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[2021] ZAGPJHC 686
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Dlamini v Gauteng Department of Health: Member of the Executive Council and Another (2009/34279) [2021] ZAGPJHC 686 (17 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2009/34279
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
17
August 2021
In
the matter between:
DLAMINI
WITNESS THOKOZANI
Plaintiff
Versus
GAUTENG
DEPARTMENT OF HEALTH: MEMBER
OF
THE EXECUTIVE
COUNCIL
First Respondent
CHRIS
HANI BARAGWANATH
Second Respondent
JUDGMENT
MATOJANE
J
Introduction
[1]
The Plaintiff was told during the antenatal period that she should
await the delivery
of twins. She was admitted at Chris Hani
Baragwanath on 4 November 2008 for a cesarean section to be performed
on 6 November 2008.
She signed a consent for a caesarean section for
twins and sterilization. On 7 November 2008, a cesarean section was
done under
spinal anaesthesia. Only one alive female baby was
delivered from the uterus. The Plaintiff claims that the defendants
have refused
to disclose the whereabouts of her second twin.
[2]
On 17 July 2009 the plaintiff instituted an action for damages in
this court against
the Defendants. Her claim was based on the
defendants' alleged breach of the Plaintiff's constitutional rights.
It is alleged in
the particulars of claim that the defendants:
4.
At all relevant times hereto and in particular during the Plaintiff's
ante-natal treatment
up to and including the date of delivery as well
as her post-natal treatment, during November 2008:
4.1
the first defendant was (and to date remains) the responsible person
in respect of any contractual,
electoral and Departmental liability
of the Department;
…
4.3.4.1
was under a legal duty of care to ensure the rendering of medical
care, treatment
and advice to the Plaintiff and her twins with such
skill, care and diligence as could reasonably be expected of
appropriately
qualified medical practitioners and nursing staff,
obliging the defendants to ensure that proper, sufficient and
reasonable health
services were provided to members of the public (in
particular those who could not reasonably make use of medical
services provided
by institutions other than public hospitals.
4.3.4.2
is further under a legal duty and obliged to tell the Plaintiff what
happened
to twin 1, as the Plaintiff has a right to this information
in terms of common law as well as the constitution
5.
The aforesaid legal duty of care extended to the unborn twins
…
7.
The defendants in breach of the Plaintiff's constitutional rights:
7.1
Failed to treat the Plaintiff with dignity
7.2
Failed to provide the Plaintiff with reasonable healthcare services;
and
7.3
Denied the plaintiff access to information about what became of twin
1.
8.
the defendants breached the Plaintiff's human right, whereas as a
mother, the Plaintiff,
was deprived of a child, twin 1. This is a
gross violation of human rights.
28. The
Plaintiff was never given an explanation as to what happened to twin
1
…
.
29. The
first defendant and/or the second defendant aforesaid employees,
representatives and/or agents were negligent
in one or more or all of
the following respects:
29.1 they failed to
inform the Plaintiff as to what happened to twin 1; and or
29.2 they failed to
adequately monitor the safety and well-being of twin 1
30. As
a result of the defendant’s negligence and breach of legal duty
referred to above, the Plaintiff
does not know what happened to twin
1 to this day.
[3]
The Plaintiff sought an order against the first defendant in the
following terms:
3.1
making all information regarding what became of twin one available to
the Plaintiff within 30 days of the
order been granted;
3.2
taking all necessary steps to obtain the required information
regarding what transpired during the delivery
of the twins on 7
November 2008, and making same available to the Plaintiff within 30
days of the order being granted.
3.3
filing a report to the Registrar of the above Honourable Court within
two weeks of the order been granted,
stating what steps have been
taken to obtain the necessary information;
3.4
payment in the sum of R3 000 000 000.00
Factual Background
[4]
The ante-natal clinic notes show that during April 2008, the
Plaintiff attended at
Lillian Ngoyi Community Clinic, where it was
discovered that she was approximately two months pregnant. She was
PARA3 Gravida 4,
meaning that she had three children and was pregnant
for the fourth time.
[5]
On 20 May 2008, an ultrasound examination was performed on the
Plaintiff. It was reported
that the Plaintiff was pregnant with
twins. She was then referred to the twin clinic at Chris Hani
Baragwanath Hospital to manage
the twin pregnancy further.
