Hal obo Mml v MEC for Health, Free State

• Jurisdiction: South Africa
• Citation: 2022 (3) SA 571 (SCA)

Hal obo Mml v MEC for Health, Free State
2022 (3) SA 571 (SCA)

2022 (3) SA p571

Citation	2022 (3) SA 571 (SCA)
Case No	1021/2019; [2021] ZASCA 149
Court	Supreme Court of Appeal
Judge	Wallis JA, Molemela JA, Makgoka JA, Rogers AJA and Unterhalter AJA
Heard	October 22, 2021
Judgment	October 22, 2021
Counsel	GJ Strydom SC (with A Viljoen) for the appellant.; JY Claasen SC (with L Manye) for the respondent.

Flynote : Sleutelwoorde

Evidence — Expert evidence — Joint minutes — Fact versus opinion — Admissibility — Evidence qualifying — Verification.

Headnote : Kopnota

In 2005 M was born to H and at the time appeared to be healthy. Later, however, M showed symptoms of neurologic abnormality and was eventually diagnosed with cerebral palsy (see [1]). Later still, in 2014, an MRI scan revealed a brain injury rooted in partial asphyxia, and this finding presaged a claim H came to make against respondent MEC, that the asphyxia stemmed from negligent omissions of hospital staff attending during the late stages of the birthing process. The action was however unsuccessful, with the High Court finding H to be an unreliable witness whose evidence, which largely founded her experts' opinions, discrediting same (see [2], [18] and [71]). (The evidence went to placing the occurrence of the injury in the late intrapartum period (see [84]).)

Here, in an appeal to the Supreme Court of Appeal, H challenged these findings. The majority (per Makgoka JA) confirmed them and dismissed the appeal (see [84] – [85]). (See [26] – [27], [29] and [60] – [65] for observations on H's reliability; [42], [44], [53] and [67] for considerations of her experts' opinions; and [73] for the majority's conclusions. See also [66] for the distinction between credibility and reliability.)

The minority, per Molemela JA, would have upheld the appeal and found the MEC liable (see [178]). In his view the High Court had, in assessing H's credibility, underweighted evidence corroborating her story and overweighted the fact that she was the sole witness of the events concerned (see [94] – [95]). It had also failed to recognise that the respondent's version was not put to H in her cross-examination, and that she was not informed that the questions went to demonstrating she was untruthful in her testimony (see [93]).

So too, assessment of H's testimony had been insufficiently charitable against the backdrop of the hospital's failure — to H's prejudice — to safeguard certain of her records (see [126] but also [77] – [80]). (Indeed, in such an instance it might be appropriate for a healthcare provider to bear an evidential burden of showing that care provided was in line with good medical practice (see [123]).) Conversely, respondent's failure to call staff to explain entries in the limited records ought to have attracted a negative inference (see [126]). As for the joint minutes, the court — despite being bound to — had failed to accept agreed points (see [133] – [134]). Lastly, the evidence disclosed negligence and causation — there being no requirement, as suggested by the High Court, to pinpoint the precise timing of the injury in order to satisfy the latter test (see [149] and [178]).

In his concurrence Wallis JA expressed his disquiet at apparent touting and at the inexactitude of H's pleadings which failed to delineate the issues (see [179], [191], [198] – [199] and [233]). Wallis JA further observed that experts had testified prior to the establishment of the facts on which their opinions were based, when the appropriate sequence was indeed the reverse (see [208], [211] and [215]).

2022 (3) SA p572

As to the agreed minute, and agreed minutes generally, Wallis JA noted that agreements on facts bound a court but agreements of opinion did not — a court had further to verify that the opinions were based on established facts and sound reasoning (see [220] and [229]); agreements of opinion did not preclude the experts or other witnesses giving evidence which qualified or contradicted the opinion concerned (see [229] – [230]); and a joint minute remained inadmissible unless its authors testified or it was agreed that it should be admissible (see [231]).

Cases cited

Southern Africa

Absa Bank Bpk v ONS Beleggings BK2000 (4) SA 27 (SCA) ([2000] 3 All SA 199): referred to

AM and Another v MEC for Health, Western Cape2021 (3) SA 337 (SCA): referred to

AM obo KM v MEC for Health, Eastern Cape [2018] ZASCA 141: referred to

Avex Air (Pty) Ltd v Borough of Vryheid1973 (1) SA 617 (A): referred to

Bee v Road Accident Fund2018 (4) SA 366 SCA): referred to

Beukes v Smith 2020 (4) SA 51 (SCA): referred to

Buthelezi v Ndaba2013 (5) SA 437 (SCA) ([2013] ZASCA 72): referred to

Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schadlingsbekampfung mbH1976 (3) SA 352 (A): referred to

CRC Engineering (Pty) Ltd v JC Dunbar & Sons (Pty) Ltd1977 (1) SA 710 (W): referred to

Da Mata v Otto NO1972 (3) SA 858 (A): referred to

Elgin Fireclays Ltd v Webb1947 (4) SA 744 (A): dictum at 749 applied

Glenister v President of the RSA 2013 (11) BCLR 1246 (CC) ([2013] ZACC 20): referred to

Howard & Decker Witkoppen Agencies and Fourways Estates (Pty) Ltd v De Sousa1971 (3) SA 937 (T): referred to

