THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 697/2020

In the matter between:

THE MEMBER OF THE EXECUTIVE
COUNCIL FOR HEALTH AND SOCIAL
DEVELOPMENT, GAUTENG PROVINCE
APPELLANT

and

MM on behalf of OM
RESPONDENT

Neutral citation: MEC for Health and Social Development, Gauteng v MM
on behalf of OM (Case no 697/2020) [2021] ZASCA 128
(30 September 2021)

Coram:
WALLIS, MBHA, MBATHA, GORVEN and HUGHES JJA
Heard:
16 August 2021

Delivered: This judgment was handed down electronically by circulation to
the parties' representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 09h45 on 30 September 2021.

Summary: Delict – medical negligence – damages – liability in respect of a
minor born with brain damage who now suffers from cerebral palsy – whether
hospital staff negligent – if so, whether such negligence caused the damage –
negligence and causation established – MEC liable.

_____________________________________________________________
ORDER
On appeal from:  Gauteng Division of the High Court, Pretoria (Nair AJ
sitting as court of first instance):
The appeal is dismissed with costs, including the costs of two counsel,
wherever so employed.

JUDGMENT

Gorven JA (Wallis, Mbha, Mbatha and Hughes JJA concurring)

[1] On 7 December 2010, a baby boy (OM) was born to the respondent
(Ms M). This had been her first pregnancy. She had presented at the Laudium
clinic on 12 July that year when she was 18 weeks pregnant. There she was
diagnosed as being HIV positive and was prescribed anti-retroviral therapy.
At 02h30 on 7 December, her membranes ruptured and she began to
experience severe abdominal pain. At 06h00 she was admitted to the Laudium
clinic. At 19h25 she was transferred to Kalafong Hospital (the hospital), a
level two hospital at which some 500 to 600 babies are delivered each month.
At 20h15, the cervix of Ms M was 7 cm dilated. At 21h15, it was 9 cm dilated,
at which point it was directed that she be transferred to a delivery ward. OM
was born at 21h50. He suffered a hypoxic ischemic injury during the birth
process which resulted in cerebral palsy.

[2] Ms M launched an action in the Gauteng Division of the High Court,
Pretoria (the high court), against the appellant in this matter, the Member of
the Executive Council for Health and Social Development: Gauteng Province
(the MEC). She sued both in her personal capacity and as the mother and
guardian of OM. The hospital falls under the MEC who is responsible in law
for any injury caused by the negligence of staff employed there. In the action,
Ms M alleged that the hospital staff had been negligent during the birth of OM
and that this negligence caused the hypoxic ischemic injury and its sequelae.
As a result, she claimed damages on her own behalf and on behalf of OM.

[3] Nair AJ, in the high court, dealt initially with issues relating to the
liability of the MEC. Although the order was not specific, it is clear that the
question of negligence on the part of the staff and, if proved, whether that
negligence caused the injury to OM, was to be decided.1 The high court held
that the MEC was liable for the agreed or proved damages caused by the
injury. The MEC was granted leave to appeal on a narrow issue by the high
court. An application was then made to this Court, which granted leave to
appeal against the whole judgment.

[4] What emerged without challenge was that, on admission to the hospital,
Ms M was a high risk patient. The known reasons for this were twofold. By
then, the ruptured membranes had endured for a prolonged period and she was
HIV positive. The latter is a risk factor for hypoxia. It is common ground that
both of these signalled the need for careful monitoring, inter alia, by way of

1 This Court has repeatedly lamented the failure of trial courts to make orders specifying precisely which
issues are to be dealt with separately and initially. Regrettably, this is yet another instance of such failure.
See eg Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) para 3 and ABSA Bank Ltd v Bernert 2011 (3)
SA 74 (SCA) para 21.

a cardiotocograph (CTG). This measures foetal heart patterns. If the foetus is
not supplied with sufficient oxygen, abnormal heart rates result. There are
various warning signs of impending foetal hypoxic distress. Where these are
present, the medical staff need to take action.

