TM obo MM v Member of the Executive Council for Health and Social Development, Gauteng

On 28 August 2010, Ms TM was admitted to the maternity ward at Charlotte Maxeke Academic Hospital in active labour. At 15h45 an abnormal cardiotocography reading indicated foetal distress of her unborn child, MM. At 16h00 a decision was taken to perform an emergency caesarean section. However, the maternity theatre was occupied by other patients until 18h15. MM was born at 18h43, approximately 155 minutes after the decision to operate was taken. MM suffered a hypoxic ischemic injury due to perinatal asphyxia, resulting in permanent brain damage and cerebral palsy. Earlier that day, the theatre had experienced "down times" when it was not utilized despite other patients requiring caesarean sections. Ms TM instituted a claim in her representative capacity as MM's mother and natural guardian against the MEC for Health and Social Development, Gauteng, alleging negligence by hospital staff in failing to adequately manage resources and provide timely medical intervention.

• Whether this Court has jurisdiction to hear the matter on the basis that it raises a constitutional issue
• Whether the matter raises an arguable point of law of general public importance
• Whether the matter is in the interests of justice to grant leave to appeal
• Whether a public hospital bears a legal duty to manage its resources efficiently
• Whether the hospital staff's conduct constituted negligence
• Whether any negligence was the factual cause of MM's brain injury

Leave to appeal is refused. No order as to costs, following the principle in Biowatch that state institutions should not be awarded costs absent exceptional circumstances.

A matter does not raise a constitutional issue merely because it is framed in constitutional terms or involves constitutional rights. Where wrongfulness (the existence of a legal duty) has been admitted or assumed in favour of the claimant, and the only remaining issues are negligence and factual causation, these are purely factual matters that do not engage the Constitutional Court's jurisdiction under section 167(3)(b) of the Constitution. Jurisdiction is determined by the pleadings, and the proper approach is to interpret the pleadings to determine the nature of the claim advanced. For a constitutional issue to arise, the claim must require consideration and application of a constitutional rule or principle. The Constitutional Court will not entertain appeals that seek to challenge only factual findings or incorrect application of law by lower courts. A factual issue does not become a constitutional issue simply because it has been clothed in constitutional garb.

The Court observed that the pleadings in this case were "not a model of clarity" and not all issues on which evidence was led were pleaded. The Court noted that neither the non-utilization of the theatre during "down times" nor alleged mismanagement of resources were pleaded as grounds of negligence, yet the High Court made findings on these issues. The Court commented that courts should be slow to interfere with budgetary decisions and allocation of resources, citing Soobramoney. The Court noted that questions relating to the existence and scope of a legal duty to manage resources efficiently could be connected to a constitutional issue, but this was not pleaded in this case. The Court expressed sympathy for the position Ms TM found herself in but emphasized that this alone cannot transform factual disputes into constitutional matters. The judgment suggests that had wrongfulness itself been in dispute (rather than admitted), a different jurisdictional outcome may have resulted.

This case clarifies the Constitutional Court's jurisdiction in medical negligence cases. It reinforces that matters turning purely on factual evaluation - even where they involve public healthcare services and constitutional rights - do not automatically engage constitutional jurisdiction. The judgment emphasizes that pleadings determine jurisdiction and that claims cannot be transformed into constitutional matters simply by framing them in constitutional language. It provides important guidance on the distinction between constitutional issues (such as whether a legal duty exists) and factual issues (such as whether an admitted duty was breached and caused harm). The case demonstrates the Court's approach to managing its constitutional mandate while avoiding becoming a court of general factual appeal, even in sympathetic cases involving injured children and access to healthcare.