Mallane v Member of the Executive Council Department of Health The Free State (1320/2016) [2022] ZAFSHC 69 (24 March 2022)

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[2022] ZAFSHC 69
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Mallane v Member of the Executive Council Department of Health The Free State (1320/2016) [2022] ZAFSHC 69 (24 March 2022)

IN THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges  NO
Circulate
to Magistrates:       NO
Case
no: 1320/2016
In
the matter between:
MPHUTHI
MALLANE
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF HEALTH THE FREE
STATE
Defendant
CORAM:
WRIGHT AJ
HEARD ON:
17, 18, 20 AUGUST AND 8, 9, 10, 11 NOVEMBER 2021
DELIVERED ON:
24 MARCH 2022
INTRODUCTION
[1] When Mantoa Mallane (“
the
deceased
”) gave birth to her first child, it was (I expect) a
joyous occasion. Both mother and baby left the Bongani hospital in
Welkom,
Free State Province, in apparent good health. Less than a
month later, the deceased was back at the hospital. A few days later
she
passed away. This case centres around the question whether the
doctors and other medical personnel at the Bongani hospital
negligently
breached any duty of care they had towards the deceased
on her return to the hospital a few weeks after giving birth; and
thus, whether
the MEC for Health in the Free State should be held
liable for her death and pay damages for the resultant consequences
thereof for
her child. The Plaintiff’s claim is not directed at the
time that elapsed between the delivery and the deceased’s return to
the
hospital but focuses specifically on the time when the deceased
returned to the hospital and during her stay there (prior to the
transfer to Universitas hospital).
[2] The Plaintiff, Mr Mphuthi
Mallane, is the deceased’s brother and was granted guardianship of
the deceased’s minor child born
on 30 April 2015 (“
the
minor
”). On behalf
of the minor the Plaintiff sued the MEC for the Department of Health,
Free State Province, (“
the
Defendant
”) for
damages in the amount of R 25 000 000.00 under the headings
of (i) parental loss, pain and suffering, (ii) educational
loss of
support and (iii) present and future medical and dental care and
needs.
[1]
The parties agreed that the issues relating to the merits of the
Plaintiff’s claim be separated from the issues relevant to the
quantum
of any damages suffered.
[3] The Plaintiff led the
evidence of two witnesses, namely the Plaintiff himself and an expert
gynaecologist, Dr. Mokoena Martins
Mohosho. Mohosho prepared a report
which were filed in terms of the provisions of Rule 36(9),
supplemented by extracts from articles
/ medical textbooks
[2]
.
On behalf of the Defendant several expert witnesses filed reports.
[3]
These were referred to by Dr. Mohosho and used by Defendant’s
counsel in attacking the evidence and opinion of the Plaintiff’s
expert in cross-examination.
[4] After the Plaintiff closed
his case, counsel for the Defendant
[4]
applied for absolution from the instance. This judgment deals with
the adjudication of that application for absolution.
LEGAL
PRINCIPLES
[5]  In cases where
absolution is applied for at the end of a plaintiff’s case, the
test to be applied is different from that
which would apply where
both parties have presented evidence and/or closed their respective
cases. In the latter instances and where
the burden of proof rests
upon a plaintiff, the question which arises is whether such a
plaintiff has proven his/her case on a balance
of probabilities. The
test for absolution to be applied at the end of a plaintiff’s case
was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
[5]
in the following terms:
“
.
.
. [W]hen absolution from the instance is sought at the close of
plaintiff’s case, the test to be applied is not whether the
evidence
led by plaintiff establishes what would finally be required
to be established, but whether there is evidence upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff
.”
[6]
[6]  Earlier cases
unfortunately defined the test with reference to the reasonable
man,
[7]
thereby obscuring the discretionary role of a court at this stage of
proceedings. A plaintiff has to make out a
prima
facie
case, presenting
evidence relating to all the elements of the claim. Where inferences
are concerned, the inference relied upon by
the plaintiff must be a
reasonable one, not the only reasonable one.
[8]
The question should be asked whether there is evidence upon which a
court, applying its mind reasonably to such evidence, could or
might
find for the plaintiff.
[9]
A court should be concerned with its own judgment and not that of a
“reasonable” person or court.
[10]
[7]  In deciding whether
absolution should be granted at the close of a plaintiff’s case it
must be assumed that the evidence
is true, in the absence of very
special circumstances such as the inherent unacceptability of the
evidence adduced.
[11]
[8]  It is generally
accepted that absolution at the end of a plaintiff’s case should be
granted sparingly. When the occasion
arises, however, a court should
order it in the interests of justice.
[12]
When confronted with an application for absolution from the instance
plaintiffs often fall back on general references to a plaintiff’s
right to have his/her case be adjudicated fully, including the right
to insist that a defendant be put on his/her defence. It is
occasionally even argued that the court should refuse absolution so
that it could be seen what the defendant’s case / evidence
is. This
last approach of course bears reference to a fishing expedition or a
wait and see exercise: “Let’s see if the defendant
does not maybe
present evidence that bolsters the plaintiff’s case.” Desperate
lawyers may even resort to the argument that,
as the defendant has
been sued and frogged marched to court, he/she is obligated to show
to the plaintiff that he/she did nothing
wrong. Such incorrect
approaches raise their heads quite often, in my experience at least,
in cases of medical negligence against
public health facilities.
[9]  In cases of medical
negligence, a court is usually confronted with heart-breaking
circumstances on the side of the plaintiff,
eliciting natural
feelings of sympathy. However, as was stated in
Broude v Mcintosh
and Others
1998 (3) SA 60
(SCA)
:
“
When a patient has suffered
greatly because of something that has occurred during an operation,
the court must guard against its understandable
sympathy for the
blameless patient tempting it to infer negligence more readily than
the evidence objectively justifies . .
.”
[13]
[10]  A court has a
discretion whether to grant absolution from the instance or not.
[14]
The discretion should be exercised judicially. Justice must be done
between the parties, and so far as is possible courts should
not
allow rules of procedure to cause an injustice.
[15]
NEGLIGENCE
[11] The classic
test
for determining negligence in delictual claims was embodied in the
matter of
Kruger v
Coetzee
1966 (2) SA 428
(A)
:
[16]
“
For the purposes of
liability
culpa
arises if –
(a) a
diligens
paterfamilias
in the position of the defendant –
(i) would foresee the
reasonable possibility of his 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 failed to
take such steps.
. . .
Whether a
diligens
paterfamilias
in the position of the person concerned would take
any guarding steps at all and, if so, what steps would be reasonable,
must always
depend upon the particular circumstances of each case
.”
[12] Negligence must be evaluated
in light of all the circumstances of a particular case.
[17]
In cases of medical negligence the question is: how a reasonable
medical practitioner in the position of the defendant would have
acted in the particular circumstances.
[18]
In
Mitchell v Dixon
1914 AD 519
it was
noted that:
“
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 . . .”
[19]
[13]  One must guard against
“
the insidious
subconscious influence of
ex post facto
knowledge
”.
[20]
PLEADINGS
[14]  Action proceedings are
initiated through the issuing of a summons. In a plaintiff’s
Particulars of Claim he/she sets
out an outline of facts upon he/she
will rely for the relief claimed and the nature of his/her case is
stated. In medical negligence
cases it is expected of a plaintiff to
list the grounds of negligence relied on. Parties are generally bound
by their pleadings,
the reason being that the pleadings set out the
basis of a particular party’s case.
[15]
In
casu
the Particulars
of Claim
[21]
is not a model of clear and proper pleading.
Inter
alia
it contains
statements and allegations that amount to evidence. It is clear
however that the Plaintiff relies on a negligent breach
of a duty of
care. Condensed to the essential averments, the Plaintiff alleges in
his Particulars of Claim that –
(i) the deceased delivered a
healthy baby on 30 April 2015, whereafter she was discharged from
hospital;
(ii) on 25 May 2015 she
complained of a headache and weakness of the right side of her body;
(iii) she consulted with a
general practitioner, Dr. Mulaudzi, and experienced convulsions
whilst in his consulting rooms;
(iv) the convulsions related to
her earlier pregnancy;
(v) Dr. Mulaudzi stabilised the
deceased and summoned an ambulance;
(vi) he wrote a referral letter
which accompanied the deceased to the Bongani hospital;
(vii) at the hospital the
deceased was negligently made to sit on a chair in the casualty
department and was only later admitted to
the medical ward, instead
of the maternity ward;
(viii) despite “
the proper
and precise medical advice given by Dr. Mulaudzi
” in the
referral letter, the deceased was negligently misdiagnosed;
(ix) as the deceased was still in
the
puerperium
period, she should have been admitted to, and
treated, in the maternity ward;
(x) the deceased suffered cardiac
arrest;
(xi) the deceased was not seen by
an obstetrician;
(xii) by the time that the
deceased was referred to the Universitas hospital in Bloemfontein she
was terminally ill;
(xiii) the deceased died at the
Universitas hospital on 29 May 2015;
(xiv) the deceased should have
been diagnosed with eclampsia;
(xv) medical personnel at Bongani
hospital failed to diagnose eclampsia and subsequently failed to
treat the deceased appropriately.
[16]  Throughout the
evidence it has been the Plaintiff’s case that the deceased had
suffered from eclampsia post labour and
that, as this was not
diagnosed at Bongani hospital, she was not treated correctly. It is
ultimately alleged that the misdiagnosis
and incorrect treatment
caused the deceased to suffer from cardiac arrest and ultimately led
to her death. The allegations in the
Particulars of Claim focus on
the referral letter of Dr. Mulaudzi which allegedly indicated a
diagnosis of eclampsia and instructed
the hospital as to the
appropriate treatment.
