A judge has ruled that the time has come for the development of the common law to accept the principle that in certain circumstances payment for damages be made in kind and not in cash.

A Pretoria News report says the matter has its roots in a botched operation on Nelly Mashinini, who had subsequently received more than R2m from the Gauteng health authorities. She appealed the fact that instead of granting her about R800 000 for future medical procedures, the court, in a ground-breaking judgment, ordered that the Charlotte Maxeke Johannesburg Academic Hospital provided her with these services.

Gauteng High Court (Johannesburg) Judge LR Adams reasoned that this hospital was just as well geared to render the follow-up procedures necessary as was any private hospital. However, Mashinini – who initially instituted the damages claim following her botched operation – has now been granted her bid to take this issue on appeal to the SCA. She said she should be awarded the R879 314 which it is said it would cost her for further treatment, instead of being told to use the public health system. She maintained that the public healthcare services were unsuitable for her purposes.

The judge said as these were important issues, it was best for the SCA to take another look at the issue.

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