This blog is co-authored by Daniel Kariithi, a candidate attorney.
In February 2025, the Eastern Cape High Court reaffirmed that any party seeking to develop the common law must clearly state their case and provide supporting evidence.
The dispute before the court concerned the quantum for future care and medical expenses for the claimant’s son, who suffered from cerebral palsy due to the negligence of hospital officials during birth. The issue of liability had previously been determined in favour of the claimant and parts of the quantum had been settled.
The defendant, the MEC for Health in the Eastern Cape, relied on two common defences typically raised in medical negligence claims. First, the public healthcare remedy, asserting that the claimant would not suffer the future medical expenses claimed because the necessary care was available in the public sector at no cost to the claimant. Second, the undertaking-to-pay defence, in which the defendant committed to either procure the necessary care from a private healthcare institution when needed or reimburse the reasonable expenses incurred within 60 days of receiving an invoice.
The defendant argued that the common law had developed to accommodate these defences, asserting that the “once-and-for-all rule” and the rule that damages are monetary were neither exclusive nor the primary rules for the determination a just and equitable order in terms of section 38 of the Constitution. The claimant contested this appeal, stating the common law had not been developed and that the defendant failed to establish a basis for its development. The central issue before the court was whether the defendant adequately pleaded and provided evidence to support the development of common law to include the two defences raised.
The court held that the law of delict is underpinned by two principles: damages are awarded in money as it is the measure of all things; and a claimant must claim in one action all damages extending from a cause of action. The court acknowledged the possibility that the common law could be developed if the court is satisfied that both the pleadings and evidence support the development.
In its analysis of the defendant’s case, the court agreed that compelling arguments were made as to why the implementation of an undertaking-to-pay remedy was beneficial to ensure the financial stability of the defendant’s budget. However, it raised issues as to the missing evidence as to the feasibility and how the remedy would be implemented. The court held that there were too many unanswered questions in this regard and ruled in favour of the claimant.
The case emphasises the need for defendants to provide well-pleaded arguments with the relevant supporting evidence when requesting a court to develop the common law. Without satisfying these two requirements, a court will not develop the common law, even if what is being requested is reasonable and beneficial to both parties.