THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case no: 380/2019
In the matter between

THE
MEMBER
OF
THE
EXECUTIVE COUNCIL FOR
HEALTH
&
SOCIAL
DEVELOPMENT
OF
THE
GAUTENG
PROVINCIAL
GOVERNMENT

APPELLANT
and

TM obo MM
RESPONDENT

Neutral citation: The MEC for Health & Social Development, Gauteng
v TM obo MM (380/2019) [2021] ZASCA 110 (10 August 2021)

Coram:
SALDULKER, NICHOLLS and MBATHA JJA and
LEDWABA and ROGERS AJJA
Heard:
8 March 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 at 09h45 on 10 August 2021.

Summary:  Claim by mother on behalf of child suffering from cerebral
palsy in consequence of acute profound hypoxic ischaemia intrapartum –
whether hospital staff was negligent in failing to perform caesarean
section more promptly – whether hospital was negligent in not having
second theatre for caesarean sections – whether staff was negligent in the
way the theatre was used during the day in question – whether staff was
negligent in failing to refer mother to neighbouring hospital – whether
staff was negligent in failing to apply intrauterine resuscitation –
negligence not proved – in any event, not proved that non-negligent
action would have averted the acute profound hypoxic ischaemia.

ORDER
___________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg
(Fisher J sitting as a court of first instance):

(a)  The appeal succeeds.
(b)  The order of the high court is set aside and replaced with an order in
the following terms:
‘The plaintiff’s claim is dismissed.’

JUDGMENT

Ledwaba AJA (Saldulker JA concurring) (dissenting judgment):
[1] The appellant is the Member of the Executive Council for Health
and Social Development of the Gauteng Provincial Government (the
MEC). The respondent is Ms TM, who instituted an action against the
MEC in her representative capacity as the mother and natural guardian of
her minor child, MM, who was delivered by caesarean section (C-section)
on 28 August 2010 at Charlotte Maxeke Johannesburg Academic
Hospital (CMH). The MEC is appealing the judgment of the Gauteng
Division of the High Court, Johannesburg (the high court) per Fisher J,

who held the MEC liable for any damages proved or agreed. Fisher J
granted leave to appeal to this Court.
[2] In the particulars of claim Ms TM alleged that on 28 August
2010, the MEC had a duty to render medical care, treatment and advice
to her and her unborn child. She further alleged that the MEC and/or its
employees or authorised representatives were negligent in that they
failed to timeously perform a C-section to deliver the child. The child
suffered an intrapartum hypoxic-ischemic brain injury,1 which resulted
in permanent brain injury.
[3] The grounds of negligence by the MEC and/or its employees
and/or its authorised representatives have been set out in Ms TM’s
particulars of claim, inter alia, as follows: (a) he failed to permanently,
alternatively, temporarily employ the services of suitably qualified and
experienced medical practitioner who would be available and able to
examine, manage and/or give appropriate advice in respect of patient’s
labour and to timeously perform a C-section if and when required at the
aforesaid hospital; (b) he failed to ensure that at least one suitably
qualified and experienced medical practitioner was in attendance at all
material times; (c) he failed to permanently, alternatively, temporarily
employ the services of suitably qualified and experienced nursing staff,
who would be able to assess, monitor and/or manage the plaintiff’s
labour; (d) he failed to ensure that the CMH was suitably, adequately
and/or properly equipped to enable the timeous and proper performance
of a C-section if and when required; and (e) he failed to take any and/or
all reasonably required steps to ensure proper, timeous and professional

1 A deficiency of oxygen during birth or delivery.

assessment of patients, their monitoring and management of labour and
assistance at the birth process.
[4] The grounds of negligence in the particulars of claim have been
stated in a general form. In my view, the stated case and admission
made crystallised and amplified the pleading. Furthermore, the issues
that the high court had to deal with were identified and recorded by the
parties. The purpose of the pleadings is not to mention all the facts in
detail and the names of the people involved in the pleadings. In my
view, the essence of the plaintiff’s cause of action and the defendant’s
defence were set out in a clear, concise, and lucid form.
[5] Even though evidence during the trial emerged in a haphazard
way, it is the duty of the court to determine if, from the presented
evidence, there are enough facts to justify the upholding or dismissal of
the appeal.
The MEC in his plea denied any negligence on his part and pleaded that
the complications in respect of the child occurred solely as a result of
the negligent conduct of Ms TM, alternatively, that her negligence also
contributed to the complications. I think I should mention at this early
stage that there is no merit in the MEC’s plea that Ms TM’s negligence
contributed to the complications of the foetal condition because Ms TM
is not claiming damages in her personal capacity but on behalf of her
minor child. Contributory negligence cannot be raised against the child.

The MEC’s legal issues
[6] The MEC in his heads of arguments raised three issues in respect of
his appeal which have been phrased in the form of questions, namely:
first, assuming that the sub-optimal use of the theatre was negligent, may
an MEC be held liable in delict to a plaintiff even though such negligent
conduct occurred at a stage prior to the plaintiff being admitted as a
patient, and accordingly prior to the MEC’s duty of care to the plaintiff
arising; second, may an MEC be held liable in delict for such sub-optimal
use if that sub-optimal use had occurred at a time when there was no
indication that the plaintiff would need to undergo a C-section; and third,
does poor management of resources, even if established translate into
negligent conduct for the purposes of delictual liability?
Brief factual background
[7] The relevant facts to this appeal are largely common cause. Ms TM
was 25 years old when she first visited an antenatal clinic on 8 July 2010
at 33-35 weeks of her pregnancy. According to the entries in her antenatal
record there were no complications with her pregnancy and midwife
delivery could take place.
[8] When she went to the clinic on 30 July 2010, her blood pressure was
taken and the foetus heartbeat was checked. The nurses told her that the
baby was growing well. The next appointment was for 20 August 2010 at
Hillbrow Clinic. On 20 August 2010, she went to Hillbrow Clinic and it
was closed because the nurses were on strike. She went to the clinic again
on 27 August 2010 and the clinic was still closed because of the ongoing
strike.

[9] Later in the afternoon of 27 August 2010 she experienced some
abdominal pains. On 28 August 2010, she went to the Hospital and was
admitted as a patient to the maternity section at about 12h55. According
to the medical records, she was in her early active stage of labour.
Regular foetal monitoring of heart beats by way of cardiotocography (the
CTG) was conducted. The foetal heart rates, which were plotted on the
partogram at half hourly intervals between 13h00 and 15h00, were within
the normal limits. Progress of the cervical dilation was adequate.
However, at 15h45 the CTG records showed abnormalities, as a result of
which a decision to perform a C-section was made at about 16h00.
[10] The C-section could not be performed on Ms TM immediately
because there was a patient, Ms DM, who was undergoing a C-section.
She was in the theatre from 15h50 to 16h25. Crucially a C-section had
already been booked to be performed on another patient, Ms G, after the
operation of Ms DM. Ms G occupied the theatre between 16h45 and
17h55. Ms TM was admitted to theatre at about 18h15 and her C-section
was finalised at about 19h20. Ms TM’s C-section commenced about two
and a quarter hours after the decision for the C-section was made.
[11] The medical experts agree that the Apgar scores recorded were low
and indicated that the baby was born in a depressed condition. The baby
had suffered an intrapartum hypoxic-ischemic injury which resulted in
permanent brain damage. A medical term spastic-dystonic quadriplegia
was mentioned by the medical experts to describe the condition of the
baby. According to the radiologist, an MRI scan performed when the
baby was three years and three months confirmed that the baby suffered
from cerebral palsy.

[12] The theatre records showed that on 28 August 2010 the theatre had
not been utilised between the following times 04h35-06h05, 07h05-09h30
and 11h40-14h15.
The high court proceedings
[13] When the trial commenced the parties agreed to present a stated
case to the court, which incorporated the agreement reached in a pre-trial
conference. The issues to be adjudicated on were recorded in the agreed
stated case as follows:
‘(a) whether the plaintiff herself was negligent;
(b) whether that negligence was the cause of the outcome and contributed to the
outcome;
(c) whether the nurses and doctors were negligent in their care or by not performing
the caesarean section earlier given the circumstances in which they found themselves
on the day in question particularly having regard to what facilities and personnel were
available;(d) whether both the Plaintiff and the Defendant fall to be liable for the
outcome.’
[14] Ms TM testified and two expert witnesses, Dr Linda Ruth Murray,
a specialist obstetrician and gynaecologist, and Professor Johan Smith,
paediatrician and neonatologist, testified to support her case. Three
specialists testified for the MEC: Dr Hlengani Lawrence Chauke, an
obstetrician in gynaecology who specialised in maternal and foetal
medicine. Dr Chauke is also the clinical head of the Department of
Obstetrician and gynaecology at the Hospital; Dr Thomas Matle
Marishane, a specialist gynaecologist and obstetrician; and Dr Keith
Duncan Bolton, a paediatrician. I do not think it is necessary to
summarise the evidence of each witness since the main issues to be

adjudicated have been crystallised. I will refer to the evidence of the
witnesses when I deem such evidence necessary.
[15] I had an opportunity to read the judgment of my colleague Rogers
AJA and I will comment on some of the important issues mentioned in
his judgment.
Appeal issues
[16] The three issues raised in the MEC’s heads of argument, including
whether the MEC owed a duty of care to Ms TM before she was admitted
at the Hospital as a patient, will be dealt with hereunder.
[17] The MEC’s counsel argued that the duty of care arose only from
12h55 after Ms TM was admitted to the Hospital. Counsel referred us to
AN v MEC for Health, Eastern Cape,2 as authority confirming that a legal
duty arises when a patient is admitted to the hospital. The central issue in
the said case related to a baby born with brain damage caused during
labour. This Court had to decide if the negligent failure of the staff at All
Saints Hospital to properly monitor the mother and the foetus during
delivery caused brain damage. This Court, correctly in my view, said the
legal duty arose when the mother was admitted to the hospital in labour.
[18] The MEC further submitted that non-use or sub-optimal use of the
theatre before Ms TM was admitted to CMH cannot constitute
negligence. On the contrary, it was argued on behalf of Ms TM, that the
MEC owed the public a duty of care, including Ms TM, even before she
was admitted as a patient at CMH. Counsel argued that non-utilisation or

