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24 May 2017 13:42 (South Africa)
Opinionista Tony Beamish

When the Constitutional Court blows it

  • Tony Beamish
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    Tony Beamish

    Tony Beamish is a senior journalist at Carte Blanche. He writes in his personal capacity.

The Constitutional Court of this fair Republic is undoubtedly the most significant post-1994 institution. It is the one court whose judgments are anxiously awaited and are afforded weight by the general populace. What it says matters to South Africans. This is the way it should be. And yet...

We saw this with the ConCourt’s Nkandla judgment. Uber drivers I travelled with that day had their radios tuned to the live broadcast, anxiously awaiting the outcome. People were massed outside the court hoping for order, integrity, honesty and good governance to be restored to this country.

For a brief moment in time the judgment of that court gave us all hope – hope that South Africa could fulfil its potential, hope that the kleptocrats would be driven out (not in a black BMW but in a Black Maria). The fearlessness of that judgment restored, albeit fleetingly, our belief that South Africa is exceptional.

Where in the world has a court shown such fearlessness in taking its government to task? The English and Americans are now resigned to secret courts, sycophantically rubber-stamping decisions of their bureaucrats. The court restored our belief that honesty, integrity and the rigorous application of values was the only way. This court is our custos bonorum (keeper of the common good).

Should its judgments be lazy and indifferent, a terrible price would be extracted. This court dare not lower its guard.

Can medical negligence beget judicial negligence?

Regrettably, this happened in a judgment where it missed its moment in history to enforce good governance. We are talking about its recent judgment in Member of the Executive Council for Health, Gauteng v Vuyisile Eunice Lushaba.

The trial, in the Johannesburg High Court in 2014, presided over by Acting Judge Ronèe Robinson, resulted in a costs order de bonis propriis against the state officials who elected to defend the indefensible.

Menzi Lushaba, now 16, suffers from spastic quadriplegic cerebral palsy as a consequence of the indifference of the staff at the Charlotte Maxeke Johannesburg Academic Hospital to the plight of his mother, Eunice. (The jury is out regarding whether the appellations “academic” and “hospital” are apt.)

Menzi suffers from his condition because of the failure of the staff at the hospital to act on Eunice’s condition, called abruptio placentae, from which his mother was suffering when she entered the hospital in an advanced state of pregnancy. The condition is extremely dangerous and, unless the baby is delivered without delay, will almost certainly lead to physical or mental impairment.

Lushaba arrived at the hospital at midday with her unborn baby having a heartbeat of 150. Menzi was delivered, at 14:20, with a heart rate of around 100 – on death’s door. The flow of oxygen had been stymied. Dr Arend van den Heever, testifying for Lushaba, said, had he been in charge, Eunice would have been on a stretcher within five minutes, making her way to an operating theatre.

In the High Court

At the hearing the MEC Qedani Mhlangu had no defence – and offered none. Her expert, Dr John Mashamba, agreed with Dr van den Heever that Eunice’s condition was extremely serious and that swift action might have saved Menzi. It transpired that Mashamba had opined without studying any antenatal or labour records or even Lushaba’s own expert reports. He provided little more than a one-pager that explained this condition in general terms, emphasising that abruptio placentae was an inherently dangerous condition.

On the strength of this report the MEC wasted hundreds of thousands in taxpayers’ money, defending a case it was bound to lose. Her officials denied being in possession of any documents when specifically asked to produce them for trial purposes. They went on oath to say that they had nothing of relevance. Nevertheless, when called upon to explain the decision to defend the claim, they went on oath to confirm that they were required to obtain the relevant documents and to consult with the doctors and nurses before taking a decision to defend the claim. Mutually destructive versions under oath were all they could proffer. There was no attempt to explain why they had testified earlier that they held no relevant documents when, later on, they claimed that they had studied those very documents to determine whether they should defend the claim. They did not explain the failure to brief Dr Mashamba with the relevant records, such as antenatal records.

(In the absence of these documents the matter should never have been defended.)

