SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH A FRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 29740/21
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES:NO
REVISED: NO
Date: 30/04/2025
SIGN ATURE :
In the matter between:
I[...] M[...] FIRST PLAINTIFF
I[...] M[...] N.O SECOND PLAINTIFF
And
MEMBERS OF THE EXECUTIVE COUNCIL DEFENDANT
(MEC) FOR HEALTH AND SOCIAL DEVELOPMENT
JUDGMENT
Mzuzu AJ
INTRODUCTION
[1] The first plaintiff instituted an action against the defendant in which the first
plaintiff sues in her personal as well as her representative capacity as the biological
mother of the minor child E.N (the minor child) born on 9 September 2019 at the
Edenvale Hospital (the hospital) following her admission on 8 September 2019 at
Masakhane Clinic (the clinic). The hospital and the clinic are under the auspices of
the defendant.
[2] The first plaintiff's claim is for damages arising out of the alleged bre ach of a
legal duty and negligence of the medical staff at both Masakhane Clinic and
Edenvale Hospital during her labour process.
[3] The issue of liability and causation have been separated from the issue of
quantum. The trial proceeded only in respect o f the merits.
BACKGROUND
[4] It is alleged by the first plaintiff that as a result of the breach of a legal duty1
which the defendant owes to the plaintiffs and the negligence of the medical staff
who attended the first plaintiff during her pregnancy, labour and birth of the minor
child particularly on 8 and 9 September 2019, she suffered a neurological and uretic
complication and the minor child suffered brain damage.
[5] Both parties prepared and signed a stated case in terms of rule 33 of the
Unifor m Rules of Court regarding the issue of liability/merits of the plaintiffs' claim2.
The stated case mentions among other things common cause facts, facts in dispute
as per the pleadings, the plaintiffs' case, the defendant's case and defence, main
issues b etween the parties, the indication of the availability of both expert reports of
1 Constitution of the Republic of South Africa, 1996, s27.
2 Caselines section S1.
the plaintiffs and defendant3. Paediatrician Dr Lambard4, The defendant experts5,
Nursing Expert Dr N Molefe6, Paediatrician Dr Debie Pearce.7
[6] The first plaintiff and Dr Songabau, the obstetrician and gynaecologist, gave
oral testimony. The plaintiffs' expert and defendant expert prepared and signed the
joint minutes8. The first plaintiff as well as an expert obstetrician, Dr Songabau were
called to testify. The defendant did not call any witnesses.
[7] Facts that are common cause as per the pleadings
7.1. The identity of the Plaintiff.
7.2. The identity, description and address of the Defendant.
7.3. The first plaintiff was subsequently trans ferred from Masakhane Clinic
to Edenvale Hospital on 9 September 2019.
7.4. The minor child was delivered by C -section upon arrival at the
Edenvale Hospital on 9 September 2019.
7.5. At all material times the Masakhane Clinic and the Edenvale Hospital
were public health establishments as defined in the National Health Act 61 of
2003, particularly to the extent that the Act specifies so.
7.6. At all material times the Clinic and Hospital and their staff members fell
under the control and management of the De fendant.
7.7. The Defendant had a legal duty to the First Plaintiff and the minor child.
7.8. The First Plaintiff's right to be granted access to healthcare services is
in terms of Section 27(1)(a) of the Constitution of the Republic of South Africa,
as lo ng as the Hospital facilities, resources and budget permit to this extent.
[8] Facts that are in dispute as per the pleadings
8.1 The fact that the Pretoria High Court has jurisdiction to entertain the
matter, particularly regarding the First Plaintiff's status and locus standi .
3 Caselines plaintiff experts' obstetrician and gynaecologist Dr Songabau Case lines pg. 0156 -0164.
4 Caselines pg. 0182 -0192 and 0200 -0209.
5 Caselines Dr Nkosi K3 -K6.
6 Caselines K9 -K18.
7 Caselines K22 -K60.
8 Caselines L4.
8.2 On or about 8 September 2019 at around 17h00 the First Plaintiff
attended the Masakhane Clinic at full term pregnancy with complaints of
labour pains.
8.3 At about 22h00 the First Plaintiff's water broke and was informed by the
nursing staff that she was far from delivery.
