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##  MEC for Health Eastern Cape v A.S obo S.S (842/2023) [2025] ZASCA 2 (15
January 2025)

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**SAFLII Note:** Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and [SAFLII
Policy](https://www.saflii.org/content/terms.html)  
---  
  
**THE SUPREME COURT OF APPEAL OF SOUTH AFRICA**

###  **JUDGMENT**



**Not Reportable**

Case no: 842/2023

In the matter between:



**MEC FOR HEALTH EASTERN CAPE
APPELLANT**



and



**A[...] S[...] OBO S[...] S[...]
RESPONDENT**



**Neutral citation:    **_MEC for Health Eastern Cape v AS obo SS_(842/2023)
[[2025] ZASCA 02](/cgi-bin/LawCite?cit=%5b2025%5d%20ZASCA%2002 "View
LawCiteRecord") (15 January 2025)

  

**Coram:**        NICHOLLS, WEINER and KEIGHTLEY JJA and DOLAMO and MOLITSOANE
AJJA

  

**Heard** :         13 November 2024

  

**Delivered** :   This judgment was handed down electronically by circulation
to the parties' representatives by email, publication on the Supreme Court of
Appeal website, and released to SAFLII. The date for hand down is deemed to be
15 January 2025 at 11h00.

  

**Summary:**   Civil procedure - uniform rule 49 - condonation and
reinstatement of appeal - discretion to condone not exercised judicially -
delict - medical negligence - causation - total body of evidence not
establishing causation - full court ought to have struck appeal from roll.

###  **ORDER**

  

**On appeal from:** Eastern Cape Division of the High Court, Mthatha
(Rugunanan J with Smith and Potgieter JJ concurring, sitting as court of
appeal):

1                The appeal is upheld with costs, including those of two
counsel.

2                The order of the full court is set side and replaced with the
following order:

'The appeal is struck from the roll with costs, including those of two counsel
where so employed.'

  

#  JUDGMENT

  

**Keightley JA (Nicholls and Weiner JJA and Dolamo and Molitsoane AJJA**
**concurring)**



[1]           The subject matter of this appeal is a medical negligence claim
arising from the conduct of medical staff employed by the appellant, the
Member of the Executive Counsel for Health, Eastern Cape (the MEC), before
and/or during the birth by the respondent, Ms S[...], of her child, SS, at the
St Barnabus Hospital (St Barnabus) in the Eastern Cape in 2012. Ms S[...]
instituted the claim on behalf of SS, who is a minor. The Eastern Cape
Division of the High Court, Mthatha (the trial court) absolved the MEC of
liability. Ms S[...]'s appeal to the full court (the full court)succeeded, and
the MEC was ordered to pay such damages as are proven consequent on the
hypoxic ischaemic encephalopathy and brain injury sustained by SS as a result
of the medical negligence of the medical staff. The MEC was granted leave on
petition to appeal the full court's order and judgment to this Court.



[2]           Medical negligence claims linked to cerebral palsy in new-borns
are increasingly prolific in our courts. They often involve complex questions
around negligence and, in particular, causation. The present case is no
exception. Complicating matters further are the multiple failings on the part
of Ms S[...]'s attorney to comply with the relevant Uniform Rules of Court
(the rules) regulating the appeal from the trial court to the full court.
These failings raise the important anterior question of whether the full court
erred in overlooking these failings and, effectively (although not expressly),
condoning them.



[3]           The two aspects of the appeal are linked. Condonation of a
failure to comply with the rules almost inevitably involves weighing the
prospects of success on the merits of the appeal as a key factor. For reasons
that will become apparent later in this judgment, this case illustrates that
where condonation is opposed a court must give proper consideration to the
question of whether a case for that relief has been made out by the defaulting
party. The first question that arises in this appeal is whether the full court
did so.



[4]           The trial court handed down judgment in the matter on 27 August
2020. Leave to appeal was duly filed by Ms S[...] and was granted to the full
court on 12 November 2021. On 19 November 2021 the Notice of Appeal was served
and filed. This was the last time that the rules governing the appeal were
properly adhered to by Ms S[...]'s attorney, Mr Mjulelwa of Mjulelwa Inc. What
occurred thereafter was the serial non-compliance with almost all of the
relevant rules by Mr Mjulelwa.



