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[2015] ZAECBHC 31
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S.K v MEC for Health, Eastern Cape Province (121/13) [2015] ZAECBHC 31 (26 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE
HIGH
COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, BHISHO
Case no. 121/13
In the matter between:
S.
K.
Plaintiff
And
THE
MEC FOR HEALTH, EASTERN CAPE PROVINCE
Defendant
JUDGMENT
STRETCH J:
[1]
The plaintiff instituted summons against
the defendant in her capacity as the natural mother and guardian of
S. K., a minor boy
born on 2 August 2007 (hereinafter referred to as
“the child”).
[2]
It is common cause that the child was
admitted to Frere Hospital when he was six months old, and that the
defendant is the nominal
defendant in respect of claims against this
hospital.
[3]
Upon admission the child presented with
various symptoms pertaining to his health, including respiratory
distress, a fever and high
body temperature. He was diagnosed
with pneumonia and gastroenteritis, and attempts were made to
administer medication, including
antibiotics, intravenously. To
this end a drip was first sited on his forehead, and later in the
lateral left aspect of his
head.
[4]
It is also common cause that fluids from
this drip infiltrated the tissue surrounding the second drip site,
causing necrosis of
the tissue and injuring the third, sixth and
seventh cranial nerves, which ultimately resulted in the child
presenting with various
facial deformities, which I will refer to in
due course.
[5]
The plaintiff alleges that the hospital
staff were negligent, in that they failed to:
(a)
properly insert the drip intravenously;
(b)
prevent the drip fluid from infiltrating
the surrounding tissue and/or bone at the drip site;
(c)
timeously discontinue the attempted
intravenous infusion once complications had developed at the drip
site.
[6]
The plaintiff alleges that not only did the
fluids from the drip infiltrate and infect the tissue surrounding
both drip sites, but
that this resulted in necrosis not only of this
tissue but also of the bone in the area of the second drip site,
which has caused
the child to present with the following
conditions:
(a)
a squinted and blind left eye which only
partially closes;
(b)
a bald patch on the left lateral
aspect of his head with no hair growth;
(c)
a lateral deviation of his mouth;
(d)
brain atrophy.
[7]
It is the plaintiff’s case that the
treatment and the care which the child received at Frere Hospital was
incompetent, inappropriate
and negligent and the direct cause of the
conditions he presents with, and not only in breach of the duty of
care owed by the hospital
staff to the child, but also in breach of
the defendant’s contractual and constitutional obligations to
the plaintiff.
[8]
The plaintiff’s claim against the
defendant has accordingly been framed under various heads of damages
which it is alleged
the child has suffered due to the negligent
conduct of the hospital staff.
[9]
At the commencement of the trial, it was
agreed that the issues would be separated, and that the quantum of
the plaintiff’s
claim against the defendant would be held over
for later determination, if necessary.
[10]
The defendant, having admitted that the
child sustained injuries, denies that:
(a)
The hospital staff were negligent;
(b)
The injuries sustained resulted in necrosis
of the bone or caused the admitted brain atrophy;
(c)
The child presently suffers from blindness
in his left eye.
[11]
It is contended on the pleadings (as
amended) that the child suffered from malnutrition and cerebral
atrophy and was chronically
ill before his admission, suffering from
conditions such as gastroenteritis, salmonella septicaemia,
klebesiella infection and
tuberculosis, and that he required
prolonged oxygen therapy on admission.
[12]
The plaintiff testified and presented the
evidence of neurologist Dr Makobane, whereafter she closed her case.
The defendant
applied for absolution from the instance in
response to which the plaintiff indicated that she wished to amend
her pleading. The
pleadings referred to at the commencement of
this judgment are the upshot of that amendment. The application
for absolution
was refused. More about this later.
[13]
The defendant called two expert witnesses:
specialist neurologist Dr Bhagwan and paediatrician Dr Kara.
[14]
It is not contended on the defendant’s
behalf that its servants were not negligent at all. On the
contrary it has been
conceded on the undisputed evidence that the
defendant’s servants were negligent in not removing the
intravenous drip from
the child’s head when the area where the
drip had tissued became swollen, and that this negligence causally
contributed to
the child’s facial injuries (including nerve
injury and skin necrosis but excluding the alleged blindness to the
left eye
and excluding any form of brain atrophy) and that the
defendant should accordingly be held liable for these admitted
injuries together
with 65 per cent of the costs of the action
(excluding those incurred in respect of Dr Mokabane), whereas the
plaintiff should
be held liable for the costs of the absolution
application.
