The Applicant was 17 years of age at the time of the injury and received treatment at three hospitals which were under the control of the Department. The time between his initial arrival at the first medical centre and the time he was eventually treated was over 12 hours. In this time, he was transferred twice with inexplicable delays between each one.

He therefore instituted an action against the Department in the Western Cape High Court (the High Court) citing failure on the part of the former to provide him with prompt and appropriate medical treatment. Furthermore, that the failure was tantamount to negligence.  He alleged that considering the nature of the injury, the greatest possible urgency was necessary, and he was not afforded this.

The High Court found in the Applicant’s favour. The High Court stated that the unreasonable delays on the part of the Department’s employees did indeed amount to a refusal of emergency medical treatment as provided for in section 27(3) of the Constitution. This provision stipulates that nobody may be refused emergency medical treatment. The employees failed to perform a procedure that could have prevented paralysis within four hours of the injury and further, that such failure left the respondent liable for the applicant’s damages.

On appeal by the Department to the SCA, the decision held that there was no causal link between the Applicant’s paralysis and the conduct of the employees of the Department. Therefore, no delictual liability could be found.

This decision was based on the fact that the Applicant had failed to prove, on a balance of probabilities, the validity of one of the expert witnesses. He gave his opinion as an expert witness on behalf of the Applicant. He asserted that had the hospital of first instance treated him with the method he eventually performed on the Applicant, within four hours of the injury, he would have probably recovered. The SCA held that the Applicant had failed to prove the validity of this assertion and as a result, he could not hold the respondent liable.

In the Constitutional Court the Applicant asserted that he SCA did not recognise that the Department acted wrongfully and in so doing, violated his section 27(3) rights. In addition, as in the High Court, the employees acted unreasonably by failing to treat him earlier and in taking him to the hospital at which he eventually received treatment. The second point he raised was the failure by the SCA to establish a link between the conduct of the Department and his paralysis.

Since the matter raised matters of significant public importance, such as the protection of a constitutionally-protected right, the Court granted leave to appeal. The Court considered the evidence submitted by the expert witnesses, and concluded that all the elements for a delict had been met. Importantly, there was a firm link between the Department’s actions and the subsequent harm suffered by the Applicant.

The Court also considered the seminal Soobramoney v Minister of Health, KwaZulu Natal decision where it was held that the purpose of the section 27(3) right is to ensure that treatment be given in an emergency and is not frustrated by bureaucracy or any other reason. As such, the Department cannot cite unavailability of resources as a defence for the delay, as the equipment was available and the procedure is not a complicated one. The respondent could not furnish a reason for the failure to airlift the applicant directly to the second location. This was apparently due to protocol. The Court found this explanation unreasonable, stating that strict adherence to a protocol that does not accommodate emergencies is not an excuse for the delay. Given the widespread knowledge of the second location’s specialisation in dealing with this type of injury – a reasonable doctor would have sent the applicant there immediately. There he would have probably received the necessary attention and would not have become a quadriplegic. All the elements of a delict were thus met and thus the Department was indeed held delictually liable.

This case is important as it raises the question of reasonableness when considering the right to emergency healthcare. It does not allow a hospital to hide behind rules that cannot be reasonably bent in order to fulfil a constitutional right. The case also lends greater understanding to the right to emergency healthcare, and provides greater clarity to health care providers in drawing up policies and establishing procedures in discharging the right to emergency healthcare. Importantly, the case underscores section 173 of the Constitution, which grants the Constitutional Court, the Supreme Court of Appeal, and High Courts the inherent power to develop the common law whenever it is in the interests of justice to do so. While the case was decided on the common law grounds of a delictual claim, it nonetheless gives further meaning and content to the right to emergency healthcare.

By Rebecca Sibanda; Intern: Centre for Constitutional Rights