N.J v Member of the Executive Council for the Department of Health: Eastern Cape (CA30/2022; 239/2019) [2023] ZAECBHC 17; [2023] 4 All SA 72 (ECB) (20 July 2023)

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N.J v Member of the Executive Council for the Department of Health: Eastern Cape (CA30/2022; 239/2019) [2023] ZAECBHC 17; [2023] 4 All SA 72 (ECB) (20 July 2023)

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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
Reportable
Case No: CA30/2022
Case No:
239/2019
Date heard: 12/06/2023
Date delivered:
20/07/2023
In
the matter between:
N[…]
J[…]
Appellant
and
MEMBER
OF THE EXECUTIVE COUNCIL FOR
THE
DEPARTMENT OF HEALTH, EASTERN CAPE
Respondent
FULL COURT APPEAL
JUDGMENT
NOTYESI AJ :
Introduction
[1]
This is an appeal against the judgment and
order granted by the Court
a quo
,
(Matebese AJ) against the Appellant, who as a Plaintiff, had
instituted a medical negligence claim against the Respondent, the

Member of the Executive Council for the Department of Health, Eastern
Cape (MEC).
[2]
The Appellant’s claim was in her own
name and on behalf of her newborn, who had suffered cerebral palsy as
a consequence of
a hypoxic ischemic encephalopathy during the birth
process.
[3]
Having been called upon to adjudicate the
matter on the issue of liability only, the Court
a
quo
found that the Appellant was an
unreliable witness and rejected her evidence as well as the joint
minutes between experts on the
basis that the joint minutes were
based on the unreliable evidence of the Appellant. The Court
a
quo
also found that the opinion by the
radiologists was speculative and mere conjecture because there was no
evidence explaining the
alternative pathways or the cause of the kind
of injury pattern suffered by her newborn.
[4]
The appeal served before this Court with
the leave of the Court
a quo
.
[5]
The Appellant contended, before this Court,
that the Court
a quo
erred in not attaching any, or at least enough weight to the joint
minutes of experts. It was submitted that the Court
a
quo
erred in not finding that, in view
of the agreement reached by the experts in the joint minutes, it was
not necessary for the Appellant
to call further witnesses on the
agreed issues and that the Court
a quo
was bound to adjudicate the matter based on such agreement by experts
because there was no valid repudiation or withdrawal of the
agreement
by any of the parties. The Appellant also submitted that the Court
a
quo
erred in its assessment of expert
evidence and by substituting the direct uncontradicted expert
evidence with its own logic and
in this regard, the Court
a
quo
committed a misdirection because
the Appellant’s evidence was corroborated by the radiologists
in their joint minutes.
[6]
The appeal is also founded on the ground
that the Court
a quo
had adopted an incorrect approach in assessing the Plaintiff’s
evidence. In this regard, the Appellant contended that her
evidence
should have been assessed based on the objective facts, that her
evidence was reliable and that the Respondent’s
negligence was
proved on the basis of the uncontradicted objective evidence as
reflected from the available records. In addition,
the Appellant
contended that the finding of the Court
a
quo
that the absence of the prenatal
and obstetrics records being a mere neutral factor warranting of no
adverse inference to be drawn
against the Respondent, was a
misdirection. In this regard, the Appellant contended that the Court
a quo
had
trivialised the obligations of the Respondent to keep and maintain
medical records pertaining to the Appellant’s attendance
at
both clinic and hospital, for treatment and monitoring and the
subsequent birth of her newborn.
[7]
On the contrary, the Respondent contended
that the Appellant failed to give satisfactory and credible evidence
that the medical
staff employed by the Respondent caused or acted
negligently resulting in the brain injury sustained by the
Appellant’s newborn.
Concerning this, the Respondent contended
that the evidence given by the Appellant was full of contradictions
and therefore the
Court
a quo
correctly rejected the Appellant’s evidence and that of the
Appellant’s experts. The Respondent contended that the
opinions
of the Appellant’s experts were based on unreliable evidence
from the Appellant.
[8]
Insofar as the Appellant complains about
the missing records, the Respondent submitted that the Respondent was
also prejudiced by
the missing records and therefore, there was no
basis upon which the Court
a quo
could have drawn an adverse inference against the Respondent.
Issues to be decided
[9]
The issue before the Court
a
quo
, as in this Court, is whether the
medical staff were negligent in their treatment of the Appellant and,
if so, whether their negligence
caused her newborn to suffer hypoxic
ischemic encephalopathy resulting in cerebral palsy.
Background
[10]
These facts are largely common cause and
they are summarised from the judgment by the Court
a
quo
.
(a)
The Appellant, aged 26 years at the time,
was pregnant.
(b)
On 11 September 2009, she experienced contractions during the
afternoon. The precise time of when
she experienced those
contractions is not apparent from the record.
(c)
The Appellant attended Baziya Clinic for attention and examination.
For the reason that she had
a prior caesarean birth, she was
transferred to the Mthatha General Hospital.
(d)
The Appellant was transported by ambulance to the Mthatha General
Hospital. On her arrival, she
was admitted for purposes of giving
birth to her newborn.
[11]
According to the Appellant, she was
examined at the Mthatha General Hospital through an instrument that
is used to listen to the
baby’s heart rate and her vagina was
also examined. Thereafter she was told that she was still far from
delivery. At the
time of her examination, she could still experience
the contractions and they were strong and painful. The Appellant
testified
that she was not examined through a cardiotocography,
although an instrument was used for her examination.
[12]
According to the Appellant, nothing was
done to her from 22h00 until 00h00 (midnight), when a nurse
approached and examined her
with a finger, after which the nurse
informed her that she was about to deliver and that she instructed
her to push, although nothing
happened.
[13]
There are no prenatal and obstetric
records. There is no indication about when the Appellant started to
experience contractions,
when she arrived at the Baziya Clinic and
the exact time, whether she was transferred to the Mthatha General
Hospital and what
time exactly she arrived at the Mthatha General
Hospital. Most significantly, there are no records to reflect the
time when the
Appellant was first attended by nurses and the doctors
at the Mthatha General Hospital, what type of attention was given to
the
Appellant and the monitoring intervals that were afforded to the
Appellant, if any. The available records relate to the time of
birth
and the condition at birth and also the diagnosis and treatment given
at the Nelson Mandela Academic Hospital subsequent
to the transfer of
her newborn from the Mthatha General Hospital.
[14]
In this regard, the available records
reveal that on 12 September 2009 at approximately 06h35, the
Appellant gave birth. Her newborn
weighed 3200g. The Appellant gave
birth through normal vaginal delivery. The neonatal examination
showed that her newborn was pink,
afebrile and with a heart rate of
120bpm. Her chest was clear, she had a normal cardiovascular
examination, female genitalia, reflexes,
some flexion, moro and
sucking reflex present and the assessment at the time was that of low
Apgar scores and meconium aspiration
and that close monitoring was
recommended.
[15]
The available records of 12 September 2009
further revealed that the Appellant’s newborn was transferred
to the Nelson Mandela
Academic Hospital from the Mthatha General
Hospital with a problem of low Apgar scores and fits. The Apgar
scores were recorded
as 5/10 and 7/10. The examination at the Nelson
Mandela Academic Hospital reflected that the Appellant’s
newborn suffered
a hypoxic ischemic encephalopathy grade II. Dormicum
(an antiepileptic sedative) was administered to abort seizures.
[16]
A neonatal observation of 13 September 2009
noted the following:
(a)
Hypoxic ischemic encephalopathy grade II; and
(b)
An attack of fits with cycling movements at 14h00.
[17]
On 14 September 2009, a central nervous
system examination was performed, and it revealed lethargy (a
pathological state of sleepiness
or deep unresponsiveness and
inactivity) and hypotonia (a state of low muscle tone).
[18]
On 15 September 2009, the records show that
no further seizures were noted, although lethargy and hypotonia were
still evident and
hypoxic ischemic encephalopathy grade II scores had
improved to 7 with no sodium levels in the blood being reported.
[19]
On 16 September 2009, the hypoxic ischemic
encephalopathy grade II was still reported with no fits or seizures
noted on the day.
[20]
On 17 September 2009, the evaluation once
more recorded hypoxic ischemic encephalopathy grade II and
hyponatremia with the examination
of the respiratory and
cardiovascular systems showing within normal limits. The Appellant’s
newborn was reported still as
lethargic and dull with weak response
to stimulation and the hypoxic ischemic encephalopathy grade II score
had improved to 6.
[21]
On 18 September 2009, no further attacks
were reported. The baby was still noted as dull and floppy and on
interpretation she looked
very ill.
[22]
An MRI brain scan done on 3 August 2018 (8
years 11 months after the birth of the Appellant’s newborn)
revealed that the predominant
pattern is that of T2 and FLAIR
hyperintensities in the peri-rolandic cortex and ventro-lateral
aspects of the thalami. In the
appropriate clinical history setting,
the pattern and location of injury may be suggestive of an old
hypoxic ischemic injury in
its chronic state of evolution, in a term
infant that was exposed to acute profound asphyxia. The thalami may
be affected by various
other conditions such as infection, systemic
or metabolic disease, neuro degeneration, and vascular
conditions. The correlation
with the clinical history, biochemistry,
neonatal and obstetric records are strongly advised to confirm the
most probable cause
and the timing of the injury.
The pleadings
[23]
In her particulars of claim, the Appellant
had alleged that the employees of the Respondent, including the
medical practitioners
or doctors and nurses who treated her at the
Baziya Clinic were negligent in that:
23.1
They failed to properly or sufficiently regularly monitor the
Appellant or the condition of the foetus.
23.2
They failed to comply in respect of the monitoring and management of
the Appellant’s labour with appropriate
guidelines for
maternity care.
23.3
They failed to monitor the Appellant or the foetus with sufficient
care and skill so as to enable the detection
timeously of the onset
of foetal distress and/or hypoxia.
23.4
They failed to detect the onset of foetal distress and/or foetal
hypoxia.
23.5
They failed, following the onset of foetal distress and/or foetal
hypoxia, to institute appropriate treatment
modalities in respect of
the condition or to effect an immediate and timeous caesarean
section.
23.6
They failed to prevent the development of hypoxia and hypoxic
ischemic encephalopathy.
23.7
They failed to prevent the occurrence of the injury (the Hypoxic
Ischemic Encephalopathy Grade II) while
the Appellant and her foetus
were under the monitoring and care of the Department’s
employees at the clinic from 09h00 until
22h00 on 11 September 2009.
23.8
They failed to discern or detect either timeously or at all, as they
could and should have done, that the
Appellant was a candidate for
caesarean section.
23.9
They failed to expedite the transferral of the Appellant to the
hospital when the foetus developed hypoxia
and/or foetal distress.
[24]
The Appellant further alleged in her
particulars of claim that the Mthatha General Hospital, doctors and
nurses who treated her
were negligent in that:
24.1
They failed to properly treat and manage the foetal condition of
hypoxia and/or foetal distress.
24.2
They failed to immediately or timeously deliver the Appellant’s
newborn, by way of caesarean section
if necessary, when they knew or
ought to have known that time was of the essence and that the
Appellant’s newborn was severely
at risk by reason of hypoxia
