THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 035/2020

In the matter between:
THE MEMBER OF THE EXECUTIVE COUNCIL
DEPARTMENT OF HEALTH,
NORTH WEST PROVINCE

APPELLANT
and
NAM obo TN

RESPONDENT

Neutral citation:
The Member of the Executive Council, Department of Health, North
West v NAM obo TN (035/2020) [2021] ZASCA 105 (26 July 2021)
Coram:
ZONDI, DAMBUZA and MOCUMIE JJA and GORVEN and EKSTEEN
AJJA.
Heard:
10 May 2021
Delivered:
This judgment was handed down electronically by circulation to the parties’
legal 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 have been at 09h45
on 26 July 2021.

Summary: Delict – medical negligence – claim for damages based on failure to attend to
plaintiff before delivery and foetus after delivery – whether the clinic nursing staff were

negligent in their treatment of the plaintiff and TN – whether negligence caused TN’s
hypoxic ischemic injury and the resultant cerebral palsy.

______________________________________________________________________

ORDER
______________________________________________________________________
On appeal from: North West Division of the High Court, Mahikeng (Hendricks ADJP,
Gura J and Oosthuizen-Senekal AJ concurring, sitting as court of appeal)
1         Condonation for the late filing of the appeal record is granted.
The appeal is upheld.
3         Each party is to pay its own costs.
The order of the Full Court is set aside and substituted with an order dismissing
the appeal.
______________________________________________________________________

JUDGMENT
______________________________________________________________________
Mocumie JA (Zondi and Dambuza JJA and Gorven and Eksteen AJJA concurring)

[1] The issue in this appeal is whether the nursing staff at Makgobistad clinic in
Kuruman, North West Province were negligent in their management of the plaintiff’s
delivery and in their treatment of the plaintiff’s baby (TN) on 17 December 2003. For
convenience, the parties will be referred to as they were in the trial court, plaintiff and the
Member of the Executive Council for Health, North West (the MEC).

[2] At the outset, the MEC sought condonation for the late filing of the appeal record
on a number of grounds. The factors which a court considers when exercising its
discretion whether to grant condonation, include the degree of non-compliance with the
rules, the explanation for it, the importance of the case, the respondent’s interest in the
finality of the judgment of the court below, the convenience of the court and the avoidance
of unnecessary delay in the administration of justice.1 As regards the delay, the MEC

1 S v Sayed and Others [2017] ZASCA 156; 2018 (1) SACR 185 (SCA) paras 21-23 with reference to
Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others
[2013] ZASCA 5; [2013] 2 All SA 251 para 11.

lodged a notice of appeal on 16 April 2020. In terms of rule 8(1) of the Rules of this Court
he was obliged to lodge the record within three months of delivery of the notice of appeal.
The MEC only lodged the record of proceedings on 10 September 2020, almost five
months later. By then the appeal had lapsed. The MEC attributed the delay to the effect
of the national lock down, which was imposed in March 2020, under the National Disaster
Management Act, 57 of 2002 in an attempt to curb the spread of the Corona virus. During
the lockdown the North West High Court operated with skeleton staff to attend only to
urgent matters. As a result, service of court processes, including the appeal record of this
case, suffered. The attorneys employed by the State Attorney could, initially, not move
freely as they were not declared essential workers. They were granted essential work
permits on 14 May 2020.

[3] In addition, the transcribers, Digital Audio Recording Transcripts, delayed the
transcription of the record within the anticipated period. Ms Ndabeni of the State Attorney,
who was responsible for this appeal, instructed Appeals Document Services CC on 20
May 2020 to prepare the record and the documents were sent to them on 3 June 2020.
The State Attorney received the draft record from Appeals Document Services on
10 July 2020. On 20 July 2020 the draft record was sent to the plaintiff’s attorney for
comment. There is no explanation why the draft was not sent sooner, or why it took the
State Attorney almost further two months to file the record (10 September 2020).

[4] The MEC maintains that he has lodged a notice of appeal which has good prospect
of success and that the plaintiff will not suffer prejudice if condonation were to be granted.
If condonation is refused, the MEC contends, the appeal will lapse which will severely
prejudice him.

[5] It is correct that the delay in filing the record has a direct impact on the plaintiff’s
interest in the finality of the matter. In my view, although more should have been done in
prosecuting the appeal, the delay is not inordinate and it has been satisfactorily explained.
Nor can it be said that the plaintiff would suffer any prejudice if condonation was granted.
The appeal is very important to both parties as it involves the determination of the cause
of the cerebral palsy the plaintiff’s minor child suffers from. Having considered all the

circumstances of this case, condonation for the late filing of the appeal record should be
granted. I now proceed to deal with the appeal.

