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[2018] ZAECMHC 67
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Mbola obo M v Member Of The Executive Council For Health, Eastern Cape (4521/18) [2018] ZAECMHC 67 (6 December 2018)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
LOCAL DIVISION, MTHATHA)
Case No.: 4521/18
In
the matter between:
NELISWA
MBOLA obo A
M
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN CAPE
Respondent
JUDGMENT
MBENENGE
JP
Introduction
[1]
The plaintiff, in her representative capacity as the natural mother
and guardian of A M, a boy born
on 31 January 2010 (A), seeks to
recover damages allegedly suffered as a consequence of A suffering
from kernicterus/ neurological
dysfunction and resultant cerebral
palsy due to the untreated presentation of chronic bilirubin
encephalopathy (the injury).
[2]
The defendant has been sued on a vicarious liability basis, it being
alleged that the Department
[1]
of which the defendant is the political head is responsible for any
and all delictual liability incurred by “
the
staff working at hospitals and medical facilities under the
authority, administration and control of the Department
.”
The cause of action is located in delict, the allegation being that
after A had been born, substandard medical care resulting
in the
injury was meted out to him (A) by medical practitioners and nursing
staff employed at the St Lucy’s Hospital (otherwise
referred to
as the hospital).
The
Pleadings
[3]
Until the commencement of the hearing of the action, the
plaintiff’s case had been that
the conduct complained of was
meted out by nursing and medical staff who examined A upon his birth,
“
from 31 January 2010
”, and who failed to take
remedial steps to avert jaundice that A had contracted on “
3
February 2010
.”
[4]
The defendant disputes being liable to the plaintiff in the damages
claimed, or at all and has contended
that “
St Lucy’s
Hospital had nothing to do with the birth of the child in issue
”
and that “
the
[p]
laintiff was never seen or given
medicine at St Lucy’s Hospital…
”
[5]
At the commencement of the hearing the plaintiff’s particulars
of claim was amended to found the
case principally on the allegation
that the substandard care complained of against the medical and
nursing staff consisted in,
inter alia
, one or more or all of
the following:
“
7.5
he/she/they,
upon
the attendance of the Plaintiff and her child on 3 February 2010
and/or one week later and/or 16 February 2010
,
unreasonably failed to examine the child either properly or at all,
and unreasonably failed to diagnose the presence of jaundice,
when
he/she/they could and should have done so;
7.6
he/she/they,
following the return attendances of the Plaintiff and
her child on 3 February 2010 and/or one week later and/or 16 February
2010
, failed to implement immediate and appropriate treatment in
modalities in respect of jaundice, when he/she/they could and should
have done so, and instead unreasonably discharged the plaintiff and
her child;
7.7
he/she/they failed to prevent the development in the child of
excessively high levels of
jaundice and/or the development of
kernicterus and/or bilirubin induced neurological dysfunction when
he/she/they could and should
have done so; and
7.8
he/she/they failed on
3 February 2010 and/or one week later as
well and/or on 16 February 2010
, or either, to subject the child
to appropriate blood investigations and appropriate light
(phototherapy) treatment or examination,
when he/she/they could and
should have done so.”
[6]
The amendment attracted an adjustment of the defendant’s plea
so as to read as follows:
“
10.5
Plaintiff never visited St Lucy’s Hospital on 16 February 2010,
however, defendant alleges that the plaintiff
had visited St Lucy’s
Clinic for the first time on 16 February 2010. After her child was
attended to and examined by the
clinic staff she was referred to a
hospital capacitated to deal with her condition in the form of Doctor
Malizo Mpehle Hospital.
The balance is denied.
…
11.4
Defendant’s employees did not meet or treat the plaintiff or
her child during February 2010.
In the alternative, even if it is
found that on 16 February 2010 (although remains denied) the
plaintiff was seen by the employees
of the Defendant, the brain
damage complained of in this action would have occurred in any event
due to plaintiff’s failure
to present her child to a health
institution on time.”