8.4 The first plaintiff was left unmonitored and unassisted until 08h00 on 9
September 2019 when she started to bleed.
8.5 At approximately 12h00 on 9 September 2019 the first plaintiff was
transferred to a Hospital bed. At 15h00 an ambulance was called to transfer
the first plaintiff to the Edenvale Hospital, at which time the minor child (then
an unborn foetus) was in distress because of lack of oxygen.
8.6 The fact recorded in paragraph 8.1 above is no longer one of the
issues in dispute between the part ies. The issues are envisaged to be as
discussed in paragraph 7, above.
PLAINTIFF'S CASE
[9] The first plaintiff testified that she attended Masakhane Clinic around 6 or 7
September 2019 complaining about labour pains. The nursing staff informed her tha t
she was not in labour yet.
[10] She then attended the Masakhane Clinic again on 8 September 2019 at about
17h00 complaining of labour pains. She informed the nursing staff that she had
contraction pains. The nurse checked her and told her that the baby was still too far.
She was booked into a ward.
[11] Later that evening, at about 22h00 her water broke. She walked up to the
nursing staff who were sitting in another room and informed them that her water
broke. The nursing staff had a look at the water a nd told her that the water was clear.
They vaginally examined her and again informed her that the baby was still too far.
They instructed her to lie on the bed.
[12] She informed the nursing staff that the pain was unbearable and that the baby
was coming. She further informed the nursing staff that a doctor at Edenvale
Hospital did a sonogram and informed her that the baby was too big for natural birth
and that she had to have a caesarean section done to deliver the baby and that the
report was on her file . The nursing staff did not attend to anything that she informed
them of and only instructed her to go back to her bed.
[13] She had begged them for the caesarean section whereupon they asked if she
had money for the caesarean section to which she answered in the negative. They
again instructed her to go back to her bed.
[14] The next morning the cleaning staff entered the ward and informed her that
she had to get out of the bed and sit on the chairs as no one is allowed to lay in the
bed during the day. She was too sore to sit on the chair and proceeded to lay on the
floor.
[15] On 9 September 2019 at about 8h00, the plai ntiff started to bleed; she stood
up and informed the nursing staff that she was bleeding. She also reported to the
staff that she could no longer feel her baby's movements. The nursing staff did not
do anything about that report.
[16] She was left unmoni tored until about 12h00 when the nursing staff checked
her and noticed that she was 8 cm dilated. They finally gave her a bed to lay in again.
[17] At about 14h00 the nursing staff who checked up on her informed her that she
was ready to push. The first p laintiff was not sure though if at that time they could
feel the baby's head. She again informed them of what the doctor at Edenvale
Hospital said. The other nurse finally said that the baby was too big and that she
would need assistance in her delivery.
[18] The ambulance arrived at about 15h00, transporting her to the Edenvale
Hospital where she was, upon arrival, informed that an emergency caesarean
section was required and that they had only 5 minutes to save her and the baby's
lives.
[19] She was inj ected with anaesthesia in her spine, dressed for theatre and they
prepared the equipment.
[20] After the caesarean section was performed, she did not hear the baby cry.
The medical staff eventually showed her the baby's bottom half and placed her in a
ward. The nurse, upon request, informed her that the baby was admitted to the
Intensive Care Unit. The nurse informed her that she would be able to go see her
baby the following day.
[21] On 10 September, she tried to get out of the bed to go see her baby. When
she stood up, she fell. She could not feel both her legs, and she went numb.
[22] The nurse tried to assist her; she tried moving her feet but was unable to do
so. The doctor was called. The doctor hit her knee with an object and also pricked
her feet with a needle. Still, she was unable to feel any of it. She was then informed
that something was wrong with her veins and her kidneys. She was treated with
injections and pills for the pain.
[23] After about four days, on 13 September 2019, she was transferred to
Charlotte Maxeke Hospital. Before the transfer to Charlotte Maxeke Hospi tal, she
requested to see her baby. She was transported in a wheelchair to go to see her
baby. She found the baby in an incubator with two tubes attached to her. The nurse,
upon her request, explained that the one tube was an oxygen tube and the other a
feeding tube.
