CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 270/21
In the matter between:
TM obo MM Applicant
and
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH
AND SOCIAL DEVELOPMENT, GAUTENG Respondent
Neutral citation: TM obo MM v Member of the Executive Council for Health and
Social Development, Gauteng [2022] ZACC 18
Coram: Madlanga J , Kollapen J, Majiedt J, Mathopo J, Mhlantla J,
Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ.
Judgment: Mathopo J (unanimous)
Heard on: 15 February 2022
Decided on: 30 May 2022
Summary: Jurisdiction — constitutional issue — interests of justice
Leave to appeal — not in the interests of justice to grant
leave — leave to appeal is refused — no order as to costs
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Local Division, Johannesburg), the following order is made:
1. Leave to appeal is refused.
JUDGMENT
MATHOPO J (Madlanga J, Kollapen J, Majiedt J, Mhlantla J, Mlambo AJ, Theron J,
Tshiqi J and Unterhalter AJ concurring)
Introduction
This application concerns a claim instituted by Ms TM in her representative
capacity as the mother and natural guardian of her minor child, MM, who was diagnosed
with cerebral palsy as a result of a hypoxic ischemic injury during birth. The i ssues
surface in an application for leave to appeal by Ms TM against the judgment and order
of the majority of the Supreme Court of Appeal. That Court set aside the decision of
the High Court of South Africa, Gauteng Local Division, Johannesburg which fou nd
the respondent, the Member of the Executive Council for Health and Social
Development, Gauteng , liable for damages arising from injuries sustained from the
alleged negligent conduct of the medical staff at Charlotte Maxeke Academic Hospital.
Background
On 8 July 2010, at 33 to 35 weeks of pregnancy, Ms TM made her first visit to
an antenatal clinic and was informed that there were no complications with her
pregnancy. On 30 July, she returned to the clinic and after her blood pressure and the
heart-rate of her unborn child were checked, she was told that her pregnancy was
progressing normally. Thereafter, on 20 August, she went for a follow-up, but the clinic
was closed due to the nurses being on strike. Ms TM returned a week later, on
MATHOPO J
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27 August, but t he strike was still in progress. That afternoon she experienced lower
abdominal pains and went back to the clinic, but it was still closed. When she made
another attempt the next morning, she found that the strike was still ongoing.1
On 28 August 2010, in the early active stage of labour, Ms TM took a taxi to the
maternity ward at the hospital and arrived at 12h55. On admission, she was found to
be four centimetres dilated and her membranes ruptured shortly thereafter. The nursing
staff then conducted regular foetal monitoring by way of cardiotocography. Nothing
abnormal was detected and her labour continued normally.
Earlier that day, at 03h35, another patient, Ms CM, who was pregnant with twins
had already been admitted. She required a caesarean section and was scheduled for the
procedure at 05h00. However, it was cancelled because the maternity unit had run out
of sterilised theatre gowns. Due to this shortage, the theatre was unused from 04h34 to
06h05 (first down time). At 06h00, this issue was resolved and another patient, whose
foetus was in distress, had her caesarean section.
From 07h05 to 09h30 , the theatre was again unused (second down time).
Between 09h30 and 11h40, two other patients were taken to the theatre for caesarean
sections due to foetal distress. At 09h50, Ms G was admitted to the ward and since she
had previously undergone two caesarean sections, a natural birth posed a risk of uterine
rupture. From 11h40 to 14h15, the theatre was unused (third down time).
Ms DM was also admitted . At 13h45 her baby went into foetal distress and a
decision to perform a caesarean section was taken. Ms CM eventually went in for her
caesarean section nine hours after it was originally scheduled and t he procedure was
completed at 15h20. At 15h30, Ms DM was taken to theatre for her caesarean section.
1 Tendai v MEC Health and Social Development, Gauteng Provincial Government 2018 JDR 1849 (GJ)
(High Court judgment) at paras 5-6.
MATHOPO J
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At 15h45 an abnormal cardiotocography reading, which indicated foetal distress,
was detected on Ms TM and , at 16h00, a decision was taken that an emergency
caesarean section be performed. However, Ms DM was still undergoing a caesarean
section from 15h50 to 16h25, and thereafter Ms G occupied the theatre between 16h45
and 17h55. As a result, Ms TM could only be attended to at 18h15 and her caesarean
section was finalised at 19h20. MM was born at 18h43 , approximately 155 minutes
after the initial decision to perform Ms TM’s caesarean section was taken.