[5] It is also common ground that the critical period in this matter is the
time between approximately 20h30 and 21h34. It was agreed that the injury
probably occurred in the period between 21h34 and 21h50 when OM was
born. The trial revolved largely around the correct interpretation of the CTG
tracings during the critical period. For this, each party employed experts. The
experts differed on some of the interpretations. As a result, they also differed
on when any action on the part of the hospital staff was required and whether
any actions taken then would have prevented the injury to OM.

[6] As was the case in the high court, the issues before us are twofold. First,
whether Ms M proved that hospital staff were negligent. In this context, the
test has remained clear:
‘. . . [I]n 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.’2
Secondly, if so proved, whether that negligence caused or contributed to the
injury suffered by OM. Ms M bore the onus of proof on these issues. It bears
remembering that the required standard is proof on a balance of probabilities.
It is also worth noting that, in arriving at their opinions, medical experts

2 Van Wyk v Lewis 1924 AD 438 at 444.

frequently apply a scientific level of proof approaching certainty. Courts must
guard against adopting this standard.3

[7] All of the experts accepted that the pattern of injury on the Magnetic
Resonance Imaging (MRI) scans of OM indicated that the hypoxic ischemic
injury was of the acute profound type at full term. Professor van Toorn gave
uncontested evidence of the mechanism of damage in the case of an acute
profound hypoxic ischemic injury. The foetal brain obtains its oxygen from
the placenta. Where the supply of oxygen ceases, an insult to the central grey
matter of the brain takes place. Babies can withstand very short periods
without oxygen, called insults, by various mechanisms. But when the insults
are of a recurrent nature and are continuous, there is a compounding effect. It
is this which gives an indication that injury might result. At some stage
collapse occurs, causing damage to the central grey matter. This is termed an
injury. The key is to take the infant from this unfavourable environment of
frequent, persistent insults before the insults result in an injury. In this way,

3 See Maqubela v S [2017] ZASCA 137; 2017 (2) SACR 690 (SCA) para 5, where it was said:
‘In Michael & another v Linksfield Park Clinic (Pty) Ltd & another 2001 (3) SA 1188 (SCA) para 40, the
important distinction to be drawn between the scientific and judicial measures of proof when assessing expert
scientific evidence, was emphasised:
“Finally, it must be borne in mind that expert scientific witnesses do tend to assess likelihood in terms of
scientific certainty. Some of the witnesses in this case had to be diverted from doing so and were invited to
express the prospects of an event’s occurrence, as far as they possibly could, in terms of more practical
assistance to the forensic assessment of probability, for example, as a greater or lesser than fifty per cent
chance and so on. This essential difference between the scientific and the judicial measure of proof was aptly
highlighted by the House of Lords in the Scottish case of Dingley v The Chief Constable, Strathclyde
Police 200 SC (HL) 77 and the warning given at 89D - E that:
‘[O]ne cannot entirely discount the risk that by immersing himself in every detail and by looking deeply into
the minds of the experts, a Judge may be seduced into a position where he applies to the expert evidence the
standards which the expert himself will apply to the question whether a particular thesis has been proved or
disproved – instead of assessing, as a Judge must do, where the balance of probabilities lies on a review of
the whole of the evidence.’”
The scientific measure of proof is the ascertainment of scientific certainty, whereas the judicial measure of
proof is the assessment of probability.’

the infant can be salvaged. This requires monitoring which can indicate for
how long, and how frequently and seriously, insults are occurring.

[8] A joint minute of the two neuro-radiologists agreed that the injury was
of the acute profound type:
‘There are no MRI changes to suggest a partial prolonged hypoxic ischemic injury wherein
the watershed areas got damaged and this happens over a long time. In this case we only
have acute profound damage which usually happens in the 10-40 minutes before birth. The
radiologists agree that there was hypoxic ischemic injury that occurred to the brain of the
full term infant. According to the radiologists, more than one event took place in the
gestational period. The first insult was the infarct on the right temporal lobe followed by
the injury which occurred during the birth process being the hypoxic ischemic injury.’

