THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 580/2022
In the matter between:

M M
APPELLANT
(obo E L M)
and

MEMBER OF THE EXECUTIVE
COUNCIL FOR HEALTH: EASTERN CAPE
RESPONDENT

Neutral citation:
M M v MEC for Health; Eastern Cape (580/2022) [2023] ZASCA
130 (12 October 2023)
Coram:
SALDULKER, MOCUMIE, HUGHES and GOOSEN JJA and MALI AJA
Heard:
16 August 2023
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives via e-mail, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand-down are deemed to be
delivered on 12 October 2023.

Summary:   Delict – medical negligence – damages – claim for damages arising out
of alleged medical negligence of hospital staff- whether the hospital should be held
liable for the damages suffered by the minor child-negligence and causation not
established.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Eastern Cape Division of the High Court, Bisho (Van Zyl DJP,
Schoeman J and Noncembu AJ, sitting as court of appeal).
1. The appeal is dismissed with no order as to costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Saldulker JA (Mocumie, Hughes, and Goosen JJA and Mali AJA concurring):

[1] The appellant, Mrs MM, instituted an action against the respondent, the
Member of the Executive Council for Health (MEC) of the Eastern Cape Government
in the Eastern Cape Division of the High Court, Bhisho (high court), for damages
arising from a brain injury sustained by her minor child (referred to herein as ELM),
after his birth at Frere hospital, East London. The appellant’s case was based on the
breach of a duty of care and negligence towards her and ELM by the hospital staff.
The matter came before Tokota J, who found in favour of the appellant, and ordered
that the respondent pay such damages as may be proved by the appellant. The
respondent was granted leave to appeal to the full bench of the division on a limited
issue, and on petition to this court, it was granted leave against the whole judgment.
The full court (Van Zyl DJP, Schoeman J and Noncembu AJ), upheld the appeal of the
MEC, set aside the high court’s order, and replaced it with an order dismissing the
appellant’s claim with costs. This appeal is with the special leave of this court.

[2] The salient facts are as follows. On 18 October 2010, the appellant was
admitted to Frere hospital and gave birth at 18h25 to ELM by way of an emergency
caesarean section.

[3] After his delivery, ELM was transferred to the nursery ward with mild respiratory
distress, and on the following day, he was placed with the appellant in the maternity

ward. A day later, on 20 October 2010, it was observed that ELM may have jaundice,
and this diagnosis was confirmed by a laboratory report during the morning of the
same day, which showed that the total serum bilirubin level (TSB) of ELM was 506
micromol/L. This was registered at 07h41, approximately 37 hours post ELM’s
delivery. ELM was then transferred to the nursery ward where Dr Harper, a
paediatrician, was consulted, and supportive treatment commenced with ELM
receiving intravenous haemoglobin and intensive phototherapy. Further tests were
performed on 20 October 2010, and during the morning of the 21st. These results
indicated no significant drop in ELM’s TSB levels, in that the TSB level reduced to 498
micromol/L, and on the morning of 21 October 2010, at 08h24 the TSB level was 493
micromol/L. An entry in the hospital records on 21 October was to the following effect:
‘No significant drop in total serum bilirubin overnight despite triple phototherapy and
polygam. Blood for exchange transfusion ordered from PE. At this stage neonatal is
neurologically sound with no signs of kernicterus and no seizure’.

[4] Blood was ordered from the National Blood Services (the blood bank) for a
blood exchange transfusion to be performed. Before the arrival of the blood, and
approximately at midday on 21 October 2010, the appellant requested that ELM be
transferred from Frere Hospital to Life Beacon Bay Hospital, a private facility in East
London. The transfer was preceded by the drafting of a referral letter to the attending
paediatrician at the private hospital, Dr Paul, the relevant paragraph reading as
follows: ‘Baby requires exchange transfusion blood ordered from PE (560mls whole
blood) as none available in East London. Estimated time of arrival at blood bank is
17h00.’ ELM was admitted to Life Beacon Hospital at 14h50. At 20h00 the blood
transfusion was commenced. Throughout the time that ELM was at Frere Hospital,
and until the blood transfusion, he did not show any symptoms of neurological
complications.

