Du Preez N O v The Member of the Executive Council for Health & Social Development of the Eastern Cape Province

Ms Veliswa Ngqobongo instituted an action on behalf of her minor child (PN) against the MEC for Health & Social Development of the Eastern Cape Province for damages arising from injuries sustained during birth. PN was born on 25 October 2009 at Dora Nginza Hospital, Gqeberha, and suffered from cerebral palsy due to a severe brain injury. The plaintiff alleged negligence in three respects: (1) unchecked and unremedied tapping of foetal reserves during labour; (2) excessive forceful fundal pressure applied to the mother's abdomen; and (3) ineffective resuscitation after birth. PN passed away on 7 May 2023 at age 13, after pleadings were closed but before the appeal hearing. The Executor of the estate, Mr Du Preez, was substituted as applicant. The High Court dismissed the claim, finding no negligence proven. The High Court refused leave to appeal, as did two judges of the Supreme Court of Appeal on petition. The Acting President referred the matter for reconsideration under s 17(2)(f) of the Superior Courts Act.

• Whether exceptional circumstances existed to warrant reconsideration of the refusal of leave to appeal under s 17(2)(f) of the Superior Courts Act 10 of 2013
• Whether new documentary evidence (a letter from Dr van der Walt) should be admitted on appeal
• Whether the hospital staff were negligent in monitoring the first stage of labour and interpreting cardiotocograph (CTG) readings
• Whether excessive fundal pressure was applied during delivery, causing injury
• Whether resuscitation of the neonate was negligent and inadequate
• Whether any proven negligence was causally connected to the severe brain injury sustained by the child

The application for leave to appeal was dismissed. No order as to costs was made, as the respondent did not press for costs.

Section 17(2)(f) of the Superior Courts Act requires exceptional circumstances before the President of the Supreme Court of Appeal will grant reconsideration of a refusal of leave to appeal. New evidence will only be admitted on appeal in exceptional circumstances where: (a) there is a reasonably sufficient explanation why it was not led at trial; (b) there is prima facie likelihood of its truth; and (c) it is materially relevant to the outcome—mere speculation or ex post facto conjecture is insufficient. In medical negligence claims, the plaintiff bears the burden of proving both negligence and causation on a balance of probabilities. Where expert evidence establishes that a severe, acute brain injury occurred suddenly during a brief period and that it is impossible to prove with any degree of certainty whether subsequent treatment materially contributed to an already existing severe injury, causation is not established and the claim must fail. Appellate courts will not disturb factual findings of trial courts absent demonstrable misdirection or findings that are clearly wrong.

The Court made several observations about expert evidence in medical negligence cases: (1) CTG monitoring is not a substitute for good clinical observation and judgment, and worldwide the use of CTG monitoring has not reduced incidences of foetal compromise. (2) The cogency of expert opinion depends on consistency with proven facts and the reasoning by which conclusions are reached—a bold statement of opinion without proper foundation has little probative value. (3) Documentary evidence in the form of a letter responding to questions crafted by a party's attorney, rather than a sworn affidavit, carries minimal weight, particularly where it deprives the opposing party of the opportunity to cross-examine. (4) Contemporaneous clinical records made at the time of treatment are generally more reliable than subsequent speculation about what might have occurred. The Court also noted the appropriate exercise of discretion by the respondent in not seeking costs against the applicant in circumstances involving the death of a child with cerebral palsy.

This judgment reinforces several important principles in South African law: (1) The threshold for reconsideration under s 17(2)(f) of the Superior Courts Act is very high—section 17(2)(f) is not designed to afford disappointed litigants a further attempt at relief already refused, but to deal with situations where injustice might otherwise result (applying Liesching v S). (2) New evidence on appeal will only be admitted in exceptional circumstances and must be weighty, material, presumably true, and practically conclusive (applying Rail Commuters Action Group v Transnet and S v de Jager). (3) In medical negligence cases, the plaintiff bears the burden of proving both negligence and causation. Expert opinion evidence must be consistent with proven facts and the reasoning must be sound—it is ultimately for the court to determine the probative value of expert evidence. (4) Appellate courts will not lightly interfere with factual findings of trial courts unless there is demonstrable and material misdirection or findings that are clearly wrong (applying Mashongwa v PRASA and Rex v Dhlumayo). (5) In medical negligence cases involving birth injuries, where experts agree that a severe brain injury occurred suddenly during a brief period and cannot determine whether post-injury treatment materially worsened the condition, causation cannot be established on a balance of probabilities—speculation is insufficient. The case illustrates the challenges plaintiffs face in birth injury litigation where catastrophic injuries occur suddenly without identifiable sentinel events.