[6]
Dr H Mentis, a private radiologist at Lister building, did an
ultrasound scan on the Plaintiff
on 2 October 2008. The doctor
confirmed a twin pregnancy. He identified two babies as well as two
placentas. The ultrasound report
states that there was a twin
pregnancy of thirty-three (33) weeks and six (6) days gestation. The
placentae were said to be on
the right flank and another one on the
fundus. No measurement of twin 2 was reported. The type of twin
pregnancy was diagnosed
as DCDA (two babies that were non-identical,
each having their own placenta and amniotic fluid bag)
[7]
The Plaintiff was admitted to the hospital on 14 October 2008 with a
headache. Two fetal
heart rates were recorded and documented. It was
noted that the patient was diagnosed with a twin pregnancy and was a
known asthmatic
on treatment.
[8]
On 21 October 2008, the Plaintiff was referred to the Baragwanath
hospital for further
management of her pregnancy. Her twin pregnancy
was confirmed by sonar. The plan was to do an ultrasound to check for
a separating
membrane. The patient was to come on 4 November 2008 for
admission and cesarean section. The Plaintiff could not attend the
examination
as she was admitted to the hospital on that day.
[9]
On 4 November 2008, the Plaintiff was admitted at 37 weeks gestation
for cesarean section.
It was said to be a twin pregnancy dichorionic
diamniotic pregnancy (DCDA). The presentation was said to be
non-vertex. She was
a known asthmatic and was for elective cesarean
section on 6 November 2008.
[10]
She signed consent forms for the performance of a cesarean section
due to twin pregnancy on the day the
procedure was done.
[11]
On 7 November 2008, according to the doctors' delivery notes, a
cesarean section was done for twin pregnancy
under spinal
anaesthesia, and only one baby, a female, was delivered from the
uterus. The report stated further that sterilization
was not done at
the patient's request. The Surgeon was Dr Sulliman, and Dr Topoulos
assisted him. The Anaesthetist was Dr Mazwai.
The charge nurse was
Sister Maslata, the scrub nurse was sister Saohato, the check nurse
was sister Mcunu, and the swabs nurse
was sister Skosana. Dr Naidoo
joined the team during the delivery.
[12]
The first defendant’s case is that the Plaintiff delivered one
baby. The twin pregnancy was misdiagnosed
by Dr Mentis, a radiologist
in private practice.
The legal framework
[13]
In light of the starkly contradictory versions of the Plaintiff and
the first defendant as to
whether the Plaintiff was pregnant with
twins that were successfully delivered, the analysis of the evidence
would proceed based
on the principles identified by the Supreme Court
of Appeal in
Stellenbosch Farmers Winery Group Ltd. and Another v
Martell & Cie SA and Others
(427/01)
[2002] ZASCA 98
(6
September 2002) where the court held:
“
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues, a court must make findings on
(a) the credibility of the various factual witnesses,
(b) their
reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as (i) the witness's candour and demeanor in the
witness-box, (ii) his bias, latent and blatant, (iii)
internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established
fact or
with his own extra curial statements or actions, (v) the probability
or improbability of particular aspects of his version,
(vi) the
caliber and cogency of his performance compared to that of other
witnesses testifying about the same incident or events.
As to (b), a
witness's reliability will depend, apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the
opportunities he had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his recall
thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's version on
each of the disputed issues.
In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine
whether the party burdened with the
onus of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare
one, occurs when a court's credibility
findings compel it in one direction and its evaluation of the general
probabilities in another.
The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.
[14]
In
S
v Trainor
2003 (1) SACR 35 (SCA)
[1]
in
dealing with the correct approach to be adopted in cases involving
mutually destructive and irreconcilable factual accounts,
the Supreme
Court of Appeal stated the following:
"… A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence
as may be found to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence
tendered. In considering
whether evidence is reliable, the quality of that evidence must of
necessity be evaluated, as must coroborative
evidence, if any.
Evidence, of course, must be evaluated against the onus of any
particular issue or in respect of the case in
its entirety…".
