The South African public healthcare system is facing a severe fiscal crisis, with recent data from the Law Reform Commission showing that the state paid out nearly R2 billion in damages during the 2020/21 financial year alone, while contingent liabilities have surged to over R120 billion.
This escalating cycle of litigation is diverting critical funds intended for medicines, staff, and equipment toward settling malpractice claims, which in turn contributes to further declines in care quality and triggers even more claims. Many experts now question whether the system remains sustainable in its current form.
Dr. Robyn Conradie, a Cape Town-based legal practitioner who recently completed her doctorate at Stellenbosch University on these challenges, described the situation as multi-factorial. She pointed to a severe decline in service delivery caused by severely depleted resources in the public healthcare sector.
Patients have become more aware of their rights to access healthcare and are less willing to accept adverse outcomes, she said. This has been compounded by an increase in legal representation, enabled by the Contingency Fees Act, which allows victims of medical malpractice—often from disadvantaged backgrounds—to access legal services without upfront costs.
When asked about the breakdown of the R120 billion in contingent liabilities, Dr. Conradie clarified that these stem directly from claims instituted as a result of medical malpractice. She highlighted systemic negligence, including understaffing and poorly maintained equipment, which directly leads to malpractice incidents. Corruption and mismanagement were identified as underlying factors contributing to these avoidable circumstances.
Dr. Conradie emphasised that issues such as understaffing and inadequate infrastructure maintenance are entirely preventable and ultimately trace back to corruption and mismanagement.
On immediate steps the state could take, she called for a strong focus on improving service delivery. However, she noted that the necessary political and regulatory intervention is currently not forthcoming. This has prompted the legal fraternity to explore how the law itself could help address the crisis—precisely the focus of her doctoral research.
A key concern raised in the discussion is the current common law compensation regime, under which successful malpractice claims are paid in large lump sums, often ranging from R20 million to R30 million per claimant. Dr. Conradie argued that this lump-sum system places a major financial burden on the state and increases the risk that victims may ultimately not receive compensation if the fiscal crisis deepens further.
As an alternative, her research proposes the use of an “undertaking to pay” specifically for future medical expenses. Instead of paying a once-off lump sum, the state would commit to covering actual medical costs as and when they arise. This approach could redirect significant funds—potentially tens of millions per claim—back into the healthcare system in the interim, rather than having them held in trusts until needed.
Critics might argue that the Department of Health already struggles with administration, and managing lifelong payment undertakings for thousands of victims could create an expensive new bureaucratic burden. Dr. Conradie acknowledged the administrative concerns but pointed to the Road Accident Fund as a working example where undertakings to pay are managed reasonably well, often with assistance from legal representatives.
She noted that the administrative costs of such a system could be justified when compared to the massive financial burden of current lump-sum payouts. While bureaucratic hurdles exist, evidence suggests the model is feasible and worth serious consideration.
Dr. Conradie expressed regret over the slow pace of political and regulatory intervention despite the R120 billion at stake. She highlighted that court-driven developments in common law have been moving too slowly to provide timely relief. A promising State Liability Amendment Bill, aimed at introducing periodic payments for public healthcare claims above R1 million, unfortunately lapsed before it could progress further.
She concluded with an urgent call for the state and legislature to address the issue seriously and implement solutions before the crisis becomes unmanageable.
The discussion underscores growing concern that without swift action, South Africa’s public healthcare system risks collapse under the weight of unsustainable litigation and compensation costs.