[5] It is not disputed that ELM was diagnosed with dystonic cerebral palsy and
profound developmental delay complicated by epilepsy, intellectual disability, and a
hearing defect. The cause of the cerebral palsy was hyperbilirubinemia, which was the
result of very high levels of TSB in ELM’’s blood during the neonatal period. The
hyperbilirubinemia occurred as a result of the incompatibility between the appellant’s
blood group (O+) and that of ELM (B+) which caused haemolysis - the destruction of

ELM’s red blood cells resulting in an increase in his TSB levels. The hyperbilirubinemia
in turn caused bilirubin encephalopathy and subsequent brain dysfunction known as
kernicterus.

[6] The question is whether the negligence of the hospital staff caused or
contributed to the injury suffered by ELM. In the high court, the matter came before
Tokota J. The parties agreed to an order for a separation of the issues of merits and
quantum in terms of Rule 34, and the matter proceeded on the merits and causation.
During the trial, the appellant led the evidence of Dr Lombard, whilst the respondent
presented the evidence of Dr Harper, the paediatrician who attended to ELM at Frere
Hospital.

[7] At the trial the parties agreed that a joint minute drawn up by two expert
paediatricians, Drs Lombard and Mzizana, be filed which recorded inter alia the
following:
‘1.
[ELM] has been diagnosed with dystonic cerebral palsy and profound developmental
delay complicated by epilepsy, intellectual disability and a hearing defect.
It is agreed that the cause of [ELM’s] cerebral palsy was hyperbilirubinemia in the neonatal
period which caused bilirubin encephalopathy and subsequently kernicterus. The
hyperbilirubinemia occurred due to an incompatibility between Ms [MM]’s blood group (O+)
and that of [ELM] (B+) which caused hemolysis (destruction of red blood cells) resulting in an
increase in the total serum bilirubin (TSB).
. . .
2.
ABO blood group determination is not done routinely as an antenatal test. It is,
however, possible that first-born infants can be affected.
. . .
3.
Bilirubin encephalopathy is a preventable condition.
. . .
4.
The MRI findings of abnormal signal intensities in the globus pallidi reported by Dr
Zikalala and Prof Lotz are usually seen in kernicterus, due to deposition of bilirubin.
. . .
5.
The supportive treatment that [ELM] received at the Frere Hospital was appropriate,
but the ordering of the blood for an exchange transfusion was delayed for an unacceptable
period.
Published guidelines recommend that an immediate exchange transfusion should be done if

the baby’s TSB is more than 85 micromol/L above the threshold for exchange.
[ELM] had a TSB that was 141 micromol/L above the recommended threshold for an exchange
transfusion at approximately 37 hours of life on 20-10-2010. Published guidelines further
recommend that infants who present with TSB above the threshold should have an immediate
exchange transfusion done if the TSB is not expected to be below the threshold after 6 hours
of intensive phototherapy, but in [ELM’s] case the TSB was only repeated 11 hours later and
at that stage it was still 103 micromol/L above the threshold.

Dr Mzizana agreed, but also note that he still remained neurologically sound at that stage.
. . .
6.
Blood was only ordered for an exchange transfusion at least 21 hours after [ELM]
presented with a TSB that was high enough to qualify for an immediate exchange transfusion.
It is of note that the baby was described as neurologically sound at that stage.
. . .
7.
The arrival of blood for the exchange transfusion from the blood bank was delayed,
but it was still possible to commence the procedure approximately 10 hours after the blood
was ordered. If the blood had been ordered on the morning of the 20-10-2010 the transfusion
could have been done that same evening. That was the best opportunity to prevent the
development of bilirubin encephalopathy.

[Dr Mzizana agreed that] it is also noteworthy that the exact duration of exposure to
hyperbilirubinemia to cause bilirubin encephalopathy is unknown and timing of when
encephalopathy will occur cannot be predicted; and the parents’ request to transfer to private
hospital caused further delay.

