Mbhele v MEC for Health for the Gauteng Province

Ms Delisile Mbhele (the appellant) was transferred from Zola Clinic to Chris Hani Baragwanath Hospital (CHB) as an emergency case due to foetal distress on 18 August 2006. Despite being admitted as an emergency, she was not treated as such. After more than an hour, a doctor ordered a CTG scan which was also delayed. Despite the CTG scan showing foetal distress, the appellant was not attended to promptly. The doctor who ordered the scan did not follow up on the results, and the nursing sister who conducted the scan neglected to inform the doctor of the results. The appellant was left alone to progress in labour without monitoring, which resulted in her delivering a stillborn baby. After the unsuccessful delivery, she was inappropriately placed in a maternity ward with mothers of newborns, where she had to contend with an empty cot while watching other mothers with their babies. When she asked to be moved and for family to be contacted, she was ignored for about eight hours. She collapsed when she had to identify her baby's body at the mortuary. Medical reports by Professor Buchmann and Dr Ramhitshana confirmed that the medical staff at CHB were negligent in not following their own protocols, which led to the loss of the baby. The appellant and Mr Themba Buthelezi (who later passed away) sued the MEC for Health for the Gauteng Province for damages arising from the negligence. The matter was heard as a stated case in terms of Uniform Rule 33.

• Whether the claim for emotional shock had been proved
• Whether South African law recognises a claim for constitutional damages for the loss of the right to rear a child
• Whether the stated case adequately disclosed a cause of action
• Whether the claim for emotional shock was abandoned
• The quantum of damages for emotional shock
• The proper requirements for a stated case in terms of Uniform Rule 33

1. The application for condonation for the late delivery of the respondent's heads of argument was granted. 2. The appeal was upheld with costs. 3. The order of the High Court was set aside and substituted with the following: (a) The claim succeeds. (b) The defendant is held liable for general damages based on emotional shock which the second plaintiff suffered as a result of the negligent conduct of the defendant's employees on 18 August 2006. (c) The defendant is to pay the second plaintiff the amount of R100,000 as general damages. (d) The defendant is to pay the costs.

The binding legal principles established in this case are: (1) In delict, a claim for emotional shock can succeed where the claimant proves that they suffered emotional distress as a result of the defendant's negligence. (2) South African law does not recognise a claim for damages based on the loss of the right to rear a child who was not born alive. Based on Pinchin v Santam, an unborn child is deemed to have the rights of a born child only if subsequently born alive. (3) Constitutional issues must be properly pleaded and cannot be raised for the first time in heads of argument without laying a proper foundation in the papers or pleadings. (4) A stated case in terms of Uniform Rule 33 must clearly set out both the facts and the legal issues in dispute. Where facts are inadequately stated, a court should decline the request to determine a special case. (5) A trial judge has a duty to ensure that a stated case is properly drafted with facts and issues crisply and clearly set out before accepting it. (6) In assessing quantum for emotional shock, courts exercise discretion having regard to comparable cases, inflationary changes, and the unique facts of each case, generally tending towards conservatism.

The court made several non-binding observations: (1) The court expressed concern about the manner in which the stated case was drafted, noting it did not clearly set out the facts giving rise to the claim for emotional shock or adequately articulate the purported constitutional right to rear a child. (2) The court emphasized that absent a clearly drafted and articulated stated case, the very purpose of Rule 33 would be defeated. (3) The court criticized the conduct of the State Attorney representing the respondent, noting that no heads of argument were filed within the prescribed period, no condonation was sought, and supplementary heads were filed only two days before the hearing. The court stated that such conduct "is to be discouraged and avoided, particularly in cases of this serious nature." (4) While the court awarded R100,000 for emotional shock, it observed that in the comparable cases reviewed, the plaintiffs generally suffered more severe sequelae than in the present case. The court noted there was no medical evidence in this case of lasting trauma, unresolved mourning or chronic bereavement, but nevertheless found that the appellant experienced severe shock, grief and depression warranting the award.

This case is significant in South African law for several reasons: (1) It confirms the test for claims for emotional shock in delict and provides guidance on the assessment of quantum for such claims. (2) It clarifies that South African law does not recognise a claim for constitutional damages for the loss of the right to rear a child who was not born alive, following Pinchin v Santam which held that an unborn child has rights only if subsequently born alive. (3) It emphasizes the procedural requirement that constitutional issues must be properly pleaded and argued, not raised for the first time in heads of argument. (4) It provides important guidance on the requirements for a stated case under Uniform Rule 33, emphasizing that facts and issues must be crisply and clearly set out. (5) It reinforces the role of a trial judge in ensuring that a stated case is adequately drafted before accepting it. (6) It demonstrates the court's approach to awarding damages for emotional shock in cases of medical negligence resulting in stillbirth, providing a quantum benchmark of R100,000 (as of 2016).