The recent Supreme Court of Appeal ruling relating to unconscious or severely incapacitated individuals is expected to have significant implications for medico-legal claims in similar cases, say legal experts.
Herold Gie Attorneys director Pierre le Roux and candidate attorney Charlise Finch say the decision in MEC for Health, Gauteng Provincial Government v AAS obo CMMS, establishes that individuals in a permanent vegetative state, unaware of pain or loss of life’s amenities, are not entitled to general damages for pain, suffering or loss of enjoyment of life.
“This decision could have major implications for families of individuals who are in a vegetative state, severely brain-injured or unable to experience pain or loss of life’s enjoyments,” Le Roux and Finch reports MedicalBrief.
The case – reported in MedicalBrief in June 2025 – involved a minor child, AAS, born in October 2015 and diagnosed with cerebral palsy due to neurological injuries suffered during labour at Tshwane District Hospital and Steve Biko Academic Hospital.
The cerebral palsy was complicated by cortical visual and hearing impairments, intellectual disability, intractable uncontrolled epilepsy and chronic dislocation of the left hip. The child – unable to sit, crawl, walk or speak – has a life expectancy of 18 to 20 years.
The Gauteng High Court awarded R15 530 576, including R2.2m for general damages, based on “twilight moments” of responsiveness where the child endures constant pain.
On appeal, the SCA overturned the R2.2m award for general damages. The majority judgment held that unconscious claimants, unaware of pain or loss of amenities, do not qualify for such compensation.
“The majority judgment of the SCA focused on whether the child’s lack of awareness of his injuries was relevant when assessing general damages,” Le Roux and Finch write.
Expert medical evidence showed the child was unaware of pain and unlikely to ever become aware, contradicting the High Court’s finding of brief conscious moments.
“The SCA carefully examined the child’s condition. It found that he has severely reduced mental and physical abilities, cannot care for himself and, according to expert reports, is unaware of his pain,” the authors note.
The SCA reasoned that general damages aim to compensate for experienced harm.
“It ruled that because general damages are meant to compensate for pain and suffering and this child is not aware of either, such compensation is not appropriate,” Le Roux and Finch observe. Since the child was injured at birth and never experienced life's pleasures, he cannot grieve their loss.
The court also held that damages must benefit the claimant directly, not others, and unconscious individuals cannot appreciate such awards, the authors add.
“This ruling is significant in SA law as it provides clarity on whether general damages may be awarded to unconscious or severely incapacitated people,” Le Roux and Finch write.
The precedent limits general damages in medico-legal claims involving profound neurological impairments, particularly cerebral palsy cases, and is likely to shape future litigation by requiring clear evidence of specific losses in court papers.
Maladministration and collapse
The ruling comes as Dr Haseena Majid, public health programme director at the NGO Usawa for Learning and Healing, said inappropriate care was no longer the exception but increasingly the norm in some parts of the public health system.
The ballooning cost of medico-legal claims, now amounting to billions of rands across the country, frequently arose because of maladministration, poor governance and a collapse in leadership.
“Funds lost to legal claims divert critical resources away from essential service delivery,” said Majid, a fellow of the Atlantic Institute in Oxford, Britain.
“Maternal and child health is a national priority. South Africa is fortunate to have some of the best medical minds and highly committed clinical teams. What we urgently need is to improve the capacity and quality of supervisory functions, especially at the district health management level, so that frontline staff are better supported and accountability is restored.”
National Health Department spokesperson Foster Mohale said that medical professionals most frequently targeted in litigation were obstetricians and gynaecologists, neurosurgeons, spinal surgeons and orthopaedic surgeons.
He said the department was considering greater use of mediation in an effort to reduce the number of cases that go to court.
In a response to a parliamentary question from the DA earlier this year, Health Minister Aaron Motsoaledi said hundreds of medico-legal claims are filed every year, particularly in the worst-hit Eastern Cape, placing increasing pressure on health budget.
In November last year, he noted that just 23 health officials had been trained in mediation across the country. Only Gauteng and Mpumalanga had implemented mediation so far.
Duct tape for C-section
In the most recent medico-legal case in the Eastern Cape, staff at a clinic found an incision from a C-section performed at Uitenhage Hospital had turned septic because the wound gauze had been stuck in place with duct tape, reports the Sunday Times.
First-time mother Anke Young (28) is now seeking legal advice with a view to taking action against the Health Department.
For 10 days after giving birth, Young had been unable to hold or care for her newborn daughter due to excruciating pain from her C-section wound.
Only when she went to the clinic to have her dressing changed did nurses see the wound gauze had been stuck in place with duct tape and the incision had become infected.