[17] In their Plea
[22]
the Defendant denies the Plaintiff’s allegations of improper
diagnosis and treatment. The Defendant denies that the convulsions
suffered by the deceased were related to her earlier pregnancy.
Although the Defendant admitted that the deceased was still within
the puerperium period, it was specifically pleaded that the deceased
presented with neurological problems such as cerebrovascular
stroke,
heart disease and symptoms associated with epilepsy.
[18]  The Defendant denies
negligence. It was further pleaded that, should it be found that the
Defendant’s employees were
negligent, it is then denied that the
negligence was causally connected to the Plaintiff’s damages.
Unlike the Plaintiff then who
seemed to only focus on one element of
a delict, namely negligence, the Defendant specially placed
causality, a further and separate
element, in dispute.
DOCUMENTARY
EVIDENCE
[19]  The Plaintiff prepared
a bundle of documents containing the medico-legal report of Dr.
Mohosho, a report from the general
practitioner (Dr. Mulaudzi) and
clinical and other medical notes from Bongani and Universitas
hospitals. Significantly, the referral
letter which the Plaintiff
heavily relies on, was not included in the documentary bundle
prepared by the Plaintiff, although it was
listed in the Plaintiff’s
discovery affidavit. Both parties prepared bundles containing the
expert reports of their respective
expert witnesses. The referral
letter finally made it into the court file when the Defendant’s
counsel, Adv. Williams SC, prepared
a better and more structured
evidence bundle and presented it prior to her cross-examination of
the Plaintiff’s expert, Dr. Mohosho.
It then became clear that some
nursing notes were not included in the Plaintiff’s trial
bundle.
[23]
[20] The expert reports filed on
behalf of the Defendant followed the allegations pleaded by the
Defendant. The reports refer to the
same medical records and nursing
notes relied on by the Plaintiff and generally present different
inferences and theories as to the
symptoms which the Plaintiff
presented with. Of course, the reports do not become evidence simply
through the filing thereof. These
experts have not testified, and
their opinions and views have not been tested through
cross-examination. However, the Plaintiff’s
expert took it upon
himself to refer to the reports as prepared by the Defendant’s
experts and chose to incorporate portions thereof
into his own
evidence. During argument the Plaintiff’s legal representative
similarly relied on portions of the Defendants’ expert
reports.
ORAL
EVIDENCE
[a]
PLAINTIFF
[21]  The Plaintiff
testified that the deceased was his younger sister. After delivering
her baby in the Bongani hospital she
was discharged on 1 May 2015.
She was at the time, to use the Plaintiff’s own words, “okay”.
On the morning of 25 May 2015
the deceased complained of a headache.
She was taken to Dr. Mulaudzi, a general practitioner, for a
consultation whereafter she was
transported to the Bongani hospital
by ambulance.
[24]
Around 16h30 that afternoon the Plaintiff went to the hospital and
found the deceased sitting on a chair in the casualty department.
An
intravenous drip was plastered to the wall. When the Plaintiff left
at around 20h00, the deceased was still sitting in that fashion.
No
one had attended to her during that time. The deceased was admitted
to the medical ward during the very early morning of the next
day.
Sometime thereafter the family heard that she was “suddenly”
transported to the Intensive Care Unit. Thereafter the deceased
was
taken to the Universitas hospital where she was declared dead on
arrival.
[22]  It is the Plaintiff’s
opinion that the treatment which was given to the deceased was not
“fair” as Dr. Mulaudzi gave
a referral letter, but his
instructions were not followed. According to the Plaintiff the
referral letter contained advice to the
hospital as to how the
deceased should be treated.
[25]
When asked to elaborate on his opinion as to the alleged unfair
treatment given to the deceased, the Plaintiff testified that Dr.
Mulaudzi requested an ambulance, an act which indicated to the
Plaintiff that it was an emergency. When he found the deceased
sitting
on a bench, he considered that to be ill-treatment, thus
unfair.
[23] During cross-examination the
Plaintiff stated that he is not aware of any underlying medical
condition which the Plaintiff may
have suffered from. He repeated
that on 25 May the deceased complained specifically of a headache,
with no indication of convulsions
or seizures. The Plaintiff did not
accompany the deceased to the general practitioner. Their sister
Josephine
[26]
went with the deceased and later told the Plaintiff what had
happened.
[24]  It transpired that the
Plaintiff’s expert witness, Dr. Mohosho, had discussions with the
Plaintiff whilst the deceased
was at Bongani hospital.
[27]
According to the Plaintiff, a doctor told him that the deceased
should not have been admitted to a medical ward but to the maternity
ward instead, where she should have been examined and treated by a
gynaecologist. The relationship between the Plaintiff and the
doctor
was not explained by the Plaintiff himself;
[28]
at least not until such time as I asked questions for purposes of
clarification. It was then revealed that the doctor was none other
than Dr. Mohosho, the Plaintiff’s expert witness and that Mohosho
has “
always been
there as a doctor to the family
”.
They normally consulted him regarding medical issues.
[29]
[25]  It was later argued on
behalf of the Plaintiff that the evidence of the Plaintiff was not
disputed. This, to my mind, is
an overly simplistic way of viewing
the cross-examination of the Plaintiff. Firstly, much of the
Plaintiff’s evidence amounted
to hearsay. His sister, Josephine,
and the general practitioner, Dr. Mulaudzi, were not called to
testify. In the premises, there
was no need for the Defendant to
“dispute” those portions of the evidence as it was for the
Plaintiff to present admissible and
reliable evidence. Secondly, the
cross-examination focused on the probability or improbability of the
Plaintiff’s allegations,
examining inferences to be drawn from the
facts and hypotheses presented through evidence. Where the evidence
presented as improbable,
it was so stated to the witness. Thirdly,
when the second witness testified contradictions between the evidence
of the two witnesses
were revealed and then tested during
cross-examination. It stands to reason that, should the Defendant
have agreed with the Plaintiff’s
evidence, cross-examination would
not have followed the lines that it did. It was clear to me that the
Defendant disputed the controversial
portions of the Plaintiff’s
evidence.
[26]  The Plaintiff is not a
medical expert and did not present evidence as to any duty of care
the hospital personnel had towards
the deceased; he could not. Nor
could he express a reasoned opinion on any negligence there may have
been.  Accepting for the
sake of the application for absolution
from the instance that the Plaintiff’s evidence was undisputed, it
does not assist in any
finding relating to liability. All the
Plaintiff then contributed to the factual evidence is that the
Plaintiff complained one morning
of a headache, consulted a doctor
and was transported to hospital. And that, after a few days in the
Bongani hospital, she was transported
to the Universitas hospital
where she passed away.
[b]
DR. MOHOSHO
[27]  Dr. Mokoena Martins
Mohosho is a gynaecologist and obstetrician. His report is dated 7
June 2017, thus more than two years
after the events central to the
case. He did not examine the deceased before or during her stay in
Bongani. Mr Ponoane for the Plaintiff
indicated that Dr. Mohosho
wished to testify in his own preferred manner and the impression was
given that the witness will present
his evidence without being led by
the legal representative. The witness was indeed given the floor with
hardly any guidance from
the Plaintiff’s attorney or any attempt to
keep his testimony focused on the relevant and important issues. This
resulted in prolonged
testimony in chief which stretched over several
days. The witness meticulously lectured the court on the contents of
the medical
records as well as the contents of the reports filed on
behalf of the Defendant.
[30]
Attempts from the Bench to keep the witness focused on the issues at
hand bore no fruit and requests directed at Mr Ponoane to at
least
attempt to streamline the evidence also came to nought.
[28]  Mohosho concluded that
the deceased’s death was maternal, “
98%
preventable
” and “
a
result of Gross Negligence demonstrated by attending clinical
practitioners at Bongani Regional Hospital
”.
[31]
According to him, his evaluation of the available hospital and
clinical records led him to conclude that the deceased died from
eclampsia
and that no other possible cause of death should even be
considered.
[29]    Dr.
Mohosho explained that eclampsia is an obstetrical condition that
involves all the systems of the body,
and which can last for up to
four weeks after delivery
[32]
.
It is diagnosed through
inter
alia
the presence of
proteinuria, generalized oedema, hypertension and convulsions. The
disease is fatal if left unattended and when not
treated with
magnesium sulphate (MgSO4). It carries a mortality rate as high as
14% in developing countries such as South Africa.
[30]
[31]   Dr. Mohosho
stressed that, as far as he is concerned, safe and good clinical
practice dictates that any woman who
presents with convulsions during
pregnancy, labour or within four weeks after delivery, must be
assumed to suffer from eclampsia
and treated as such, until proven
otherwise.
[33]
He labelled eclampsia to be an obstetric emergency. Dr. Mohosho
explained that eclampsia is treated
inter
alia
through the
administration of oxygen, the convulsions are treated with MgSO4 and
blood pressure is controlled.
[32]  Mohosho insisted
repeatedly that Dr. Mulaudzi followed safe clinical practice in his
reaction to the deceased’s seizures
in his consulting rooms. It
needs to be remembered that Dr. Mulaudzi himself did not testify. His
version of events is to be found
in a report dated 27 August
2015.
[34]
The report sets out that the deceased presented to Mulaudzi’s
consulting rooms with complaints of “[
i]ntermittent
Hemiparesis
[35]
of the right side of the body with intermittent episodes of seizures
since she delivered
”.