and/or foetal distress.
24.3
They failed, following the onset of foetal distress and/or foetal
hypoxia, to institute appropriate treatment
modalities in respect of
this condition and to effect an immediate or timeous caesarean
section.
24.4
They failed to deliver the baby timeously, by caesarean section if
necessary, when it became medically advisable
and appropriate to do
so.
24.5
They failed to prevent the development of hypoxia and hypoxic
ischemia encephalopathy.
24.6
They failed to prevent the occurrence of the Hypoxic Ischemic
Encephalopathy Grade II while the Appellant
and her foetus were under
the monitoring and care of the Department’s employees at the
hospital from approximately 22h00
until approximately 6h36 when the
Appellant’s newborn was delivered on 12 September 2009.
[25]
The Appellant had alleged that the medical practitioners and nursing
staff both at the Clinic and Hospital
acted in breach of their duty
of care and were negligent in her treatment and that of her newborn.
It was alleged that they treated
the Appellant and her newborn in a
sub-standard manner and were negligent in one or more of the
following respects:
25.1
They failed to properly assess and diagnose the condition of the
Appellant and her unborn child upon admission
and failed to implement
proper treatment modalities in respect of the Appellant and her
unborn child.
25.2
They failed to properly monitor the Appellant and her unborn child
and failed to detect the onset of hypoxia.
25.3
They failed to subject the Appellant to a cardiotocography machine in
circumstances where they could or should
have done so.
25.4
They failed to take all necessary and reasonable steps to expedite
the delivery of the Appellant’s
child through caesarean section
in circumstances where they could or should have done so.
25.5
They failed to take all reasonable and necessary steps to ensure the
transfer of the Appellant to a higher-level
medical facility for the
urgent delivery of the Appellant’s unborn child.
25.6
They failed to provide the Appellant and her unborn child with
medical care and attention and monitoring
of reasonable standards
when they could and should have done so.
25.7
They failed to prevent foetal distress in circumstances where they
could and should have taken steps which
would have adequately
controlled the said condition.
25.8
They failed to take any adequate steps to prevent the developing of
intrapartum asphyxia in consequence of
prolonged labour, in
circumstances where they could and should have diagnosed this
condition and taken appropriate remedial action
in respect thereof.
25.9
They failed to monitor the foetal heart rate either properly or at
all and failed to detect the onset of
foetal distress.
25.10  They failed
to diagnose prolonged labour and complications associated therewith
when they could and should have done
so.
25.11  They failed
to provide any adequate treatment in respect of foetal distress
following upon prolonged labour when they
could and should have done
so.
25.12  They failed
to monitor the newborn child immediately after birth in circumstances
where they could and should have done
so.
25.13  They failed
to give regard to the newborn’s clinical state including the
inability to feed and neurological state
when they could and should
have done so.
25.14  They failed
to provide early intervention with supportive care and possible
therapeutic hypothermia to improve the newborn’s
neurological
outcome.
25.15  They failed
to immediately transfer the newborn to a high level hospital
immediately after noticing that she did
not cry during birth, was
floppy and had seizures when they could have done so.
25.16  They failed
to take any/or any adequate steps to prevent the development of
seizures when they could or should have
done so.
[26]
In the plea, the Respondent admitted that
the Appellant and her newborn were treated at the Clinic and Hospital
and their duty of
care towards the Appellant and her newborn.
[27]
The Respondent denied that its employees,
both at the Clinic and Hospital, acted in breach of their duty of
care or that they were
in any manner negligent. The Respondent
averred in the plea that the nursing staff and doctors, both at the
Clinic and Hospital,
treated the Appellant and her newborn in
accordance with the required and acceptable standards of care.
The pre-trial minutes
[28]
The parties filed a pre-trial minute in
accordance with Uniform rule 37. In terms of the minutes, the
following agreements were
recorded:
28.1
That the Appellant’s pregnancy was uncomplicated as she never
suffered from any chronic illnesses such
as hypertension (high blood
pressure), diabetes, epilepsy, tuberculosis, antepartum haemorrhage
or cardiac disease and screening
tests for HIV and syphilis infection
proved negative.
28.2
That the neonatal records indicated that the newborn was born at
Mthatha General Hospital at term gestation
by normal vaginal
delivery.
28.3
That the time of birth is stated as 06h35 on the 12 September 2009
with a birth weight of 3200g.
28.4
That the length at birth and head circumference was not recorded and
the Apgar scores were 5 (Heart rate
= 2, respiration=1, colour = 1,
tone=1, response to stimulation=0 after 1 minute and 5 sub scores not
noted) after 5 minutes and
7 (Heart rate=2, respiration=2, colour=1,
tone=1, response to stimulation=1) after 10 minutes.
28.5
That the diagnosis stated on the problem list is low Apgar scores and
meconium aspiration.
28.6
That the neonatal examination at 07h00 revealed a newborn that was
pink, afebrile (no fever), heart rate
120 beats per minute (normal),
chest clear, normal cardiovascular examination (normal first and
second heart sound with no murmurs),
female genitalia, reflexes: some
flexion, Moro and sucking reflex present and the assessment at the
time was that of low Apgar
scores and meconium aspiration.
28.7
That further review at 10h15 noted:
(i)
the presence of a caput (soft tissue
swelling of the scalp) and puffy face.
(ii)
neurological examination revealed low
muscle tone (hypotonia).
(iii)
the possibility of meconium aspiration
syndrome is queried.
(iv)
the seizure.
(v)
blood glucose measurement was 3.2 mmol/L
(normal).
(vi)
the plan of action was to arrange transfer
to the neonatal unit (NNU) at Nelson Mandela Academic Hospital.
28.8
That the neonatal observation chart dated 12/9/2009 reports that:
(i)
the baby was pink on arrival.
(ii)
she was noted to be mildly distressed
although breathing spontaneously in room air.
(iii)
fitting (seizures) were also reported.
(iv)
the plan of action was to nurse the baby in
a warmer and to administer oxygen via nasal prongs.
(v)
dormicum (anti-epileptic sedative) 0.5 mg
was administered with effect.
(vi)
at 11h30:
·
Dr Kondlo examined the baby and ordered
dormicum to be administered;
·
in addition, the following blood
investigations were requested: full blood count (FBC), Urea and
electrolytes (U&E), C-reactive
protein (CRP), blood culture, VDRL
(serological test for syphilis infection), glucose;
·
treatment advised included the
administration of intravenous fluids (NNL=neonatalyte), oxygen via
nasal prongs and monitoring seizures.
(vii)
at 11h40 cycling movements were noted and
phenobarbitone (2nd anti-epileptic medication) 60mg intravenously was
administered.
(viii)
dextrostix (blood sugar) at 12h00 was noted
to be high (11 mmol/L).
(ix)
at 17h10, further cycling and fisting (or
fitting) was noted and dormicum 0.4 mg was once again administered
and dextrostrix was
normal (3.1 mmol/L).
(x)
that the day 1 neonatal observation chart
dated 13/9/2009 noted the following findings:
·
hypoxic ischemic encephalopathy grade II;
·
had an attack of fits with cycling
movements at 14h00;
·
dormicum 0.4 mg given with very little
effect;
·
dextrostix at 18h00 was very high (25.4
mmol/L);
·
at 23h00 had an attack of fits, desaturate
(drop in oxygen levels) dormicum given with effect.
(xi)
that on day 2 (14/9/2009) Central nervous
system (CNS) examination revealed:
·
lethargy (a pathological state of
sleepiness or deep unresponsiveness and inactivity) and hypotonia (a
state of low muscle tone);
·
the patient was reported as sedated;
·
the grasp and Moro reflex was reported as
reduced;
·
Hypoxic Ischemic Encephalopathy Grade II
score=9 and diagnosis is stated as Hypoxic Ischemic Encephalopathy
Grade II;
·
plan of management was to continue
treatment, to note the presence of seizures on a seizure chart, to
initiate feeds via a nasogastric
tube, to give NNL at 6 ml/hr and to
get the outstanding blood investigation results;
·
blood investigations on day 2 revealed the
following results: Sodium 121 (low) potassium 7.8 (high) urea 8.9
(high) and creatinine
87 (high);
·
it was noted that the blood example was
haemolysed (destruction, damage or breakdown of red blood cells).
(When red blood cells
are damages it causes haemoglobin to leak from
the cells and this may affect the accuracy of the blood tests);
·
the C-reactive protein measured 5.7 mg/L
(normal) (CRP is a marker of the inflammation in the body. It is used
to identify the presence
of inflammation or infection in the body).
(xii)
on day 3 (15/9/2009):
·
no further seizures since the 13/9/2009;
·
lethargy and hypotonia was still evidence
on CNS examination;
·
the Hypoxic Ischemic Encephalopathy Grade
II score improved to 7 and Hyponatremia (low sodium levels in the
blood) was reported
and blood investigations were repeated.
(xiii)
on day 4 (16/9/2009):
·
the diagnosis is stated as Hypoxic Ischemic
Encephalopathy Grade II and hyponatremia;
·
the baby’s condition is reported as
the same;
·
last fitted 2 days ago;
·
blood investigations on day 4 revealed low
serum sodium of 130 mmol/L, potassium of 5.5 mmol/L (normal) and
elevated urea 6.5 mmol/L.
This time the blood sample only showed
minor haemolysis.
(xiv)
on day 5 (17/9/2009):
·
evaluation once again recorded Hypoxic
Ischemic Encephalopathy Grade II and hyponatremia as the working
diagnosis;
·
examination of the respiratory and
cardiovascular systems was within normal limits;
·
CNS examination revealed a normotensive
anterior fontanel;
·
the newborn is reported as still lethargic
and dull with weak response to stimulation;
·
the Hypoxic Ischemic Encephalopathy score
improved to 6;
·
assessment was ‘still sick’ and
the plan was to continue treatment, to increase the feeds to 24 ml x
8; to continue
the normal saline drip at rate of 5ml/hr and to repeat
blood investigations.
(xv)
that on day 6 (18/9/2009):
·
evaluation noted no further attacks;
·
feeds were administered via a nasogastric
tube;
·
the newborn was still noted as dull and
floppy;
·
interpretation was that the baby ‘looks
very ill.
28.9
That the Nelson Mandela Academic Hospital neonatal discharge summary
reports that discharge occurred on 20
September 2009 (after 8 days in
hospital). The head circumference on discharge was 38cm. Main
problems encountered were hypoxic
ischemic encephalopathy grade II
and hyponatremia.
28.10  That neonatal
review at 1 month of age (15/10/2009) reported that the newborn was
well except for on-and-off diarrhoea.
Oral dehydration sachets
(Orsol) were prescribed. The diagnosis is stated as hypoxic ischemic
encephalopathy grade II.
28.11  That clinical
review at 3 months of age (10/12/2009) reported the presence of a
cough, no seizures at home and no episodes
of diarrhea. However,
neurological examination revealed early signs of cerebral palsy, i.e.
abnormal posture, extended legs, head
lag, cycling movements and
increased tone in all 4 limbs and the assessment was that of a mild
respiratory tract infection and
spastic cerebral palsy.
28.12  That clinical
review at 4 months of age (11/2/2010), reported that the newborn was
admitted with left sided seizures.
The medical notes report a
background of hypoxic ischemic encephalopathy grade II. Neurological
examination revealed no focal neurological
signs and phenobarbitone
30 mg in the evenings was prescribed. Discharge medication also
included multivitamins, paracetamol and
amoxicillin (antibiotic).
Expert joint minutes
[29]
The parties filed joint minutes and these
are between (a) the paediatric neurologists, Prof Ronald van Toorn
and Dr Amith Keshave;
(b) the radiologists, Prof J W Lotz (JL)
and Dr Zuzile Zikalala (ZZ); and (c) the obstetricians, Dr Ebrahim
and Dr Vuyelwa
L P Baba.
[30]
The agreement between the radiologists
states that:
‘
The
MRI study defines structural damage to the perirolandic cortex and
the basal ganglia, thalamic complex (BGT), constituting a