[6] The plaintiff instituted a claim for delictual damages in the High Court, North West
Division, Mahikeng (the high court), on behalf of her minor child (TN), against the MEC
as the employer of the nursing staff at the clinic at the time. The plaintiff’s claim against
the MEC was brought on the basis that he was vicariously liable for the negligent conduct
of the nursing staff that attended to the plaintiff at the clinic during her admission. She
claims that this negligence caused and culminated in TN developing cerebral palsy as a
consequence of a hypoxic-ischaemic event at birth, and thereafter. She alleged that the
nursing staff at the clinic negligently kept the clinic closed the night before her admission
(16 December 2003) until after 08h00 on the day on which she gave birth
(17 December 2003). Upon her admission, they failed to properly and professionally
attend to TN, and, in particular, failed to administer oxygen to TN in circumstances when
it was reasonably necessary for them to do so; failed to enlist the services of a
gynaecologist, or a qualified doctor or other suitable specialist, to examine and properly
treat TN in circumstances when it was reasonably necessary to do so; and failed to
adhere to the standard of practice of reasonable sisters or nurses in their respective
positions in order to ensure that the plaintiff was attended to without delay, and to prevent
TN from suffering from brain and other injuries.

[7] Gutta J in the court of first instance, who, by agreement between the parties, was
called upon to decide only the question of liability, dismissed the claim. She found that
the plaintiff did not succeed in proving negligence and causation. The plaintiff successfully
appealed to the full court (Hendricks ADJP, with Gura J and Oosthuizen-Senekal AJ). Not
satisfied with the decision of the full court, the MEC sought and was granted special leave
to appeal to this Court.

[8] The facts set out below were either common cause or not seriously disputed. In
the morning of 17 December 2003, around 03h00, the plaintiff, who was in her full term
of pregnancy, experienced labour pains. She arrived at the clinic not far from where she
resided, in a private vehicle, a panel van hired by her father, at about 07h50. The clinic is

a government institution that is supposed to be open to the public on a 24-hour basis. On
the day in question, there were two nursing staff on duty, a qualified nursing sister who is
a midwife, Sister Moletsane, and an assistant nurse, Ms Motaung. In addition, the clinic
has an administration officer who keeps the records and files of the clinic, Ms Jaula, a
cleaner, and a security officer. It has a basic obstetric care unit (the labour room) fitted
with an incubator for babies after their delivery. The plaintiff was 21 years of age at the
time of TN’s birth. This was her second birth. Her first child had been born at the same
clinic. As in the case of her first pregnancy, she said, she attended antenatal care at the
clinic from two months into her pregnancy and had no prenatal complications.2

[9] In her particulars of claim, the plaintiff asserted that on 17 December 2003, she
gave birth shortly after 08h00 inside the panel van, unmonitored and without the
assistance of the nurses at the clinic. It was averred that the harm TN suffered was
caused by an acute profound hypoxic ischaemic insult caused by a complete lack of
oxygen to the brain for a sustained period as advised by medical experts; which, but-for
the nursing staff not attending to her professionally and timeously, would not have
occurred.

[10] The antenatal records of the plaintiff, the records from the clinic regarding the day
TN was born, as well as the maternity case record relating to the plaintiff’s treatment were
all missing and subsequently confirmed to have been lost. All that was available was TN’s
Road to Health Chart (RTHC), which was incomplete. On it, all that was recorded was
that TN was born by normal vertex delivery.3 The weight, length and head circumference
were not recorded on the RTHC. No Apgar scores4 were recorded. TN was diagnosed
with cerebral palsy at the age of six months.

[11] In his pleas, the MEC denied all allegations of negligence attributed to the nursing
staff at the clinic in relation to the birth of TN. The MEC contended that the nursing staff

2 Albeit without the benefit of her medical records which were lost by the clinic.
3 According to Medterm Medical Dictionary, a vertex delivery, means the top of the baby's head comes
first. The vertex refers to the top of the head.
4 Apgar stands for ‘Appearance, Pulse, Grimace, Activity, and Respiration’. In the test, five things are used
to check a baby's health. Each is scored on a scale of 0 to 2, with 2 being the best score.

were on duty at all relevant times and denied that they arrived after the birth of TN. In the
alternative, the MEC contended that the plaintiff was contributorily negligent in that she
failed to attend antenatal clinic regularly during her pregnancy; she failed to seek medical
assistance during early labour when she should reasonably have done so; she sought
medical assistance at the clinic only when her labour had progressed and the head of the
unborn child was on the perineum; and she was inappropriately dressed in denim pants
during labour which delayed TN’s birth.