2 AN v MEC for Health, Eastern Cape [2019] ZASCA 102; [2019] 4 All SA 1 (SCA).

sub-optimal use of the theatre before and after Ms TM was admitted to
the Hospital constituted negligence and the MEC should be held liable.
[19] In my view, the MEC’s employees did not foresee that Ms TM
would be admitted to the hospital on 28 August 2010 at about 12h55 and
that she would have complications with her pregnancy. On the facts of
this matter, I am of the view that the legal duty arose when Ms TM was
admitted to the hospital at about 12h55 and the hospital assumed a legal
duty of care on her from then onward.
[20]  The evidence in the high court also focused on the failure by
CMH’s employees to utilise the theatre earlier in the day to perform C-
sections. The theatre was not used during the following times: 4h35-6h05,
7h05-9h30 and 11h40 -14h15. The total period of non-utilisation of the
theatre earlier in the day is the total period of about five hours and forty-
five minutes. Rogers AJA refers to the said times as first, second and
third down times.
[21] The alleged mismanagement of resources that Ms TM relies upon,
that the theatre was not utilised for certain periods should not, on the
circumstances of this case, attract delictual liability. Dr Chauke testified
that one of the reasons why the theatre was not utilised is because there
were no autoclaved sterile gowns. The conduct of the MEC’s staff in that
respect does not, in my view, constitute negligence justifying that the
MEC should be held liable in the circumstances of this case. I think it is
then not necessary to elaborate further on what caused the theatre not to
be operational during the said periods.

Issue of not having two theatres (the second theatre issue)
[22] Ms TM’s counsel further argued that the MEC was negligent in not
ensuring that two theatres were operational. Dr Chauke testified that he
started working at the CMH in January 2016. He gave an account of the
staff that were on duty in the maternity ward in August 2010 and the
number of patients that were treated.
[23] Ms TM’s counsel further argued that only one theatre was
operating and since there is another theatre structure available which was
not utilised, the MEC should be held liable for failing to ensure that two
theatres were always operational at CMH. This argument was countered
by the evidence of Dr Chauke who said that due to budgetary constraints,
the monetary costs to cater for the salaries of extra medical staff and the
utilisation of the second theatre was not budgeted for. I agree with what
the Constitutional Court said in Soobramoney v Minister of Health
(Kwazulu-Natal)3 that the provincial administration in a particular
province is responsible for the decisions regarding the funding that should
be made available for health care. A court should be slow to interfere
with rational decisions taken in good faith by the government. In my view
there is no merit in the said argument and the utilisation of one theatre at
the time cannot be a ground for holding the MEC liable, on the
circumstances of this case.
Evidence presented regarding how the patients were admitted to
theatre
[24] On careful analysis of the hospital records, on 28 August 2010 and
the evidence of Dr Chauke, it seems that the admission to the theatre was

3 Soobramoney v Minister of Health (Kwazulu-Natal) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997
(12) BCLR 1696 para 29.

on ‘first come first served basis’ without assessing the urgency of the
treatment needed by each patient. To illustrate this, Ms TM was admitted
to the CMH at about 12h55. Another patient, Ms CM was admitted at
03h45 and the C-section was performed from 14h15-15h20. The patient,
Ms DM, was admitted to the CMH at 08h45. She was referred from
Edenvale General Hospital with suspected foetal bradycardia, (abnormal
slowness of the heartbeat), and she went to theatre for the C-section from
15h30-16h25. An additional patient, Ms XG, was admitted to the CMH at
09h50. She previously had had two C-sections, and was admitted to
theatre at 16h45.
[25] According to the undisputed evidence of Ms TM, she was admitted
as a patient to the CMH at 12h55, she was taken to the labour ward at
about 14h00, the decision that a C-section had to be performed on her
was taken at about 16h00, and she was taken to the theatre at about
18h15. The sequence of the times of admission to the hospital, and when
she was admitted to theatre supports the view of ‘first come first served’.
In matters where C-section is to be performed, the triage, which serves to
classify patients and determine which patient is to receive priority
treatment, is crucial. Experienced and qualified medical practitioners
should be involved.
[26] Ms G needed a C-section because of a risk of uterine rupture. She
was not examined by a doctor until she went to theatre at 16h45. Even
though she had had two previous C-sections, the risk of a rupture was
only 0.74% and that risk, according to Dr Murray, could be reduced by
giving her a tocolytic drug. Dr Murray said she would have probably
prioritised Ms TM’s admission to theatre before Ms G. Dr Murray
emphasised that the decision of a senior doctor was necessary.

[27] Dr Chauke’s opinion was that the principle of obstetric care is that
the health of the mother takes precedent over the foetus. When there is
reasonable equal emergency threatening the life of the mother on the one
hand and the baby on the other, any reasonable gynaecologist will favour
the mother. In this matter there is no evidence or record that the
emergency situation of Ms G and that of Ms TM were equal. What is on
record is that the risk of rupture of Ms G was 0.74% and it could be
reduced by giving her tocolytic. Dr Chauke further said he would
probably have made the same decision as Dr Sibeko, the surgeon who
performed the C-sections. Importantly, there is no record that Dr Sibeko
considered and evaluated the emergencies of Ms G and Ms TM.
Furthermore, there is no record why she prioritised Ms G’s C-section. Dr
Murray gave reasons why Ms TM should have been given preference.
The condition of Ms G was not dire and could be controlled with
tocolytic.
The interim measures
[28]  I now deal with the issue of tocolytic medication, giving the
mother oxygen mask and getting her to lie on her left side, as mentioned
by Dr Murray. During cross-examination it was put to Dr Murray that
there is no medical literature that tocolytic and Atosiban are effective
means of foetal resuscitation when foetal distress is detected. Her
response was that the reason for absence of literature was that one could
not perform ethical tests by giving the drug to some women and
withholding it from others. She emphasised that intrauterine resuscitation
is still recommended and is still implemented by medical doctors.

[29] The hospital records of Ms G show that the interim measures of
giving the Atosiban drug and making a patient to lie on her side were
implemented on her.
[30] No medical evidence was presented to show that intrauterine
resuscitation using tocolytic and atosiban and letting the mother lie on her
side would not make the situation of the foetus worse. There is no record
and no reason why they were not implemented on Ms TM. For ethical
reasons, testing did not allow for the drug to be withheld from other
patients.
[31] Dr Chauke justified the administration of Atosiban to Ms G by
saying that unlike tocolytics, Atosiban was known to have no harmful
effects and there was a small chance that it might be beneficial. No
medical evidence was presented regarding harmful effects of tocolytics.
[32] Dr Murray and Dr Chauke stated that the use of oxygen mask
improved the condition of the foetus very little and it was not used much
in practice. The experts agreed that making a mother lie on her side was a
practical measure that might assist. The MEC admitted that it owed Ms
TM a duty to ensure the rendering of medical treatment with skill, care
and diligence. Medical records of Ms TM do not reflect that Atosiban
was administered nor was Ms TM made to lie on her side. It is medically
recommended that when a foetus is distressed, Atosiban and making a
patient to lie on her side may help the distressed foetus.
[33] Dr Murray’s undisputed evidence is that generally during labour
there are recurrent uterine contractions for 40 to 60 seconds. They
become stronger, longer and closer together when labour becomes more

advanced. In that process, the blood flow between the mother and the
foetus is interrupted. She further testified that tocolysis can be used to
stop the contractions for foetal resuscitation when the foetus is in distress.
The other method used by medical practitioners to maximise placenta
blood flow and oxygen delivery was to turn the expectant mother onto her
left side and to give her a drip.
[34] In the agreed stated case, the expert gynaecologists acknowledged
that the Guidelines for Maternity Care in South Africa 2007
recommended that C-section should be performed within one hour of the
decision to operate. The delivery interval of 155 minutes was
unacceptably long and contrary to local and international guidelines.
There was no record of any treatment that was administered on Ms TM
between 16h00 to 18h00. Furthermore, there is no record that her serious
condition was discussed with any consultant doctor.
[35] Dr Murray’s opinion was that an omission to render the
recommended medical treatment constitutes substandard care and
mismanagement of a patient who is in labour. When Dr Murray was
cross-examined, she said that practice at the Tygerberg Hospital, in the
Western Cape, dictates that when the hospital is busy, a consultant doctor
would be present on the floor triaging the cases and every case is
discussed with the consultant. If there was a problem, advice would be
sought from the superintendent of their hospital. They would further
phone the surrounding hospitals so that they can divert emergency cases,
and the organisation of facilities and resources would assist to resolve
some problems.