Officials to personally pay the costs

Judge Robinson advised the MEC that the court was of a mind to hold the relevant officials personally liable for Eunice’s legal costs, and that she should identify them and her reasons for doing so. The Judge followed appeal court precedent by calling upon the officials to state under oath why they should not personally cough up. The officials went on oath to explain their decision to defend the claim. They admitted that there was a procedure in terms of which they had to obtain the hospital records and that they had not done so. They decided to barrel ahead regardless of the consequences for justice.

Having studied and considered their explanations in depth, the court concluded that the decision to defend was reckless. It must be emphasised that the court did not blindly accept any identification by the MEC. It was abundantly clear from the affidavits filed by the officials that there were no grounds upon which they could reasonably have defended the claim. They did not even have the documents necessary to enable them to decide whether there was a defence and were reckless about briefing their expert in the absence of relevant documents.

The explanations revealed no grounds on which to defend the claim. Having considered the explanations (or the lack thereof) Judge Robinson decided that they – and not the taxpayer – would have to pay Eunice’s legal costs.

Read their explanations here and here and here and here.

Read Judge Robinson’s judgment on the merits.

Read Judge Robinson’s judgment on the punitive costs.

The Supreme Court of Appeal (SCA)

MEC for Health asked Judge Robinson for permission to appeal the court’s finding but she refused leave to appeal to the SCA.

Undeterred, and obviously unashamed, the MEC petitioned the SCA twice, arguing that Judge Robinson had erred on the merits and on her punitive costs order. (The first time was an ordinary petition and the second attempt alleged exceptional circumstances.) Three judges at the SCA had scoured the trial record with a fine-toothed comb and twice rejected the suggestion that Judge Robinson had misdirected herself.

Still undeterred, the MEC headed for Constitution Hill In Braamfontein.

Constitutional Court

The Constitutional Court, consisting of 11 Justices, disagreed with the three judges before them who had considered the trial record.

The Constitutional Court’s judgment is puzzling. It considered the costs order de bonis propriis “unusual” and questioned the propriety of Judge Robinson asking the MEC to identify the officials in her department who might be blameworthy.

Judge Robinson’s decision to hold them accountable was not made on the strength of the identification of individuals by the MEC, but on their responses. If any of the 11 Justices had had regard to the trial court record, they would have seen that, once the MEC had named the purported culprits, Judge Robinson had afforded each one of them a fair hearing. The judge closely scrutinised their affidavits. The Constitutional Court judgment is puzzling in that it suggests that an order de bonis propriis could only be made against a party joined to the proceedings. But that is not how these orders are made. They are made after an official had been afforded an opportunity of being heard, as happened in this case.

Judge Robinson could not have known the identity of the relevant officials, which is why she ordered the MEC to identify them. Their versions were weighed by the court and found to be wanting – and contradictory of what they had previously stated under oath. The court also found that, having made a decision to proceed to trial in the absence of crucial documents, the officials in question were guilty of wasting taxpayers’ funds. They could not rationally have made a decision to proceed. Judge Robinson did not confine herself to the identification of the officials by the MEC, but considered their versions and, having done so, found them, on their own versions, to be liable.

The Justices slammed Judge Robinson saying that she: “...sought to apply inapposite implements to a profound structural problem. The quest to bring accountability to those who are responsible for the tragic proliferation of damages claims, and the seeming morass of never-ending litigation amid which deserving claimants are sometimes made to suffer, must take a different form.”

The justices failed to explain why and when this “different form” should take place. They also left hanging why the time-honoured mechanism of a costs order de bonis propriis was no longer appropriate and created confusion about the status of orders de bonis propriis.

In so doing, the justices of our apex court have indemnified incompetent bureaucrats, and threatened the revolution that the people of this country were promised in 1994. Not only have they lost the golden opportunity to send out a strong message to state employees who cannot be bothered to do their jobs properly, but, it seems to me, failed to have regard to solid legal precedent and (dare I say it) failed to read the Lushaba trial record. DM

Tony Beamish is a senior journalist at Carte Blanche. He writes in his personal capacity.

  • Tony Beamish
    tony-beamish.jpg
    Tony Beamish

    Tony Beamish is a senior journalist at Carte Blanche. He writes in his personal capacity.

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