A Constitutional and Delictual Analysisunder South African Law

Abstract 

This article will focus on the legal accountability of the South African State in terms of neonatal  deaths which arise from staff mistreatment and medical negligence. Hence, the article will  examine how institutional failures like poor hospital management, insufficient medical care as  well as staff misconduct violates the constitutional rights of dignity (Section 10)1, healthcare (Section 27)2and life (Section 11) of the South African Constitution.3 Furthermore, this  analysis assesses the delictual liability which will arise due to negligent omissions from  medical practitioners as well as the duty of care indebted to mothers and infants. By interpreting  the relevant case law, policy failures and reports this discussion will emphasize how  preventable neonatal deaths increase the infant mortality rate and undermines mental well being, maternal health as well as the public’s confidence with regards to the healthcare system. 

Introduction 

South Africa faces increasing rates of neonatal deaths which reveals serious systematic flaws  in patient treatment and healthcare delivery. Despite the existing laws such as the constitutional  protections (Section 10, 11, 27)4and the National Health Act, 61 of 2003 accountability is  limited and implementation is not consistent.5 This results in medical shortcomings along with  weakened ethical responsibility in the health system.6 Hence, this article will give insight on  both delictual and constitutional dimensions and how such negligence and mistreatment will give rise to state liability.7 Furthermore, it will also provide how infants and mothers will be  better protected within the healthcare system.8 

Legal Framework 

In terms of South Africa’s legal framework regulating state accountability in terms of neonatal  deaths due to staff mistreatment and medical negligence is based on a combination of delictual,  statutory and constitutional principles.9 This results in upholding the State’s obligation in order  to compensate victims of medical negligence, ensure proper healthcare and protecting human  dignity.10 The Constitution is the supreme law and guarantees various rights such as section 10  (human dignity) which provides that everyone has a right to dignity and must have that dignity  protected as well as respected.11 In terms of demeaning treatment of mothers and staff  mistreatment in the time of childbirth will violate this right.12 Section 11 (the right to life)  provides for the protection of the right to life which expands to neonates which have been born  alive.13 Neonatal deaths which have been caused by negligence or otherwise been prevented  will result in a constitutional infringement of this right.14 Section 12(2) guarantees the right to  psychological and bodily integrity incorporating the control of one’s health and body.15 The  broader meaning also prohibits mistreatment, degrading treatment and unsafe practices.16 Section 27(1)(a) guarantees the right to access healthcare services, and this incorporates  reproductive healthcare.17 Furthermore, the state has a responsibility and positive duty to  establish necessary measures are taken such as effective and accessible neonatal and maternity  services are safe for both mothers and infants.18 Section 195 provides for the necessary basic  principles and values regulating public administration, comprising of promotion of high  standards of professional ethics, accountability and transparency.19 In terms of failures in  supervision or hospital management results in compromising this provision.20 

The National Health Act places a duty on healthcare practitioners, providers as well as public  authorities in terms of strengthening the standards of care while still maintaining the safety of  patients.21 In terms of the Public Service Act 103 of 1994, even though it has been heavily  amended it can be used to give guidance.22 It governs the discipline and conduct in terms of  public service.23 Healthcare practitioners are employed by the state and is therefore bound to  perform their duties with accountability, care and competence.24 In terms of healthcare and the  law of delict, the State can be held vicariously liable with regards to wrongful omissions/acts  of their employees while they acted within the scope of their employment.25 Therefore,  provincial health departments can be sued for damages as a result of their medical negligence.26 Elements of delictual liability include the following: conduct (due to an act or omission) which  could result from failing to provide reasonable care during the time of childbirth and postnatal  care.27 Secondly, wrongfulness will occur due to the conduct violating a legal duty in order to  prevent harm.28 Thirdly, fault can happen in the form of intent (dolus) or negligence (culpa).29 However, in the form of negligence the failure of the reasonable healthcare practitioner must  be able to foresee and stop the harm but still being negligent constitutes the fault.30 Fourthly,  there needs to be causation.31 This means that there needs to be a direct causal link connecting  the act/omission and the injury or death that took place.32 Lastly, there needs to be damage, and  this means the type of harm which had been suffered by either the mother or infant.33 