[36] Ms G, who was admitted at 09h50, according to the hospital
records, was not seen by a doctor until she went to theatre at 16h45. I
should further mention that when Dr Chauke testified, he said he thought
that Ms G’s admission to theatre was given preference to the admission of
Ms TM because under the triage system it is more important to save the
life of the mother, rather than the life of an unborn baby. Dr Chauke’s
view was that the staff did not neglect their duties and that they followed
the standard procedure.
[37] Ms TM pleaded that the MEC had a duty to render medical care
and treatment to her. In the stated case, the MEC admitted that it owed
Ms TM a duty of care and had to render medical care and treatment to
her. Dr Sibeko, the registrar on duty on Saturday, 28 August 2010 was
deceased when the trial commenced. There is no hospital record that was
discovered that recorded all the events and patients in the maternity unit.
This case should be decided on the available evidence and records. I
cannot speculate about the triage decisions, if any, which Dr Sibeko took
on that Saturday.
[38] The hospital record of Ms TM, after the decision for the C-section
was made, does not reflect that she received any medical attention.
Whether she did receive medical attention or not, it should not be
assumed that she was medically treated but same was not recorded.
Medical treatment regarding Ms G about the Atosiban drug given to her
and that she was turned on her side was recorded. If she received the
treatment that was given to Ms G why was it not recorded? I am inclined
to find that Ms TM was not given the treatment recommended hence it
was not recorded.

[39] The high court said that there was one working theatre and it was
expected that cases which were not pressing would be attended to first so
that the theatre should be available for dire emergencies. The high court
further said this was an elementary feature of triage. I disagree. In my
view, triaging is mainly about prioritising more serious cases that need
attention at that moment, not to first clear cases that are not more
pressing.
[40] The high court ruled in favour of Ms TM on the first, second and
third downtimes. Dr Chauke’s reasons for the downtimes are reasonable.
In my view, the negligence of the MEC should be determined based on
what happened when Ms TM was referred to theatre.
[41] The legal position in claims involving negligence is that in order to
be liable for the damages suffered by someone else, the act or omission of
the defendant must have been wrongful and negligent and have caused
the loss. The standard to be applied is not that of the reasonable person
but that of a reasonable organ of state. In Moshongwa v PRASA,4 the
Constitutional Court stated that ‘the standard of a reasonable person was
developed in the context of private persons’ and given the fundamental
difference between the State and individuals, ‘it does not follow that what
is seen to be reasonable from an individual’s point of view must also be
reasonable in the context of organs of state’.
[42] The wrongfulness of the MEC’s conduct depends on the existence
of a legal duty. It is clear in the agreed stated case that the MEC admitted
that:

4 Mashongwa v PRASA [2015] ZACC 36; 2016 (2) BCLR 204; 2016 (3) SA 528 (CC) para 40.

‘2.9 [S]he owed the plaintiff a duty of care to ensure the rendering of medical care,
treatment and advice to the plaintiff with such skill, care and diligence as could
reasonably be expected of medical practitioners and nursing staff in similar
circumstances, obliging the defendant to ensure that proper, sufficient and reasonable
health services are provided to members of the public (particularly those who could
not make use of the services of a private hospital).
…
6.6 … the aforementioned staff undertook to render medical examinations, care,
treatment, and advice to the plaintiff and to monitor her labour as was reasonably
required in the circumstances.
…
7.2 … (subject to the availability of resources) the medical practitioners and nursing
staff were individually under a duty of care to render medical care, treatment and
advice to the plaintiff (particularly, but no necessarily limited to, the need for and/or
performance of a caesarean section to deliver her unborn child), to accurately
ascertain, monitor and record the progress of the plaintiff’s gestational age, and to
monitor the plaintiff’s labour with such skill, care and diligence as could reasonably
be expected of medical practitioners and/or nursing staff with reasonable and
appropriate obstetric knowledge in similar circumstances.’
[43] If the theatre was booked, the MEC should have checked with
other hospitals in the area if they could render assistance. Dr Murray
testified that in the Western Cape if there is no space, patients are
diverted to other facilities. The MEC in the reply to Ms TM’s notice in
terms of rule 35(3) stated that there was no protocol for the transfer of
patients to other hospitals. Contrary to the MEC’s response, the
Hospital’s Policy for Admission of Patients from Casualty dated 14
August 2006, reviewed with no change on 3 September 2008, clearly
states that:

‘If no space can be found for the patient within the hospital, the clinical executive on
call must be contacted so that arrangements can be made for the patient to be
transferred to another medical facility or, alternatively, to ensure that additional
nursing staff are acquired to provide the necessary nursing care, thus enabling the
patient to remain at this hospital.’
[44] It is common knowledge that CMH is in the Gauteng Province
which has public hospitals, one of them being Chris Hani Baragwanath
Hospital and there are other hospitals within a radius of 30 km.5 Even
though the high court did not make a ruling on the issue of referral to
other hospitals, this in my view, is an aspect to be considered in this
appeal.
[45] In respect of the further grounds of negligence raised by Ms TM in
the particulars of claim, she alleged that the MEC:
‘7.1.6  failed to implement such steps as could and would reasonably be required to
prevent the occurrence of the complication;
7.1.7 failed to avoid the complication when, by the exercise of reasonable care and
diligence, he could and should have done so.
…
7.2.2 failed to monitor Plaintiff’s labour and foetal well-being appropriately, with
sufficient regularity, or at all;
…
7.2.4 failed to request assessment and/or examination of Plaintiff by a qualified
medical practitioner upon her admission to the Charlotte Maxeke Johannesburg
Academic Hospital.
…

5 Checked information on Google maps.

7.2.18   failed to provide and/or render adequate and/or appropriate neo-natal
resuscitation immediately after birth of Mthabile.’
The MEC in the agreed stated case further admitted that:
‘6.4 . . . [B]y virtue of the provisions of Constitution (sections 9, 11 and 27), that she
owed the plaintiff a duty of care to ensure the rendering of medical care, treatment
and advice to the plaintiff with such skill, care and diligence as could be reasonably
expected of medical practitioners and nursing staff in similar circumstances, obliging
the defendant to ensure that proper, sufficient and reasonable health services are
provided to members of the public (particularly those who could not make use of the
services of a private hospital).’
Causation
[46] As a point of departure, the expert gynaecologists acknowledged
that the Guidelines for maternity care in SA 2007 recommend that C-
section should be performed within one hour of the decision to operate.
There should be a good reason why the experts and the Guidelines
specifically stated that the C-section needed to be performed within one
hour of the decision to operate. The time of one hour after the decision
has been made, is regarded as reasonable. The Guidelines which have
been in operation since 2007 have not been amended to state that the C-
sections needed to be performed as soon as reasonably possible.
[47] Contrary to the interpretation of my colleague, Rogers AJA, that
the guidance of 30 and 60 minutes applies to the interval between the
decision to operate and the delivery of the baby, rather than the
commencement of the operation, the Guidelines clearly state that the
operation should be performed within one hour. The administration of
anaesthetics should fall with the one hour. I disagree with Roger AJA that
on the referral issue the C-section could not have been performed sooner

at a neighbouring hospital than at the CMH theatre. However, there is no
direct evidence to suggest that any enquiries were made in this regard.
[48] The medical reports filed are full of medical jargon. Summary of
expert evidence of Prof van Toon, a paediatric neurologist, said profound
HII was an injury of the brain caused by profound lack of oxygen
(hypoxic) and blood flow (ischaemic) to the brain (chronic evolution)
‘acute profound’ which do not assist the court in determining the issue of
causation.
[49] Prof Smith, when he testified about the timing of the injury, said
‘the baby probably sustained its brain injury during the last hour of birth
or labour’.
[50] Dr Marishane said in the developing world an interval of one hour
from decision to operate until performing of C-section is acceptable in
most cases. He said it was difficult to state the effect of the delay in this
matter. Importantly, he said that once there is foetal distress, the goal is to
deliver the baby as soon as possible.
[51] The final hour hypothesis of Prof Smith is that the baby suffered
HII during the period 17h43-18h43. This was not challenged. Dr
Marishane said he did not know. There is no basis to reject the final hour
hypothesis.
[52] Prof Bolton said that the medical profession does not know how
long it takes for damage to occur. The guidance of 30-60 minutes was
simply some concoction of history without any scientific basis.
Importantly, no reasons were given why the guidelines were to be
scrapped because they serve no purpose.

