SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 298/2023
In the matter between:
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH, GAUTENG PROVINCE APPELLANT
and
MARIE DE LANGE RESPONDENT
Neutral citation: MEC for Health , G auteng v de Lang e (298/2023) [2024]
ZASCA 38 (03 April 2024)
Coram: GORVEN, MATOJANE and WEINER JJA and COPPIN and
SMITH AJJA
Heard: 04 March 2024
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives via email, publication on the Supreme Court of
Appeal website and released to SAFLII. The date and time for hand -down is
deemed to be 11h00 on 3 April 2024.
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Summary: Civil Procedure – claim for damages – separated issues – not
clearly stated – stated case limiting separated issues – judgment on stated case
limited to negligence causing death of deceased –– stated not dealing with
causation of damages arising from death – amendment of the particulars of
claim to include a new head of damages – objection that evidence on new head
should have been proved under stated case – no evidence led relating to any
damages arising from death in stated case – no basis to object to amendment.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Collis J, sitting
as a court of first instance.
The appeal is dismissed.
JUDGMENT
________________________________________________________________
Matojane JA (Gorven and Weiner JJA and Coppin and Smith AJJA
concurring):
[1] This is an appeal against the order of the Gauteng Division of the High
Court, Pretoria (Collis J), granting the respondent leave to amend her particulars
of claim with costs. The amendment sought to introduce a claim for damages
for emotional shock caused by the death of the husband of the respondent . The
appeal is before us with leave of this court (per Mbatha and Meyer JJA).
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[2] Mr. Zacharias Johannes de Lange (deceased) passed away on 21
September 2015 at the Steve Biko Academic Hospital in Pretoria (SBPAH).
Prior to being admitted, Mr. de Lange had sustained a blow to his head during a
rugby match.
[3] Marie de Lange, the respondent herein and the wife of the deceased,
issued summons against the appellant out of the Gauteng Division of the High
Court, Pretoria (the trial court) . She claimed that the negligence of hospital
employees for whom the appellant was vicariously liable had wrongfully and
negligently cause d the death of the deceased. Arising from his death, she
claimed that she had sustained damages by way of loss of past and future
support for her and her two minor sons, D […]l and D […]n. She accordingly
claimed payment of R500 000.00 as damages for her past and future loss of
support and R 600 000.00 and R800 000.00 , respectively, on behalf of D[…]l
and D[…]n for their past and future loss of support.
[4] The parties held a pre -trial conference. It was agreed between them that
‘the issues pertaining to liability/merits (negligence and causality) should be
separated from the issues pertaining to the quantum of the plaintiff’s claim in
terms of Uniform rule 33(4) and that the matter proceeds initially in respect of
the aforesaid issues pertaining to liability only at the first trial.’
[5] Pursuant to that agreement, the parties prepared a stated case in terms of
Uniform rule of Court 33(1). This was presented to the trial court (Rangata AJ).
It is not clear whether the trial court granted an order in terms of rule 33(4)
separating the issues at all, whether in the terms agreed in the pre -trial
conference or simply that the issues set out in the stated case would be heard
separately in terms of rule 33(4). It seems that the parties and the trial court
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dealt with the stated case without an order separating the issues having been
granted.
[6] In Denel (Edms) Bpk v Vorster,1 Nugent JA emphasized the importance of
the trial court clearly defining and delineating the specific issues to be tried. He
stated that this should be explicitly set out in the court's orders to avoid any
ambiguity or confusion between the parties. He stated that although terms like
‘merits’ and "quantum" may seem straightforward initially, their shared
understanding often does not endure. Therefore, when making rulings under
Uniform rule 33(4) and issuing orders, the trial court has a duty to circumscribe
the trial issues with clarity and precision to prevent problems down the line.
This the parties failed to do in setting out issues to be decided by the court.2
[7] Be that as it may, the stated case , after setting out medical facts extracted
from the hospital records, set out the issues for adjudication as follows:
‘26. The following are the conclusions of the plaintiff’s experts in relation to the negligence
of the employees of the defendant resulting in the cause of the death of the deceased.
27. The defendant has not presented any evidence of a factual or expert nature to contest or
oppose the conclusions below, and the plaintiff submit that if the Court is satisfied, there is no
reason in fact or law that would prevent this Honoura ble Court from making an order in
accordance with the draft order.
. . .
34. Had the employees of the defendant treated the deceased appropriately, and not
negligently, he would not have died.’
1 Denel (Edms) Bpk v Vorster [2004] ZASCA 4; 2004 (4) SA 481 (SCA) para 3 (Denel).
2 See also Absa Bank Ltd v Bernert [2010] ZASCA 36; 2011 (3) SA 74 (SCA) para 21 (Bernert); FirstRand Bank
Ltd v Clear Creek Trading 12 (Pty) Ltd 2018 (5) SA 300 (SCA) paras 9-11.