cerebrocortical-deep nuclear pattern.’
[31]
The agreement between the paediatric
neurologists states that:
‘
16.
Prof R van Toorn The 2019 (reaffirmed) ACOG neonatal encephalopathy
and the neurological outcome task
force describes 4 patterns of
selective neuronal injuries (in term infants with neonatal
encephalopathy) which reflect the severity,
duration, the nature of
the insult (page 150). The second form of selective neuronal injury
is the cerebral-deep nuclear neuronal
injury pattern, which combines
neuronal damage in the deep nuclear grey matter with injury in the
cerebral cortex, usually the
parasagittal area of the perirolandic
cortex. This is referred to on imaging studies as “cerebral
deep nuclear” pattern.
It is my opinion that this is the MRI
pattern evidence on I[…]’s MRI scan. Dr Keshave agreed.’
[32]
Dr Keshave had recorded in the joint minute
the statement below:
‘
Upon
review of the WES and Metabolic screen, there is no other factors
that could account for I[…]’s current clinical

presentation and MRI scan, other than hypoxic ischemic
encephalopathy. However, the presence of negligence in view of the
absence
of maternal records remains to be determined, and hence the
opinion of an obstetrician should be sought.’
[33]
The obstetricians recorded in their joint
minute that due to the absence of medical reports, they based their
report on Ms J[...]’s
recollection of events around her
pregnancy, labour, delivery and the available documents. During the
interview with the Appellant,
she was speaking in Xhosa and her
version was interpreted on her behalf.
The trial and evidence
[34]
At the commencement of the trial, the
parties confirmed before the Court
a quo
that the issue to be determined was only negligence and that
causation was not an issue. I quote from the record below:
‘
Court:
Thank you, Mr Du Plessis. Mr Mtshabe, just to confirm something. Are
you in agreement that the issue that we
are going to deal with is
only negligence, causation, is not an issue.
Mr Mtshabe: That is
correct, M’Lord.’
[35]
The Appellant largely testified about her
labour. She testified that her newborn was her third child. The first
child was born by
caesarean section and the second child was born by
normal vaginal delivery. In respect of her newborn, she had attended
her antenatal
care at Basiya Clinic in Mthatha, from the fifth month
of her pregnancy. There were no reported difficulties with her
pregnancy,
save for a minor discharge that was treated.
[36]
According to the Appellant, she had
experienced labour pains on 11 September 2009 and went to the Basiya
Clinic at about 19h00.
Upon her arrival, she was examined by means of
a certain instrument that was used to hear the baby’s heartbeat
and a finger
was put by the nurse on her and she was informed that
she was not ready to deliver at the time.
[37]
According to the Appellant, she was advised
that it would not be proper for her to deliver thereat because she
had previously had
a caesarean section and for that reason, she was
transferred to the Mthatha General Hospital. On the way to the
Mthatha General
Hospital, she was transported by an ambulance and in
her recollection, she arrived at the Mthatha General Hospital at
22h00. Upon
her arrival at the hospital, she was examined through an
instrument that is used to listen to the baby’s heart rate. Her
vagina was also examined and thereafter she was told that she was
still far from delivery. According to the Appellant, she was not

examined by means of a cardiotocography, although, an instrument was
put on her stomach and the nurses listened through their ears.
[38]
The Appellant testified that from 22h00
until 00h00 nothing was done. Only at 00h00 did a nurse examine her
with a finger after
which the nurse told her that she was about to
deliver and that she was instructed by the nurse to push, and at that
stage, nothing
happened. According to the Appellant, at the Mthatha
General Hospital, there was no further examination of the baby’s
heart
rate, except for the first one that had occurred at 22h00. She
testified that her newborn was born on 12 September 2009 at

06h35 in the morning.
[39]
According to the Appellant, after delivery,
her newborn was taken from her and she only learned that her newborn
had been taken
to the Nelson Mandela Academic Hospital, where she was
admitted to ICU. She testified that her newborn is currently unable
to eat
on her own and that she needs to be assisted as she cannot do
anything for herself.
[40]
During cross-examination, the Appellant was
asked questions about time periods relevant to the start of
experiencing labour pains,
attending to the Basiya Clinic, arrival at
the Basiya Clinic, transferral to Mthatha General Hospital,
monitoring at the hospital
and the subsequent delivery of her
newborn. The Appellant gave contradictory times in this regard as she
did not confirm what she
told the experts, Dr Ebrahim and Dr
Baba. The Respondent’s version was not put to the Appellant.
[41]
The next witness for the Appellant was Prof
Van Toorn. In brief, his evidence was that he was requested to give
an opinion regarding
the cause and timing of the Appellant’s
newborn’s brain injury. He agreed with the MRI analysis and the
findings of
the radiologists in their joint minutes. He testified
that, in the case of Appellant’s newborn, there was no recorded
sentinel
event and according to him, the injury might have been
caused by a series of events over a prolonged period of time. He
testified
that if there was a sentinel event it would have been
recorded in the neonatal records and according to him there is no
indication
of such a sentinel event from the Nelson Mandela Academic
Hospital’s records. He stated that the type of injury to the
child
is a partial prolonged type of injury.
[42]
For completeness in this regard, I quote
the findings of the radiologists as contained in the joint minute–
‘
(i)
There is evidence of previous hypoxic-ischemic injury in this child’s
brain.
(ii)
The MRI study defines structural damage to the perirolandic cortex
and the basal ganglia, thalamic
complex (BGT), constituting a
cerebrocortical-deep nuclear pattern. In the appropriate clinical
context of a sentinel event, the
pattern may be referred to as an
acute profound hypoxic ischemic injury. In the absence of a clearly
defined sentinel event, the
same pattern may occur due to alternative
pathways of serial events over a prolonged period of time. In this
context, we attach
the most recent communication endorsed by The
new-born Brain Society Guidelines and Publications Committee, and
defer to clinical
and obstetrical experts to evaluate the described
pattern against the available clinical and obstetrical records.
(iii)
The experts agree that there are no findings of structural or
congenital malformation of the
brain.
(iv)
The experts agree that there are no signs of an inborn error of
metabolism.
(v)
The experts agree that the imaging features do not support a
congenital infection with deleterious
effects on the central nervous
system, such as toxoplasmosis, rubella, cytomegalovirus or herpes.’
[43]
Prof Van Toorn concluded his evidence by
saying that the brain damage of the Appellant’s newborn is
because of lack of oxygen,
lack of blood and that is what appears
from the MRI scan, although he had difficulty to comment on how long
the insult occurred,
but according to the pattern of injury, it was
probably prolonged.
[44]
The next witness was Dr Ebrahim, a
specialist obstetrician and gynaecologist. In essence, Dr Ebrahim
testified that the maternity
guidelines, which is the manual for the
standard of care in labour indicates that a person who has a previous
caesarean section,
once she is in labour, the foetal heart rate
should be monitored using a cardiotocography monitor and that
monitoring should be
continuous for the duration of the labour. He
agreed that, due to the shortage of cardiotocography machines in
hospitals, it is
acceptable to use the monitor for a short period, 20
or 30 minutes. In this case, Dr Ebrahim stated that as the Appellant
had a
history of a caesarean section, she required the
cardiotocography monitoring, the reason being that there is a risk of
the scar
being placed under stress and monitoring the foetal heart
rate can give signs of a warning of the weakening of the scar and
before
the scar ruptures.
[45]
Dr Ebrahim listed the disadvantages of just
listening to the foetal heart rate without the use of a
cardiotocography machine. In
this regard, he testified that there
would be no record for review whenever there are complications.
Secondly, in patients with
a previous caesarean section, listening to
the heartbeat is not enough to check for intactness of the scar. He
further testified
that, although a breakdown in the scar is not
common with a person with a previous caesarean section, it is rare
and that is why
patients with a previous caesarean section are
allowed to go into labour and if it does occur, then maintaining
monitoring with
the cardiotocography provides adequate notice for
intervention to take place without a catastrophe occurring.
[46]
According to Dr Ebrahim, the main reason
that the foetal rate must be monitored is to ensure that the foetus
remains well oxygenated
in labour. The oxygen supply to the foetus
comes from the mother via an umbilical cord into the foetal
circulation. Dr Ebrahim
testified that, if that supply is reduced, or
if it begins as normal and it undergoes a reduction during the course
of labour,
because of the stress of labour, then the foetus responds
by alterations in the foetal heart rate. That would indicate that the

oxygen levels are becoming insufficient for the vital needs of the
foetus. Essentially, it is the need of the brain, heart and
kidneys
which are the main organs. The foetus responds by slowing the heart
rate and by monitoring the heart rate and detecting
these changes in
the heart rate, which are called deceleration, they provide warning
signs that if the sequence of events is allowed
to continue, the
foetus will suffer serious injury and possible death. According to Dr
Ebrahim, that warning in labour occurs two
to three hours and
sometimes four hours before the actual damage takes place.
[47]
Dr Ebrahim suggested that it is highly
likely that, in this case, foetal distress occurred without being
detected during labour
and that, if the nursing staff had carried out
foetal heart rate monitoring satisfactorily in this period, foetal
distress would
have been detected early enough to enable urgent
delivery of the baby by an emergency caesarean section. According to
Dr Ebrahim,
if this had been done, it is probable that the baby would
have been born in a healthy condition without hypoxic brain injury.
[48]
Dr Ebrahim, quoting from his report, stated
that:
‘
Thus
despite the lack of essential neonatal clinical records and placental
histology, the cause of a reverse HIE, hypoxic ischemic

encephalopathy, was most probably intrapartum hypoxia/acute foetal
distress. This was not detected because foetal heart rate monitoring

was probably not conducted satisfactorily in labour. The degree of
foetal distress was severe enough to cause significant neonatal
HIE
in her (that is in the baby) which subsequently progressed to
cerebral palsy. This sequence of events is the most likely
explanation
for her disability. If appropriate monitoring and
management was carried out, these complications and unlikely to have
occurred
and she would most probably have been born in a healthy
state.’
[49]
Dr Ebrahim testified that if there is no
proper monitoring, there is one of two scenarios, the one is that
absent proper monitoring,
warning signs would not be picked up, and
the second scenario is that, if there is proper monitoring, but is
ignored or the nurses
do not recognise the warning signs, the
situation would occur.
[50]
Dr Ebrahim had explained the manner in
which an injury had occurred and in his explanation, he said (and I
quote):
‘
It
all relates to the way the foetus responds to a lack of oxygen.
Essentially, as the oxygen supply is reduced to the foetus, the

foetus has a means to ration the oxygen according to the hierarchy of
needs and the foetus naturally sends oxygen when it is in
short
supply mainly to the heart and to the brain and to an extent to the
kidneys. So those are the organs that are preferentially
supplied
with oxygen when there is a reduction in oxygen supply to the foetus.
But of course, if that reduction continues, then
there comes a time
where the oxygen supply to the brain itself is placed under threat.
And when that happens, then the brain itself
will decide which
portions are more deserving of the oxygen within the brain. So if the
supply is reduced gradually, then the brain
will deprive the areas of
thoughts and the areas of emotion and personality and intelligence
and send the oxygen to the parts of
the brain that are controlling
the heart and the respiration because that is a survival mechanism.
But if the supply is reduced
to the brain suddenly, the brain does
not have a chance to auto regulate and under those circumstances the
most vulnerable areas
die first.’
[51]
In the opinion of Dr Ebrahim, the child
suffered a lack of oxygen as a result of the stress of labour and the
warning signs were
not detected because the monitoring was not
appropriate and as a consequence, it was only recognised at birth
that this child had
suffered severe distress during the course of
labour and that is when resuscitation and other measures were
implemented to try
and save, firstly the life of the child and to
optimise the health of the child as best as could be done given that
the window
of opportunity in labour had diminished.
[52]
Dr Ebrahim’s cross-examination
centred around the inconsistent time period given to him by the
Appellant. It was suggested
that his opinions would be based on
incorrect facts.
[53]
The Respondent had called two witnesses, Dr
Amith Keshave and Dr Vuyelwa Baba. Dr Keshave testified that he
consulted with the Appellant
and that he also examined the
Appellant’s newborn. He found the child to be suffering from
cerebral palsy. He testified further
that in trying to determine the
probable cause of the cerebral palsy, one had to look at the baby’s
head size and compare
it to the length and weight of the baby.
According to Dr Keshave, unfortunately, with the Appellant’s
newborn, there was
no recorded length and it was only the weight and
the head size that were recorded. The head size was above 97
percentiles, which
was, according to him, above average.
[54]
Dr Keshave testified that under normal
circumstances, and considering the head size, the normal birth weight
of the Appellant’s
newborn ought to have been 3.8 kg,
however, in this case, the weight was 3.2 kg. He testified that there
was a possibility
of intra-uterine growth restriction. In Dr
Keshave’s opinion, the baby had no reserves to go through a
birth process and
this was the probable cause of the injury suffered
by the Appellant’s newborn.
[55]
Dr Keshave testified that there was no
evidence on record of any hypoxic ischemic encephalopathy between
06h35 and 7h35 and that
the diagnosis of hypoxic ischemic
encephalopathy was only done at 10h15 and there is no explanation for
such delay. He further
testified that the seizures were only noted on
the minor child at 11h30, according to the records.
[56]
Dr Keshave conceded that there is hypoxic
injury which occurred intrapartum, but he contended that the hypoxic
injury could have
occurred during the birth process and as a result
of the intra-uterine growth restriction – a contention which is
nowhere
apparent in the Respondent’s pleadings.
[57]
During cross-examination, it was put to Dr
Keshave that in the joint minute he suggested a whole exam sequencing
which involves
the looking at the genes and the metabolic screen of
the child so as to exclude other factors that may have caused the
cerebral
palsy and that the whole exam sequencing came out negative
which he confirmed. It was then put to Dr Keshave that when all the
other factors that may have led to the cerebral palsy came out
negative, he then resorted to intra-uterine growth restriction to