[53] Having regard to the duty that the MEC owed to Ms TM after she
was admitted as a patient, the admissions made by the MEC, and the
evidence presented in court justify concluding that the MEC acted
negligently after Ms TM was referred for C-Section. Her condition
should have been monitored regularly and a consultant doctor should
have evaluated her condition, together with the conditions of Ms G and
Ms DM to determine which C-section was to be prioritised. I am satisfied
that the wrongful conduct of the MEC’s staff caused the baby to suffer
brain damage.6 On the facts, and based on the admissions made by the
MEC in the agreed stated case and the evidence presented in the high
court, the order of the high court should not be interfered with. Costs
should follow the result.
[54] In the result, I would make an order dismissing the appeal with
costs.
__________________
A P Ledwaba
Acting Judge of Appeal
Rogers AJA (Mbatha and Nicholls JJA concurring)
[55] I have read the judgment of my colleague Ledwaba AJA (the first
judgment). Unlike him, I have concluded that the appeal must succeed on
two grounds: that the respondent failed to prove on a balance of
probability (a) the negligence of the appellant and the employed medical

6 See also Minister of Safety and Security v Duiveboden [2002] ZASCA 79; [2002] 3 All SA 741
(SCA) para 25.

staff; or in any event (b) that MM’s injury and cerebral palsy would have
been avoided in the absence of the supposed negligence.
[56] In regard to wrongfulness, it is not in dispute that the appellant,
acting through the medical staff at the maternity unit of Charlotte Maxeke
Johannesburg Academic Hospital (CMH), owed the respondent, Ms TM,
a legal duty, upon her admission, to exercise reasonable care, skill and
diligence in her treatment. I am also willing to assume, without so
deciding, that the appellant, acting through those charged with the
management of the maternity unit, had a legal duty, for delictual
purposes, to manage the unit’s resources with reasonable efficiency and
that this legal duty could, in relation to Ms TM, have been breached by
acts or omissions preceding her admission at 12h55 on Saturday 28
August 2010.
[57] There are two features of CMH’s conduct prior to Ms TM’s
admission which call for attention. The first is the failure to have a second
functioning maternity theatre. The second is the failure to use the single
theatre earlier in the day to perform cesarean sections (C-sections) on
other patients.
Pleadings and issues
[58] Before considering this and other impugned conduct, I must say
something about the pleadings and documentation. When summons was
issued in June 2014, the only expert report which Ms TM’s advisers had
was the first report of the radiologist, Dr Andronikou. He concluded that
the pattern observable on the MRI scan of MM’s brain was most probably
that of an acute profound hypoxic ischaemic insult in a term or premature
neonate or foetus. He did not express an opinion on whether the insult

was suffered while the respondent was a patient at CMH or whether the
insult was suffered as a result of negligent treatment. It is thus
unsurprising that the particulars of claim, which were never thereafter
amended, took a scattergun approach. It is likewise unsurprising that
many of the pleaded omissions were later shown to be unjustified.
[59] The hearing ranged over many issues, undisciplined by the
pleadings. By the end of the trial, Ms TM’s case had come to focus on
five alleged failings, with particular emphasis on the second. These were:
(a)  The failure to have a second functioning maternity theatre, so that
when Ms G and Ms TM both needed C-sections at around 16h00, both
could promptly be taken to theatre (the second theatre issue).
(b)  The failure to use the single theatre earlier in the day to perform C-
sections on other patients, including Ms CM, Ms DM and Ms G, so that
the single theatre would have been available for the respondent’s C-
section shortly after 16h00 (the downtime issue). There were three
periods on the Saturday when the theatre was not in use: between 04h35 –
06h05; between 07h05 – 09h00/09h30 (the handwriting in the theatre
register is unclear); and between 11h40 –14h15. I shall call these the first,
second and third downtimes.
(c)  The triage decision to take Ms G rather than Ms TM to theatre after
16h00 (the triage issue).
(d)  The failure to take interim measures, while Ms TM waited for her
operation, to improve the foetus’ oxygenation (the interim measures
issue).

(e)  The failure to refer Ms TM to another Johannesburg hospital when it
became apparent that she would have to wait several hours for her
operation (the referral issue).
[60] The high court rejected Ms TM’s case on the second theatre issue
and the triage issue but found for Ms TM on the downtime issue. The
high court did not make a finding on the interim measures issue or the
referral issue. In this Court, the first judgment agrees with the high court
in rejecting the case based on the second theatre issue. The first judgment
holds that the high court should not have found for Ms TM on the
downtime issue. Instead, the first judgment finds for Ms TM on the triage
issue and the referral issue, and also criticises the MEC in relation to the
interim measures issue.
[61] None of five issues I have identified was pleaded. This is
unsurprising, because when summons was issued Ms TM’s legal
representatives did not know the facts. In regard to the second theatre
issue, there was a generalised allegation that the appellant failed to ensure
that CMH was ‘suitably, adequately and/or properly equipped to enable
the timeous and proper performance of a [C-section] if and when
required’. There was indeed a suitably, adequately and properly equipped
C-section theatre. The problem was that there was only one. The
allegation I have quoted was inadequate, to found a case based on a
complaint that the appellant acted wrongfully and negligently by failing
to have two (or more) functioning C-section theatres.
[62] In regard to the downtime issue, the respondent alleged that the
healthcare professionals ‘failed to perform or request to be performed,
timeously, a [C-section] on Plaintiff in circumstances where it was

necessary and/or indicated to do so’ and ‘failed to ensure that the
emergency [C-section] was performed without delay’. There were no
allegations about what the healthcare workers had done or failed to do
earlier in the day in relation to other patients. In regard to the triage issue,
nothing was pleaded beyond the generalised allegations to which I have
already referred and the further allegation that the healthcare
professionals ‘failed to provide and/or render the requisite reasonable
medical, surgical, nursery and midwifery services with such professional
skill and diligence as could reasonably be expected of medical
practitioners, nurses and/or midwives in the particular circumstances’. Ms
G’s name was not mentioned. In relation to the interim measures and
referral issues, nothing was pleaded beyond the allegations I have already
identified.
[63] While Ms TM’s legal representatives cannot necessarily be faulted
for being unaware, when summons was issued, of the facts underlying the
five issues on which they ultimately relied, the particulars of claim should
have been amended once it was decided to advance them. One gets the
impression that the thinking of Ms TM’s legal representatives on these
issues only emerged or crystallised during the course of the trial. It is
hardly surprising, therefore, that the documentary and expert evidence
was not pertinently directed to these matters.
[64] Insofar as documentary evidence is concerned, the patient records
adduced in evidence, apart from Ms TM’s, were those of Ms CM, Ms
DM, Ms G and Ms N. Why Ms N’s record was handed in is a mystery.
The records of Ms CM, Ms DM and Ms G were presumably requested
because their names appeared immediately before Ms TM’s in the theatre
register. In total, 13 patients had C-sections at CMH’s maternity theatre

on 28 August 2010 – six before Ms CM, and three after Ms TM. There
would have been other women in the maternity unit on that Saturday:
mothers whose babies were born on the Friday (or earlier) and who had
not yet been discharged; mothers whose babies were born on the Saturday
by normal vaginal delivery (NVD); and mothers who were in labour but
whose babies were only delivered on the Sunday.
[65] Apart from Ms TM’s record and those of the four mothers named
above, the records of the many patients who needed attention in the
maternity unit on the Saturday were not adduced and were apparently not
requested. Counsel for Ms TM took us to his client’s notices for better
discovery dated 21 June and 24 August 2016. The first required
production of complete and legible records pertaining to Ms TM’s and
MM’s treatment. The second was wide-ranging, but focused on staffing
and protocols.
[66] Save for the interim measures issue, which was dealt with in Dr
Murray’s report, the reports of the experts contained nothing whatsoever
about the five issues, and such oral expert evidence as there was on these
matters emerged haphazardly.
[67] When a member of this Court asked counsel for the MEC, with
reference to the downtime issue, whether he took any point on the
pleadings, he said, very fairly, that he had perhaps been at fault in not
objecting to some of the evidence, and that in the circumstances he would
not argue that the issue was not open to Ms TM. Although he was not
asked the same question about the second theatre issue, the circumstances
of the case suggest that his answer would have been the same. On the
other hand, he argued that the triage complaint should not be entertained.

[68] In the light of counsel’s attitude, I accept that the second theatre
issue and downtime issue are not foreclosed by the pleadings. I am
doubtful that the other three issues are open to Ms TM, but I shall assume
in her favour that we may entertain them. Nevertheless, given the absence
of proper pleading and the haphazard way in which evidence on these
matters emerged, it would not be fair to place too much emphasis on the
supposed evidential burden resting on the MEC to explain the supposed
failings. The burden of proof remained throughout on Ms TM.
The second theatre issue
[69] As at August 2010 there was physical space for a second maternity
theatre but it was not functional: it was unequipped, and there was not a
second staff complement (surgeon, anaesthetist, anaesthesia nurse, floor
nurse, scrub nurse, cleaner and porter). A second theatre was
commissioned in 2013, but was only functional on Mondays to Fridays
during ordinary working hours. This was still the position when Dr
Chauke testified in August 2018. Since Ms TM’s C-section was
performed on a Saturday, there was no practical difference between the
2010 and 2013 regimes.
[70] If the second theatre issue had been pleaded, I would have expected
focused documentary and expert evidence on the subject, including
evidence from experts on hospital management adduced with reference to
detailed financial information. There are many demands on a health
department’s budget and on particular public hospitals’ budgets. The way
in which the money allocated to them is used is entrusted by law to the
relevant minister and senior officials, not the courts. The range of
reasonable decisions is likely to be broad. In these circumstances, a case
such as the one based on the second theatre issue is not easily established.