[5]           To begin with, rule 49(6)_(a)_ requires an appellant to make
written application to the registrar for a date for the hearing of the appeal.
This must be done within 60 days of delivery of the notice of appeal. If the
appellant does not do so, the respondent may apply for a date. However, if
neither party does so, 'the appeal. . . shall be deemed to have lapsed'. No
application was made in terms of rule 49(6)_(a)_.



[6]           Rule 49(7) regulates the filing of the record of appeal. It
requires the appellant to file three copies with the registrar and to furnish
two copies to the respondent. This must be done at the same time as the
application for a date for the hearing of the appeal. The registrar must also
be provided with a complete index and copies of all the papers. The rules make
provision for the process that should be followed if the record is not
available at this time. In that case, application may be made to the registrar
to accept an application for a date for the hearing without copies of the
record, either on the basis of a written agreement between the parties or,
failing this, an application by the appellant supported by an affidavit.[1]
Rule 49(8) prescribes the format that must be followed when compiling the
record, down to the required spacing, line numbering etc. The parties may
consent, in writing, to the omission of portions of the record.[2]



[7]           There was a wholesale failure by Mr Mjulelwa to comply with the
rules pertaining to the record. The only semblance of an attempt to do so took
place on 10 February 2022. Ms S[...]'s attorneys emailed to the MEC's
attorneys two documents, each headed 'Index to Appeal', listing various
documents, including 'Transcribed records for the court proceedings.' These
indexes did not relate to any actual appeal record, nor even to the trial
record. The MEC was simply not furnished with an appeal record at all nor, by
all accounts, was the registrar. What is more, no appeal case number was
provided, nor was there any indication that the appeal was to the full court.
Quite what the registrar was expected to make of this is not clear although,
given that Ms S[...]'s attorneys had not even applied for a date for the
hearing of the appeal, the registrar must have been blissfully unaware that an
appeal was on its way. There was also no approach to the MEC's attorneys to
agree to parts of the record that could be omitted.



[8]           The next major failure on the part of Ms S[...]'s attorneys was
in relation to the obligation to provide security for costs. Rule 49(13)
requires an appellant to enter into 'good and sufficient' security for a
respondent's costs of appeal save where a respondent has waived their right to
security, or the court, in granting leave to appeal, has released an appellant
from the duty to provide security. It is common cause that the MEC did not
waive her right to security, nor did the high court release Ms S[...] from her
obligation to provide it. Nonetheless, no security was filed. The failure to
do so was described by Mr Mjulelwa as 'an oversight'.



[9]           It appears that at some point the appeal was subject to case
management by a designated judge. It was only as a result of this that a date
was secured for the hearing of the appeal on 25 July 2022\. In the run up to
this date the MEC's attorneys wrote to Mjulelwa Inc listing the latter's
failure to comply with the rules in respect of, among others, the absence of
an appeal record having been provided to the MEC or to the court. The MEC's
attorneys recorded that they would proceed to file an application under rule
49(7)_(d)_ for an order declaring that the appeal had lapsed.



[10]       Mr Mjulelwa's response, somewhat surprisingly, was that the MEC had
been provided with an 'electronic version of the record' and that on his (Mr
Mjulelwa's) reading of the rules he was not required to serve hard copies. He
also accused the MEC's attorneys, who had raised the absence of security as a
further failing, of engaging in delaying tactics. It seems that the Deputy
Judge President was also concerned about the status of the appeal and whether
it would proceed as scheduled. Having been apprised of the situation, he
informed the parties that the appeal would not be heard on 25 July 2022, and
that the allocated judges would instead attend to other matters.



[11]       On 5 October 2022 the MEC filed an application under rule
49(7)_(d)_ for an order declaring that the appeal had lapsed for want of
compliance with the rules. Mr Mjulelwa filed an answering affidavit on behalf
of Ms S[...] in opposition to the application. It was filed out of time and,
although in the body of the affidavit Mr Mjulelwa made reference to seeking
condonation for his failures to comply with the rules, there was no counter-
application for relief of that nature.



