NVM obo VKM v Tembisa Hospital and MEC for Health and Social Development, Gauteng Province

Neutral citation: NVM obo VKM v Tembisa Hospital and Another [2022] ZACC 11


Case No.Lower Court JudgmentsHearing DateJudgment DateMajority AuthorVote
CCT 202/20 Gauteng Local Division, 19 Oct 2017
Gauteng Local Division, 20 Sep 2019
17 August 202125 March 2022Rogers AJ6 – 4

A child, VKM, suffered a serious brain injury that manifested in a form of cerebral palsy. The brain injury was caused by severe oxygen deprivation for a sustained period shortly before the baby was delivered.

VKM’s mother instituted a claim against Tembisa Hospital at which VKM was born, as well as the Gauteng Department of Health, for damages. In the Gauteng Local Division, Johannesburg of the High Court t, the claim was successful, but this claim was overturned on appeal by a Full Court of that Division.

VKM’s mother appealed to the Constitutional Court. The sole issue in the appeal was whether the conduct of hospital staff at Tembisa Hospital had caused the injury to VKM. The Hospital and Department conceded that the conduct in question, the failure to monitor foetal heart beat for approximately an hour and a half between 03h15 and 04h45 was negligent. At 04h45, VKM’s mother was examined and it was determined that the baby’s head was too large for the mother’s pelvis. A decision was taken to conduct a caesarean section. The caesarean did not take place and VKM was delivered naturally at 05h10.

VKM suffered an acute profound ischemic injury to the brain in the later stages of labour, known as hypoxic ischemic encephalopathy (“HIE“). The HIE developed into cerebral palsy.

As negligence was not disputed, the only issue in the High Court was causation.

The High Court found that the negligent failure to monitor the foetal heart beat meant the nursing staff were unable to identify signs of foetal distress, as they would probably have done with proper monitoring, and this negligent failure resulted in the denial of the correct treatment, and hence caused the brain injury.

On appeal, the Full Court of the High Court, found the court below had misapplied the test for factual causation. The Full Court considered the correct question to be: if there had been adequate monitoring, and the warning signs picked up, would there have been enough time to take measures that would have avoided the brain injury. The Full Court held that there would not have been sufficient time to take measures that would have avoided the brain injury, even if there has been proper monitoring, and so upheld the appeal.

In the Constitutional Court, the matter was determined on the question of appealability and not on the merits.

Rogers AJ, writing for the majority, held the leave to appeal should be refused. Justices Madlanga, Mhlantla, Theron and Tshiqi concurred in this judgment. Deputy Chief Justice Zondo, as he then was, wrote a separate judgment but also agreed with judgment of Rogers AJ. Justice Majiedt wrote a minority judgment in which Acting Justices Madondo, Pillay and Tlaletsi concurred.

The majority decision found the the appeal was only on a question of fact – whether or not the negligent conduct had, as a matter fact, caused VKM’s injury.

The minority judgment held that the question was a constitutional one because it implicated the rights to healthcare protected in s 27 of the Constitution and the obligation on the state to respect, promote and fulfil the rights in the Bill of Rights under s 7 of the Constitution. The minority also held that the s 34 right of access to court’s was violated when the Full Court purportedly relied on evidence from another similar case, and finally the minority held that the previous decision in Lee v Minister for Correctional Services [2012] ZACC 30; 2013 (2) SA 144 (CC) which concerned the test for factual causation required clarification.

The majority however pointed out in respect of each of these grounds that:

  1. It was not in dispute that VKM and his mother had rights to healthcare under s 27 and the State was obliged to respect, promote and fulfil those rights. Nothing in this case however turned on an interpretation or application of those rights, which turned only the factual question of causation.
  2. The Full Court had not in fact imported facts from another court’s judgment, according to the majority, only referring to that court’s decision on a similar question. The reliance on this case also did not change the outcome of the Full Court’s decision, which the majority agreed, was wrong because it began its causation enquiry from the incorrect factual premise (whether there was sufficient time to take corrective measures from the time the alarm was in fact raised at 04h45, and not whether applying the correct monitoring would have resulted in the alarm being raised earlier). The fact that another court had taken a view on how long it would take to perform a successful caesarean which was referenced by the Full Court would not have corrected this error. The majority did however criticise the Full Court for adding confusion to its reasoning through its reference to the factual findings of another court.
  3. The test for causation in Lee was not relevant to this matter, it had not been relied on or applied by the High Court or Full Court, and indeed the minority in the Constitutional Court had applied the conventional test as well. There was therefore no call to clarify the decision in Lee.

For these reasons the majority found the matter did not raise a constitutional issue or arguable point of law of general important and therefore did not fall within the Constitutional Court’s jurisdiction. Leave to appeal was therefore refused.

Oral Argument

The Constitutional Court jugment and lower court judgments

Judgment of Keightley J in the High Court

Judgment of the Full Court

Corruption Watch NPC v President of the Republic of South Africa

Posted on 13 August 2018

The judgment, delivered on 13 August 2018, is available for download here: Judgment – CCT 333-17 Corruption Watch NPC v President of the Republic o….

Former President Zuma, NDPP Shaun Abrahams and the National Prosecuting Authority sought leave to appeal against the High Court’s order declaring the agreement between Minister of Justice and Correctional Services and Mr Nxasana and the payment of a settlement amount of R17.3 million which resulted in the termination of Mr Nxasana’s term of office as NDPP invalid, as well as declaring the appointment of Mr Abrahams invalid.

