Court name
Supreme Court of Appeal of South Africa
Case number
355 of 2015

Mbhele v MEC for Health for the Gauteng Province (355 of 2015) [2016] ZASCA 166 (18 November 2016);

Law report citations
Media neutral citation
[2016] ZASCA 166
Coram
Cachalia JA
Tshiqi JA
Mocumie JA
Fourie AJA

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).
[1]The
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 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

[1972] USSC 78; 405 US 645(1972);
Santosky
v Kramer

[1982] USSC 63; 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 [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 conservatism
[4]
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, i
n
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
Yearbook
[9]
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]


[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 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 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 





[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 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.’




[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.




[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.




[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).




[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.