MM suffered a hypoxic ischemic injury due to perinatal asphyxia which resulted
in a mixed -type cerebral palsy, that is, permanent brain damage. On
28 November 2013, a magnetic resonance imaging (MRI) scan performed on MM when
he was three years old reflected that this had been caused by an acute profound insult.
At birth, MM was found to be severely acidotic. Professor Johan Smith, a
specialist neonatologist, testified on behalf of Ms TM that the process leading to
acidosis occurs when the tissues are deprived of oxygen . This leads to the c ells
generating excess acid which, if allowed to accumulate, leads to a drop in the pH of the
blood of the foetus . Thi s, in turn, can lead to an isch emic injury. Essentially,
Professor Smith testified that the cause of the brain injury was the lack of ox ygen to
MM’s brain.2 Professor Smith further testified that MM suffered a hypoxic ischemic
injury during the period 17h43 to 18h43.
Dr Linda Ruth Murray, a specialist obstetrician and gynaecologist, testified on
behalf of Ms TM that during birth a foetus will move along the birth canal by virtue of
the contractions of the muscles of the maternal uterine wall. These contractions occur
periodically through labour and with greater frequency and intensity as the baby is about
to be born. During this process, the placenta and umbilical cord are compressed and
the oxygen flow to the foetus is temporarily occluded. As the contraction s end, the
2 Id at paras 11-2.
MATHOPO J
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compression on the placenta and umbilical cord is relieved, and the oxygen flows freely
to the baby.3
Dr Murray further testified that at the time that the foetus is constricted by the
contractions of the uterine muscles, the occlusions to the cord and placenta affect free
flow of oxygen to the foetus. This may exhaust the foetus’ reserves and ability to cope,
and it will eventually succumb to hypoxia and suffer brain injury. Dr Murray compared
this to a person in a tub of water who is kept under water for a time and allowed up to
catch their breath periodically. This process can be performed for a relatively long
period, but at a certain point, the person’s energy reserves are depleted, and that person
will not be able to catch their breath.4
Professor Keith Bolton, a specialist paediatrician, testified on behalf of the
respondent that the injury could have been caused by the fact that the distress of the
foetus was not alleviated before the unborn child succumbed to the injury. However,
he was of the opinion that there could have been other possible reasons which rendered
MM compromised and thus unable to cope with the rigour of the birth process in the
first place. Professor Bolton posited that the cause of the cerebral palsy may have been
an intraamniotic infection known as chorioamnionitis, a bacterial infection with
attendant inflammation of the foetal membranes. This condition is associated with
prolonged labour. The fact that antibiotics were prescribed to the foetus and the mother
and that Ms TM’s wound became infected some days later after the birth were said to
support this proposition. It was , however, conceded that these aspects were
inconclusive as to the cause of the injury.5
3 Id at para 12.
4 Id at para 13.
5 Id at para 15.
MATHOPO J
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Litigation history
High Court
There were two issues , according to the pleadings , which the High Court was
called upon to decide. The first was whether the respondent failed to provide adequate
resources (facilities and personnel). And the second was whether the hospital rendered
substandard care to Ms TM. The respondent admitted that it owed Ms TM and MM a
duty of care, subject to the availability of resources. In her plea, the respondent denied
liability for the claim and further averred that the hospital and its staff members
performed the caesarean section as soon as they reasonably could.
In the pre-trial minute, the respondent made the following admissions:
(a) She undertook to render medical care and treatment to Ms TM and her
unborn child on her admission to the hospital.
(b) By virtue of the provisions in the Constitution (sections 9, 10, 11 and 27),
she owed Ms TM a duty of care to ensure the rendering of medical care,
treatment and advi ce to her with skill, care and diligence as could
reasonably be expected of medical practitioners and nursing staff in
similar circumstances ; thus placing an obligation on the respondent to
ensure that proper, sufficient and reasonable health care services are
provided to members of the public (particularly those who cannot make
use of services in a private hospital).
(c) The hospital staff undertook to render medical examinations, care,
treatment and advice to Ms TM and to monitor her labour as was
reasonably required in the circumstances.
After considering the evidence, the High Court held that there was a direct link
between the failure to treat the patient s efficiently throughout the day in question and
the injury that occurred.6 It reasoned that the failure by the hospital staff to prevent the
6 Id at para 42.
MATHOPO J
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second and third down times when they knew that there were wo men who were in the
labour ward in need of caesarean sections amounted to negligence. 7 Accordingly, the
Court held the respondent liable on the basis that the hospital had not managed its
resources adequately.8 It further emphasised that this case was ab out the management
of available resources and in so doing it declined to make a finding on whether the
allocation of resources was actionable.9
It bears noting that the finding in relation to negligence was made despite the
fact that neither the non -utilisation of the theatre earlier in the day nor the alleged
mismanagement of resources was pleaded. Aggrieved by the outcome, the respondent
sought and was granted leave by the High Court to appeal to the Supreme Court of
Appeal.