Judicial Interpretation 

In terms of MEC for Health, Gauteng v PN obo EN34, the case dealt with systematic negligence  during the time of childbirth causing cerebral palsy. The facts included the failure of medical  staff with regards to monitoring the mother’s labour and foetal heart rate correctly which led  to brain damage as well as oxygen deprivation of the child.35 This had resulted in the Supreme  Court of Appeal decision which provided that failure of the hospital resulted in negligence.36 Furthermore, the court applied the elements of delict (wrongfulness and causation) in order to  determine liability.37 The healthcare professionals had a legal duty towards the mother and  infant in terms of providing a duty to care.38 However, they had breached this duty when they  failed to monitor or act.39 In terms of causation, the court had found that negligence was the  factual and legal cause of the act (cerebral palsy).40 The but-for test (causa sine qua non) was  also satisfied as “but for” the negligence, the baby would have still been born healthy.41 This  case is vital as it shows how the failure to act punctually during childbirth and bad obstetric  care can be a ground for delictual liability.42 

In terms of the decision in the case of Soobramoney v The Minister of Health, KwaZulu-Natal43,  the Constitution Court ruled that the state had an obligation in terms of Section 27 of the  Constitution.44 This meant that they needed to provide access to healthcare and it was subjected  to policy priorities and the necessary resources and regarding section 27(3) of the Constitution  which deals with emergency medical treatment applying to sudden fatal circumstances instead  of continuing treatment of chronic illnesses.45 Even though this case dealt with dialysis and not  neonatal care or childbirth, the reasoning provides that the State needs to adopt non-arbitrary  and rational policies regarding healthcare delivery whilst applying the policies correctly and  fairly.46 With regards to maternal and neonatal care, where the nature of the action is time sensitive and acute, the necessary standards of review requires a high degree of precision:  whenever the hospital staff deny or delay emergent neonatal interventions, the State’s  discretion will be reduced, and this failure may constitute a delictual wrongfulness as well as a  constitutional breach.47 

In the case of the Minister of Health & Others v Treatment Action Campaign (TAC)48, the  Constitutional Court provided that the State’s duty to provide healthcare in terms of Section 27  of the Constitution was not absolute.49 This means that it required the necessary  implementation of reasonable steps to guarantee that vulnerable people such as pregnant  mothers and children have access to essential medical care.50 Furthermore, the court had denied  the government’s policy of limiting the antiretroviral drug Nevirapine to pilot sites as well as  postponing nationwide roll-out which was found to be discriminatory and unreasonable.51 In  comparison, when a hospital allows staff mistreatment of mothers, fails to monitor foetal  distress and delays emergency c-sections, it cannot merely depend on resource limitations.52 The State needs to show that reasonable supervision, training and necessary systems have been  put in place in order to protect neonatal and maternal life.53 Hence, the decision in the following  case establishes a doctrinal foundation in holding the State liable in terms of systematic failures  in neonatal and maternal care.54  

Critical Analysis 

Loopholes, ambiguities and challenges in the law 

There is a legal standard for healthcare rights in terms of section 27, and the State needs to take  reasonable steps in order to accomplish gradual achievement.55 Yet, what is considered to be  ‘reasonable’ is context dependent and ambiguous.56 This constitutes a difficulty in terms of  neonatal deaths by raising the necessary questions such as whether systematic failures are  established in the necessary standards or in the relevant policy discretion? And how will the  courts evaluate the obligatory standards of care which is required from hospitals.57 In terms of  cases like Soobramoney v Minister of Health, KwaZulu-Natal, it acknowledges that the State  has necessary obligations which are then liable to constraints.58 However, whilst this is  understood, it can create loopholes if the State regularly provide that limitations of resources are used to justify that some failures that could have been avoided.59 Ambiguity is created when  limitation of resources constitutes non-performance and when it weakly safeguards in terms of  systematic negligence.60 