[36]
According to the Plaintiff, however, the deceased did not complain of
weakness nor did she suffer from seizures (at least not “since
she
delivered”.
[37]
She attended to Mulaudzi with complaints of a headache. As Mulaudzi
did not testify, the apparent contradictions could not be
investigated
through cross-examination. The report concludes with the
following paragraph:
“
A referral letter was then
given to the ambulance paramedics when they arrived, with a
differential diagnosis of –
Eclampsia
[38]
;
CVA
[39]
;
Epilepsy
[40]
and a request for further investigation and management at the
hospital
.” [own
emphasis]
[33]  Mohosho relied on the
contents of the report from Mulaudzi, especially in regard to the
contents of the referral letter
which Mulaudzi gave to the ambulance
personnel and the alleged reference therein to eclampsia. I already
alluded to the fact that
the actual referral letter was not presented
to the court as part of the evidence led on behalf of the Plaintiff.
And during the
cross-examination of Dr. Mohosho he revealed that he
only saw the referral letter sometime after he had prepared his own
expert report.
Mohosho had telephonic contact with Mulaudzi during
the time that the deceased was treated at the Bongani hospital. This
occurred
after the Plaintiff contacted Mohosho to raise concerns
regarding the deceased’s treatment at the hospital. Mohosho did not
attend
to the hospital himself nor did he relay his own opinion
regarding the deceased’s condition to any of the medical staff at
the
hospital, despite being seriously concerned with the incorrect
way she was (according to him) being treated.
[34]  As Mohosho relies on
the diagnosis and findings of Mulaudzi,
[41]
it obviously was necessary to examine the referral letter itself. The
referral letter reads that the deceased “
delivered
on the 30/4/2015. Now presenting with hemiparesis ® side with
episodes of seizures
”.
As differential diagnoses are indicated “
CVA
”;
“
Epileptic seizures
”.
No mention is made of headaches or eclampsia. During
cross-examination it was put to Mohosho that the reference to
eclampsia
entered the report of Mulaudzi because of a suggestion made
to this effect by Mohosho during the telephonic contact between the
two
physicians. Mohosho denied this assertion vehemently but
testified however that he had explained to Mulaudzi that the deceased
most
likely had eclampsia and that he had only mentioned eclampsia as
a possibility.
[35]  In his own report Dr.
Mohosho refers to the referral letter as if it contained a reference
to eclampsia. During cross-examination
it became clear that Mohosho
did not actually see the referral letter prior to preparing his own
report or whilst assisting the Plaintiff’s
attorney with the
preparation of pleadings. He did not explain why he did not insist on
perusing the referral letter himself but
explained that he was “told”
that there would be such a letter. It is necessary to point out that
the Plaintiff’s case centres
around the alleged misdiagnosis of
eclampsia and the hospital’s failure to act in accordance with the
contents of Mulaudzi’s
referral letter.
[42]
It would be reasonable to expect any expert that testifies in this
case, especially when supporting the Plaintiff’s case, to have
perused the actual referral letter or a copy thereof.
[36]  Dr. Mohosho indicated
that he became involved as an expert after the Plaintiff’s attorney
approached him and asked whether,
should “they” go to court, he
would be a witness in their favour. He agreed. Mohosho insisted that
he made the diagnosis of eclampsia
on “clinical evidence”.
Considering that Mohosho diagnosed eclampsia prior to the medical
records becoming available, it appears
reasonable to accept that the
“clinical evidence” he relied on was (i) information gathered
from the Plaintiff during a telephone
call while the deceased was in
hospital
[43]
and (ii) the telephonic conversation he had with Dr. Mulaudzi around
the same time. But at the time, he had not yet been approached
to act
as expert witness or to give his opinion as an expert based on the
available medical records, nor has he seen the referral
letter or any
report by Dr. Mulaudzi. And it has been established that the
information that the Plaintiff had regarding the deceased’s
visit
to Muluadzi differed from what seemingly had occurred in Mulaudzi’s
consulting rooms. Considering that Dr. Mohosho formed
his opinion
prior to perusing any medical or clinical records and based on
contradictory versions, a cautionary approach to his opinions
and
evidence is justified. At certain points during Mohosho’s testimony
I gained the distinct impression that he came to an opinion,
then
perused the clinical records and sought reasons to support his
initial opinion (without considering, or even allowing for, another
possible diagnosis).
[37]  Mohosho spent
considerable time dealing with the available clinical records from
Bongani Hospital. He insisted that, considering
the contents of the
referral letter from Dr. Mulaudzi
[44]
and the time lapse since delivering her baby,
[45]
the deceased should have been diagnosed with eclampsia. Following
such a diagnosis, the deceased should have been treated with
magnesium
sulphate (MgSO4) to prevent the progression of the disease
and halt the occurrence of seizures / convulsions. Furthermore, the
deceased
should have been admitted to the Maternity Ward, with
obstetrical medical personnel attending to her. Further radiological
and blood
tests should have been conducted to assess the severity of
the disease and its possible complications.
[38]  According to Dr.
Mohosho the deceased was in hospital for three days without a
diagnosis of eclampsia having been made.
Thus, she was not treated
with MgS04 during that time. Mohosho described this scenario as
similar to where the deceased had not been
admitted to hospital at
all. Dr. Mohosho stated in his report that the chances of
misdiagnosing eclampsia are close to 0,01% and
that all intern
doctors are trained in the essential steps in the management of
obstetric emergencies.
[39] At the Bongani hospital the
deceased presented with generalised body weakness.
[46]
The deceased was not communicating verbally. On the Progress Report
for 26 May 2015
[47]
it is “further written that the deceased came in “
with
history of having had weakness to right side and seizures
”.
A note on the Triage Form at 23h36 reads, “
History
of ® side paralysis since this morning
”.
No indication is given as to the person who gave this history.
Presumably, the nursing staff relied on the referral letter, which
would then have alerted them to a diagnosis of CVA and epileptic
seizures. At 01h00 it was noted that the deceased was suffering
from
“
generalised body
fits
”. A Dr. Ntela
ordered an anti-epileptic drug to be administered and advised that,
should the seizures (“
fits
”)
persist, Valium should be administered. At 03h25 the deceased
experienced another episode of seizures to her whole body, which
lasted plus minus five seconds. The nursing staff administered
Valium.
[40]  At 09h50 the same
morning the deceased’s whole body was showing signs of
jerking
.
Again, Valium was administered intravenously. The next note was made
at 20h15 that evening, indicating that the deceased is weak
and that
the right side of her body shows signs of weakness.
[48]
No further seizures had been observed. However, at 21h00 or 22h00
[49]
the right side of the deceased’s body was “
twitching
”.
Again, Valium was prescribed. At this point a Dr. Moletsane indicated
that a bed should be prepared in the Intensive Care Unit.
[41]  Dr. Mohosho voiced his
concerns about the repeated episodes of seizures / convulsions
without any adaption of the prescribed
treatment. He conceded that
epileptic convulsions may be treated with Valium. In his opinion the
medical staff at the hospital should
have realised that the deceased
is not responding to the treatment and that their diagnosis (of
epilepsy) should be reconsidered.
Apart from insisting that a
diagnosis of eclampsia should have been made, Mohosho did not react
to the obvious fact that the referral
letter referenced epilepsy or
to the fact that the hospital personnel duly treated the deceased for
epilepsy (as advised by Dr. Mulaudzi).
[42]   At 22h40 on 26
May 2015 the deceased was moved to the Intensive Care Unit. She was
not responding verbally. Oxygen
was provided per face mask. The
nursing notes made at 23h15 at the Intensive Care Unit read that the
deceased was admitted the previous
day “
with
history of right sided hemiplegia / hemiparesis for ± 1 week,
[50]
had seizure seen by
General practitioner. And referred to hospital. She delivered on the
30/4/2014.
”
[51]
At 07h30 on 27 May 2015 the deceased was seen by Dr. Moletsane. As
the Plaintiff’s expert was at pains to point out there is no
indication whether Moletsane is an obstetrician or a general
practitioner (or some other specialist). According to Mohosho the
deceased’s
condition and history demanded the attention of a
gynaecological / obstetrical medical specialist. At 09h30 one Dr.
Nhuwatiwa visited
the deceased. He/she “
promised
to come and do a heart sonar at 11h00.
”
The further notes then indicate that the deceased had “
done
ECG and was due for chest X-Ray
.”
[43]  The heart sonar was
done at 12h15 by Dr. Nhuwatiwa. He/she suggested that the deceased is
to be intubated and referred
to Bloemfontein “
for
urgent scan
”.
Apparently Nhuwatiwa also recommended that the deceased be examined
by a cardiologist. According to the Plaintiff’s expert
this begs
the question: in what capacity did Mhuwatiwa perform the heart sonar
if he or she is not a cardiologist?
[52]
Notes regarding the heart sonar indicate that
echo-tachyarrhythmia
[53]
made assessment difficult. The mitral valve showed a thickening of
the cusps “
with
mild
stenosis and regurgitation and possible vegetations
”.
[54]
These notes irked the Plaintiff’s expert.  He found it curious
that the word “mild” had been underlined. He labelled a
heart
sonar as a diagnostic tool, as compared to a screening tool; thus,
phrasing was important. Words like “maybe” and “possible”
should not be used. It should have been indicated whether the
vegetations were there or not. Further, the valve opening should have
been measured, as without measurements the report itself is of no
value and does not allow for any diagnosis. It is the opinion of
Dr.
