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[2019] ZAECMHC 16
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Millicent Molose obo Avile Molose v Member of the Executive Council for Health:Eastern Cape Province (1182/2017) [2019] ZAECMHC 16 (12 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE NO. 1182/2017
In
the matter between:
MILLICENT
MOLOSE obo AVILE MOLOSE
Plaintiff
And
MEMBER
OF THE EXECUTIVE COUNCIL FOR
HEALTH:
EASTERN CAPE PROVINCE
Defendant
JUDGMENT
JOLWANA
J
[1]
According to the amended particulars of claim, Avile was born on 14
July 2013 with foetal distress, hypoxic ischaenimic encephalopathy,
mecomium and superadded hypoglycaemia giving rise to spastic
quadriplegic cerebral palsy and cortical blindness. These birth
defects were allegedly caused by the defendant’s employees who
acted in breach of the agreement with the plaintiff relating
to the
provision of medical services to the plaintiff about the delivery of
Avile at Willovale Clinic where the plaintiff attended
antenatal
clinic and at Butterworth Hospital where plaintiff was admitted as an
inpatient until she gave birth to Avile.
[2]
The matter went through all the normal stages of the filing of
pleadings, the discovery processes as provided for in the Uniform
Rules and the filing of expert reports by a number of medical experts
who saw both the plaintiff and Avile in their consulting
rooms in
different parts of the country.
[3]
On 17 June 2018 Dr Redfern, a paediatrician for the plaintiff and Dr
Kara, a paediatrician for the defendant signed a joint
minute which
reads as follows:
“
JOINT
MINUTES
IN
THE MATTER OF MILLICENT MOLOSE obo AVILE MOLOSE vs MEC FOR HEALTH
PREPARED
BY DR A REDFERN (Paediatrician for the plaintiff) & DR Y KARA
(Paediatrician for the defendant)
16
June 2018
Plaintiff
attorney ref: ZMM/SK/MAT335
Case
number:
888/2017
This
report has been compiled by Dr A Redfern, acting on behalf of NONXUBA
INC Attorneys for the plaintiff Millicent Molose obo
Avile and Dr Y
Kara, instructed by Simi Health Care on behalf of the State Attorney
who represents the Defendant, MEC for Health
in the province of the
Eastern Cape.
This
report is based on the following documents/sources:
1.
Copy of limited medical records, namely Road to Health booklet pages
only. No maternity case record
or neonatal records available
2.
Medicolegal report by Dr A Redfern (submitted 30 May 2018)
3.
Medicolegal report by Dr Y Kara (submitted 23 Sept 2017)
4.
MRI scan performed on 4 May 2017, and accompanying medicolegal report
by Prof S Andronikou.
JOINT STATEMENT
With regards to the
basis of our opinions
We agree that the absence
of medical records, particularly the maternity case record and
neonatal records, means that important
information is not available,
that would assist with determining the cause and timing of brain
injury.
With regards to the
condition of the child
We agree that Avile has
severe spastic quadriplegic cerebral palsy, has visual impairment, is
intellectually and functionally severely
disabled (GMFCS
classification scale 5) and has an abnormally large head.
With regards to
determining the cause of brain injury
We agree that Millicent’s
positive HIV status did not cause brain injury to Avile, as she was
on antiretroviral therapy and
was virally suppressed.
We agree that, based on
the maternal history and anthropometric measurements of the baby at
birth, no antenatal (distal) risk factors
can be identified for
intrapartum asphyxia. We note that there was a maternal history
of hypertension in labour, this may
or may not be of significance.
We agree that we do not
know for certain whether foetal distress or an acute sentinel event
were present during labour, or other
intrapartum risk factors for
neonatal encephalopathy, due to the lack of records.
We agree that the reason
for the emergency caesarean section, and the timing of events around
the time of delivery are unclear due
to lack of records and clear
maternal history.
We agree that the MRI
scan performed on Avile shows extensive brain damage consistent with
hypoxic ischaemic brain injury occurring
in a term infant.