In terms of delict (medical negligence claims), the plaintiff needs to determine the damage,  cause and breach of duty.61 However, this can create uncertainty in neonatal deaths arising from  hospital systems due to incomplete hospital records, evidence missing as well as conflicting  testimony.62 Furthermore, this creates challenges, and even though some systematic failures  exist, determining the causal link to a specific neonatal death in order to satisfy the necessary  legal standards is severe which can result in the limitation of legal accountability.63 Even  though the law permits vicarious liability of the State for its employees, there is a weak legal  theory in terms of institutional liability where systematic failure takes place.64 This means that  the ambiguity of the law shows that health institutions can escape liability if they can provide  that there was individual negligence.65 Even though constitutional jurisprudence gives us  insight the practice of evaluating and applying these decisions in terms of healthcare is  inconsistent.66 This results in a gap between practice and the law.67 

Evaluation of how well the law works in practice 

The legal framework in South Africa is strong.68 The law of delict, national health statutes, and  the Constitution provide remedies in terms of healthcare matters.69 Judgements by courts in  vital cases provide that the State can be held accountable for failures in healthcare which results in awareness being raised as well as setting precedents.70 The Perinatal Problem Identification  Programme is an audit programme which offers relevant data which aids to identify avoidable  deaths helps policy and legal responses.71 However, despite the regulatory structure perinatal  and neonatal mortality has a slow improvement and still remain high with examples showing  that perinatal deaths have worsened to 24 120 in 20.72 Audits show that the gap is behavioural  and systematic not just clinical or legal. The law focuses more on remedies rather than  prevention.73 Provinces with an increased rate of perinatal/neonatal deaths often have weak  oversight and under-resourced hospitals.74 This shows that the implementation of the law is  dependent on institutional capacity and is uneven.75 

Comparative Analysis and Recent Reforms 

The National Health Service in the United Kingdom have authorized mandatory reporting  systems as well as perinatal reviews and maternal safety bundles (Saving Babies’ Lives Care  Bundle) with statutory obligations.76 This aids accountability by providing a link between legal  oversight and clinical governance beyond litigation.77 Similarly, Australia also uses public  reporting, hospital accreditation and perinatal mortality reviews.78 Furthermore, legal systems  comprising of accountability measures, compulsory reporting standards and a strong clinical  oversight are likely to reduce neonatal deaths better than those which rely on individual  litigation after the harm has already been done.79 

The recent reforms in South Africa include the following: the Office of Health Standards  Compliance (OHSC) has published maternal/neonatal mortality indicators as well as vital  compliance frameworks, but enforcement measures are still limited.80 The 2021 “Maternal,  Perinatal and Neonatal Health Policy” undertakes some modifiable factors such as respecting  the relevant maternal care frameworks and strengthening midwifery and improving newborn  health outcomes.81 

Recent Developments 

Integrated Maternal and Perinatal Care Guidelines (2024) 

The South African Department of Health in October 2024, had released the relevant guidelines  in terms of newborn and maternal care by acknowledging an important advancement in terms  of the country’s healthcare foundation.82 These regulations established 3 different but  interconnected documents namely: the Integrated Maternal and Perinatal Care Implementation  Framework; the Integrated Maternal and Perinatal Care Guidelines (IMPCGs); the Integrated  Maternal and Perinatal Care Standards.83 This establishes the significance of maternity care  being respected as well as maternal mental health whilst also addressing issues such as intimate  partner violence, and other avenues which were not generally presented in healthcare  guidelines.84 This approach is comprehensive and shows that it seeks to modify maternal  healthcare by establishing that women’s well-being and health are protected as well as  prioritized.85 

The National Health Insurance Act (2023) 

