MM on behalf of GM v Member of the Executive Council for the Department of Health, North West Province

The appellant, MM, acting in her personal capacity and as mother and natural guardian of her minor child GM, instituted a delictual claim against the MEC for Health, North West Province, alleging medical negligence by staff at Moses Kotane Hospital and Job Shimankana Tabane Hospital during her obstetric care in October 2010. GM was later diagnosed with cerebral palsy, which MM alleged was caused by negligent management of labour and failure to perform an emergency caesarean section despite an abruptio placentae. She claimed damages on behalf of GM for future medical expenses, loss of earnings, and general damages, and in her own capacity for emotional shock and trauma. The High Court found negligence but no causal link between the negligence and GM’s cerebral palsy, attributing the injury to abruptio placentae, and dismissed the claim. Appeals to the Full Court and then the SCA followed on causation. Before the SCA hearing it emerged that GM had died in August 2022, a fact not reported to the Master, and no executor had been appointed.

The Full Court’s order was set aside. The appellant’s claim for emotional trauma and nervous shock was remitted to the trial court for determination. The appellant’s remaining claims on behalf of the deceased child were struck off the roll with costs. The appellant was ordered to pay the costs of the appeal in the SCA.

The judgment clarifies the procedural and substantive consequences of the death of a litigant in medical negligence claims involving minors, particularly the transmissibility of claims after litis contestatio and the exclusive locus standi of an executor. It also reaffirms the strict evidentiary requirements for claims of emotional shock and underscores the duty of trial courts to decide all issues forming part of the lis. The case highlights limits on the SCA’s jurisdiction to substitute orders where lower courts failed to adjudicate claims.