About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2022
>>
[2022] ZAECBHC 15
|
|
Nkamela on behalf of Okuhle Nkamela v Member of the Executive Council for Health: Eastern Cape Province (308/2018) [2022] ZAECBHC 15 (31 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
CASE
NO. 308/2018
In
the matter between:
NOMKHITHA
NKAMELA
Plaintiff
on
behalf of OKUHLE NKAMELA
and
MEMBER
OF THE EXECUTIVE COUNCIL FOR HEALTH:
EASTERN
CAPE PROVINCE
Defendant
JUDGMENT
LAING
J
[1]
This is an application for leave to appeal
against the judgment handed down by the court on 6 August 2021. The
parties will be referred
to as they appear in the main judgment.
Legal
framework
[2]
In
terms of
section 17(1)(a)
of the
Superior Courts Act 10 of 2013
,
leave to appeal may only be given where,
inter
alia
,
the court is of the opinion that the appeal would have a reasonable
prospect of success. It is generally recognised that a higher
threshold has been established than the test that previously existed
under the repealed Supreme Court Act 59 of 1959. See
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen
(unreported, LCC case no. LCC 14R/2014, 3 November 2014), which was
cited with approval in
The
Acting National Director of Public Prosecution v Democratic Alliance
(unreported, GP case no. 19577/09, 24 June 2016).
[1]
[3]
The focus of the court must be on whether
the appeal
would
have a reasonable prospect of success. There must be a sound,
rational basis for any conclusion to that effect. See
Four
Wheel Drive Accessory Distributors CC v Rattan NO
2019 (3) SA 451
(SCA), at 463F.
[4]
The grounds of appeal are addressed below.
Absence
of records
[5]
The defendant argues that the court erred
in finding that the absence of records demonstrated a lack of
monitoring on the defendant’s
part. The difficulty with this,
however, is that the defendant placed no evidence before the court to
refute the plaintiff’s
allegations to that effect or to account
for the dearth of written evidence in support of any assertion that
the defendant’s
medical staff did in fact provide proper care
to the plaintiff.
[6]
It is common knowledge that staff are
required, as a matter of good professional practice, to maintain
records pertaining to the
condition of a patient, the nature of care
provided, the type and quantity of medication administered, and so
forth. For an institution
such as a hospital, with a limited number
of staff operating on a rotational basis to deal with the needs of a
multitude of patients,
properly maintained records allow the
provision of medical services at the required standard.
[7]
The absence of records was never explained.
The plaintiff’s account of her stay in hospital without
adequate monitoring was
never successfully challenged.
Maternity
guidelines
[8]
The next ground of appeal was to the effect
that another court may find that this court erred in holding that a
departure from the
maternity guidelines amounted to negligence.
Closely related to this is the argument that the court erred in
elevating the guidelines
to a peremptory instrument.
[9]
The
guidelines are intended for implementation in every South African
health care facility and for training purposes at medical
and nursing
schools throughout the country. They purport to contain the basic
minimum that must be known by all staff at a hospital
such as that in
the present matter.
[2]
Consequently, this court held that they constitute the accepted
national benchmark against which to measure the standard of maternity
care provided.
[10]
The
Supreme Court of Appeal has confirmed that the test to be used in
circumstances such as these is whether or not the medical
practitioner exercised reasonable skill and care; in other words,
whether or not his or her conduct fell below the standard of
a
reasonably competent practitioner in his or her field. See
Castell
v De Greef
1993 (3) SA 501
(C), at 512 A-B, which was cited with approval in
Buthelezi
v Ndaba
2013 (5) 437 (SCA), at para 15.
[3]
It is submitted that the maternity guidelines set the standard to be
attained. The departure from same amounts to negligence.
[11]
It is, with respect, not correct for the
defendant to assert that the guidelines were elevated to a peremptory
instrument. They
are what they are: guidelines for the provision of
maternity care. However, such guidelines establish a benchmark for
the services
to be provided at a hospital such as the one to which
the plaintiff was admitted.