[9] It is as well to deal at the outset with the first mentioned insult. The
infarct on the right temporal lobe, commonly called a stroke, probably took
place toward the end of the second trimester. None of the experts saw this
stroke as having caused the injury on which Ms M sued. Had the stroke caused
the damage, the MRI would have looked different.

[10] There were two main elements to the trial. The first related to the
interpretation of the CTG tracings. This fuelled the debate as to when any
interventions were appropriate and whether such interventions would
probably have prevented the injury. An additional, second, matter arose
during the trial concerning the histology of Ms M’s placenta. This had been
sent for analysis prior to the trial but further analysis was sought by the MEC
during the course of the trial by a different expert, Professor Colleen Wright.

[11] This second histological report concluded as follows:

‘Morphologic assessment of the placenta suggests chronic villitis of unknown etiology. . .
. . .
Adverse clinical pregnancy outcome corresponds with histologically defined VUE severity
(high-grade lesions).’
VUE refers to villitus of unknown etiology. This is associated with the
placenta having abnormal blood vessels. The joint minute of the experts
concluded:
‘As a consequence of the aforementioned, the placental pathology decreased the baby’s
ability to withstand the stress of labour.’
They agreed that this did not cause the injury sued on. It did mean that OM
was more vulnerable to being injured than would have been the case of a
foetus supplied with oxygen by a placenta without that pathology.
Dr Mogashoa, who first suspected placental pathology, supported this
conclusion. She agreed that the ‘final insult’, which gave rise to the cerebral
palsy, was hypoxic ischaemic in nature.

[12] Counsel submitted that the presence of VUE and the resultant greater
vulnerability of OM to stress in labour was unforeseeable. He was correct but
it was unclear where that took him. The issue was whether there was proper
monitoring of the CTG scans during labour. Assuming in his favour that VUE
was a factor in causing OM's fetal distress, that does not exonerate the nurses
for their failure to conduct the monitoring properly. It was not the cause of the
foetal distress that mattered but any failure to observe the signs of its presence
and take steps to alleviate the stress and accelerate his delivery. The presence
of VUE did not alter any of this. In general, in cases of personal injury, the
rule is that one takes one's victim as one finds them as illustrated by the so-

called 'eggshell' skull cases.4 The question was not whether there was a
predisposition to suffering injury, but whether, even in the absence of
knowledge of that predisposition, proper care in the circumstances known to
the nursing staff at the time would have avoided the consequences that
actually occurred.

[13] The question, then, is whether insults which indicated the need to
intervene would have been discernible by reasonable hospital staff during
Ms M’s labour. The answer to this question depends largely on the
interpretation of the CTG tracings during the critical period of 20h30 to
21h32. I say 21h32 because there was consensus that at that time the CTG
tracing was pathological. Urgent action was required.

[14] Various expert witnesses led evidence on the CTG tracings. Professor
Pattinson, the Clinical Head of the Department of Obstetrics and Gynaecology
at the hospital was called by the MEC. Ms M called three experts in this area.
Dr Langenegger, a specialist in Obstetrics and Gynaecology as well as a foetal
medicine specialist; Professor Anthony, associate professor of the Department
of Obstetrics and Gynaecology at the University of Cape Town and head of
the Groote Schuur Maternal and Foetal Medicine Unit; and Professor Smith,
a neonatologist and professor of neonatology attached to the University of
Stellenbosch. Apart from the evidence led in court by these witnesses, certain
matters were agreed between various experts.

4 Majiet v Santam Limited [1997] 4 All SA 555 (C) at 567 A-D.

[15] The nursing experts, neither of whom was called, agreed in their minute
that between 20h40 and 20h58 it was expected of the midwife to place Ms M
in the left lateral position, check that the CTG probes were making good
contact and administer oxygen. It is common cause that none of these steps
was taken. In addition, they agreed that: ‘Probable foetal distress was evident
from about 20:58.’