The former President appealed against the High Court’s order directing the Deputy President to appoint a new NDPP while Mr Abrahams and the NPA appeal against the setting aside of Mr Abrahams’ appointment.  In a separate application which was heard together with the confirmation proceedings, Mr Nxasana seeks leave to appeal against the High Court’s refusal of condonation.  Corruption Watch and Freedom Under Law seek the reinstatement of Mr Nxasana.

The majority of the Constitutional Court found that the agreement that terminated Mr Nxasana’s term as NDPP was invalid and so was the appointment of Mr Abrahams. The majority found that the President must now appoint a new NDPP, whilst the minority would have found that Mr Nxasana should have resumed in the position.

Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others

Case No. Lower Court Judgments Hearing Date
CCT 40/15 Application for direct access 20 Aug. 2015

By Duncan Wild on 11 July 2015

This is is an application for direct access to the Constitutional Court claiming that Parliament and the Provincial Legislatures failed to comply with their constitutional obligation to facilitate public involvement before passing the Restitution of Land Rights Amendment Act 15 of 2004 (“the Amendment Act“).  The applicants are therefore seeking an order that the Amendment be declared invalid.

The Amendment Act primarily re-opens the opportunity to lodge land claims until 30 June 2019. It also introduces offences related to lodging false claims, and makes changes to the to the composition of, and appointment of judges to, the Land Claims Court, amongst other things.

Toyota SA Motors (Pty) Limited v Commission for Conciliation Mediation and Arbitration and Others

Case No. Lower Court Judgments Hearing Date
CCT 228/14 Labour Court, 9 Jul. 2014 18 Aug. 2015

By Duncan Wild on 5 July 2015

The issues for determination in this case have been defined by the Court in directions issued on 18 February 2015, as follows:

  1. whether an order for reinstatement of an employee is competent in circumstances where such employee resigned prior to the grant of such order;
  2. whether the dismissal of a review application by the Labour Court, on the basis that the record of the arbitration proceedings is incomplete, is a denial of the applicant’s right to just administrative justice;
  3. who bears the onus or obligation to produce a proper and complete record of proceedings in anticipation of the adjudication of review proceedings; and
  4. what the consequences in review proceedings are when the Commission for Conciliation, Mediation and Arbitration (CCMA) or the parties to the dispute are unable to produce a proper and complete record of the proceedings.


Mathale v Linda and Another

Case No. Lower Court Judgments Hearing Date
CCT 22/15 Gauteng Division, 2 Oct. 2014 13 Aug. 2015

By Duncan Wild on 5 July 2015

The issue for determination in this case is whether an order in terms of section 78 of the Magistrates’ Courts Act 32 of 1944 (allowing the execution and enforcement of an order of a Magistrate’s Court compelling eviction pending an appeal against that order), particularly where the main order is an order of eviction, is appealable, and if whether the enforcement of the eviction in this case should be set aside.

Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Limited and Another

Case No. Lower Court Judgments Hearing Date
CCT 211/14 Gauteng Local Division, 28 Mar. 2014 11 Aug. 2015

By Duncan Wild on 4 July 2015

The matter involves a determination of whether the holder of a petroleum products licence can be evicted from the property at which it holds the licence.  Continue reading

Applicants for Constitutional Court Vacancy

On 9 July 2015, the Judicial Service Commission will interview candidates to fill the vacancy on the Constitutional Court left when Justice Skweyiya retired in February 2014.

The candidates are:

  1. Judge Nonkosi Mhlantla, whose application can be viewed here.
  2. Judge Dhayanithie Pillay, whose application can be viewed here.
  3. Judge Leona Theron, whose application can be viewed here.
  4. Judge Zukisa Tshiqi, whose application can be viewed here.

A brief overview of the candidates is provided below. Continue reading

Mashongwa v Passenger Rail Agency of South Africa

Case No. Lower Court Judgments Hearing Date
CCT 3/15 Gauteng Local Division, 1 Oct. 2013
SCA, 28 Nov. 2014
6 Aug. 2015

By Duncan Wild on 30 June 2015

The case involves whether the Passenger Rail Agency of South Africa (“PRASA“) fulfilled its statutory and constitutional duties as an organ of state to take reasonable measures to provide for the safety of passengers, in particular, Mr Irvine Mashongwa, and in particular, if it did fail to take such measures, was that failure causally connected to an attack that Mr Mashongwa suffered whilst travelling on a train operated by PRASA.

Continue reading

Acting Justices at the Constitutional Court

Justices Ray Zondo and Johann van der Westhuizen are on long leave from 1 February to 31 May 2015.The vacancy created by the retirement of Justice Thembile Skweyiya has not yet been filled.

Justices Zukisa Tshiqi, Justice Leona Theron of the Supreme Court of Appeal, as well as Judge-President Mahube Betty Molemela of the Free State High Court have been appointed as Acting Justices of the Constitutional Court until 31 May 2015.

The current bench, until 31 May 2015 is made up of Chief Justice Mogoeng, Deputy Chief Justice Moseneke, Justices Cameron, Froneman, Jafta, Khampepe and Nkabinde, as well as the three Acting Justices.

JSC Advertises Judicial Vacancy on the Constitutional Court

The Judicial Service Commission has invited nominations to fill the vacancy of a Judge on Constitutional Court following the retirement of Justice Skweyiya in May 2014.

Nominations to fill the post must be submitted by 24 April 2015.

For more details see the advertisement here.