Plaintiff’s
personal claim
[12]
The defendant goes on to contend that the
court erred in finding that the plaintiff proved her case with regard
to her personal
claim. In that regard, the defendant points out that
the plaintiff returned to Cape Town once the child, Kuhle, was eight
months
old, leaving her with her grandmother.
[13]
The above argument, however, does not take
into consideration the shock and trauma that would have accompanied
the circumstances
during the plaintiff’s labour and Kuhle’s
birth. Moreover, it does not allow for the implications of the
plaintiff’s
having had to accept a child with cerebral palsy
and having had to attend to her needs for at least the first eight
months of her
life. There was evidence to the effect that the
plaintiff continued to regard herself as the child’s mother;
she never entirely
abandoned her to the care of anyone else.
Prescription
[14]
A further ground is that another court may
find that the plaintiff’s personal claim had become prescribed.
This was never
pleaded, however, and was never proved by the
defendant during trial proceedings.
[15]
To the extent that the defendant pleaded
that the plaintiff had failed to comply with section 3(2) of Act 40
of 2002, this aspect
was addressed conclusively within the context of
the plaintiff’s interlocutory application for condonation.
Discharge
from hospital
[16]
The defendant also argues that the court
ought to have found that the defendant had established a basis upon
which to infer that
the plaintiff was discharged on 18 March 2015.
This was not supported by the evidence. The testimony of the
plaintiff, the nurses,
and the experts, clearly indicated that there
had been problems at the time of Kuhle’s birth and that her
early discharge
had simply not been feasible.
Consideration
of evidence
[17]
It was asserted that the court did not
consider the evidence on an even-handed basis, such that the
defendant did not receive a
fair trial. Counsel for the defendant did
not strenuously pursue this point during argument.
[18]
Allied to the above, however, is the ground
to the effect that another court may find that the issues were not
determined with regard
to all the evidence; the defendant mentions
several examples.
[19]
In this regard, it cannot be denied that
the state of the records was unsatisfactory. This was a factor that
had to be managed carefully
by both the plaintiff and the defendant
in the conduct of their respective cases.
[20]
Nevertheless,
it was the undisputed testimony of Prof Savvas Andronikou that the
MRI scan for the child displayed evidence of a
hypoxic ischaemic
injury. The pattern corresponded with that for a term foetus or
new-born. Similarly, both Dr Yatish Kara and
Prof Peter Cooper, in
their joint report, were in agreement that it was probable that a
peripartum
[4]
hypoxic ischaemic
injury was the cause of Kuhle’s cerebral palsy.
[21]
It
is necessary to pause and observe that a joint report such as the one
prepared by Dr Kara and Prof Cooper is to be understood
as limiting
the matters with regard to which evidence is needed. In the absence
of repudiation, a litigant is entitled to run his
or her case on the
basis that the matters agreed upon by the experts are not in issue.
See
Bee
v Road Accident Fund
2018 (4) SA 366
(SCA), at [66].
[5]
[22]
The findings made by Prof Andronikou, the
joint report of Dr Kara and Prof Cooper, the professional opinion of
the former with regard
to when the injury occurred, the concessions
made by Dr Peter Koll and Dr Freda Janse van Rensburg, the evidence
of the nurses,
and ultimately the records themselves (as poor as they
were), demonstrated convincingly the evidence of encephalopathy at
Kuhle’s
birth.
[23]
Consequently,
the examples mentioned by the defendant are neither persuasive nor
entirely relevant.
[6]
They are at odds with the conclusive nature of the evidence described
above.
[24]
The defendant also takes issue with the
evidence of the plaintiff, contending that the court failed to
address the numerous instances
where it was allegedly shown that she
had lied. Whereas there may have been shortcomings in some of the
plaintiff’s testimony,
these were not material; in any event,
she explained that she had not mentioned certain facts because she
had never been asked
to do by the expert or practitioner in question.