which he responded by simply saying that the child had a predisposing
condition in the form of a head circumferences that was above
90 in
size and a birth weight that was nearly 25.
[58]
It was further put to Dr Keshave, during
cross-examination that on probability there would be warning signs of
any hypoxic ischemic
encephalopathy and that those warning signs
would have been picked up through proper monitoring. His response was
that he would
rather defer to obstetricians but where the child had
intra-uterine growth restriction the probability is that the injury
would
have occurred in the last minutes of the delivery.
[59]
The next witness called by the Respondent
was Dr Vuyelwa Baba, an obstetrician and gynaecologist. She testified
that she conducted
a virtual interview of the Appellant on 11
December 2020 and the Appellant, at the time, was with her minor
child, the Appellant’s
newborn. She testified that her opinions
were largely based on the history and information provided by the
Appellant.
[60]
Dr Baba testified that, according to the
Appellant, her lower abdominal pains started around 15h00 on 11
September 2009 whilst she
was at home and she went to her local
clinic around 16h00 and arrived at the clinic around 18h00. Dr Baba
testified that the Appellant
had advised her that her membranes
ruptured at the local clinic and she was then transferred to hospital
because she had a previous
caesarean section and that she arrived at
the hospital around 19h00 on the same day.
[61]
Dr Baba was informed by the Appellant that
upon her arrival at the hospital around 19h00, she was assessed and
seen by a doctor
and was told that the foetal heart rate was fine and
that she was still far from delivering. The Appellant further advised
her
that she recalls calling for assistance around 21h00 and a nurse
came to assist her and she was told that the foetal heart was fine

and she was not about to deliver.
[62]
According to Dr Baba, the Appellant advised
that she again called for help at 23h00 and a different nurse came to
review and asked
her to push the baby as she was ready to deliver and
that the baby was born shortly after midnight.
[63]
Dr Baba was informed by the Appellant that
the Appellant’s newborn did not cry at birth and was taken to
ICU.
[64]
Dr Baba confirmed that there were no
medical records and that she relied on the information that she
received from the Appellant
and the limited available records in
preparation of her report.
[65]
According to Dr Baba the weight of the baby
at birth was 3200g as reflected in the neonatal records and the Apgar
score at birth
was 5/10 which was low and would have required
resuscitation.
[66]
In her report, Dr Baba concluded that the
clinical management carried out by the staff at the local clinic was
appropriate up to
the transfer to the hospital. She also concluded
that the labour in the hospital, according to what the patient said,
also seemed
adequate and following national protocols. Dr Baba noted
some discrepancy concerning the delivery time as the Appellant said
she
delivered around midnight, whereas the neonatal records reflect
that she delivered at 06h35.
[67]
Dr Baba testified further that during the
latent phase of labour the guidelines prescribe that the foetal heart
rate must be monitored
every 2 hours and that during the active phase
of labour they prescribe that monitoring must occur every 30 minutes
and before,
during and after every contraction.
[68]
During cross examination, Dr Baba confirmed
that she had sight of the joint minutes of the radiologists, Prof
Lotz and Dr Zikalala,
as well as the obstetricians.
[69]
Dr Baba testified that when consulting with
the Appellant, it was not clear whether cardiotocography was done or
not and that the
Appellant was speaking in isiXhosa and therefore,
she was unable to confirm whether cardiotocography was done or not.
Dr Baba was
able to glean from the Appellant that the foetal heart
was checked as the Appellant advised her that a horn was used to
listen
to the baby’s heart. Dr Baba further confirmed that the
Apgar scores at 1 minute were 5/10, at 5 minutes they were 5/10

and then at 10 minutes they improved to 7/10 and that the Appellant’s
newborn was quickly taken to ICU and transferred to
Nelson Mandela
Academic Hospital where the Appellant’s newborn was diagnosed
with hypoxic ischemic encephalopathy. Dr Baba,
under
cross-examination, accepted that there was no recorded sentinel event
in respect of the Appellant’s newborn. However,
Dr Baba could
not agree that the fact that it was not recorded means that it did
not exist. Dr Baba stated that the sentinel
event may not have
been communicated though it existed and so with the unavailability of
the maternity case records one cannot
tell whether there was a
sentinel event noted at birth which was not communicated to Nelson
Mandela Academic Hospital or not.
[70]
Dr Baba conceded that the Appellant was a
high risk for the reasons of her caesarean section scar and that was
the reason for her
referral to the hospital. In this regard, Dr Baba
testified that, according to guidelines, 2 hourly monitoring for the
Appellant
was required during the latent phase of labour and the
active phase of labour half hourly monitoring is prescribed. She
confirmed
that she was not furnished with any information regarding
the monitoring of the Appellant from midnight until the birth of the
child at 06h35 on the morning of 12 September 2009.
The legal framework
for delictual liability
[71]
To
obtain a judgment holding the defendant liable to pay delictual
damages, the court in
Minister
of Safety & Security v Van Duivenboden
[1]
stated that the plaintiff must prove, on a balance of probabilities,
that the act(s) or omission(s) of the defendant was wrongful
and
negligent, and caused loss. The approach in our law to the
plaintiff’s claim is not controversial.
[72]
It is trite that in order to succeed in her
delictual claim for damages, the plaintiff must establish that the
wrongful and negligent
conduct of the Respondents nursing and medical
staff, acting within the course and scope of their employment, caused
her harm.
[73]
The correct approach for establishing the
existence or otherwise of negligence was laid down in
Kruger
v Coetzee
decades ago and remains the
same. This test rests on two bases, namely, reasonable foreseeability
and the reasonable preventability
of damage. It is important to
emphasise that what is required is foresight of the reasonable
possibility of harm ensuing; foresight
of a mere possibility of harm
does not suffice. What is or is not reasonably foreseeable in a
particular case is a fact bound enquiry
that entails the
consideration of all the circumstances of the case. Health
professionals such as doctors and nurses are required
to dispense
reasonable care by adhering to the level of skill and diligence
exercised by members of their profession, failing which
they would be
negligent.
[74]
In
the circumstances of this case, the hospital staff, doctors and
nurses, who attended to the Appellant will be found to have been

negligent if, in dispensing medical care to the Appellant, they
failed to foresee the possibility of harm occurring in circumstances

where similarly qualified health professionals in the same position
would have reasonably foreseen this possibility and would have
taken
steps to prevent it.
[2]
Put
otherwise, negligence concerns a deviation from a particular standard
of conduct.
[75]
In
Kruger
v Coetzee
[3]
it was held-
‘
For
the purposes of liability culpa arises if–
(a)
a diligens paterfamilias in the position of the defendant (or his
employees)-
(i)
would foresee the reasonable possibility of his (their) conduct
injuring another in his
person or property and causing him
patrimonial loss; and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant (or his employees) failed to take such steps.’
[76]
In
The
Member of the Executive Council for Health, Eastern Cape v DL obo
AL
,
[4]
Molemela JA (as she then was) dealing with the test for causation
held:
‘
The
test for factual causation is whether the act or omission of the
defendant has been proved to have caused or materially contributed
to
the harm suffered. Where the defendant has negligently breached a
legal duty and the plaintiff has suffered harm, it must still
be
proved that the breach is what caused the harm suffered. In the
present matter, the question is whether the brain damage sustained
by
AL would have been averted if the hospital staff had properly
monitored the mother and foetus and had acted appropriately on
the
results? If so, factual causation is established. If not, factual
causation has not been established and one is left with only
wrongful
conduct without proof that it caused the harm suffered.’
[77]
In
Naude
NO v Transvaal Boot and Shoe Manufacturing
[5]
it was held:
‘
Although
the onus of proving negligence is on the plaintiff, the plaintiff
does not have to adduce positive evidence to disprove
every
theoretical explanation which is exclusively within the knowledge of
the defendant, however unlikely, that might be devised
to explain
(his paraplegia) in a way which would absolve the defendant and his
employees of negligence.’
[78]
In
Mitchell
v Dixon
[6]
it was held:
‘
A
medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional
skill,
but he is bound to employ reasonable skill and care; and he is liable
for the consequences if he does not.’
[79]
In
Monteoli
v Woolworths (Pty) Ltd
[7]
the court confirmed that the onus, nevertheless, remains with the
plaintiff. The defendant has an evidential burden to show what
steps
were taken to comply with the standards to be expected.
[80]
In
Minister
of Safety & Security & Another v Carmichele
[8]
the court confirmed that causation has two elements:
‘
1.
The factual issue to be established on a balance of probabilities by
the plaintiff by using
the “but for” test would involve
the mental elimination of the wrongful conduct in the posing of the
question as to
whether upon such hypothesis, the plaintiff’s
loss would have ensued or not;
2.
The legal causation, namely whether the wrongful act is linked
sufficiently closely or directly
to the loss for legal liability to
ensure or whether, as it is said, the loss is too remote. This is a
juridical problem and considerations
of policy may play a part in the
solution thereof.’
[81]
In
Caswell
v Powell Duffryn Associates Collieries
[9]
Lord Wright remarked:
‘
Inference
must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are objective facts
from which to
infer the other facts from which it is sought to establish. In some
cases, the other facts can be inferred with as
much practical
certainty as if they had been actually observed. In other cases the
inference does not go beyond reasonable probability.
But if there are
no positive proved facts from which the inference can be made, the
method of inference fails and what is left
is mere speculation or
conjecture.’
[82]
In the notice of appeal in the present
case, it was submitted that the Court
a
quo
had erred in not attaching any,
alternatively, sufficient or appropriate evidential weight to the
agreement reached between overlapping
experts as expressed in their
respective joint minutes. The contention by the Appellant, in this
regard, was that the Court
a quo
erred in not taking into account that as a result of the agreements
embodied in the joint minutes, there was no need for the Appellant
to
adduce evidence on the agreed issues and that the Court
a
quo
had no foundational basis for not
accepting the agreement between the radiologists that the injury, in
the absence of a sentinel
event, had occurred over a long period of
time.
[83]
The contention, as I understand, is that
the Court
a quo
had erred in ignoring the agreement and or the joint minutes by
experts.
[84]
This contention raises the question as to
the effect of an agreement recorded by experts in a joint minute.
[85]
In
Bee
v RAF
[10]
Rogers AJA said:
‘
The
appellant’s counsel referred us to the judgment of Sutherland J
in Thomas v BD Sarens (Pty) Ltd [2012] ZAGPJHC 161. The
learned judge
said that where certain facts are agreed between the parties in civil
litigation, the court is bound by such agreement,
even if it is
sceptical about those facts (para 9). Where the parties engage
experts who investigate the facts and where those
experts meet and
agree upon those facts, a litigant may not repudiate the agreement
“unless it does so clearly and, at the
very latest, at the
outset of the trial” (para 11). In the absence of a timeous
repudiation, the facts agreed by the experts
enjoy the same status as
facts which are common cause on the pleadings or facts agreed in a
pre-trial conference (para 12). Where
the experts reach agreement on
a matter of opinion, the litigants are likewise not at liberty to
repudiate the agreement. The trial
court is not bound to adopt the
opinion but the circumstances in which it would not do so are likely
to be rare (para 13). Sutherland
J’s exposition has been
approved in several subsequent cases, including in a decision of the
full court of the Gauteng Division,
Pretoria, in
Malema
v Road Accident Fund
[2017] ZAGPJHC 275
para 92.
“
In
my view we should in general endorse Sutherland J’s approach,
subject to the qualifications which follow. A fundamental
feature of
case management, here and abroad, is that litigants are required to
reach agreement on as many matters as possible so
as to limit the
issues to be tried. Where the matters in question fall within the
realm of the experts rather than lay witnesses,
it is entirely
appropriate to insist that experts in like disciplines meet and sign
joint minutes. Effective case management would
be undermined if there
were unconstrained liberty to depart from agreements reached during
the course of pre-trial procedures,
including those reached by the
litigants’ respective experts. There would be no incentive for
parties and experts to agree
matters because, despite such agreement,
a litigant would have to prepare as if all matters were in issue. In
the present case
the litigants agreed, in their pre-trial minute of
14 March 2014, that the purpose of the meeting of the experts was to
identify
areas of common ground and to identify those issues which
called for resolution.”’
[86]
In
MEC
for Health and Social Development, Gauteng v MM on behalf of OM
[11]
Gorven JA held:
‘
Of
some importance in this matter is the status of such joint minutes.
They recorded areas of agreement and disagreement of the
expert
witnesses of the parties. A pre-trial meeting agreed that, where
there was agreement between two or more expert witnesses,
that
agreement was binding on the parties. In that regard, this Court has
held–
“
Where,
as here, the court has directed experts to meet and file joint
minutes, and where the experts have done so, the joint minute
will
correctly be understood as limiting the issues on which evidence is
needed. If a litigant for any reason does not wish to
be bound by the
limitation, fair warning must be given. In the absence of repudiation
(i.e. fair warning), the other litigant is
entitled to run the case
on the basis that the matters agreed between the experts are not in
issue.”
It follows, as a
necessary corollary, that where there is no agreement, the minutes
must be disregarded. If a party wishes to rely
on what a witness
records in a minute where there is no agreement, evidence on that
point is necessary before it may be taken into
account.’
[87]
The
parties, in this case, rely upon evidence of experts. The experts who
testified are experienced in their respective fields.
As a result of
the expert reports and testimonies, the issues were narrowed down
substantially. The starting point would be to
evaluate and resolve
the conflict in the testimony of the experts for the Appellant and
the Respondent. In doing such an evaluation,
the Full Bench of this
Division in
J.A
obo D.M.A v Member of Executive Council for Health, Eastern Cape
[12]
held:
‘
The
opinion of a witness is generally inadmissible. “In the law of
evidence, ‘opinion’ means any inference from
observed
facts, and the law on the subject derived from the general rule that
witnesses must speak only to that which was directly
observed by
them.” Opinion is admissible if it is relevant. Relevance is in
turn determined by the issues in the matter.
If the opinion can
assist the court in determining an issue, it has probative value,
otherwise it is superfluous. Expert opinion
evidence is received when
the issues require special skill and knowledge to draw the right
inferences from the facts stated by
the witnesses.’
[88]
The
Full Bench of the Eastern Cape in
J.A
obo D.M.A
discusses
several types of conflicts in expert evidence that may present itself
in any given case.
[13]
[89]
The first is a conflict about the assumed
facts. Expert opinion must have a factual basis. The facts upon which
an expert opinion
is based must be proved by admissible evidence.
[90]
A second conflict in the expert opinion may
lie in the analysis of the established facts and the inferences drawn
therefrom by the
opposing witnesses. The cogency of the expert
opinion depends on its consistency with proven facts and on the
reasoning by which
the conclusion is reached. The source for the
evaluation of this evidence for its cogency and reliability are: (a)
the reasons
that have been provided by the expert for the position
adopted by him/her; (b) whether that reasoning has a logical basis
when
measured against the established facts; and (c) the
probabilities raised on the facts of the matter. It means that the
opinion
must be logical in its own context, that is, it must accord
with, and be consistent with all the established facts, and must not