Supreme Court of Appeal
The Supreme Court of Appeal was split. Both the majority and minority
judgments accepted that the respondent, acting through the medical staff, owed Ms TM
a legal duty to exercise reasonable care, skill and diligence in her treatment.10
The majority judgment assumed wrongfulness in favour of Ms TM. It observed
that the legal duty alleged to have been owed to MM by the hospital was pleaded in
broad and general terms and that the respondent and its medical staff were charged with
the management of the maternit y unit. A s a result , the majority found that there is a
legal duty in delict “to manage the [maternity] unit’s resources with reasonable
efficiency” and this duty could “have been breached by acts or omissions preceding ”
7 Id at para 41.
8 Id at para 43.
9 Id at paras 31 and 33.
10 The Member of the Executive Council for Health & Social Development of the Gauteng Provincial Government
v TM [2021] ZASCA 110; 2021 JDR 1819 (SCA) (Supreme Court of Appeal judgment) at paras 53 and 56.
MATHOPO J
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Ms TM’s admission at 12h55 on 28 August 2010.11 In coming to this conclusion, t he
majority judgment focused its attention on the following:
(a) The failure by the hospital to have a second functioning maternity theatre
so that when Ms G and Ms TM needed caesarean sections at 16h00, they
could both be promptly attended to.
(b) The failure by the hospital staff to use the operational theatre earlier
during the day as the need arose so that it would be available for Ms TM’s
procedure.
(c) The triage decision to prioritise Ms G’s caesarean section over Ms TM’s.
(d) The failure by the hospital staff to take interim measures to improve the
foetus’ oxygenation while Ms TM waited for her procedure.
(e) The failure to refer Ms TM to another hospital.
On the first issue, the majority found that although there was space for a second
maternity theatre, the second theatre was not equipped and had no staff. 12 It noted the
fact that this issue was not pleaded by Ms TM and held that if it was, it would have had
to be supported by expert evidence as well as the hospital’s detailed financial records.13
As a result , having considered the limited evidence before it, the majority judgment
could not find that the respondent was negligent in failing to allocate capital to ensure
that the second maternity theatre was functional in 2010.14
On the down time issue, the majority found that since t his was also not pleaded
by Ms TM, it would be unfair to penalise the respondent for failing to adduce evidence
in respect of this particular issue. According to the majority, if Ms TM wanted to rely
on this ground she should have specifically called for that evidence. The majority
further disagreed with t he High Court and held that Ms TM failed to discharge th is
11 Id at para 56.
12 Id at para 69.
13 Id at para 70.
14 Id at paras 73 and 77.
MATHOPO J
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onus.15 Concerning the triage decision, the majority noted that it was also not pleaded
but that it was instead developed during the cross-examination of Dr Murray . It then
found that the High Court was correct to reject the submission that Ms TM’s caesarean
section should have been prioritised over Ms G’s.16
The majority then considered the failure by the hospital staff to take interim
measures to improve the foetus’ oxygenation which included giving Ms TM an oxygen
mask and getting her to lie on her left side. It found that since Ms TM’s medical record
did not i ndicate whether Atosiban was administered, this alleged omission was
questionable – especially considering that it could do no harm – but th ere was not
enough evidence to indicate that it would h ave had a material effect on Ms TM’s
situation.17 Regarding the use of an oxygen mask, the majority considered Dr Murray’s
testimony that it was part of standard procedure to give the mother oxygen but that it
did very little to help the foetus, and it was generally not used much. 18 In contrast,
Dr Hlengani Lawrence Chauke, an obstetrician and gynaecologist with expertise in
maternal and foetal medicine , who testified on behalf of the respondent , did not agree
with the use of an oxygen mask regardless of it being part of the Guidelines for
Maternity Care in South Africa (2007 Guidelines).19 Insofar as the issue of placing
Ms TM on her side, the majority found that although the experts agreed that this
measure would help the mother and not harm her, there was no evidence about the extent
of its usefulness and Ms TM was not pressed about her position since she testified eight
years after the fact.20
15 Id at paras 89-90.
16 Id at paras 93 and 96.
17 Id at para 101.
18 Id at para 102.
19 Id. See also Department of Health Guidelines for Maternity Care i n South Africa, Department of Health,
Republic of South Africa: A manual for clinics, community health centres and district hospitals 3 ed (Department
of Health, 2007).