[12]       There matters rested until shortly before the second hearing date
of the appeal, which was set for 13 February 2023. On 10 February, which was
the Friday preceding the appeal hearing on Monday 13 February, Mr Mjulelwa
served and filed a 'Notice of Application/Notice of Relief Sought Rule 49
Application.' The relief sought included that Ms S[...]'s failure to comply
with rule 49 be condoned and that 'the hearing of the appeal' be re-instated.
This application was bereft of a supporting affidavit. From submissions
subsequently made on behalf of Ms S[...], and as appears, too, from the
judgment of the full court, Mr Mjulelwa placed reliance on the contents of the
answering affidavit to the MEC's application under rule 49(7)_(d)_ to support
the case for condonation and re-instatement.



[13]       At the hearing of the appeal before the full court the MEC opposed
the request for condonation and reinstatement. I say 'request' because the
notice filed on 10 February by Mr Mjulelwa was itself non-compliant with the
rules. Despite this, the matter proceeded. Without discussing its reasons for
doing so, the full court appears largely to have ignored the fact that the
condonation and reinstatement application was not supported by an affidavit.
It proceeded to treat the answering affidavit filed on behalf of Ms S[...] in
the MEC's application in terms of rule 49(7)_(d)_ as the affidavit supporting
the case for condonation.



[14]       The full court correctly identified several undeniable breaches of
key provisions of rule 49, including sub-rules (6)_(a)_ , (7)_(a)_ , (9),
(13)_(a)_ and _(b)_ and (15). In his answering affidavit Mr Mjulelwa had
attempted to explain his failures to comply with the rules. He placed reliance
on the fact that the matter had been subject to case management, implying that
the appeal process was regulated by the case-managing judge, rather than the
ordinary appeal processes prescribed in the rules. As the full court noted,
however, the case management of the appeal had occurred after the failure to
comply with rule 49(6)_(a)_ , and thus after the appeal had lapsed. In other
words, case management did not provide a solution to the lapsing of the
appeal.



[15]       Mr Mjulelwa's further explanations were equally unpersuasive.
Shockingly, he blamed his abject failure to comply with the rules on the fact
that he had opened a branch office in East London at the time that the appeal
process commenced. Consequently, he had left the appeal in the hands of a
candidate attorney in the Mthatha office. Mr Mjulelwa himself had not been in
the Mthatha office to oversee either the candidate attorney or the file. As if
this were not enough, he also relied on the fact that this was the first
appeal that his office was attending to as a reason for the 'oversight' in not
filing security. In other words, Mr Mjulelwa left the first appeal his legal
firm was responsible for in the hands of a candidate attorney in an office at
which he was not present.



[16]       As to the complete disregard of the rules relating to the appeal
record, his explanation was no better. In Mr Mjulelwa's view, the MEC already
had possession of all the documents that formed part of the trial record and
so his office needed to do no more than provide electronic indexes to her
attorneys. The MEC was not prejudiced in any way, as she would simply be
'expected to index and paginate [her own] documents'. This attempt at an
explanation is completely contrary to the scheme of record management central
to the smooth running of the appeals systems in all courts. It ignores the
fact that a common record is the central source upon which not only the
parties, but the courts, too, depend. In the absence of a common record
available to all parties, the registrar, and the judges who comprise the
appeal panel, the appeals system cannot function.



[17]       One final aspect is Mr Mjulelwa's propensity to place the blame for
his failures on the MEC's attorney not having pointed out to him earlier that
he (Mr Mjulelwa) was at fault. Mr Mjulelwa expressed this view in respect of
both the deficiencies in the record and the failure to provide security. It
need hardly be stated that this can never be an acceptable explanation for
such fundamental and multiple breaches of the rules as occurred in this case.
It speaks, too, to a lack of candour on the part of Mr Mjulelwa, who, after
all, was seeking an indulgence from the court on behalf of his client. His
high-handed attitude was completely inconsistent with this fact.