[Dr Lombard agreed] and is of the opinion that if the blood had been ordered immediately on
the morning of 20-10-2010 the procedure could have been done before the transfer was
requested.’

[8] Later, Dr Mzizana attempted to retract the agreement in the foregoing para 6 of
the joint minute, that blood was only ordered for an exchange transfusion at least 21
hours after ELM presented with a TSB level that was high enough to qualify for an
immediate exchange transfusion. This, she explained, was because there was no
factual evidence to support this assertion.

[9] According to both the paediatricians the published medical guidelines
recommend an immediate exchange blood transfusion should an infant’s TSB be more
than 85 micromol/L above the threshold level. The TSB for ELM was 141 micromol/L
above the recommended threshold at approximately 37 hours of life on 20 October
2010.

[10] Thus, in terms of the foregoing published medical guidelines, infants who
present with TSB levels above the threshold should have an immediate exchange
transfusion if the TSB is not expected to be below the threshold after 6 hours of
intensive phototherapy. In the case of ELM, after 11 hours of treatment, his TSB was
still above the threshold. The foregoing chart below indicates when, how, and in which
circumstances and at what age of the baby in hours, blood transfusions are required
for infants with high TSB levels.

[11] The appellant’s case on the pleadings, was that the hospital staff at Frere
hospital had allowed ELM to develop kernicterus in that they failed to prevent bilirubin
encephalopathy from developing when they had ample opportunity to do so. It was
further alleged that the hospital staff failed to initiate a blood exchange transfusion
when signs of bilirubin encephalopathy were present. I quote excerpts from para 7 of
the plaintiff’s particulars of claim wherein it was alleged inter alia that the hospital:
‘7.6
They failed to act generally as would be expected of medical practitioners when
complications arose;
. . .
7.9
They failed to take heed of the fact that [ELM] was at high risk for developing
kernicterus due to inter alia maternal blood incompatibility, and failed to act accordingly;
7.10
They allowed [ELM] to develop kernicterus;
7.11
They failed to prevent bilirubin encephalopathy from developing when they had
sufficient opportunity to do so;
7.12
They failed to initiate exchange transfusion when signs of bilirubin encephalopathy
were present;’

[12] The main focus of the appellant’s case, although not pertinently pleaded, was
that the hospital staff were negligent for not immediately ordering the blood for a
transfusion for ELM, when in fact the laboratory test results on 20 October 2010
showed that ELM’s TSB levels placed him at a high risk of hyperbilirubinemia. Instead,
so the appellant contended, they waited until the following day, 21 October 2010 to
order the blood for the transfusion. The case for the appellant, however, as appears
from para 7.12 above, was that the respondent failed to initiate an exchange
transfusion when signs of bilirubin encephalopathy were present, and not that the
blood was not ordered. The focus of the appellant’s case, which was advanced at the

trial was that there was a delay of some 21 hours in the ordering of the blood after
finding that ELM’s TSB level was above the threshold level for exchange.

[13] In contrast, the respondent’s case was that fresh whole blood was ordered on
20 October 2010, and the delay in receiving the blood necessary for an immediate
exchange transfusion, was not attributable to negligence on the part of the hospital,
but rather on the non-availability of fresh whole blood in East London. Frere hospital
does not supply blood and it was out of the hospital’s control that no blood was
available. ELM had no signs of neurological compromise or problems at 19h30 on 21
October 2010 after his transfer to Life Beacon Bay hospital. The neurological
symptoms manifested during the exchange procedure which commenced at
approximately 21h00 at the private facility. In order to properly transfuse ELM, Life
Beacon Bay would have had to transfuse a total blood volume of 576 millilitres,
whereas it was common cause that only 390 millilitres   was transfused to ELM.

