Oliver NO v MEC for Health: Western Cape Provincial Department of Health (886/2023) [2025] ZASCA 45; 2025 (5) SA 384 (SCA) (17 April 2025)

Key Facts

Deceased Name

Issues

• The court addressed whether material amendments to the claim for special damages (future medical expenses) made on 4 October 2017 re-opened litis contestatio achieved in January 2016. The high court ruled that these amendments, which significantly altered the scope of the litigation and included 41 new procedures and sequellae, were material and thus interrupted litis contestatio. This rendered the deceased's claim for general damages non-transmissible to her estate. The appeal challenged this finding, arguing that the amendments did not fundamentally change the issues in dispute.
• The second issue concerned the development of common law principles governing the non-transmissibility of non-patrimonial (general) damages after litis contestatio. The appellant argued for a qualification to the rule, citing the Bill of Rights and the deceased's death after achieving litis contestatio. The high court rejected this due to inadequate pleadings and lack of evidence, while the Supreme Court of Appeal remitted the matter for further consideration, emphasizing the need for proper formulation and factual material to assess broader consequences.

Date of Death

Holdings

• The high court's order is set aside and replaced with an order granting leave to amend particulars of claim within 30 days.
• The matter is remitted to the high court to determine whether the common law rule regarding non-transmissibility of general damages should be developed.
• The appeal is upheld with no order as to costs.

Remedies

• The matter is remitted to the high court to determine whether the common law rule regarding the non-transmissibility of non-patrimonial damages (general damages) after litis contestatio should be developed on the facts of this matter.
• The plaintiff is granted leave to further amend their particulars of claim within 30 days from the date of this order.
• The costs are reserved.
• The appeal is upheld with no order as to costs.

Probate Status

Legal Principles

• The court applied the common law rule that non-patrimonial damages are not transmissible to an estate after the claimant's death if litis contestatio has been achieved. The amendments to the claim for special damages were found to re-open litis contestatio, extinguishing the general damages claim.
• The court emphasized that any development of the common law must be based on adequately pleaded arguments and supported by factual evidence. The case was remitted to ensure these requirements are met, allowing for a proper assessment of the transmissibility of general damages.

Succession Regime

Precedent Name

• Stewart and Another v Botha and Another
• K.J.S v M.J.S
• Ngubane v Road Accident Fund
• Natal Joint Municipal Pension Fund v Endumeni Municipality
• Minister of Justice and Correctional Services and Others v Estate Stransham-Ford
• MEC for Health and Social Development, Gauteng v DZ obo WZ
• H v Fetal Assessment Centre
• Mighty Solutions v Engen Petroleum Ltd and Another
• Nkala and Others v Harmony Gold Mining Company Limited and Others

Executor Name

Cited Statute

• Uniform Rules of Court
• Constitution of the Republic of South Africa, 1996 (Bill of Rights)

Executor Appointment

Judge Name

• Kgoele
• Musi
• Unterhalter
• Smith
• Mocumie

Passage Text

• For these reasons, I agree with the alternative order suggested by the MEC. I therefore conclude that, as a result of the fact that the proposed development of the principles of common law by the appellant... warrant proper consideration, the alternative order suggested by the MEC should, in the interest of justice, be made by this Court.
• Lastly, the record contains no evidence of the broader consequences of the development of the common law sought by the appellant. This Court is thus asked to develop the common law in a factual vacuum despite the self-evidently wide ramifications for personal injury claims under the common law contended for by the appellant.
• The amendments significantly altered and expanded the issues that have a bearing on the damages suffered by the appellant that would go to trial. They are material, and would require a response in an amended plea.