The
issues
[7]
The parties’ experts reached agreement that (a) in the event of
the plaintiff’s version
that had she been to the hospital on 03
February and/or a week later prevailing, failure by the medical staff
to properly manage
A’s jaundice constituted gross negligence;
(b) if one has regard to A’s subsequent neurological condition
and MRI brain
findings, the diagnosis on 16 February 2010 that
“
physiological jaundice ([was] improving)
” is
incorrect; and (c) kernicterus (bilirubin induced neurological
dysfunction) can be prevented with timely diagnosis of
“
hyperbilirubinemia and treatment with phototherapy/
exchange transfusion.
”
[8]
It does not appear that the parties ever attended any meaningful
pre-trial conference to agree on issues
that would be determined at
trial. Instead, there is a purported “
MINUTE OF A PRE-TRIAL
CONFERENCE
” embodying questions posed ostensibly in terms
of rule 37(4) of the Uniform Rules and answers thereto. The relevant
portion
of the “
minute
” reads:
“
3
The defendant is requested:
3.1
…
3.2
to state what (on Defendant’s version) caused the condition of
hypoxic cerebral palsy
and infantile epilepsy;
Defendants
reply: The Plaintiff is
referred to the Defendant’s Plea about the defendant’s
version as to the cause of Asavela’s Cerebral Palsy.”
[9]
During the plaintiff’s opening address the precise ambit of the
lis
between the parties was the subject of some controversy.
According to Mr
Uys
who, together with Mr
Schouten
,
appeared for the plaintiff, agreement had been reached that if it
were to be proven on a balance of probabilities that the plaintiff
attended St Lucy’s Hospital on 03 February 2010 and/or
approximately a week later, the treatment received by the plaintiff
during these attendances was substandard and resulted in causal
negligence. Were it to be proven on a balance of probabilities
that
the plaintiff attended St Lucy’s Hospital on 16 February 2010,
said Mr
Uys
, the defendant bears the onus to show that
irreversible neurological dysfunction had already intervened by then.
[10]
The following excerpt from the transcript demonstrates how tentative
and vacillating the defendant’s stance
was regarding the issue
for determination in these proceedings:
“
MR KUNJU: …
we accept from the … Road Health Card there is an indication
that she had attended on the 16
th
,
in other words we will deal with that, but we are not necessarily
saying she was at the hospital, but we will then deal with the
matter
broadly, on the basis that even if she was at the hospital, but there
are certain areas that we need to discuss…
…
COURT:
All redounding to whether on the 16
th
she was there and
proper treatment was meted out.
MR KUNJU: From what
we, from where we are seated, she was not at the hospital.
COURT:
On the 16
th
.”
[11]
The transcript is also quite revealing in so far as it goes on to
say:
“
MR KUNJU:
M’Lord, the case was premised on 3 February the issue has
always been whether she was attended on 3 February, they
seem not to
be strong on their own what they have pleaded, now they want to latch
on much on 16 February.
…
COURT:
If it turns out that they will be pursuing or championing their cause
also
on the basis that something happened on the 16
th
,
what is going to happen?
MR KUNJU:
M’Lord, His Lordship.
COURT:
Will you require… expert testimony?
…
MR KUNJU: My
expert witnesses are available I think today and tomorrow, beyond
tomorrow they are not.”
…
COURT:
And you may be disadvantaged if the case is pursued on the basis that
something
happened on the 16
th
, you would need an expert
coming here to controvert, whatever is said, or whatever becomes a
consequence upon what the plaintiff
says.
MR KUNJU: The
major, problem, M’Lord, is that my expert who will talk on that
will only be available tomorrow. Depending
on how, I mean how long
does their case take. Then I am not sure I cannot assure, His
Lordship, that my witness will be available
tomorrow.”
[12]
The issue is a pure factual one; shorn of verbiage, it is whether the
plaintiff (and A) attended and interacted
with medical and/or nursing
staff at St Lucy’s Hospital on 03 February and/or a week later
and/or on 16 February 2010.
[13]
Against this background it is convenient to narrate the facts as
testified to in court by the parties.
The
plaintiff’s case
[14]
Whilst in labour and being conveyed to hospital on a private vehicle,
and in the presence of her sister, Mbokazi,
the plaintiff gave birth
to A on 31 January 2010. She and her new born baby (A) were thereupon
admitted to Dr Malizo Mpehle Hospital.
