THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No: 355/2015

In the matter between:

DELISILE MBHELE                                                                                 APPELLANT

and

MEC FOR HEALTH FOR THE GAUTENG PROVINCE                      RESPONDENT

Neutral citation:
Mbhele v MEC for Health for the Gauteng Province (355/15)
[2016] ZASCA 166 (18 November 2016)

Coram:
Cachalia, Tshiqi, Theron and Mocumie JJA and Fourie AJA

Heard:

23 August 2016

Delivered:

18 November 2016

Summary:
Delict ─ failure to take reasonable care to prevent stillbirth ─ Claim for
emotional shock ─ damages awarded in the amount of R100 000 ─ claim for
constitutional damages based on the right to rear a child ─ not sustainable.
Practice ─ requirements of stated case in terms of Uniform rule 33 ─ facts must be
stated with adequate clarity and specificity ─ role of a trial Judge.

___________________________________________________________________

ORDER
___________________________________________________________________

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

1. The application for condonation for the late delivery of the respondent’s heads of
argument is granted.
2. The appeal is upheld with costs.
3. The order of the court a quo is set aside and substituted with the following:
‘(a) The claim succeeds.
(b) The defendant is held liable for general damages based on emotional shock
which the second plaintiff suffered as a result of the negligent conduct of the
defendant’s employees on 18 August 2006.
(c) The defendant is to pay the second plaintiff the amount of R100 000 as
general damages.
(d) The defendant is to pay the costs.’
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Tshiqi et Mocumie JJA (Cachalia and Theron JJA and Fourie AJA concurring):

[1] This court is called upon to decide whether a claim for damages for emotional
shock had been proved in the Gauteng Local Division, Johannesburg (which for
convenience we shall refer to as the High Court) and whether our law recognises a
claim for constitutional damages for the loss of the right to rear a child. The matter
came before Tsoka J, as a stated case in terms of Uniform rules 33 (1) and (2).1The

1 The subrules provide the following:
‘Special cases and adjudication upon points of law
(1) The parties to any dispute may, after institution of proceedings, agree upon a written statement of
facts in the form of a special case for the adjudication of the court.
(2)(a) Such statement shall set forth the facts agreed upon, the questions of law in dispute between
the parties and their contentions thereon. Such statement shall be divided into consecutively
numbered paragraphs and there shall be annexed thereto copies of documents necessary to enable

High Court dismissed both claims as well as the appellant’s application for leave to
appeal. It dismissed the claim with costs, finding inter alia that:
(a) the particulars of claim and the stated case do not disclose a cause of action
(para 11);
(b) the appellant’s counsel expressly abandoned the plaintiff’s claim for emotional
shock (para 8) and;
(c) that South African law does not recognise the right to rear a child and thus no
damages are claimable for the violation of the right to rear a child (para 11). It is
against these findings and the order mentioned above that the appellant appealed.
The appeal is with leave of this court.

[2] The appellant, Ms Delisile Mbhele, second plaintiff in the court a quo, together
with the erstwhile first plaintiff, Mr Themba Buthelezi, instituted action against the
respondent (defendant a quo), the Member of the Executive Council for Health for
the Gauteng Provincial Government (MEC), in her official capacity as the employer
of the medical staff at Chris Hani Baragwanath Hospital (CHB). They sued
personally, and in their respective capacities as parents of their stillborn baby who
was delivered at CHB on 18 August 2006. They claimed that negligence on the part
of the medical staff resulted in their baby being ‘stillborn’; and that as a result of such
negligence they suffered damages. Mr Buthelezi passed away soon after the action
was instituted and was not substituted by his executor in the proceedings. Only the
appellant participated in the proceedings in the court a quo and thus in the present
appeal.

[3] The relevant part of the statement of facts presented to the court reads:
‘4.1 The second plaintiff [Ms Mbhele] was transferred from Zola Clinic to Chris Hani
Baragwanath Hospital . . . [CHB] as an emergency case due to foetal distress. On admission
she was not treated as an emergency case. . . . After more than an hour a doctor saw her
and ordered a CTG scan which was also delayed for a long time. Despite the results of the

the court to decide upon such questions. It shall be signed by an advocate and an attorney on behalf
of each party or, where a party sues or defends personally, by such party.
(b) Such special case shall be set down for hearing in the manner provided for trials or opposed
applications, whichever may be more convenient.
(c) If a minor or person of unsound mind is a party to such proceedings the court may, before
determining the questions of law in dispute, require proof that the statements in such special case so
far as concerns the minor or person of unsound mind are true.’

