Ntsele v. Mec. for Health, Gauteng Provincial Government

This case summary and analysis was prepared in partnership with the International Reproductive and Sexual Health Law Programme of the University of Toronto and the Centre for Human Rights at the University of Pretoria for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts.

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Summary of Facts
Court’s Decision and Analysis
Case Commentary

A mother sued on behalf of her minor child (“Plaintiff”) for brain damage (cerebral palsy) the child allegedly incurred from negligent medical treatment provided by the employees at the Zola clinic and Baragwanath Hospital (collectively, “Defendant”). Plaintiff alleged that when she was in labor with the child at the clinic and later giving birth at the hospital run by the Defendant, the nursing staff at the clinic and the doctor and nursing staff at the hospital, breached their duty of care for failing to provide appropriate medical attention and care the mother needed during the delivery of her child.

Plaintiff argued that Defendant’s employees failed to execute their statutory duty pursuant to Section 27 of the South African Constitution, Act 108 of 1996 (“Constitution”), which mandated the medical staff to provide reproductive health care to her and her child with reasonable skill and diligence. Plaintiff argued that the staff’s breach of duty caused her child to sustain brain damage due to oxygen deprivation during the birth. Plaintiff concluded that due to her history of caesareans and the difficult birth, the medical staff should have performed a caesarean section rather than force her to deliver vaginally.

Plaintiff’s evidence revealed that the mother had endured prolonged labor due to the failure of the clinic and hospital staff to take the necessary measures to assist her in the delivery. Plaintiff submitted that the brain damage was a consequence of Defendant’s employees’ breach of the duty of care, because they failed to monitor the progress of the pregnancy, as well as the health of the fetus in the process of birth.

Defendants responded that negligence had not been proven and asked the Court to dismiss the case. Defendant argued that Plaintiff had not demonstrated that Defendant’s employees had failed to take reasonable steps to prevent the injury. Defendant further argued that Plaintiff had not shown that Plaintiff’s brain damage was foreseeable and due to the medical staff’s negligence.

The issue before the Court was whether Defendant is vicariously liable for the alleged negligence of Defendant’s employees for the damage to the brain sustained by Plaintiff.

The Court reminded Defendant that once the Plaintiff established a prima facie case of negligence, it was the Defendant’s responsibility to disprove that the brain damage of the child was due to the negligence of Defendant’s employees.

The Court agreed with the Plaintiff that the circumstantial evidence on the nature of the brain damage would justify an inference that the brain damage was caused by Defendant’s employees’ negligence. It further said that in the absence of evidence disproving the likelihood of negligence, the Court would conclude that Defendant’s employees had failed to provide Plaintiff with her lawfully entitled treatment.

The Court also noted that the clinic and hospital records describing the treatment procedures performed on the mother and her child were missing, despite the clinic and hospital’s legal duty to ensure that hospital records were kept safe pursuant to Sections 13 and 17 of the National Health Act No. 61 of 2003. Further, Defendant offered no explanation as to why the records were missing. The Court held that Defendant’s failure to explain the missing records would justify an adverse inference of negligence.

The Court determined that Defendant was vicariously liable because its employees were in control of and were completely knowledgeable of the circumstances under which the child sustained the brain damage, and the only plausible explanation of the injury that occurred to the child would be that Defendant’s employees caused it.

The Court agreed with Plaintiff that Defendant’s obligations also violated the right to the highest attainable standard of health, recognized in Section 27 of the Constitution. Plaintiff had the right to receive adequate reproductive health care, and Defendants had the duty to provide reproductive health care with the skill and diligence expected of the medical profession. The Court held that Defendant had failed to discharge the evidential burden to disprove the causal connection between the negligence of its employees and the brain damage suffered by Plaintiff.

The Court held that Defendant health clinic and hospital were vicariously liable for Plaintiff’s brain damage sustained during birth and while in their care. Defendant was also liable for the violation of Plaintiff’s right to the highest attainable standard of health protected under Section 27 of South Africa’s Constitution.

The Court ordered Defendant to compensate 100% of Plaintiff’s damages.

It is common that women on the African continent do not receive adequate reproductive health care and subsequently experience adverse consequences in neonatal health. The issue is systemic in some countries. Poor and indigent women and their babies at a high risk of sustaining injury due to their governments’ inability to ensure equitable access to quality reproductive health care. Poor quality reproductive health care, especially for women, is not an inevitability of nature. It is the result of the governments’ socio-economic choices. Over time, these choices have deepened a sense of disentitlement, especially amongst poor women.

The South African Court perfunctorily raised the issue of reproductive rights in this case. However, the case was essentially decided on the private law of tort or delict. In order to address the challenges that women face in Africa, it is vital to build strong jurisprudence to hold governments accountable for respect, protection, and fulfilment of the reproductive rights of women in Africa.