The admission and the stay
overnight was uneventful, hence the plaintiff (and A) was discharged
and returned home on 01 February
2010.
[15]
The plaintiff testified that on the following day, 02 February, she
noticed that A’s eyes and cheeks had
become yellowish; he was
crying and did not suck when being fed. The baby was also lethargic.
She became concerned. On 03 February
she took A to the St Lucy’s
Hospital complex. Her first point of call was the clinic section of
the complex where she was
referred to the hospital. She registered
her presence at the Outpatient Department and thereafter proceeded to
the history room,
where she explained A’s condition to the
nurses. From there she went to see the attending doctor who she
referred to as Dr
Obakah.
[2]
She
reported to the doctor that A had developed yellowish eyes and
cheeks. The doctor examined A by opening his eyes with his fingers
and prescribed a syrup for use three times a day, with instructions
to return to the hospital when the course was complete.
[16]
Approximately a week later, the plaintiff returned to St Lucy’s
Hospital. She said she was, even on this
occasion, attended to by the
same doctor, who assured her that A’s condition was improving
and prescribed the same syrup.
[17]
After the second syrup course had been completed, and there being no
end in sight to A’s condition, the plaintiff
returned to the
hospital a week later- on 16 February. On this occasion, too, said
the plaintiff, A was seen by Dr Obakah. The
plaintiff was, once
again, assured that A’s condition was improving and they were
sent home. No blood was drawn from A for
testing. He was also not
“
kept under bright lights
” at any stage during her
visits to the hospital.
[18]
The plaintiff was subjected to cross-examination by Mr
Kunju
.
She stated that St Lucy’s Hospital (Ngcolosi Hospital in
isiXhosa) was also referred to as St Cuthberts Hospital, and is
an
institution that is different from Dr Malizo Mpehle Hospital. She was
pointed to the particulars of claim wherein it is alleged
that A had
jaundice after his birth, and challenged regarding her testimony that
A had been healthy after birth. Moment was also
made of the fact that
the particulars of claim is silent regarding the name of the doctor
who attended to her, and attributed blameworthiness
to the hospital
she was initially admitted to on 31 January 2010 (Dr Malizo Mpehle
Hospital). She was hard put to explain all this.
[19]
Upon being cross-examined about the absence of records supportive of
her attendances at St Lucy’s Hospital
before 16 February 2010,
the plaintiff was adamant that she had been to that hospital on two
previous occasions.
[20]
It further emerged, during the cross examination, that the Gateway
Clinic referral book does contain a single entry
that A had been
referred to St Lucy’s Hospital for “
jaundice
”
on 16 February 2010. The St Lucy’s Hospital OPD register for
the period spanning 02 to 24 February 2010 contains no
entry that is
relevant to the plaintiff or A.
[21]
Ms Mbokazi Mbola, the plaintiff’s sister, confirmed having been
in the company of the plaintiff on the day
she gave birth to A. The
plaintiff and A were discharged from Dr Malizo Mpehle Hospital on the
following day. She observed nothing
wrong with A, until a couple of
days thereafter, when A’s eyes and cheeks turned yellowish. She
however did not accompany
the plaintiff to hospital when A was being
taken thereto on this occasion. After the plaintiff and A had
returned the plaintiff
showed her (Mbokazi) and their mother the
syrup that had been prescribed.
The
defendant’s case
[22]
The testimony of the defendant’s witnesses focused on the
identification of hospital records and was tendered
with a view to
demonstrating that neither A nor the plaintiff attended upon St
Lucy’s Hospital on the dates in question.
[23]
Ms Nomathamsanqa Greta Khalimashe who is in charge of the St Lucy’s
Gateway clinic was the first witness
for the defendant. She explained
that upon arrival at the clinic children are issued with a Road to
Health Card on which it is
recorded the particulars of the person
attending the clinic. The history of the child and monitoring thereof
is recorded on the
card. Every time the child attends the clinic an
entry is made. The Road to Health Card relevant to this case
indicates the first
entry of attendance by A and his mother as having
been 16 February 2010. According to Ms Khalimashe the absence of an
entry for
03 February signified that A never attended the clinic on
that day. None of the relevant registers that could still be traced
lend
support to A’s alleged attendance other than on 16
February 2010, on which day he is recorded as having been with yellow
eyes, referred to and attended by a doctor for jaundice.