Mohosho that the heart sonar did not serve its purpose.
[44] The deceased was hereafter
intubated. According to the Plaintiff’s expert, intubation should
have been done much earlier. Some
time here after the deceased
“
relatives
”
came and “
related how
she was admitted
”.
[55]
No evidence was led as to which relatives came and what information
they relayed to the nursing staff at this point.  We know
that
the Plaintiff, who testified, did not accompany the deceased when she
was transported to the hospital. The deceased’s blood
pressure
started to fluctuate, dropping lower overall. At this point a Dr.
Kemp became involved with the deceased’s treatment.
Inotropes were
administered in an attempt to increase the deceased’s heart rate
and so raise her blood pressure. She remained unstable,
with no
spontaneous respiration. As this situation continued, Kemp consulted
Dr. Nhuwatiwa regarding further management of the deceased’s
treatment. According to the Plaintiff’s expert, Dr. Mohosho, a
neurological assessment done at 19h00 showed that the deceased’s
condition has deteriorated to such an extent that she was essentially
dead.
[56]
All the signs indicated to the deceased being brain dead: both pupils
were dilated and unresponsive to stimuli.
[45]  Accepting at this
stage that Dr. Mohosho is correct in this assessment, there is no
need to consider further developments
at Bongani. The point of no
return has been reached and, if there had been a negligent breach of
any duty of care towards the deceased
which caused her death, it
would have occurred prior to this point in time. Mohosho did not
testify that anything could have been
done (or should have been done)
to save the deceased’s live after her condition had deteriorated so
severely. I will therefor not
deal with Mohosho’s evidence
regarding events relating to the deceased’s eventual transfer to
the Universitas hospital in Bloemfontein
where she passed away. In
any event, the Plaintiff is not alleging that any negligence occurred
at Universitas nor were any grounds
of negligence directed at the
ambulance personnel who transported the deceased from Welkom to
Bloemfontein.
[46]  Dr.Mohosho highlighted
the following regarding the alleged delay in properly
[57]
treating the deceased: the deceased experienced several episodes of
seizures and she had to be resuscitated more than once. By the
time
it was decided that the deceased should be transferred to a more
advanced hospital (Universitas), she already showed signs of
being
braindead.
[47]  According to Dr.
Mohosho there can be no dispute that the deceased died from
eclampsia, a condition which should have been
diagnosed early on when
she presented at Bongani hospital, especially considering the
background contained in the referral letter.
[58]
An early diagnosis of eclampsia, followed by proper treatment with
MgSO4 would have saved the deceased’s life. The deceased’s
death
was preventable, according to Mohosho.
[48]  Dr. Mohosho introduced
articles and extracts from medical journals and textbooks to support
his opinion. He highlighted
selected portions of the texts and
elaborated extensively on these. During cross-examination other
portions of the articles and textbooks
were debated with the doctor.
He did not make any concessions. I will succinctly deal with extracts
from the literature which are
not supportive of Mohosho’s opinion.
[49] In an article entitled
“
Diagnosis,
Prevention, and Management of Eclampsia
”
[59]
it is stated that eclampsia “is defined as the development of
convulsions and/or unexplained coma during pregnancy or postpartum
in
patients with signs and symptoms of pre-eclampsia.” There is no
evidence that the deceased suffered from convulsions prior to
her
visit to Dr. Mulaudzi, weeks after giving birth, nor that he had
showed signs of pre-eclampsia. And further that, “the diagnosis
of
eclampsia is secure in the presence of generalized edema,
hypertension, proteinuria, and convulsions.” Of these symptoms the
deceased only had convulsions, which started weeks after she gave
birth. The article also states that there are several clinical
symptoms which are potentially helpful in establishing a diagnosis of
eclampsia. These include “persistent occipital or frontal
headaches”. The deceased complaints of a headache were not
persistent.
[50] Dr. Mohosho took it upon
himself to deal with the reports prepared by the Defendant’s
medical experts. He highlighted certain
portions thereof, often
dismissing the findings and opinions as contradictory or unethical.
On more than one occasion during cross-examination
Dr. Mohosho became
visibly upset with the questions directed at him and, especially,
with the statement that all the Defendant’s
expert witnesses
disagree with his assessment. He seemingly could not accept that any
person would question or doubt his opinions
or say-so. During
cross-examination several issues were investigated which Dr. Mohosho
found irksome.
[51]  A contentious topic
debated with Dr. Mohosho was his involvement with the deceased’s
family, especially considering that
he is a gynaecologist. He
described himself as both doctor and family friend and asserted that
the family would consult him for advice
and “services”. He
insisted that, although he specializes in gynaecology, he was not
precluded from acting as general practitioner.
Even though he was
employed by a government entity, he was “
obliged to treat and
advise any human being
”. Mohosho learned of the deceased’s
problems whilst she was still being treated at the Bongani hospital.
He was informed by her
uncle as well as the Plaintiff. After hearing
their version, he advised them that the deceased should not have been
admitted in a
medical ward but that she should have been treated as
an obstetric patient. Already then he formed the opinion that the
deceased
was suffering from eclampsia, based on the fact that she
delivered her baby less than four weeks earlier, allegedly complained
of
headaches and suffered convulsions (in the consulting rooms of Dr.
Mulaudzi).
[52]  Dr. Mohosho proceeded
to contact the general physician initially seen by the deceased, Dr.
Mulaudzi. He did so, according
to the testimony, because he wanted to
find out what the deceased’s condition was at the time when she was
referred to Bongani.
He was aware of the existence of the referral
letter but did not ask for a copy.
[53]  Joint minutes were
prepared between Dr. Mohosho, the Plaintiff’s expert, and Dr. M.K.
Malebane, the Defendant’s expert
gynaecologist. They both agreed
that the deceased died within our weeks after the delivery of her
baby (the puerperium period). They
disagree on every other point,
with Dr. Malebane contributing the deceased’s death to Rheumatic
heart disease which caused her
to have a damaged mitral valve,
complicated by forming vegetations and blood clots. The vegetations
and clots moved to the brain,
causing the deceased to have a stroke
(according to Malebane).
SUBMISSIONS
BY DEFENDANT
[54]  During her arguments
in support of the request for absolution from the instance, Me
Williams referred to the Plaintiff’s
failure / omission to call Dr.
Mulaudzi to testify as a big
lacuna
in the Plaintiff’s case. She pointed out that, without Mulaudzi’s
evidence, there are no factual evidence as to what had occurred
in
his consulting rooms. Nor do we know what complaints the deceased
presented with when she attended to him for treatment / advice.
These
lacunae
are exacerbated by the fact that the deceased’s sister, who had
accompanied her, did not testify. It is also not explained why
there
is a difference between the diagnosis referred to in the referral
letter (for the benefit of Bongani hospital) and that contained
in
the later report of Mulaudzi.
[60]
Me Williams further argued that the letter and report of
Mulaudzi do not indicate that the deceased had complained of a
headache,
even though, according to the Plaintiff, the deceased
only
complained of a headache
[61]
and that that was the very reason why she went to Mulaudzi on the day
in question. According to Me Williams eclampsia thus never
gains
traction in the Plaintiff’s case.
[55] Considering the important
role played by Mulaudzi’s referral letter in the Plaintiff’s case
as well as in the opinion expressed
by the expert, it appears
apposite to evaluate the vacuum left by the failure to have Muluadzi
testify. I agree with Me Williams’s
submissions as to the many
issues left in the air due to his absence as witness. In order to
form inferences, one need factual evidence.
Whether the deceased
presented with convulsions and/or headaches appear to be important
facts which form the basis for conclusions
and opinions on the
progressive deterioration in her condition, as well as to whether the
possibility of eclampsia was to be expected.
Dr. Mulaudzi would have
been ideally suited to give first-hand and objective evidence on
these points.
[56]  An important part of
the Plaintiff’s case rests on the contents of Dr. Mulaudzi’s
referral letter. The contents of
the actual letter differ from the
version thereof which were included in the report later prepared by
Mulaudzi himself. Questions
were raised by the Defendant as to
whether eclampsia was suggested to Dr. Mulaudzi. The Plaintiff’s
expert relies on the alleged
diagnosis of eclampsia by Mulaudzi.
Thus, it became important for the author of the referral letter
(Mulaudzi) to come and explain.
Furthermore, the Plaintiff’s expert
relies on facts learned from a telephonic conversation he had with
Mulaudzi. This formed the
subject of cross-examination. This, and
other lines of, cross-examination should have alerted the Plaintiff’s
attorney to the advisability
of presenting direct evidence from
Mulaudzi himself. Contrary to the Plaintiff’s expert, who has a
subjective history with the
deceased and the Plaintiff’s family,
Dr. Mulaudzi would in all probability have been the more objective
medical practitioner, at
least in as far as the presenting of facts
goes.
[62]
[57]  Me Williams
highlighted that, even though Dr Mohosho relied on academic and
scientific research which list headache as
possible indicator for
eclampsia, Dr. Muluadzi did not refer to this as one of the problems
which the deceased had suffered from
or complained about.
Furthermore, even if the deceased did complain of a headache, that in
itself does not lead to a diagnosis of
eclampsia as the only, or even
the appropriate, diagnosis as there could have been a variety of
possible causes for the deceased’s
headache.
[63]
The deceased did not previously present with any of the signs that
are indicative of eclampsia. When the deceased suffered a seizure
in
the consulting rooms of Dr. Mulaudzi he managed to stabilize her.