Credibility of the
various factual witnesses
[15]
As regards the relative credibility of the Plaintiff there are a
number of aspects of her evidence which
show that she was not honest
with the court. I found her evidence to be inconsistent and
contradictory to what was pleaded or put
on her behalf.
[16]
Her evidence was that she was two months pregnant when she went to
Lilian Ngoyi Community Clinic
for anti-natal care. She was sent for
an ultrasound examination, and the result was reported as a twin
pregnancy. When she went
to the clinic on the second occasion, she
was referred to Baragwanath hospital, where another ultrasound
examination was performed.
She consulted with her private doctor, Dr
Saed, who performed an ECG scan. Dr Saeed referred her to a private
radiologist, Dr Mentis,
to do an ultrasound examination to check how
the babies were situated in her tummy. She kept the report of Dr
Mentis with her until
she gave it to Dr Marishane. Dr Marishane
testified as an expert for the defendants.
[17]
On 4 November 2008, she was admitted to the hospital to deliver her
twins. She was informed that
she would have to deliver the babies by
the Caesarian section as she was carrying twins. She signed a consent
form for cesarean
delivery of twins and sterilization.
[18]
She testified that Dr Mazwai, an anaesthetist gave her a spinal
injection. During the operation, she was
awake and heard a baby cry.
She testified that she decided not to continue with the sterilisation
on being told that she was to
deliver by the Caesarian section. She
lost consciousness and woke up the next day when a nurse only brought
a cot with one baby.
The baby had a tag labelled Witness Dlamini twin
2. She enquired from the nurse where the other baby was. The nurse
went to the
sister in charge and explained her situation. The sister
in charge came to her to find out what was happening. The nurse then
went
to look for the baby, only to return an hour later to say that
she did not find the baby. She then called her husband to inform
him
about the missing baby.
[19]
On his arrival, her husband spoke with the nurse, and the nurse
called the CEO. The CEO told them that "it
is not the same as
getting nothing; at least they got one baby." When she requested
the CEO to call all the doctors who delivered
the baby, she was told
that the doctors were on holiday. The midwives were called, and they
could not give concrete answers to
her questions. She never received
an explanation as to what happened to the other twin. They requested
the clinical records, and
the CEO refused to accede to their request.
A matron passing by overhead their conversation, she intervened and
told the CEO that
they were entitled to the hospital records. The
matron then took the file from the CEO and made copies of the file
for them. She
testified that she was discharged on 9 November 2008
and to date, she has not been informed as to what happened to her
other baby.
[20]
She was asked under cross-examination at what point did she lose
consciousness. She answered that it was
after she heard a child
scream. She testified that she heard one baby that did not sound
correct; the baby sounded as if it was
tired. It was put to her that
in her letter of demand it was said that she heard two babies
screaming, she said that that was the
first scream, the second scream
was normal.
[21]
In paragraph 21 of the particulars of claim, it is pleaded that:
"The Plaintiff went
into theatre and was placed on the operating table. Doctors began the
procedure, and after a short while,
the Plaintiff felt some pressure
on her abdomen and then immediately after that, she heard a baby
scream. This was, however, an
unusual scream, as the baby sounded
tired. As the baby screamed, the anaesthetist, however not Dr Mazwai,
asked the surgeon, Dr
Suluman, that was delivering the twins, where
she had learned to do what she was doing. The anesthetist then rushed
towards the
surgeon. At this stage, the Plaintiff lost
consciousness”.
[22]
When asked when did she withdraw her consent to sterilization, she
explained that she thought
she was going to give birth normally and
when she was informed that she is going to deliver by the Caesarian
section, she changed
her mind. She testified that she did not agree
to sterilization and only consented to a caesarean section. This begs
the question
of why she signed the consent forms for sterilization on
the same day the procedure was to be performed if she did not agree
to
sterilization.
[23]
The Plaintiff could not have thought that she would give birth
normally as she had signed a consent to the
cesarean section before
the procedure. On her version, she was awake during the procedure
and, in all probability, changed her
mind about sterilization after
she saw and was also told that there was only one baby that was found
in her uterus. This finding
is confirmed in various respects.