[24] She was booked a bed at Charlotte Maxeke. She stayed there for three days
and could not recall on which date she was operated and received a DJ/JJ (double J)
stent and a catheter.
[25] She was informed that she was given the relevant ste nt to open a vein that
closed during the caesarean section. She could not walk for a period of at least five
months thereafter, whereafter she started limping.
[26] She was discharged the day after the stent was inserted. Upon her discharge,
she immediate ly returned to Edenvale Hospital to see her baby. The nurses informed
her that the baby could not be discharged at that time as the baby could not breathe
on her own and she was still dependent on the feeding tube.
[27] The doctor spoke to her, e xplaining to her that the baby had some damage,
due to prolonged labour and the fact that she did not receive enough oxygen. The
baby was discharged the following Saturday.
[28] She experienced quite a few complications after the caesarean section,
includ ing:
a) Numbness of her legs, she was unable to walk for five months;
b) In cold weather she experiences pain and cramps where the stent was
inserted; and
c) She cannot hold her urine for a while; she has to relieve herself
immediately.
[29] Her child, EN, is now five years old. She is unable to walk or stand, she
cannot eat and she is in diapers. She only recently started sitting on her own but
cannot sit for a long time, at least no longer than five minutes.
[30] EN is receiving physio therapy at Edenvale Hospital but the doctor informed
her that EN is not progressing at all. EN will be dependent for the rest of her life.
[31] The first plaintiff confirmed under cross examination, that while the nurses at
Masakhane Clinic attended to he r they also attended to other patients despite other
staff members being available to attend to the other patients. At Edenvale Hospital
she was immediately attended to and was rushed to the theatre.
The plaintiffs' second witness Dr Songabau:
[32] Dr So ngabau gave a short description of his background and qualifications,
including his extensive experience in disability and impairment assessment.
[33] He based his opinion on his consultation with the first plaintiff and the medical
records. However, he w as not provided with the intrapartum records and/or neonatal
records. He had the records of Edenvale Hospital, Charlotte Maxeke Hospital and
the MRI scan of the baby.
[34] Dr Songabau explained cerebral palsy as a condition where a baby and/or a
person is severely disabled and unable to do anything for themselves.
[35] When he consulted with the first plaintiff, she complained about hemiparesis
and a right drop foot.
[36] He was informed that she had regular check -ups at Riverpark Clinic at
Alexandra Township. The first plaintiff also had blood tests whereby all was normal.
Her initial foetal sonar at Riverpark Clinic appeared to be twins, seeing that they
initially heard two heart beats; however, a subsequent visit to Edenvale Hospital
confirmed that the first plaintiff was only expecting one big baby. The labour progress
has since been checked.
[37] He explained that when a woman is regarded to be in labour, the following
occurs:
a) Changes to the cervix;
b) a rupture of the membrane; and/or
c) regular contractions.
[38] According to him, upon the first plaintiff's arrival at the clinic, she already
appeared to have two of the three signs of labour, namely dilated cervix and labour
pains.
[39] The Foetal Heart Rate (FHR) had to be checked on a regular basis, and the
normal rate should be between 110 and 160 beats per minute.
[40] According to the first plaintiff's statement, the chain of events and what the
clinic staff told the first plaintiff, the baby was normal at the time of arrival at the clinic.
[41] The fact that the first plaintiff's water broke at 22h00 and the fluid was clear,
confirms that the baby was not in distress at that point.
[42] The nursing staff failed to check up on her ag ain before 22h00, while she was
complaining of pain the whole time. It was already five hours later, since her
admission, when she was checked for the first time after 22h00. The guidelines
determined that at this stage of the labour, when the cervix was 3 cm or less dilated,
she had to be monitored every four hours. The Foetal Heart Rate also had to be
checked every two hours. There is no record that this had been done.
[43] The patient was left alone, and this treatment is substandard.
[44] He testifie d that in terms of the maternity guidelines the intervention and/or
monitoring at this stage of labour - latent phase - includes monitoring:
a) Blood pressure and pulse rate four hourly;
b) Temperature four hourly;
c) Uterine contractions two hourly;
d) Foetal Heart Rate two hourly;
e) Vaginal examination four hourly; and
f) Any changes in condition warrant more frequent observation.
