Zwane obo Nthando v Member Of The Executive Council For Health,Gauteng Province (34058/2015) [2023] ZAGPJHC 114 (10 February 2023)
- Citation
- [2023] ZAGPJHC 114
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Sutherland DJP
- Case number
- 34058/2015
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Sutherland DJP
- Case number
- 34058/2015
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the controversies regarding the admission and treatment of the maternity register, the contradictions between documentary and oral evidence, and the missing hospital records created sufficient uncertainty to warrant reconsideration by a full court. The judge held that the scope of evidence and the manner in which it was weighed could reasonably be viewed differently by another court. Accordingly, leave to appeal was granted to allow for a thorough re-examination of the evidence and the trial court's findings.
Court disposition
Leave to appeal granted to the full court; costs of the application to be costs in the appeal.
Orders
- Leave to appeal is granted to the full court.
- The costs of this application will be costs in the appeal.
02
Material facts
Parties
Ntombenhle Patricia Zwane obo Nthando
Respondent Counsel: N MakopoMember Of The Executive Council For Health, Gauteng Province
Applicant Counsel: M Sibuyi03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal After Trial Judgment
04
Questions and positions
Legal issues
- 01
Whether the trial court erred in finding no medical negligence by hospital staff causing the baby's condition.
- 02
Whether the admission and treatment of the maternity register and other documentary evidence was proper.
- 03
Whether the contradictions between documentary evidence and oral testimony were correctly resolved.
Party arguments
- Applicant
- The applicant contended that the trial court erred in admitting the maternity register as evidence, given the contradictions between it, the discharge form, and the mother's oral testimony. The applicant argued that the court gave undue preference to the register and Professor Bolton's commentary, disregarding other evidence. The applicant maintained that missing hospital records and faded memories undermined the reliability of the evidence, and that the cause of the baby's stroke was not properly attributed, warranting reconsideration by a higher court.
- Respondent
- The respondent maintained that the trial court correctly assessed the available evidence, including the maternity register and expert testimony, and properly resolved contradictions. The respondent argued that the absence of hospital records was not the fault of the medical staff and that the evidence did not establish negligence. The respondent asserted that the trial court's findings were justified and that leave to appeal should not be granted.
05
Court’s reasoning
Legal principles
- 01
Section 17(1)(a) of the Superior Courts Act 10 of 2013
Leave to appeal should be granted where there is reasonable prospect that another court may come to a different conclusion on the facts or law.
- 02
Relevant case law on evidence (not specifically cited in judgment)
The proper admission and weight of documentary evidence, especially where records are missing and contradictions exist, must be carefully considered.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the controversies regarding the admission and treatment of the maternity register, the contradictions between documentary and oral evidence, and the missing hospital records created sufficient uncertainty to warrant reconsideration by a full court. The judge held that the scope of evidence and the manner in which it was weighed could reasonably be viewed differently by another court. Accordingly, leave to appeal was granted to allow for a thorough re-examination of the evidence and the trial court's findings.
Obiter and limits
- The problem of missing hospital records is endemic in birth-related actions in Gauteng Province, often complicating the resolution of medical negligence claims.
- The passage of time and faded memories further challenge the reliability of evidence in such cases.
Court disposition
Leave to appeal granted to the full court; costs of the application to be costs in the appeal.
- Leave to appeal is granted to the full court.
- The costs of this application will be costs in the appeal.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
CASE NUMBER: 34058/2015
(1) REPORTABLE: /NO
(2) OF INTEREST TO OTHER JUDGES:NO
DATE OF HEARING: 10 February 2023
DATE: 10 February 2023
In the matter between:
NTOMBENHLE
PATRICIA ZWANE OBO
NTHANDO PLAINTFF
(RESONDENT FOR LEAVE TO APPEAL)
and
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH,
GAUTENG
PROVINCE DEFENDANT (APPLICANT FOR LEAVE TO APPEAL)
This judgment has been delivered by being uploaded to the caselines profile on ……… at 10h00 and communicated to the parties by email.
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
Sutherland
DJP
[1] This is an application for leave to appeal against a judgment of the late Acting Judge Ria Bezuidenhout who presided over the trial. An application for leave to appeal was brought before her and heard, but before she could deliver her judgment, she passed away.
[2] It is under those circumstances that the matter has been enrolled before me in order for me to deal with the application for leave to appeal.
[3] The case was about whether or not there was medical negligence by medical staff which caused the impaired condition of a baby born on 8 August 2005. The Court a quo held that there was no negligence and dismissed the claim for damages.
[4] The controversy relates, in the main, to a problem which is endemic to actions in relation to births in the Gauteng Province; ie missing hospital records. The proceedings took place many years after the birth itself and, as often experienced, critical documentation is missing and, of course, memories have faded. In this regard, the principal cause of unease from the point of view from the applicant for leave to appeal is the admission of the maternity register which was among the very few documents available in relation to what took place at the time of birth. There is a debate about whether this was properly admitted but more particularly, there are contradictions between the maternity register and the discharge form and with the oral evidence of the mother. The court resolved these controversies about the entries in the maternity register and the commentary thereon by Professor Bolton, by giving preference to them over certain evidence given by the mother and the contents of the discharge form.
[5] The common cause circumstances that gave rise to the condition of the baby was a stroke. The critical question for the trial was what caused the stroke. Was it the negligence of the medical staff or was it a result of some other circumstance?
[6] There is a controversy about whether or not the mother was well prior to the birth and in particular, whether or not she had an infection, which would have been materially related to the condition of the placenta and self-evidently the nutrition of the foetus while in utero.
[7] The circumstances of the matter are such that in my view, because of the controversy concerning the scope of the evidence which was taken into account and the possibility of a different point of view being taken in regard on how to treat the evidence, paltry as it might be, warrants leave being granted to the full court in order for the evidence to be re-examined.
[8] In the appeal whether or not there was improper admission of evidence and whether or not there was the appropriate weight given to different evidence in regard to certain contradictions can be properly explored.
[9] In my view, leave to the full court should be given and furthermore, the costs of this application should be made costs in the appeal.
[10] Accordingly, the order is as follows:
(1) Leave to appeal is granted to the full court.
(2) The costs of this application will be costs in the appeal.
Heard: 10 February 2023
Judgment: 10 February 2023
The Applicant was represented by: Adv
M Sibuyi
Instructed by: P.G
Makondo Attorneys
The Respondents was represented by: Adv N Makopo
Instructed by: the
State Attorney.
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