Mbhele v MEC for Health for the Gauteng Province

The appellant, Ms Delisile Mbhele, sued the MEC for Health for the Gauteng Province after her baby was stillborn at Chris Hani Baragwanath Hospital on 18 August 2006. She was transferred as an emergency due to foetal distress but was not treated urgently. A CTG scan indicating foetal distress was delayed, not properly communicated, and not acted upon by medical staff. As a result, no timely caesarean section was performed and the baby was delivered stillborn. Following the loss, Ms Mbhele experienced severe emotional distress, exacerbated by being placed in a ward with mothers and live babies, difficulties surrounding identification of the baby’s body, and prolonged grief and depression. She claimed damages for emotional shock and constitutional damages based on an alleged right to rear a child.

The appeal was upheld with costs. The order of the High Court was set aside and substituted with an order holding the respondent liable for general damages for emotional shock and directing payment of R100 000 to the appellant, together with costs.

The case confirms that damages for emotional shock are recoverable in South African delictual law where severe emotional distress is caused by medical negligence resulting in a stillbirth. It also clarifies that South African law does not recognise a standalone constitutional right to rear a child for purposes of claiming damages where the child was not born alive. Additionally, it underscores the importance of properly drafted stated cases under Uniform Rule 33.