[14] On the issues of negligence and causation, the high court found that the
hospital staff at Frere Hospital were negligent, in that, once ELM had been diagnosed
with jaundice, the hospital staff at Frere hospital should have ordered blood
immediately. The failure to act immediately contributed and caused the harm suffered
by the appellant. Furthermore, the hospital staff treated ELM by other measures to
reduce the bilirubin levels. Only when such measures were no longer viable, was the
decision made, the following day, to order the blood transfusion. The high court found,
as a fact, that the blood was only ordered on 21 October 2010. Consequently, it held
that bilirubin encephalopathy developed, resulting in ELM developing cerebral palsy.
The high court rejected the respondent’s evidence that the blood was ordered on 20
October 2010. It held that it was incumbent upon the respondent to have pleaded that
blood was ordered on 20 October 2010 for ELM.

[15] On appeal, the full court (Van Zyl DJP, Schoeman J and Noncembu AJ)
dismissed the appellant’s case and held that there was no evidence to support a
conclusion that the blood would have been received on the same day, 20 October
2010. It held that in the absence of evidence of the availability of blood at the blood
bank, and the time it would have taken for it to be dispatched and taken to East
London, it was nothing more than speculation that it would have been received on the

20th and not on the 21st especially since the order was made on the 20th. The full court
reasoned that the opinion expressed by the two paediatricians Drs Lombard and
Mzizana in their joint statement that the ordering of the blood was unduly delayed, was
based on the assumption that the blood was only ordered on 21 October 2010. The
opinion postulated by the two paediatricians was qualified by a further agreement in
the joint minutes that the exact duration of the exposure to bilirubinaemia to cause
bilirubin encephalopathy was unknown. This then begged the question as to  what was
reasonably foreseeable, in the circumstances, in deciding the issue of negligence, and
whether the negligent conduct of the hospital staff at Frere hospital caused or
contributed to the injury suffered by ELM. Pertinently the full court reasoned as follows:
‘[19]
Turning then to deal with the issues raised at the trial, the first question is whether the
hospital staff were negligent in the manner advanced by the respondent at the trial. Negligence
is established if a reasonable person would foresee the reasonable possibility of his or her
conduct injuring another person and causing that person to suffer patrimonial loss, and would
take steps to guard against such occurrence.1 The requirements for negligence are applied to
a reasonable person in the position of a defendant. This means that the specific qualities of a
defendant, such as specialised skill and knowledge, which he or she possessed at the time,
must be considered in assessing his or her conduct against the requirements for negligence.2
[20] The relationship between a plaintiff and a defendant that possess specialised skill and
knowledge may consequently require a standard of care from the defendant that is different
to what that standard would otherwise be. It is however not expected of such a defendant to
exercise the highest possible degree of professional skill.3 What is expected is the general
level of skill and diligence which is possessed and would ordinarily be exercised by a
reasonable member of the branch of the profession to which he or she belongs under similar
circumstances. Applied to the facts of the present matter, liability will only be imposed if it is
found that the injury sustained by ELM was reasonably foreseeable, and that the hospital staff
had failed to provide the level of skill and competence that could otherwise expected to be
provided by a reasonable health care worker in similar circumstances.’

[16] I turn to consider the issues of negligence and causation. It is trite that
negligence is established if a reasonable person would foresee the reasonable
possibility that his/her conduct would injure another person causing that person to

1 Kruger v Coetzee 1966 (2) SA 428 (A) at 430 E.
2 Van Wyk v Lewis 1924 AD 438 at 444.
3 Mitchell v Dixon 1914 AD 519 at 525.

suffer patrimonial loss, and would take reasonable steps to guard against such
occurrence.