[16] Of some importance in this matter is the status of such joint minutes.
They recorded areas of agreement and disagreement of the expert witnesses
of the parties. A pre-trial meeting agreed that, where there was agreement
between two or more expert witnesses, that agreement was binding on the
parties. In that regard, this Court has held:
‘Where, as here, the court has directed experts to meet and file joint minutes, and where
the experts have done so, the joint minute will correctly be understood as limiting the issues
on which evidence is needed. If a litigant for any reason does not wish to be bound by the
limitation, fair warning must be given. In the absence of repudiation (ie fair warning), the
other litigant is entitled to run the case on the basis that the matters agreed between the
experts are not in issue.’5
It follows, as a necessary corollary, that where there is no agreement, the
minutes must be disregarded. If a party wishes to rely on what a witness
records in a minute where there is no agreement, evidence on that point is
necessary before it may be taken into account.

[17] It is as well to recap the approach to be taken to expert evidence. Such
testimony, in a medical matter, amounts to an opinion on how accepted
medical principles apply to the facts. It is admissible where the person

5 Bee v Road Accident Fund [2018] ZASCA 52; 2018 (4) SA 366 (SCA) para 66.

rendering the opinion is qualified to do so. The opinion must be properly
motivated so that the court can arrive at its own view on the issue. Where the
opinions of experts differ, the underlying reasoning of the various experts
must be weighed by the court so as to choose which, if any, of the opinions to
adopt and to what extent. The opinion of an expert does not bind a court. It
does no more than assist a court to itself arrive at an informed opinion in an
area where it has little or no knowledge due to the specialised field of
knowledge bearing on the issues. In this regard, in Coopers (South Africa)
(Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH,6 this
Court held:
‘[A]n expert’s opinion represents their reasoned conclusion based on certain facts or data,
which are either common cause, or established by their own evidence or that of some other
competent witness. Except possibly where it is not controverted, an expert’s bald statement
of their opinion is not of any real assistance. Proper evaluation of the opinion can only be
undertaken if the process of reasoning which led to the conclusion, including the premises
from which the reasoning proceeds, are disclosed by the expert.’7
With those factors in mind, the expert evidence must be evaluated.

[18] Dr Langenegger explained the basic approach to the monitoring
process. This aspect of his evidence was not challenged. The first thing to
focus on is the normal foetal heart rate. A normal foetal heart rate is between
110 and 160. The second aspect is baseline variability. The heart rate varies
and the average variation is known as a baseline variation. Where the heart

6 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH 1976 (3) SA
352 (A) at 371F-G. See also Oppelt v Head: Health, Department of Health ProvincialAdministration:
Western Cape [2015] ZACC 33; 2015 (12) BCLR 1471 (CC); 2016 (1) SA 325 (CC) para 36, quoting with
approval Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another (1) [2001] ZASCA 12; [2002]
1 All SA 384 (A) paras 34-40; PriceWaterhouseCoopers Inc and Others v National Potato Co-operative Ltd
and Another [2015] ZASCA 2; [2015] 2 All SA 403 (SCA) paras 97-99.
7 Modified to utilise inclusive language. See also AM and Another v MEC Health, Western Cape [2020]
ZASCA 89; 2021 (3) SA 337 (SCA) para 17.

rate deviates from the baseline variation this tends to show that the foetus has
initiated defence mechanisms arising from decreased levels of oxygen. The
blood supply is constricted to less important areas and centralised to the more
important organs such as the brain. If variability persists it can be a sign that
there is a problem. The third aspect is where there are decelerations, which
are reductions in the foetal heart rate of more than 15 beats per minute.
Delayed decelerations are probably indicative of hypoxia. With prolonged
rupture of the membranes, special care is required.

[19] Prof Pattinson testified that there are four stages of labour. This aspect
of his evidence was likewise uncontested. The first two have a bearing on this
matter. The first stage is divided into a latent phase, from cervical dilatation
zero to four centimetres, and an active phase, from four to ten centimetres,
which is full dilatation. The second stage is from full dilatation at
10 centimetres to complete delivery of the baby.