20 Supreme Court of Appeal judgment above n 10 at para 103.
MATHOPO J
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In analysing the failure to refer Ms TM to another hospital, the majority stated
that no evidence was led to determine: which hospitals existed; the facilities they had;
the distance to those hospitals; and whether an ambulance service was available and the
estimated duration of the transfer.21 It concluded that the procedure could not have been
performed earlier than 16h15 , taking into account the nature of caesarean section
intervals.22 The majority emphasised the fact that this issue was also not pleaded.
Lastly, the majority criticised Professor Smith’s opinion about the final -hour
hypothesis on the basis that it was not supported by a “respectable body of expert
opinion”.23 It therefore reversed the judgment of the High Court and held that no
negligence and causation had been established by Ms TM.
The minority judgment , however, would have dismissed the appeal on the
grounds that Ms TM should have been prioritised over Ms G because her condition was
not dire compared to that of Ms TM. The minority found the hospital staff negligent
for its failure to promptly refer Ms TM to another fa cility. In support of its decision,
the minority relied on the 2007 Guidelines, which provided that a caesarean section
should be performed within one hour of the decision to operate and disagreed with the
majority about the procedure not being performed any sooner had Ms TM been referred
to another hospital.24
In this Court
Applicant’s submissions
Ms TM submits that this Court’s jurisdiction is engaged as the matter raises
constitutional issues of significance. She submits that she has the right to have access
to adequate and emergency health care services and also relies on MM’s section 28(2)
21 Id at para 106.
22 Id at para 110.
23 Id at para 126.
24 Id at paras 46-7.
MATHOPO J
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right.25 She also argues t hat the matter implicates the constitutional norms of
accountability, responsiveness and good governance , which require th is Court to
consider whether a public hospital can be held accountable for its failure to properly
manage its resources, before and after admission to a labour ward, and the standard of
care afforded to pregnant mothers.
Ms TM also contends that the matter raises an argu able point of law of general
public importance which requires this Court to determine whether the respondent bears
a legal duty, through the management of public maternity units, to ensure th e efficient
use of resources.
Ms TM submits that after prioritising Ms G’s caesarean section over hers,
knowing that her foetus was in distress and that they could not provide the necessary
caesarean section within the required time, the hospital staff ought to have referred her
to another hospital which might have been able to help. This, Ms TM argues, is because
the hospital is in a province with other public hospitals , such as Chris Hani
Baragwanath, which are located within a 30 kilometre radius, and it would have been
reasonable to do so in accordance with its Hospital’s Policy for Admission of Patients
from Casualty which provides that:
“If no space can be found for the patient within the hospital, the clinical executive on
call must be contacted so that arrangements can be made for the patient to be transferred
to another medical facility or, alternatively, to ensure that additional nursing staff are
acquired to provide the necessary nursing care, thus enabling the patient to remain at
this hospital.”26
Thus, reasonable hospital staff would have taken steps to ascertain whether MM would
have been able to be delivered sooner elsewhere.
25 Section 28(2) of the Constitution provides that “[a] child’s best interests are of paramount importance in every
matter concerning the child”.
26 Supreme Court of Appeal judgment above n 10 at para 43.
MATHOPO J
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Ms TM further submits that, from the time the decision to perform a caesarean
section on her was taken to the time the procedure was finally carried out, the staff failed
to take appropriate interim measures to mitigate the risks associated with foetal distress.
In particular, they failed to administer tocolytic medication, to provide an oxygen mask
and to get her to lie on her side.
Ms TM contends that the majority of the Supreme Court of Appeal erred when
it found that she did not discharge the burden of proof in respect of the down times.
This is so because, as the minority found, the pleadings were clear and concise and were
supported by the pre -trial minute and the submissions. Once the down times were
established, the respondent had an obligation to demonstrate that the maternity theatre
could not be reasonably utilised. The failure to utilise the maternity theatre resulted in
the unacceptable delay in her operation and there was no way for her to know, or be
able to ascertain, how that happened. For that reason, she submits that the establishment
of the down times must have at least created an evidentiary burden on the respondent to
show they happened in reasonable circumstances.