[24]
Under cross examination, Ms Khalimashe conceded that her view that A
had been to St Lucy’s Hospital on 16
February was based purely
on the entries on the books that could still be retrieved; she had no
independent recollection of the
facts relevant to this case. She was
initially adamant that the recording on the registers is accurate and
that they never omit
to record the relevant information. She
mentioned that at times entries to the relevant registers are made
retrospectively by the
nurse involved, which left scope for human
error and an election to depart from the alleged protocol especially
in instances of
emergency referrals. She also conceded that the
Gateway Clinic referral book contains no entries for the year 2015.
It further
emerged whilst she was being cross examined that the
entries on the referral book and the Road to Health Card did not
match. According
to her it did often happen, in an emergency
situation such as the observation of jaundice symptoms, to forthwith
make a referral
without insisting on the production of the Road to
Health Card or the noting of a clinic attendance.
[25]
Next to be called as the defendant’s witness was Ms Noluthando
Ngoma. She is the current nursing senior manager
at St Lucy’s
Hospital and had previously been employed at the OPD section for 16
years. According to Ms Ngoma protocol prescribes
that all medical
attendances be recorded on the Road to Health Card. Absence of such
recording implies non-attendance. She also
testified that protocol
also requires that hospital attendances be recorded in the OPD tick
register, and absent that there would
have been no referral.
[26]
Ms Ngoma was cross examined regarding whether the entries on the tick
register referred to all patients or children
under the age of five
years. She gave contradicting evidence in that regard. She, too,
conceded that there were times when the
recording of the relevant
details was done retrospectively by the particular nurse, which
rendered the whole process prone to human
error and made it possible
for one to depart from the alleged protocol.
[27]
The last of the defendant’s witnesses was Dr Shadrack Abakah
Gyenin (Dr Abakah). He has been a medical officer
employed at St
Lucy’s Hospital for the past “
15 to 18 years.
”
He was called to refute that he had any dealings with the plaintiff
and/or her son, A, during the time in question, he having
applied for
and granted leave of absence for the period 08 February 2010 up to 16
February 2010. He said he recalled that his brother
had died on “
27
March 2010
.” He had gone to Johannesburg to sort out
traffic ticket fines attracted by his father driving in a car that
his wife had
bought his father. He said he resumed work on 17
February 2010.
[28]
Dr Abakah could not remember whether he was at work or not on 03
February 2010. He had tried but could not find
hospital records
establishing the position. According to him the plaintiff would
have to point to a Road to Health Card as
proof that he had
interacted with the plaintiff on 03 February 2010. This, according to
Dr Abakah, was the only document to prove
interaction with a baby,
including any prescription made by a doctor. A pharmacist would only
be able to issue medicines prescribed
on the card. He denied that he
had prescribed medicine for the plaintiff as alleged by her.
According to the relevant Road to Health
Card the first contact with
A was 16 February 2010. He disputed that the handwriting on the card
is his. He also said he could
not have seen the plaintiff and/or A on
or about 10 February as he had still been on leave.
[29]
During cross examination Dr Abakah’s tenure at St Lucy’s
Hospital was shown to have been 12 years,
and not “
15 to 18
years.
” It was suggested to him that the law required the
keeping of contemporaneous notes in out patient’s files by
medical
officers. Initially, he seemed oblivious to “
contemporaneous
notes
” but as this concept was unpacked it became clear
that he was aware of the concept and knew the significance of
contemporaneous
note keeping. He proffered no response when it was
pointed out to him that this case was beset by absence of
contemporaneous notes
to support his evidence. He conceded that
contemporaneous notes compiled on a particular day would have shown
whether he had seen
A, or not. He said he has not been keeping any
contemporaneous notes.