[45] These guidelines are the basic rules and/or regulations taught and should be
known to all health institutions.
[46] At some point the patient complained about bleeding. Bleeding can be a
problem, especially when the patient bleeds excessively. The bl eeding, according to
the first plaintiff's statement, occurred at 08h00. They did not examine her from
22h00 until 08h00 the following day. This was inconsistent with the maternity
guidelines as set out above. According to the first plaintiff she was not c hecked at
08h00 when she complained about bleeding.
[47] The moment she started bleeding and when she informed the nursing staff
that she was unable to feel her baby, immediate intervention was required. This was
not done in this case.
[48] The p atient remained unmonitored for approximately 15 hours, which is to all
accounts, substandard.
[49] There is no record of when the patient crossed over to the active phase of
labour and same would have been available had the nursing staff attended to the
monitoring as prescribed in the maternity guidelines.
[50] Where labour goes on for more than eight hours, it is regarded as prolonged
labour. The health care professionals are required to check on the patient. It is
important that the patient does not fa ll under fatigue. The patient should be provided
with a drip with fluids and her blood pressure should be checked. The first plaintiff
was not provided with a drip and was not monitored for 15 hours. There is no way to
determine when the baby became distre ss. The first plaintiff was exhausted, she had
complained about the labour pains whilst at the clinic and she could not sleep the
whole night due to the pains she experienced.
[51] Since the first plaintiff had entered the active phase of labour, she was
supposed to be monitored hourly:
a) Urine should be tested two hourly;
b) Temperature four hourly;
c) Heart rate hourly;
d) Blood pressure hourly;
e) Foetal heart rate every half an hour;
f) Colour and odour of the liquid since the membrane ruptured, two hourly;
g) Frequency and strength of urine contractions hourly;
h) Cervical dilations two hourly; and
i) Caput and parietal moulding two hourly
[52] The treatment rendered to the f irst plaintiff was substandard. What should
have happened at 12h00, when she was 8cm dilated, she should have been
monitored more regularly in accordance with the maternity guidelines. There are no
proper medical records to confirm whether the baby's head was descending, if caput
or moulding (overlapping of bones in the head) took place.
[53] It was his professional opinion that the first plaintiff arrived at the health facility
in a good condition and that the baby was not in distress at the time of her a dmission
at the clinic. She developed various issues and was eventually transferred to
Edenvale Hospital the next day at around 15h30. At the time of the baby's birth, she
did not cry, mother had reflexes; the baby had seizures and was also not able to
suck.
[54] It is his opinion that the baby was normal and that the complications and
impairment of the child was caused by the prolonged labour. The baby suffered from
a lack of oxygen and birth asphyxia.
[55] The first plaintiff was unable to walk after th e prolonged labour and the
caesarean section. He opined that the reason for her neurological complications was
brought by the child pressing against her nerve and her veins before she was finally
relieved of the pressure. The other theory was that the numb ness in her legs was
caused by the spinal anaesthesia. This though is not his field of expertise hence he
referred the first plaintiff to a neurologist for assessment.
[56] His opinion was that the above damage could however have been avoided by
proper mo nitoring and earlier labour.
[57] The first plaintiff had complications after the prolonged labour and caesarean
section and was eventually transferred to Charlotte Maxeke Hospital, where the JJ
stent was inserted. The stent was to alleviate any pressure from the kidneys and for
the first plaintiff to recover from the compilations.
[58] Masakhane Clinic did not provide any medical records of the first plaintiff's
stay and treatment in the clinic. The records provided were that of her baby born in
2016.
[59] The Edenvale Hospital records record that the delivery of the baby was
difficult, but no notes from the doctor reflected why it was difficult or what happened
that made it difficult. The Apgar score is reflected on the records as being 7. These
results are questionable as stated by both himself and the Defendant's expert, Dr
Nkosi . The circumstances would corroborate the fact that there was something
wrong with the baby, by considering the following:
a) The baby was born "flat" or "no life";
b) No reflexes;
c) Morphism;
d) Arterial blood gas was not normal;
e) The baby swallowed mi condia; and
f) Baby had hypoxia
[60] The baby was saved by the emergency caesarean section, but the damage
was already done.