[15]
On the other hand, the plaintiff contends
that in a case such as the one before me (where the issue of quantum
falls to be adjudicated
at a later stage), the only issues for
determination are whether:
(a)
the defendant committed a wrongful act
causing bodily injury;
(b)
the act is accompanied by fault on the
defendant’s part;
(c)
the plaintiff’s patrimony suffered
loss due to the bodily injury.
[16]
Once that has been determined in the
plaintiff’s favour, so it is argued, it is not necessary for
this court to determine
a closed list of injuries. Indeed,
according to the plaintiff it will be quite permissible for other
related injuries to
be thrown in at the stage of the hearing where
quantum is traversed, and that the main issue between the parties
(which in my view
is whether the brain atrophy and what can only be
described as a hole in the skull which the child ultimately presented
with and
the sequelae to these injuries) ought not to be considered
or adjudicated upon by me at all.
[17]
In the premises the plaintiff contends for
an order in the following terms:
‘
The
defendant is liable to the plaintiff for such damages as the
plaintiff may prove or may be agreed upon, plus all costs, including
those of the failed application for absolution from the instance.
[18]
It is indeed so that at the commencement of
this trial (before the pleadings were amended for the second time for
purposes of clarity
and to exclude the plaintiff’s personal
claim for emotional shock) it was recorded that the trial would
proceed on all issues
save that of quantum. In this regard the verbal
exchange between me and the plaintiff’s counsel is recorded as
follows:
‘
COURT
Yes. I just need to be quite sure at what juncture the parties have
agreed to separate, because this often becomes problematic.
Particularly when you have got a claim such as that of the mother’s
where it does not necessarily mean that if the staff
at the hospital
were negligent and if it is found that that negligence caused the
complaints that the minor child is suffering
from, that that
negligence also caused the complaints that the mother is suffering
from, because hers are in the nature of, for
want of a better
description, emotional shock, are they not?
MR NTSALUBA Yes.
COURT So is all of that
going to be dealt with during this trial or are we just dealing with
the issue of negligence at this trial?
MR NTSALUBA Yes M’Lady,
yes indeed we will deal with all of those to the extent that we are
able to do so.
…
.
COURT Yes, very well.
Yes, the parties have agreed that this is an appropriate matter where
the issue of quantum ought to be separated
off from the other issues
before this Court and [it] is accordingly directed that the issue of
quantum is separated from all other
issues which this Court is to
deal with, and that the issue of quantum will not be dealt with at
this stage.
MR MTSHABE As the Court
pleases.
MR NTSALUBA Thank you
M’Lady.’
[19]
That concluded the exchange and the order
made with respect to separation of issues in terms of rule 33(4) of
this court’s
uniform rules.
[20]
Rule 33(4) and (5) reads as follows:
‘
(4)
If, in any pending action, it appears to the court
mero
motu
that there is a question of law or
fact which may conveniently be decided either before any evidence is
led, or separately from
any other question, the court may make an
order directing the disposal of such question in in such manner as it
may deem fit and
may order that all further proceedings by stayed
until such question has been disposed of, and the court shall on the
application
of any party make such order unless it appears that the
questions cannot conveniently be decided separately.
(5)
When giving its judgment upon any question in terms of this rule the
court may give such judgment as may
upon such decision be appropriate
and may give any direction with regard to the hearing of any other
issues in the proceeding which
may be necessary for the final
disposal thereof.’
[21]
In
my view one of the primary reasons for the seeking and the granting
of separation of issues is so that a factual issue can be
determined
which can give direction to the rest of the case and in particular,
to obviate the leading of evidence which may be
academic at the end
of the day. The purpose is to determine the plaintiff’s
claim without the costs and the delays
of a full trial. It has
been held that this procedure is so important that an attorney
should, as soon as pleadings have
closed, make a strategic assessment
of the real trial needs of the case bearing in mind the duty to
eliminate avoidable delays
and costs.
[1]
[22]
The
procedure is clearly aimed at facilitating the convenient and
expeditious disposal of litigation.
