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[2022] ZANCHC 50
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Member of the Executive Council Department of Health, Northern Cape Province v Norman N.O obo Lott (2720/2017) [2022] ZANCHC 50 (2 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: 2720/2017
Date
Heard: 13 / 06 / 2022
Date
delivered: 02 / 09 / 2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Regional Magistrates: YES / NO
Circulate
to Magistrates: YES / NO
In
the matter between:-
THE
MEMBER OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF HEALTH, NORTHERN CAPE PROVINCE
APPLICANT
And
ADVOCATE
LINDY LOU NORMAN N.O. obo
MERCIA
LOTT obo GENOVIA ELZAAN SHIRLEY LOTT
RESPONDENT
IN
RE:-
ADVOCATE
LINDY LOU NORMAN N.O. obo MERCIA LOTT obo
PLAINTIFF
GENOVIA
ELZAAN SHIRLEY LOTT
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF HEALTH, NORTHERN CAPE PROVINCE
DEFENDANT
JUDGMENT:
APPLICATION
FOR LEAVE TO APPEAL
INTRODUCTION:-
[1]
For ease of reference, I will refer to the parties as they are cited
in the action
issued under case number 2720/2017.
[2]
The defendant seeks leave to appeal against the whole of my judgment
and order, handed
down on 22 September 2021, in terms of which I
dismissed the defendant’s application in terms of Uniform Rule
35(7).
AD
FACTUAL MATRIX:-
[3]
On 05 January 2021, the plaintiff filed a third report by Professor
Jan Lotz, her
expert radiologist, to which was attached an article
titled “
Difference between Basal Ganglia-Thalamic Pattern
and Acute Profound Hypoxic-Ischemic Brain Injury (“the Lotz
report”)
.
[4]
Subsequent to the filing of the Lotz report, the defendant filed a
notice in terms
of Uniform Rule 35(3) of the Uniform Rules for the
plaintiff to discover the literature and raw data referred to in the
article;
the literature referred to in a PowerPoint presentation of
Professor Lotz; the clinical and medico-legal reports of patient
Ndlovu
and Dr L Murray’s screening report. The plaintiff
refused compliance, stating that she either does not have the
documents
in her possession or that it is protected by copyright or
attorney and client privilege.
[5]
The defendant proceeded to file an application in terms of Rule 35(7)
to compel discovery.
[6]
After the application was issued, the plaintiff provided certain of
the requested
documents, save for the raw data that underscores the
Lotz article and the MRI scan of patient Ndlovu (“the Ndlovu
records”).
[7]
The raw data comprises the documents as set out in detail in my
judgment. I therefore
do not deem it necessary to specify them
herein. In essence, they consists of the recent human studies
pertaining to medico-legal
actions arising from the development of
neonatal encephalopathy-cerebral palsy in term gestations, including
the detail of 195
medico-legal actions and the copies of clinical and
/ or medical records and all medico-legal reports relevant to the
actions.
GROUNDS
FOR APPEAL:-
[8]
The grounds of appeal may be
distilled as follows, namely, that I erred:-
8.1
In finding that the raw data and
the Ndlovu records were not legally relevant to the grounds of
wrongfulness/negligence as pleaded
by the plaintiff and the witness
summaries of Professor Lotz and Professor Smith’s opinions, and
the reasons therefor, filed
in terms of Rule 39(9)(b);
8.2
In finding that Professors Lotz
and Smith were not parties to the action and as such the discovery by
them in terms of Rule 35 should
be disallowed;
8.3
In confusing the copyright law in
respect of the published article with the status of the raw data
contained therein, which raw
data had already been the subject of
medico-legal cases before courts of law; and
8.4
In finding that copyright has
been assigned to Thieme Medical Publishing in terms of
Section 22
of
the
Copyright Act 98 of 1978
, but failed to find that
Section 12
of
the
Copyright Act specifies
that the use of copyrighted material
during judicial proceedings does not infringe such copyright.
[9]
The plaintiff opposed the application for leave to appeal and
persisted that the raw
data and the Ndlovu records are:-
9.1
Not subject to
Rule 35(3)
;
1.5
cm; margin-bottom: 1cm; line-height: 150%">
9.2
Not in her possession or control, but in
the control of third parties who are not parties to the action or
that they are subject
to copyright held by Thieme Medical Publishers;
and
9.3
Subject to collateral evidence.
