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.

Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 61/14 Western Cape Division, Cape Town, 24 Feb. 2012 and 12 Feb. 2013
SCA, 24 Mar. 2014
16 Sep. 2014 24 Mar. 2015 Madlanga J  8-1

By Duncan Wild on 27 March 2015

In this case, the Constitutional Court held that entities that engage in lending that falls outside the scope of the National Credit Act 34 of 2005 (“NCA“) (e.g. to entities which exceed the value thresholds set out in the Act) do not need to be registered as credit providers under the NCA, and a failure to register does not invalidate credit agreements outside the scope of the Act.  In addition, the Court reversed the current position regarding how the common law in duplum rule applies when litigation commences. The position before this case being that interest may start running again if the creditor institutes action. The Court, however, found that commencing proceedings will not have an effect on the in duplum rule, and interest may not run again. Interest will only run again on a judgment, which effectively is a new debt which restarts any in duplum calculation. Continue reading

H v Fetal Assessment Centre

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 74/14 Western Cape Division, Cape Town, 24 Apr. 2014 28 Aug. 2014 11 Dec. 2014 Froneman J  Unanimous

By Duncan Wild on 11 December 2014

This is a case seeking to expand the South African common law to recognise a claim for “wrongful life”, or what the applicant calls “wrongful suffering”.  Historically, such claim have arisen where a medical professional is alleged to have failed to inform parents that there is a high risk that a foetus may be born with abnormalities, and had the parents been informed, they not have permitted the foetus to be born.  The applicant sought to cast the claim as one for “wrongful suffering”, seeking to emphasise that it is not claim with the basis that it would have been better for the child not be born, but that in failing to give the accurate information, the physician caused the suffering of the child once it was born. At present neither of these claims exist in South African law, and the applicant sought to have such a claim recognised.

The Constitutional Court did not recognise the claim for “wrongful life”, but indicated that there was the potential for such a claim in South African law, and so upheld the appeal against the High Court’s dismissal of the claim.  The Constitutional Court, however, found that the parties had not put argument before it on how the constitutional protection for the rights a child impacted the claim, and that it would not develop the common law to recognise this claim without all the facts before it.  Therefore, the Constitutional Court indicated that the applicant could amend their papers and reinstitute the case in the High Court which could then consider whether a valid claim existed and whether the applicant met the requirements for that claim.

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National Commissioner of the South African Police Service v Southern African Litigation Centre and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 2/14 North Gauteng High Court, 12 May 2012
SCA, 27 Nov. 2013
19 May 2014 30 Oct. 2014 Majiedt AJ  Unanimous

On 30 October 2014

The central question in this case is the extent to which the South African Police Service (SAPS) has domestic and/or international law obligations to investigate alleged crimes against humanity, including torture, committed by Zimbabweans in Zimbabwe.  The High Court and the Supreme Court of Appeal (the SCA) found that, on the facts of this particular case, SAPS were indeed obliged to investigate these allegations.

The Constitutional Court in a unanimous judgment dismissed the appeal by the SAPS and ordered SAPS to investigate the alleged crimes.

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Country Cloud Trading CC v MEC for Infrastructure Development, Gauteng

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 185/13  Gauteng Local Division, 8 Aug. 2012
SCA, 26 Nov. 2013
20 May 2014 3 Oct. 2014 Khampepe J  Unanimous

By Duncan Wild on 3 October 2014

The primary question in this case was whether a third party can bring a claim against the party to a contract (where the claimant is not a party to the contract) as a result of loss suffered by the third party caused by the intentional repudiation of the contract.

The Constitutional Court, in a unanimous judgment by Justice Khampepe dismissed the appeal, finding that that cancellation of the contract in question was not wrongful as it did not fit within the existing law concerning interference with a contract, and nor was it necessary to recognise such a claim.

