South Africa’s system for compensating victims of medical negligence is under severe pressure. Nowhere is that clearer than in the Eastern Cape. The province paid out more than R630m in medical negligence claims in the 2024/25 financial year. That is about 2% of its R30.1bn budget.
The Eastern Cape governent didn't plan for these payouts, and the result is predictable. They leave less money for staff, medicines, equipment, and day-to-day services. Ultimately, these payouts force patients - who had nothing to do with the original harm - to pay the price through reduced care.
The province faces serious concerns regarding clinical quality, including one of the worst maternal mortality rates in the country. Reports show that women using public facilities in the Eastern Cape die during or shortly after childbirth at more than twice the rate of women in the Western Cape. We must provide better care and build a more effective compensation system for those the system harms.
Why Medical Negligence Compensation Reform Matters
Under the current approach, claimants must typically go to court. This adversarial process moves slowly and costs a fortune. Even when a patient succeeds, the family receives only a portion of the final award because legal fees, expert witnesses, and senior counsel swallow a large share.
Historically, provincial health departments have paid one-off lump-sum payments. These are based on actuarial estimates of a victim’s lifetime care costs, typically priced at private-sector rates. That model creates major financial risk for provinces. The National Treasury and the National Health Department have warned about this for years. Yet reform has stalled, and the legislative framework remains largely unchanged.
Medical Negligence Compensation Reform Stalls as Courts Push Back
A proposed fix has been debated for some time. The State Liability Amendment Bill, first introduced in 2018, proposed periodic payments and treatment in public facilities rather than full upfront lump-sum payments. Parliament rejected it in December 2023. MPs argued it was premature while the South African Law Reform Commission was still working on medico-legal claims.
The commission published a detailed discussion paper in August 2020. It recommended establishing an administrative fund for small claims, mandatory mediation before litigation, and periodic payments rather than lump-sum payments. However, there has been no clear public signal from the relevant ministers regarding a final report or a new bill.
Eastern Cape Tries a Different Route
In the policy vacuum, the Eastern Cape health department has tried a different route. It has sought to develop the common law to move away from lump-sum payments. The province wants to provide care in public hospitals, with a safeguard. If the state cannot meet a victim’s needs, it would fund the required services in the private sector.
The department had early success in a 2023 test case in the Bhisho High Court. But the Supreme Court of Appeal recently set that ruling aside. It ordered full upfront payment for future care costs. The court’s reasoning was blunt. Changing the law on such a contentious issue is Parliament’s job, not the courts’.
The Eastern Cape will now probably take the matter to the Constitutional Court. The department argues that the current regime benefits individuals at the expense of the wider public, who rely on strained health services. Critics counter that poor management proves the state cannot be trusted to care for the very people it harmed.
Both arguments carry weight. But the bigger issue remains. South Africa needs medical negligence compensation reform that protects patients, limits waste, and stops compensation from quietly eroding frontline care.
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