Costs
of interlocutory application and Ms Bianca Grey
[25]
A further ground indicated by the defendant
pertains to the costs order in relation to the evidence given by Prof
Andronikou. The
defendant argues that the parties had agreed that a
joint report could be repudiated within an agreed framework, which is
what
happened; the court erred in holding that a new or supplementary
report was required; and the plaintiff had sought an indulgence
with
regard to the leading of evidence other than in the ordinary course.
[26]
In
Bee
,
the Supreme Court of Appeal disapproved of the repudiation of a joint
report for tactical reasons. The aim of litigation should
be just
adjudication, achieved as efficiently and as inexpensively as
reasonably possible.
[7]
[27]
Here, the defendant’s decision to
repudiate the joint report at the eleventh hour was entirely
unwarranted. Prof Andronikou
resides in the United States. The
decision constrained the plaintiff to make application for the
leading of Prof Andronikou’s
evidence remotely by electronic
transmission, which the defendant opposed. In the absence of clear
reasons for why the defendant
chose to repudiate as she did and in
light of the clear benefits available to both parties in dispensing
with the need for Prof
Andronikou to attend trial in person, the
defendant’s argument about costs is puzzling. At the least, the
principle that
costs follow the result of the application should have
been applied, which is what happened.
[28]
It is also asserted that the court erred in
ordering the defendant to pay the costs of Ms Grey, who was never
called as a witness.
The court, however, made no order to that
effect.
Nature
of findings
[29]
A further ground of appeal was that another
court may find that this court made findings that were not supported
by the evidence.
The defendant mentions several examples. In that
regard, this court stands by the analysis of the evidence,
application of the
law, and the making of the determinations apparent
in the main judgment.
[30]
The defendant argues further that the court
attached undue value to the evidence of Dr Kara, who allegedly
testified outside the
area of his expertise, and understated the
value of Dr van Rensburg’s evidence in her capacity as a
paediatric neurologist.
[31]
It was agreed by both Dr Kara and Prof
Cooper that the probable cause of Kuhle’s cerebral palsy was a
peripartum hypoxic ischaemic
injury. Dr van Rensburg deferred to
their views in that regard, which were consistent with Prof
Andronikou’s undisputed findings.
Furthermore, Dr van Rensburg
did not present evidence to the effect that the injury was not
intrapartum and merely considered the
scenario of an injury caused by
late placental insufficiency as a possibility, nothing more.
Importantly, she conceded that there
was a high probability that the
injury happened during the labour process.
[32]
With regard to the defendant’s
contention that the court erred in finding that the latent phase of
labour was prolonged, the
analysis of the evidence, application of
the law, and the making of the determinations apparent in the main
judgment, are reaffirmed.
Relief
and order to be made
[33]
In the circumstances, the court is not of
the opinion that the appeal would have a reasonable prospect of
success. The relief sought
by the defendant cannot be granted.
[34]
Accordingly, the following order is made:
(a)
the application for leave to appeal is
dismissed; and
(b)
the defendant is liable for the costs of
the application.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
Counsel
for the applicant:
Adv Mooki SC, instructed by
Smith Tabata
Attorneys, King Williams
Town.
Counsel
for the respondent:
Adv Wessels SC, instructed by Nonxuba
Inc., East London.
Date
of hearing:
14 March 2022
Date
of delivery of judgment:
31 May 2022
[1]
See,
too,
Notshokovu
v S
(unreported, SCA case no. 157/15, 7 September 2016).
[2]
See
the extract from the guidelines, quoted at [92] of the main
judgment.
[3]
The test was also confirmed in
Goliath
v Member of the Executive Council for Health in the Province of the
Eastern Cape
[2015]
JOL 32577
(SCA), at [8].
[4]
The
term is understood to mean the period of time before, during or
after labour.
[5]
See,
too,
M
on behalf of L, a child v Member of the Executive Council for
Health: Gauteng Provincial Government
[2021] JOL 51389
(GJ), at [20].
[6]
By way of example, t
he
defendant has challenged the record pertaining to the treatment of
Kuhle with phenobarbitone, usually administered when a patient
suffers convulsions. This was agreed upon by Dr Kara and Prof
Cooper, however, and must be accepted as a fact.
[7]
At
[67].