When this occurred again at the hospital, they also brought
it under
control. In as far as the medical personnel at the Bongani hospital
may have been dutybound to act in terms of the referral
letter,
[64]
they did: he mentioned epilepsy and they treated every episode of
seizures experienced by the deceased in their presence; he requested
them to evaluate the deceased’s condition and they did so. The mere
fact that Dr. Mohosho would have done something differently
does not
to my mind lead to the necessary inference of negligence on the side
of the hospital personnel.
[58]  Me Williams pointed
out that Dr. Mohosho was too involved in the matter to give an
objective, credible opinion, and that
his independence as an expert
had been compromised. I understand the submission to mean that she
considers this case to be one of
the instances where the credibility
of the Plaintiff’s witnesses is to be considered as a factor when
adjudicating whether absolution
from the instance should be granted
or not.
SUBMISSIONS
BY PLAINTIFF
[59]  At the start of his
argument, Mr Ponoane for the Plaintiff expressed his surprise that
the Defendant requested absolution
from the instance. He was
convinced that negligence has been proven. He proceeded to respond to
the submissions made on behalf of
the Defendant regarding Dr.
Mulaudzi’s referral letter and was at pains to point out that there
are various averments in the Particulars
of Claim which do not relate
to the referral letter. He placed on record that, at the time when he
drafted the Particulars of Claim,
the hospital and other medical
records were not available.
[65]
One is left to ponder on what basis then the averments in the
Particulars of Claim were made.
[66]
[60] The Plaintiff’s attorney
did not adequately address the incorrect averments in the Particulars
of Claim, other than to place
on record that he was not possession of
any medical records when drafting the Particulars of Claim. Such
incorrect averments relate
to the allegation that the deceased
complained of weakness of the right side of her body and that
Mulaudzi discovered that the deceased
had been suffering from
convulsions since the birth of her baby. It was also incorrectly
averred that Mulaudzi had advised the Bongani
hospital of a diagnosis
of eclampsia.
[61]  Mr. Ponoane insisted
that the medical personnel at the Bongani Hospital should have
diagnosed eclampsia as the deceased
was still in the puerperium
period and had complained of a headache. Unfortunately for Mr.
Ponoane this is too simplistic an approach
to the matter. Only the
Plaintiff testified that the deceased complained of a headache. There
is no evidence as to whether she listed
a headache as complaint to
Mulaudzi. Furthermore, Mulaudzi, the physician who initially examined
the deceased and expressed an opinion
on possible diagnoses, referred
to epilepsy as possibility and the medical personnel at Bongani in
fact treated the deceased accordingly.
The reports prepared by the
Defendant’s experts (which the Plaintiff’s own expert introduced
into his evidence) suggested other
possible diagnoses.
[62]  In response to a
question as to how the hospital personnel could have known of the
headache (considering that the deceased
was not communicating
verbally nor did the referral letter mention headaches), Mr. Ponoane
simply replied that, “they should have
known”. Mr. Ponoane
attempted to steer away from this incongruity by seizing onto the
repeated episodes of convulsions suffered
by the deceased whilst in
care of the hospital personnel. He stressed Dr. Mohosho’s opinion
that the convulsions should have been
treated with MgSO4. On this
point he ignores the concession made by Dr. Mohosho during
cross-examination that epileptic convulsions
are not typically
treated with MgSO4. Also, that the differential diagnosis by Dr.
Mulaudzi, who physically examined the deceased,
[67]
included epilepsy.
[63]  Mr. Ponoane submitted
that there is a
prima facie
case in favour of the Plaintiff.
He then made a curious submission by insisting that the contents of
the expert reports filed on
behalf of the Defendant be considered at
this stage. The submission is curious considering that all the
Defendant’s experts disagree
with Dr. Mohosho, the Plaintiff’s
expert, on his diagnosis of eclampsia and none of them considers
untreated eclampsia to have
been the cause of the deceased’s death.
Pondering this curious submission, I will accept for the sake of the
Plaintiff that Mr.
Ponoane meant to argue that there are aspects
which the Defendant’s experts agree with (such as the fact that the
deceased was
still in the puerperium period).
[64]  The Defendants’
other experts who prepared reports include a cardiologist and a
neurologist. Dr. C. Schamroth, a specialist
cardiologist,
specifically analysed the deceased’s blood pressure readings as
recorded by Dr. Mulaudzi and at Bongani hospital,
and came to the
conclusion that the readings did not indicate hypertension,
[68]
at least not to the extent that it could reasonably be associated
with eclampsia. He concluded that the exact cause for the deceased’s
demise “
may not ever
be known as there is no post-mortem data
”
and that, whilst the deceased “
may
indeed have had eclampsia, this is a diagnosis that would not have
been suspected on admission to hospital as there was/is no
evidence
to support such a diagnosis
”.
Thus, it is Schamroth’s opinion that even if eclampsia caused the
deceased’s death, Bongani hospital was not negligent in
failing to
diagnose it. The conclusion by Dr. Schamroth hits at one of the flaws
in the Plaintiff’s case and arguments: even if
it is accepted that
the deceased had died of eclampsia, negligence if not the only
reasonable inference from the facts at hand.
EVALUATION
[65]  One could easily be
seduced into the trap of focusing too intently on the peculiar (some
may say slightly disturbing) aspects
of the Plaintiff’s version.
For example, the Plaintiff’s evidence that the deceased was
initially seated on a chair with the
drip plastered to a wall.
Although this is listed as a ground of negligence in the Particulars
of Claim, no causal link to the deceased’s
death was established.
Or put differently: there is not sufficient evidence that that
situation in itself led to the demise of the
deceased.
[66]   On the other
hand, there is the unexplained and contradictory aspects of the
Plaintiff’s case. For example: the
deceased complains of a
headache, visits a doctor for that very complaint, and then no
mention thereof is made by Dr. Mulaudzi. And:
Dr. Mulaudzi mentions a
history of seizures, even though there is no evidence that the
deceased had ever before experienced such.
And then there is of
course the unexplained mention of eclampsia in the report of Dr.
Mulaudzi even though this was not mentioned
in his referral letter to
Bongani (the very referral letter which the Plaintiff and his expert
rely).
[67]  The Plaintiff’s case
hinges on the testimony of his expert, Dr. Mohosho. The Plaintiff
himself had very little to contribute
in the way of clear-cut facts
on which the case can be adjudicated, not having been present at the
consulting rooms of Dr. Mulaudzi
nor having spoken to Dr. Mulaudzi
himself. Factually, the Plaintiff’s own evidence revealed one or
two contradictions and left
several aspects unexplained (and
unsatisfactorily so).
[68] Dr. Mulaudzi did not
testify. His referral letter, the springboard of the Plaintiff’s
case, is before court and does not support
the essence of the
Plaintiff’s case, namely that the general physician diagnosed (at
least the possibility) of eclampsia and that
Bongani hospital failed
to treat the Plaintiff accordingly. In as far as the referral letter
differs from the contents of the later
report by Dr. Mulaudzi, and
considering the essence of the Plaintiff’s case, I am of the view
that the referral letter stands on
its own legs and should be
considered as indication of what Mulaudzi wished the hospital to
know. No other finding seems acceptable
considering the failure by
the Plaintiff’s attorney to call Dr. Mulaudzi to testify. The
referral letter thus did not alert the
hospital to the possibility of
eclampsia.
[69] The failure to call Dr.
Mulaudzi as witness is problematic. It is not possible to surmise
what detail his evidence may have revealed.
At the very least he
would have been able to explain precisely what complaints the
deceased had when she visited his consulting rooms.
He would also
have been in a position to explain why he referred to eclampsia in
his report but not in the initial referral letter.
I do not consider
the failure to call Mulaudzi to testify as necessarily fatal for the
Plaintiff’s case. We have the hospital records
and nursing notes
from Bongani (although not for the period spent by the deceased in
the Casualty department). It will never be known
what conclusion(s)
Mulaudzi would have come to if the deceased did not convulse whilst
in his consulting rooms.
[70] Having experienced Dr.
Mohosho in the witness box over a period of several days, I am
tempted to comment on his demeanour and
attitude towards the case and
the various role-players taking part in the drama of the litigation.
However, an unpleasant demeanour
does not necessarily reflect on the
validity of an expert’s opinion. I will evaluate the evidence
presented by Dr. Mohosho using
the generally accepted principles
relating to expert evidence.
[71]  In order for a court
to evaluate the correctness of an opinion pronounced by an expert, it
is necessary to consider the
reasoning
process
which led to
the opinion, as well as the assumptions on which it is based.
[69]
When the evidence of an expert is evaluated it should be determined
whether and to what extent the opinion advanced is founded on
logical
reasoning
.
[70]
It is for the Court, and not the expert witness, to determine whether
there has been negligence or not.
[71]
[72]  There is an essential
difference between scientific and judicial measure of proof. The
following warning appears apt, namely
that one “
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
.”
[72]
The
court in the case of
Linksfield
Park Clinic
specifically emphasized the fact that expert witnesses sometimes fail
to differentiate between what is
possible
as to what is
probable
.
[73]  Experts may
legitimately differ in opinion regarding a certain set of facts. So,
in
Medi-Clinic v
Vermeulen
[73]
it was stated that:
“
Experts may legitimately
hold diametrically opposed views and be able to support them by
logical reasoning. In that event it is not
open to a court simply to
express a preference for the one rather than the other and on that
basis to hold the medical practitioner
to have been negligent.
