GUNSHOT WOUND AND DELAY IN TRANSFER
MEDICAL NEGLIGENCE – Delay in transfer – Amputation – Gunshot wound to leg – Time taken to restore blood supply – Delay in getting patient to definite care – Evidence that leg could have been saved in blood flow restored in time – Negligence and causation established.
Louw v Patel [2023] ZASCA 22 at [57]-[65]
Facts: Dr Patel was shot at his home surgery during a robbery. Dr Louw took the call from his consulting rooms where he was attending to after-hours patients. Dr Louw attended to Dr Patel at Standerton Hospital and then performed an urgent appendectomy on another patient. He then decided to transfer Dr Patel to a facility with a vascular and orthopaedic surgeon, Pretoria East Hospital, for urgent restoration of blood supply to the injured leg and further treatment of the fracture. They were unable to save the leg and an amputation was performed.
Appeal: The trial court dismissed Dr Patel’s damages claim for medical negligence. Dr Louw now appeals the full bench decision which upheld the appeal and set aside the order of the trial court.
Discussion: That the full court found that Dr Louw failed to transfer Dr Patel to definitive care with the necessary urgency, which led to the amputation; the approach to expert evidence; negligence and causation; urgency in attending to the patient; the evidence that general practitioners do not undergo triage training; urgency in the arrangement of the transfer; communication with the receiving doctor; and whether the leg could have been saved if blood flow had been restored in time.
Findings: The full court accepted the evidence that the leg would almost certainly have been salvaged if blood flow was restored within four hours, more probably within seven hours, as opposed to the nine hours and thirty minutes that was taken. Had Dr Louw acted as a reasonable doctor in the circumstances, Dr Patel’s blood flow to his lower left leg would have been restored within four to five hours. The evidence was that the negligence of Dr Louw was directly linked to the leg being amputated. The second enquiry of legal causation, which asks whether the factual link is strong enough and whether the harm is sufficiently connected to the conduct, is also satisfied.
Order: The appeal is dismissed with costs.
MASIPA AJA (MOLEMELA JA and GORVEN JA concurring)
BASSON AJA (with DAMBUZA JA) dissenting
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RIGHT TO FURTHER EDUCATION
CONSTITUTION – Education – Further education – Admission letter from university for Bachelor of Laws – Applicant given three days to accept offer – Applicant unable to register online as intake was full – Breach of contract – Violation of applicant’s right to further education – University ordered to allow applicant to register – Constitution, s 29(1)(b).
Mbana v Walter Sisulu University [2023] ZAECMHC 9at [25]-[36]
Facts: Applicant submitted an online application to Walter Sisuslu University for his admission to study towards a Bachelor of Laws degree. The letter from the university stated that he had been admitted for the Bachelor of Laws and he called the university to accept the offer and also paid the registration fee, emailing the university the proof of payment. However, his attempts to submit his registration online failed as the registration portal indicated that the intake for the Bachelor of Laws degree programme was full.
Application: Seeking a declarator that the conduct of allocating his space to the next deserving student in circumstances where he had timeously fulfilled and met all the conditions for his registration is a violation of his right to further education; and a declaratory order that his premature exclusion from the progamme is in breach of contract.
Discussion: Applicant contends that having been offered space as one of the university’s students for the 2023 academic year and having duly and promptly accepted the offer and complied with all the terms and conditions of acceptance contained therein, it was unconstitutional and in breach of contract for him to be prevented from registering. The registrar submits that the admission letter merely confirmed that the applicant met the admission requirements for the Bachelor of Laws degree and offered him an opportunity to register. Reliance was placed on the conditions contained in the letter. The university contends that formal registration is done online, subject to the availability of space, on a first come first served basis.
Findings: The university allowed the course to become fully subscribed after telling applicant that he had 3 days to accept the offer by registering. It was not open to the offeror, the registrar, to change the clear terms of the offer before the expiry of the 3-day period specified in the letter by taking the space that the registrar said was available to the applicant and prematurely give it to the next deserving student. This conduct stands in the way of the applicant exercising his right to further education and in impermissibly and unconstitutionally denies him his right to further education.
Order: The conduct of the university is declared to be a violation of the applicant’s right to further education provided for in section 29(1)(b) of the Constitution and to be breach of contract. The university is directed to remedy the breach of contract by allowing applicant to register for the Bachelor of Laws degree.
JOLWANA J
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COLLECTIVE MISCONDUCT
LABOUR – Dismissal – Collective misconduct – Ongoing stock losses – Failure to control the stock losses – Factual basis or sufficient grounds required for inferring that all employees were indivisibly culpable as members of the team – Large store and absence of evidence on proximity of employees – Facts not supporting an inference of culpable participation of all employees – Dismissal substantively unfair.
SACCAWU v Makgopela [2023] JA38-2021 (LAC) at [25]-[33]
Facts: Cashbuild trades in hardware and building materials and after a stock-take at the Klerksdorp branch there were stock losses or “shrinkage” detected. Workshops were held with certain of the staff but the shrinkages continued and the employees were issued with final written warnings valid for 12 months for failing to control shrinkage collectively or individually. After further stock losses, the employees were charged with “Collective Misconduct/Team Misconduct” and were dismissed after a disciplinary hearing.
Appeal: At the CCMA their dismissals were found to be both procedurally and substantively fair. The Labour Court found that the arbitration award fell within the bounds of reasonableness required and dismissed the review application.
Discussion: Collective workplace misconduct in circumstances in which no individual employees were identified as having committed particular acts of misconduct and all employees in the branch were dismissed; the case law and the four approaches to collective misconduct: common purpose, team misconduct, derivative misconduct and where individual culpability of employees cannot be determined as a result of which there exists an operational rationale for their dismissal (see paras [16]-[21]); that Cashbuild relied on team misconduct, the essence of which related to the failure of the employees as members of a team to adhere to its rule to prevent and halt shrinkage at the Klerksdorp store.
Findings: There was no evidence which indicated that, given the size of the store, employees in one section of the store would have been aware of stock being lost in another section. There was an absence of evidence that the proximity of employees to each other in the store and the varied nature of their work warranted a primary inference being drawn of the culpable participation of all of the employees in the misconduct. The proved facts did not support an inference being drawn of the culpable participation of all employees employed at the store in the primary misconduct. Furthermore, they participated in shrinkage workshops and completed shrinkage questionnaires to identify system difficulties and made proposals to solve the problem of stock loss.
Order: The appeal succeeds and the order of the Labour Court is replaced with one setting aside the arbitration award and replacing it with one finding that the dismissal of the employees was substantively unfair. They are to be retrospectively reinstated into the same or similar positions within 10 days and to be paid back pay from the date of dismissal until date of their reinstatement.
SAVAGE AJA (PHATSHOANE ADJP and PHATUDI AJA concurring)
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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