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[8] After hearing argument, Rangata AJ granted an order, the material parts
of which are:
‘Having heard argument for counsel for both parties based on the written stated case, it is
ordered as follows:
1. The defendant is liable to the plaintiff for her 100% damages as proved or agreed in her
personal capacity and in her representative capacity on behalf of her minor sons D […]l d[…]
L[…] and D[…]n d[…] L[…], arising from the death of the deceased, Zacharias Johannes de
Lange who died at the Steve Biko Hospital on 21 September 2015. Quantum is postponed
sine die.’
[9] On 17 August 2020, the respondent gave notice of its intention to amend
the particulars of claim in terms of Uniform rule 28 . In the proposed
amendment, the respondent sought to insert claims for emotional shock and
trauma allegedly suffered by herself and the two minor children due to the
deceased’s death. She further sought to withdraw her personal claim for loss of
support since she has remarried and was advised that she can no longer claim
that support from the appellant. She further sought to reduce the claims for the
two minor children based on expert reports and the deceased’s lifetime earnings.
The new total was some R2.5 million and included general damages for
emotional shock and trauma.
[10] The appellant objected to the proposed amendment . There were initially
four bases of objection. The first contended that the respondent’s amended
claim in her personal capacity for emotional shock and trauma would introduce
a new cause of action which has been extinguished by prescription. The second
was that the proposed amendment would cause prejudice to the appellant as the
claims for emotional shock and trauma were not initially pleaded. The third was
that, with respect to the children, against whom prescription could not be raised ,
the appellant had not had an opportunity to investigate the claims or seek a
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medical opinion. Lastly, the appellant was concerned that if the amendment was
allowed, the appellant could become liable to compensate the respondent and
the minor children for emotional shock and trauma without the respondent first
having established the appellant's liability when the liability for all claims for
damages should have been established at the stage of ‘liability/merits’.
11] The respondent accordingly brought a substantive application for leave to
amend her particulars of claim to which answering and replying affidavits were
delivered. The application was argued before Collis J on 10 May 2021 (the court
a quo) . Before the judgment on the application could be delivered , Haupt AJ
was approached and granted a consent order regarding the children’s loss of
support. The issue concer ning the amendment claiming general damages and
future medical costs was postponed sine die . On 2 September 2021, Collis J
granted the respondent leave to amend her particulars of claim and subsequently
refused leave to appeal.
[12] Before us, t he appellant abandoned the first three grounds of objection.
The appellant argued that the suffering of psychological trauma should have
been dealt with during the ‘liability trial ’ phase. And that the subsequent
‘quantum’ phase would be limited to evidence related to the number of
counselling sessions and similar details to quantify the psychological trauma
claims. The appellant submitted that the order of Rangata AJ had already
determined the appellant's liability to compensate the respondent regarding her
claim for loss of support . The appellant argued that if general damages were to
be claimed arising from psychological trauma and the medical costs required to
address it, the ‘liability’ stage of the trial would need to be reopened. It would
thus prejudice the appellant if the amendment was allowed.
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[13] The appellant's argument overlooks the ambit of the order granted by
Rangata AJ. As indicated, the sole issue to be decided was whether the
appellant’s employees were negligent and whether that negligence caused the
death of the deceased. That, too, was the extent of the order. The trial court was
not asked to, nor did it, determine whether any damages had been caused by the
death of the deceased. For that reason, a claim for general and medical damages
sustained as a result of psychological trauma stands on precisely the same
footing as the claim for loss of support. The order simply found that negligence
on the part of the employees of the appellant had caused the death of the
deceased. Counsel for the appellant was constrained to concede that this was the
case.
[14] The difficulty arose in this matter because the parties and trial court did
not observe the cautionary words of Nugent JA in Denel. He explained why that
is the case in Bernert:
‘In some cases it might be appropriate to order the separation of the “merits” and the
“quantum” of the claim. But to use that terminology when the causative link between the
wrongful act and the damage is a contested element of the claim, as it was in this case, is
bound to create uncertainty.’3
That is clearly what happened in this matter.
[15] In summary, t he ‘liability’ determination was restricted to establishing if
the defendant's negligence caused the death itself. It did not extend to causation
of the various damages allegedly flowing from that death, such as loss of
support, medical costs, or emotional trauma. The parties did not include those
aspects in the stated case for the trial court to determine. Following the grunt of
the amendment, the appellant will be entitled to plead to the claim and provide
expect evidence. The owners will remain on the respondent to prove her claim
3 Bernert fn 2 para 3.
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that she entered the m inor and had suffered psychological trauma . As such, t he
grant of the amendment can in no way prejudice the appellant.
[16] The appeal falls to be dismissed. Typically, the losing party bears the
legal costs. However, in this case, both parties disregarded the repeated
warnings from various courts about the importance of clearly categorizing the
issues under consideration. To convey the court's dissatisfaction with the parties'
conduct, no order regarding costs will be issued.
[17] Accordingly the following order is granted:
The appeal is dismissed.
_______________________
K E MATOJANE
JUDGE OF APPEAL
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Appearances
For the appellant: Ms L Maite
Instructed by: State Attorney, Pretoria
State Attorney, Bloemfontein
For the respondent: Ms WL Munro
Instructed by: Adams and Adams Attorneys, Pretoria
Lovius Block Attorney, Bloemfontein