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Marthinus David de Klerk v Griekwaland West Cooperative CC

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 187/13  Northern Cape Division, 28 Nov. 2011
Northern Cape Division (Full Bench), 30 Aug. 2013
13 May 2014 19 Jun. 2014 Van der Westhuizen J  Unanimous

By Michael Mbikiwa on 25 June 2014

The central legal question in this case is whether a debt restructuring proposal, purportedly sent to a creditor in terms of section 86(1) of the National Credit Act, is an act of insolvency for the purposes of section 8(g) of the Insolvency Act. However, in a unanimous judgment by van der Westhuizen J, the Constitutional Court (the “Court”) refused the application for leave to appeal without needing to reach this central question. Continue reading

Allpay Consolidated Investment Holdings (Pty) Ltd and Others v The Chief Executive Officer of the South African Social Security Agency and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 48/13 North Gauteng High Court, 28 Aug. 2012
SCA, 27 Mar. 2013
10 Sep. 2013


11 Feb. 2014

29 Nov. 2013


17 Apr. 2014

 Froneman J.  Unanimous

By Duncan Wild and Mzukisi Kota

AllPay Consolidated Investment Holdings (Pty) Ltd (“Allpay“) bid for a tender from the South African Social Security Agency (“SASSA“) to administer the national social grant system worth R10 billion, but the tender was awarded to Cash Paymaster Services (Pty) Ltd (“CPS“).  Allpay then challenged the decision in the North Gauteng High Court (“NGHC“) on the basis of alleged flaws in the tender process, including the composition of the Bid Evaluation Committee, the failure of CPS to submit separate provincial bids, and the failure to assess CPS’s BEE partners capacity to perform their obligations.  The NGHC accepted Allpay’s challenge, but the SASSA appealed to the Supreme Court of Appeal (“SCA“).

The Constitutional Court unanimously found the tender unlawful, but in view of the potential ramifications requested further submissions on an appropriate remedy.

In a second judgment on remedy the Court, an another unanimous decision authored by Justice Froneman, found that a new tender process should be carried out, but that in the mean itme Cash Paymaster was to continue providing the services in view of the constitutional and contractual obligations to maintain a workable payment system.

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Minister of Local Government, Environmental Affairs and Development Planning Western Cape v The Habitat Council and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 117/13 Western Cape High Court, 14 Aug. 2013 10 Feb. 2014 4 Apr. 2014  Cameron J  Unanimous

By Duncan Wild 12 April 2014

This matter pertains to the validity of section 44 of the Land Use and Planning Ordinance (“LUPO“) in so far as it allows the provincial government of the Western Cape, through the applicant, the Minister of Local Government, Environmental Affairs and Development Planning, Western Cape (“Minister“), to hear appeals from the decisions municipalities on certain land use planning decisions.  The key question in the matter is the constitutional inter-relationship between the provincial and municipal spheres of government and their powers in relation to land use planning.  The potential importance of the Constitutional Court’s decision in this matter lies in the fact that in the relationship between provincial and municipal power.

The Constitutional Court, in an unanimous decision authored by Cameron J, confirmed the High Court’s finding of invalidity of section 44, however, but not in its entirety. We set out the background to the matter and the High Court’s decision below.

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Mdodana v Premier of the Eastern Cape and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 85/13 Eastern Cape High Court, 13 Jun. 2013 13 Nov. 2013 25 Mar. 2014  Dambuza AJ  Unanimous

By Duncan Wild on 12 April 2014

In this case certain sections of the Pounds Ordinance, no 18 of 1938 (“the Ordinance“) which deals with the impoundment of livestock are challenged on various grounds, including its violation of the rights to equality, against the arbitration deprivation of property, to just administrative action and to the right of access to courts.

The Ordinance provides for the establishment of municipal pounds and the appointment of poundmasters. It provides that stray animals found on private property may be sent by the owner of that property to a pound, and for the impoundment of unattended animals found in public places.

The High Court found the Ordinance to be invalid, and the decision went for confirmation to the Constitutional Court.  The Constitutional Court, however, in a unanimous decision authored by Dambuza AJ, found that the as the Ordinance did not amount to a “provincial act”, the High Court’s finding of invalidity did not require confirmation by the Constitutional Court to be effective.  In the Eastern Cape then, the High Court’s order of invalidity stands, but not in the Western Cape and Northern Cape, the Constitutional Court however ordered that its decision be delivered to the Premier’s of the Western Cape and Northern Cape.

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