President Cyril Ramaphosa had signed the National Health Insurance (NHI) Act into law on  the 15th of May 2024.86 This Act determines a national health insurance system with the aim of  offering universal health access to good standards of healthcare services, complying with  Section 27 of the Constitution.87 The Act intends to determine a National Health Insurance  Fund that will perform as the sole payer and purchaser of healthcare services.88 Even though  the NHI is deemed to be an advancement in terms of equitable healthcare access, it has faced  legal challenges in addition to criticism.89 It has also been argued by critics that the Act could  lead to inefficiencies and increased taxes with regards to healthcare delivery.90 The Gauteng  Division of the High Court had provided that some provisions in the National Health Act were unconstitutional, and this created uncertainties in terms of the central planning system as  contemplated by the NHI Act.91 

Public Reaction and Media Coverage 

Introducing the NHI had triggered an extensive debate across the country.92 Supporters of the  NHI, comprising of the Congress of South African Trade Unions (COSATU) regard the Act as  a mechanism of universal health access.93 Despite this there have been opposition parties such  as the Democratic Alliance (DA) which have conveyed concerns about the centralisation of  healthcare services as well as the potential increase of tax.94 There is a petition which is against  the NHI Bill which is currently supported by numerous signatures that displays the concern  between industry stakeholders and healthcare providers and workers regarding the position of  the Department of Health to manage and implement a national health insurance scheme.95 

This evolution shows a collective approach by the government in addressing perinatal/neonatal  and maternal health challenges.96 Whilst the policy seeks to better quality and healthcare  access, there have been legal challenges and mixed reactions acknowledging the complexities  in terms of implementing comprehensive health changes.97 

Suggestions  

The way forward to combat neonatal deaths which is caused by staff mistreatment and  systematic negligence is for South Africa strengthening its legal accountability structure as well  as its healthcare governance.98 Hence, the subsequent recommendations provide vital reforms such as: Reforming the necessary staff training and maternal care.99 This can be done by  making respectful maternity care training compulsory and applying sanctions with regards to  abusive behaviour comprising of discriminatory care and verbal assault.100 Increase monitoring  and oversight by extending the power of the OHSC in terms of suspending negligent  administrators and staff which have caused repeated failures; issue corrective action plans  which are legally binding; require an obligatory reporting of all neonatal deaths which could  have been prevented and publicly name institutions with repeating neonatal deaths.101 

Reinforcing legal accountability measures by extending institutional liability to establish that  the State will be accountable for systematic failures and not just individual negligence.102 By  interpreting the standards of care which is essential under statute and the Constitution in order  to avoid vagueness in what constitutes to be “reasonable measures”.103 Ensuring community  participation and transparency by including maternal health committees having the relevant functions (oversight) in terms of monitoring care of patients and the necessary trends.104 

Furthermore, by extending public health education campaigns, it will lead to recognising  negligence early and empowering mothers as well as minimising the stigma with regards to  reporting staff mistreatment.105 In terms of the legislature and the judiciary, courts should improve the use of interdicts requiring health sectors to report to judges on progress of  healthcare while monitoring compliance.106 The Parliament may also validate judgements by a  means of policy amendments and budget allocations establishing that the relevant changes have  been sustained.107 Ensure that the legislative alignment complies with the standards of the  World Health Organisation (WHO) in terms of maternal safety and neonatal deaths.108 Improving patient support and access to justice by developing tribunals comprising of the  relevant medical expertise or specialised health courts in terms of managing neonatal and  maternal injury cases better.109 

Conclusion  

This article showed intricate framework of the State’s legal accountability within South Africa  in terms of neonatal deaths resulting from staff mistreatment and systematic negligence.110 In  terms of statute, the law of delict and constitutional foundations (Section 10, 11 and 27) allows  victims to seek redress and also shows that the legal foundation is strong in theory.111 However, the occurrence of preventable neonatal deaths, healthcare failures and maternal trauma creates  a gap between the rights which are guaranteed in the law and the circumstances encountered in  practice.112 The jurisprudence provides that the State may be held accountable delictually and  constitutionally in terms of failures in neonatal and maternal care arising from staff misconduct and systematic omissions.113 Despite this, there is still challenges such as limitation of  resources, mistreatment and weak enforcement of standards that limit the law’s influence on  prevention.114 In order to close this gap, the law needs to grow by providing more insight, improving access to justice and cultural reform, enforce measures and ensure clear statute  duties.115 By combining legal accountability with transparent data, good governance and  institutional reform the country will be able to protect vulnerable mothers and newborns better  and safer whilst also restoring the confidence of the public in terms of healthcare and  establishing that the right to safe childbirth is beyond a promise and should be a safe reality for  all families.116 

Bibliography 

Legislation and Bills 

Constitution on the Republic of South Africa, 1996. 