Ms TM contends further that in order to establish factual causation, a claimant
must prove a causal link between the defendant’s action and the omission, on the one
hand, and the harm suffered by the plaintiff, on the other. To determine this, continues
the submission, the courts apply a “but for” test which does not require the plaintiff to
satisfy a court that the harm would certainly not have occurred in the absence of the
negligent conduct. The plaintiff is only required “to establish that the wrongful conduct
was probably a cause of the loss”.27
Ms TM also argues that had the hospital used its resources efficiently and
managed the theatres properly, Ms CM’s caesarean section would have taken place from
07h05 to 08h10 or 11h40 to 12h45 and Ms G’s procedure would have taken place from
11h40 to 12h50 or 12h55 to 14h04. Ms DM’s caesarean section would have taken place
27 Minister of Safety and Security v Van Duivenboden [2002] ZASCA 79; 2002 (6) SA 431 (SCA) at para 25.
MATHOPO J
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around 14h15 to 15h15 and by the time the decision was taken at 16h00 to operate on
Ms TM, the theatre would have been available. Importantly, this would have prevented
the brain injury to MM.
Ms TM submits that the hospital’s failure to properly manage its resources is
indicative of a systemic failure and the respondent should not escape accountability
even where the cause of the harm is impossible to pin down.
Lastly, Ms TM argues that the majority of the Supreme Court of Appeal was
incorrect to disregard Professor Smith’s final -hour hypothesis since it had no basis to
assume that the injury to MM occurred within 30 minutes after foetal distress as this
assumption was not raised or proved in evidence. The evidence of Professor Smith,
which was not contradicted or challenged, ought to have been accepted. Therefore, the
application for leave to appeal should succeed with costs.
Respondent’s submissions
The respondent submits that this Court has no jurisdiction because the matter
does not raise a constitutional issue, nor does it raise an arguable point of law of general
public importance and , as a result , leave to appeal should not be granted. The
respondent also cont ends that the difficulty facing Ms TM is that all the issues she
contends engage the Court’s jurisdiction were not pleaded.
The respondent contends that the principles enunciated in Jiba28 are relevant here
since the application does not raise issues of la w but an evaluation of facts. This is
because what is before this Court is whether, on the facts, negligence and causation
have been established. This, the respondent submits, is not a question of law, nor is it
a question of general public importance.
28 General Council of the Bar of South Africa v Jiba [2019] ZACC 23; 2019 JDR 1194 (CC); 2019 (8) BCLR 919
(CC) (Jiba).
MATHOPO J
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The respondent submits that its alleged failure to ensure that public resources are
used efficiently does not constitute a breach of a legal duty and , accordingly, does not
establish a claim for delictual damages. This is because the measures relied on by
Ms TM do not anticipate, directly or by inference, an obligation to pay damages for loss
suffered as a result of the breach or non-compliance and a finding otherwise would have
a chilling effect. Importantly, a finding by this Court that would extend del ictual
liability in respect of medical negligence w ould not be in the public interest given the
financial state of health care facilities.
In relation to the majority judgment that it was reasonable for the hospital to have
the second theatre fully operat ional, the respondent submit s that this is an issue
entrusted by law to public officials and not to the courts, and no case has been made out
for challenging this decision. Regarding the down time issue, the respondent submits
that even if the use of the theatre was negligent, the High Court was wrong to find the
respondent liable for conduct that occurred before Ms TM was admitted to the facility
and that there was sub -optimal use even when th ere was no indication that she would
undergo a caesarean section. The respondent submits that even if there was poor
management of the resources, that did not translate to negligent conduct for purposes
of delictual liability. In this respect, the findings of the minority that there was no legal
duty on the hospital before Ms TM was admitted and that of the majority that she failed
to establish negligence should stand.
In respect of the triage decision, the respondent argues that the choices of
Dr Sibeko, who had her hands full as the senior doctor and registrar on duty on the day
in question, were not negligent and , because of her passing , there was no explanation
of the criteria she used for prioritising other patients over Ms TM and n o adverse
inference should be drawn against them. Importantly, the respondent contends that the
majority’s views , that even if a senior doctor had been consulted it had not been
established that the decision would have been different, should prevail.
MATHOPO J
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On the issue of inter im measures, the respondent submits that the majority
judgment was correct in its finding that the failure to administer Atosiban was
questionable, and there was no evidence that it s administration would have a material
effect. T he respondent also argues that the use of an oxygen mask provided little
assistance to the foetus and that getting the mother to lie on her side would have also
had no substantial effect.
On the question whether Ms TM should have been referred to another hospital,
the respondent submits that the policy relied on by the minority judgment did not apply
and since reference was made to material that was not before the High Court, the issue
should not have been considered. Lastly, on the issue of causation, the respondent
submits that where an MRI scan indicates the injury pattern as acute profound as
opposed to a partial prolonged one, the time to take precautionary measures is limited.