postulate facts which have not been proved.
[91]
The inferences drawn from the facts must be
sound. The logic of the opinion must be consistent, and the reasoning
adopted in arriving
at the conclusion in question must accord with
what the accepted standards of methodology are in the relevant
discipline.
[92]
The reasoning will be illogical or
irrational and consequently unreliable, if (a) it is based on a
misinterpretation of the facts;
(b) it is speculative, or internally
contradictory or inconsistent to be unreliable; (c) if the opinion is
based on a standard
of conduct that is higher or lower than what has
been found to be the acceptable standard; and (d) if the methodology
employed
by the expert witness is flawed. What flows from this is
that the mere fact that an expert opinion is unchallenged, does not
necessarily
mean that it must be accepted. However, if that evidence
is based on sound grounds and is supported by the facts, there exists
no reason not to accept it.
[93]
Other considerations relevant in this
context are (a) the qualifications and the experience of the expert
witnesses with regard
to the issue he or she is asked to express an
opinion on; (b) support by authoritative, peer-reviewed literature;
(c) the measure
of equivocality with which the opinion is expressed;
(d) the quality of the investigation done by the expert; and (e) the
presence
or absence of impartiality or a lack of objectivity.
[94]
What is ultimately required is a critical
evaluation of the reasoning on which the opinion is based, rather
than considerations
of credibility. Should it not be possible to
resolve a conflict in the expert opinion presented to the court in
this manner, that
is, when the two opposing opinions are both found
to be sound and reasonable, the position of the overall burden of
proof will
inevitably determine which party must fail.
[95]
It
is worth emphasising that the onus as a determining factor ‘can
only arise if the tribunal finds the evidence pro and con
so evenly
balanced that it can come to no such conclusion. Then the onus will
determine the matter. But if the tribunal, after
hearing and weighing
the evidence, comes to a determinate conclusion, the onus has nothing
to do with it, and need not be further
considered.’
[14]
[96]
The third type of conflict, which may arise
in expert evidence is that of competing theories of a purely
scientific nature. The
choice between two conflicting theories is
informed primarily by the extent to which the theory is regarded as
being established
and has gained general acceptance within the
specific scientific community in the particular discipline to which
it belongs. Whether
or not a theory has been sufficiently established
must be measured against considerations such as whether it can, and
has been
tested; whether it is the product of reliable principles and
methods that have been reliably applied to the facts of the case; and

whether it has been subjected to peer review and publication.
[97]
The fourth and final conflict may also
arise in the context of what the accepted standard of conduct of a
medical professional is
in certain circumstances. Typically, medical
negligence cases deal with the situation where an injury is alleged
to be in complete
discord with the recognised therapeutic objective
and techniques of the operation or treatment involved. Expert
opinion, in this
context, is aimed at determining whether the conduct
of a professional person in a particular field accords with what is
regarded
as a sound practice in that field. Again, the method adopted
is to evaluate opinion evidence with the view of establishing the
extent to which the opinions advanced are founded on logical
reasoning.
[98]
What is evident from the aforegoing is that
the evaluation of expert opinion in determining its probative value
and the considerations
relevant thereto are determined by the nature
of the conflict in the opinion, and the context provided by all the
evidence and
the issues which the court is asked to determine. In
general, it is important to bear in mind that it is ultimately the
task of
the court to determine the probative value of expert evidence
placed before it and to make its own finding with regard to the
issues
raised.
[99]
Faced with a conflict in the expert
testimony of the opposing parties, the court is required to justify
its preference for one opinion
over another by a careful and critical
evaluation thereof. Further, the primary function of an expert
witness is to guide the court
to a correct decision on questions,
which fall within that expert’s field. To that extent, the
expert witness has a duty
to provide the court with abstract or
general knowledge concerning his or her discipline, and the criteria
necessary to enable
the court to form its own independent judgment by
the application of the criteria to the facts proved in evidence.
[100]
Accordingly,
the mere ‘pitting of one hypothesis against another does not
constitute the discharge of the functions of an
expert.’
[15]
[101]
Finally, it is not the function of the
court to develop its own theory or thesis and to introduce on its own
accord evidence that
is otherwise founded on special knowledge and
skill.
Ex hypothesi
,
such evidence is outside the learning of the court. The function of
the court is restricted to deciding a matter on the evidence,
or
accepting or rejecting the proffered expert evidence.
[102]
There is a general obligation placed upon
the parties in cross-examination of witnesses, including experts, to
put the parties’
case to the witness being cross examined.
The reason for this is to allow the witness to deal with the evidence
where he differs
with such evidence.
[103]
In
this regard,
Small
v Smith
[16]
and
President
of the Republic of South Africa v SARU
[17]
support the position taken by this Court. Expert witnesses should
provide independent assistance to the court by way of objective,

unbiased opinions. An expert witness is not required to assume the
role of a legal practitioner or that of the court.
[104]
An expert witness must state facts or
assumptions upon which his or her opinion is based. The expert must
not omit to consider the
material facts that should detract from his
concluded opinion. It is not expected of the court to simply accept
the opinions of
experts. The expert’s evidence must be logical
and his or her conclusions must be reached with knowledge of all the
facts.
[105]
In
Schneider
NO and Others v AA and Another
[18]
Davis J discusses the duties of an expert with reference to some
authorities, whereafter he makes the following statement, with
which
I agree:
‘
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument of the
particular
party. But that does not absolve the expert from providing the court
with as objective and unbiased an opinion, based
on his or her
expertise, as possible. An expert is not a hired gun who dispenses
his or her expertise for the purposes of a particular
case. An expert
does not assume the role of an advocate, nor gives evidence which
goes beyond the logic which is dictated by the
scientific knowledge
which that expert claims to possess.’
[106]
In
Michael
and Another v Linksfield Park Clinic (Pty) Ltd & Another
[19]
the court had the following to say when considering expert evidence:
‘
This
essential difference between the scientific and the judicial measure
of proof was aptly highlighted by the House of Lords in
the Scottish
case of
Dingley v The Chief Constable,
Strathclude Police
200 SC (HL) 77 and
the warning given at 89D-E that:
“
[O]ne
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a Judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved –
instead of assessing, as a Judge must do, where
the balance of
probabilities lies on a review of the whole of the evidence.”’
[107]
The Appellant’s newborn was born
during September 2009. There are no prenatal and obstetric records.
The Appellant gave her
evidence on 7 February 2022, that is
approximately 12 years later. The only available records relate to
the period after birth
and those are the records from Nelson Mandela
Academic Hospital.
[108]
When the Appellant complained about the
missing records, the Court
a quo
gave short shrift to the complaint and refused to draw any adverse
inference against the Respondent. The Court
a
quo
found that the absence of records
is a neutral factor. There was no evidence to question whether a
diligent search for the records
was conducted and who conducted such
a search, if any, for these missing records.
[109]
In relation to the availability of the
records, the
National Health Act 61 of 2003
deals with the
maintenance of records and
section 13
provides:
‘
Subject
to National Archives of South Africa Act, 1996 (Act No 43 of 1996),
and the Promotion of Access to Information Act, 2000
(Act No 2 of
2000), the person in charge of a health establishment must ensure
that a health record containing such information
as may be prescribed
is created and maintained at that health establishment for every user
of health services.’
[110]
Section 17 provides–
‘
The
person in charge of a health establishment in possession of a user’s
health records must set up control measures to prevent
unauthorised
access to those records and to the storage facility in which, or
system by which, records are kept.’
[111]
The Appellant was a single witness in
relation to her labour and birthing process. The Respondent only
relied upon expert evidence.
The Court
a
quo
rejected her evidence as
unreliable.
[112]
One of the grounds of appeal is that the
Court
a quo
erred in finding that the evidence of the Appellant was unreliable in
circumstances where her evidence was corroborated by the
objective
records which are available. In these circumstances, the Court will
consider the principles applicable to a single witness.
The contentions of the
parties
[113]
Mr
Du Plessis
SC
, counsel for the Appellant,
questioned the Court
a quo
’s
criticism of the radiologists’ joint minute where they agreed
that, in the absence of a sentinel event the ‘acute
profound’
pattern of injury may have occurred over a prolonged period of time
and that there was no document which was attached
to the joint minute
and evidence by the radiologists to explain the alternative pathways.
In this regard, Mr
Du Plessis
submitted that the findings by the Court
a
quo
ignores the joint minutes between
and the evidence of the other experts that were called, who all
corroborated the statement by
the radiologists and explained in
detail how the alternative pathway may cause this type of injury over
a period of time.
[114]
In
advancing the point, Mr
Du
Plessis
contended that it was not necessary for any of the parties to call
their respective radiologists. Relying on the authority of
Bee
v Road Accident Fund
[20]
and
Thomas
v BD Sarens (Pty) Ltd
,
[21]
he contended that it has long been accepted that a fact agreed upon
in a joint expert minute is a fact of which no evidence need
to be
tendered at trial, for it is considered a fact that a court can, and
must, accept as true.
[115]
Mr
Du
Plessis
submitted that parties are bound to the agreement reached between
experts in joint minutes, although such agreements are capable
of
repudiation, so long as the repudiation is clear and timeous. He
further relied, in this regard, on the authority of
MEC
for Health and Social Development, Gauteng v MM obo OM.
[22]
[116]
The upshot of Mr
Du
Plessis
’ contention was that the
Respondent was bound to the agreements reached in the joint minutes,
including that of the radiologists
and that it was not necessary for
the Appellant to have led the evidence of its radiologist.
Accordingly, Mr
Du Plessis
submitted
that the Court
a quo
’s
finding in this regard was a misdirection and therefore cannot stand.
[117]
Mr
Du Plessis
contended that the Respondent, in relation to the agreement of the
radiologists, did not lead any evidence contrary to that of
the
radiologists and as his submission goes, it was incorrect for the
Court
a quo
to reject the agreement purely based on its own logic, which had no
factual foundation. Mr
Du Plessis
pointed out that there is simply no evidence whatsoever to support
the findings of the Court
a quo
in relation to the agreement of the radiologists. In this regard, Mr
Du Plessis
referred to the agreement reached between the experts, which I find
it apposite to quote:
‘
The
agreement between the radiologists states that–
(ii)
The MRI study defines structural damage to the perirolandic cortex
and the basal ganglia, thalamic
complex (BGT), constituting a
cerebrocortical-deep nuclear pattern.
The agreement between
Prof van Toorn and Dr A Keshave states that–
16.
Prof R van Toorn The 2019 (reaffirmed) ACOG neonatal encephalopathy
and the neurological outcome task
force describes 4 patterns of
selective neuronal injuries (in term infants with neonatal
encephalopathy) which reflect the severity,
duration, the nature of
the insult (page 150). The second form of selective neuronal injury
is the cerebral-deep nuclear neuronal
injury pattern, which combines
neuronal damage in the deep nuclear grey matter with injury in the
cerebral cortex, usually the
parasagittal area of the perirolandic
cortex. This is referred to on imaging studies as “cerebral
deep nuclear” pattern.
It is my opinion that this is the MRI
pattern evident on I[…]’s MRI scan.
Dr A Keshave : Agreed.’
[118]
Mr
Du Plessis
further submitted that the pattern of injury as described in both
agreements involves a severe partial insult / asphyxia of prolonged

