NVM obo VKM v Tembisa Hospital and Another

Ms NM was admitted to Tembisa Hospital on 3 April 2009 while pregnant with her first child. During labour, the hospital nursing staff negligently failed to monitor the foetal heart rate between 03h15 and 04h45 on 4 April 2009. The baby, VKM (V), was born at 05h10 with very low Apgar scores indicating severe oxygen deprivation (acute profound hypoxic ischaemic encephalopathy - HIE). V subsequently developed cerebral palsy, epilepsy, and breakthrough seizures. Medical experts agreed that: (i) V suffered acute profound hypoxic injury during the critical period between 03h15 and 04h45; (ii) proper half-hourly foetal heart rate monitoring should have occurred during this period; (iii) the foetus appeared healthy at 03h15 based on clear amniotic fluid and normal foetal heart rate; and (iv) warning signs of hypoxia would likely have been detected with proper monitoring. Negligence in the form of inadequate monitoring was conceded in the High Court by the respondents.

• Whether this Court has jurisdiction under section 167(3)(b) of the Constitution to entertain the matter
• Whether factual causation was established between the negligent failure to monitor foetal heart rate and the brain injury suffered by the child
• Whether the Full Court erred in applying the test for factual causation
• Whether the Full Court erred by importing factual findings from other cases rather than deciding the matter on its own facts
• Whether the Lee test for factual causation or the conventional 'but for' test should apply to medical negligence cases

Leave to appeal refused, with no order as to costs.

A dispute that turns entirely on factual causation, even in the context of medical negligence at a state hospital, does not engage the Constitutional Court's jurisdiction under section 167(3)(b) merely because it touches on constitutional rights such as access to healthcare (section 27) or the state's duty to respect and protect rights (section 7(2)). For jurisdiction to be engaged, resolution of the constitutional issue must be reasonably necessary to determine the case's outcome. Where negligence and wrongfulness are admitted and the standard of care is common cause, the sole remaining question of whether the breach factually caused the harm is a purely factual inquiry that does not raise a constitutional matter or arguable point of law. The Constitutional Court will not engage in factual reappraisal where no constitutional issue or arguable point of law reasonably requires such reappraisal.

Minority judgment obiter: (1) Medical negligence may be a category of harm better suited to the flexible Lee test for causation given the inherent uncertainty in medical matters and the difficulty in establishing causation with certainty. (2) Where systemic state failures contribute to harm in dispersed, overlapping ways making it difficult to identify a single cause, the Lee test may be more appropriate, allowing causation to be established by proving contribution to risk. (3) The flexible causation test may have transformative potential in recognizing systems of harm not traditionally recognized in delictual law. (4) In medical negligence cases involving cerebral palsy caused by hypoxic ischaemic encephalopathy, it is sufficient to prove on a balance of probabilities that proper monitoring would have detected warning signs and emergency measures would probably have prevented the injury or significantly reduced the risk. (5) Courts should not invoke or quote factual findings from other cases, even by way of analogy, as this adds confusion rather than clarity. (6) An attempt to withdraw a clear, unequivocal concession on negligence made after consideration of expert evidence, without adequate explanation, should be rejected. Majority judgment obiter: Observations about when the Lee test versus the conventional 'but for' test should apply were not necessary to the decision and amount to obiter dicta.

This case is significant for: (1) Clarifying the limits of the Constitutional Court's jurisdiction under section 167(3)(b), particularly where constitutional rights may tangentially relate to a delictual claim but the dispute turns entirely on factual causation. The majority affirmed that purely factual disputes, even in the medical negligence context involving state healthcare facilities, do not engage constitutional jurisdiction merely because they touch on constitutional rights like access to healthcare. (2) The sharp division in the Court (5-4, with the Chief Justice expressing reluctance) highlights ongoing tensions about the Court's role in developing delictual law, particularly in medical negligence cases. (3) The minority judgment provides important guidance on the application of causation tests in medical negligence cases involving systemic failures and inherent medical uncertainty. (4) The case illustrates the principle that factual findings, even from higher courts, do not constitute binding precedent that can be imported into other cases - each case must be decided on its own evidence. (5) The judgment reaffirms the limited circumstances in which the Constitutional Court will engage with factual disputes - generally only where resolving such disputes is reasonably necessary to determine a constitutional issue or arguable point of law. (6) The case demonstrates the consequences of the jurisdictional gatekeeping function - meritorious claims may be denied relief if they cannot surmount the jurisdictional threshold.