[24]
The first of these is the delivery report, which confirms that the
Plaintiff withdrew her consent to sterilization
after being told that
there was one baby in the uterus.
[25]
The second is a statement by sister Mamohato Saohatse which reads:
"I
professional nurse was on duty on 7 November 2008 when Dlamini came
for a cesarean for twins. I was a scrub nurse, and Suleiman
was
cutting only one baby was delivered. The mother told there is one
baby when asked if she wanted to be sterilized, she said
no. Mother
transferred to recovery room."
[26]
The third is the evidence of Dr Naidoo, an obstetrician and
gynaecologist who admitted the Plaintiff to
the twin clinic. She
testified that she was called to the theatre after one baby was found
in the uterus. She found the Plaintiff
still on the operating table.
A baby had just been delivered. The assistant registrar was still
busy. The scrub sister, check nurse,
anaesthetist, and neonatologist
were all in attendance.
[27]
She testified that the Plaintiff saw that one baby was delivered as
she had spinal anaesthesia; she was
awake and could observe the
delivery as there was no screen. Dr Naidoo testified that she
explained to the Plaintiff that the ultrasound
scan she came with
misdiagnosed a twin pregnancy as she was carrying one baby only. She
testified that the Plaintiff elected to
cancel her sterilization upon
being told that only one baby was delivered. Her evidence that she
visited the Plaintiff the following
day in the ward and again
explained that only one baby was delivered was never challenged under
cross-examination. She testified
that she made notes, but the most
important notes are missing in the file she was given.
[28]
The Plaintiff and her husband failed to disclose that they lodged a
formal complaint with the hospital's
Quality Assurance Manager on 11
November 2008. They complained that the doctor who delivered the baby
failed to explain to them
what happened to the other baby.
[29]
Dr Naidoo denied that no explanation was given to the Plaintiff. She
explained that the hospital has what
it calls a redress process where
a patient who has a concern or question is taken through a disclosure
process where the patient
is allowed to express her concerns, the
explanation is given, and all statements are offered to the patient.
She testified that
the Plaintiff and her husband had two redress
meetings. The redress was provided by herself, the surgeon, the head
of Quality Assurance
and the nursing sister. The Quality assurance is
constituted by the head of the Department, head of nursing or matron,
the sister,
and it was unlikely that the CEO would attend a redress
meeting.
[30]
She testified that the Plaintiff and her husband could not be
convinced otherwise as they maintained that
the ultrasound from Dr
Mentis showed that the Plaintiff was pregnant with twins. The
Plaintiff and her husband refused to sign
an attendance register of
the redress meeting. Dr Naidoo read a cover page of the hospital
file, which read, "Patient not
satisfied. Resolution:
Litigation.
[31]
Mr Tshivase, the Plaintiff's husband, testified that he accompanied
the Plaintiff to consult with Dr Saad,
who showed them twins on the
ECG scan, a boy and a girl. Dr Saad referred them to Dr Mentis for an
ultrasound scan as his scan
was small. He explained that his mother
has three sets of twins, and they started plans as a family to
receive twins. They moved
to a bigger house to accommodate a bigger
family.
[32]
He confirmed the Plaintiff’s evidence that the hospital CEO
initially refused to provide
them with the hospital records they
requested until a matron who happened to be passing by informed the
CEO that they are entitled
to the records. It is then that the CEO
gave the records to the matron, who made copies for them.
[33]
He testified that on 9 November 2008, the day his wife was discharged
from the hospital, he handed
over to the CEO proof in the form of Dr
Mentis ultrasound scan report to show that they were expecting twins.
To date, he and his
wife have not received any information or
explanation as to what happened to the missing baby. They have
reported the matter to
the police, media and Human Rights Commission
to no avail.
[34]
Dr Naidoo testified that she was running the twin clinic in 2008, and
the Plaintiff was referred
to her because she came with an ultrasound
scan from a private radiologist Dr Mentis in which a twin pregnancy
was reported. At
the time, patients were allowed to bring scans from
private radiologists, and the hospital accepted such scans. She
relied on this
scan to record in the Labour Admission Chart on 4
November 2008 that the type of twin pregnancy was DCDA twins. The
presenting
complaint was a non-vertex presentation at 37 weeks for
delivery by caesarean section.