CTG scan showing foetal distress, the second plaintiff was not attended to promptly and the
doctor who had ordered the scan did not follow up on the CTG scan. The nursing sister who
did the CTG scan neglected to inform the doctor of the result[s] of the CTG scan. [The]
second plaintiff was left alone to progress in labour without her labour being monitored,
which resulted in her delivering a fresh still birth.
4.2 After her unsuccessful delivery, the plaintiff was taken to the labour ward where she was
advised that her baby had died.
4.3 After the loss of [the] baby the [second] plaintiff was inappropriately taken to a ward with
mothers of new-born babies. Each bed in the ward has a cot attached to it. Others had their
babies there, some feeding their babies, some holding their babies; whereas she had to
contend with an empty cot. When she asked to be moved to another ward and for family to
be phoned to take her away from the depressing environment she was ignored for about
eight hours.
4.4 When she had to identify the baby at the mortuary she collapsed. No one else could
identify the dead body of her child. As a result, she had to be comforted and ‘compelled’ to
identify the child.
. . .
4.6 The death of the baby left her with a feeling of emptiness. For months after the death of
the baby she shut herself behind closed doors and did not wish to socialise with family and
friends . . . She had prepared for the birth of the baby by buying clothes, toys and [baby
necessities] . . . After returning home she often took the clothes and the clothes and toys she
had bought for Tebogo [the still born baby] out of the chest of drawers that she had specially
bought for [him], put them on her bed, and weep over them . . . She squandered all her
money after the death of Tebogo because she had lost reason to work . . . When she fell
pregnant [again], she found that she had lost enthusiasm that she had had with her first
pregnancy. She did not have a baby shower, nor did she buy as much as she did for the first
child. She finds that Siyabonga [the second child] has not substituted Tebogo . . . She has a
friend whose child would have been the same age as Tebogo. When the child reaches
certain milestones she thinks of Tebogo and painfully wonders how Tebogo would have
been like or doing at the same age . . . When Siyabonga disappears, she becomes
extremely nervous. She cannot overcome the feeling of anxiety the moment she realises that
Siyabonga is not present.’

Negligence and causation
[4] The issue whether CHB was negligent in the manner in which it treated the
appellant and whether such negligence caused the still birth was not disputed and

can be discerned from the statement of facts and from the medical reports which
were tendered in evidence by agreement between the parties. A report dated 6
October 2006, prepared by Professor Buchmann, then an Associate Professor and a
Chief Specialist at CHB stated:
‘My comment here is that someone should have noted the abnormal CTG tracing, and
shown it to a doctor. It appears that foetal distress was not detected because the CTG was
not seen by a doctor or experienced midwife, and an opportunity to save this baby was
missed. Optimal care would have been a CTG shortly after arrival at [CHB], with immediate
interpretation and action, ie caesarean section for foetal distress, possibly at 08h00.’

[5] In his second report dated 28 November 2006 addressed to Dr M E Mtoba,
the Senior Clinical Executive at CHB, Prof Buchmann noted:
‘We admitted that Delisile [Ms Mbhele] did not receive optimal care. . . .The main problem
here is that no-one reported the abnormal CTG to the doctors, and for that reason, the
problem with the baby was not appreciated and no specific action was taken. . . . All this was
made more painful by possible failure of correct and considerate communication by the staff
towards Delisile.’

[6] Professor Buchmann’s findings are consistent with those of Dr Ramhitshana,
who prepared a report at the request of the appellant. He noted:
‘The Zola Clinic and [CHB] maternity were negligent in that they did not follow their own
protocols and this led to the loss of the baby.
When she [Ms Mbhele] was at [CHB] maternity, the doctor saw her and ordered a CTG to
make a final diagnosis and treatment. However, the doctor did not follow-up on the result of
the CTG and he did not hand-over the patient to his colleagues who were coming on duty.
Furthermore the sister who did the CTG on her did not inform the doctors about the CTG so
that they can act and do C-section in time to save the baby. (Emergency transfer means
urgent intervention, ie C-section).’