Thus, the majority’s findings in this regard should be upheld.
Issues
Jurisdiction and leave to appeal
There are two issues before this Court , namely whether a constitutional issue is
raised and, if so, whether it is in the interests of justice for this Court to grant leave to
appeal.
Section 167(3)(b) of the Constitution provides that:
“The Constitutional Court—
. . .
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal on
the grounds that the matter raises an arguable point of law of general
public importance which ought to be considered by that Court.”
MATHOPO J
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In order to determine whether this matter engages the jurisdiction of this Court,
we must consider its character.29 It is now settled that this Court will entertain matters
which involve—
“(a) the interpretation, application or upholding of the Constitution itself, including
issues concerning the status, powers or functions of an organ of state and disputes
between organs of state; (b) the development of (or the failure to develop) the common
law in accordance with the spirit, purport and objects of the Bill of Rights; (c) a statute
that conflicts with a requirement or restriction imposed by the Constitution; (d) the
interpretation of a statute in accordance with the spirit, purport and objects of the Bill
of Rights (or the failure to do so); (e) the erroneous interpretation or application of
legislation that has been enacted to give effect to a constitutional right or in compliance
with the Legislature’s constitutional responsibilities; or (f) executive or administrative
action that conflicts with a requirement or restriction imposed by the Constitution.”30
The character of this appeal turns on the divergent factual findings of the Supreme Court
of Appeal. This factual evaluation is not a precursor to reaching and deciding a
constitutional issue.
This Court in Gcaba said:
“Jurisdiction is determined on the basis of the pleadings . . . and not the substantive
merits. . . . . In the event of the C ourt’s jurisdiction be ing challenged at the outset
(in limine), the applicant’s pleadings are the determining factor. They contain the legal
basis of the claim under which the applicant has chosen to invoke the C ourt’s
competence.”31
This Court in Jiba then went a step further:
29 Competition Commission of South Africa v Mediclinic South ern Africa (Pty) Ltd [2021] ZACC 35; 2021 JDR
3149 (CC); 2022 (5) BCLR 532 (CC) at para 35.
30 Fraser v Absa Bank Ltd (National Director of Public Prosecutions a s Amicus Curiae) [2006] ZACC 24; 2007
(3) SA 484 (CC); 2007 (3) BCLR 219 (CC) at para 38.
31 Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) at
para 75.
MATHOPO J
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“The proper approach to this inquiry is to have recourse to the pleadings and interpret
them with a view to determine the nature of the claim advanced. It must be clear from
that claim that a constitutional issue or an arguable point of law of general public
importance is raised. For a constitutional issue to arise the claim advanced must require
the consideration and application of some constitutional rule or principle in the process
of deciding the matter.”32
And it recognised that “[t]he apparently incorrect determination of facts by the majority
in the Supreme Court of Appeal and the erroneous application of [a legal test] to those
facts also [does] not raise a constitutional issue”.33
Thus, this Court has and will refuse “to entertain appeals that seek to challenge
only factual findings or [the] incorrect application of the law by the lower courts”.34 A
challenge to a decision of the Supreme Court of Appeal on the sole basis that it is wrong
on the facts is not a constitutional matter.35
To fully appreciate and understand what this case is about, it is necessary to look
at the pleadings and make the following observation. The pleadings in this case are not
a model of clarity and not all of the issues on which the evidence was led were pleaded.
It must be clear from the pleadings that a constitutional issue or an arguable point of
law of general public importance is being raised.
As stated earlier, the High Court did not find for Ms TM on the two pleaded
issues. The respondent admitted that it owed her and MM a duty of care subject to the
availability of resources. The High Court held—
32 Jiba above n 28 at para 38.
33 Id at para 49.
34 Mankayi v Anglogold Ashanti Ltd [2011] ZACC 3; 2011 (3) SA 237 (CC); 2011 (5) BCLR 453 (CC) at para 12.
35 S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) at para 15.
MATHOPO J
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“that those responsible for managing and staffing the Maternity Unit were negligent in
not seeing to it that the facility was not managed in a manner which would have
rendered the theatre available to the plaintiff sooner than occurred. It is not in dispute
that the defendant is vicariously liable for their conduct.”36
This finding is at odds with the pleaded case. Neither the non-utilisation of the
theatre earlier in the day nor the allege d mismanagement of resources were pleaded as
grounds of negligence. In the Supreme Court of Appeal, both judgments rejected this
finding. Following a thorough analysis of the pleadings and e vidence, the majority
adopted a view that wrongfulness was not in dispute and assumed the issue in favour of
Ms TM. It concluded that she had failed to prove that the hospital had been negligent
and, in any event, failed to establish that such negligence would have been the factual
cause of MM’s injury. Once wrongfulness had been assumed in favour of Ms TM , it
was out of the way and no longer an issue that needed to be determined. The only issues
that remained were negligence and causation and both turne d on the evaluation of
factual evidence. That is still the position in this Court.