[71] Dr Murray testified that in the urban hospitals where she has
worked there were usually two theatres, with the second theatre being for
elective surgery. If two patients need immediate surgery, elective
operations can be deferred. Clearly such an arrangement is better than
having only one theatre, but Dr Murray’s evidence did not begin to
address the question whether, having regard to budgetary constraints and
other demands, it was unreasonable for there not to be a second maternity
theatre.
[72] The only other witness who was questioned on this issue was Dr
Chauke, a qualified obstetrician and gynaecologist with super-
specialisation in maternal and foetal medicine. Since January 2016 he has
been CMH’s Head of Department of Obstetrics and Gynaecology.
Although he was not at CMH in 2010, he produced data of C-sections
performed at the hospital in 2010, with reference to which he testified that
the prospect of successfully motivating for a second maternity theatre at
that time would have been very low. The second theatre opened in 2013
was intended for elective surgery.
[73] On this limited evidence, it is in my view impossible to conclude
that the MEC was negligent in failing so to apply the department’s money
as to ensure that there was, in August 2010, a second functioning
maternity theatre at CMH. The high court’s finding in this respect cannot
be faulted.
[74] It is convenient, here, to mention a related point made by Dr
Murray which was not contained in her expert report. She suggested that
one did not need a second maternity theatre. A C-section could be
performed in a general theatre. The incubator was a mobile unit which

could be moved to a general theatre. She remarked that private hospitals
do not have dedicated maternity theatres.
[75] It was not alleged, in the particulars of claim, that the medical staff
were negligent in failing to have Ms TM’s C-section performed at one of
CMH’s general theatres. Dr Chauke’s response to Dr Murray’s remarks
was that a C-section is a specialised procedure that has to be performed
by a competent surgeon. The maternity theatre is physically separated
from CMH’s general theatres. The maternity theatre has its own
allocation of specialist nursing staff, and is located close to the neonatal
unit. General gynaecological operations are performed in the main theatre
complex because they do not need the same level of specialisation.
[76] He referred to a Department of Health report concerning maternal
deaths in this country.7 According to this report, one-third of maternal
deaths from bleeding during or after C-sections were cases involving a
lack of surgical skill. The same report stated that a safe caesarean delivery
(CD) service meant having adequate resources ‘including adequate
numbers of knowledgeable and skilled staff who can manage surgical and
anaesthetic complications of CD’. Criteria for accreditation of CD sites
had been developed which needed to be implemented, even though this
might result in CD services being closed in some facilities. Dr Chauke
testified that general surgeons at CMH would not agree to perform C-
sections, and that he would not be comfortable asking them to do so.
[77] Once again, the limited evidence on this unpleaded issue does not
permit of a finding in Ms TM’s favour.

7 Department Of Health ‘Saving Mothers 2014-2016: Seventh triennial report on confidential enquiries
into maternal deaths in South Africa: Executive summary’.

The downtime issue
[78] This was the issue on which the high court found in Ms TM’s
favour. I shall for convenience refer to the mothers whose C-sections
were performed before Ms CM’s as X1-X6, because they were the first
six C-sections performed on that day. I shall refer to the three mothers
whose C-sections were performed after Ms TM’s as X11-X13. Between
the operations of X6 and X11 were the C-sections performed (in this
order) on Ms CM, Ms DM, Ms G and Ms TM.
[79] The first downtime, from 04h35-06h05, need not concern us. When
Dr Chauke was led on that subject, counsel for Ms TM interjected to say
that her client’s complaint was about the second and third downtimes, not
the first downtime.
[80] The second and third downtimes occurred between 07h05-
09h00/09h30 and between 11h40-14h15. In relation to these downtimes,
it is necessary to consider the positions of Ms CM, Ms DM, Ms G and
X4, X5 and X6.
[81] Ms CM was admitted to CMH at 03h45. Because she was carrying
twins and the leading twin was in a breech position, an NVD was unsafe.
Sooner or later, therefore, her babies would have to be delivered by C-
section. She was scheduled to have her C-section during the first
downtime. Her operation was eventually performed from 14h15-15h20.
[82] Although Ms DM was admitted to CMH at 06h05 with suspected
foetal bradycardia, her CMH record shows that the staff initially
considered that she could have a NVD. It was only at 13h45 that her baby

was detected to be suffering foetal distress and a C-section became
necessary. Her C-section was performed from 15h30-16h25.
[83] Ms G was first assessed at 09h50. Because she had undergone two
previous C-sections, NVD posed a risk of uterine rupture. Although the
risk is not high, if it eventuates it can be fatal for mother and child.
Sooner or later, therefore, her baby had to be delivered by C-section.
When seen by a doctor at 16h15, she was 8 cm dilated, the foetal heart
rate (FHR) was satisfactory and there was no bleeding. The decision was
taken to perform a C-section, which took place from 16h45-17h55.
[84] The C-sections of X4, X5 and X6 were performed between 06h05-
07h05, 09h00/09h30-10h10, and 10h35-11h40. According to the theatre
register, these were all cases of foetal distress, and it has not been claimed
that Ms CM or Ms G should have been prioritised ahead of them. Ms DM
had not yet been identified as needing a C-section.
[85] Assuming for the moment that it was negligent to allow the theatre
to stand idle during the second and/or third downtimes, and that its use
during these downtimes should have been maximised for C-sections, the
evidence summarised above suggests the following:
(a)  If the negligence applied to both downtimes, Ms CM’s operation
could have been performed during the second downtime and Ms G’s
during the third downtime. If this had been done, Ms DM could have had
her operation between 14h15-15h30, meaning that the theatre would
immediately have been available for Ms TM when her baby’s foetal
distress was confirmed at 16h00.
(b)  If the negligence applied only to the second downtime, Ms CM’s
operation could have been performed during that downtime. Ms DM’s

operation could then have been performed in the slot from 14h15-15h10
and Ms G’s operation from 15h30-16h40. This would mean that Ms TM
could have been in theatre by about 16h55, and MM would then have
been delivered at around 17h23. (This is based on the fact that when Ms
TM’s operation began at 18h15, MM was delivered 28 minutes later.)
(c)  If the negligence applied only to the third downtime, the operations of
both Ms CM and Ms G could have been performed during that downtime,
which lasted about two and half hours. Ms DM’s operation could then
have been performed from 14h15-15h20, meaning that the theatre would
immediately have been available for Ms TM when her baby’s foetal
distress was confirmed at 16h00.
(d)  If the negligence applied only to part of one or both of these
downtimes, these permutations might change.
[86] Turning to the reasons for the second and third downtimes, Dr
Sibeko, the registrar on duty on the Saturday afternoon, was deceased by
the time of the trial. Dr Chauke testified that CMH has a high turnover of
doctors, and they had been unable to trace the other doctors working at
the maternity unit on that day. Without the medical records of all the
patients in the maternity unit, one cannot reconstruct the day’s events. Dr
Chauke could not explain from personal knowledge why the second and
third downtimes occurred. Without full medical records, even the doctors
and nurses who were on duty on 28 August 2010 would not, eight years
later, have been able to do so.
[87] Dr Chauke did not find the occurrence of the second and third
downtimes remarkable. He testified that Dr Sibeko, as the senior doctor
present, would have had to do ward rounds: ward 162 (the obstetric

emergency admission ward), ward 166 (the labour ward), the post-natal
wards and ward 194 (the antenatal ward for women with pregnancy
complications). Non-theatre emergencies, including resuscitations, could
occur, which could not be left to an intern.
[88] Although Ms CM and Ms G were both known to be mothers who
would need C-sections sooner or later, it would – in the absence of a full
reconstruction of the day’s events – be unfair to the MEC and to the late
Dr Sibeko to find that the latter was at fault for not performing those C-
sections during the second and third downtimes. If she had other duties to
perform, including non-theatre emergencies, she might properly have
deferred their operations, not regarding either of them as yet urgent. We
know that in the event both mothers had unproblematic and successful C-
section deliveries. Ms DM was only identified for a C-section at the tail-
end of the third downtime. At no stage during the second or third
downtimes was it expected that Ms TM would need a C-section.
[89] Since the downtime issue was not pleaded, it would not be right to
penalise the MEC for having failed to produce all the medical records and
undertake a complete reconstruction. If Ms TM’s legal representatives
wanted to run this case, they should have called for all the medical
records, done the reconstruction, and led expert evidence with reference
to the triage decisions which Dr Sibeko took over the course of the day.
When counsel for the MEC put to Dr Murray that the case was not about
the wrongs and rights of the treatment of other patients, she said that she
fully understood this in relation to the individual cases, but added:
‘. . . [T]his is a case not simply about our plaintiff but about everything that happened
on that day and we cannot really appreciate the lay of the land so to speak without
knowing what else was going on, and that is the only reason why I refer to those