[35]
This evidence contradicts the evidence of the Plaintiff that she
never provided the clinic or
the hospital with the ultrasound scan
from Dr Mentis until she gave it to Dr Marishane, who testified as an
expert for the defendants.
The same is true for Mr Tshivase’s
testimony that he handed over Dr Mentis report to the CEO on 9
October 2008 when the Plaintiff
was being discharged.
[36]
The Plaintiff relied on the expert evidence of Dr Diedericks, an
obstetrician and gynaecologist with more
than 25 years of experience.
In his opinion, the Plaintiff did indeed have a twin pregnancy. The
defendants relied on the expert
evidence of Dr Marishane, who is also
an obstetrician and a gynecologist.
[37]
The two experts concluded a joint minute. They agreed that there were
several instances where the diagnosis
of twin pregnancy was made and
that the Plaintiff was managed as having a twin pregnancy. They agree
that a note was made suspecting
the presence of twin pregnancy in the
antenatal clinic notes. The Plaintiff was sent for an ultrasound
examination. The result
was reported as a twin pregnancy, but the
actual report is not available.
[38] The experts further
agree that an ultrasound scan report by a private radiologist, Dr
Mentis, reported a twin pregnancy. The
supplied printed photos were
not clear, and they could not make a definitive conclusion from them.
The second foetus was not reported,
with two placentas seen and
recorded.
[39]
They agree that the Plaintiff was admitted to the hospital on the
14
th
of 2008 with a headache. Two fetal heart rates were
recorded and documented. The Plaintiff was referred to the hospital
for further
management of her pregnancy as she carried twins. The
delivery report noted that there was only one baby present at the
time of
the cesarean section and no mention is made of what was said
to the Plaintiff, and the placenta was not described. It is not
mentioned
whether it was a single placenta or multiple placentae.
[40]
The disagreement relates to whether the diagnosis of pregnancy was
repeatedly misdiagnosed. Dr Marishane
is of the view that there is no
objective evidence that proves otherwise and Dr Diedericks argues
that the Plaintiff indeed had
a twin pregnancy.
[41]
The disagreement relates to whether the diagnosis of pregnancy was
repeatedly misdiagnosed. Dr Marishane
is of the view that this is a
case of misdiagnosis of a twin pregnancy. Dr Marishane argued that
the ultrasound report by Dr Mentis
was inadequate and appeared to
have been influenced by the history of twins given by the Plaintiff
and not what was seen on the
scan. He testified that the radiologist
should have first established how the fetuses were lying, what the
presentation of the
twins are, whether phallic or face presentation
and how the placenta is in relation to each other. Of importance, he
testified,
Dr Mentis did not report on whether he saw the separating
membrane and how its base was. This, he testified, guides one as to
whether
the twins are monochorionic or dichorionic.
[42]
Dr Diedericks identified four instances in the clinical records where
a diagnosis of twin pregnancy was
made and reported. He refers to the
ultrasound report by Dr Mentis, which was performed on 2 October
2008, confirming the twin
pregnancy. Two babies were identified as
well as two placentae. The type of twin pregnancy was diagnosed as
DCDA, meaning that
two babies were none identical, each having their
placenta and amniotic fluid bag. He also relies on the fact that
throughout the
pregnancy, the Plaintiff was managed for a twin
pregnancy at the antenatal clinic and was referred to the hospital
for further
management of her twin pregnancy where she signed a
consent form for the performance of cesarean section due to the
presence of
twin pregnancy with both babies in the breech position
lastly that the hospital did another scan on 21 October 2018, which
confirmed
the twin pregnancy.
[43]
It is true that experts rely on their experience
and scientific training to opine whether the Plaintiff
was pregnant
with twins and whether those twins were successfully delivered. In
the present case, there is independently verifiable
evidence of
eyewitnesses and supporting evidence of the Plaintiff’s
pregnancy and what happened in the delivery room. The
expert opinions
in the particular circumstances of this case should give way to
credible and direct evidence which is before the
court
[2]
.
The evaluation of the
general probabilities
[44]
On a conspectus of all the evidence, it would appear that one baby
and not twins were delivered
during the operation on 7 October 2008.