Before us, Ms TM asserts that the hospital failed to manage the limited resources
that were available in a manner that was reasonable. This issue essentially involves a
determination of facts. Ms TM also seeks to rely on this C ourt’s judgment in
Mashongwa37 where jurisdiction was established on the basis of wrongfulness. This
Court’s jurisdiction in that matter was engaged on the basis that “an enquiry into
wrongfulness ‘ focuses on the conduct and goes to whether the policy and legal
convictions of the community, constitutionally understood, regard it as acceptable ’”.38
It is clear that the issue of wrongfulness was an additional, separate basis for jurisdiction
in that matter. This Court also held that a matter that appears to be factual in nat ure
36 High Court judgment above n 1 at para 43.
37 Mashongwa v Passenger Rail Agency of South Africa [2015] ZACC 36; 2016 (3) SA 528 (CC); 2016 (2) BCLR
204 (CC).
38 Id at para 13.
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may still engage its jurisdiction where constitutional issues are “the pillars on which the
superstructure of [that] case rests”.39 That is not the position in this matter.
In the stated case before the High Court, there was an admission of wrongfulness
with the result that the debate before the Supreme Court of Appeal was solely on
negligence and causation , hence the Sup reme Court of Appeal correctly a ccepted, in
my view, that this was not a live issue. The appeal was not upheld on the basis of
wrongfulness; thus no constitutional issue was raised . The difficulty standing in the
way of Ms TM is that the finding of t he majority regarding wrongfulness was in her
favour and a party cannot appeal a judgment that is in its favour.
It is also my view that Ms TM has brought a narrow case before this Court and
does not argue that the Supreme Court of Appeal and the High Court held different
views about the content of the law . What remains is negligence and causation and the
question to be asked is whether a resolution of these issues engages the jurisdiction of
this Court. I do not think so . The disagreements between the majority and minority
together with the decision of the High Court stem from the evaluation of facts and not
the application of legal principles. The issue before the Supreme Court of Appeal was
whether, on the facts, Ms TM had established that the conduct of the hospital staff had
been negligent and, if so, whether such negligence was causally linked to MM being
afflicted with cerebral palsy. These are purely factual issues which cannot be frame d
as “constitutional matters”.
These are factual issues which Ms TM is inviting us to grapple with and we
should decline the invitation. Whether the hospital staff administered the tocolytic
medication is a factual issue. Whether the hospital staff reached out to other hospitals
about their availability and whether they could assist Ms TM, are also questions of fact.
Whether the injury to MM occurred in the first hour or much later, is unfortunately,
another question of fact. These questions do not require the interpretation of sections
39 Id.
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in the Bill of Rights. Importantly, it is accepted that there was a duty to treat Ms TM
reasonably.
Thus, the Court must refuse to entertain an appeal that seeks to challenge only
factual findings. I cannot overstate that a challenge to a decision of the Supreme Court
of Appeal on the basis only that it is wrong on the facts does not raise a constitutional
matter.
Ms TM further contends that the disagreement before us is not on the facts but
on the legal duty to manage the resources eff iciently. She states that in assessing the
legal duty involved, there must be a duty to make use of the facilities available. The
question of the legal duty, in my view, did not arise; it was agreed that there was a legal
duty on the respondent and that there was a duty to ensure proper treatment. As far as
the resources are concerned, courts should be slow to interfere with budgetary decisions
and the allocation of resources.40
This Court recently considered a similar matter in NVM.41 That matter concerned
the birth of a minor child who suffered severe brain injury which resulted in cerebral
palsy. The issue in that matter was whether the respondent was liable for damages.
The minority judgment held that the matter engaged this Court’s jurisdiction on
the basis that “ the factual disputes in this matter are both underpinned by the right of
access to healthcare, and are also ancillary to this constitutional issue”42 and found that
the applicant “adduced sufficient evidence to prove factual causation”.43 However, the
majority judgment found differently.
40 Soobramoney v Minister of Health, Kwazulu-Natal [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR
1696 (CC).
