The Member of the Executive Council for Health of the Gauteng Provincial Government v C B M

On 23–24 April 2016, the respondent (Ms CBM) was admitted to the Dr George Mukhari Academic Hospital after her membranes ruptured. She underwent a caesarean section on 24 April 2016, during which she suffered severe post-partum haemorrhage (PPH) necessitating an emergency total abdominal hysterectomy. She instituted a damages claim against the appellant (the MEC for Health, Gauteng), alleging that negligent medical care caused the hysterectomy and that she was not provided with post-operative counselling or support. The high court found the appellant’s employees negligent, applied the res ipsa loquitur maxim, drew an adverse inference from the appellant’s failure to produce the complete medical records, and ordered the appellant to pay 100 per cent of the respondent’s proven or agreed damages. The appellant appealed with the leave of the high court. The Supreme Court of Appeal found that the missing records were not deliberately withheld and that the appellant had provided a plausible explanation for their absence. The Court also found that the respondent had not been in true labour upon admission and had been managed in accordance with the Guidelines for Maternity Care in South Africa, so there was no inordinate delay in performing the caesarean. However, with infection ruled out, a mistake during the operation was the most likely cause of the PPH. The surgeons who performed the operation were not called to testify despite being available, and the appellant failed to adduce evidence to rebut the prima facie inference of negligence. The Court further found that the respondent had discharged herself against medical advice before the counselling process could be completed, so there was no negligent failure to counsel.

• Whether the appellant’s employees were negligent in causing the respondent’s post-partum haemorrhage and hysterectomy, either by an inordinate delay in performing the caesarean section or by a mistake during the operation.
• Whether the absence of the respondent’s medical records justified drawing an adverse inference of negligence against the appellant.
• Whether the maxim res ipsa loquitur applied to raise a presumption or inference of negligence in the circumstances.
• Whether the respondent established a prima facie case of negligence where the precise cause of the PPH lay peculiarly within the knowledge of the operating doctors, and whether the appellant discharged the evidential burden of rebuttal.
• Whether the appellant’s employees negligently failed to provide post-operative counselling, support or information regarding the effects of the hysterectomy.

The appeal is upheld in part. Paragraph 57(b) of the order of the high court is set aside and substituted with the following: ‘(b)(i) The defendant is directed to pay the plaintiff’s proven or agreed damages suffered as a result of the hysterectomy performed on her by the defendant’s employees on 24 April 2016; (ii) The plaintiff’s claim for damages on the ground that the defendant’s employees failed to provide her with the necessary support, failed to refer her to counselling, or provide her with any information pertaining to the effects of the hysterectomy, alleged in paragraph 9.5 of the particulars of claim, is dismissed.’ The appellant shall pay the costs of the appeal.

1. The absence of medical records does not justify an adverse inference of negligence against a healthcare provider if a plausible explanation for their absence is provided; the absence should be treated as a neutral factor. 2. Res ipsa loquitur is not a presumption of law or fact; it merely denotes an inference of negligence drawn from the proved facts and probabilities, and it should rarely be used in medical negligence cases. 3. Where the cause of an injury is peculiarly within the knowledge of the defendant’s employees (such as the surgeons who performed the operation), and those employees are not called to testify despite being available, a plaintiff may establish a prima facie case of negligence with less evidence. The defendant then bears an evidential burden to adduce evidence in rebuttal; if it fails to do so, negligence is established on a preponderance of probabilities. 4. A hospital is not liable for failing to provide post-operative counselling where a patient discharges herself against medical advice before the arranged counselling process can be completed, because patient autonomy must be respected.

The Court expressed grave concern that the respondent’s expert witness, Dr Pooe, had testified without disclosing that she was suspended by the Health Professions Council of South Africa and was therefore disqualified from practising. The Court endorsed the dictum that an expert witness’s unsubstantiated bald assertion (ipse dixit) is worthless, citing Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH and Kennedy v Cordia (Services) LLP. The Court quoted with approval the observation in Goliath v MEC for Health, Eastern Cape that the time may have come to jettison the res ipsa loquitur maxim from the legal lexicon entirely. The Court also noted, in passing, that self-diagnosis of labour by a primigravida is notoriously unreliable and that false labour may easily be mistaken for true labour.

The judgment is significant because it clarifies that the maxim res ipsa loquitur is not a presumption of law or fact but merely part of ordinary inferential reasoning based on probabilities, and that it should rarely be used in medical negligence cases. It establishes that the absence of medical records does not automatically warrant an adverse inference against a healthcare provider if a plausible explanation for their loss is tendered; the absence should be treated as a neutral factor. The case reaffirms the principle that where facts relating to an alleged negligent act are peculiarly within the knowledge of the defendant’s employees—such as surgeons who performed an operation—a plaintiff may establish a prima facie case with less evidence, casting an evidential burden on the defendant to adduce reasonable evidence in rebuttal. It also underscores the necessity for expert evidence to be properly reasoned and substantiated rather than bald assertions, and it illustrates the limits of a hospital’s duty to provide post-operative psychological support where a patient exercises her autonomy by discharging herself against medical advice.