[20] In the expert’s summary of evidence to be given by Prof Pattinson, it
was indicated that he would say:
‘Between 20:40 to 21:00 the CTG was suspicious. She delivered at 21:50 after normal
second stage. A very short second stage trace shows a heart rate of around 140 with good
foetal heart variability and then a fall of the heart rate to about 70 beats per minute for 90
seconds.’
The summary concludes:
‘Prof Pattinson will state that he holds the view that the medical practitioners and nursing
personnel did what was expected of them and there were no breaches of protocol. Prof
Pattinson will in finality conclude that although the minor suffers from sequelae, this could
not have been prevented at the Kalafong Hospital.’

[21] It must be said that, as regards the interpretation of the CTG tracings,
and whether any action was indicated, Prof Pattinson was an outlier. Most of
the other expert witnesses testified that the CTG tracings between 20h40 and
21h00 demanded intervention by the nursing staff and, thereafter, the
attending doctor. Far from intervening and monitoring more closely, the CTG
was inexplicably disconnected at 21h05 and only reconnected at about 21h30.
The effect of all of this is that CTG tracings are only available between 20h30
and 21h05 and again briefly after 21h30. All the experts agreed that the tracing
at 21h32, shortly after reconnection, was pathological. Where they differed,
accordingly, was on the interpretation of the tracings between 20h30 and
21h05.

[22] Prof Pattinson said that the tracings were not entirely clear. With this,
other experts agreed, but testified that they were sufficiently clear for the
hospital personnel to detect a clear trend, which should have occasioned
concern and action. This was agreed to in the joint nursing minute.
Dr Langenegger and Prof Anthony were both called by Ms M. They provided
a minute, confirmed during their evidence, which stated:
‘(a)
At 20h28 the accelerative pattern changes to one in which decelerations develop at
20h28 and 20h33, 20h37 and 20h39;
(b)
At 20h43, the tracing shows a decline in the baseline from 145 beats per minute
which persists until a slow return to the baseline at shortly before 20h50. In that 7
minute period fetal heart rate tracing is evident intermittently with all values at least
10 beats per minute below the baseline. This period of tracing has the appearance
of a prolonged deceleration lasting for more than 5 minutes.
(c)
At 20h50, the tracing again descends to a nadir of about 60 beats per minute before
showing a slow recovery to the baseline at 20h52. Subsequently another 4 similar

episodes are identifiable up to 21h04 with the decelerations at 20h58 and 21h01
being late decelerations.
(d)
The tracing at 21h32 shows a 3 to 4 minute tracing characterised mainly by a single
large u-shaped deceleration with loss of variability in the deceleration.’

[23] Prof Pattinson agreed only with item (d) of this minute. His expert
summary, responding to this and confirmed by him in court, said:
‘I disagree with these statements. In my view what we see from 20h28 is a woman pushing
and in the second stage of labour. This is evidenced by:
1.
Rapid progression of the active phase of labour.
2.
Evidence of pushing in the middle line of the CTG.
3.
Evidence in the notes that the woman had the urge to push.
4.
Return to baseline 140 between the contractions and where there was contact.
The trace became suspicious with the slow return to baseline around 20h50.’

[24] He said that Ms M was pushing and that, as a result, ‘we could not get
a decent trace’. He also claimed that she was fully dilated or close to fully
dilated during that period, even though she was only 7 cm at 20h15 and only
9 cm at 21h15, the second of which falls outside the period concerned. He
contended that Ms M ‘was in the equivalent of second stage’. This is not
supported by his own evidence that the second stage is only reached when the
cervix is 10 cm dilated.

[25] His interpretation that the tracings showed that Ms M was pushing from
20h23 to 21h05 was strongly contested. Ms M testified that she was not doing
so. None of the contemporaneous notes recorded this. The only reference at
all relevant to pushing was a note at 21h15. This recorded only that Ms M had

the urge to bear down, not even that she was doing so. None of the personnel
who attended on Ms M testified.