[30]
Unlike Ms Ngoma, he did not concede that the existence of yellow eyes
and cheeks called for emergency treatment
which could result in
medicine being prescribed without an entry of such prescription being
made on the Road to Health Card.
[31]
Asked about A’s Road to Health Card on which it is inscribed
“
diagnosis (#) of physiological jaundice (improving)
”
he said he did not know who had made these inscriptions. He could not
dispute that “
improving
” signified that there had
been a prior diagnosis and that, therefore, A might have been seen by
some doctor as St Lucy’s
Hospital on a previous occasion. In
this regard, his response was:
“
WITNESS:
Well it is so, but the thing is, according to, I mean, what I know,
this is the Road to Health Chart,
the first contacts of a baby, if
you are in contact of a baby, if you write your notes, it should
appear in the Road to Health
Chart, you know, and then the first
contact of this baby is on the 16 February 2010 and then there is a
doctor here who saw the
patient on 16 February 2010 at 12:44 and
wrote here physiological jaundice improving, that is what I see here.
So if maybe this
patient was seen earlier before, I don’t
know.”
The
law
[32]
It is trite law that the plaintiff bears the duty of convincing the
court, through credible evidence, that her
version is more probable
than that of the defendant.
[33]
In its analysis and evaluation of the disputed issues the court ought
to select a conclusion which it deems the
more rational or plausible
conclusion from amongst several ones, even though that conclusion may
not be the only reasonable one.
[3]
[34]
In the event that the probabilities do not indicate where the truth
lies, the court should have recourse to an
evaluation of the
credibility of the plaintiff’s and defendant’s
witnesses.
[4]
[35]
In this matter, to the extent that the defendant’s case, by and
large, hinges on circumstantial evidence,
it becomes necessary to
consider the law relative to circumstantial evidence, which is that
the inference sought to be drawn must
be consistent with all proved
facts. If it is not, then the inference cannot be drawn. The
inference must also be the more natural
or plausible conclusion from
among several conceivable ones when measured against the
probabilities.
[5]
[36]
In terms of section 16 of the Civil Proceedings Evidence Act
[6]
judgment may be given in any civil proceedings on the evidence of any
single competent and credible witness. In
Daniels
v General Accident Insurance Co Ltd
[7]
it was held:
“…
although
there is apparently no ‘
cautionary
rule’
in
civil cases as in criminal matters where proof beyond reasonable
doubt is required, the single witness, more particularly where
he is
one of the parties, must be credible to the extent that his
uncorroborated evidence must satisfy the court that on the
probabilities
it is the truth”.
[8]
[37]
It is also incumbent on the trial court to weigh the evidence of the
single witness and consider its merits and
demerits, and, having done
so, decide whether the court is satisfied that the truth has been
told despite shortcomings or defects
or contradictions in the
evidence.
[9]
Although the
incidence of the onus and the standard of proof in criminal
proceedings is different from that in civil proceedings
this
principle finds application in civil proceedings.
[10]
Analysis
[38]
The central issue here is whether the plaintiff was seen by a doctor
and/or the nursing staff at St Lucy’s
Hospital on 03 February
2010 and/or a week thereafter, and even on 16 February 2010. The
testimony in relation to her attendance
at the hospital is that of a
single witness, but her sister corroborated her at least in one
material respect namely, that after
A’s cheeks and eyes had
turned yellowish she went away and returned with a bottle containing
syrup. In all probability,
this must have been on 3 February
2010.
[39]
The entry (# physiological jaundice- improving) on the Road to Health
Card made on 16 February 2010 is not without
significance; at the
very least, in all probability, A was, on an occasion prior to 16
February, seen by a doctor at St Lucy’s
Hospital who noted a
previous similar diagnosis from other sources at the hospital.
[11]
[40]
No evidence was adduced by the doctor who ostensibly made an entry on
16 February 2010. The doctor could and should
have been identified
through the entry and would have been able to explain why he made the
diagnosis and the entry appearing on
the card.
[41]
It is, as argued by Mr
Uys
and not denied by Ms Ngoma under
cross examination, indeed highly probable that the nurse at the
clinic saw it expedient for A to
be referred to hospital for
immediate attention without making a note on the Road to Health Card.