The National Health Act, 61 of 2003. 

The Public Service Act 103 of 1994. 

The National Health Insurance Act 20 of 2023. 

National Health Insurance (NHI) Bill, 2023, Bill No. B11 of 2019, (May 15, 2023), SA.  

Guidelines, Policies, Reports 

The Office of Health Standards Compliance (OHSC), 2021/22 Annual Report of the Office of  Health Standards Compliance (OHSC), (Issued on July 2022, 29). 

National Department of Health, “Maternal, Perinatal and Neonatal Health Policy”, (Issued on  June 2021, 23). 

National Department of Health, “Integrated Maternal and Perinatal Care Guidelines”, (Issued  on October 2024, 23). 

Department of Health, South African National Department of Health MATERNAL,  PERINATAL, and NEONATAL Health Policy, (Issued 2021, 23). 

Case Law 

MEC for Health, Gauteng v PN obo EN [2015] ZASCA 138. 

Minister of Health & Others v Treatment Action Campaign (TAC), 2002 (5) SA 721 (CC). Soobramoney v The Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC). 

Journal Articles 

M.H.L. Mabaso, T. Ndaba & Z.L. Mkhize-Kwitshana, Overview of Maternal, Neonatal and  Child Deaths in South Africa: Challenges, Opportunities, Progress and Future Prospects, 20 S.  Afr. J. Epidemiol. & Infection 121 (2014),  https://pmc.ncbi.nlm.nih.gov/articles/PMC4948143/ [accessed 22 October 2025]. 

Bernard Wessels & Georgia Speechly, The Bill of Rights and State Liability for Medical  Negligence: A Case for Judicial Development of the Common Law (Part 1), 37 Spec. Jur. 1  (2023) 2. 

Damian et al., Trends in Maternal and Neonatal Mortality in South Africa: A Systematic  Review, 8 Systematic Revs. 76 (2019),  https://systematicreviewsjournal.biomedcentral.com/articles/10.1186/s13643-019-0991-y [accessed 24 October 2025]. 

Web Resources 

Thanduxolo Molelekwa, South Africa’s Medical Negligence Crisis, Think Global Health (Feb.  20, 2024), https://www.thinkglobalhealth.org/article/south-africas-medical-negligence-crisis [accessed 22 October 2025]. 

“What is the Law of Delict in South Africa? A Simple Explanation,” D&S Attorneys, (2024),  https://www.dsclaw.co.za/articles/what-is-the-law-of-delict-in-south-africa-a-simple explanation/ [22 October 2025].

University of Pretoria, Perinatal Problem Identification Programme (2025),  https://www.up.ac.za/centre-for-maternal-fetal-newborn-and-child 

healthcare/article/2871749/the-perinatal-problem-identification-programme [accessed 24  October 2025]. 

Department of Statistics SA, South Africa’s Perinatal Deaths Arise, (March 31, 2025),  https://www.statssa.gov.za/?p=18294 [accessed 24 October 2025]. 

NHS England, Maternity and Neonatal Safety Improvement Programme, (January 2023) https://www.england.nhs.uk/mat-transformation/maternal-and-neonatal-safety-collaborative/ [accessed 24 October 2025]. 

Australian Government-Australian Institute of Health and Welfare, Stillbirths and neonatal  deaths in Australia, 2021, (July, 31, 2025), https://www.aihw.gov.au/reports/mothers babies/australias-mothers-babies/contents/stillbirths-neonatal-deaths/stillbirths-and-neonatal deaths-in-australia [accessed 24 October 2025]. 