[26] The other experts were adamant that the tracings did not show maternal
pushing. If Ms M had done so prior to the second stage being reached at 10 cm
dilatation, she would have been told not to do so. Prof Pattinson did say that
if the staff saw that Ms M was pushing, they should at the very least have
arranged for a vaginal examination. This was not done. He agreed that if it
was not the correct time to push the staff should have told her not to do so.

[27] He interpreted the notes to the effect that at 21h15 Dr Kayzer examined
Ms M, who was 9 cm dilated. Dr Kayzer did not testify. Prof Pattinson said
that Dr Kayzer noted of Ms M that: ‘She must go for delivery because she was
pushing, and that was quite correct.’ It was pointed out to Prof Pattinson that
the entry by Dr Kayzer recorded only that Ms M had reported ‘the urge to bear
down’. His response was that this meant that ‘she wants to push down and she
probably has been pushing down.’ He was then constrained to agree that
doctors are taught to record exactly what occurs. It was put to him that, if Ms
M had been pushing, this would have been noted. His response was to say that
there are a number of beds in the area and Dr Kayzer was probably in another
room. He was brought back to the entry and again said that his ‘interpretation
of her saying “reports the urge to bear down” is that she wants to push and
probably has been pushing.’ He finally and reluctantly accepted that this was
not what Dr Kayzer had written.

[28] He was then pressed on his having testified that, by 21h15, Ms M had
been pushing for 53 minutes. His evidence in court was that the CTG showed

that she first pushed at 20h23. However, in his response to the joint minute,
he said that the first push discernible from the CTG tracings was at 20h28. He
said in his response to the joint minute that this was shown on the middle line
of the tracing but his evidence in court was that it was shown in the contraction
line. What was put on his behalf to Dr Langenegger was that he would say
that once contractions begin, the tracing shows maternal movement but he
later testified that it was a mixture of maternal and foetal movement.

[29] There are other difficulties with his evidence. He was asked why the
CTG was disconnected at 21h05 and only reconnected at 21h32. Despite his
not having been present at the time, and only interpreting the hospital records,
he proffered that it takes time to be transferred to a labour ward. He said of
that time that, although there were ‘some suspicious aspects . . . there were
reassuring features of heart returning to baseline. So I do not think there was
urgency, an excessive urgency, except she was pushing in the second stage.
And it, the CTG has to be disconnected.’ As indicated above, Ms M was not
in the second stage, according to his own evidence. And the transfer
instruction was only given at 21h15, so this, too, was surmise on his part.
There was no factual underpinning for either of these aspects of his testimony.

[30] In evidence, he said that the tracing first became suspicious at 20h58.
After being taken through the tracing, he conceded that, also at that time, there
was ‘a single late deceleration’. He was confronted with his report, where he
had said that between ‘20:40 to 21:00 the CTG was suspicious’. He then
conceded in evidence that the report was correct and his earlier evidence that
the first suspicious trace was at 20h58 was incorrect. When confronted with
the fact that he differed from the MEC’s own nursing expert and all of Ms

M’s experts that there was probable foetal distress at 20h58, he said he
differed because he considered that all of the traces they referred to were
second stage traces, where Ms M was pushing. This aspect of his evidence has
already been dealt with.

[31] He, alone, testified that he did not accept that an acute profound
hypoxic ischemic injury led to the cerebral palsy. That is a position in conflict
with the other witnesses called by the MEC and the MEC’s concession in this
regard. The experts called by Ms M on this issue gave detailed, coherent, and
carefully reasoned evidence that led to their opinions, which accorded with all
of the known facts.

[32] For all of the reasons mentioned above, the evidence of Prof Pattinson
as to when the tracings became suspicious and when action should have been
taken must be rejected where it conflicts with that of the agreed nursing
minute and Ms M’s experts. All of these agreed that, at the very latest by
20h58, action would have been taken by nursing staff with the level of skills
and training functioning in a level two hospital. That action would have been
to call a doctor. The reasonable doctor in that context would have closely
monitored Ms M and, within ten minutes or so, have begun expedited
delivery, which could have been achieved in the fifteen or twenty minutes
after 20h15. None of these steps was taken. This leads to the conclusion that
Ms M proved, on a balance of probabilities, that the hospital personnel were
negligent.

