The Member of the Executive Council for Health, Eastern Cape Province v Y N obo E N

The respondent instituted an action for damages against the MEC for Health, Eastern Cape Province, based on alleged failure of medical staff at Sipetu Hospital to provide adequate care during delivery of her daughter on 1 January 2010. The child was diagnosed with spastic non-ambulatory cerebral palsy after sustaining a hypoxic ischaemic insult during labour and birth. The High Court (Mjali J) found the MEC liable on 30 October 2018. After leave to appeal was refused by the High Court, the Supreme Court of Appeal granted leave to appeal to a full court on 19 August 2019. The full court dismissed the appeal on 23 July 2020. The Supreme Court of Appeal granted special leave to appeal on 16 October 2020. The MEC filed notice of appeal on 13 January 2021 but failed to lodge the record of appeal by the prescribed deadline of 21 April 2021, causing the appeal to lapse. The record was eventually filed on 29 June 2022, one year and two months late. The record was also incomplete, lacking transcripts of evidence from two key witnesses (the midwife and senior nurse who attended the delivery). An application for condonation and reinstatement of the appeal was filed on 29 June 2022.

• Whether condonation should be granted for the late filing of the record of appeal
• Whether the appeal should be reinstated despite flagrant non-compliance with Supreme Court of Appeal rules
• The principles governing applications for condonation and reinstatement of lapsed appeals
• Whether an incomplete record of appeal prevents consideration of the merits
• Whether the interests of justice favor condonation in circumstances of gross delay

1. The application for condonation of the late filing of the record of appeal is dismissed. 2. The applicant (the MEC) is ordered to pay the respondent's costs of the application and of the appeal.

Where there is flagrant and substantial non-compliance with court rules for filing the record of appeal, and the explanation for such non-compliance is manifestly inadequate with multiple unexplained periods of delay, condonation will be refused without consideration of prospects of success. The interests of justice, which form the touchstone for condonation applications, require consideration of multiple factors including the extent and cause of delay, the reasonableness of the explanation, the effect on administration of justice, and the interests of the other party. An applicant seeking condonation must provide a full, detailed and accurate explanation covering the entire period of delay. Unexplained gaps in the chronology are fatal to the application. Where an appeal record is incomplete and lacks essential evidence, the court cannot properly consider the appeal on its merits, providing an additional ground for refusing condonation. In matters concerning children, the child's best interests are paramount under section 28(2) of the Constitution, and delay in finalizing litigation concerning a disabled child's compensation claim weighs significantly against granting condonation.

The court observed that the State Attorney Mthatha's handling of the matter was to be strongly deprecated and noted that in such cases of flagrant disregard of court rules, punitive personal costs orders may be appropriate (citing Reck v Mills, Napier v Tsaperas, and Darries v Sheriff). The court noted that although a supplementary bundle containing the missing evidence was filed by the respondent's attorney, it was not properly certified by the registrar of the court a quo in accordance with SCA rule 8(5) and therefore could not be considered by the court. The court observed that it should not have been difficult to prepare the appeal record within the prescribed time since a transcribed record had already been prepared for the full court appeal.

This case reinforces the strict approach South African courts take to compliance with court rules, particularly the Rules of the Supreme Court of Appeal. It demonstrates that flagrant and substantial non-compliance with procedural rules will result in dismissal of condonation applications regardless of prospects of success, especially where the explanation for delay is manifestly inadequate. The judgment emphasizes the importance of providing full, detailed explanations covering the entire period of delay, and that unexplained gaps in the chronology are fatal to condonation applications. The case also highlights the paramountcy of children's interests under section 28(2) of the Constitution in matters concerning children, including medical negligence cases. It serves as a strong warning to State Attorneys about the consequences of disregarding court rules and the potential for punitive personal costs orders. The judgment reinforces that condonation is not automatic even in meritorious cases, and that the interests of justice must be assessed holistically, taking into account the prejudice to the other party and the administration of justice. It also demonstrates that technical compliance with filing requirements is insufficient - the record must be complete and properly certified to enable the court to adjudicate the appeal.