Simeka Health, South Africa’s National Health Insurance Act: Paving the way for universal  healthcare and equity, (July 14, 2025), https://www.simekahealth.co.za/south-africas-national health-insurance-act-paving-the-way-for-universal-healthcare-and-equity/ [accessed 25  October 2025]. 

The Congress of South African Trade Unions (COSATU), COSATU Remains Convinced that  South Africa needs a National Health Insurance, (September 11, 2023),  https://mediadon.co.za/cosatu-remains-convinced-that-south-africa-needs-a-national-health insurance/ [accessed 25 October 2025]. 

John Steenhuisen, A strong DA can rescue SA from NHI, Democratic Alliance (May 14, 2024), https://www.da.org.za/2024/05/a-strong-da-can-rescue-sa-from-nhi [accessed 25 October 2025].

1 S. Afr. Const., 1996, § 10. 

2 S. Afr. Const., 1996, § 27. 

3 S. Afr. Const., 1996, § 11. 

4 Constitution on the Republic of South Africa, 1996. 

5 The National Health Act, 61 of 2003. 

6 M.H.L. Mabaso, T. Ndaba & Z.L. Mkhize-Kwitshana, Overview of Maternal, Neonatal and Child Deaths in  South Africa: Challenges, Opportunities, Progress and Future Prospects, 20 S. Afr. J. Epidemiol. & Infection  121 (2014), https://pmc.ncbi.nlm.nih.gov/articles/PMC4948143/ [accessed 22 October 2025].

7 M.H.L. Mabaso, T. Ndaba & Z.L. Mkhize-Kwitshana, Overview of Maternal, Neonatal and Child Deaths in  South Africa: Challenges, Opportunities, Progress and Future Prospects, 20 S. Afr. J. Epidemiol. & Infection  121 (2014), https://pmc.ncbi.nlm.nih.gov/articles/PMC4948143/ [accessed 22 October 2025].

8 M.H.L. Mabaso, T. Ndaba & Z.L. Mkhize-Kwitshana, Overview of Maternal, Neonatal and Child Deaths in  South Africa: Challenges, Opportunities, Progress and Future Prospects, 20 S. Afr. J. Epidemiol. & Infection  121 (2014), https://pmc.ncbi.nlm.nih.gov/articles/PMC4948143/ [accessed 22 October 2025].

9 Thanduxolo Molelekwa, South Africa’s Medical Negligence Crisis, Think Global Health (Feb. 20, 2024),  https://www.thinkglobalhealth.org/article/south-africas-medical-negligence-crisis [accessed 22 October 2025].

10 Thanduxolo Molelekwa, South Africa’s Medical Negligence Crisis, Think Global Health (Feb. 20, 2024),  https://www.thinkglobalhealth.org/article/south-africas-medical-negligence-crisis [accessed 22 October 2025].

11 S. Afr. Const., 1996, § 10. 

12 S. Afr. Const., 1996, § 10. 

13 S. Afr. Const., 1996, § 11. 

14 S. Afr. Const., 1996, § 11. 

15 S. Afr. Const., 1996, § 12(2). 

16 S. Afr. Const., 1996, § 12(2). 

17 S. Afr. Const., 1996, § 27(1)(a). 

18 S. Afr. Const., 1996, § 27. 

19 S. Afr. Const., 1996, § 195. 

20 S. Afr. Const., 1996, § 195.

21 The National Health Act, 61 of 2003. 

22 The Public Service Act 103 of 1994. 

23 The Public Service Act 103 of 1994. 

24 The Public Service Act 103 of 1994. 

25 “What is the Law of Delict in South Africa? A Simple Explanation,” D&S Attorneys, (2024),  https://www.dsclaw.co.za/articles/what-is-the-law-of-delict-in-south-africa-a-simple-explanation/ [22 October  2025]. 

26 What is the Law of Delict in South Africa? A Simple Explanation,” D&S Attorneys, (2024),  https://www.dsclaw.co.za/articles/what-is-the-law-of-delict-in-south-africa-a-simple-explanation/ [22 October  2025]. 