cases, not because . . . I am trying to look for fault in other people in other cases,
simply because in order to understand what was going on, it is important to look more
broadly than the plaintiff.’
In regard to the downtime issue, Dr Murray was correct. But, presumably
because the downtime issue had not been pleaded and had not been the
subject of proper discovery and expert reports, she did not have access to
the full records to give her the ‘lay of the land’.
[90] In my view, Ms TM failed to discharge the burden of proving
negligence on the downtime issue. I thus respectfully consider that the
high court erred in finding otherwise.
The triage issue
[91] This unpleaded issue arose first in Dr Murray’s cross-examination.
In the context of the fact that Ms G was already known in the morning to
be a mother who would need a C-section, and that the decision was only
taken at 16h00 to perform it, she said:
‘My point being is that there was an indication for her to have that Caesar for the prior
six hours, but I do not expect a registrar to make that decision. If you ask me, I would
say previous Caesar times two has a 0.74% risk of rupture that is fairly low and she
can be tocolysed. I would as a senior have probably chosen a baby in severe distress
but that is a decision that a senior person has to make . . . I am not suggesting
somebody should rupture a uterus at the expense of another patient. It is all about
triage, I mean that is what … working in an emergency setting is about.
. . .
I am not being critical of the . . . I am not suggesting somebody should suffer for
somebody else to have a good outcome. I am simply saying we are dealing with [an]
important situation . . . [M]y opinion is that if resources are limited and multiple
emergencies [arise], senior people should be involved, there should be management
involved, there should be overall management of an emergency situation . . . [T]o

have junior doctors making important decisions . . . is not acceptable, I mean it is not
. . . it is not ideal but anyway.’
[92] This passage raises two possible criticisms of Dr Sibeko: the
decision to prioritise Ms G above Ms TM; and Dr Sibeko’s failure to seek
the advice of a consultant before making her triage decision. Unless the
first criticism receives a clear medical answer that Ms TM should have
been prioritised, the second criticism is causally irrelevant, since it cannot
be assumed that the consultant, if contacted, would have advised Dr
Sibeko to prioritise Ms TM.
[93]  Because this issue was not pleaded or the subject of expert reports,
Dr Murray’s oral evidence about the low risk of Ms G suffering a uterine
rupture was not supported with reference to literature. Dr Chauke
responded to Dr Murray’s criticism by stating that the principle of
obstetric care is that the mother takes precedence over the foetus, and that
when one has reasonably equal emergencies threatening the mother on
the one hand and the baby on the other, any reasonable gynaecologist will
favour the mother. He said that he would probably have made the same
decision as Dr Sibeko. Many mothers whose CTGs show foetal distress
deliver healthy babies, as occurred on this very Saturday.8
[94] The views of Dr Marishane, an obstetrician and gynaecologist,
accorded with Dr Chauke’s. Uterine rupture, he said, posed a threat to the
life of both the mother and the baby. In regard to foetal distress, the CTG
‘is good in telling you that the baby is most likely okay but it is very bad

8 The theatre register reflects that eight of the C-sections on that day (X2, X3, X4, X5, X6, Ms DM, Ms
TM and X11) were performed because of foetal distress. Only Ms TM’s had a bad outcome. Although
the babies of X4, X5 and X6 had low one-minute Apgar Scores, their ten-minute Apgar scores
recovered to 9/10 or 10/10.

in telling you that the baby has a problem . . .’. In most cases where the
CTG suggests a problem, the baby comes out normal, close to 90% of
cases. He would have prioritised Ms G.
[95] Prof Bolton, a paediatrician, had a similar opinion about CTGs. A
CTG, he remarked, was ‘a pretty awful way of looking at it but it is what
we have got’. The CTG ‘over-diagnoses tremendously’, which results in
many unnecessary C-sections. Ms TM’s paediatric expert, Prof Smith,
said that the CTG was the best diagnostic device which the medical
community had, and all official bodies recommended it: ‘[W]e all
criticise it and we all understand its deficiencies . . . You will do [C-
sections] unnecessarily, but there is no way of circumventing that at this
point in time.’
[96] In my view, therefore, the high court was right to reject the
argument that Ms TM should have been prioritised. If the manner of
prioritising in such cases is clear, it was probably unnecessary for Dr
Sibeko to contact one of the consultants. At any rate, it cannot be found
that if she had done so, the consultant would probably have advised her to
prioritise Ms TM.
The interim measures issue
[97] On this unpleaded issue the question is whether, given that Ms
TM’s operation only started two and a quarter hours after the decision to
operate, interim measures should have been implemented to improve her
foetus’ oxygenation. Those mentioned in the evidence were tocolytic
medication, giving the mother an oxygen mask, and getting her to lie on
her left side.

[98] It was put to Dr Murray that tocolytic medication such as Atosiban
has not been shown to be effective as a means of foetal resuscitation,
particularly in the case of a mother who was already (as Ms TM was)
7 cm dilated when foetal distress was detected. Dr Murray acknowledged
that because of the paucity of literature, a recent meta-analysis was
‘unable to find proof that tocolysis is beneficial’. The reason for the
absence of literature was that one could not perform ethical tests by
giving the drug to some women and withholding it from others. However,
because foetal condition is linked to uterine contractions, there was logic
to the view that suppressing contractions was helpful. Every guideline
and international body of which she was aware recommended its use.
[99] Dr Chauke was referred, in cross-examination, to the fact that
Atosiban was administered to Ms G. His reply was that unlike certain
other tocolytics, Atosiban was known to have no harmful effects, so he
could understand its administration, even if there was only a small chance
that it might be beneficial.
[100] Dr Marishane said that there was no agreement among
obstetricians about intrauterine resuscitation, because there was no
research to back up the methods used. The only thing that had been found
to be of some value was getting the mother to lie on her side. And in
regard to tocolysis, he said that once patients got to dilation of 7 cm or
more, tocolytics did not really help and the patients did not seem to
respond well to it. In Ms G’s case, because she had had two previous C-
sections, it was important to stop her contractions to prevent rupture. In
the case of foetal distress, however, there was disagreement as to whether
it brought about a different outcome, though some would say that there is
nothing to lose by trying it.

[101] Since Ms TM’s record does not note that Atosiban was
administered, we must assume that it was not. Given the evidence that it
could do no harm, this failure is questionable. However, the evidence
falls well short of showing that its administration would probably have
had a material effect.
[102] In regard to giving the mother an oxygen mask, Dr Murray testified
that as at 2010 it was part of the standard resuscitation package to give
the mother oxygen but that it helped the foetus very little and they did not
use it much anymore. Dr Chauke confirmed that the use of an oxygen
mask was part of the 2007 Guidelines but said that he did not agree with
its use, and the cross-examiner did not press the point, understandably in
the light of Dr Murray’s testimony.
[103] All the experts agreed that getting a mother to lie on her left side
was a practical measure which did no harm and might help. There was no
expert evidence about the extent of the help. Dr Chauke testified that this
practice was so ingrained that one sometimes does not find it recorded in
the nursing notes. Ms TM testified eight years after the event, and it is no
criticism of her to say that her recollections were imprecise. No evidence
was elicited from her as to how she was lying during the two hours she
was awaiting her operation or whether she was advised to lie on her left
side. Although in Ms DM’s case, the note of 13h50 records that she was
placed on her left side, the absence of a similar note in Ms TM’s case
does not without more justify the inference that she was not placed on her
left side. The notes were written by different nurses; the one may have
noted it, the other not.