[2]
The word ‘convenient’ within the context of the
subrule conveys not only the notion of facility or ease or
expedience,
but also the notion of appropriateness and fairness.
[3]
It is not the convenience of any one of the parties or of the
court, but the convenience of all concerned that must be taken
into
consideration.
[4]
In this
regard my questioning of the plaintiff’s counsel as to the
precise junction of the separation was not a mere
formality. It
has been held that it is imperative at the start of the trial that
there should be clarity in this regard.
If separate issues are
to be determined, the questions to be determined must be expressed by
the court with clarity and precision
in its order.
[5]
This is so because the subrule confers a wide discretion upon
the court to shorten the duration of the proceedings and to
facilitate the final determination of actions.
[23]
In
Road
Accident Fund v Krawa
[6]
,
the
full court inter alia held that:
(a)
in the procedural context of a separation
of issues on the pleadings for trial, the nature of those issues had
in the first place
to be determined from the pleadings;
(b)
in this context the enquiry relating to
quantum/damages was not always limited to a mere calculation, but
could also include matters
relevant to the
existence
of patrimonial loss or damage (as
opposed to the
nature
of
such damage);
(c)
since an essential feature of the
dependant’s action was his right to support by the deceased, a
failure to prove a duty of
support would mean a failure to prove
patrimonial loss requiring compensation;
(d)
the existence of a legal duty and the
concomitant right to support were therefore inexplicably bound up
with the question of damages,
as the term was understood in the
context of a separation of issues for trial;
(e)
in conceding the merits of the case, the
Road Accident Fund did not, given the ordinary meaning of the term in
the context, concede
that the plaintiff had suffered patrimonial
loss, and accordingly matters pertaining to the deceased’s duty
of support remained
in issue despite the concession;
(f)
the application to amend its plea by the
Road Accident Fund had to be granted insofar as it related to the
plaintiff’s averment
that the deceased had been under a legal
duty to support him.
[24]
The relevant portions of the
plaintiff’s particulars of claim in the matter before me, read
as follows:
‘
The
facts:
5.
On or about 10 February 2008 S. was admitted at the hospital
presenting with various signs
of being sick including respiratory
distress, a fever and high body temperature.
6.
In due course S. was diagnosed with pneumonia and gastroenteritis,
whereupon an attempt was made
to put him on an intravenous course of
antibiotics or other medicines, with the drip site being sited
initially in his forehead
and later on the left lateral aspect of his
head.
7.
Fluids from the intravenous drip infiltrated or extravasated into the
tissue surrounding both
drip sites, causing infection, and
subsequently necrosis, of particularly the tissue and bone
surrounding or beneath the second
drip site and also damaging or
injuring the third, sixth and seventh cranial nerves.
8.
As a consequence of the above, S. now presents with-
8.1 a squinted and blind
left eye which does not close fully;
8.2 a bald patch on the
left lateral aspect of his head on which the hair no longer grows at
all;
8.3 a lateral deviation
of the mouth; and
8.4 brain atrophy.
9.
As evidenced by the above, the medical and/or nursing care S.
received from the hospital was inappropriate,
incompetent and
negligent and such inappropriate, incompetent and negligent treatment
was the direct cause of conditions with which
he now presents.
The duty of care and
breach thereof
10. …
11. As a
direct result of the negligence of the medical and/or nursing staff
of the hospital S. sustained the injuries,
and their
sequelae,
set
out above.
…
Grounds of negligence
13.
…
Damages
14.
As a result of the incompetent, inappropriate and negligent treatment
he received from the relevant
hospital medical and/or nursing staff,
all of which, by the exercise of reasonable care, skill and
diligence, were avoidable, S.
experienced pain and suffering,
disfigurement, loss of amenities of life and psychological trauma for
which he will in future require
treatment.
15.
As a further consequence of his injuries, S. sustained psychological
or intellectual impairment and
will in the future suffer a
significant reduction of his income or earning capacity as a
consequence of such impairment.
16.
In the circumstances, the defendant is liable in damages to the
plaintiff under the following heads
(in South African Rand currency):
16.1 General damages
750
000
16.2 Past and
future medical expenses
750
000
16.3 Future loss of
earnings or earning capacity
2
500 000
TOTAL
4
000 000
...
