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. 

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.