REPUBLIC OF SOUTH AFRICA

IN THE HIGH COUR OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

(1)	REPORTABLE: NO
(2)	OF INTEREST TO OTHER JUDGES :NO
(3)	REVISED

CASE NO 12035/07

In the matter between

BUTHELEZI, T...........................................................................................1ST Plaintiff

MBHELE, D...............................................................................................2ND Plaintiff

And

MEC FOR HEALTH GAUTENG PROVINCE..............................................Defendant

J U D G M E N T

TSOKA J:

[1] The plaintiffs who appear not to be married to each other would have been the natural parents of a child delivered at Chris-Hani Baragwanath Hospital by the second applicant on 18 August 2006 had it not have been a still born.  Pursuant to the delivery aforesaid, on 28 May 2008 the plaintiffs instituted an action for damages against the Member of the Executive Council for Health: (MEC) Gauteng Province, allegedly for damages arising out of the birth of the still born which birth is ascribed to the negligence of the personnel of Zola Clinic and Chris-Hani Baragwanath Hospital for whom the MEC for Health is responsible.

[2] The first plaintiff who has since passed away and has not been substituted by an executor and the second plaintiff being unable to give oral testimony, submitted to this Court what they described as stated case to prove their claim against the defendant.  According to the stated case, the plaintiffs allege that as a result of the negligence of the defendant at both the Zola Clinic and Chris-Hani Baragwanath Hospital, the second plaintiff in spite of the fact that she was in labour and the foetus was in distress, was not given adequate and reasonable medical attention with the result that the second plaintiff delivered a fresh still-born at the Chris-Hani Baragwanath Hospital.

[3] After the birth, the second plaintiff was taken to mortuary to identify the ‘baby’.  At the mortuary, upon identifying her ‘baby’, the second plaintiff collapsed.  Subsequently, the ‘baby’ was taken to KwaZulu Natal for burial.  Prior to the second plaintiff burying her ‘baby’, she was, according to her, inappropriately taken to a ward wherein there were mothers of newborn babies.  She was made to contend with an empty cot while witnessing other mothers holding and feeding their babies.  The death of her ‘baby’ left her feeling empty.  

[4] For some time after the burial she could not resist but continue to visit the grave of her dead ‘baby’. The death of the ‘baby’ came as a shock as she had made preparations for its birth and in expectation thereof had already bought a lot of clothes, toys and other utensils.  She had already named the ‘baby’ Tebogo who she was looking forward to bring up as her first born and a good man.  She has since the death of Tebogo, given birth to a child she named Siyabonga.

[5] The defendant who filed a plea on the merits denies negligence. Specifically, it denies that the baby’s death was as a result of negligence or any wrongful conduct of its personnel in attending to the second plaintiff.  The medico legal reports submitted by the parties and the comments made thereon by the various experts are not in dispute.  According to the parties, the issues identified to be resolved by this Court are the following:
1.	the cause of the second plaintiff giving birth to the still-born on 
18 August 2006;
2.	whether the law recognises the second plaintiff’s right to rear a child in addition to the common law right to protect the second plaintiff from losing its ‘baby’;
3.	damages to be awarded to the second plaintiff suffered as a result of the infringement of her right to rear a child.

[6] Regarding what caused the second plaintiff to give birth to a still-born on 18 August 2006, and having regard to the contents of the medico legal reports on record, it is not clear what the cause thereof was. However, according to Doctor Echard Buchmann, the Associate Professor and Chief Specialist at Chris-Hani Baragwanath Hospital, in his opinion ‘the cause of death is most probable intra partum Hypoxia that is shortage of oxygen to the baby’s brain.  It is possible that the baby had infections or congenital abnormalities but as no post-mortem was done, so it could not be confirmed.  Intra-partum Hypoxia sometimes shows itself during labour by slowing of the baby’s heart rate (fetal bradycordia) which is what appears to have happened here and was the reason for the transfer’. 

[7] Although Doctor Buchmann opines that the second plaintiff did not receive optimal attention, he ascribes no causal negligence on the part of the defendant. Resultantly, having regard to the totality of the evidence on record, the second plaintiff has failed to prove the causal negligence on the part of the defendant.  The second plaintiff therefore has failed, on a balance of probabilities, to prove causal negligence on the part of the defendant.  Her claim on this ground alone, must fail.  With regard to the alleged right to rear a child and the quantum of damages suffered, the second plaintiff must also fail.  There is no right recognised in our law as a right to rear a child. Even if there was such a right, the second plaintiff has woefully failed to particularise her damages as is required in terms of Rule 18 to enable this Court to assess such damages.

[8] The reading of the ‘stated case’ seems to faintly suggest emotional shock. However counsel who appeared for the second plaintiff, disavow such a claim.  It is instructive to recall what Faber AJ in Minister of Correctional Services v Mr Lionel Mervin Greenberg case 7309/2004 (GSJ) delivered on 13 November 2009 at page 4, with regard to infringement of Constitutional right, said the following;

‘I believe that constitutional damages will not be awarded simply for the asking.  Much will turn on the circumstances of the case and it seems to me that a grievant who seeks constitutional damages must make out a case therefore in his Pleadings by, at the very least identifying the circumstances upon which it will be contended that an award thereof is appropriate.  To hold otherwise would in my judgment place the opposing party in an invidious position in relation to his obligation to plead issuable in a matter and address the case which is in fact required to meet.  In short, and absent allegations in the grievant’s particulars of claim foundational to the conclusion that an award of constitutional damages is appropriate in the circumstances of the case, the opposing party will not know the scope and ambit of the case which he is required to meet.  He will thus not be able to adequately identify, for the purposes of pleading, the facts and circumstances upon which he might rely in meeting the claim.’

[9] In the present matter, the plaintiffs failed dismally to identify the constitutional right allegedly infringed by the defendant.  In our Constitution there is no right to rear a child as contended for by the second plaintiff.  The desperate attempt by her to locate this right within the right of dignity falls far short of establishing such a right.  This attempt is neither identified in the Pleadings nor in the stated case resulting in the defendant unable to identify the contended right and to deal with it appropriately.

[10] The passionate plea of counsel for the second plaintiff for such a right, is of no help to the second plaintiff.  Counsel’s reliance on decided cases dealing with the right to dignity does not establish the contended right to rear a child.  The cases relied upon by counsel are irrelevant and unhelpful as there is no such right to rear a child in our Constitution.

[11] In conclusion, the plaintiffs’ claim, in my view, is unsustainable.  The claim is neither an acquilian action nor infringement of a constitutional right, which if it was, it could only be located in the Bill of Rights.  There being no such right to rear a child, there can therefore be no infringement of the right entitling the plaintiffs' to damages.  There is, in my view, no cause of action disclosed both in the  particulars of claim or the stated case particularly in that the second plaintiff disavow any claim for emotional shock as a result of the sad episode in this matter.  In the result, the plaintiffs must fail in their claim against the defendant.  The claim deserves to be dismissed.

[12] The following order is made:
1. The plaintiffs' claim against the defendant is accordingly dismissed with costs.

M TSOKA
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG.

COUNSEL FOR THE PLAINTIFF:  Adv Memani

INSTRUCTED BY: Lennon Moleele Attorneys

COUNSEL FOR THE ACCUSED: Attorney G Lekabe

INSTRUCTED BY: The State Attorney

DATE OF HEARING: 13 September 2013

DATE OF JUDGMENT: 17 September 2013