Specifically, there is no genetic or developmental brain abnormality,
and apparent hydrocephalus is due
to ex vacuo dilatation of the
ventricles due to extensive brain damage.
We agree that, in spite
of Avile’s large head, this appears to be an incidental finding
and other potential causes of hydrocephalus,
as described by Dr Kara
in his report, are not apparent.
With regards to
determining the timing of brain injury
We agree that there is
limited and conflicting information upon which to decide whether
there was depression of the baby at birth
or not.
We agree that, based on
the limited information available, a neonatal encephalopathy lasting
at least several days was present after
birth. We agree that
there are various causes of neonatal encephalopathy and information
is lacking with which to exclude
some potential causes. We
agree that the presence of a neonatal encephalopathy is compatible
with and suggestive of intrapartum
asphyxia, in the absence of other
known causes of the neonatal encephalopathy.
We agree that
hypoglycaemia may have contributed to brain injury, but that due to
an absence of neonatal records, we cannot confirm
or refute the
presence of hypoglycaemia.
We note that the MRI
scan, as reported by Prof Andronikou, shows brain injury consistent
with a mixed pattern of injury, namely
prolonged-partial and acute
profound hypoxic ischaemic brain injury occurring in a term brain.
The authors conclude
that, based on the MRI findings and available information, the most
likely cause of Avile’s brain injury
is intrapartum asphyxia
causing a hypoxic ischaemic encephalopathy after birth.
The authors stress that
this opinion is based on information available to them and reserve
the right to review their opinions should
the medical records become
available.”
[4]
On 15 June 2018 Dr Wright, a specialist obstetrician and
gynaecologist and Dr Hulley also a specialist obstetrician and
gynaecologist
signed a joint minute in which, among other things,
they recorded that “
the most probable causation of the
cerebral palsy was intra-partum hypoxic ischaemia which was missed
due to poor intrapartum foetal
monitoring
.”
[5]
Based on the pleadings, the expert reports filed and the joint
minutes referred to above and other documents filed and hearing
counsel this court granted an order in which, inter alia, the
defendant was held liable for the plaintiff’s agreed or proven
damages arising from cerebral palsy suffered by Avile. The
defendant was also ordered to pay R2000 000.00 being interim payment
of the plaintiff’s damages within 30 (thirty) days from the
date of the order. That court order is dated 20 June 2018.
The plaintiff was represented by Du Plessis SC and the defendant was
represented by Gqamana SC and advocate Melane.
[6]
The matter was later set down to determine quantum from the 12
February 2019 in terms of the Notice of Set Down served on the
state
attorney on 04 December 2018 and filed with the Registrar of this
court on the same date.
[7]
On 13 February 2019 the defendant filed a substantive application for
the postponement of the matter sine die. In the
affidavit
deposed to by Mr Andrew Conroy of Smith Tabata Inc, correspondent
attorneys of Norton Rose Fulbright South Africa, attorneys
of the
defendant it appears that the matter was referred to them on the date
of the trial by Mr Johan van Schalkwyk the Acting
Head of the office
of the State Attorney in Mthatha, who until then were attorneys for
the defendant. The application for
postponement was opposed.
[8]
Among other things Mr Andrew Conroy stated as follows in his
affidavit:
“
23. At
approximately 10:30 on Tuesday, 12 February 2018, (sic) our office
received a telephone call from Acting Head of the State
Attorney’s
office in Mthatha Johan Van Schalkwyk, indicating that there was an
additional matter that had not been handed
over to the consortium
which was before Court.
24. We were instructed
that the matter was before Court and would be heard at 11:00.
Van Schalkwyk indicated that his office
was not aware of this matter,
but that he would investigate same. In addition, we took
immediate steps to peruse the court
trial roll for the first term.
The matter was not enrolled according to the said trial roll.
25. We instructed Adv
Mfeya to attend court and explain the position described aforesaid
and indicate that our instructions were
to bring an application for
postponement.”