[7] It thus follows that the conduct of the medical staff at CHB on 18 August 2006
was negligent and that such negligence caused the baby to be stillborn.

The right to rear a child and constitutional damages

[8] The pertinent question in this regard is whether South African law recognises
a claim for damages arising from a right to rear a child. In Pinchin & another, NO v
Santam Insurance Co. Ltd,2 this court said:
‘I hold that a child does have an action to recover damages for pre-natal injuries. This view is
based on the rule of the Roman law, received into our law, that an unborn child, if
subsequently born alive, is deemed to have all the rights of a born child, whenever this is to
its advantage.’
It is clear from this dictum that the right is that of a child subsequently born alive.
Counsel for the appellant was not able to persuade us on what conceivable basis, a
claim based purely on the right to rear a child who was not born alive should
succeed. In order to bolster his case counsel sought to refer to foreign jurisprudence,
inter alia (Stanley v Illionis 405 US 645(1972); Santosky v Kramer 455 US 745(1982)
but was constrained to concede that none of those matters dealt with this specific
issue before this court.

[9] In any event, the issue was raised for the first time in the heads of argument
on appeal. It was not pleaded or even argued properly in the high court. It is not
sufficient for a party to raise a constitutional issue (the right to rear a child) only in its
heads of argument without laying a proper foundation for it in the papers or
pleadings.3 In the circumstances, the appellant has failed to make out a case a
recognition of this right. The claim was correctly dismissed by the court a quo.

Emotional shock
[10] The High Court found that the claim for emotional shock was abandoned.
Counsel for the appellant submitted that the court erred in making that finding and
referred this court to the transcript of the proceedings in the High Court where the
issue was raised and debated with the court as follows:
‘Court: . . . I am saying what cause of action is stated in the stated case?
. . .
Counsel: . . . No M ‘Lord, there is a reason why that is not stated out . . . the parties are in
agreement that if the . . . second plaintiff [Ms Mbhele] establishes causation the defendant

2 Pinchin and another, NO v Santam Insurance Co  Ltd 1963 (2) SA 254 (W) at 260B.
3 South African Police Service v Solidarity obo Barnard [2014] ZACC 23 para 260B;Everfresh Market
Virginia (Pty)Ltd v Shoprite Checkers (Pty)Ltd [2011]ZACC 30;2012(1) SA 256 (CC) para 52;Fischer
& another v Ramahlele & others [2014] (4) SA 614 (SCA) para 13.

[MEC] is liable for the loss of the baby, and that is principally a question of emotional shock
M ‘Lord [a]lthough you do not see the word . . . emotional shock.’
The debate continued
‘Counsel: Well it is not defined there clearly M’ Lord, but if you go to the stated case, you
would see that the plaintiff, the second plaintiff describes what she has gone through.
Court: I have read the stated case. I had difficulty to understand the nature of the cause of
action.
Counsel: The nature of the cause of action therefore M ’Lord, there would be emotional
shock and associated suffering of the plaintiff or the second plaintiff
Court: And then as a result of emotional shock probably she consulted doctors, she lost
money, is that the case?
Counsel: The consulting of doctors and the loss of the money were never part of the case M’
Lord. It ends with the pain, psychological and emotional pain of losing a child
Court: And she must be compensated for that?
Counsel: That is correct M’ Lord.’
Counsel for the respondent did not point us to any portion of the record which
justified the finding by the court that the claim for emotional shock was abandoned. It
must thus be accepted that the court erred in making such a finding.

[11] We now proceed to consider whether the claim for emotional shock was
proved. The emotional distress suffered by the appellant after the birth of her baby is
outlined in the statement of facts and thus not placed in dispute. After the birth of her
still born baby, she was inappropriately taken to the maternity ward where she had to
contend with an empty cot; she was made to watch other mothers who were
breastfeeding their babies. She collapsed after she had to identify the dead body of
the child at the mortuary. Her behaviour months after the death of the baby shows
that she had difficulty coping and that she still has not recovered completely.  For all
those reasons we are satisfied that a case was made for a claim for emotional
shock.