27 What is the Law of Delict in South Africa? A Simple Explanation,” D&S Attorneys, (2024),  https://www.dsclaw.co.za/articles/what-is-the-law-of-delict-in-south-africa-a-simple-explanation/ [22 October  2025]. 

28 What is the Law of Delict in South Africa? A Simple Explanation,” D&S Attorneys, (2024),  https://www.dsclaw.co.za/articles/what-is-the-law-of-delict-in-south-africa-a-simple-explanation/ [22 October  2025]. 

29 What is the Law of Delict in South Africa? A Simple Explanation,” D&S Attorneys, (2024),  https://www.dsclaw.co.za/articles/what-is-the-law-of-delict-in-south-africa-a-simple-explanation/ [22 October  2025]. 

30 What is the Law of Delict in South Africa? A Simple Explanation,” D&S Attorneys, (2024),  https://www.dsclaw.co.za/articles/what-is-the-law-of-delict-in-south-africa-a-simple-explanation/ [22 October  2025]. 

31 What is the Law of Delict in South Africa? A Simple Explanation,” D&S Attorneys, (2024),  https://www.dsclaw.co.za/articles/what-is-the-law-of-delict-in-south-africa-a-simple-explanation/ [22 October  2025]. 

32 What is the Law of Delict in South Africa? A Simple Explanation,” D&S Attorneys, (2024),  https://www.dsclaw.co.za/articles/what-is-the-law-of-delict-in-south-africa-a-simple-explanation/ [22 October  2025]. 

33 What is the Law of Delict in South Africa? A Simple Explanation,” D&S Attorneys, (2024),  https://www.dsclaw.co.za/articles/what-is-the-law-of-delict-in-south-africa-a-simple-explanation/ [22 October  2025].

34 MEC for Health, Gauteng v PN obo EN [2015] ZASCA 138. 

35 MEC for Health, Gauteng v PN obo EN [2015] ZASCA 138 [2]. 

36 MEC for Health, Gauteng v PN obo EN [2015] ZASCA 138 [39]. 

37 MEC for Health, Gauteng v PN obo EN [2015] ZASCA 138 [148]. 

38 MEC for Health, Gauteng v PN obo EN [2015] ZASCA 138 [147]. 

39 MEC for Health, Gauteng v PN obo EN [2015] ZASCA 138 [147]. 

40 MEC for Health, Gauteng v PN obo EN [2015] ZASCA 138 [39]. 

41 MEC for Health, Gauteng v PN obo EN [2015] ZASCA 138 [132]. 

42 MEC for Health, Gauteng v PN obo EN [2015] ZASCA 138. 

43 Soobramoney v The Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC). 

44 S. Afr. Const., 1996, § 27. 

45 Soobramoney v The Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC) [7].

46 Soobramoney v The Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC) [10].

47 Soobramoney v The Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC) [58].

48 Minister of Health & Others v Treatment Action Campaign (TAC), 2002 (5) SA 721 (CC). 49 S. Afr. Const., 1996, § 27. 

50 Minister of Health & Others v Treatment Action Campaign (TAC), 2002 (5) SA 721 (CC) [15]. 51 Minister of Health & Others v Treatment Action Campaign (TAC), 2002 (5) SA 721 (CC) [2]. 52 Minister of Health & Others v Treatment Action Campaign (TAC), 2002 (5) SA 721 (CC) [2]. 

53 Minister of Health & Others v Treatment Action Campaign (TAC), 2002 (5) SA 721 (CC) [90]. 54 Minister of Health & Others v Treatment Action Campaign (TAC), 2002 (5) SA 721 (CC) [118]. 55 S. Afr. Const., 1996, § 27. 

56 Bernard Wessels & Georgia Speechly, The Bill of Rights and State Liability for Medical Negligence: A Case  for Judicial Development of the Common Law (Part 1), 37 Spec. Jur. 1 (2023) 2. 