Provided a medical practitioner acts in accordance with a reasonable
and respectable body of medical opinion,
his conduct cannot be
condemned as negligent merely because another equally reasonable and
respectable body of medical opinion would
have acted differently
.”
[74]
In
Schneider
No
and Others v AA and Another
[74]
Davis
J said:
“
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 purpose of a particular case. An
expert
does not assume the role of an advocate, nor gives evidence which
goes beyond the logic which is dictate by the scientific
knowledge
which that expert claims to possess.
”
[75] To my mind it is not
sufficient to argue that evidence was presented of an expert witness
who opined that someone had acted negligent.
The opinion should be
evaluated in the light of acceptable factual evidence presented and
the nature and quality thereof. Where an
expert relies on flawed or
unconvincing facts, his opinion should of necessity be treated with
circumspection.
[76]  In his reasoning Dr.
Mohosho relied
inter
alia
on an alleged
diagnosis by the general practitioner, Mulaudzi, who did not himself
testify. Thus, the starting point of his reasoning
process was
flawed. From there Mohosho launched into an attack on the personnel
at the Bongani hospital as if they were aware of
the diagnosis of
eclampsia made by Mulaudzi. Mohosho had a subjective, personal,
relationship with the Plaintiff and the family of
the deceased,
preventing him from being entirely objective. He became so involved
in the Plaintiff’s case that he even considered
Mr. Ponoane, the
Plaintiff’s attorney, to also be his attorney.
[75]
Mr. Ponoane further explained during arguments on the compilation of
the trial bundle that Dr. Mohosho assisted him as to what should
be
contained in the bundle and what to use during evidence.
[77]  Mohosho did not so
much come to assist the court but to lecture all concerned. His
personal and insulting comments directed
at the Defendant’s experts
were uncalled for and presented as an attempt to raise himself higher
in the court’s estimation. His
disdain for the Defendant’s
counsel was palpable. He became visibly angry at the questions and
statements put to him by the Defendant’s
counsel, despite
admonishments from the bench.
[76]
To Dr. Mohosho the deceased’s plight was personal. He was not an
objective witness; alternatively put, he was not sufficiently
objective to assist the court with an unbiased, logic-based and
well-reasoned expert opinion.
[78]  I referred earlier to
the test for negligence. It consists of two legs of enquiry: whether
the experienced harm was reasonably
foreseeable and whether there
were steps to take in order to prevent the harm from occurring.
In
casu
the first question may be simplified: was it reasonably
foreseeable, on the evidence presented by the Plaintiff, that the
deceased
had eclampsia? Or to phrase it differently for the purposes
of absolution from the instance: was evidence presented on which it
may
be found that it could reasonably have been expected from the
hospital to diagnose eclampsia? In my view the answer is no. The
CT-scan
done on 28 May 2015 indicated multiple possible causes of the
deceased’s symptoms, none of which referenced eclampsia. The scan
was done at the Universitas hospital and after the deceased had been
placed in the obstetric ward. Dr. Mohosho throughout insisted
that an
obstetrician would have known how to diagnose the deceased correctly.
And more importantly, the Plaintiff’s case is not
that any
negligence had occurred at Universitas. Thus, although Mohosho had
much to say about the wording of the results as set out
in the
CT-scan, no negligence has been raised regarding the scan or against
any of the medical personnel at the Universitas hospital.
[79]  This case is not
simply analogous to the scenario which confronts a court when a
defendant has not given any evidence.
The Plaintiff’s own expert
referenced the expert reports prepared by the Defendant’s experts.
He was selective in the passages
he referred to, focusing rather on
those passages which supports his own opinion but neglecting to
fairly present the portions of
the reports which contradict his
opinion. Sufficed to say that the court was invited to consider a few
selective portions of the
reports. It would however be unfair to then
expect me to close my eyes to the bulk of the reports which do not at
all support Dr.
Mohosho’s testimony.
[80]  It is of course so
that the Defendant’s experts have not testified, and their opinions
have not been tested through cross-examination.
However, one cannot
simply reason as Dr. Mohosho and the Plaintiff’s attorney seems to
do, namely to say that it is for the Defendant’s
experts to now
come and defend the remaining portions of their reports. Should the
fact that no other expert supports the conclusions
formulated by
Mohosho be ignored, it would fly in the face of justice and be
markedly unfair in the circumstances.
[81]  After due
consideration of the positive and negative aspects of the evidence
presented by the Plaintiff, and applying a
reasonable mind, I am of
the view that the Plaintiff did not present evidence on which this
court could find that the medical personnel
at the Bongani hospital
were negligent as alleged.
[82]  Should I be wrong in
my conclusions regarding the element of negligence, it would not
automatically lead to a decision
that a
prima facie
case has
been made out or to a finding of liability against the Defendant. The
evidence presented on behalf of the Plaintiff focused
primarily on
the aspect of negligence. Negligence is of course not the only
requirement that needs to be considered in a delictual
claim. The
element of causality also needs to be adjudicated.
[83] Dr. Mohosho is adamant that
the failure to diagnose the deceased with eclampsia and the related
failure to administer treatment
for eclampsia led to her suffering
cardiac arrest. He is confident that her death could have been
avoided if an obstetrician had
examined her and treated her with
MgSO4. There is of course no evidence indicating that, should an
obstetrician have examined the
deceased at Bongani he/she would have
diagnosed her with eclampsia (not epilepsy) and proceeded to treat
her differently. A reading
of the reports prepared by the Defendant’s
experts, which the Plaintiff’s expert introduced and discussed,
reveal that there
is at least one other possible explanation for the
deceased’s condition. This is further borne out by the results of
the CT scan
of 28 May 2015 which recorded “[p]
ossible preceding
massive right internal carotid/middle cerebral artery infarction,
with subsequent mass effect and haemorrhagic transformation,
leading
to secondary brain injury. Dural sinus thrombosis with extensive
venous infarction cannot be ruled out as another possible
cause
.”
[84]  Much was made of the
fact that the deceased had to sit on a chair in the casualty
department for some time and that she
was then admitted in a medical
ward, not the maternity ward. Even should that be accepted as
negligent for the sake of argument,
it does not necessarily support
the inference which the Plaintiff stresses, namely that the deceased
died due to untreated eclampsia.
In fact, considering the matter
holistically, it presents simply as a leap too far. No
prima facie
case had been made out that any negligence at Bongani caused the
deceased’s death.
CONCLUSION
[85]  I am satisfied that
having regard to the particular circumstances of this case it would
be proper and in the interests
of a fair and just adjudication of the
case to grant absolution from the instance. I do not see sufficient
evidence upon which a
court could or might find for the Plaintiff.
COSTS
OF APPLICATION FOR ABSOLUTION FROM THE INSTANCE
[86]  An order of absolution
from the instance is essentially an order against a plaintiff. Or
stated differently: an order in
favour of the defendant. Costs should
then follow the event, and thus, it is normally ordered that
absolution from the instance is
granted with the plaintiff to pay the
costs of suit.
[87] Me Williams, on behalf of
the Defendant, placed on record that she holds instructions that,
should the application for absolution
from the instance be granted,
each party should pay its own costs. This is a very generous gesture
from the Defendant and its attorneys
and presents as exceptionally
fair towards the Plaintiff. There is no reason not to make an order
in terms of the Defendant’s favourable
suggestion.
POSTPONEMENT
[88] One last issue needs to be
dealt with, namely the costs of a postponement requested by the
Defendant partway through the evidence
of Dr. Mohosho.
[89] Trials do not always run
smoothly and when hiccups do occur, most legal representatives are
adept at dealing with them in the
appropriate manner. Proper
attention paid during the pre-trial phase more often than not ensure
that trials run without unnecessary
interruption. As
dominus litis
it is the duty of a plaintiff (or more appropriately his or her
attorney) to ensure that all pleadings and notices which have been
exchanged in the build-up to the trial are not only in the court
file, but are furthermore neatly bound, indexed and paginated. This
is not only to make the presiding judge’s job a little easier. It
also serves as an exercise to ensure that every document which
will
be referred to by witnesses are in the court file and presumably
presents an opportunity for practitioners to double-check that
everything document in the court file had also been served on the
opposing party. It may be accepted that, if the court file is in
order, it serves as an indication that all pleadings and notices have
been properly exchanged and that the legal representatives
of the
parties made sure that they and their opponents are in possession of
the relevant documentation which will be dealt with during
the trial.
[90]  In this case the trial
ran anything but smoothly. From the get-go the court file appeared
shabby, as if pleadings and bundles
of documents were simply thrown
in without any regard as to proper order. I doubt whether the
Plaintiff’s attorney inspected the
file prior to the allocation
thereof to a judge so as ensure that it is in order and that all the
necessary documentation have been
filed, indexed and paginated. In
fairness to the parties and so as not to waste time, I had the trial
commence, not using the state
of the court file as an excuse to delay
proceedings. Unfortunately, the lack of attention paid to the court
file flowed over to the
presentation of the evidence.
[91]  It was especially
during the testimony of the Plaintiff’s expert that it became
apparent that not all documentation have
been served, filed and/or
properly indexed by the Plaintiff’s attorney. Documents were
missing or bound in incorrect or illogical
court bundles. An
adjournment to allow the Plaintiff’s attorney to straighten out the
mess only led to a slovenly attempt at the
renumbering of pages. Even
thereafter missing pages and documents needed to be handed up. The
trial proceeded regardless.
