The “unprofessional” conduct of an attorney contributed to the failure of a mother’s medical negligence case against the Eastern Cape Health MEC, a judge ruled last week, describing the lawyer as “falling short of the standard of service expected of an officer of court”.
He advised the woman – who had lodged a claim for negligence damages for her child who was born with cerebral palsy – to sue the attorney for “his unprofessional conduct in this case”.
The mother had successfully instituted legal action against the Eastern Cape Health MEC for the conduct of medical staff who had attended her birthing process at St Barnabas Hospital Cape in 2012.
IOL reports that the MEC was ordered to pay damages as proven consequent “on the hypoxic ischaemic encephalopathy and brain injury” sustained by the child because of the staff’s medical negligence.
According to the judgment, the women had suffered an adverse reaction to a spinal anaesthetic, which severely compromised the blood, and hence oxygen flow to the baby.
However, the department appealed against the decision of the trial court, and the woman’s attorney had not filed papers in time for condonation, leading to it being struck from the roll.
In judgment, Judge Raylene Keightley, noted: “Medical negligence claims linked to cerebral palsy in newborns are increasingly prolific in our courts. They often involve complex questions around negligence and, in particular, causation. The present case is no exception.
“Complicating matters further are the multiple failings on the part of Ms S’ attorney to comply with the relevant … rules regulating the appeal from the trial court to the full court.
“The trial court handed down judgment on 27 August 2020. Leave to appeal was duly filed by Ms S and granted to the full court on 12 November 2021. On 19 November 2021, the notice of appeal was served and filed. This was the last time that the rules governing the appeal were properly adhered to by the attorney, Mr Mjulelwa of Mjulelwa Inc. What occurred thereafter was the serial non-compliance with almost all of the relevant rules by Mr Mjulelwa.”
Attempts to get comment from Mjulelwa were unsuccessful.
The judge said none of the parties had made an application for the hearing of or applied for the date so the appeal could be heard within in its deadline of 60 days and so the appeal lapsed.
“Shockingly, he blamed his abject failure to comply with the rules on the fact that he had opened a branch office in East London at the time that the appeal process began.
“He left the appeal in the hands of a candidate attorney in the Mthatha office – and had not been in that office to oversee either the candidate attorney or the file. As if this were not enough, he also relied on the fact that this was the first appeal that his office was attending to as a reason for the ‘oversight’ in not filing security.”
The court described Mjulelwa’s approach to condonation as “fallacious, misguided, disingenuous and as revealing a disquieting history indicative of a reckless disregard for the rules of court”.
“His conduct … is both flagrant and gross. The failings were multiple…his explanations, such as they were, served to aggravate, rather than mitigate his failings,” the judge added.
IOL article – Supreme Court critiques attorney’s conduct in cerebral palsy case (Open access)
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