[17] Dr Harper testified that after ELM was diagnosed with jaundice he was moved
to the nursery. The results from the laboratory revealed that ELM’s TSB levels were
very high, and according to the ‘chart’ in the nursery, the recommended treatment for
an infant matching ELM’s profile was an exchange blood transfusion. The blood bank
was contacted as that was the first line of treatment according to the published medical
guidelines. Dr Harper then instructed a hospital staff member in the nursery during the
morning of 20 October 2010 to order the blood in order to do an exchange blood
transfusion for ELM. They were informed that ‘whole fresh blood’ was not available at
the East London blood bank, and that blood had to be ordered from Gqeberha. ELM,
in the interim, was treated with phototherapy. Further tests were conducted, but during
the course of the day, when it became clear that the appellant and ELM’s  blood group
were incompatible, and that there was no blood available, treatment commenced by
way of intravenous haemoglobin. Phototherapy continued while they waited the arrival
of the blood from Gqeberha, which was scheduled to arrive at 17h00 on 21 October
2010. There was no indication that ELM’s condition was deteriorating, and there was
no sign of acute bilirubin encephalopathy present.

[18] However, during midday on 20 October 2010, ELM’s parents requested that
ELM be transferred to a private facility, the Life Beacon Bay Hospital. Dr Harper
instructed Dr Evans, another doctor in the nursery to prepare a referral letter, recording
at the end of the referral letter that the blood had been ordered from Gqeberha. This
was, according to Dr Harper to prevent the private hospital from initiating the same
process to order the blood. At 14h50 ELM was transferred to the private facility. Up
until the time of the transfusion at the private hospital there were no indications that
ELM had been neurologically compromised. The volume of blood required for an
exchange transfusion was 576 millilitres. Ultimately, only 390 millilitres was transfused
to ELM.

[19] Dr Lombard’s testimony was that the blood was ordered on the 21st and not on
the 20th. However, it must be borne in mind that this evidence of Dr Lombard did not
stem from his personal knowledge, but from his interpretation of the clinical notes

which were kept by the hospital staff in the nursery at Frere hospital. The entries on
the 21st record that ‘blood exchange transfusion ordered from PE, and the estimated
time of arrival at blood bank was 17h00 of the blood ordered’. The high court held that
it was on the basis of this assumed fact that both Drs Lombard and Mzizana expressed
the view in their joint minutes, that there was an undue delay, and that had the blood
been ordered on the morning of the 20th the transfusion could have been done that
same evening. This inference that the experts sought to draw, however, was clearly
wrong and has no evidential value.

[20] The high court thus erred in concluding that the blood was only ordered on 21
October 2010. The high court appears to have disregarded Dr Harper’s evidence that
the order for the blood was made on 20 October 2010. Dr Harper was the paediatrician
in charge of the nursery who treated ELM. He had a clear recollection of the case and
his testimony with regard to the referral letter to the private facility is critical in the
assessment of the burden of proof. He testified that he informed Dr Evans that it was
important to state in the letter to the private facility that the blood had been ordered
‘Because the private facility [uses] the same blood bank that we do and we did not
want them to go through the same process of trying to order fresh whole blood when
we had ordered it. So, [he] instructed the junior doctor to write very clearly at the
bottom of the letter that the blood had been ordered from Port Elizabeth. This letter is
not a day-by-day notes account of doctors writing notes on each day. It is a summary
of the case. The fact that the note “blood for exchange transfusion” is at the end is
because I instructed them to make it very clear that the blood had been ordered.’

[21] This testimony clearly indicates that Dr Harper, as the treating doctor, took
ELM’s case seriously and was alive to what was expected of him as a medical
practitioner. He was aware that ELM required emergency treatment and took steps to
bring it to the attention of the hospital staff at Frere hospital, including those at the
private facility. He took steps to secure an alternative blood supply when the blood
was not available in East London. He was aware that a blood exchange transfusion
was required for ELM.

[22] This evidence established, on the probabilities, that an order for blood was
indeed placed on 20 October 2010. There appears to have been no cogent reason to

reject Dr Harper’s evidence that he instructed the hospital staff to order the blood.
Furthermore, Dr Harper took reasonable and supportive measures to treat ELM, whilst
the blood was awaited to prevent harm to ELM. On the facts, until the commencement
of the blood transfusion, there were no indications. that ELM was neurologically
compromised.  The consequence is that whilst he was under the care of the hospital
staff ELM received proper and reasonable care and was neurologically sound.
Therefore, in our view the full court was correct in holding that on the available
evidence, the staff at Frere hospital were not negligent.