[33] All of the expert witnesses agreed that the injury to OM did not occur
before 21h34. It took place between then and his delivery at 21h50.

Dr Mogashoa testified that once there is a sustained bradycardia, which is a
slowing of the foetal heart rate, one should deliver a baby within 10 to 17
minutes. That is the length of time that a baby can compensate for asphyxia.

[34] If the actions referred to above had been taken, accordingly, the damage
would in all probability have been avoided. This means that the damage to
OM probably occurred as a consequence of the negligence of the hospital
staff. As a result, Ms M proved on a balance of probabilities that the
negligence of the hospital employees caused or contributed to the injury and
sequelae to OM.

[35] All of this means that the finding of the high court that the MEC was
liable for the injury sustained by OM during his birth process cannot be
faulted. As a result, the appeal must be dismissed. It was conceded that, in
those circumstances, the costs of two counsel, where utilised, would be an
appropriate costs award. I agree.

[36] In the result, the following order issues:
The appeal is dismissed with costs, including the costs of two counsel,
wherever so employed.

____________________
T R GORVEN
JUDGE OF APPEAL

Appearances

For appellant:

S Joubert SC
Instructed by:

State Attorney, Pretoria

State Attorney, Bloemfontein.

For respondent:

J J Wessels SC (with him C Vallaro)

Instructed by:

Munro, Flowers and Vermaak, Johannesburg

Claude Reid Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 September 2021
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

Member of the Executive Council for Health and Social Development, Gauteng
v M M obo O M [2021] ZASCA 128

Today the Supreme Court of Appeal dismissed an appeal from the Gauteng Division
of the High Court, Pretoria (per Nair AJ). Ms M gave birth to OM on 7 December
2010. During the birth process, OM suffered a hypoxic ischemic injury which resulted
in cerebral palsy. As a consequence, Ms M sued the Member of the Executive
Council for Health and Social Development, Gauteng (the MEC) on her own behalf
and on behalf of OM. The MEC is legally liable for acts of employees at the Kalafong
hospital (the hospital), which is where OM was born. The issues were whether the
hospital staff had been negligent and, if so, whether that negligence caused the
injury and its sequelae to OM.

The high court held that Ms M had succeeded in proving both negligence and that it
had caused the injury to OM. The MEC appealed to the Supreme Court of Appeal.
The matter revolved principally around the interpretation of tracings made by a
cardiotocograph (CTG) during the critical period. A second issue arose during the
trial when it was established that the placenta of Ms M had villitus of unknown
etiology (VUE). This is associated with the placenta having abnormal blood vessels.

This meant that OM was more vulnerable to being injured than would have been the
case with a foetus supplied with oxygen by a placenta without that pathology. It was,
however, agreed by the expert witnesses that this did not cause the injury to OM. It
was not the cause of the foetal distress that mattered but any failure to observe the
signs of its presence and take steps to alleviate the stress and accelerate his
delivery.

The interpretation of the tracings was therefore the pivotal issue in the matter.
Various experts testified on how the CTG tracings should have been interpreted. In
addition, nursing experts prepared a joint minute. That joint minute and the evidence
of experts called by Ms M agreed that the tracings between 20h40 and 20h58
indicated foetal distress. Reasonable nursing staff would have called a doctor no
later than 20h58. A reasonable doctor would have observed closely and, within ten
minutes thereafter, have arranged for an expedited delivery. This could have taken
place within 15 to 20 minutes after 21h15 at the latest. Since it was agreed by all
that the injury occurred between 21h34 and 21h50, when OM was born, all damage
would probably have been avoided had those actions been taken. Since none of
those actions were taken, the hospital staff were negligent and that negligence gave
rise to the injury suffered by OM. The high court could thus not be faulted for having
reached that conclusion and the appeal was dismissed with costs of two counsel,
where so utilised.