[12] To discharge the onus which rested on her to prove her case, the plaintiff testified
and led the evidence of Mr Lebone - the owner and driver of the van which took her to
the clinic, Dr: Moja (a neurosurgeon) and Dr Lewis (a paediatrician). Dr Sevenster, a
specialist obstetrician for the plaintiff, was not called although he compiled a report and
joint minutes with Dr Malebane. To rebut the case for the plaintiff the MEC led evidence
of the clinic nursing staff Sr Moletsane and Ms Motaung, as well as the administration
officer Ms Jaula and Dr: Malebane, Dr Marumo, Dr Kganane and Dr Mogashoa, a
paediatrician neurologist. There were several other experts who examined the plaintiff
and TN and thereafter compiled reports, including radiologists and paediatricians, but who
were not called to testify.

[13] The plaintiff’s version, which is corroborated by Mr Lebone (although he said the
time of arrival was 07h00) must, on all the probabilities, be accepted. She said that she
arrived at about 07h50 and at that time the clinic was not open. They found approximately
twenty people waiting outside the gate of the clinic. The security officer on duty at the
clinic told them to remain outside the premises as the nursing staff were not on duty. They
accordingly waited there. Her waters broke at 08h10. At 08h15 she gave birth
unmonitored. At 08h20 the cleaner came to assist her by putting a blanket over her and
the baby that was already on the seat between her legs. She said, ‘[the] baby did not cry
at birth, was just still for 10 minutes after the nurse arrived’. At 08h25, Ms Motaung, the
assistant nurse came to the panel van and took the baby inside the clinic. The plaintiff
was also taken into the labour room. TN was taken to another room. Sr Moletsane cleaned
and treated her.TN was brought back to her in the labour room and she breastfed her.
She was discharged with TN and was home by 14h00. Her grandmother, based on her

observation of the baby’s squint eyes, remarked that there was something wrong with the
baby. TN did not suckle like her first baby, she said. She took TN to the clinic a week later
and neither she nor the clinic staff noticed anything unusual about her. At six months, she
went to a different clinic. The clinic referred her to Bophelong hospital which diagnosed
TN with cerebral palsy. From the time the plaintiff was discharged on the day of the birth,
until six months later, there were no outward manifestations of any injury.

[14] For the plaintiff’s experts, in particular Dr Moja, supported by Dr Lewis, were of the
view that the hypoxic event was of an acute profound nature which occurs within 6 to 10
minutes at birth. Dr Moja agreed with the radiologists that the MRI showed a mixed pattern
with ‘. . . chronic sequelae secondary to a combination of partial prolonged hypoxic
ischemic injury as well as an acute profound hypoxic ischemic injury’. The significance of
this is that, Dr Moja said that the acute event would have been at the time of birth (if it
had been before, the baby would have been born dead) and lasted ‘less than five minutes
. . . but there is a second element which is the prolonged element and that to me means
that at that point there was lack of oxygen but it was not total lack of oxygen at the point
but damage was still occurring because it was suboptimal’. He went on to explain that the
acute event occurred at birth and he explained that is why the baby was not breathing or
moving initially. But, after she was revived, he believed that ongoing damage would
probably have been caused due to poor oxygen supply and that, as he put it ‘. . . you have
an acute profound hypoxia and subsequently also have a prolonged period of hypoxia,
you have ongoing damage that may not necessarily be evident subsequently . . .’.

[15] According to Dr Lewis, ‘approximately 10 million babies do not breathe
immediately at birth, of which about 6 million require basic neonatal resuscitation’. So
what the clinic staff did was basic resuscitation since there is no indication that it took any
length of time or special techniques to get the baby to breathe, cry, move and suckle. The
evidence concerning monitoring for 12 to 24 hours was that this was the case for babies
who require extensive resuscitation. The significance is that Dr Moja testified that the
treatment protocol was to administer oxygen and to test for oxygen uptake (which the
clinic could not do) and thus to refer to a hospital. He could not say, however, that the
nursing staff would have been aware that this was the treatment protocol. This is because

he did not know what training the staff at this level in such a clinic would have received
and, therefore, whether such persons could reasonably have known that TN required
such treatment. No nursing experts were called to testify on this aspect. Because, after
resuscitation, the baby appeared normal, it cannot be said that the clinic staff were
negligent in failing to do what the expert neurologist and obstetrician would have done.