41 NVM obo VKM v Tembisa Hospital [2022] ZACC 11; 2022 JDR 0608 (CC) (NVM).
42 Id at para 49.
43 Id at para 87. The minority judgment at para 79 relied heavily on the fact that:
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The majority judgment held that “[a] peripheral constitutional issue or arguable
point of law is not a justification for embarking on a factual reappraisal of a case where
the reappraisal is not rendered reasonably necessary by the answer to the constitutional
issue or arguable point of law ”.44 It further held that it was uncontentious that the
respondent owed a duty to the applicant to “provide her with a reasonably competent
level of care, the breach of which would be wrongful” .45 Importantly, the majority, in
line with what this Court has held on numerous occasions, found that the application of
factual causation to the facts of a case does not raise a constitutional matter.46
It is clear from NVM that where a matter concerns an evaluation of facts or the
application of factual causation to the facts of a matter, it will not engage the jurisdiction
of this Court. Importantly, where the Court has to consider the existence of a legal duty,
wrongfulness in the context of causation, it may be a constitutional matter. The position
here is different. The legal duty was admitted by the respondent and neither the
High Court nor the Supreme Court of Appeal were called upon to examine sections 7(2)
“(a) The foetus was evidently in a healthy condition at 03h15, judging by the clear amniotic
fluid and the apparently normal foetal heart rate.
(b) During the critical period, between 03h15 and 04h45, there was no foetal heart rate
monitoring at all by the hospital staff. Monitoring should have occurred at half hourly
intervals, that is, at 03h45 and again at 04h15, as Ms NM was in active labour by that
time.
(c) V suffered an acute profound hypoxic injury intrapartum during the critical period.
(d) There were no emergency measures adopted by the nursing staff – none were recorded
in the hospital records and none were mentioned at the trial.
(e) Absent any foetal heart rate monitoring during the critical period, no warning signs of
a possible hypoxic event were capable of being detected. This was very properly
conceded at the trial to constitute a negligent omission and the attempt to with draw
that concession in this Court falls to be rejected.
(f) Had the monitoring been done, on the probabilities the hospital staff would have picked
up the warning signs (that probably would have been present) to indicate foetal distress
caused by hypoxia. In the face of these warning signs, the staff would on the
probabilities have taken urgent steps to “buy time” for V and to make arrangements
for an urgent caesarean section so as to prevent the injury to V’s brain. It is probable
that with the proper emergency measures, V’s brain injury would not have occurred.”
44 Id at para 88.
45 Id at para 91.
46 Id at paras 98-9.
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and 27 of the Constitution. What distinguishes this case from Mashongwa is that there
the claim was a constitutional matter because the very existence of the legal duty or
wrongfulness had to be determined. In th is matter, wrongfulness has been assumed in
favour of Ms TM and the only question which was answered in the negative was
whether the admitted breach of the required standard of care factually caused MM’s
injury.
I accept that questions relating to the existence and scope of the legal duty to
manage resources efficiently c ould be said to be connected to a constitutional issue.
However, t he difficulty facing Ms TM is that this issue was not pleaded. Another
difficulty facing her is the inconclusive and divergent expert evidence which is further
compounded by the insufficient evidence and inadequate pleading of the down times.
No effort was made to plead or lead evidence regarding the activities of the hospital
staff during these times.
As a second string to her bow, Ms TM contends that this matter implicates the
right to health care services. What Ms TM is attempting to do is dress her claim in
terms of sections 7(2) and 27 of the Constitution. This is, however, not enough to make
the case a constitutional matter. In Mbatha, this Court held that a factual issue does not
become a constitutional issue because it has been clothed in constitutional garb,47 and
this rings true in this matter too.
Conclusion
This matter does not raise a constitutional issue. Therefore, leave to appeal must
be refused.
47 Mbatha v University of Zululand [2013] ZACC 43; (2014) 35 ILJ 349 (CC); 2014 (2) BCLR 123 (CC) at
para 222.
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Costs
The respondent is the successful party and costs should follow the result ;
however, it is a state institution which draws its budget from the national fiscus. In
accordance with Biowatch,48 each party must then pay its own costs as there are no
exceptional circumstances that would warrant ordering Ms TM to pay the respondent’s
costs.
Order
The following order is made:
1. Leave to appeal is refused.
48 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC).
For the Applicant:
For the Respondent:
S Budlender SC and E Webber
instructed by Wim Krynauw Attorneys
V Soni SC and P Muthige instructed by
the State Attorney, Johannesburg