Durban - A magistrate has found that while no one could be held responsible for the death of baby Noah Shipman, there were glaring problems with how the matter was handled.
Magistrate Irfan Khallil ordered that his judgment be sent to the police and Health Professions Council of South Africa.
Eight-month-old Noah was declared dead on arrival at Kingsway Hospital last May after he was found "blue around his mouth" in his cot at the Seaside Play Centre in Amanzimtoti.
Khallil also ordered his judgment be sent to the Social Welfare department provincial head for further action as the play centre's registration, in terms of the Children's Act, had expired at the time of Noah's death.
He said the department should consider whether to issue a written notice to the centre, if it was still unregistered, to stop it operating or for the facility to apply for a renewal.
The Shipman family, who were in court on Thursday, said they were upset that the cause of Noah's death had not been found. Speaking outside court, Noah's grandmother Clare I'Ons said the case was awful for the family who just wanted to know the truth.
In his judgment this week Khallil said that no one could be held responsible for the death of Noah but the case had several worrying aspects.
He said the pathologist who handled the post mortem had initially said that Noah had died of natural causes, but about three months later he changed his mind and said that the cause of death was asphyxia consistent with aspiration.
According to the evidence before the inquest, aspiration occurs when fluid goes into the lungs and it could come from the stomach, mouth or nose.
The pathologist claimed he had hurriedly signed the initial affidavit which said the death was due to natural causes in order to speed up the burial. He also did not send the fluid from the lungs to be forensically examined.
Khallil said it was "unacceptable" that a professional who had a critical task to perform had "so easily compromised his professional independence".
Another disturbing aspect was that the investigating officer did not know how to administer the oath when statements were taken and simply signed as a commissioner of oaths.
He said no reasons were advanced for a five-month delay before vital statements were taken, and it appeared that these statements were taken only after the family complained to a senior police officer.
No exhibits from the cot were collected to be analysed, which the court said was vital when dealing with cot deaths.
Dealing with the play centre, Khallil said there were "various contradictions and vagueness" between staff members regarding what happened.
According to the centre, Noah had been in the care of Rejoice Gwala, a cleaner at the centre, because the usual caregiver was coming to work later that day.
At some point, Gwala was relieved by an assistant to a caregiver, Courtney Luther, who testified that she discovered that Noah was blue around his mouth and not moving when she tried to wake him.
Luther has the mental development of a 9-year-old child, according to a clinical psychologist's report, and was employed for three years with no remuneration at the centre to assist with 3 to 4 year olds.
Khallil said it was irresponsible for Luther to oversee babies and prior to Noah's death, Marie Shipman had objected to Luther caring for her son because of a strange SMS Luther sent to her in March.
The magistrate said that there had been a delay from the time Luther picked up Noah around 9.45am to 10am, until he was taken to the hospital, which records show was 10.50am.
Khallil said the hospital was no more than 800m from the centre.
"I am struck by the suspicion that the staff, by a strange coincidence, all happened to be wrong about the time or tailored their version regarding the timelines. The witnesses at the play centre, I suspect, have not been candid."
The centre did not respond to a request for comment.
The Mercury