MM obo GM v Member of the Executive Council for the Department of Health, North West Province

The appellant was a mother and natural guardian of her minor child GM, born on 16 October 2010, who was later diagnosed with cerebral palsy. She claimed damages against the MEC for the Department of Health, North West Province, alleging medical negligence by employees at two hospitals (Moses Kotane Hospital and Job Shimankana Tabane Hospital) during her obstetric care. The claim included damages for emotional trauma in her personal capacity, and future medical expenses, loss of earnings, and general damages for pain and suffering on behalf of GM. The trial court (Gutta J) found that hospital staff were negligent in various respects in the treatment and care of the appellant before and during the birth of GM, but dismissed the claim on the basis that there was no causal relationship between the negligence and GM's brain damage. The court concluded that the cerebral palsy was attributable to an abruptio placentae. The Full Court dismissed the appeal. Special leave to appeal was granted by the Supreme Court of Appeal on 12 July 2022. Critically, on 31 October 2023, 11 days before the hearing of the appeal, the respondent was informed that GM had passed away in August 2022. No death certificate was provided, and the death had not been reported to the Master of the High Court.

• Whether the appellant had locus standi to prosecute the appeal in light of the death of the minor child GM and the absence of an appointed executor for GM's estate
• Whether damages for general pain and suffering claimed on behalf of a deceased minor are transmissible to the deceased's estate after litis contestatio
• What is the effect of a minor child's death on a parent's claim for damages in their representative capacity where no executor has been appointed
• Whether the appellant proved her personal claim for emotional trauma and nervous shock
• Whether the high court failed to determine all issues before it, specifically the claim for emotional shock
• Whether the Supreme Court of Appeal has jurisdiction to determine issues not decided by the trial court

1. The order of the Full Court was set aside and replaced with the following: (a) The order of the trial court was set aside and replaced with: (i) The appellant's claim for emotional trauma and nervous shock is remitted to the trial court for determination. (ii) The appellant's claim in respect of the other heads of damages is struck off the roll with costs. 2. The appellant was ordered to pay the costs in the Supreme Court of Appeal.

1. A claim for general damages by a minor who dies after litis contestatio has been reached is transmissible to the deceased minor's estate, and only a duly appointed executor has locus standi to prosecute such a claim. 2. An executor derives authority to act on behalf of an estate only by receiving a grant of letters of executorship from the Master. No person can institute proceedings on behalf of the estate except the executor. 3. Where a trial court fails to determine an issue properly before it and makes no order on that issue, an appellate court lacks jurisdiction to make a determination on that issue for the first time. The proper remedy is to remit the matter to the trial court for determination. 4. A plaintiff claiming damages for emotional shock must prove that she or he sustained a detectable psychiatric injury. Mere emotional distress or upset is insufficient. 5. Where an appeal cannot proceed on its merits due to a party's failure to report a death to the Master and obtain letters of executorship, the proper order is to strike the matter from the roll with costs against the party responsible for the procedural failure.

1. The Court observed that it was unfortunate that GM developed cerebral palsy and would have endured much hardship in his brief lifetime. (para 15) 2. The Court noted that if an executor were appointed for GM's estate, the matter would "most likely return to this Court, at which stage the merits would be determined." (para 24) This suggests the Court's view on the probable future course of the litigation. 3. The Court expressed sympathy with the procedural predicament, noting that "much of this can be attributed to the high court which was seized with deciding both the emotional shock claim and that for damages on behalf of GM. It failed or omitted to decide the lis between the parties in respect of the claim for emotional shock." (para 16) 4. The Court commented that "It is not for this Court to prescribe to the high court as to how the matter should be dealt with, at a procedural or substantive level," showing deference to the trial court's case management discretion. (para 20) 5. The Court noted that the appellant could "potentially" inherit from GM's estate under s 1(1)(d) of the Intestate Succession Act 81 of 1987, though this was not determinative of locus standi. (para 22) 6. The Court observed that "A copy of the death certificate, at the very least, ought to have been tendered" when the death was brought to the Court's attention. (para 6)

This case clarifies several important principles in South African law: 1. It confirms the principles of transmissibility of claims for general damages after the death of a minor, emphasizing that once litis contestatio is reached, such claims pass to the deceased's estate and can only be prosecuted by a duly appointed executor. 2. It highlights the importance of reporting deaths to the Master and obtaining letters of executorship before attempting to prosecute claims on behalf of deceased estates. The failure to do so results in lack of locus standi. 3. It reinforces the evidentiary requirements for claims for emotional shock and trauma, requiring proof of a detectable psychiatric injury as established in Bester v Commercial Union, Road Accident Fund v Sauls, and Komape v Minister of Basic Education. 4. It demonstrates important procedural principles: where a trial court fails to decide all issues before it, an appeal court cannot substitute its own decision on matters not decided below. The proper remedy is to remit the matter to the trial court. 5. It clarifies that the Supreme Court of Appeal can only adjudicate on matters that were properly decided by the lower courts, and cannot clothe itself with jurisdiction where the trial court failed to make a determination. 6. The case provides guidance on appropriate costs orders where appeals cannot proceed due to a party's failure to comply with procedural requirements (reporting death to Master).