[18]       In its judgment the full court described Mr Mjulelwa's approach to
condonation as fallacious, misguided, disingenuous and as revealing 'a
disquieting history indicative of a reckless disregard for the rules of
court'. It also noted the inherent prejudice to the MEC in expecting her to
incur the substantial cost of compiling her own record from the indexes
provided. In fact, the full court itself appears to have had difficulty in
working with the 'dishevelled and illegible' record provided to it. The full
court found merit in the MEC's opposition to the request for condonation. Yet,
despite this, it did not proceed to make a ruling on the issue of condonation.
Instead, the full court simply proceeded to consider the merits of the appeal,
finding in favour of Ms S[...] and overturning the absolution granted by the
trial court.



[19]       It is trite that the high court has an inherent right to grant
condonation for a failure to comply with the rules of court where the
interests of justice demand this. The discretion to do so is extensive,[3] but
it must be exercised judicially. A party seeking condonation must give a full
explanation for the failure to comply with the rules and this explanation must
be reasonable.[4] The court must weigh all relevant factors including,
depending on the facts of each case, the degree of non-compliance, the
explanation therefor, the importance of the case, the avoidance of unnecessary
delays in the administration of justice and the prospects of success.[5] These
factors are interrelated and must be weighed one against the other. For
example, a slight delay and a good explanation might compensate for weak
prospects of success.[6] However, in a case of flagrant or gross non-
observance of the rules, a court may refuse condonation regardless of the
prospects of success.[7]



[20]       Where an attorney is to blame for the non-compliance, a blameless
litigant may escape penalisation,[8] but there is a limit beyond which she or
he may be indemnified against the attorney's lack of diligence and absence of
a reasonable explanation.[9] The negligence of the attorney is weighed
together with the other relevant factors in considering whether condonation is
justified.[10]



[21]       Mr Mjulelwa's conduct in this matter is both flagrant and gross.
The failings were multiple, extending so far as to include the failure
properly to institute the condonation application itself. Mr Mjulelwa's
explanations, such as they were, served to aggravate, rather than mitigate his
failings. An attorney who has been instructed to note an appeal is duty-bound
to acquaint him or herself with the rules.[11] Not only did Mr Mjulelwa
patently not do so, but he exacerbated this disregard of his duties by leaving
the appeal in the hands of a candidate attorney, seemingly without
supervision, in a different office.



[22]       This resulted in prejudice to the MEC, as noted by the full court,
as well as prejudice to the due administration of justice. Three judges, who
were originally allocated to hear the appeal in November 2022, had to be re-
allocated to other duties shortly before the scheduled hearing because there
was no record to speak of. The MEC, who faces a barrage of claims of this
nature, was expected to compile her own record, and was subjected to a
completely unnecessary delay in the finality of this claim. These are all
factors that, on a judicial exercise of the full court's discretion, ought to
have weighed against it approaching the condonation request with alacrity.



[23]       Although the full court appeared to have accepted that the non-
compliance was flagrant, gross and lacking any reasonable explanation, it
failed to complete the requisite exercise by weighing all relevant factors
together. Contrary to the tried-and-tested approach to condonation established
over decades, what the full court did was to consider, as the sole factor, the
merits of the appeal. Save for recording its reluctance 'to order an outright
striking from the roll', it gave no reasons for not doing so. Indeed, the full
court did not even include as part of its order a paragraph granting
condonation and reinstatement of the appeal. In my view, in adopting this
approach, the full court failed to exercise its discretion judicially or at
all, and this Court is free to interfere in the exercise of that court's
discretion.



[24]       The question to consider is whether the appeal ought to have been
struck from the full court's roll. What this Court must do is to complete the
exercise that the full court failed to undertake properly, and to weigh the
prospects of success against these other factors.



[25]       There is no need to repeat the egregious nature of Mr Mjulelwa's
multiple breaches of the rules and the absence of a reasonable explanation. I
am mindful of the fact that the subject-matter of the appeal was a claim for
damages on behalf of a minor child who is disabled, allegedly through the
negligence of the MEC's employees. This is a factor weighing in favour of Ms
S[...] and leniency on the issue of condonation. It is also relevant that the
failings were on the part of her attorney. This factor, too, may point to
leniency, depending on the circumstances of the case.