Quantum of damages
[12] Before us, counsel for the appellant argued that the issue of the computation
of damages was not properly ventilated in the court a quo. When he was referred to
the record which clearly indicated that the issue had been properly dealt with, he
agreed that this court should deal with it.

[13] In order to determine general damages, courts acting in arbitrio iudicis and
generally tending towards conservatism4 have regard to considerations such as
awards in comparable cases, inflationary changes in the value of money, and
problems arising from collateral benefits.5 Importantly, in making an award, a court is
not bound by one or other method of calculating general damages. It has a wide
discretion.6 As this court frequently pointed out, each case must be determined on its
own unique facts.7

[14] In Majiet v Santam Limited,8 the plaintiff, a mother of a nine year old boy
experienced emotional and psychogenic shock as a result of her coming upon the
body of her son lying in the road shortly after he had been struck and killed by a
motor vehicle. Having considered all the relevant facts, the court awarded an amount
of R35 000 in respect of general damages. This amount adjusted as per R J Koch’s
Quantum Yearbook9 amounts to R99 000 in 2015.

[15] In Allie v Road Accident Fund,10 the plaintiff suffered emotional shock and
trauma after having observed his wife flung through the windscreen of the vehicle
and her subsequent injuries and death as a result of the refusal of the police member
to summon an ambulance.11 The court granted general damages to the plaintiff in
the amount of R80 000 for emotional shock and the adjusted value with the updated
inflation in 2015 amounted to R165 000.12

4 Innes v Visser 1936 WLD 44 at 46; Sandler v Wholesale Coal Supplies Limited 1941 AD 194 at 199;
Bay Passenger Transport v Franzen 1975 (1) SA 269 (A); De Jongh v Du Pisanie NO
2005 (5) SA 457 (SCA).
5 M M Corbett & J L Buchanan The Quantum of Damages in Bodily and Fatal Injury Cases 4 ed
(1994) at 4-5.
6 Southern Versekering v Carstens NO 1987 (3) SA 577 (A). See also Allie v Road Accident Fund
[2003] 1 All SA 144 (C) para 37; and Mngomezulu v Minister of Law and Order KZD unreported case
no 6373/2007 (8 August 2014) para 37.
7 Bay Passenger Transport v Franzen [1975] 1 All SA 658 (A); Pitt v Economic Ins Co Ltd 1957 (3) SA
284 (D) at 287F. Minister of Safety and Security v Seymour [2006] ZASCA 71; 2006 (6) SA 320 (SCA)
para 17; Minister of Safety and Security v Tyulu [2009] ZASCA 55; 2009 (5) SA 85 (SCA) para 26;
Rudolph & others v Minister of Safety and Security & others [2009] ZASCA 39; 2009 (5) SA 94 (SCA)
para 26.
8 Majiet v Santam Limited [1997] 4 All SA 555 (C).
9 R J Kock The Quantum Yearbook (2015) at 17.
10 Allie v Road Accident Fund CPD [2003] 1 All SA 144 (C).
11 Ibid para 37.
12 Kock op cit at 6.

[16] In Lett & another v The Minister of Safety and Security & another,13 the
plaintiffs, who were married, claimed damages as a result of trauma suffered from
witnessing their daughter’s wrongful shooting. The court awarded the husband R100
000 and the wife R120 000 for damages in April 2011. The adjusted value of the
amounts in 2015, are respectively R127 000 and R152 000.14

[17] In Kritzinger & another v Road Accident Fund,15 the plaintiff was informed of a
collision and discovered that his two daughters had been killed when he arrived at
the scene. He suffered from chronic bereavement, post-traumatic stress disorder
and a major depressive disorder. He was awarded R150 000 in March 2009. The
adjusted value in 2015 amounts to R208 000.16

[18] In Barker v Road Accident Fund,17 the plaintiff claimed damages she suffered
as a result of the death of her son, who was run down by a motor vehicle while
cycling. According to the medico-legal report, the plaintiff presented with what is
referred to as an unresolved mourning process concerning her son, developed panic
attacks and many other symptoms including memory and concentration difficulties.
The plaintiff was awarded R40 000 in general damages, which translated to R47 000
in 2014.