duration, especially where no sentinel event was recorded. He
therefore contended that the finding should have been made on the

basis of the agreement reached by the experts’ as stated in the
joint minutes.
[119]
In respect of the findings by the Court
a
quo
, that even though no sentinel event
may have occurred in this case, it does not detract as a matter of
logic from the fact that
the damage was from the asphyxia typically
caused by sentinel events, i.e. profound asphyxia which causes injury
over a relatively
short period of time.
[120]
In this regard, Mr
Du
Plessis
submitted that the evidence by
the respective experts relating to an injury that occurs without
there being any prior warning signs,
was on the basis of a sentinel
event being present. In such a case the injury is sudden and usually
not foreseeable. Mr
Du Plessis
contended that it was common cause that in this case there was no
sentinel event.
[121]
In advancing the Appellant’s case, Mr
Du Plessis
submitted
that the radiologists who examined the MRI scan without having any
information of the clinical picture, agreed that the
injury was to
the deep nucleus of the Appellant’s newborn’s brain. It
was further agreed that, in the absence of a
sentinel event, the
injury occurring over a period of time should be considered and
referred to relevant literature in that regard.
[122]
Mr
Du Plessis
pointed out that, in this regard, the manner in which such an injury
occurred was explained by both Prof Van Toorn and Dr Ebrahim
and that
their evidence corroborated and strengthened the agreement reached by
the radiologists.
[123]
Mr
Du Plessis
submitted that the Court
a quo
’s
findings that the radiologists do not explain how the alternative
pathways may cause this type of injury over a period
of time does not
take cognisance of the evidence. In this regard, Mr
Du
Plessis
submitted that the Court
a
quo
erred in simply ignoring the
evidence, especially when there was no contrary evidence by the
Respondent. For this reason, it was
submitted that the Court
a
quo
erred in its approach of the
evidence.
[124]
Mr
Du Plessis
contended that the evidence of Prof Van Toorn and Dr Ebrahim had
sufficiently explained how the alternative pathway could cause
the
kind of injury pattern and that the Court a quo was incorrect to
characterise the evidence as pure speculation and conjecture.
The
submission was that the Court a quo had no basis of rejecting the
evidence of Dr Ebrahim and prefer its own logic for the reason
that a
court should never act as an expert in a field in which it has no
knowledge.
[125]
Mr
Du Plessis
submitted that the Court
a quo
had confused the warning signs with the injury, and in this regard,
it was submitted that even though the injury may have occurred
in the
last 15 minutes before birth, the foetus was in distress over a
prolonged period of time prior to that. Accordingly, Mr
Du
Plessis
submitted that the simple fact
is that the injury could have been prevented if there had been proper
monitoring of the foetal heart
rate and this is irrespective of
whether the injury may have occurred in the last 15 minutes. The
contention is that all that matters
is what happened prior and
whether the injury could have been prevented.
[126]
Mr
Du Plessis
submitted that whatever interpretation is preferred, what is clear is
that there was a severe partial asphyxia with prolonged duration
and
that is in line with the pattern of the injury as agreed by the
radiologists and the paediatric neurologists. Mr
Du
Plessis
contended that the finding of
the Court
a quo
that the injury occurred over a relatively short period of time was
without factual and scientific evidence.
[127]
Mr
Du Plessis
further contended that the Respondent
did not agree with the proposition that the MRI features would be
diagnostic of an acute profound
(central) hypoxic ischemic injury of
the brain now in a chronic stage of evolution. He contended that in
the absence of agreement
and there being no evidence to support it,
it was simply wrong for the Court a quo to nevertheless make a
finding to this effect.
[128]
Mr
Du Plessis
also submitted that the Court
a
quo
erred in finding that the evidence
of the Appellant was unreliable in circumstances where the
Appellant’s evidence was corroborated
by the objective evidence
in the form of records and to reject, on that basis as well, the
evidence of the experts. It was submitted
that the Court
a
quo
should have found that the expert
evidence presented on behalf of the Appellant was factually sound and
logically cogent and fitted
in completely with the factual evidence
of both the Appellant and the hospital records that were available.
[129]
Mr
Du
Plessis
submitted that the Court
a
quo
should have held that the evidence of the Appellant was extremely
valuable in excluding the probability of a brain injury occurring
in
utero or after birth as her evidence confirms that the foetus was
found to be healthy during all antenatal assessments and not
exposed
to any of the injuries suggested by the Respondent’s experts.
Mr
Du
Plessis
contended
that the Court
a
quo
should have considered what was held in the matter
M
obo M v The Member of the Executive Council for Health of the Gauteng
Provincial Government
[23]
where Moshidi J held that:
‘
Section
16 of the Civil Proceedings Evidence Act, provides as follows:
“
Judgment
may be given in any civil proceedings on the evidence of any single
competent and credible witness.”
. . . The trial court
should weigh the evidence of the single witness and should consider
its merits and demerits and having done
so, should decide whether it
is satisfied that the truth has been told despite shortcomings or
defects or contradictions in the
evidence.
. . .
[A] single witness ought not be satisfactory in all material
respects. The proper test is not whether a witness is truthful
or
indeed reliable in all that he/she says, but whether on a balance of
probabilities the essential features of the story which
he/she tells
are true. Not all contradictions affect a witness’s
credibility. In
S
v Mkohle
[24]
Nestadt JA said–
“
Contradictions
per se do not lead to the rejection of a witness’s evidence. As
Nicholas J, as he then was, observed in
S
v Oosthuizen
1982 (3) SA 571
(T) at
576B-C, they may simply be indicative of an error. And (at 576G-H) it
is stated that not every error made by a witness affects
his
credibility; in each case the trier of fact has to make an
evaluation; taking into account such matters as the nature of the

contradictions, their number and importance, and their bearing on
other parts of the witness’s evidence.”’
[130]
On the contrary, Mr
Nabela
,
who appeared for the Respondent, contended that the first difficulty
with the Appellant’s case is the absence of medical
records and
that is more prejudicial to the Respondent. In this regard, he
submitted that the Court
a quo
was correct on rejecting the call by the Appellant to draw adverse
inference against the Respondent. He submitted that the Appellant,
in
such circumstances, had a duty to give credible evidence and she
failed to do so.
[131]
Mr
Nabela
submitted that the Appellant’s evidence is full of
contradictions, such that it would not be safe to rely upon and
therefore,
the Court a quo correctly rejected the Appellant’s
evidence. In this regard, Mr
Nabela
relied on the authority of
Mthuki
v The Member of the Executive Council of the Gauteng Provincial
Government.
[25]
[132]
Mr
Nabela
submitted that the Appellant had an onus to prove through credible
and persuasive evidence, that medical staff had failed to adhere
to
the required standards and therefore, she failed to discharge the
onus resting upon her. Mr
Nabela
contended that the fact that harm had been occasioned was not on its
own most that medical staff had caused it, or that they had
done so
negligently or even that resulted to the brain injury. In this
regard, Mr
Nabela
relied
on the case of
Goliath
v Member of the Executive Council for Health, Eastern Cape
[26]
and
Van
Zyl v Frohlich and Others
.
[27]
[133]
The upshot of Mr
Nabela
’s
submissions was that based on the contradictions in the evidence of
the Appellant, the credibility of the Appellant destroyed
the
foundation of her expert evidence and opinion and that the appeal
should fail on this basis.
[134]
I will now evaluate the submissions and
consider the parties’ submissions.
Evaluation and
analysis
[135]
As already stated, the parties agreed, at
the commencement of the trial, that the only issue for determination
was limited to negligence
and that causation was not an issue.
Whether the concession by the Respondent on the issue of causation
was well made, is another
matter. This Court must still consider the
question, if negligence is established, whether it caused the
Appellant’s newborn’s
hypoxic ischemic injury resulting
in cerebral palsy.
[136]
It
is well established law that a Court of appeal is only at liberty to
interfere with the findings of fact and inferences drawn
by the trial
Court, if there is a clear misdirection on the facts by the trial
Court and the Court of appeal is satisfied that
the trial court had
reached a wrong conclusion. In
Minister
of Safety & Security and others v Craig
[28]
Navsa JA held:
‘
Although
courts of appeal are slow to disturb findings of credibility, they
generally have greater liberty to do so where a finding
of fact does
not essentially depend on the personal impression made by a witness’
demeanour, but predominantly upon inferences
and other facts and upon
probabilities. In such a case a court of appeal with the benefit of a
full record may often be in a better
position to draw inferences.’
[137]
On a crucial aspect about the availability
of records, the Court
a quo
found, without any evidence or some form of factual basis that:
‘
Both
parties were, in my view, equally handicapped by the unavailability
of the medical records, the plaintiff had to rely on her
memory in
relation to the events of 11 September 2009, which was more than 12
years to date of the hearing of the matter. The defendant,
on the
other hand, as expected in circumstances where there are no records,
obviously found it difficult to identify even the witnesses
that were
involved in the diagnosis, admission, monitoring and treatment of the
plaintiff.’
In my view, this finding
does not bear close scrutiny.
[138]
The Court
a
quo
proceeded to state:
‘
Accordingly,
and in my view, the absence of the records is a neutral factor in
this case. It cannot be used in favour of any of
the parties. Neither
can it be used against any of the parties and, accordingly, no
adverse inference can be drawn against any
of the parties, at least
on the facts of this case.’
[139]
The
Court
a
quo
was manifestly wrong in this regard. There is a legal duty on the
nurses at the clinic, the doctor and nurses at the hospital to
record
the treatment accorded to the Appellant and the Appellant’s
newborn. The Respondent’s employees were obliged
to and must
have made and kept punctilious clinic and hospital records pertaining
to the Appellant’s treatment. Insofar as
the clinic and
hospital notes are missing from the Appellant’s file and that
of the Appellant’s newborn, there is a
duty on the clinic and
hospital record custodian staff in terms of
sections 13
and
17
of the
National Health Act
[29]
to
safeguard the Appellant and her newborn’s clinic and hospital
records.
[30]
[140]
Curiously, the Respondent, who admittedly
has a statutory obligation to keep and maintain records of health
users, furnished no
explanation nor gave any form of evidence about
the missing records and whether any diligent search was conducted to
find the records.
[141]
In my view, it is simply not enough for the
Respondent to allege that the medical records went missing. In this
case, there is simply
a paucity of information from a party that has
an obligation to give the explanation. The reasoning by the Court
a
quo
that the question of the missing
records is a neutral factor has no factual foundation. I agree with
Mr
Du Plessis
that an adverse inference against the Respondent ought to have been
drawn in these circumstances, especially when the Court
a
quo
criticised the Appellant about her
contradiction on dates and time periods relating to her labour and
the birth of the Appellant’s
newborn. Those records would have
easily resolved such questions.
[142]
The Court
a
quo
has found the Appellant to be an
unreliable witness and, on that basis, found that the rejection of
the Appellant’s evidence
has a detrimental effect on the
cogency and the reliability of the opinions of the expert witnesses.
[143]
The Court
a
quo
went on to find that the
Appellant’s evidence that she was not monitored from 10h00
until she delivered, to be unreliable.
This finding too has no basis
and cannot stand. I agree with Mr
Du
Plessis
’ submission in this
regard. The Appellant’s evidence should be assessed in light of
the objective facts and if that
is done, no doubt, her evidence
should be reliable. In the Respondent’s available records of
Nelson Mandela Academic Hospital,
the Appellant was last checked at
00h00. She delivered at 06h35 in the morning. The record from Nelson
Mandela Academic Hospital
is objective evidence. The Court
a
quo
ought to have considered this
objective evidence. It did not do so.
[144]
In
MA
obo LM v The Member of the Executive Council for Health of the
Gauteng Provincial Government
,
[31]
in an action where Moshidi J had to decide upon the quality and
veracity of the evidence of a mother in labour where the medical