[61] The MRI scan of the baby shows watershed and oxygen asphyxia. This is a
clear indication that the baby was in distress caus ed by the prolonged labour.
[62] When a patient enters the active phase of labour, birth is expected within two
hours, anything surpassing that time, is regarded as prolonged labour. The labour in
these circumstances was extremely prolonged, and very poor monitoring took place,
which is all substandard. The fatal outcome could have been avoided if the patient
had been properly monitored. The CPD and Meconium Aspiration Syndrome, the
condition of the baby, could have been improved if the referral occurred e arlier.
[63] Cerebral palsy could have been prevented with proper monitoring and if the
patient was transferred sooner for the caesarean section.
[64] He was referred to the joint expert minutes with Dr Nkosi, confirming that Dr
Nkosi agreed with all incidents reported.
[65] When confronted with Dr Nkosi's remarks that there is a shortage of facilities
and personnel, he said that it might be, however, this does not provide anyone with
an excuse to fail to provide proper care. All medical staff are bound by certain
standar ds of service and legislation.
[66] He stated, under cross -examination, that the transfer of a patient from the
clinic to the hospital takes about one hour.
[67] He stated that certain steps should have been taken, after the nurses realised
that the baby was too big and while awaiting the arrival of the ambulance, such as
providing the patient with a drip, oxygen and also letting her lay in a specific position
on the bed, in order to prevent any further distress to the mother and her baby.
[68] He stated that the first plaintiff indicated that her labour pains and/or
contractions started at 10h00 in the morning on 8 September 2019, however, a
patient is only diagnosed with labour when she arrives at the facility and displays one
of the three signs previou sly mentioned.
[69] He also mentioned that the first plaintiff attended the hospital the previous day
already complaining about the pains.
[70] She should have been diagnosed as being in labour since she was 2cm
dilated and her membrane ruptured at the c linic.
ANALYSIS AND CONCLUSION
[71] It is not possible to determine when the brain damage to the baby occurred,
especially since the clinic failed to properly monitor the pregnancy, it is however
clear that the baby was not in distress upon arrival at t he hospital and during the
night as the nursing staff informed the first plaintiff that all was fine with baby and the
fact that the water, when the membrane broke, was clear, was signs of a healthy
pregnancy.
[72] The nursing staff checked again at 12h00. The patient was 8cm dilated and
around this time, the baby was estimated to be in distress. There is no indication at
what time the nurse finally realised that the baby was too big.
[73] The first plaintiff testified that there was no delay at Edenvale Hospital and
that she was immediately attended to and taken to theatre. The joint minutes state
that the caesarean section was delayed by two hours. It is clear from Dr Nkosi's
report t hat the baby was delivered at around 17h00. The experts agreed that there
was a delay since she arrived at the hospital at 15h30, but the baby was only
delivered around 17h00. The first plaintiff might not have remembered that well,
seeing that she has con sulted with both experts the same way and more recently the
court appearance.
[74] There are also quite a few steps to be taken and/or a routine before the
delivery of the baby, she stated that she was immediately taken to the theatre, how
long she was in the theatre was not disclosed by her.
[75] He confirms that his integrity cannot be questioned, as both he and Dr Nkosi
agreed on the same and his report corroborates what the first plaintiff told him and
also what is reflected in the medical records.
[76] It is alleged that the defendant breached the legal duty set out in Section 27 of
the Constitution which reads as follows:
"Health care, food, water and social security.
(1) Everyone has the right to have access to -
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and
their dependants, appropriate social assistance.
(2) The state must take reasonable legislative and other me asures, within
its available resources, to achieve the progressive realisation of each of these
rights.
(3) No one may be refused emergency medical treatment."
[77] The Plaintiffs' case in the stated case and the evidence of the plaintiffs' expert
prove t heir submission of the breach of legal duty by the defendant.
[78] With regard to the assessment of negligence, ii has been authoritatively
stated that the question of reasonableness and negligence is for the court to decide
based on the evidence, version s and expert opinion presented.
[79] As a rule, this determination does not primarily involve consideration of
credibility but the examination by the court of the opinion and the essential reasoning
of the expert before reaching its own view on the issues raised.