The referral issue
[104] This is, once again, an unpleaded matter. One of Ms TM’s notices
for better discovery sought production of the CMH protocols, as at
August 2010, for the transfer of patients to other hospitals during periods
of high patient loads. The reply was that no such protocols existed; that
CMH was an academic hospital, and that patients were transferred to, not
from, CMH; and that only ICU patients were transferred to other
supporting hospitals.
[105] Dr Murray testified that at Tygerberg Hospital they were proactive
in emergencies. This might include phoning surrounding hospitals if the
patient could not be treated at Tygerberg. Neither Dr Chauke nor Dr
Marishane were cross-examined on this question.
[106] In my opinion, the evidence on the referral issue is insufficient to
allow the court to reach a fair conclusion. The absence of a general
hospital protocol does not mean that the medical staff at CMH’s
maternity unit would have closed their minds to the possibility of an
outward referral for an urgent C-section. The question was simply not
raised with Dr Chauke. We do not know what other public hospitals
existed, whether an ambulance service was available, what distance each
such hospital was from CMH, what their facilities were, how long a
transfer would have taken, and whether their facilities were likely to have
been available to Ms TM sooner than at CMH.
Causation
[107] I have already dealt with causation in relation to the interim
measures issue. And what I have just said about the referral issue shows
that Ms TM failed to prove on a balance of probability that her baby

would have been delivered sooner if the possibility of a transfer had been
pursued. What I now address is the question of causation in relation to the
second theatre issue, the downtime issue and the triage issue.
[108] On the downtime issue, the most favourable scenario for Ms TM is
that a theatre would have been immediately available for the operation
when the need for it arose. This would also be the position if one found in
favour of Ms TM on the second theatre issue or on the prioritisation issue.
[109] To the extent that the MEC contended that a C-section interval of
one hour would have been acceptable, I reject the contention in those
stark terms. The C-section needed to be performed as soon as reasonably
possible. General benchmarks of 30 minutes (in the developed world) or
60 minutes (in the developing world) do not absolve medical staff from
acting as quickly as reasonably possible. I should add that it appears from
the joint minute of the obstetricians that the guidance of 30 minutes and
60 minutes applies to the interval between the decision to operate and the
delivery of the baby, rather than the commencement of the operation. In
order to deliver a baby within 60 minutes, one would typically need to
start the operation (the administration of anaesthesia) 15-30 minutes
earlier.
[110] On this basis, it is reasonable to suppose that the operation could
have started at 16h15. Based on the course of the operation later
performed, MM would have been delivered by 16h43.9 For the sake of
completeness, I add, with reference to the referral issue, that a C-section

9   The respondent's C-section started at 18h15, and Mthabile was delivered at 18h43.The time of
delivery was recorded in the joint minute between Prof Smith and Prof Bolton. The obstetricians in
their joint minute referenced a time of 18h35, which was when surgery (as distinct from anaesthesia)
began. In the summary filed in respect of Dr Murray's evidence, it was recorded that surgery started at
18h35 and that the baby was delivered at 18h43.

could not have been performed sooner at a neighbouring hospital than at
an immediately available CMH theatre.
[111] The radiologists identified MM’s injury as a hypoxic ischaemic
injury (HII) of an ‘acute-profound’ nature occurring perinatally in a term
brain. This was agreed in their joint minute.10 As to when the insult was
suffered, the radiologists did not say more than that it occurred
‘perinatally’ in a ‘term’ brain. Neither expression is defined in the record.
Online definitions vary, but they all indicate that these expressions may
include several weeks before onset of labour and include some period
after the baby is born. Within the ‘perinatal’ period is the ‘intrapartum’
period, ie from the start of labour until the baby is born. The
paediatricians, Prof Smith and Prof Bolton, agreed in their joint minute
that the injury was suffered intrapartum.
[112] There is no evidence of mishaps in Ms TM’s pregnancy before
foetal distress was noted at 15h45 on 28 August 2010. Since foetal
distress may be caused by a lack of oxygen, and since this is a known
cause of HII, one can accept as a matter of probability that this marked
the beginning of the episode which caused MM’s brain injury.
[113] A more significant omission in the radiology reports is a definition
of an ‘acute-profound’ hypoxic ischaemic injury. All the experts gave
their reports on the basis that one was dealing with an ‘acute’ insult rather
than a ‘partial prolonged’ insult. Dr Weinstein, the radiologist engaged on
behalf of the MEC, noted in his report that although acute HII is usually
associated with a ‘sentinel event’ (in the present case, no such event was

10 On the status of such joint minutes, see Bee v Road Accident Fund [2018] ZASCA 52; 2018 (4) SA
366 (SCA) paras 64-66 and Member of the Executive Council for Health, Eastern Cape v DL obo AL
[2021] ZASCA 68 paras 23-24.

recorded), an acute HII can occur without a sentinel event. In Ms TM’s
summary of the expert evidence of Prof van Toorn, a paediatric
neurologist, he agreed with the radiologists’ opinion that MM suffered
brain injury ‘as a result of acute total asphyxia’. He stated that a
‘profound’ HII was an injury of the brain ‘caused by a profound lack of
oxygen (hypoxic) and blood flow (ischaemic) to the brain’. (Neither Dr
Weinstein nor Prof van Toorn testified.)
[114] Another omission was any explanation of Dr Andronikou’s
statement that the features of MM’s brain injury were those of a ‘chronic
evolution’ of a global insult. In a joint minute, the radiologists,
immediately after recording their agreement that the HII was ‘acute
profound’, agreed upon the description ‘chronic’. Similar wording by Dr
Andronikou in a case which reached this Court as AN v MEC for Health,
Eastern Cape11 led the minority to conclude that ‘acute’ did not
necessarily convey that the hypoxia happened over a short period of time.
The majority rejected that view.
[115] In the present case, one can glean from Dr Weinstein’s report that
he used the word ‘chronic’ as meaning ‘old’, ie not of recent origin. We
do not know whether Dr Andronikou’s expression, ‘chronic evolution’,
was likewise intended to convey that the brain damage was old, not new.
Another possible explanation for Dr Andronikou’s description is this. It
appears from a 2014 ACOG report, adduced as an exhibit at the trial,12
that the pattern of brain damage caused by an acute intrapartum hypoxic
insult may only be fully visible on MRI scanning after seven days of life,

11 AN v MEC for Health, Eastern Cape [2019] ZASCA 102; [2019] 4 All SA 1 (SCA).
12 'Neonatal Encephalopathy and Neurologic Outcome, Second Edition: Report of the American
College of Obstetricians and Gynaecologists' Task Force on Neonatal Encephalopathy’ (May 2014)
Paediatrics 133(5) at 1482-1488.

and that scans taken in the first 24-96 hours of life may underestimate the
total extent of the injury. This suggests that although the insult is of short
duration, the brain damage it causes evolves over some days.
[116] But to return to the agreement that the insult was of an ‘acute-
profound’ nature. It was of the greatest importance, in this case, to know
when the acute-profound episode began and how long it needed to last to
cause the damage noted on the MRI. None of the expert reports addressed
this question. In the summaries of Prof Smith’s expert evidence, which
Ms TM delivered, it was stated that he agreed that the MRI features were
those of an acute-profound HII to a term brain. He considered that the
insult probably occurred during the intrapartum period, with sub-optimal
care (and particularly the delay in performing the C-section) as the most
probable causal factor.
[117] In oral evidence, Prof Smith went beyond his expert summaries in
a passage of evidence on which the high court relied. He was asked in
chief whether he and his counterpart, Prof Bolton, had discussed the
timing of the injury. He said no, adding that ‘the baby probably sustained
its brain injury during the last hour of birth labour’. He said that although
the injury had been described as ‘acute-profound’, it was ‘actually more
correct to say it is a central brain injury’. In this case there was no
sentinel event. Where there is a sentinel event, ‘you have got 15 plus
minutes . . . , then you have the increasing likelihood of this type of brain
injury’, it starts occurring ‘over a short period of time’. In his experience,
however, where there was no sentinel event, this ‘sub-acute cause’ can
take a long period of time, because foetuses are quite resilient and can
withstand significant hypoxic events. Here there was a ‘non-reassuring
foetal condition’ (meaning the foetal distress detected at 15h45) ‘160

minutes before they did the delivery’: ‘[T]hat is sufficient time for sub-
acute hypoxia to result in the final crash in the last hour.’
[118] The final-hour hypothesis is thus that MM suffered his HII during
the period 17h43-18h43. Counsel for the MEC did not object to this
evidence. And perhaps because he had not been precognised of it, and did
not appreciate its possible significance, he did not deal with it in cross-
examination.
[119] Dr Marishane, like Prof Smith, did not deal with this issue in his
report. In chief, he said that in the developing world an interval of one
hour from decision to operate until performance of the C-section (I shall
call this the C-section interval) is acceptable in most cases. He was asked
what effect the delay in the present case beyond one hour would have
been. He said that it was difficult to say. Once one has foetal distress, the
goal is to deliver the baby as soon as possible. However, sometimes by
the time one sees the decelerations on the CTG it is too late.
[120] In cross-examination, Dr Marishane said that they could all agree
that the C-section should have been done earlier, but nobody could say
when the damage occurred. Counsel for Ms TM then asked him whether
he agreed with Prof Smith’s final-hour hypothesis. He replied that he did
not know: ‘[I]t would be interesting to know how he [Prof Smith] knows
that.’ The evidence then continued:
Ms Munro: Well he explained that when the foetal distress starts, that it accumulates
and it becomes overwhelming ultimately, and that at some point the injury or the
foetus succumbs to the continual contractions and that is why it would not have
happened and that is why the one-hour gap, if you can get someone there within the
first hour, he should be fine.

