The conduct of an attorney has contributed to a medical negligence claim having failed where an Eastern Cape woman had sought to claim against the Health MEC after she gave birth to her child who was born with cerebral palsy.
According to the Supreme Court of Appeal, the attorney “fell short of the standard of service expected of an officer of court” and in judgment advised the woman to claim against the attorney for “his unprofessional conduct in this case”.
In the case genesis, the woman had successfully instituted legal action against the MEC for Health in the Eastern Cape for the conduct of its medical staff employed and who had attended her birthing process at the St Barnabus Hospital in the Eastern Cape in 2012.
The MEC was ordered to pay damages to the woman as proven consequent “on the hypoxic ischaemic encephalopathy and brain injury” sustained by her child as a result of the medical negligence of the medical staff.
According to the judgment, the medical negligence claim's patient had an adverse reaction to a spinal anaesthetic administered 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 who had not filed papers in time and prayer for condonation, led to it being struck from the roll.
In judgment, Justice Raylene Keightley, noted: “Medical negligence claims linked to cerebral palsy in new-borns 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[...]’s attorney to comply with the relevant Uniform Rules of Court (the rules) regulating the appeal from the trial court to the full court.
“The trial court handed down judgment in the matter on 27 August 2020. Leave to appeal was duly filed by Ms S[...] and was 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 Ms S[...]’s attorney, Mr Mjulelwa of Mjulelwa Inc. What occurred thereafter was the serial non-compliance with almost all of the relevant rules by Mr Mjulelwa,” said Justice Keightley.
Attempts to get comment from Mjulelwa were not answered on Wednesday.
Justice Keightley 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 in doing 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 commenced. Consequently, he had left the appeal in the hands of a candidate attorney in the Mthatha office. Mr Mjulelwa himself had not been in the Mthatha 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. In other words, Mr Mjulelwa left the first appeal his legal firm was responsible for in the hands of a candidate attorney in an office at which he was not present,” Justice Keightley said.
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”.
“Mr Mjulelwa’s conduct in this matter is both flagrant and gross. The failings were multiple, extending so far as to include the failure properly to institute the condonation application itself. Mr Mjulelwa’s explanations, such as they were, served to aggravate, rather than mitigate his failings. An attorney who has been instructed to note an appeal is duty-bound to acquaint him or herself with the rules. Not only did Mr Mjulelwa patently not do so, but he exacerbated this disregard of his duties by leaving the appeal in the hands of a candidate attorney, seemingly without supervision, in a different office,” Justice Keightley said.