records in respect of the obstetric care were not available, Moshidi
J held that the trial court should weigh the evidence of the
single
witness and should consider its merits and demerits, and having done
so, should decide whether it is satisfied that the
truth has been
told despite shortcomings or defects or contradiction in the
evidence.
[145]
In
Santam
Bpk v Biddulph
[32]
Zulman JA held:
‘
(a)
Whilst a court of appeal is generally reluctant to disturb findings
which depend on credibility it is
trite that it will do so where such
findings are plainly wrong (
R v Dhlumayo
and Another
1948 (2) SA 677
(A) 706).
This is especially so where the reasons given for the finding are
seriously flawed. Over-emphasis of the advantages which
a trial court
enjoys is to be avoided lest an appellant’s right of appeal
“become illusory” (
Protea
Assurance Co. Ltd v Casey
1970 (2) SA
643
(7) 648 D-E and
Munster Estates
(Pty) Ltd v Killarney Hills (Pty) Ltd
1979 (1) SA 621
(A) 623H-624A). It is equally true that findings of
credibility cannot be judged in isolation but require to be
considered in the
light of proven facts and the probabilities of the
matter under consideration.
(b)
An analysis of the evidence as a whole, including that of Sigasa,
proper regard being had to the
probabilities, leads to the conclusion
that the finding of credibility by the court a quo is untenable (cf
Stellenbosch Farmer’s Winery Group Ltd and another v Martell
et Cie and others
2003 (1) SA 11
(SCA) para 14I-15E. Almost at
the outset of its judgment the court a quo concluded that the
appellant’s claim depended exclusively
upon the evidence of
Sigasa. This was not a correct assessment of the matter since the
court was plainly obliged to consider the
evidence of all the other
witnesses called by the appellant.
(c)
Quite apart from the bare say-so of Sigasa the Court had before it as
objective facts, not dependent
on the credibility of any witness . .
.’
[146]
The Court
a
quo
found the Appellant’s
evidence to be unreliable, based on contradictions about time periods
of when the Appellant first experienced
labour pains, the time of
arriving at the Baziya Clinic, the time of transfer to the Mthatha
General Hospital and the time of arrival
at the Mthatha General
Hospital.
[147]
Quite apart from the evidence of the
Appellant, the Court
a quo
had before it, as objective facts, not dependent on the credibility
of any witness, the following – (i) the records from
Nelson
Mandela Academic Hospital which reflect the time of the Appellant’s
newborn’s birth; (ii) the experts joint
minutes; (iii) the
Rule
37
conference minutes; (iv) undisputed evidence that the Appellant
attended at Baziya Clinic, (v) that she was transferred to Mthatha

General Hospital; (vi) that she was last seen by the nurse at 00h00;
and (vii) that the Appellant was not checked until she gave
birth at
06h35 on 12 September 2009.
[148]
It is self-evident that when the Appellant
attended to Baziya Clinic, she was experiencing labour pains and it
would be unreasonable
to expect her in such a condition to have a
precise recollection of the time when she started to experience those
pains. It is
also telling that when she was transferred to the
Mthatha General Hospital, she was still enduring labour pains and she
would not
be able to precisely recollect the time that she arrived at
the Mthatha General Hospital.
[149]
The confusion relating to time frames given
by the Appellant to the experts and her recollection in this regard,
becomes more apparent
on close reading of the expert reports. In this
regard, Dr Baba, in her report, recorded as follows:
‘
On
11 September 2009, N[…] experienced lower abdominal pain
around 15h00. She went to the local clinic around 16h00 on the
same
day… Patient arrived at the hospital around 19h00, according
to her recollection.’
[150]
Based
on this report, it is self-evident that the Appellant did not
remember the exact time and that she was merely giving estimates
and
therefore, it is incorrect for the Court
a
quo
to rely on the inconsistencies based on estimated times. In
S
v Mkohle
[33]
it was held–
‘
Contradictions
per se
do
not lead to the rejection of a witness’s evidence. As Nicholas
J, as he then was, observed in
S v
Oosthuizen
1982 (3) SA 571
(T) at
576B-C, they may simply be indicative of an error. And (at 576G-H) it
is stated that not every error made by a witness affects
his
credibility; in each case the trier of fact has to make an
evaluation; taking into account such matters as the nature of the

contradictions, their number and importance, and their bearing on
other parts of the witness’s evidence.’
[151]
Consequently, for the reasons that the
knowledge of the treatment accorded to the Appellant on 11 September
2009 and 12 September
2009, is peculiarly within the knowledge of the
Respondent’s employees, and the Respondent has not adduced any
direct cogent
evidence or produced clinical and obstetric records,
the version of the Appellant should be accepted to the extent that it
is corroborated
by the objective available medical records. There is
no basis for the Court
a quo
’s
approach of compartmentalising evidence. In this regard, the Court
a
quo
erred in rejecting the Appellant’s
evidence.
[152]
The Appellant, a lay person in both
medicine and the law, and an unsophisticated person, tried to relate
her version. There was
no suggestion that her version was false or
that she was not telling the truth. In cross-examination no version
was put to her
on behalf of the Respondent.
[153]
In
President
of the Republic of South Africa v South African Rugby Football
Union
[34]
it was held:
‘
The
institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it is
essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness’s
attention
to the fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity, while still in the witness box, of giving any
explanation open to the witness and of defending his or her
character
. . .’
[154]
Having regard to the conspectus of the
evidence, the Court
a quo
erred in rejecting the evidence of the Appellant solely based on
contradictions in her evidence and more importantly, in circumstances

where no version was put by the Respondent to her. The evidence of
the Appellant was valuable in excluding the probability of a
brain
injury occurring before or after birth as her evidence confirmed that
the foetus was found to be healthy during all antenatal
assessments.
The evidence of the Appellant leads to the conclusion that she was
last checked at the hospital at 00h00 and that
she gave birth at
06h35. That would be a period of approximately 6 hours and 25 minutes
of non-monitoring amounting to negligence.
[155]
Another crucial aspect is that the Court
a
quo
had ignored the joint minutes. The
reasons for the Court
a quo
ignoring the joint minutes of the radiologists is simply that there
were no documents attached to the joint minutes and that there
was no
evidence led by the radiologists to explain their agreement. This
finding, too, is untenable.
[156]
In
Bee
v RAF
[35]
it was held that:
‘
Facts
and opinions on which the litigants’ experts agree are not
quite the same as admissions by or agreements between the
litigants
themselves (whether directly or, more commonly, through their legal
representatives) because a witness is not an agent
of the litigant
who engages him or her. Expert witnesses nevertheless stand on a
different footing from other witnesses. A party
cannot call an expert
witness without furnishing a summary of the expert’s opinions
and reasons for the opinions. Since it
is common for experts to agree
on some matters and disagree on others, it is desirable, for
efficient case management, that the
experts should meet with a view
to reaching sensible agreement on as much as possible so that the
expert testimony can be confined
to matters truly in dispute. Where,
as here, the court has directed experts to meet and file joint
minutes, and where the experts
have done so, the joint minute will
correctly be understood as limiting the issues on which evidence is
needed. If a litigant for
any reason does not wish to be bound by the
limitation, fair warning must be given. In the absence of repudiation
(i.e. fair warning),
the other litigant is entitled to run the case
on the basis that the matters agreed between the experts are not in
issue.’
[157]
I agree with the contentions of Mr
Du
Plessis
that the Respondent was bound
to the agreement reached in the joint minutes, including that of the
radiologists and that it was
not necessary for the Appellant to have
led the evidence of her radiologists. The conclusion by the Court
a
quo
that there were no documents
attached to the joint minutes and that there was no evidence from the
radiologists is a clear misdirection
and the Court
a
quo
had clearly erred in this regard.
More significantly, the Respondent did not lead evidence to
contradict the agreement reached
between the radiologists, nor was
any prior indication of ‘fair warning’ given. The Court
a
quo
was not entitled to reject the
agreement purely based on its own logic without any form of
foundation.
[158]
In
JA
obo DMA v The Member of the Executive Council for Health, Eastern
Cape
,
[36]
Van Zyl DJP, relying on other authorities, held:
‘
[It]
is not the function of the court to develop its own theory or thesis
and to introduce on its own accord evidence that is otherwise
founded
on special knowledge and skill.
Ex
hypothesi
, such evidence is outside the
learning of the court. The function of the court is restricted to
deciding a matter on the evidence
placed before it by the parties,
and to choose between conflicting expert evidence, or accepting or
rejecting the proffered expert
evidence.’
[159]
The radiologists agreed that the MRI study
defines structural damages to the perirolandic cortex and the basal
ganglia, thalamic
complex (BGT) constituting a cerbrocortical-deep
nuclear pattern.
[160]
In turn, Prof Van Toorn and Dr Keshave
stated as follows in their joint minutes:
‘
16.
Prof R van Toorn The 2019 (reaffirmed) ACOG neonatal encephalopathy
and the neurological outcome task
force describes 4 patterns of
selective neuronal injuries (in term infants with neonatal
encephalopathy) which reflect the severity,
duration, the nature of
the insult (page 150). The second form of selective neuronal injury
is the cerebral-deep nuclear neuronal
injury pattern, which combines
neuronal damage in the deep nuclear grey matter with injury in the
cerebral cortex, usually the
parasagittal area of the perirolandic
cortex. This is referred to on imaging studies as “cerebral
deep nuclear” pattern.
It is my opinion that this is the MRI
pattern evident on I[…]’s MRI scan.
Dr A Keshave : Agreed.’
[161]
The Court
a
quo
ought to have approached the matter
based on the above agreements and did not do so and that was a
misdirection. It does not seem
from the judgments of the Court
a
quo
that its attention was drawn to the
cases of
Bee v RAF
,
MEC for Health and Social Development,
Gauteng v MM on behalf of OM
and other
cases that deal with the effect of a joint minute in the absence of
repudiation.
[162]
The Court
a
quo
found that, even though no sentinel
event may have occurred in this case, it does not detract as a matter
of logic from the fact
that the damage was from the asphyxia
typically caused by sentinel events, i.e., profound asphyxia which
causes injury over a relatively
short period of time. The
radiologists examined the MRI without having any information of the
clinical picture and agreed that
the injury was to the deep nucleus
of the Appellant’s newborn’s brain. They further agreed
that, in the absence of
a sentinel event, the injury occurring over a
period of time should be considered and referred to relevant
literature in that regard.
[163]
Correctly so, Mr
Du
Plessis
pointed out that the manner in
which such an injury occurred had been explained in detail by Prof
Van Toorn and Dr Ebrahim and
that their evidence corroborated and
strengthened the agreement reached by the radiologists.
[164]
It was incorrect for the Court
a
quo
to suggest that there was no
explanation on how the alternative pathways may cause this type of
injury over a period of time and
in my view, such finding failed to
take cognisance of the evidence of Dr Ebrahim and Prof Van Toorn.
Their evidence was not disputed
by the Respondent.
[165]
The Respondent’s experts, Dr Keshave
and Dr Baba, merely gave speculative evidence which was incapable of
casting any doubt
on the otherwise acceptable opinion of the
Appellant’s experts. The opinions by the Appellant’s
experts were based
on sound grounds and was supported by facts, joint
minutes and agreement of parties and the reports.
[166]
Dr Keshave suggested for a whole exam
sequencing which involves looking at the genes and the metabolic
screen of the Appellant’s
newborn in order to exclude other
factors that may have caused the cerebral palsy. As soon as the whole
exam sequencing results
became negative, he then suggested another
possible cause as intra-uterine growth restriction, on the basis that
the child had
a predisposing condition in the form of a head
circumference that was above 90 in size and a birth weight that was
nearly 25.
[167]
When it was suggested to Dr Keshave that
there would be warning signs of any hypoxic ischemic encephalopathy
and that those warning
signs would have been picked up through proper
monitoring; he did not dispute the proposition. He, however, was
non-committal and
deferred to obstetricians. Dr Baba accepted that,
according to the records, the Appellant was last checked at 23h00
before delivery
of the Appellant’s newborn at 06h35. This would
be a concession of a non-monitoring for a period of about 6 hours and
25
minutes. That period is long enough to cause a severe partial
insult/asphyxia of prolonged duration. It is immaterial whether or