[23] Additionally, Dr Lombard’s evidence was that if the blood was ordered on the
morning of 20 October 2010, the transfusion could have been done that same evening.
In the absence of any factual evidence, as to the time it would have taken between
placing an order for the blood in Gqeberha and its delivery at the blood bank in East
London, this evidence has no factual basis, and must remain in the realms of
speculation. Consequently, there exists no factual basis for Dr Lombard’s assumption
that an exchange blood transfusion could have been done on 20 October 2010. The
full court was correct in finding that the high court erred in its rejection of the
respondent’s evidence that the blood was ordered on 20 October 2010. There exists
no reason to reject this finding.

[24] In the absence of established negligent conduct the issue of causation does not
arise. However, for the reasons that follow, the appeal must fail also on this aspect. In
Lee v Minister of Correctional Service4 the Constitutional Court said causation as an
element of liability gives rise to two distinct enquiries. The first is the factual enquiry
into whether the negligent act or omission caused the harm giving rise to the claim. If
it did, then the second enquiry, referred to as the legal causation, arises namely when
the negligent act is sufficiently closely or directly linked to the loss for liability to ensure,
or whether the loss is too remote. In this matter the conduct in question is the failure
to timeously order the blood in order for an exchange blood transfusion to be
performed on 20 October 2010 to prevent harm to ELM. This supposes that the blood
would have arrived on the 20th. In this regard there was no evidence raising this as a

4 Lee v Minister of Correctional Services [2012] ZACC 30; 2013 (2) BCLR 129 (CC); 2013 (2) SA 144
(CC); 2013 (1) SACR 213 (CC).

probability. Whole fresh blood was simply not available. The blood had to be ordered
and dispatched from another city. No evidence was led as to whether it was readily
and immediately available at the blood bank in Gqeberha, and at what time it would
arrive in East London for ELM to receive the exchange blood transfusion, so as to
prevent ELM from developing bilirubin encephalopathy. There are no facts to confirm
that the blood would have been received on the 20th.

[25] Regrettably, no evidence was produced as to when the order for blood was in
fact placed with the blood bank. It was open to the appellant to have obtained evidence
to that effect from the blood bank, which was an entity distinct from the respondent.
The question of onus is important in the assessment of the evidence and the onus was
on the appellant to establish the elements of delictual liability. The appellant could
have, and should have, subpoenaed an official from the blood bank to establish when
the blood was actually ordered, but she chose not to do so. This was a factual issue.
Simply put, evidence on this point would have put paid to speculation on this important
point in the assessment of delictual liability.

[26] There was some debate in the high court, the full court and before this Court,
with regard to the manner in which the appellant had formulated the foregoing
particulars of claim and the respondent’s plea which was filed in response to the
appellant’s particulars of claim, that it had no knowledge of the allegations constituting
negligence on the part of the hospital staff. At the heart of the aforementioned para 7
is the allegation of the respondent’s negligent causation of ELM’s condition, and that
the respondent, through the hospital staff, failed to exercise reasonable care and skill.

[27] The high court found that it was incumbent upon the respondent to have
pleaded that the blood was ordered on 20 October 2010, this in circumstances, where
the appellant did not plead that the blood was ordered late by the respondent as a
ground of negligence. In this regard, the trial court erred.