[26]       Turning to the prospects of success, from the authorities cited
earlier it is clear that this is not necessarily a decisive factor. In the
case of gross negligence, as in this case, even strong prospects may not
justify condonation. This is particularly so, again as in this case, where
there is no reasonable explanation for that conduct. In my view, against these
factors, in such a case there would have to be extremely strong, and not just
arguable, prospects of success to justify the exercise of the discretion in
favour of the defaulting party. In its assessment, the full court viewed the
prospects of success as being so strong that it found in favour of Ms S[...].
Was it correct in this assessment? If not, there could have been no
justification for its decision not to strike the matter from the roll. This
question requires a consideration of the facts and merits of the case.



[27]       The relevant facts are largely common cause. Ms S[...] was 17 years
old when she was referred from the local clinic to St Barnabus at 21h32 on 25
December 2012. She was in labour and was examined by the nursing staff at
21h34. They noted that her cervix was 8cm dilated. Her clinical records also
show that the foetal heart rate was measured as 'deceleration mixed and
lasting', indicating some foetal distress. The 'caput' or head measurement was
'++' pointing to obstruction in the pelvic canal. At this stage, there was
only one doctor on duty at the hospital, Dr Madikane. She was already in
theatre putting up a chest drain in another patient, and was only able to
examine Ms S[...] at 22h50.



[28]       On the available evidence it was common cause that the nursing
staff conducted no further foetal heartrate monitoring on Ms S[...] save for
the first one on her admission. This failure formed the basis of the complaint
that the nursing staff had been negligent in their care. In light of the
conclusion I reach on the element of causation, it is not necessary to
determine whether negligence was established in this respect.



[29]       Dr Madikane took the decision to prepare Ms S[...] for a caesarean
section when she examined her. As this required two doctors, she telephoned
the 'on call' doctor, Dr Mlandu, who was not on site. Dr Mlandu was at her
lodgings in Mthatha as the hospital did not have accommodation for its doctors
on its premises. The trip from Mthatha to the hospital took about 30 to 40
minutes. Ms S[...] had to be prepared for surgery, and the staff on duty had
to explain to her what the procedure entailed for purposes of her consent. The
theatre itself also had to be readied for the surgery and, of course, Dr
Mlandu had to arrive and prepare herself for the surgery as well.



[30]       The surgery commenced at 00h20. Dr Madikane acted as the
anaesthetist, with Dr Mlandu performing the caesarean surgery. Ms S[...] was
administered a spinal anaesthetic. Unfortunately, she had an adverse reaction
to this, becoming desaturated with her pulse dropping and her blood pressure
reading 50/35. In common parlance, Ms S[...] 'crashed' and was in critical
danger of cardiac arrest and death. A further consequence of her reaction was
that the oxygen supply to the foetus was interrupted. The decision was made
for Dr Mlandu to halt the caesarean section in order to assist Dr Madikane in
resuscitating Ms S[...]. They managed to do so and, when Ms S[...] was stable,
Dr Madikane continued with, and completed, the caesarean. The hospital records
show that the operation was completed at 01h20 on 26 December 2012\.



[31]       When SS was born she had low apgar scores and was subsequently
diagnosed with cerebral palsy. The parties' respective radiologists agreed
that the imaging features of her MRI brain scan showed features typical of an
acute profound (central) hypoxic ischemic injury pattern, with no additional
imaging features suggestive of a prolonged partial injury component. This was
the cause of the cerebral palsy.



[32]       Reduced to its essence Ms S[...]'s case was that there was
insufficient monitoring of the foetal heart rate from the time of admission to
the time that the caesarean was performed. If conducted properly, signs of
foetal distress would have been detected earlier. Other signs of foetal
distress were apparent, requiring timeous delivery of the baby to avoid harm.
The decision to perform a caesarean should have been made at 21h34. Instead,
the surgery was delayed for three hours. Ms S[...] contended that the most
likely cause of the brain injury was the untreated foetal distress and
asphyxiation suffered by SS during the three hours before her delivery.



