About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 43
|
|
Njeje and Another v Member of the Executive Council for Health And Social Development Province of Gauteng . (19101/2011) [2015] ZAGPJHC 43 (3 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE NO: 19101/2011
DATE: 03 MARCH 2015
In the matter between
BEAUTY BONGIWE
NJEJE
.................................................................................
FIRST
PLAINTIFF
ELIAS
SHIKHUNDLA
......................................................................................
SECOND
PLAINTIFF
And
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH AND SOCIAL DEVELOPMENT
PROVINCE OF
GAUTENG
............................................................................................
DEFENDANT
Negligence - claim against defendant
for damages in respect of emotional stress and funeral costs -
applicants parents of 12 year
old girl - girl admitted to children’s
ward in hospital - diagnosis of suspected meningitis - during early
morning girl must
have climbed out of bed walked down the corridor
into kitchen and through window jumped down a shaft to her death
below - grounds
of negligence relied on by plaintiffs – failure
to prove - absolution from the instance - held: no evidence on which
a court
could or might find for the plaintiffs - plaintiffs
non-suited
J U D G M E N T
VAN OOSTEN J:
[1] This is a tragic case. The
plaintiffs’ 12 year old daughter, Samkeliswe Shikhundla, (the
deceased) died in unusual, puzzling
circumstances after having been
admitted to the Edenvale Hospital for treatment of what was suspected
to be meningitis. The plaintiffs’
claim against the defendant,
in its representative capacity, is based on negligence. At the
inception of the trial and by agreement
between the parties I ordered
a separation of the merits and the quantum of damages and the trial
proceeded on the merits only.
Only the first plaintiff, Ms Njeje,
testified and no further witnesses were called to testify on the
plaintiffs’ behalf.
At the close of the plaintiffs’ case
the defendant applied for absolution from the instance which is the
application I am
now required to determine.
[2] The evidence of the first
plaintiff, in summary, was the following: on Friday 19 June 2009, the
deceased became ill and she,
accompanied by her son, took the
deceased to the Edenvale Hospital. Having arrived there the deceased
was examined by a medical
doctor on duty and provisionally diagnosed
with upper respiratory tract infection. She was referred to a nurse
for the taking of
blood specimens and the administering of a drip.
They were taken upstairs to a ward and there the deceased was again
superficially
examined and the examining nurse told her that she
suspected the deceased was suffering from meningitis. The deceased
was admitted
in a corner cubicle with a single bed in the children’s
ward which is an infectious ward. Ms Njeje and her son eventually
left. Later that evening she received a telephone call from the
hospital accusing her that she was causing a rift between the doctor
and the nurse at the hospital concerning the suspected meningitis.
The next morning she returned to the hospital and after a long
wait
was informed that the deceased had died in an accident having fallen
out of a window. It is common cause that the autopsy
report records
the cause of death of the deceased as ‘Fractured skull.
Dislocation cervical spine’. That concluded
the evidence.
[3] On this scanty evidence it is
seemingly impossible to make any findings. An examination of the
plaintiffs’ particulars
of claim reveals the following.
Reliance is placed on an alleged legal duty of the nursing staff at
the hospital ‘to render
such reasonable medical treatment and
nursing services as were required by the minor and the plaintiffs in
the circumstances’
and that ‘in providing such medical
care or medical treatment and the rendering of such nursing services
the defendant was
obliged to provide same with the reasonable
requisite degree of skill and expertise, particularly having regard
to the fact that
the minor was a child given in the care of the staff
of the Edenvale Hospital’. The grounds of negligence relied on
are that
the defendant failed to ensure that adequate numbers of
nursing staff were employed or that they were adequately trained and
possessed
of the ‘requisite skill and expertise to care for
patients’ or that adequate resources were available ‘to
enable
provision of appropriate and adequate care by nursing staff’.
No evidence concerning any of these allegations was presented
to this
court. It is then further pleaded that the nursing staff failed to
properly ‘supervise’ the deceased whilst
in their care or
to timeously ‘observe and supervise the movements’ of the
deceased or to provide proper and adequate
protection to the deceased
against ‘the possibility or risk of physical bodily harm’.
Again, not a shred of evidence
concerning any of these allegations
exists.
[4] In his opening address counsel for
the plaintiffs, with reference to a floor plan of ward 6 where the
deceased had been admitted,
ventured into a reconstruction of the
movements of the deceased for her to have arrived in the duty kitchen
where she must have
climbed through a window and fallen down an open
shaft to her death. The hypothesis was simply left hanging in the
air: no evidence
was presented in an attempt to prove or in any way
explain, the occurrence that had led to the deceased’s death.
Ms Njeje,
at the critical time, was not present and she
understandably was unable to offer any assistance in this regard.
[5] The well-entrenched test at this
stage of the proceedings is whether this court, applying its mind
reasonably, on the evidence
before it, could or might find for the
plaintiffs (Claude Neon Lights (SA) Ltd v Daniel
1976 (4) SA 404
(A)). On the evidence before me I am requested to embark upon
speculation and conjecture in support of the wide ranging inferences
advanced in argument, merely because of the tragic circumstances of
his case. I am unable to do so. No case has been made out against
the
defendant and it follows that, in my discretion, the defendant must
be non-suited (Ardecor (Pty) Ltd v Quality Caterers (Pty)
Ltd
1978
(3) SA 1073
(C) 1076F).
[6] In the result the following order
is made:
1. The defendant is absolved from the
instance.
2. The plaintiffs are ordered to pay
the costs of the action.
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL FOR PLAINTIFFS ADV H KRIEL
PLAINTIFFS’ ATTORNEYS EDELING
VAN NIEKERK INC
COUNSEL FOR DEFENDANT ADV B
SHABALALA
DEFENDANT’S ATTORNEYS THE
STATE ATTORNEY
DATE OF HEARING 2 MARCH 2015
DATE OF JUDGMENT 3 MARCH 2015