[28] The effect of this finding by the high court was that the trial court expected the
respondent to adduce evidence to eliminate a factual inference drawn by the expert
witness, Dr Lombard. Furthermore, the appellant did not adduce any evidence in
support of the allegation that the blood was only ordered by the respondent on 21

October 2010, when it was possible for the appellant to have led evidence in this
regard. Had the appellant called an official from the blood bank, all the speculation as
to the question when or whether blood was ordered would have been settled.
Moreover, if the appellant wished to narrow the issues to the failure to order the blood
timeously, the particulars of claim should have been amended, thus affording the
respondent an opportunity to properly understand the case that had to be met. It is
clear that the purpose of pleadings is as stated by Innes CJ in Robinson v Randfontein
Estates GM Co Ltd:5
‘The object of pleadings to define the issues; and parties will be kept strictly to their pleas
where the departure would cause prejudice or would prevent full inquiry. But within those limits
the court has wide discretion. For pleadings are made for the Court, not the Court for
pleadings. And where a party has had every facility to place all the facts before the trial Court
and the investigation into all the circumstances has been as thorough and as patient as in this
instance, there is no justification for interference by an appellate tribunal, merely because of
the opponent has not been as explicit as it might have been.’6
It is pertinent to note that this position has remained unchanged for decades.

[29] This court cannot rule out the possibility that other factors may have contributed
to the factual cause of ELM’s injury. It cannot only be said that the blood in East
London did not arrive timeously. The decision of the parents of ELM to transfer him to
a private hospital, and the conduct of the staff at the private facility in performing the
blood transfusion are other factors. It may also have been the fact that the staff at the
private hospital had failed to transfuse sufficient blood, and they should have done a
further transfusion. It is not known whether this may have had a detrimental effect on
ELM. But again this is also a matter of speculation, which regrettably has never been
explored.

[30] There is no factual or casual connection between the conduct of the staff at
Frere Hospital and the harm suffered by ELM. Had Frere hospital become aware of
ELM’s serious TSB levels on 20 October 2010, and done nothing, such a delay would
clearly and obviously have been negligent. However, as soon as the laboratory result
indicated ELM’s TSB level were above the threshold, Dr Harper ordered a range of

5 Robinson v Randfontein Estates GM Co Ltd 1925 AD 173.
6 Ibid at 198.

treatments on the same day, 20 October 2010, to lessen the severity of the TSB level.
From the record the following clearly emanates: ‘[the treatment was provided] whilst
you were still waiting for the order of fresh blood?’ to which the answer was ‘This [was]
while we were waiting for fresh blood to arrive from Port Elizabeth . . . if we needed to
do that.’ Dr Harper understood the gravity of the situation, commenced treatment using
methods readily available, as soon as jaundice was diagnosed and additionally
ordered the blood, in the event that the treatments readily available were unsuccessful.
This conduct is indicative of a doctor that acted with skill and care and who did not
wait for confirmation that the conventional treatments had failed, before ordering the
blood; it is clear that the blood had been ordered even when the treatments were being
performed. The record indicates that the instruction to order blood was given the
moment the severe TSB levels were confirmed, albeit per instruction to another junior
doctor.

[31] In addition, there is also nothing in the papers that indicates that Dr Harper was
anything other than a reasonable medical practitioner and that the care provided to
ELM was anything other than the standard of care that could be expected. The reason
why Dr Mzizana’s retraction is important is because it casts credence on the
assumption that Dr Harper was, in fact performing his duties as could be expected of
a reasonable medical practitioner.

[32] A medical professional is expected to act with the reasonable care and skill
required, and that it can be expected of a medical practitioner to act knowledgeably in
light of the information a medical professional ought to know. A reasonable medical
professional would know that the levels of TSB presented in ELM were so severe that
blood was immediately required, and from the record, Dr Harper was well-aware of
this fact as ELM was treated in order to mitigate the consequences of the high TSB
levels during the time that the blood was awaited.

[33] The level of care exhibited by the hospital staff complies with the requirements
of a diligens paterfamilias expressed in Kruger v Coetzee:7
‘For the purposes of liability culpa arises if-
(a)

7 Kruger v Coetzee 1966 (2) SA 428 (A).

a diligens paterfamilias in the position of the defendant-
(i)
would foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial loss; and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.’8

[34] It does not appear that the staff of the hospital did anything other than what was
reasonably expected of them at the time. In view of the foregoing, the appellant was
unable to establish negligence or causation on the part of the respondent pertaining
to the treatment that ELM received at Frere hospital. The appeal must fail. As regards
costs, counsel for the respondent accepted that given the circumstances of this matter,
no order as to the costs in respect of the appeal be made.

