In the recent Supreme Court of Appeal judgment in MEC for Health of the
Gauteng Provincial Government v CBM (1482/2024) [2026] ZASCA 80 (28 May 2026), the court was required to determine whether the medical staff of a public hospital had been negligent in their treatment of a patient who suffered a severe post-partum haemorrhage (PPH) during a caesarean section, ultimately necessitating a total abdominal hysterectomy. The court also considered whether the absence of the patient's medical records could, in itself, constitute evidence of negligence.
The respondent, Ms CBM, who was more than 34 weeks pregnant at the time, presented at Dr George Mukhari Academic Hospital on 23 April 2016 after her membranes had ruptured. A caesarean section was performed the following morning, during which she suffered a life-threatening PPH. An emergency total abdominal hysterectomy was performed, resulting in the permanent loss of her reproductive capacity.
She subsequently instituted an action against the appellant, the MEC of Health, seeking damages on the basis that the medical treatment she had received was substandard and that she had not been counselled following the procedure. Most of the medical records relating to her admission and treatment were unavailable and could not be located despite a diligent search, as confirmed in an affidavit by the hospital's senior clinical executive. The High Court found that the hospital had been negligent, relying on the maxim res ipsa loquitur (facts speak for themselves) and drawing an adverse inference against the appellant arising from the missing medical records.
The Supreme Court of Appeal upheld the finding of liability but on materially different grounds. It accepted the appellant's expert evidence that no culpable delay in treatment had been established. The court cautioned against relying on the maxim res ipsa loquitur in medical negligence cases, particularly where the underlying facts have not been established and expert opinions are speculative. The court explained that the maxim forms part of the process of inferential reasoning used to evaluate conflicting or contradictory evidence in determining whether a particular factual inference should be drawn. It is neither a presumption of law nor a presumption of fact.
The court further held that the absence of the medical records affected both parties equally and should therefore have been treated as a neutral factor. It was accordingly inappropriate to draw an adverse inference against the hospital solely because the records were missing.
Instead, the court found that the most probable cause of the PPH was a mistake made during the operation, a matter falling peculiarly within the knowledge of the operating surgeons. In those circumstances, less evidence was required from the plaintiff to establish a prima facie case of negligence.
Taken together, these considerations placed an evidentiary burden on the appellant to adduce rebuttal evidence. The appellant failed to discharge that burden by not calling the operating surgeons to testify, despite there being no suggestion that they were unavailable to do so.
The judgment serves as a timely reminder that, in medical negligence litigation, what is not said, and who is not called to testify, can be just as significant as the evidence placed before the court. The res ipsa loquitur maxim is not a shortcut to establishing negligence. It requires an appropriate factual foundation before it can assist a court in drawing an inference. However, where the cause of an injury falls peculiarly within the knowledge of the defendant, the evidentiary threshold for establishing a prima facie case may be lower, with the result that the defendant bears an evidentiary burden to produce rebuttal evidence.