57 J. Damian et al., Trends in Maternal and Neonatal Mortality in South Africa: A Systematic Review, 8  Systematic Revs. 76 (2019), https://systematicreviewsjournal.biomedcentral.com/articles/10.1186/s13643-019- 0991-y [accessed 24 October 2025]. 

58 Soobramoney v The Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC).

59 Thanduxolo Molelekwa, South Africa’s Medical Negligence Crisis, Think Global Health (Feb. 20, 2024),  https://www.thinkglobalhealth.org/article/south-africas-medical-negligence-crisis [accessed 22 October 2025].

60 Thanduxolo Molelekwa, South Africa’s Medical Negligence Crisis, Think Global Health (Feb. 20, 2024),  https://www.thinkglobalhealth.org/article/south-africas-medical-negligence-crisis [accessed 22 October 2025].

61 Bernard Wessels & Georgia Speechly, The Bill of Rights and State Liability for Medical Negligence: A Case  for Judicial Development of the Common Law (Part 1), 37 Spec. Jur. 1 (2023) 4. 

62 Bernard Wessels & Georgia Speechly, The Bill of Rights and State Liability for Medical Negligence: A Case  for Judicial Development of the Common Law (Part 1), 37 Spec. Jur. 1 (2023) 4. 

63 Bernard Wessels & Georgia Speechly, The Bill of Rights and State Liability for Medical Negligence: A Case  for Judicial Development of the Common Law (Part 1), 37 Spec. Jur. 1 (2023) 4. 

64 Bernard Wessels & Georgia Speechly, The Bill of Rights and State Liability for Medical Negligence: A Case  for Judicial Development of the Common Law (Part 1), 37 Spec. Jur. 1 (2023) 4. 

65 Bernard Wessels & Georgia Speechly, The Bill of Rights and State Liability for Medical Negligence: A Case  for Judicial Development of the Common Law (Part 1), 37 Spec. Jur. 1 (2023) 4. 

66 Bernard Wessels & Georgia Speechly, The Bill of Rights and State Liability for Medical Negligence: A Case  for Judicial Development of the Common Law (Part 1), 37 Spec. Jur. 1 (2023) 4. 

67 Bernard Wessels & Georgia Speechly, The Bill of Rights and State Liability for Medical Negligence: A Case  for Judicial Development of the Common Law (Part 1), 37 Spec. Jur. 1 (2023) 4. 

68 M.H.L. Mabaso, T. Ndaba & Z.L. Mkhize-Kwitshana, Overview of Maternal, Neonatal and Child Deaths in  South Africa: Challenges, Opportunities, Progress and Future Prospects, 20 S. Afr. J. Epidemiol. & Infection  121 (2014), https://pmc.ncbi.nlm.nih.gov/articles/PMC4948143/ [accessed 22 October 2025].

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70 Soobramoney v The Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC). 

71 University of Pretoria, Perinatal Problem Identification Programme (2025), https://www.up.ac.za/centre-for maternal-fetal-newborn-and-child-healthcare/article/2871749/the-perinatal-problem-identification-programme [accessed 24 October 2025]. 

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82 National Department of Health, “Integrated Maternal and Perinatal Care Guidelines”, (Issued on October 2024, 23). 

83 National Department of Health, “Integrated Maternal and Perinatal Care Guidelines”, (Issued on October 2024, 23). 

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85 National Department of Health, “Integrated Maternal and Perinatal Care Guidelines”, (Issued on October 2024, 23).

86 The National Health Insurance Act 20 of 2023. 

87 S. Afr. Const., 1996, § 27. 

88 The National Health Insurance Act 20 of 2023. 

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99 Department of Health, South African National Department of Health MATERNAL, PERINATAL, and  NEONATAL Health Policy, (Issued 2021, 23). 

100 Department of Health, South African National Department of Health MATERNAL, PERINATAL, and  NEONATAL Health Policy, (Issued 2021, 23). 

101 The Office of Health Standards Compliance (OHSC), 2021/22 Annual Report of the Office of Health  Standards Compliance (OHSC), (Issued on July 2022, 29). 

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