It is further probable that contemporaneous
notes were contained in
the OPD patient file. Otherwise where did the entry of 16 February
come from? The files were not discovered
or produced. A negative
inference must be drawn from such failure.
[42]
The plaintiff was an impressive witness whose evidence has stood the
test of the law. Her being questioned about
lack of records to
support her assertions did not detract from her consistency in her
testimony. In her view the doctor she saw
was “
Dr Obakah
”
(
sic
), adding that “
If I did not see Dr Obakah (sic),
who did I then see?
” Her sincerity in this regard is
telling. If her memory failed her she expected and invited the
defendant to identify the
doctor.
[43]
Much was made of the lack of detail in the particulars of claim
specifying who the doctor that attended to the
plaintiff was. The
particulars of claim, as the name suggests, does not contain every
detail of the plaintiff’s case to be
led at trial. It is a
pleading whose purpose is to enable the adversary to plead. It is
available to a party seeking further particularity
to deliver a
request for particulars for trial purposes. Even at that stage,
matters that are for evidence at trial stage do not
feature in the
reply to such request. The particulars of claim may have been
excipiable as having been vague and embarrassing,
[12]
but it was not excepted to until amended and more clarity shed
regarding the case that the defendant was called upon to meet in
answer. Also, when levelling criticism against her testimony
one must not lose sight of the fact that the particulars
of
claim was not drawn by the plaintiff, but by her legal
representatives, whose call it was to decide on how that pleading
should
be structured.
[44]
The evidence of the defendant’s witnesses was, through the
trial, circumstantial in nature and focused on
identifying records
and documents
[13]
that
disprove A’s attendances at the St Lucy’s Hospital
complex. The witnesses sought to explain and interpret the
records
and documents. Yet none of them had independent recollection of
the facts of this case, having based their testimony
on available
records which, on their own showing, do not contain accurate
information. The records were lacking in many other
respects.
For instance, followed to its logical conclusion, the concession made
by Ms Khalimashe that the St Lucy’s
Gateway Clinic contains no
entries for the year 2015, suggests that there were no referrals in
that year, which is highly improbable.
[45]
Section 13
of the
National Health Act 61 of 2003
renders it
obligatory for a person in charge of a health establishment to ensure
that health records are maintained, and
section 17
of that Act makes
it incumbent on the person in charge of a health establishment in
possession of a user’s health records
to set up control
measures to prevent unauthorised access to those records.
[46]
In
M
obo M v Member of the executive Council for Health of the Gauteng
Government
[14]
it was held that records in health institutions are crucial and
completely indispensable in the adjudication of cases involving
medical negligence
[15]
and
that the absence of the records invariably makes the adjudication of
ensuing litigation extremely difficult.
[16]
[47]
This case is plagued by incomplete or absence of relevant records to
aid the adjudication process. That can
only be laid on the door
step of the defendant, especially in so far as it bears an
evidentiary burden. There are more reasonable
inferences to be
drawn from the proved facts than that the plaintiff did not attend
hospital on the relevant day/s; there is a
strong probability that
A’s case was treated as an emergency case, hence no notes were
made on the Road to Health Card.
Also, the concession made by
the doctor who examined A on 16 February 2010 and pronounced him as
having improved (albeit erroneously)
could only have based his view
through comparison with previous attendances.
Conclusion
[48]
In all these circumstances the plaintiff has shown, on a balance of
probabilities, that A was seen by the Medical
and/or Nursing Staff at
St Lucy’s Hospital on, at the very least, 3 February 2010.
It is also probable (than not) that
the plaintiff visited the
hospital on 10 February 2010. No evidence was adduced to
controvert the plaintiff’s version,
which finds support from
the Road to Health Card, that the plaintiff (and A) attended and was
seen by a Doctor at St Lucy’s
Hospital on 16 February 2010.
Despite the pledge made at the commencement of the trial, no
evidence was adduced from the
defendant’s camp that the
injuries had already occurred by 16 February 2010. These
findings establish causal negligence
on the part of the medical
and/or nursing staff of St Lucy’s hospital and thus the
liability of the defendant to the plaintiff.