If the Plaintiff's version is to be accepted, one must also accept
that the 8 or 9 medical
staff delivered twins and, in collusion with
one another, stole the other twin, which is improbable. The only
inference drawn from
the available evidence is that Dr Mentis
misdiagnosed a twin pregnancy.
[45]
When admitting the Plaintiff at the labour ward, Dr Naidoo followed a
diagnosis of twin pregnancy
by Dr Mentis. The Plaintiff was
thereafter managed as having twins. Dr Naidoo commissioned an
ultrasound scan for separating membrane
to be done on the Plaintiff
on 28 October 2008. The scan was never done as the Plaintiff
testified that she was in the hospital
on that day for a separate
appointment. No other ultrasound scan was done until it was
discovered that the Plaintiff was not pregnant
with twins during
delivery.
[46]
Both experts agree that the actual report of suspected twin pregnancy
in the antenatal clinic
notes is not available and that it was not
clear at what gestation the diagnosis of twin pregnancy was made.
They also agree that
electronic heart monitoring, which was
consistent with twin pregnancy, cannot confirm or diagnose twins,
especially where one transducer
is used.
[47]
Dr Marishane explained that it is the practice to annotate labels to
be attached to the babies
before delivery, and the labels would be
attached to the babies when they are born. As it was expected that
Plaintiff would deliver
twins, two labels were prepared in advance
and a label marked twin 2 was attached to the baby that was
delivered. The other baby,
if it were found in the uterus, would have
been labelled twin 1.
The onus of proof
[48]
On the question of whether the Plaintiff has discharged the onus of
proving on a balance of probabilities
the negligence alleged against
the first respondent, it bears mentioning as it was held in
Mitchel
v Dixon
[3]
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 is bound to employ reasonable skill and care
[4]
.
The SCA in
Goliath
v Member of the Executive Council of Health, Eastern Cape
[5]
held that:
“
A
doctor was not to be held negligent simply because something went
wrong. For to hold a doctor negligent simply because something
had
gone wrong would be to impermissibly reason backwards from effect to
cause”.
[48]
I find that the Plaintiff has failed to discharge the onus of proving
on the balance of probabilities
the negligence it averred against the
defendant, and the case falls to be dismissed.
[50]
Before the evidence of Dr Naidoo was led, the first respondent
brought an application to introduce
redress documents that Dr Naidoo
brought to court with her. The Plaintiff objected to the late
discovery of the documents alleging
that it is prejudiced. The bundle
contained a written complaint by the Plaintiff’s husband
directed to the hospital’s
Quality Assurance Manager, an
acknowledgement of receipt of same, a statement by the scrub nurse
who was present during the operation
and a copy of the hospital file
cover on which it is written Patient not satisfied, Resolution –
Litigation.
[51]
I allowed the bundle to be provisionally admitted and told the
parties that I will consider their
admissibility and give my reasons
as part of the judgment. These are my reasons. The documents are
without a doubt relevant for
the purpose of throwing light on the
disputed issue of whether Plaintiff delivered twins and whether an
explanation was given to
the Plaintiff about the whereabouts of the
other baby. The statements by Sister Skosana and Sister Mamohato, who
were present during
the delivery, confirm that Plaintiff decided
against sterilization after explaining to her that one baby was found
in the uterus.
The Plaintiff and her husband cannot complain of
prejudice as the documents relate to the interactions that they admit
they had
with the hospital staff. As the documents proof of disproves
a fact in issue, they are relevant and accordingly admissible
evidence.
[52]
In the result the order I make is the following
(a)
The Plaintiff’s case is dismissed
with costs
K
E MATOJANE
JUDGE
OF THE HIGH COURT,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Appearances
Counsel
for Plaintiff:
Advocate M Masilo
Attorney
for Applicant:
Motsekuoa Incorporated Attorneys
Counsel
for Defendant:
Advocate A Mofokeng
Attorney
for Respondent: The State Attorney
[1]
2003
(1) SACR 35 (SCA),
[2]
See
Motor Vehicle Assurance Fund v Kenny
1984 (4) SA 432
E at 437.
[3]
1914
AD 519
at 525
[5]
2015
(2) SA 97
(SCA) at para 9