[35] In the result, the following order is made:
The appeal is dismissed with no order as to costs.

_______________________
H K SALDULKER
JUDGE OF APPEAL

8 Ibid at 430E-F.

Appearances

For the appellant:
G W Austin
Instructed by:
Gary Austin Inc, Benoni

Honey Attorneys, Bloemfontein

For the respondent:
B Dyke SC
Instructed by:
State Attorney, East London

State Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

12 October 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
M M v MEC for Health; Eastern Cape (580/2022) [2023] ZASCA 130
Today, the Supreme Court of Appeal (SCA) dismissed an appeal with no order as to costs, from the
Eastern Cape Division of the High Court, Bhisho, (high court). The appeal revolved around a claim for
damages by the appellant arising out of a brain injury sustained by her minor child (ELM) after his birth
at Frere Hospital in East London, causing the child to be diagnosed with dystonic cerebral palsy and
profound developmental delays complicated by epilepsy, intellectual disability and a hearing defect,
caused by hyperbilirubinemia on account of severe levels of total serum bilirubin (TSB).

After ELM’s delivery, he was transferred to the nursery ward, whereafter he exhibited symptoms
associated with jaundice and significantly high TSB levels. Hospital staff commenced intensive
phototherapy and administered intravenous haemoglobin. The following day, a hospital note indicated
that there was no significant relief evident regarding the TSB levels and that blood for an exchange
transfusion had been ordered from Gqeberha, as there was no suitable blood available in East London.
The estimated time of arrival of the blood was around 17h00 that same afternoon, however, the
appellant instructed her child to be transferred to Beacon Bay Hospital, a private medical facility, around
15h00. During the time at Frere Hospital and up until the eventual blood transfer, the appellant’s child
did not indicate any symptoms of neurological complications. Regardless, the high court held that the
staff at Frere Hospital were negligent and that the respondent was liable to pay such damages as can
be proven. On appeal, the full bench dismissed the order of the high court that the staff at Frere Hospital
were negligent.

The appellant approached this Court on appeal to determine whether the negligence of the hospital
staff caused or contributed to the injury suffered by the appellant’s child. The allegation was levelled
that the attending physicians did not timeously order the blood required, but only did so on the following
day, the 21st of October 2010. The appellant contended that the staff at Frere Hospital allowed the child
to develop kernicterus in that they failed to prevent bilirubin encephalopathy from developing when they
had ample opportunity to do so. The high court held that, based on a joint minute by experts, that the
unreasonable delay on part of the hospital staff to order the requisite blood caused the resultant harm.
However, the SCA held that the high court was mistaken in this regard as the inference drawn by the
experts was clearly wrong and of no evidential value.

The SCA found that the attending physician dealt with the matter in all seriousness and was alive to
what was expected of him as a medical practitioner. He was pertinently aware of the child’s condition
and took steps to not only bring it to the attention of the staff at Frere Hospital, but also the staff at
Beacon Bay Hospital. In fact, the SCA found that substantial and supportive treatment was provided to
the child during the time that blood was ordered and awaited. The matter revolved around the timeous
ordering of blood, but no evidence was provided indicating that the blood was readily available there.
The appellant ought to have obtained evidence from the blood bank confirming the exact time the order
for blood was placed, as this would have been critical for the establishment of delictual liability.

Consequently, this Court determined that there was no factual or causal connection between the
conduct of the staff at Frere Hospital and the harm suffered by the appellant’s child. Had the staff
become aware of the child’s precarious condition and done nothing, negligence would clearly and
obviously have been evident which would have opened the discussion regarding causation. However,
the SCA found nothing to suggest that the staff performed their duties in any manner other than could
reasonably have been expected and that the attending physician was anything other than a reasonable
medical practitioner professionally performing his duties.

In the result, the appeal was dismissed, with no order as to costs.

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