Our law does not recognise a claim for constitutional damages for loss of a parent’s right to rear a child who was stillborn as a result of medical negligence.
In Mbhele v MEC Health for the Gauteng Province, an expectant mother was admitted to Chris Hani Baragwanath Hospital with signs of foetal distress –
Our courts are reticent in making an award for constitutional damages. They will first consider whether there is scope to develop the common law of damages to permit recovery before awarding constitutional damages, especially where the constitutional damages sought includes a punitive element.
The courts look carefully at whether there is an existing, appropriate remedy