[9]
The answering affidavit filed on behalf of the plaintiff in
opposition to the application for the postponement of the matter
was
deposed to by Mr Nonxuba who is the attorney of the plaintiff.
He, inter alia, had this to say in his answering affidavit:
“
9. The version of
Andrew Conroy is in direct contrast with the submission that was made
by Mr Nqiwa in Court on 12 February 2019,
who specifically advised
the Judge President in roll call court that the matter is no longer
handled by the State Attorney it is
handled by certain Melisa of Mr
Conroy’s office. Whereafter he later requested that the
matter should stand down in
order to enable him to enquire from
Melisa as to why she was not in court to attend to this matter and
the court acceded to his
request.”
[10]
It became clear to me that either Mr van Schalkwyk lied to Mr Conroy
in saying that his office was not aware of the matter
or Mr Nqiwa
lied to the Judge President in saying that the matter was handled by
Melisa of Mr Conroy’s office. Alternatively
Mr Nonxuba lied in
what he said about Mr Nqiwa. I became concerned that no less
than three officers of this court, van Schalkwyk,
Nqiwa and Nonxuba
could all be lying or at least one of them could be lying. I
issued an order that both van Schalkwyk and
Nqiwa must come to court
to give oral evidence under oath.
[11]
Van Schalkwyk gave a background about the state of affairs in his
office in general and how the Special Investigating Unit
(SIU) got
involved as well as what his office is doing to resolve their
challenges. It also became clear from his oral testimony
that
as at the time that he decided to refer the matter to Norton Rose he
had already made up his mind that there was fraud on
the part of Mr
Nonxuba. He made gratuitous statements accusing Mr Nonxuba of
being well known for what he called “
shenanigans
”.
He referred to what he called “fraudulent claims” that
were being lodged by Mr Nonxuba. He was
asked to elaborate on
the basis of these gratuitous statements. It turned out that
his opinion was based on media reports
and his discussions with the
SIU and the fact that Mr Nonxuba had been arrested on fraud
allegations the day before.
[12]
His evidence was not helpful at all in the application for
postponement. All it did was to show his own failures to manage
basic processes like notices of set down of trials which, if not
attended to as was the case in this matter could have very serious
implications for his clients. He did not appear like somebody
who had a good grip of what is going on in his office.
He also
alluded to problems that are not of his own making like the lack of
capacity largely due to the volume of work that his
office handles
and staff shortages.
[13]
It did not help that he seemed to see fraud everywhere and did not
seem to have created good working relations with the professionals
that report to him like Mr Nqiwa. I was taken aback that he
referred this matter to Norton Rose without getting a status
report
from Mr Nqiwa, the attorney who handled the file and who was readily
available in his office. His reticence when he
gave evidence
painted a picture of a man who placed too much reliance on other
institutions like the SIU and Norton Rose without
informing himself
about the way they are supposed to assist him and properly identify
cases where fraud may be involved so that
the SIU may investigate
fraud and corruption in those cases.
[14]
His assumptions about fraud on the part of Mr Nonxuba based on
nothing more than media reports, on-going investigations or
even the
fact that Mr Nonxuba was arrested were not helpful. He seemed
to forget that whatever he thinks of Mr Nonxuba the
reality is that
his name has not been struck off the roll of attorneys and he has not
been suspended or interdicted from practice.
This has major
legal consequences including his clients’ rights to be
represented by him as well as his constitutional rights
not only to
choose the legal profession but also to practice it until he is
stopped through the due process of the law. Mr
van Schalkwyk
seems to believe that Mr Nonxuba should be treated as a convicted
fraudster when the reality is that this court has
no legal basis for
treating Mr Nonxuba as if he is a convicted criminal or any
differently from how it treats other practitioners.
[15]
It became clear from Mr Nqiwa’s evidence that both Mr van
Schalkwyk’s office, which is the office of the State
Attorney
which represented the defendant at the time, Norton Rose through
Melisa and the defendant received the notice of set down
as far back
as the 11 December 2018 in the case of the defendant, the 4 December
2018 in the case of State Attorney’s office.