Hülse-Reutter v Gödde2001 (4) SA 1336 (SCA) ([2002] 2 All SA 211): referred to

IK obo KK v MEC for Health, Gauteng Province [2018] ZAGPJHC 580: referred to

International Shipping Co (Pty) Ltd v Bentley1990 (1) SA 680 (A) ([1989] ZASCA 138): referred to

Kruger v Coetzee1966 (2) SA 428 (A): referred to

Lee v Minister for Correctional Services2013 (2) SA 144 (CC) (2013 (1) SACR 213; 2013 (2) BCLR 129; [2012] ZACC 30): referred to

Ley v Ley's Executors and Others1951 (3) SA 186 (A): referred to

Life Healthcare Group (Pty) Ltd v Suliman2019 (2) SA 185 (SCA): referred to

Mabona and Another v Minister of Law and Order and Others1988 (2) SA 654 (SE): referred to

Maize Board v Hart2005 (5) SA 480 (O): referred to

Mashongwa v Passenger Rail Agency of South Africa2016 (3) SA 528 (CC) (2016 (2) BCLR 204; [2015] ZACC 36): referred to

McDonald v Young2012 (3) SA 1 (SCA) ([2011] ZASCA 31): referred to

MEC for Health and Social Development, Gauteng v MM obo OM [2021] ZASCA 128: referred to

MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute2014 (3) SA 481 (CC) (2014 (5) BCLR 547; [2014] ZACC 6): referred to

MEC for Health, Eastern Cape v DL obo AL [2021] ZASCA 68: referred to

2022 (3) SA p573

Medi-Clinic Ltd v Vermeulen2015 (1) SA 241 (SCA) ([2014 ZASCA 150): dictum in para [5] applied

Meyers v MEC, Department of Health, EC2020 (3) SA 337 (SCA) ([2020] 2 All SA 377; [2020] ZASCA 3): referred to

Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another2001 (3) SA 1188 (SCA) ([2002] 1 All SA 384): dictum in paras [36] – [37] applied

Minister of Finance v Gore NO2007 (1) SA 111 (SCA) ([2007] 1 All SA 309): referred to

Minister of Safety and Security and Others v Craig and Others NNO2011 (1) SACR 469 (SCA): referred to

Minister of Safety and Security v Van Duivenboden2002 (6) SA 431 (SCA) ([2002] 3 All SA 741; [2002] ZASCA 79): referred to

Mohlomi v Minister of Defence1997 (1) SA 124 (CC) (1996 (12) BCLR 1559; [1996] ZACC 20): referred to

Monteoli v Woolworths (Pty) Ltd2000 (4) SA 735 (W): referred to

Munster Estate (Pty) Ltd v Killarney Hills (Pty) Ltd1979 (1) SA 621 (A): referred to

Ocean Accident and Guarantee Corporation Ltd v Koch1963 (4) SA 147 (A): referred to

President of the Republic of South Africa and Others v South African Rugby Football Union and Others2000 (1) SA 1 (CC) (1999 (10) BCLR 1059; [1999] ZACC 11): dictum in para [62] applied

PriceWaterhouseCoopers Inc v National Potato Co-operative Ltd [2015] 2 All SA 403 (SCA): referred to

R v Dhlumayo and Another1948 (2) SA 677 (A): referred to

Road Accident Fund v Madikane [2019] ZASCA 103: referred to

Roux v Hattingh2012 (6) SA 428 (SCA) ([2012] ZASCA 132: referred to

S v Mkohle1990 (1) SACR 95 (A): referred to

S v Oosthuizen1982 (3) SA 571 (T): referred to

S v Shilakwe2012 (1) SACR 16 (SCA): referred to

Santam Bpk v Biddulph2004 (5) SA 586 (SCA) ([2004] 2 All SA 23): dictum in para [5] applied

Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another2000 (1) SA 827 (SCA) ([2000] 1 All SA 128): referred to

Thomas v BD Sarens (Pty) Ltd [2012] ZAGPJHC 161: referred to

Van Wyk v Lewis1924 AD 438: dictum at 462 applied.

Canada

Athey v Leonati[1996] 3 SCR 458: referred to

R v HC2009 ONCA 56: referred to

R v Morrissey 1995 CanLII 3498 (ONCA): referred to.

England

Bolitho v City and Hackney Health Authority [1997] UKHL 46: referred to

Huntley (aka Hopkins, by his litigation friend) v Simmons[2010] EWCA Civ 54: referred to.

Case Information

GJ Strydom SC (with A Viljoen) for the appellant.

JY Claasen SC (with L Manye) for the respondent.

An appeal against a judgment of the Free State Division.

2022 (3) SA p574

Order

The appeal is dismissed, with costs of two counsel.

Judgment

Makgoka JA (Wallis JA and Unterhalter AJA concurring):

[1] On 1 May 2005 a pregnant Ms HAL (the appellant), then 21 years old, was admitted to the Thebe Hospital (the hospital) in Harrismith, Free State, at approximately 13h00. The following morning, 2 May 2005 at approximately 05h00, she gave birth to a baby boy (MML) by way of a normal vaginal delivery. At the time neither she nor the hospital raised an alarm about his condition, but some considerable time later he showed signs of neurological regression and eventually he was diagnosed with cerebral palsy. A magnetic resonance imaging (MRI) scan of the child's brain taken in August 2014, a little over nine years later and immediately before the commencement of this action, revealed that he had suffered a hypoxic ischemic...