Dr Marishane: The one-hour gap is not, you know is not scientific … [I]t is not like it
is a cut-off that you know at one hour unless you have done this caesarean at one hour
this would happen, no not necessarily . . . [I]t is more like advocacy to say let us get
our resources mobilised as quickly as possible when we have . . . to do caesarean
sections for foetal distress
. . .
Ms Munro: . . . [A]s soon as the [CTG] starts to show abnormalities, you know that a
level of hypoxia is occurring and the proposition put by the plaintiff’s experts, both Dr
Murray and Prof Smith, is that it is not an instantaneous one hypoxic event, because
we all go through that during birth, but it is the accumulation and the eventual
exhaustion, if I can put it in layman’s terms, of the foetus who then succumbs at a
later stage.
Dr Marishane: That is why I say it depends on the course, you understand? That kind
of reasoning is depending on what actually is causing the baby to be hypoxic, so you
cannot have a blanket statement and say that there is accumulation when at the same
time you are saying it was an acute thing. What are you saying?
Ms Munro: No doctor, every baby as I understand it goes through an amount of
hypoxia during birth, and a foetus is resilient and can survive that, it is not a problem.
It is only when it becomes overwhelming to the foetus that the foetus then suffers a
hypoxic event.
Dr Marishane: Exactly the point.
[121] Dr Marishane was saying that the course of events underlying Prof
Smith’s final-hour hypothesis could not be reconciled with acceptance of
an acute insult. The manner in which the views of Dr Murray and Prof
Smith were conveyed to him by the cross-examiner painted the picture of
a foetus coping with the ordinary intermittent hypoxia caused by labour
contractions until at some point it succumbs. However, this coping
mechanism would be normal on a CTG, since by definition it is a
standard feature of labour. What was noted at 15h45 was abnormal,

something which – on the hypothesis put to Dr Marishane – was
signalling the commencement of the succumbing of the foetus to hypoxia.
And since the brain pattern was of an acute insult, it is not self-evident
why the damage was not irreversible within a relatively short space of
time.
[122] The same subject was taken up with Prof Bolton in cross-
examination. It was put to him that the correct treatment would have been
to take the mother into theatre within 60 minutes. He replied that the
medical profession does not know how long it takes for damage to occur.
The guidance of 30 minutes or 60 minutes was ‘simply some concoction
of history’, without scientific basis. The cross-examiner then put to him
the thesis of a foetus eventually succumbing, using Dr Murray’s analogy:
Ms Munro: . . . [I]t is as if you are putting a baby underwater and you push them
down and they come up to catch a breath and you push them down and they come up
to catch a breath, but if you overwhelm that baby they eventually succumb. Do you
disagree with that hypothesis as to that happening here?
Prof Bolton: I think that that is not the scenario M’Lady here, that usually causes a
chronic more subacute, a partial prolonged kind of pattern as opposed to the acute
profound.
. . .
. . . I disagree with them. I think it is that analogy given is not a good one in my
opinion for an acute profound.’
[123] With reference to the swimming pool analogy, Prof Bolton referred
to animal tests done on birth asphyxia. One of these unpleasant
experiments involved putting newborn animals underwater and keeping
them submerged until they died, or pulling them out just before they died
and resuscitating them. This revealed brain damage of an acute profound

insult. The judge then put her understanding of the thesis advanced by Ms
TM’s experts, of a foetus engaged in an ongoing struggle and then
succumbing. Prof Bolton replied that this was more likely to cause a
partial prolonged pattern.
[124] Prof Smith’s reference in oral testimony to a ‘sub-acute’ cause of
longer duration is unexplained. The radiologists used the term ‘acute’, not
‘sub-acute’. As I understand it, this means that the damage was of the
kind one would typically see after a sentinel event. The fact that no
sentinel event was recorded in this case, and the fact that no sentinel
event may have occurred, does not as a matter of logic detract from the
fact that the damage was from the asphyxia typically caused by sentinel
events, ie profound asphyxia which causes injury over a relatively short
period of time (about 15 minutes, according to Prof Smith).
[125] The fact that Prof Smith’s final-hour hypothesis was not challenged
does not mean that it must be accepted. The cogency of an expert opinion
depends on its consistency with proven facts and on the reasoning by
which the conclusion is reached. In Coopers (South Africa) (Pty) Ltd v
Deutsche Gesellschaft für Schädlingsbekämpfung MBH this Court held:
‘[A]n expert’s opinion represents his reasoned conclusion based on certain facts or
data, which are either common cause, or established by his own evidence or that of
some other competent witness. Except possibly where it is not controverted, an
expert’s bald statement of his 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.’13

13 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH 1976 (3)
SA 352 (A) at 371F-H. See also Oppelt v Head: Health, Department of Health Provincial

[126] While I do not accept the MEC’s criticism that Prof Smith lacked
expertise to express opinions on pre-birth matters, he was a paediatrician,
not (as was Dr Marishane) an obstetrician, so his opinion was on a matter
not in his primary area of expertise. Prof Smith did not advance his final-
hour hypothesis in the written summaries of his evidence or in the joint
minute which he and Prof Bolton signed. When he offered this opinion in
oral evidence, he did not refer to any literature in support of it. There was
nothing before the high court to show that a respectable body of expert
opinion stood behind his conclusion. The notion of a longer-lasting sub-
acute cause is inconsistent with the radiological evidence. It appears in
this respect to suffer from the same inconsistency which this Court
highlighted in Member of the Executive Council for Health, Eastern Cape
v Z M14 and which a majority of this Court rejected in AM obo KM v
Member of the Executive Council for Health, Eastern Cape.15
[127] To some extent, Dr Marishane’s views on the issue were also
unreasoned. However, the burden of proof rested on Ms TM, and in my
opinion she did not discharge the burden of proving that MM suffered his
HII over the period 17h43-18h43. On the evidence, it is as likely as not
that the damage was done by 16h15, ie within 30 minutes of the abnormal
CTG. Since an absence of the assumed negligence would, on the best
scenario for Ms TM, not have resulted in a delivery earlier than 16h43,
she failed to prove that but for the negligence the injury would not have
been suffered.

Administration: Western Cape [2015] ZACC 33; 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.
14 Member of the Executive Council for Health, Eastern Cape v Z M [2020] ZASCA 169 paras 27-29
15 AM obo KM v Member of the Executive Council for Health, Eastern Cape [2018] ZASCA 141. See
also AN v MEC for Health, Eastern Cape [2019] ZASCA 102; [2019] 4 All SA 1 (SCA) paras 20-21.

[128] My ultimate conclusion, therefore, is that despite the tragedy that
befell Ms TM and MM, they were not entitled to compensation from the
appellant. Counsel for the appellant said that if the appeal succeeded his
client did not seek costs. I thus make the following order:
(a)  The appeal succeeds.
(b)  The order of the high court is set aside and replaced with an order in
the following terms:

‘The plaintiff’s claim is dismissed.’

________________
O L Rogers
Acting Judge of Appeal

APPEARANCES:

For the appellant:

V Soni SC
Instructed by:

The State Attorney, Johannesburg
The State Attorney, Bloemfontein

For the respondent:

N Maritz SC (with W Munro)
Instructed by:
Wim
Krynauw
Attorneys,
Johannesburg
Martins Attorneys, Bloemfontein.

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal
DATE
10 August 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.

The Member of the Executive Council for Health & Social Development of the
Gauteng Provincial Government v Mashonganyika (380/2019) [2021] ZASCA 110
(10 August 2021)

The Supreme Court of Appeal today, by a majority, upheld an appeal
against a judgment of the Gauteng Division of the High Court,
Johannesburg (Fisher J), in which the High Court had held the appellant
liable for such damages as the respondent might prove by virtue of the
latter’s child having suffered, in utero, acute profound hypoxic ischaemia
which resulted in the child suffering from cerebral palsy. The child was
born at the Charlotte Maxeke Johannesburg Academic Hospital (CMH).
The majority (Rogers AJA, with Mbatha and Nicholls JJA concurring) held
that the High Court had been correct in finding that the appellant’s failure to
have a second functioning theatre for caesarean sections at the CMH as at

August 2010 was not negligent. The majority also agreed with the High
Court’s finding that the hospital staff had not been negligent in prioritising
another patient, Ms G, over the respondent when both of them required
caesarean sections.
The majority, however, disagreed with the high court’s finding that the staff
had been negligent in the way they had managed the maternity unit’s single
theatre for caesarean sections in the hours preceding the time when both Ms
G and the respondent required prompt caesarean sections. In order to make
out such a case (which had not been properly pleaded), the respondent
would have needed to establish a complete picture of the triage decisions
required in the maternity unit during the day in question, and this had not
been done.
The majority also considered two aspects which the high court did not find
necessary to decide. The first was whether there had been negligence in
failing to apply intrauterine resuscitation while the respondent awaited her
operation. The majority held that such failure had not been proved. The
second aspect was whether there had been negligence in failing to
investigate the respondent’s referral to a neighbouring hospital. The
evidence, so the majority held, did not establish that such a referral would
have resulted in the respondent’s child being delivered more quickly than
happened at CMH.
The majority also concluded that even if the appellant and the hospital staff
had been negligent in any of the respects alleged, it was not shown that non-
negligent conduct would have resulted in the delivery of the child in time to
avoid the brain injury.
In a minority judgment, Ledwaba AJA, with whom Saldulker JA concurred,
would have dismissed the appeal. While reaching the same conclusion as
the majority on the three issues considered by the high court, the minority
considered that the hospital staff had been negligent in failing to apply

intrauterine resuscitation and in failing to investigate the referral of the
respondent to a neighbouring hospital, and found that had the staff not been
negligent in these respects the child would probably not have suffered the
brain injury which he did.
~~ ends~~