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[2015] ZAGPPHC 441
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Member of the Executive Council for Health v Molefe (65228/2012) [2015] ZAGPPHC 441 (1 June 2015)
REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
Case
no: 65228/2012
DATE:
1 JUNE 2015
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL FOR
HEALTH
...........................................
Applicant
(Defendant
in the main action)
And
MOLEFE,
PRUDENCE
PATIENCE
...................................................................................
Respondent
(on
behalf of Kagiso N Molefe)
(Plaintiff
in the main action)
AC
BASSON, J
Introduction
[1]
This an application for leave to appeal
against the whole judgment delivered by this Court on 2 March 2015.
[2]
With reference to the issues that the
trial court had to decide it was submitted that the court erred in
finding that the respondent
(Ms Molefe) was on a bed in a lithotomy
position when she gave birth. In this regard it was submitted that
the medical experts
were in agreement that a lithotomy position is
reserved for complicated deliveries and that there was no reason as
to why she would
have been placed in such a position.
[3]
The court’s conclusion that the
perinatal stroke was caused by a deflection of the head of the baby
and that the traumatic
manner in which Ms Molefe had given birth
caused the stretch injury which resulted in brain damage was also
criticised by the applicant.
In this regard reference was made to the
expert evidence led by the applicant in the trail in support of the
submission that the
court should have found that the causes of
Presumed Perinatal Ischaemic Stroke are rare and the causes unknown.
[3]
Before I briefly turn to the merits of
the application a few comments about the test to be applied in
applications for leave to
appeal. This test is now regulated by
section 17(1) of the Supreme Courts Act 10 of 2013 (hereinafter
referred to as “the
Act”):
“
17
Leave to appeal
(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 section 16 (2) (a); and
(c)
where the decision sought to be appealed
does not dispose of all the issues in the case
,
the
appeal would lead to a just and prompt resolution of the real issues
between the parties.
”
[4]
The
test for leave to appeal is twofold: Firstly, is there is reasonable
prospect of the appeal succeeding
[1]
and, secondly, is this a case of substantial importance not only to
the parties, but also to the public at large?
[2]
[5]
I have considered the submissions made
in support of the application for leave to appeal. I have also
considered the evidence that
was placed before the court. I do not
intend to repeat the findings of this court as set out in my
judgment. Suffice to point out
that the fact cannot be ignored that
the plaintiff was alone when she gave birth and that she is the only
one who can give evidence
about what had transpired during the birth
process. Furthermore, Sister Sikhakane was an unreliable witness to
such an extent that
she did not hesitate to concoct her evidence to
avoid a simple question about whether or not hospital beds could be
adjusted.
[6]
Lastly, although it was recognised by
all the experts that the incidence of a stretch injury is rare, both
Dr Edeling and Prof Jcklin
stated that this was the most likely
cause. Even the experts on behalf of the defendant readily conceded
that they were not in
a position to dispute the expert evidence
tendered especially on behalf of Prof Jacklin who has extensive
experience
in
this field.
[7]
I have again considered the evidence and
considered whether the applicant has reasonable prospects. I am not
persuaded that the
applicant has reasonable prospects of success on
appeal.
[8]
In the event I make the following order:
The
application for leave to appeal is dismissed with costs.
AC
BASSON JUDGE OF THE HIGH COURT
For Applicant:
Adv N Dukada SC Adv M Zulu
Instructed
by the Office of the State Attorney
For
Respondent:
GW Austin of Gary Austin Jordaan
Inc c/o Geyser van Rooyen Attorneys
[1]
Janit v Van den HeeverNNO (No 2)
2001 (1) SA 1064
(W) at 1062F.
[2]
Westinghouse
Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986
(2) SA 555
(A) at 560I.