[80] What is required in evaluating evidence is a determination of whether and to
what extent the opinions advanced are reasonably justified as being founded on
logical reasoning.9
[81] It was the expert's view that the minor child sustained brain damage from a
lack of oxygen. The minor child will require extensive medical care for the remainder
of her life, which costs the first plaintiff will incur until the minor child attains the age
of majority.
[82] The defendant denied that there was any wrongful a ct or omission on the part
of the defendant and further denied that there is delictual liability emanating from the
alleged legal duty. The defendant denies negligence on the part of Masakhane Clinic
and Edenvale Hospital medical staff. The defendant plead ed that it could not
reasonably be expected to render any better service to the first plaintiff with the
limited resources at the time of labour.
9 Michael and Another v Links field Park Clinic Ply Ltd and Another [2001] ZASCA 12; [2002] 1 All SA
384 (A) at para 36; Medi -Clinic Ltd v Vermeulen [2014] ZASCA 150; 2015 (1) SA 241 (SCA) at para 5,
and A.D obo K.L.O v MEC for Health for the Province of KwaZulu -Natal [2019] ZAKZPHC 13 at para
10.
[83] The defendant pleaded that the delay in performing the caesarean section
was caused by the fact that there was no available theatre at the time the first
plaintiff was ready for caesarean section. And that a reasonable clinic and Hospital
with the resources that Masakhane Clinic and Edenvale Hospital had, cou ld not have
done better. It therefore cannot be said, that there was negligence on the part of the
Clinic and Hospital staff.
[84] A medical staff /practitioner is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional skill, but he is bound to
employ reasonable skill and care.10
[85] The standard of care which the defendant's medical staff were required to
provide to the first plaintiff and her foetus/baby had to meet, inter alia the defendant's
maternity care guidelines that were applicable at that time.
[86] The relevant maternity care guidelines that were applicable at the time of the
plaintiff's delivery of the minor child are the guidelines for maternity care in South
Africa 2007 (the guidelines).
[87] The Plaintiff gave direct evidence from her own memory of the facts during
the intrapartum and subsequent stages of the minor child. The obstetrician and
gynaecologist also testified as an expert in the manner in which the defendant failed
to adhere to the guidelines.
[88] The court remains the ultimate arbiter of the issues in dispute 11. Expert
opinions are only relevant and admissible when by reason of the special knowledge
and skill or experience of the experts, they are qualified to draw reference s and
reach conclusions that may assist the court.12.
10 Van Wyk v Lewis 1924 AD 438 at 444, A.D obo K.L.O v MEC for Health for the Province of
KwaZulu -Natal [2019] ZAKZPHC 13.
11 Michael and Another v Links field Park Clinic Pty Ltd and Another [2001] ZASCA 12; [2002] 1 All SA
384 (A) at 34.
12 Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 616F -617B.
[89] The defendant contends that the viva voce evidence presented by the first
plaintiff and her obstetrician Dr MR Songabau exposed serious flaws and
inconsistences. The flaws and the in consistences mentioned by the defendant in the
evidence of the plaintiff and her obstetrician are not material to an extent that the
court can ignore the evidence of the expert in total.
[90] In S v Mkohle13 the court held that contradictions do not lead to the rejection
of witness evidence; they may simply be indicative of an error. Not every error made
by a witness affects his credibility, in each case the trier of fact has to make an
evaluation, taking into account such matters as the nature of the cont radiction, their
number and importance and their bearing on the other party of the witness evidence.
[91] In S v Govender14 it was held that the fact that a witness is untruthful on one
aspect does not mean that his or her evidence should be rejected on t hat basis
alone.
[92] In AM and Another v MEC for Health Western Cape , 15 it was held that
amongst other things, that an expert opinion represents his reasoned conclusion
based on certain facts or data which are either common cause or established by his
own evidence or that of some other competent witness.
[93] The failure by the medical staff of the defendant at Masakhane Clinic to
conduct adequate monitoring of the plaintiffs and to administer a standard of care to
the plaintiff was negligent and wrongf ul omission.
[94] In Mitchell v Dixon ,16 the court stated that a medical practitioner is not
expected to bring to bear upon the case entrusted to him the highest possible degree
of professional skill, but is bound to employ reasonable skill and care.