[10]
In addition to the listed grounds of appeal, Mr M Salie SC, on behalf
of the defendant, during
argument, vigorously contended that
compelling reasons exist why the application for leave to appeal
should be granted. The gist
of his argument is that Professors Lotz
and Smith are contending that a Basal Ganglia-Thalamic Pattern injury
(“BGT injury”)
may not be synonymous with an acute
hypoxic brain injury, and in reaching such an opinion, heavy reliance
is placed on the Lotz
article, which was based on the raw data and
the Ndlovu records. According to the defendant, Professor Lotz
drastically changed
his opinion in the Lotz report from the report he
originally provided in July 2018. In the July 2018 report, he
initially
stated that the MRI scan clearly shows an “
acute
hypoxic ischemic encephalopathy
” and in the Lotz report, he
now opines that the BGT injury may not be synonymous with an acute
hypoxic brain injury.
[11]
Mr Salie SC supported his argument by stating that the raw data and
the Ndlovu records are relevant
by virtue of the fact that the
plaintiff bears the onus of proving that the defendant’s
actions were wrongful and negligent
and that such wrongfulness and
negligence gave rise to the injuries sustained by the minor child.
He submitted that the defendant
is entitled to the raw data and
the Ndlovu records for the purposes of conducting their own
investigations; to possibly procure
their own experts to comment and
to prepare properly for the cross-examination of the expert
witnesses.
APPLICABLE
LAW:-
[12]
The test of what needs to be established in order to be granted the
necessary leave to appeal
is set out in section 17(1) of the Superior
Courts Act, Act 10 of 2013, the relevant provisions of which read as
follows:-
“
17(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting
judgments on the matter under consideration;
(b)
The decision sought on appeal does
not fall within the ambit of s 16(2)(a); and
…”
[13]
Mr Salie SC, with reference to the judgments in matters of
AN
v MEC for Health, Eastern Cape
[1]
and
The
MEC for Health, Eastern Cape v DL obo AL,
[2]
submitted that an ultimate judgment on the issue of liability,
premised on the Lotz article, will have a far-reaching impact on
the
jurisprudence
already laid down by the Supreme Court of Appeal.
[14]
The Supreme Court Appeal, in the matter of
Qoboshiyane
NO and others v Avusa Publishing Eastern Cape
(
Pty
)
Ltd
and others
[3]
when
dealing with section 17(a)(11) of the Superior Courts Act where a
matter had become moot, confirmed that where a discrete
legal issue
of public importance arose that would affect matters in the future,
compelling circumstances were present.
[15]
Having regard to the high volume of medical negligence claims arising
from brain damage to children
during labour, I am persuaded that
compelling circumstances exist that the Supreme Court of Appeal may
be inclined to provide
guidance for future similar cases; and
that leave to appeal should accordingly be granted
in terms of section 17(1)(a)(ii) of the Superior Courts Act
.
[16]
What remains is whether the appeal should be heard by the Full Bench
of this Division or the
Supreme Court of Appeal. This question
is governed by the provisions of section 17(6)(a) of Superior Courts
Act, which require
that I weigh-up two broad considerations. Firstly,
whether the issues involve important questions of law. Secondly,
whether
the interests of justice, either generally or in the
particular case, require that the matter be heard by the Supreme
Court of
Appeal.
[17]
Both Mr Salie SC and Mr P Uys, who appeared on behalf of the
plaintiff, agreed that, should leave
to appeal be granted, it be to
the Supreme Court of Appeal. After considering the issues, I am
of the view that it
is in the interests of justice that the
appeal be disposed of by the Supreme Court of Appeal.
[18]
On the issue of the costs, I am of the view that it will be equitable
that they be costs in the
appeal.
ACCORDINGLY,
THE FOLLOWING ORDER IS MADE:-
1.
The defendant is granted leave to appeal
to the Supreme Court of Appeal;
2.
The costs of the application for leave
to appeal are to be costs in the appeal.
STANTON,
A
ACTING
JUDGE
On
behalf of the applicant
:
Mr.
M Salie SC; Mrs. S Mahomed
(obo
Robert Charles Inc.)
On
behalf of the respondent
:
Mr
P Uys
(obo
Duncan & Rothman)
[1]
(585/2018)
[2019] ZASCA 102
(15 August 2019)
[2]
(117/2020)
[2021] ZASCA 68
(03 June 2021).
[3]
2013 (3) SA 315
(SCA)
para [5]. See also
City
of Tshwane Metropolitan Municipality and others v Nambiti
Technologies
(
Pty
)
Ltd
(
[2016] 1 All SA 332
(SCA)
para [6].