was made.
The mother argued that the trial court had undervalued her daughter’s suffering, while the provincial health authorities insisted that the original award was fair and legally justified in the circumstances.
In a judgment delivered on 14 August 2026, Acting Judge MI Mangena, with Acting Judge ZE Gumede and Acting Judge President TV Ratshibvumo concurring, upheld the original award of R600,000 in general damages.
Child died before damages were determined
The case began with a medical negligence claim brought on behalf of a child born on 12 February 2017 with cerebral palsy. The child’s mother took legal action against the MEC for Health and Social Development in Mpumalanga, arguing that negligent medical treatment had caused her child’s condition and seeking compensation for what followed.
The merits of the claim were settled in 2022, with the MEC accepting 90 percent liability. The only issue left was how much compensation should be paid, especially for general damages like pain, suffering, loss of amenities, and the overall impact on the child’s life.
By the time the case came before the trial court in April 2025, the child had already passed away on 20 August 2023. No oral evidence was presented; instead, the mother relied on expert medical reports filed in support of her claim. The trial court awarded R600,000 in general damages, subject to the earlier apportionment.
The mother appealed, arguing that the award was unreasonable, inadequate, unfair, and much lower than awards in similar cerebral palsy cases. She believed that fair compensation would be R2.5 million.
Appeal court considered limits on interference
The High Court stressed that an appeal court cannot simply substitute its own assessment for that of the trial court. It may only interfere if there has been a misdirection, if there is no sound basis for the award, or if there is a striking difference between the amount awarded and what the appeal court considers fair and reasonable.
The mother relied heavily on an earlier cerebral palsy case where the court awarded R1.5 million. She argued that the trial court should have followed the same approach and awarded a much higher amount in this case too.
The judges did not find this comparison persuasive because the facts were very different. In the earlier case, the child was still alive when the award was made and had a life expectancy of 17 years. In this matter, the child had died before any award for general damages was determined.
The court described this distinction as significant and said the child’s death was a key factor in assessing the right amount of compensation.
Purpose of general damages became central issue
During argument, both sides pointed the court to a recent Supreme Court of Appeal decision about general damages for a severely brain-injured child. While the facts were not identical, the Mbombela judges said the principles discussed by the higher court were important.
The mother argued that her daughter had been conscious, unlike the child in the Supreme Court of Appeal case. The MEC accepted this difference but argued that general damages are meant to ease the pain and suffering of the injured person, not to benefit the estate of someone who has already passed away.
The High Court agreed with this approach. The judges said the trial court was entitled to consider the child’s death when deciding on the amount of general damages, and found no legal misdirection in doing so.
They said that making a substantial award to ease the pain and suffering of a child who has already passed away would serve no purpose, and concluded that the trial court had exercised its discretion wisely.
No costs order against the mother
The court also considered an application for condonation because the appeal was filed 18 days late. The delay was explained by problems with the record and the transcription process, so the judges granted condonation.
On the question of costs, both parties wanted the usual party-and-party costs. The High Court decided not to order the mother to pay the MEC’s legal costs, finding that the appeal was not frivolous, vexatious, or clearly inappropriate.
The judges said constitutional considerations justified a different approach, so each party should pay its own costs. The final order granted condonation, dismissed the appeal, and made no order as to costs.
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