[16] In their view, the harm caused by the acute profound hypoxic event occurred at
the time the plaintiff gave birth, unmonitored, and TN ‘was still, did not cry and was not
breathing’, before the nursing staff came to assist her. Dr Lewis, however, conceded that
if TN was breathing, crying, breastfeeding and was pink in colour there was no need to
resuscitate her further after she started breathing. Dr Moja was of the view that, because
TN had suffered such an event, the treatment protocol required her to be oxygenated until
further tests were done within 24 hours, during which period TN should not have been
discharged. This would have involved calling a medical doctor with expertise in
resuscitations or referring her to a hospital equipped for such emergencies where she
would have been provided with medical treatment immediately to reverse the results, or
to minimise them later. Had this been done, he opined that the partial prolonged hypoxia
could have been avoided or minimised leading to a better outcome. Dr Lewis was of the
opinion that the 12 to 24 hour monitoring protocol was only indicated if extensive initial
resuscitation had been necessary. Both experts conceded that they could not testify that
the nursing staff would have known that this treatment protocol was indicated. That being
the case, no finding of negligence can be supported.

[17] The version of the nursing staff was that Sr Moletsane brought TN back to the
plaintiff to establish if TN could breastfeed, which she could do. She monitored TN’s
progress for 4 hours intermittently, 2 hours apart. She was satisfied that TN was well. She
discharged both the plaintiff and TN at approximately 12h00. She said that, although the
delivery had been complicated, there was nothing untoward about TN after resuscitation.
She was pink in colour, was breathing normally and was breastfed by the plaintiff several
times before discharge. Neither of the nursing staff nor the plaintiff saw anything unusual
in the state of TN at discharge. It bears reminding that the cerebral palsy was only
diagnosed some 6 months later.

[18] Some 7 days after the birth of TN, the plaintiff brought her to the clinic for
tuberculosis and Polio vaccination. She was issued with the RTHC. On it she noted the
weight to be 2,8kg which was as expected at that stage. She stated that the clinic lost
TN’s Apgar Scores and the plaintiff’s medical records.

[19] In a nutshell, the experts for the MEC agreed with the plaintiff’s expert, Dr Moja,
as indicated earlier, that ‘. . . it was impossible to determine with any degree of certainty
the precise moment when this injury would have occurred’. Dr Malebane, in particular,
stated that in the event that it was accepted that the injury could have occurred in the
second stage of labour, it would have been preceded by abnormalities; which was not the
case according to the plaintiff’s narrative. Dr Kganane stated that the steps taken by Sr
Moletsane, namely suction and removal of excessive secretions, wrapping TN and putting
her in the incubator (to re-establish the temperature) were normal. The fact that TN was
monitored for 4 hours meant that she was conscious and did not need oxygen. The
plaintiff told them that she did not pick up any abnormalities as TN was breastfeeding
without any difficulty even after they were discharged from the clinic. That, on its own,
indicated that despite the injury, there were no apparent problems immediately after birth.

[20] The general rule is that he or she who asserts must prove. Thus, in a case such
as this the plaintiff must prove that the damage sustained by her minor child was caused
by the defendant’s clinic staff’s negligence. The failure of a professional person to adhere
to the general level of skill and diligence possessed and exercised at the same time by
the members of the branch of the profession to which he or she belongs would normally
constitute negligence.5 A medical practitioner ‘is not expected to bring to bear upon the
case entrusted to him the highest possible degree of professional skill, but he or she is
bound to employ reasonable skill and care.’ 6

5 Van Wyk v Lewis 1924 AD 438 at 444.
6 Mitchell v Dixon 1914 AD 519 at 525.

[21] The question that remains is whether any liability can be attached to the nursing
staff (and vicariously so, to the MEC), after the plaintiff was admitted into the clinic after
TN had already been delivered, unmonitored. Despite the initial vigorous contestation on
behalf of the MEC, it became common cause by the end of the trial, as I have already
stated, that the cerebral palsy was caused by a mixed pattern with ‘. . . chronic sequelae
secondary to a combination of partial prolonged hypoxic ischemic injury as well as an
acute profound hypoxic ischemic injury’. A hypoxic ischaemic event can be described as
lack of oxygen and inadequate perfusion of oxygen, through the blood, to the brain which
causes damage to the brain.7 The radiologists produced joint minutes on the imaging
features of the Magnetic Resonance Imaging (MRI) brain scan and agreed that ‘the scan
is indicative of a hypoxic ischemic injury of a term brain at a chronic stage of evolution . .
. [T]he dominant pattern of injury in this case is acute profound in nature’. In their revised
report the radiologists stated that ‘a combination of partial prolonged hypoxic ischemic
injury as well as an acute profound hypoxic ischemic injury’ were features of the MRI. The
experts that testified based their evidence on both. The joint report of the radiologists was
admitted as evidence by agreement.