[33]       The parties agreed that the joint minutes of experts were
admissible without the necessity of calling the experts concerned to testify.
The MEC led the evidence of both Dr Madikane and Dr Mlandu. In addition, they
relied on the evidence of Dr Brannigan, a specialist anaesthesiologist with a
sub-specialty in critical care. He filed two reports and gave evidence at the
trial. It is not necessary to summarise the evidence of these witnesses as
this was comprehensively dealt with in the judgments of both the trial court
and the full court.



[34]       Ms S[...] placed substantial reliance on the joint minutes of the
obstetricians and the paediatricians. This found favour with the full court.
Referring to _Bee v Road Accident Fund_[12] it noted that a court is bound by
the facts agreed on between experts in their joint minutes unless these are
repudiated timeously by a party. With reference to the joint minutes of the
obstetricians, the full court found that: '. . . it is common cause between
[them] that the cerebral palsy most likely resulted from "hypoxic ischaemic
encephalopathy" and obvious resultant brain damage "due to f[o]etal distress
in labour" that was "not detected because of sub-standard f[o]etal heart rate
monitoring in labour".' This conclusion, noted the full court, was in line
with the paediatricians' joint minutes, in which it was agreed that: 'The most
likely time period of hypoxic ischaemic brain injury was the peripartum period
(i.e. the period shortly before, during or immediately after delivery.' The
full court concluded from this that:

'There can accordingly be little doubt that the injury occurred during the
period when the relevant clinicians were required (but failed) to properly
monitor the foetal heart rate and determine foetal distress. . . I am
therefore satisfied that on the available evidence (i.e. the joint minutes)
and the probabilities, causation has been established.'[13]



[35]       What the full court failed to appreciate was the distinction that
must be drawn between factual evidence given by expert witnesses and their
opinions. As this Court explained in _HAL obo MML v MEC for Health, Free State
(HAL)_ :[14]

'As to the former, there is no difficulty in applying _Bee_ to the facts on
which the experts agree, any more than there is a difficulty where the parties
themselves reach agreement on factual issues. The opinions of the experts
stand on a completely different footing. Unlike agreement on questions of
fact, the court is not bound by such opinions. It is still required to assess
whether they are based on facts and are underpinned by proper reasoning.'



[36]       Illustrating this point, the Court in _HAL_ extrapolated:

'Counsel's approach was that the radiologists' agreement confined the insult.
. . to the perinatal period and it was not open to Dr Kganane to question the
severity of the insult at that time. But the agreed minute related to their
opinion in regard to the period when the insult occurred, not to a question of
fact.'[15]



And finally:

'In summary, the position in regard to agreements between experts, is as
follows. In accordance with _Bee_ , if they agree on issues of fact and the
appropriate approach to technical analysis, the litigants are bound by those
agreements, unless they have been withdrawn in circumstances where no
prejudice results, or any prejudice can be cured by an adjournment or other
means. _If the experts have reached agreement on a common opinion on a matter
within their joint expertise, that is merely part of the total body of
evidence. The court must still determine whether to accept the joint opinion._
The existence of that agreement between the experts will not ordinarily
preclude evidence that qualifies or contradicts their opinion, unless the case
has been conducted on the basis of the agreement and the admission of that
evidence will prejudice the other party in a manner that cannot be cured. If
the parties choose to place an agreed minute before the court reflecting both
shared opinions and areas of disagreement and do not call the parties to the
minute to deal with the areas of disagreement, the minute will do no more
tha[n] reflect that there is disagreement on the point. While it is for the
parties to determine which witnesses they call, if they fail to call the
authors of a joint minute they cannot object when other witnesses express
views that qualify or dissent from the views in the minute.'[16] (Emphasis
added.)



[37]       The experts' opinion that the cerebral palsy was caused by
undetected foetal distress due to sub-standard foetal heart rate monitoring
was nothing more than an opinion. The court was not bound by it. What it was
required to do was to consider that opinion as part of the full body of
evidence before it. Instead, the full court misdirected itself by placing
undue reliance on the joint opinions of the obstetricians and paediatricians
in concluding that causation was established.



