SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE NO: 8734/2017
In the matter between:
N[...] Z[...] Plaintiff
and
THE MEMBER OF THE EXECUTIVE COUNCIL Defendant
FOR HEALTH - WESTERN CAPE
______________________________________________________________________
ORDER
PARKER AJ
1. The application for leave to appeal is dismissed .
2. The defendant shall bear the costs o f the applicat ion on a party and
party scale including the costs of counsel where so employed on
Scale C for Senior Counsel and Scale B for Juni or Counsel, where
so employed.
___________ ______________________________________ _____________________
JUDGMENT – LEAVE TO APPEAL
______________________________________________________________________
[1] This leave to appeal surrounding a difficult childbirth is to grant leave to the full
bench of this honorable court alternatively the Supreme Court of Appeal against the
whole judgment handed down on 1 November 2024 granted in favour of the plaintiff.
The parties are cited as they were in the court a quo .
[2] The application for leave to ap peal requires the determination whether section
17(1)(a)(i), section 17 (1)(a)(ii) and section 17 (1)(b) of the Superior Courts Act 10 of
2013 have been met , hence the raising of the following two questions by the defendant ;
2.1 does the intended appeal have reasonable prospects of success and or
2.2 are there some other compelling reasons why the appeal should be heard ?
[3] The application for leave to appeal is broadened across several grounds which
includes errors of fact relating to the gestation , the objective indicator the cesarean
section , the critical 8 minutes , the MacRoberts maneuver and suprapubic pressure . In
the assessment of evidence , the defendant examines the evidence of plaintiff, nurse
Fletcher , Sister Faro and the medical records . The plaintiff opposed the application for
leave to appeal .
[4] The defendant argued that the comparable case law the court relied on shoulder
dystocia cases of which the facts were starkly distinguishable from this matter and or in
conflict with the authorities relied upon by the defendant in establishing causation ,1
1 NVM obo VKM v Tembisa Hospital and Another [2022] ZACC 11
instead of noting the facts as in Sibisi NO v Maitlin.2 In the latter case , the SCA did not
find Dr Maitlin’s conduct wrongful and hence because the doctor was not negligent ,
liability was not established.3 The circumstances surrounding the Sibisi matter is
distinguishable from this matter in that from a reading of the case , suprapubic pressure
was applied, the MacRo berts procedure was a pplied to “save the baby’s life… in an
emergency when the shoulder dysto cia is preventing the delivery” .4 Mrs Sibisi did not
discharge the onus of proving Dr Maitlin negligent. In the present matter , we simply do
not know what happened - within the critical eight minutes. In my view it i s in the latter
which makes all the d ifference.
[5] The defendant once again took the court through very much the same arguments
it heard before, including that the court erred in paragraph {57} of the judgment , in
finding that the defendant failed to generate a comprehensive and detaile d report , with a
disregard for the evidence given by Sist er Faro in her own handwriting.5 The defendant
cannot escape that it fail ed to produce a comprehensive report, emphasis being on
“comprehensive” as to what happened in the critical eight minutes.
[6] In so far as the experts are concerned , it is defendant’s view that both
obstetricians agreed that the MacRoberts maneuver was attempted, whilst the plaintiff
herself described the maneuver or rather, what she experienced. She said, the bed
was lifted up from the back ,6 her “legs bent, and feet were not flat on the bed ”,7 that
fundal pressure was applied “ under my ribs ”,8 instead of suprapubic pressure.
[7] In terms of Section 17(1), the threshold required for granting leave to appeal has
become more stringent. In Caratco (Pty) Limited v Independent Advisory (Pty) Ltd ,9 an
applicant for leave, the court considering the appeal, whether the applicant would have
2 (311/2013) 2014 ZASCA 15 6 1October 2014
3 Supra para [52]
4 Supra para [42]
5 Pages 17 and 37 of the medical records
6 Record page 17
7 Record page 18
8 Record page 19
9 (982) [ 2020 ] ZASCA 17; 2020 (5) SA 35 (SCA) (25 March 2020) para [2]. Also, para [10]
a reasonable prospect of success or that there are some other compelling reasons why
the appeal should be heard;
“If the court is unpersuaded of the prospects of success, it must still inquire
whether there is a compelling reason to entertain the appeal. A compelling
reason includes any important question of law or a discrete issue of public
importance that will influence future disp utes. But here too, the merits remain
vitally important and are often decisive”
[8] An applicant must convince the court that there truly is a reasonable prospect of
success “a mere possibility of success, an arguable case or one that is hopeless is not
enough. There must be a sound, rational basis to conclude that there is a reasonable
prospect of success on appeal.”10
[9] The authoriti es relied upon by the defendant11 in advancing there are other
compelling reasons, and that , the Superior Courts Act did not bring about with it a new
test for leave to appeal does not assist it. In traversing the grounds set forth for the
leave to appeal, nothing different has been placed before the court, other than which
was argued at the hearing.
[10] After carefully consider ing the grounds for leave to appeal , I am not persuaded
that defendant has not established a reasonable possibility of a reasonable prospect of
success – it “must exist (it must not be hopeless) and must be reasonable (based on
logic.”12 As in Smartpurse, find no such basis. In carefully considering whether there
are compelling reasons to entertain the appeal ,13 the defendant has not advanced
compelling reasons to pass the test.
[11] I see no reason to depart from the usual costs order that costs follow the result.
10 MEC for Health , Eastern Cape v Mkitha and Another [2016 ] ZASCA 176 (25 November 2016 )
paragraphs [16]- [18]
11 Ramakatsa and Others v African National Congress and Another (Case Number 724/2019)[2021]
ZASCA 31 ( 31 March 2021) para [29] , Smartpurse Solutions (Pty) Ltd v Firstrand Bank Ltd (
35882/2022)[ 2024 ZAGPJHC 961 [2026 ] 1 All SA 552 (GJ) 26 September 2024 pars 64 -65
12 Supra Smartpurse para [67] - [67] as to the grounds the applicant must demonstrate
13 Supra Caratco para [10]
[12] Accordingly it is ordered:
1. The application for leave to appeal is dismissed.
2. The defendant shall bear the costs of the application on a party and
party scale, including the costs of counsel where so employed on
Scale C for Senior Counsel and Scale B for Ju nior Counsel, where
so employed .
________________________
R K PARKER
ACTING JUDGE OF THE HIGH COURT
Appearances :
Counsel for Applicant : Adv Peter Corbett SC
Adv Eugene Benade
Instructing Attorney : Rob Menzies Attorneys
Counsel for Respondent : Adv Ellen Fitz -Patrick
Instructing State Attorney: Ms N Hendricks