[22] It is therefore safe to accept that on everybody’s version, including the plaintiff’s,
nobody thought anything was wrong with TN when she was discharged from the clinic,
except what her grandmother said on the first day of TN’s arrival at home; namely her
squint eyes indicated that there might have been something wrong with her. That TN had
squint eyes (without other sequelae) is on its own not a manifestation of a brain injury.
Furthermore, even when the plaintiff took TN back to the clinic 7 days after her birth for
immunisation, according to what is recorded on the RTHC, she reported no abnormality
about the baby’s behaviour. At that stage, as reasonably expected, she would have told
the nursing staff about any abnormality she picked up on her own as the mother or even
what her grandmother had said about TN’s squint eyes. She did not.

[23] The ineluctable inference must then be drawn that, the fact that the damage was
only picked up 6 months later, is an indication that the damage was ongoing after birth.

7 Magqeya v MEC for Health, Eastern Cape [2018] ZASCA 141 para 8.

As no abnormalities asserted themselves at the clinic, it cannot be said that the nursing
staff fell short of the standard of reasonable nursing staff in a position similar to them.

[24] For these reasons, I find that the plaintiff failed to discharge the onus that rested
upon her to prove their negligence. There is therefore, no need to consider causation.

[25] What remains to consider, is the issue of costs. Counsel for the MEC did not
abandon the costs that follow upon success as in similar cases where the medical records
were lost in the hands of the clinic staff to mitigate such loss. It is so that the loss of
medical records which recorded the crucial information; in particular, the Apgar Scores,
which the plaintiff required in order to prove her claim against the MEC, reflects badly on
the clinic and its staff, the MEC and the department. It is conduct which must be
deprecated in the strongest terms. In the circumstances, I am of the view that the plaintiff
should not be mulcted with costs. I say this because the hospitals and clinics are obliged
to keep the records of a minor until they reach majority. They failed to do so.

[26] In the result the following order issues.
1         Condonation for the late filing of the appeal record is granted.
The appeal is upheld.
3         Each party is to pay its own costs.
The order of the Full Court is set aside and substituted with an order dismissing
the appeal.

______________________
B C MOCUMIE
JUDGE OF APPEAL

APPEARANCES

For Appellant:
T Masevhe
Instructed by:
State Attorney, Mahikeng

State Attorney, Bloemfontein

For Respondent:
J H F Pistor SC
Instructed by:
Semaushu Attorneys, Mahikeng
Phatshoane Henny Inc., Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

26 July 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
The Member of the Executive Council, Department of Health, North West v N A M obo T N (138/2020) [2021]
ZASCA 105 (26 July 2021)
Today the Supreme Court of Appeal (SCA) upheld the appeal against an order of the North West Division of the
High Court, (Hendricks ADJP, (Gura J and Oosthuizen-Senekal AJ concurring) and ordered each party to pay its
own costs.
This case concerned a claim by N A M (plaintiff) for vicarious delictual damages on behalf of her minor child
(TN) against the Member of the Executive Council for Health, North West (the MEC) as the employer of the
nursing staff at the clinic at the time the plaintiff gave birth. The central issue to be determined was the claim for
damages based on failure to monitor the plaintiff and foetus during labour, whether the clinic nursing staff were
negligent in their treatment of the plaintiff and TN, whether their negligence caused TN’s hypoxic ischemic injury
and the resultant cerebral palsy and whether the nursing staff could have taken steps to prevent the harm suffered.
The SCA held that the High court correctly concluded that there was no evidence that pointed to what steps the
nursing staff could have taken but failed to take under the circumstances and the plaintiff did not establish that the
conduct of the nursing staff at the clinic was the probable cause of TN’s brain damage which resulted into
cerebral palsy. The late diagnosis of brain damage which resulted in cerebral palsy coupled with the many years
that elapsed before medical experts could put the pieces together, worsened by the loss of critical medical records
resulted in this case being one of the most unfortunate cases to establish negligence and any causal link between
the two and the injury TN suffered. The balance of probabilities favoured the nursing staff as it pointed that they
did what they could do and as expected of a reasonable person in the circumstances.
The SCA further held that even in circumstances where hospital staff have acted negligently by not monitoring
the condition of a woman in labour and the foetus and acting appropriately on the results, their wrongful conduct
does not, in and of itself, suffice to found delictual liability.
As a result, the SCA upheld the appeal and ordered each party to pay its own costs.
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