13 [1989] ZASCA 98 at para 13;1990 (1) SACR 95 (A) at 98E -G.
14 [2006] ZASCA 180; [2007] 3 All SA 580 (SCA) at para 18.
15 [2020] ZASCA 89; 2021 (3) SA 337 (SCA) at para 19.
16 Mitchell v Dixon 1914 AD 519 at 525.
[95] In deciding what is reasonable, the court will have regard to the general level
of skill and diligence possessed and exercised at the time by the members of the
branch of the profession to which the practitioner belongs.
[96] What is evident in this matter, as demonstrated by uncontested evidence, is
that the medical staff of the defendant failed to take reasonable measures to prevent
injury to the first and second plaintiff. The conduct of the medical staff of the
defendant especially at the clinic w as indicative of substandard care that was given
to the first plaintiff during the crucial moments of labour.
[97] The negligence of the medical staff consists of, inter alia , failure to properly
monitor the first plaintiff and the baby in accordance with the applicable guidelines.
They failed to do the required monitoring for an extended period of time, something
which a reasonable medical staff could not do. They did not take what the plaintiff
told them that the baby was too big for vaginal birth and th at she would need to be
delivered by caesarean. They did not follow up on this information. A reasonable
medical practitioner would consider this information and take steps to confirm or
exclude any such possibility that the baby was too big for vaginal bi rth. The staff
members left things to chance. Further, they did not examine the first plaintiff after
she told them that she was bleeding and when she told them that she was no longer
feeling the baby. They did not provide oxygen to the first plaintiff whe n they ought to
have done so.
[98] The defendant failed to monitor the first plaintiff and the condition of the foetus
properly during the labour, particularly during the active phase thereof. Upon arrival,
the first plaintiff was already in labour and sh e ought to have been adequately
monitored in terms of the guidelines until the delivery of the baby. The probabilities
suggest that had there been proper monitoring the injury would have been avoided.
[99] Having clearly identified the urgent need for the baby to be delivered by
caesarean section due to poor progress in labour, it took more than the prescribed
hour for the procedure to be performed. When it was eventually performed and the
necessity for the resuscitation of the foetus had become apparent, resuscitation fell
far short of the required standard.
[100] I have carefully considered the whole evidence tendered and I am satisfied
that on a balance of probabilities, the second plaintiff discharged the onus to prove
her case.
[101] The defendant committed negligent conduct at the clinic and hospital whe re
they were acting within the course and scope of their employment.
[102] Regarding the first plaintiff's claim for damages, I am not persuaded that she
proved her case on a balance of probabilities. I agree with the defendant that no
adequate evidence w as led to sustain the first plaintiff's claim in her personal
capacity.
[103] Consequently, I am of the view that the first plaintiff's claim in her personal
capacity has not been sustained by any evidence and that it stands to be dismissed
with no order to costs.
COST AND ORDER
[104] In the premises, the order I grant is as follows:
1. The first plaintiff's claim on behalf of the minor child (second plaintiff) is
upheld;
2. The defendant is held liable for the proved damages sustained by the
minor child.
3. The first plaintiff's claim in her personal capacity is dismissed with no
order to costs.
4. The defendant is ordered to pay the plaintiff's cost of suit in respect of
the determination of the merits of her claim in her representative capacity only,
to date hereof as follows:
4.1. The costs of counsel on scale B;
4.2. The costs of consultation, travelling and subsistence of plaintiff
experts and legal representative for purposes of consultation and trial;
4.3. The costs occasioned by all postponements of the trial;
4.4. The costs of reports, supplementary report s, qualifying
expenses, joint minutes and reasonable day reservation fees in respect
of the plaintiff's merits expert witnesses and
4.5. Interest on costs at the legal rate from a date 14 days after
allocation to date of payment.
N MZUZU
ACTING JUDG E OF THE HIGH COURT
PRETORIA
APPEARANCES
Heard on: 04 February 2025
Judgment delivered on: 30 April 2025
For the Plaintiffs: Adv JJN Swart
Instructed by: Burnett Attorneys
For the Defendant: Adv G Shakoane SC with Adv NA R C Ngoepe
Instructed by: The State Attorney