[38]       The most obvious misdirection by the full court its failure to
factor into its analysis of the facts, the catastrophic 'crashing' of Ms
S[...] at the commencement of the caesarean. By all accounts, this placed Ms
S[...]'s life in danger and must have severely compromised the blood, and
hence oxygen flow, to SS. Aligned with this uncontested evidence, was that of
the radiologists, which identified the cerebral palsy as having resulted from
an acute profound hypoxic ischaemic injury, rather than a partial, prolonged
injury. It was not in dispute that the former type of injury is associated
with a sentinel event. Consequently, the reasonable possibility is that the
sentinel event that ultimately caused the brain injury was Ms S[...]'s adverse
reaction to the spinal anaesthetic.



[39]       What is more, there was no evidence to support the conclusion that
proper monitoring prior to the operation would have averted the brain injury.
The opinion of the experts, which was endorsed by the full court, was based on
the assumption that had there been proper monitoring to identify ongoing
foetal distress the caesarean would have been performed at 21h34 or soon
thereafter. However, this assumption ignores the evidence that was before the
court. When Ms S[...] was first examined at 21h34 the only doctor at the
hospital was unavailable because she was in theatre with another patient. For
obvious reasons, it was never suggested that the nurses who examined her could
have made the decision that a caesarean section was necessary and, without the
say-so of Dr Madikane, put that process in motion.



[40]       Dr Madikane was the only one who could have made that decision and
she did so immediately after she examined Ms S[...] at 22h50. Thereafter, on
the uncontested evidence, it was necessary to summon Dr Mlandu, who was 30 to
40 minutes away, prepare Ms S[...] and the theatre for the operation. On the
totality of evidence, then, the caesarean section could not have been
performed earlier, even if the nursing staff had carried out regular heart-
rate monitoring. In other words, contrary to the conclusion of the full court,
the evidence did not establish that but for the sub-standard monitoring in
labour, the brain injury would not have occurred. Thus, causation was not
established.



[41]       Counsel for Ms S[...] did not press the argument that the MEC was
negligent in the manner in which resources were allocated to St Barnabus as a
level 1 district hospital, and that this negligence had led to a shortage of
staff and hence, indirectly, caused the delay in the operation and the brain
injury. There was insufficient evidence before the trial court to sustain that
case and, in my view, it was correctly not relied on by Ms S[...] in the
appeal before this Court. On the available evidence, at the time of this
sentinel event, the medical staff did all they could to resuscitate Ms S[...]
and there was nothing the doctors could have done to prevent the interruption
of the flow of oxygen to SS at the time.



[42]       Nor was reliance placed on the possible negligence of Dr Madikane
and Dr Mlandu in stopping the caesarean section when Ms S[...] 'crashed' to
attend to her resuscitation rather than prioritising the delivery of SS.
Again, in my view, this is not a case that could have succeeded on the
evidence before the trial court. Dr Brannigan's evidence established
convincingly that prioritising the mother's resuscitation was a reasonable
surgical response in the circumstances in which the two doctors found
themselves.



[43]       The upshot of all of this is that there was a demonstrable
misdirection on the part of the full court in assessing the prospects of
success of Ms S[...]'s appeal. It failed to consider the total body of
evidence in reaching the conclusion that causation had been established.
Accordingly, its decision to refuse to strike the appeal from the roll because
of the prospects of success cannot be justified. It follows that in the proper
exercise of its discretion, the full court ought to have refused condonation
and re-instatement of the appeal and struck it from the roll.



[44]       My final word is reserved for the conduct of Ms S[...]'s attorney.
I earlier detailed the myriad respects in which it fell short of the standard
of service expected of an officer of court. This had serious implications for
Ms S[...]'s appeal, ultimately leading to its failure. The ethical thing to do
would be for Mr Mjulelwa to refer Ms S[...] to another attorney to advise her
on the prospects of her succeeding in a claim against him arising from his
unprofessional conduct in this case. I trust that Mr Mjulelwa will heed this
injuction and act accordingly.



[45]       In the result, I make the following order:

1        The appeal is upheld with costs, including those of two counsel.

2        The order of the full court is set aside and replaced with the
following order:

'The appeal is struck from the roll with costs, including those of two counsel
where so employed.'