[19] In general, in all the comparative cases referred to above, the plaintiffs
suffered more severe sequelae than in the present case. In this case there is no
medical evidence of lasting trauma, unresolved mourning 18 or chronic bereavement.
However, although no medical evidence was presented, there can be no doubt that
the appellant experienced severe shock, grief and depression as set out in para 4.6
of the stated case:
„The death of her “baby” left her feeling empty. For months after the death of the
baby she shut herself behind closed doors and did not wish to socialise with family

13 Lett & another v The Minister of Safety and Security & another 2011 (6K3) QOD 1 (ECP) in Kock op
cit at 16.
14 Kock op cit at 16.
15 Kritzinger & another v Road Accident Fund ECP unreported case no 337/2008 (24 March 2009).
16 Kock op cit at 15.
17 Barker v Road Accident Fund GP unreported case no 26292/2009 (6 May 2011).
18 Barker v RAF (above).

and friends . . . The death of the “baby” came as a shock as she had made
preparations for its birth and in expectation thereof had already bought a lot of
clothes, toys and other utensils 19. . . She has since the death of Tebogo; given birth
to a child she named Siyabonga.20 She lost interest in her work and squandered her
money. As a result, for months she suffered from depression.‟
Taking into account these sequelae it is reasonable and fair to award the appellant
the amount of R100 000.

[20] One further aspect that is a matter of concern is the manner in which the
stated case was drafted. It did not clearly set out the facts giving rise to the claim for
emotional shock, nor did it set out the purported right to rear a child and how such
right fits under the right to dignity as the appellant asserted. This court in Minister of
Police v Mboweni,21 said that a court ‘faced with a request to determine a special
case where the facts are inadequately stated should decline the request.’22

[21] The role of a trial judge is more than to just accept the stated case as
presented by the parties. A trial court must have before it, a stated case in which
both facts and issues are crisply and clearly set out in order for the proceedings to
be truly curtailed. Absent a clearly drafted and articulated stated case, the very
purpose of rule 33 would be defeated.

[22] Lastly, it must be mentioned that the manner in which the attorneys for the
respondent handled this appeal was not as expected in this court. After the appeal
was set down for hearing, nothing was heard from the office of the State Attorney,
acting on behalf of the respondent in this matter. No heads of argument were filed
within the prescribed period in terms of the rules of this court. Nor was any
condonation sought for the late filing of the heads. In addition, two days prior to the
hearing of this appeal, counsel for the respondent filed supplementary heads of

19 Utensils refer to necessities.
20 Buthelezi & another v MEC for Health Gauteng Province (above) para 4.
21 Minister of Police v Mboweni & another [2014] ZASCA 107; 2014 (6) SA 256 (SCA).
22 Paragraph 8. See also National Union of Mineworkers & others v Hartebeestfontein Gold Mining Co
Ltd 1986 (3) SA 53 (A) at 56H-59, applied with approval in Minister of Police v Mboweni (above) para
7 and Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd & another [2015] ZACC
34; 2016 (1) SA 621 (CC) para 61 fn 57.

argument. This conduct is to be discouraged and avoided, particularly in cases of
this serious nature.

[23] In the result, the appeal ought to succeed and the following order is made.
1. The application for condonation for the late delivery of the respondent’s heads of
argument is granted.
2. The appeal is upheld with costs.
3. The order of the court a quo is set aside and substituted with the following:
‘(a) The claim succeeds.
(b) The defendant is held liable for general damages based on emotional shock
which the second plaintiff suffered as a result of the negligent conduct of the
defendant’s employees on 18 August 2006.
(c) The defendant is to pay the second plaintiff the amount of R100 000 as
general damages.
(d) The defendant is to pay the costs.’

_________________
Z L L Tshiqi
Judge of Appeal

_________________
B C Mocumie
Judge of Appeal

Appearances:
For the Appellant:

F R Memani

Instructed by:
Lennon Moleele & Partners, Johannesburg
Honey Attorneys, Bloemfontein

Attorney for the Respondent:
K G Lekabe
Instructed by:
State Attorney, Johannesburg
State Attorney, Bloemfontein