[92]  Deep into the
examination-in-chief of the Plaintiff’s expert Mr Masihleho, who
then represented the Defendant, indicated
that the witness was
referring to “articles” which had not been made available to the
Defendant. As it later turned out, the
documents were in fact
extracts from textbooks prescribed to medical and nursing students.
The extracts were filed in terms of Rule
36(9)(b) as if supplementary
reports by Dr. Mohosho. They formed part of a bundle filed under
cover of a notice headed “
Notices in terms of Rule 36(9)(a) &
(b), Dr. Mokoena Martins Mohosho (Supplement Expert Witness
Evidence)
”. There was no indication that the bundle was served
on the Defendant’s attorney of record. The copy of the notice that
had made
it into the court file does not indicate that it had been
filed with the office of the Registrar. Mr Masihehlo requested a
postponement
of the matter to allow him an opportunity to peruse
discuss the supplementary documents with the Defendant’s experts.
He insisted
that the postponement should be granted before the
witness continued with his evidence.
[93]  I stood the matter
down to allow Mr Masihehlo an opportunity to receive copies of the
missing documentation from the Plaintiff’s
attorney, consider them,
and discuss them with his witnesses. After the adjournment I was
informed that the Defendant still insists
on a postponement as the
documentation received refers to further articles which the
Defendant’s legal team and panel of experts
wish to consider prior
to proceeding. Mr Ponoane responded on behalf of the Plaintiff by
explaining that, prior to the first day
of trial, the matter had been
“in court” on several occasions. It was his opinion that the
missing documentation were probably
given to the Defendant on one of
those dates. Mr Ponoane could not substantiate his opinion. He went
further and pointed to the document
headed “Index for Plaintiff’s
Expert Witnesses” which in his opinion should have alerted the
Defendant that it refers to documentation
not in their possession and
the matter could then have been attended to by means of a “courtesy
call”. Should the Defendant’s
attorney and counsel have failed to
pay proper attention to the index, the Plaintiff should not be held
responsible.
[94] Mr Ponoane further indicated
that during the adjournment copies of the documents were handed to
the Defendant’s counsel. Mr
Masihehlo replied that it was in fact
the candidate attorney of Mr Ponoane who attended to the
documentation together with himself
(Masihehlo), and that Mr Ponoane
left the court room when there was an attempt to further discuss the
matter.
[95]  By this time I have
already noticed an almost tangible atmosphere in the court between
the two sets of legal representatives.
Body language and whispered
comments are of cause not reflected on record. It became clear to me
however that tempers were flaring
and that personal opinions were
overriding common sense, good manners and courtesy. This was later
also borne out by the contents
of the affidavits filed by the legal
representatives on my request. This was not conducive to a proper
administration of justice
and might have been to the disadvantage of
one of the parties (or maybe even both). All parties to my mind
needed time and space
to calm down and start focusing on the ball
(metaphorically speaking) rather than the man.
[96]  The matter had been
set down for a Tuesday, Wednesday and Friday, as per the norm in this
Division. Mr Masihehlo’s dilemma
raised its head during the latter
part of the morning session on the Wednesday. The adjournment and
presenting of submissions continued
into the afternoon session. I
considered the request from the Defendant’s counsel within the
context of available court time. I
also considered the insistence
from the Defendant’s counsel that he needed to further discuss the
missing “articles” with the
Defendant’s experts prior to any
further evidence being presented. This could to my mind easily be
done prior to the commencement
of, or even during cross-examination
of Dr. Mohosho. It appeared to me distinctly unnecessary to allow a
postponement for that purpose
whilst the witness was still busy
presenting his evidence-in-chief.
[97]  There was no sense in
using what little of what was left of the Wednesday afternoon
session. The matter of necessity had
to be postponed to the next date
as arranged, namely the Friday. I ruled that the examination-in-chief
of Dr. Mohosho was then to
be completed whereafter the case would be
postponed prior to the cross-examination of the witness. I indicated
that judgment on the
issue of costs was reserved.
[98] The testimony of Dr. Mohosho
continued on the Friday morning and was concluded before shortly
lunch.
[77]
After Dr. Mohosho completed his evidence-in-chief, the Defendant’s
counsel insisted that the cross-examination will not commence
before
he has not further consulted with the Defendant’s expert
witnesses.
[78]
As no further days were left in the week arranged for the trial, the
matter was postponed for dates later in the year, allowing for
five
more additional court dates. Thus, the postponement effectively was
not due to the Defendant’s request for a postponement,
but was
necessary due to the lack of available court time.
[99]  Generally speaking,
the party requesting a postponement should bear the costs occasioned
thereby. In this instance, the
Defendant requested the postponement
due to documentation filed by the Plaintiff but not properly served
on the Defendant’s attorney
of record. Considering the matter only
from such an angle, fault appears to lie at the door of the
Plaintiff’s attorney. However,
this is too simplistic an approach
in the light of the matter as a whole. After the “missing”
documentation was made available
to the Defendant’s counsel, he
could follow the evidence presented by Dr. Mohosho. There was no need
for the case to be postponed
whilst the witness was still busy with
his examination-in-chief. Most of the court time available on the
Wednesday was in fact utilized,
albeit partly to deal with the
incomplete set of documentation and the application for postponement.
Considering the inevitable time
lapse between the Wednesday and
Friday of any regular trial week in this Division, there was time for
the Defendant’s experts to
peruse the articles and give their input
to counsel for purposes of cross-examination. It would also have been
possible for counsel
to start with the cross-examination and then
request a postponement when it became necessary to get further
instructions on the documentation
which was received late.
[100] But still this was not the
end of the matter. The further testimony from Dr. Mohosho in chief
took several hours. Less than
half of the available court time for
the Friday remained for cross-examination. Evaluating the situation
further still from the vantagepoint
of the further court days spent
on the cross-examination of Dr. Mohosho when the trial recommenced,
even if the Defendant’s counsel
had commenced his cross-examination
on the Friday, it would have been impossible for him to conclude it.
A postponement of the trial
and the arrangement of further court days
became inevitable. And practically speaking it was fortuitous that
the postponement was
granted prior to cross-examination commencing,
otherwise Dr. Mohosho would have been unable ethically to have any
discussions with
the Plaintiff and the attorney during the delay
before the next arranged dates.
[101]  Court time was
utilized on both the Wednesday and the Friday, despite the
postponement. It can thus not be argued that
a huge portion of court
time was lost. In as far as time may have been wasted through the
request for a postponement and the reasons
therefor, it cannot be
said that it led to any significant costs being wasted. Calculating
which portion of the court time was lost
due to the postponement and
the circumstances leading up to the postponement will be difficult.
It is furthermore not something that
should in the circumstances
simply be left for the taxing master to contend with.
[102]  In the premises, I
exercise my discretion relating to costs by ordering that costs
occasioned by the postponement are
considered to be costs in the
cause. This seems to me to be fair to both parties.
ORDER
[103]
In the premises, I make the following orders:
1.
Absolution from the instance is granted;
2.
Each party is to pay his own costs of suit;
3. The costs occasioned by the
postponement of the trial on 20 August 2021 are considered to be
costs in the cause.
G.J.M.
WRIGHT, AJ
For
the Plaintiff:
Mr. MJ Ponoane
Bloemfontein
For
the Defendant:
Adv. R Williams SC
Instructed by: State Attorney
Bloemfontein
[1]
The wording of the relevant paragraphs in the Particulars of Claim
is inelegant. However, nothing more needs to be said considering
that only the merits of the Plaintiff’s claim are in issue at this
stage.
[2]
These were also filed under further notices in terms of Rule
36(9)(b).
[3]
The following experts had prepared reports on behalf of the
Defendant: Dr. M.K. Malebane, Dr. M.G. Schoon (both Gynaecologists
and Obstetricians), Dr. C. Schamroth (a Cardiologist) and Dr. J.
Reid (a Neurologist).
[4]
Initially the Defendant was represented by Advocate Masihelo. The
matter was adjourned prior to the commencement of the
cross-examination
of the Plaintiff’s second witness, Dr. Mohosho.
When the proceedings recommenced, the Defendant was represented by
Advocate Williams
SC. The Plaintiff was throughout represented by an
attorney, Mr Ponoane.
[5]
1976 (4) SA 403 (A).
[6]
At 409 G – H. Quoted with approval in
Gordon
Lloyd Page & Associates v Rivera and Another
2001 (1) SA 88
(SCA)
at 92 F – G.
[7]
Ruto Flour Mills (Pty)
Ltd v Adelson (2)
1958 (4) SA 307
(TPD)
at 309 D – E;
Ardecor
(Pty) Ltd v Quality Caterers (Pty) Ltd and Others
1978 (3) SA 1073
(NPD)
at
1077 G
[8]
Gordon Lloyd Page
supra
at 92 G – H.
[9]
See for example:
Hanger
v Regal
2015 (3) SA 115
(FB)
at 117 F – 118 B.
[10]
Gordon Lloyd Page
supra
at 92 H – J.
[11]
Atlantic Continental
Assurance Co of SA v Vermaak
1973 (2) SA 525
(E)
at 527 C – D.
[12]
Gordon Lloyd Page
supra
at 93 A.
[13]
At 75 B –
C
[14]
See
for example:
Ardecor
(Pty) Ltd v Quality Caterers (Pty) Ltd and Others
1978 (3) SA 1073
(NPD)
at 1077 D – H.
[15]
[15]
Confer:
Supreme
Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd
1971
(4) SA 90
(RAD)
at 93
F.
[16]
At 430 E –
G
.