not it would have occurred in the last 15 minutes.
[168]
From reading of Dr Keshave’s report
and his evidence, including that of Dr Baba, and the joint
minutes, it is evident
that the Respondent’s experts were
unable to raise any cause of the injury to the Appellant’s
newborn other than the
cause identified by Dr Ebrahim and Prof Van
Toorn in the joint minute and their reports.
Findings
[169]
On the whole, the evidence, and in
particular the joint minute prepared by the expert witnesses: (i) the
paediatric neurologists,
Prof Ronald van Toorn and Dr Amith Keshave;
(ii) the radiologists, Prof J W Lotz, Dr Zuzile Zikalala; and (iii)
the obstetricians,
Dr Ebrahim and Dr Baba, supports the opinion that
the brain injury sustained by the Appellant’s newborn and the
disabilities
that later followed were the result of a severe partial
insult of prolonged duration and that the injury could have been
prevented
if there was proper monitoring of the foetal heart rate.
[170]
I have considered the fact that the Court
a
quo
suggested that it may have occurred
in the last 15 minutes. In my view, that is immaterial on the basis
that what is important,
is what must have happened prior to the 15
minutes and whether the injury could have been prevented from
occurring. The undeniable
evidence is that the Appellant was not
monitored for a period of approximately 6 hours and 25 minutes and
that was not in terms
of the maternity care guidelines. There was
clearly a deviation from a recognised standard which, in the
circumstances, amounted
to negligence.
[171]
The injury is consistent with the conduct
of the Respondent’s medical staff and nurses, allowing a
severely prolonged labour
of the Appellant to continue with no
monitoring, exposing the foetus to a lack of hypoxic type brain
injury. The Appellant’s
experts have, in my view, objectively
evaluated the available facts and the limited medical records
logically and carefully. On
the other hand, the Respondent’s
experts, Dr Keshave and Dr Baba, were non-committal and speculative
in their analysis.
[172]
I agree with Mr
Du
Plessis
’ submissions that there
had been inadequate monitoring during the birth process when there
would have been danger signs such
as a prolonged labour process, high
risk relating to previous caesarean section and other signs of
distress of the foetus. The
child has been born in a compromised
position with low Apgar scores. The MRI shows a hypoxic ischemic
encephalopathy insult of
a partial prolonged nature. The insult must
have taken place during the intrapartum period when regard is being
had to the entire
body of evidence.
[173]
The admitted facts in the pre-trial minute,
joint expert minutes and the objective facts, which are largely
common cause, establish
the Appellant’s case on a balance of
probabilities.
[174]
I find that the employees of the Respondent
had negligently breached their duty of care obligations and that such
negligence caused
the Appellant’s newborn to suffer a hypoxic
ischemic encephalopathy insult of a partial prolonged nature. The
conclusion
is that the Respondent is liable to compensate the
Appellant.
[175]
For these reasons, the appeal must succeed.
[176]
The general rule that costs should follow
the event shall apply and I have not been persuaded differently. The
matter was fairly
complex and justifies the employment of two
counsel. The Appellant is entitled to the costs of two counsel. The
Appellant is also
entitled to the costs of the experts that have been
employed.
Order
[177]
In the result, I would make the following
order:
(a)
The appeal succeeds with costs, including costs of two counsel, where
applicable;
(b)
The order of the Court a quo is set aside and is substituted with the
following order–
(1)
The defendant shall pay 100% (one hundred percent) of the plaintiff’s
agreed or proven damages
suffered in her representative capacity for
an on behalf of her minor child, I[…] J[…] (‘the
minor’),
which damages flow from the neurological injury
sustained by the minor during labour and delivery at the Baziya
Health Care Centre
and Mthatha General Hospital on or about the 12
th
of September 2009 and the resultant cerebral palsy (and its sequelae)
which he suffers from.
(2)
The defendant shall pay the plaintiff’s taxed or agreed party
and party costs on the High
Court scale pertaining to the action and
up to the finalisation of the issue of liability, which costs shall
include (but not necessarily
be limited to) the following:
2.1
the costs attendant upon the obtaining of the medico-legal reports
and any addenda thereto and of procuring
joint minutes (including any
addenda thereto) in respect of the following expert witnesses:
2.1.1
Professor R van Toorn;
2.2.2
Professor J W Lotz;
2.2.3   Dr A
Ebrahim;
2.2
the preparation, reservation and appearance fees of Professor Van
Toorn and Dr Ebrahim;
2.3
the reasonable expenses of their travelling costs in respect of
Professor Van Toorn and Dr Ebrahim as
well as their reasonable
accommodation costs;
2.4
the costs consequent upon the employment of senior and junior
counsel;
2.5
the reasonable costs in respect of counsel’s fees with regards
to the perusal of all expert medico-legal
reports and any addenda
thereto (where applicable), including joint minutes (where
applicable) as well as the preparation and consultations
fees,
including, but not limited to, the telephonic consultation(s) with
the plaintiff’s expert witnesses, in order to prepare
such
witnesses for trial;
2.6
the cost of and consequent upon the minor’s attendance of
consultations, evaluations and/or assessments
by any expert witness
and/or any related special investigation required by any such expert;
2.7
the cost of preparation of sufficient court bundles for use during
the trial;
2.8
the reasonable fees of counsel in respect of the preparation of heads
of argument.
(3)
The defendant shall pay interest at the applicable prescribed
statutory rate on the costs referred
to in paragraph 2 above,
calculated from a date 31 (thirty-one) days from the date of such
agreement or from the date of affixing
of the taxing master’s
allocatur to the date of final payment.
M NOTYESI
ACTING JUDGE OF THE
HIGH COURT
BROOKS J:
I agree
R W N BROOKS
JUDGE OF THE HIGH
COURT
RUGUNANAN J :
I agree
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances
Counsel
for the appellant:
Mr
Du Plessis SC
together with
Mr Sambudla
Attorneys
for the appellant:
Sakhela
Incorporated
East
London
Counsel
for the respondent:
Mr
Mtshabe SC
together with
Mr Nabela
Attorneys
for the respondent:
The
State Attorney
East
London
[1]
Minister
of Safety & Security v Van Duivenboden
2002 (6) SA 431
SCA para 12.
[2]
The
Member of the Executive Council for Health, Eastern Cape v DL obo AL
[2021] ZASCA 68
para 8.
[3]
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E.
[4]
Ibid
para 9.
[5]
Naude
NO v Transvaal Boot and Shoe Manufacturing
1938 AD 379
at 392.
[6]
Mitchell
v Dixon
1914 AD 519
at 525.
[7]
Monteoli
v Woolworths (Pty) Ltd
2000 (4) SA 735
(W) at 127.
[8]
Minister
of Safety & Security & Another v Carmichele
2004 (3) SA 305 (SCA).
[9]
Caswell
v Powell Duffryn Associates Collieries
[1939] 3 All ER 722
(HL) at 733.
[10]
Bee
v Road Accident Fund
2018 (4) SA 366
(SCA) paras 64-66.
[11]
MEC
for Health and Social Development, Gauteng v MM on behalf of OM
[2021]
ZASCA 128
para 16; See also
AS
obo S v The Member of the Executive Council for the Department of
Health, Eastern Cape
,
unreported judgment (ECD), Case No 29/2022 paras 68-69.
[12]
J.A
obo D.M.A v Member of Executive Council for Health, Eastern Cape
[2022] ZAECBHC 1;
[2022] 2 All SA 112
(ECB);
2022 (3) SA 475
(ECB)
para 10 – see also the authorities referred to in the
judgment.
[13]
Ibid
at 9-17.
[14]
N.D.B
obo J.W.K v Road Accident Fund
[2023] ZAECQBHC 7 para 14.
[15]
J.A
obo D.M.A v Member of Executive Council for Health, Eastern Cape
[2022] ZAECBHC 1;
[2022] 2 All SA 112
(ECB);
2022 (3) SA 475
(ECB)
para 17.
[16]
Small
v Smith
1954 (3) SA 434 (SWA).
[17]
President
of the Republic of South Africa v SARU
2000 (1) SA 1
(CC) paras 61-65.
[18]
Schneider
NO and Others v AA and Another
2010
(5) SA 203
(WCC) at 211 E-J; see also
Mediclinic
Ltd v Vermeulen
2015
(1) SA 241.
[19]
Michael
and Another v Linksfield Park Clinic (Pty) Ltd & Another
2001
(3) SA 1188
(SCA) para 40.
[20]
Bee
v RAF
supra
paras 64-66.
[21]
Thomas
v BD Sarens (Pty) Ltd
[2012] ZAGPJHC 161 para 9.
[22]
MEC
for Health and Social Development, Gauteng v MM obo OM
[2021]
ZASCA 128.
[23]
M
obo M v Member of the Executive Council for Health of the Gauteng
Provincial Government
[2018]
ZAGPJHC 77 paras 26-28 & 31.
[24]
S
v Mkohle
1990 (1) SACR 95
(A) at 98E-G.
[25]
Mthuki
v The Member of the Executive Council of the Gauteng Provincial
Government
,
unreported judgment (GD), Case No 2013/3793 para 29 (6 November
2018).
[26]
Goliath
v MEC for Health, Eastern Cape
2015 (2) SA 97 (SCA).
[27]
Van
Zyl v Frohlich and Others
1999 JOL 5507
CA.
[28]
Minister
of Safety & Security and others v Craig
2011
(1) SACR 469
SCA para 58.
[29]
Sections
13 and 17 of the Act.
[30]
Ntsele
v Mec for Health, Gauteng Provincial Government
[2012]
ZAGPJHC 208; [2013] 2 All SA 356 (GSJ).
[31]
MA
obo LM v The Member of the Executive Council for Health of the
Gauteng Provincial Government
,
unreported judgment (GD), Case No 2014/32504.
[32]
Santam
Bpk v Biddulph
2004
(5) SA 586
(SCA).
[33]
S
v Mkohle
1990 (1) SACR 95
(A) at 98e-g, see also
MA
obo LM v The Member of the Executive Council for Health of the
Gauteng Provincial Government
supra at para 31
[34]
President
of RSA v SARU
supra
para
61.
[35]
Bee
v RAF supra
at 384G-J.
[36]
JA
obo DMA v MEC supra
para 17.