It is
important to mention that Mr van Schalkwyk and some of the officials
of the defendant were recipients of an email dated 21
June 2018 sent
by Mr Nqiwa in which he furnished them with the court order dated 20
June 2018 in terms of which the merits were
awarded to the
plaintiff. On 10 August 2018 the defendant made a payment to
plaintiff’s attorneys in the sum of R2
008 054.76 which
was in terms of that court order. How could this payment have
been made if nobody was aware of this
matter? Clearly, for Mr
van Schalkwyk to say that he did not know about this matter is
disingenuous in the extreme.
[16]
Mr Andrew Conroy conveniently leaves out of his affidavit the email
sent to Melisa of his office by Advocate Gqamana SC on
the 4 February
2019. If one accepts in his favour that he might not have known
about that email which was sent to Melisa,
that raises further
questions about how his office or Norton Rose for that matter as
defendant’s attorneys are managing these
very important and
time bound matters. In that email Mr Gqamana enclosed a notice
of set down in terms of which the matter
was set down for hearing on
the 12 February 2019. It is bewildering that both Mr Andrew
Conroy and Mr van Schalkwyk claim
ignorance about this matter when
objective evidence suggests that their respective offices and that of
the defendant were in fact
furnished with a notice of set down
earlier than the 12 February 2019.
[17]
All of this information came from Mr Nqiwa whose detailed evidence
assisted the court in getting a clear picture of what the
correct
facts are. It was precisely because of Mr Nqiwa’s
candidness that it became clear to me that the matter must
be
postponed as those representing the defendant including some of the
officials of the defendant had failed to act on the notice
of set
down to the prejudice of the defendant. I still find it
difficult to understand how Mr Conroy’s office through
Melisa
received the Notice of Set Down from Gqamane SC and did nothing.
They did not even send an urgent email to Mr van
Schalkwyk when they
received the Notice of Set Down to establish what he intended to do
about it as at that stage he had not yet
instructed them.
[18]
For Mr van Schalkwyk to go on and on about Mr Nonxuba’s alleged
corruption is just obfuscation and mischievous and was
designed to
mislead the court about the real reason why the matter could not
proceed and why they were not in court or had not
briefed counsel to
represent the defendant. It is most disheartening that he and
Mr Andrew Conroy came to this court with
half-truths and feigned
ignorance about this matter.
[19]
The suspicions that Mr van Schalkwyk had at the time he gave evidence
were at that stage nothing more than suspicions.
He seemed to
elevate his suspicions to objective evidence and the arrest of Mr
Nonxuba on charges of fraud to a finding of guilty
of fraud.
All of this is worrisome, to put it mildly. This court cannot
be expected to treat Mr Nonxuba differently
from how it treats other
practitioners -certainly not on the basis of media reports about him
or even the fact that he was recently
arrested. In the exercise
of my discretion I decided to postpone this matter
sine die
to
give Mr van Schalkwyk time to confirm if indeed there is real
evidence of fraud in respect of this matter because if indeed
there
is evidence of fraud, that would be a very serious matter for all the
parties and this court. I thereupon issued the
following
orders:
1. The trial is postponed
to a preferential date to be arranged with the Registrar for the
determination of quantum.
2. Mr van Schalkwyk
(Deputy State Attorney) is to provide written reasons on or before 15
March 2019, as to why this case is to
be regarded as a fraudulent
claim.
3. The plaintiff’s
attorney is to file his response to Mr van Schalkwyk’s
affidavit by not later than 31 March 2019.
4. The defendant is
ordered to pay the costs of the application and the postponement on
an attorney and client scale.
______________________
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the Applicant: J.J WESSELS
Instructed
by: Nonxuba Inc. c/o POTELWA & CO.
Mthatha
Counsel
for the Respondent: S. MFEYA
Instructed
by: Norton Rose c/o Smith Tabata
Mthatha
Heard
on: 14 February 2019
Delivered
on: 12 March 2019