Young, from Kariega, gave birth on 5 July at Uitenhage Provincial Hospital, which serves around 500 000 people from the Nelson Mandela Bay area, and is under scrutiny for what some claim is systemic neglect.
Young said everything seemed fine when she was discharged and told to return to the clinic on 10 July for wound cleaning. But shortly after returning home, she began experiencing persistent pain.
“I thought it would go away, but it didn’t. What upset me most was that I couldn’t even care for my baby. When I went to the clinic, the nurses were shocked to find my wound was covered with duct tape,” she said.
The clinic referred her back to the hospital, where she claims she was made to sit upright in a chair for four hours before receiving antibiotics.
“No surgical inspection or further care was offered on that day,” she said.
After mounting public pressure and calls from local activists, Young was admitted for remedial treatment last week. She had a wound debridement, in which dead or infected tissue was removed.
“They also restitched the operation site, and the wound was cleaned again the next day,” Young said.
She has to visit the clinic twice weekly for wound care, and in a fortnight will return to hospital to have her stitches removed.
Her case is not unique. A 16-year-old who gave birth at about the same time at the same hospital said her baby’s umbilical stump was tied off with a thread, rather than the standard medical clamp.
General health standards require the stump to be kept clean with gauze and water, and it typically falls off within two weeks.
“My baby was constantly showing signs of distress and her stomach became swollen. When I went back to the hospital, they gave me antibiotics and told me her file was missing,” the young mother said.
She said she complained to nurses but was not given proper guidance. “I didn’t know which procedure to follow. I showed the nurses that my baby’s stomach was swollen. One said it was nothing to worry about and gave me antibiotics,” she said.
She added that the baby’s stomach remains swollen around the umbilical cord, which is when she turned to community activists for help.
Like Young, the teen is seeking legal advice.
The Uitenhage Provincial Hospital and the Eastern Cape Health Department did not respond to requests for comment.
System failing them
Kayzel Forbes, an advocate for better healthcare services in the Uitenhage area, said Young’s case was a small victory but many other patients had not been as fortunate. She said she was deeply concerned by the treatment of the two mothers, and that the hospital had failed them.
There was a clear shortage of staff at the hospital, Forbes said. “Some staff have a terrible attitude, and the service is really poor.”
Nor had the hospital kept pace with the increased growth in the population it serves, she added, with no expansion or improvements having ever been carried out.
In another case, a woman (31) who underwent a Caesarean section at Witbank Provincial Hospital two years ago has alleged it was “botched” and that it was the cause of her now numerous related health issues, reports The Citizen.
Mpumalanga Health said the case is sub judice.
Thabile Choma from Emalahleni said she was eight months pregnant when she was admitted for the emergency C-section – due to high blood pressure – on 21 November 2023, and that she assumed all would go well, as with her first, previous C-section.
However, she told the Middelburg Observer, the procedure took more than an hour, and afterwards, the doctor allegedly said: “That was a hell of an operation. If it were up to me, I would recommend you never have children again.”
The next day, Choma said she started experiencing unusual pain. On the third day, when her mother arrived to fetch her, she was crying because the pain had intensified. A matron gave her pills, but she was still discharged
Her pain worsened when she got home, and she couldn’t walk. She was taken back to casualty, given medication and told nothing was wrong.
She was in and out of casualty three time for the pain before being admitted, and one doctor allegedly said the reason her operation did not go well was because she had “a big belly”.
Later, she said she noticed what looked like a boil while she undressed her wound. She said pus was oozing out from between the scar from her previous (2018) C-section and the newest wound.
She claimed doctors had inadvertently stitched part of her intestines to her C-section wound.
A specialist then explained that she would need to be operated on again, and warned her that she was likely to walk out of surgery with a stoma bag and a big scar.
She said she was lucky to discover that she wouldn’t require a stoma bag when she left the operating theatre.
But, Choma alleges, the stitches burst shortly after surgery, and she was discharged with a septic wound.
Her family then took her to Emalahleni Private Hospital. She said she now suffers from multiple health-related issues due to the botched C-section.
Health media spokesman Christopher Nobela said: “It is unfortunate that the informer did not fully disclose facts regarding the patient’s condition. In respect of doctor-patient confidentiality, and due to the matter being sub judice, the department is unable to comment further.”
Sunday Times article – Mom says hospital staff used duct tape on her wound (Restricted access)
Middelburg Observer – Health department cites confidentiality in C-Section controversy
See more from MedicalBrief archives:
SCA overturns High Court ruling in R7m negligence case
Mpumalanga Health to pay R15.7 for child blinded at birth
Eastern Cape MEC hit with another negligence claim
Eastern Cape slashes medico-legal claims but still in the red
Patients suffer as hospitals battle bed shortages, power and water cuts