Costs
[49]
The plaintiff must succeed, and costs should follow the result.
The amount involved in this case is
huge. The determination of
liability also hinged on expert reports, which added to the
voluminousness of the records in this
case. Mr
Kunju
,
quite correctly in my view, made no moment of this. In the
exercise of my discretion I am of the view that this case did
warrant
the involvement of two counsel.
Order
[50]
The following order is made:
[50.1]
The defendant shall pay 100% of proven or agreed damages to the
plaintiff, in her representative capacity,
for and on behalf of her
minor child, A M, as a result of the negligence of the staff of the
St Lucy’s Hospital and/or Clinic,
resulting in the minor child
suffering from cerebral palsy.
[50.2]
The defendant shall pay the plaintiff’s taxed or agreed party
and party costs of suit, incurred to
date, on the High Court scale,
such costs to include:
(a)
the costs attendant upon obtaining expert reports and/or addendum
reports by the following experts:
(i)
Prof. Savvas Andronikou (Specialist Radiologist);
(ii)
Dr Kali (Neonatologist);
(iii)
Prof Van Toorn (Paediatric Neurologist);
(b)
the costs of the qualifying and preparation fees of Prof. Savvas
Andronikou (Specialist Radiologist) in respect
of the joint minute
discussions and preparation of the joint minute with Dr Zinhle Zulu
(Specialist Radiologist);
(c)
the costs of the qualifying and preparation fees of Dr Kali
(Neonatologist) in respect of the joint
minute discussions and
preparation of the joint minute with Prof. Cooper (Paediatrician);
(d)
the costs of the qualifying and preparation fees of Prof Van Toorn
(Paediatric Neurologist) in respect
of the joint minute and/or
addendum joint minute discussions and preparation of 3 (three) joint
minutes with Dr Mogashoa (Paediatric
Neurologist); and
(e)
the costs of two counsel.
[50.3]
No interest shall be payable, except in the event of default of
payment of such costs, in which
case interest shall be payable at the
applicable legal rate from a date 14 days after
allocatu
r.
S M MBENENGE
JUDGE PRESIDENT
OF THE HIGH COURT
Counsel for the
plaintiff
:
P Uys
(with
him
H Schouten
)
Instructed
by :
Nonxuba Inc. Attorneys
Johannesburg
c/o Potelwa & CO
Mthatha
Counsel for the
defendant :
V Kunju
Instructed
by
: The State Attorney
Mthatha
Date heard
: 20 to 22 August 2018; 05
and 25 September 2018
Date Judgment
delivered
:
06 December 2018
[1]
The Department of Health,
Eastern Cape Provincial Government.
[2]
This is how the witness
pronounced the surname of the doctor who attended to her.
[3]
AA Orderlinge Assuransie
Assosiasie BPK v De Beer
1982
(2) SA 603 (A)
[4]
National Employer’s
General Insurance Co Ltd v Jager
1984
(4) SA 437
(A), at 440 E-441 A
[5]
South African Post Office v
De Lacy & Another
2009
(5) SA 255
(SCA) at [35]
[6]
Act 25 of 1965
[7]
1992 (1) SA 757
(C )
[8]
Cited with approval in
MEC
for Police, Road and Transport v Bornman, Christian Hieronymus
(unreported decision
of the Free State Division by Musi AJP concurred in by Daffue
et
Hefer JJ, delivered
on 17 August 2017 under case no. A51/2016
[9]
S v Webber
1971 (3) SA 754
(A)
and
S
v Jackson
1998 (1)
SACR 470
(SCA) at 476 to 477; cited with approval in
M.
A obo L M v The MEC for Health, Gauteng Provincial Government
(unreported judgment by Moshidi
J delivered on 20 April 2018 under case no. 2014/32504
[11]
Contemporaneous notes being a
possibility
[12]
In so far as it also postulated
the scenario that Asavela suffered the injury at birth
[13]
The Road to Health Card, Gateway
Clinic referral book and St Lucy’s Hospital OPD register
[14]
2014/32504 [2018] ZAGPGJHC 77
(20 April 2018)
[15]
Para [37]
[16]
Para [40]