 R M KEIGHTLEY

JUDGE OF APPEAL

  

**Appearances**

For appellant: |  H J van der Linde SC with N James  
---|---  
Instructed by: |  Norton Rose Fulbright SA Inc, Johannesburg  
  
|  Webbers Attorneys, Bloemfontein  
For respondent: |  A G Dugmore SC with N P Mnqandi  
Instructed by: |  Mjulelwa Inc Attorneys, Mthatha  
  
|  Phatshoane Henney Inc, Bloemfontein.  
  
  

[1] Rule 49(7)_(a)_.

[2] Rule 49(9).

[3] _Cairn 's Executors v Gaarn_ [1912 AD 181](/cgi-
bin/LawCite?cit=1912%20AD%20181 "View LawCiteRecord") at 186.

[4] _Van Wyk v Unitas Hospital and Another_ [[2007] ZACC
24](http://www.saflii.org/za/cases/ZACC/2007/24.html "View Case");  [2008 (2)
SA 472](/cgi-bin/LawCite?cit=2008%20%282%29%20SA%20472 "View LawCiteRecord")
(CC); [[2007] ZACC 24](http://www.saflii.org/za/cases/ZACC/2007/24.html "View
Case"); [2008 (4) BCLR 442](/cgi-bin/LawCite?cit=2008%20%284%29%20BCLR%20442
"View LawCiteRecord") (CC) para 22.

[5] _Mbutuma v Xhosa Development Corporation Ltd_ [1978 (1) SA 681](/cgi-
bin/LawCite?cit=1978%20%281%29%20SA%20681 "View LawCiteRecord") (A) at 682E.

[6] _United Plant Hire (Pty) Ltd v Hills and Others_ [1976 (1) SA 717](/cgi-
bin/LawCite?cit=1976%20%281%29%20SA%20717 "View LawCiteRecord") (A) at 720E-G.

[7] _Ferreira v Ntshingila_ [[1989] ZASCA
149](http://www.saflii.org/za/cases/ZASCA/1989/149.html "View Case"); [[1990]
2 All SA 47](/cgi-bin/LawCite?cit=%5b1990%5d%202%20All%20SA%2047 "View
LawCiteRecord") (A); [1990 (4) SA 271](/cgi-
bin/LawCite?cit=1990%20%284%29%20SA%20271 "View LawCiteRecord") (A) at
281J-282A (_Ferreira_).

[8] _Reinecke v Incorporated General Insurances Ltd_ [1974 (2) SA 84](/cgi-
bin/LawCite?cit=1974%20%282%29%20SA%2084 "View LawCiteRecord") (A) at 92F.

[9] _Saloojee and Another NNO v Minister of Community Development_ 1965 (2)
SA135 (A) at 141C-E.

[10] _Regal v African Superslate (Pty) Ltd_ [1962 (3) SA 18](/cgi-
bin/LawCite?cit=1962%20%283%29%20SA%2018 "View LawCiteRecord") (A) at 23B.

[11] _Ferreira_ fn 7 at 281F.

[12] _Bee v Road Accident Fund_ [[2018] ZASCA 52](/cgi-
bin/LawCite?cit=%5b2018%5d%20ZASCA%2052 "View LawCiteRecord"); [2018 (4) SA
366](/cgi-bin/LawCite?cit=2018%20%284%29%20SA%20366 "View LawCiteRecord")
(SCA) para 66.

[13] _Sikota obo S v MEC for Health Eastern Cape_ [2023] ZAECMHC 27 paras 75
and 77.

[14] _HAL obo MML v MEC for Health, Free State_ [[2021] ZASCA 149](/cgi-
bin/LawCite?cit=%5b2021%5d%20ZASCA%20149 "View LawCiteRecord");  [[2022] 1 All
SA 28](/cgi-bin/LawCite?cit=%5b2022%5d%201%20All%20SA%2028 "View
LawCiteRecord") (SCA); [2022 (3) SA 571](/cgi-
bin/LawCite?cit=2022%20%283%29%20SA%20571 "View LawCiteRecord") para 220
(_HAL_).

[15] Ibid _HAL_ para 222.

[16] Ibid _HAL_ para 229.

  

* * *