See
also:
Sea
Harvest Corporation (Pty) Ltd and Another V Duncan Cold Storage
(Pty) Ltd and Another
2000 (1) SA 827
(SCA)
at [21] – [22].
[17]
Oppelt v
Department of Health
2016 (1) SA 325
(CC)
at [107]
[18]
Blyth v
Van Den Heever
1980 (1) SA 191
(A)
at 221 A – B. Confirmed in
Oppelt
v Department of Health
2016 (1) SA 325
(CC)
at [71]
[19]
At 525. See
also:
Buls
and Another v Tsatsarolakis
1976 (2) SA 891
(TPD)
at 893 H – 894 A;
Oppelt
v Department of Health
2016 (1) SA 325
(CC)
at [108].
[20]
S v Mini
1963 (3) SA 188
(A)
at 196 E – F
[21]
Although the Particulars of Claim was amended to include more
specific allegations regarding the deceased and the duty she would
have had to maintain her minor child, the inelegant wording of the
grounds of negligence remained.
[22]
The Defendant amended its Plea to include more specific denials.
[23]
Mr
Ponoane later explained that the Plaintiff’s expert advised him as
to what documentation should be placed in the trial bundle.
[24]
The Plaintiff did not accompany the deceased and was at work during
this time.
[25]
It is not clear how the Plaintiff could have known that or when he
learned of the alleged contents of the referral letter.
[26]
Despite the Plaintiff’s assurances that Josephine Mallane was
available, she was not called to testify as to what precisely had
occurred whilst Dr. Mulaudzi was examining the deceased. Considering
that Dr. Mulaudzi himself also did not testify, any reference
to
what had occurred in his consulting rooms amounts to inadmissible
hearsay and cannot be relied on.
[27]
It remains unclear what the exact content of the conversation(s)
was.
[28]
No attempt was even made to reveal the identity of this doctor.
Significantly, only in answer to questions from the Bench was it
revealed that the doctor also happened to be the Plaintiff’s
expert witness.
[29]
I shall later deal with the evidence of Dr. Mohosho on this point.
[30]
Dr. Mohosho had a tendency to interrupt his own evidence in order to
explain something which to his mind the court may want to
know,
whether relevant to the matter at hand or not.
[31]
So stated in his report.
[32]
Referred to as the
puerperium
period.
[33]
What
the research actually state is that: “
Women
in whom convulsions develop in association with hypertension and
proteinuria during the first half of pregnancy should be
considered
to have eclampsia until proven otherwise
.”
This is an extract from one of the articles presented by Dr.
Mohosho, entitled “Diagnosis, Prevention, and Management of
Eclampsia”, published in February 2005 by the American College of
Obstetricians and Gynaecologists, included in one of the Plaintiff’s
expert bundles as page 18.
[34]
The
document is essentially typed notes on the practitioner’s
letterhead, detailing the deceased’s complaints and the results
of
his examination. It concludes with a summary of the alleged contents
of the referral letter. The summary in itself formed the
subject of
part of the cross-examination of the Plaintiff’s expert witness.
[35]
Weakness
or paralysis.
[36]
This
part of the report confirms generally with the contents of the
referral letter.
[37]
However,
the Plaintiff’s letter of demand in terms of Act 40 of 2002 also
contained references to repeated convulsions which allegedly
began
after delivery. The letter was dated 12 October 2015.
[38]
The
referral letter itself however contains no reference to eclampsia.
[39]
Cerebral
vascular accident.
[40]
The
referral letter in this regard refers to “Epileptic seizures” as
one of the diagnoses alongside “CVA”.
[41]
As did
the Plaintiff’s attorney.
[42]
Paragraph
of the Plaintiff’s letter of demand in terms of Act 40 of 2002
stated in paragraph 12 thereof that the hospital failed
to treat the
deceased “
in
terms of such relevant precise treatment as morely
[sic]
diagnosed
by Doctor Mulaudzi
.”
Paragraph of the letter of demand stated specifically that the
hospital personnel ignored the indication by Dr. Mulaudzi of
eclampsia.
[43]
In which case the Plaintiff would probably have regurgitated
information given to him by his sister, Josephine, who had
accompanied
the deceased to the consulting rooms of Dr. Mulaudzi.
And as Josephine did not testify, it remains a mystery as whether
she was
present when the deceased had convulsions or heard what
complaints the deceased explained to the doctor.
[44]
It
seems that Mohosho throughout relied on the (incorrect) version of
the letter as stated by Dr. Mulaudzi himself in his report
of August
2015.
[45]
The
deceased was referred back to the Bongani hospital within four weeks
after she had delivered her baby.
[46]
This
may be seen from the first available nursing note, made in the
Medical Ward at 00h01 on 26 May 2015. A further note at the
same
time reads that the deceased was “admitted in the ward via
Casualty on a stretcher escorted by registered nurse Moloi and
Nurse
Radebe.
[47]
At
00h01.
[48]
Dr.
Mohosho explained that the notes would have been made by nursing
staff. Notes made by physicians are done on different forms.
Such
doctor’s notes form part of the medical records in the bundle of
documents. The doctor’s notes are scant in comparison
to the
nursing notes. Mohosho explained that this is due to the fact that
nursing staff are present at all times, whilst doctors
only attend
to patients on occasion.
[49]
The handwriting for this note is not clear.
[50]
There is no evidence that the deceased had being experiencing
seizures prior to her visit to Dr. Mulaudzi.
[51]
This appears to be a writing error. It is common cause that the
deceased gave birth on 30 April 2015, not 2014. Be that as it may,
an attempt was clearly made to indicate that the deceased had
delivered a baby recently.
[52]
Dr. Mohosho himself is of course also not a cardiologist.
[53]
Dr. Mohosho explained that this indicated a pulse rate that is high
and irregular.
[54]
The
word “mild” is clearly underlined in the handwritten notes.
[55]
This is so noted in the notes made by the nursing staff.
[56]
Or to use Mohosho’s own exact  words, “
This
was the neurological assessment of a corpse
”.
[57]
Dr. Mohosho is adamant that the deceased was not treated properly
and/or correctly, mainly because (in his opinion) she was
misdiagnosed.
[58]
It
needs to be remembered that Mohosho was erroneously under the
impression that the referral letter indicated a diagnosis of
eclampsia.
[59]
American College of Obstetricians and Gynecologists” Vol. 105, No.
2, February 2005.
[60]
Which then included the reference to eclampsia.
[61]
And not of weakness or seizures.
[62]
No evidence has been led as to whether the deceased had consulted
with Dr. Mulaudzi previously.
[63]
If in fact the deceased had been suffering from a headache. If she
did, there is no evidence suggesting that she had also suffered
headaches previously.
[64]
The Plaintiff did not plead that the medical staff at Bongani had a
duty to act in terms of the contents of the referral letter
or that
they needed to contact Dr. Mulaudzi to find out more than what had
been stated in the letter.
[65]
This of course does not explain why there was never an attempt to
amend the Particulars of Claim to bring the pleadings more in
line
with the medical records. Nor does it provide an explanation as to
why the Plaintiff’s own expert continued with his report
despite
not having seen the actual referral letter. And of course, it does
not explain why the referral letter did not form part
of the
Plaintiff’s trial bundle.
[66]
During cross-examination of Dr. Mohosho he was questioned on his
role in bringing the case to court. Although his responses were
somewhat vague and tended to steer away from the issue, I got the
impression that Mohosho may have been involved from the start,
thus
even prior to the issuing of summons. That would then explain how
the Plaintiff’s attorney was able to draft the Particulars
of
Claim without any insight into medical or other relevant
documentation.
[67]
Unlike the expert, Dr. Mohosho, who never examined the deceased or
had any communications with her.
[68]
One of the warning signs or symptoms for eclampsia.
[69]
Visagie v
Gerryts en ‘n Ander
2000 (3) SA 670
(CPD)
at 681 C
[70]
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3)
SA 1188
(SCA)
at [36]. See also:
Medi-Clinic
v Vermeulen
2015 (1) SA 241
(SCA)
at [5];
Louwrens
v Oldwage
2006 (2) SA 161
(SCA)
at [27].
[71]
Pringle v
Administrator, Transvaal
1990 (2) SA 379
(WLD)
at 395 A;
Buls
and Another v Tsatsarolakis
1976 (2) SA 891
(TPD)
at 894 C;
Buthelezi
v Ndaba
2013 (5) SA 437
(SCA)
at [14].
[72]
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3)
SA 1188
(SCA)
at [40].
[73]
2015 (1)
SA 241
(SCA)
(at
243 G – H)
[74]
2010
(5) SA 203
(WCC)
at
211
J – 212 B
.
See also
STOCK
V STOCK
1981 (3) SA 1280
(A)
at
1296 E.
[75]
Dr. Mohosho repeatedly referred to Mr Ponoane as “my attorney”.
[76]
Initially I dealt with the outbursts and inappropriate comments of
Dr. Mohosho by explaining the role of all concerned and by pointing
to his own verbal attacks at the Defendant’s experts. Towards the
latter part of cross-examination Dr. Mohosho’s visible anger
with
Me Williams nearly escalated into something more and stern words
from the Bench were needed to stop anything more from happening.
Once again, a transcription of the proceedings will not convey the
tone of voice or the gestures and reactions that were on display
during these episodes.
[77]
At 12h20 to be precise (according to my watch).
[78]
Surprisingly, when the trial resumed later, the Defendant’s had
new counsel, this time round senior counsel.