Wherefore the plaintiff
prays for judgment against the defendant for –
(a)
Payment of the total amount of R4 000
000,00 as tabulated above; …’
[25]
In my view the nature of the issues as
determined from the pleadings are the following:
(a)
Whether the defendant’s servants had
been negligent and in breach of their duty of care towards the child
in their treatment
of him as described;
(b)
Whether their conduct is causally connected
to the injuries described;
(c)
Whether the injuries described have caused
and will cause the plaintiff to suffer the damage to her patrimony
which she has described;
(d)
Whether the defendant is liable to
compensate the plaintiff for this damage; and lastly,
(e)
Whether
the defendant should pay the amounts reflected by the plaintiff or
whether the quantum of these damages (in other words
‘the
amount in fees, compensation or damages to be determined by a court’
as per the definition of the term ‘quantum’
in
Claassen’s
Dictionary of Legal Words and Phrases
[7]
)
ought
to be quantified or calculated differently.
[26]
This being the case, it seems clear to me
that when I was requested at the commencement of this trial to make a
consent order directing
that only the issue of quantum would be dealt
with separately it was intended to mean and in fact meant that all
other issues (save
for the calculation of the monetary value to be
affixed to the plaintiff’s damages) were intended to be
disposed of at this
trial, in order to give proper and meaningful
effect to the purpose of rule 33(4) as set forth hereinbefore.
[27]
Krawa
,
and indeed the other cases which counsel for the plaintiff have
referred me to
[8]
are clearly
distinguishable from the matter before me. On the contrary,
neither of the reported cases referred to by counsel
deal with
separation of issues in terms of rule 33.
Evins
v Shield Insurance
relates to the issue of prescription.
Nonkwali
v RAF
traverses
the question of whether a plaintiff has any recourse in respect of an
additional injury discovered after the institution
of an action for
compensation against the Road Accident Fund. In the unreported
matter of
Kitayi
v RAF
the plaintiff had initially claimed damages in the region of R200 000
for a fractured femur which she had sustained in a motor-vehicle
accident. The minute of a pre-trial conference records the
following:
‘
The
parties have agreed to separate the merits from the
quantum
of the damages suffered by the
Plaintiff. This Honourable Court will accordingly be requested to
deal with the issue of the Defendant’s
liability (negligence)
first.’
[28]
Thereafter the parties agreed to an order
which reads as follows:
‘
1.
The defendant is liable to pay 60 per cent
of the plaintiff’s proven or agreed damages as a result
of the
accident that took place on the July 2002 (sic).
2.
The defendant shall pay costs on the High Court scale.’
[29]
During the following year the plaintiff
(with no objection from the defendant) amended the claim to include a
further injury and
to increase the quantum of the damages
accordingly. The defendant’s application to amend by
delivering a special plea
denying the further injury was met with
resistance but was subsequently granted. The High Court, in
dismissing the special
plea held that the introduction of a further
injury was not an attempt to-reopen the settled issue of liability
and by implication,
the plaintiff would still have to prove the
existence of the injury, causation and quantum in respect of the
further injury if
called upon to do so.
[30]
In the matter before me, extensive expert
evidence was presented on both sides relating particularly to the
child’s injuries
as referred to in the plaintiff’s claim.
At the end of the day it was clear from the collective evidence
of the experts
that the hospital staff’s failure to remove the
intravenous line earlier constituted negligence and that this
resulted in
tissue infiltration which in turn caused the child’s
face to swell up in the manner in which it did.
[31]
In my view, Dr Kara, who was called by the
defence, was an exceptionally fair witness who answered all questions
put to him in a
forthright and logical manner, and who was prepared
to make candid concessions when they were called for in the true
spirit of
an unbiased expert witness. His mandate, as reflected
at the covering page of his medico legal report was to comment
specifically
on an IV (intravenous) line infiltration, its
consequential facial scarring and its relationship to neurologica
impairment including
a facial nerve palsy and neurodevelopmental
delay. It is significant that the child was six years and six
months old when
Dr Kara performed his assessment, this being just
short of six years post-morbidly (the child having been hospitalised
from February
2008 to May 2008).
[32]
With respect to the hospital records, Dr
Kara stated the following in his report (which opinion he emphasised
in evidence):
‘
The
hospital notes are comprehensive and it seems as if the child was
reviewed at least twice a day by doctors, the treatment and
investigations seem appropriate. It is obvious that this was a
critically ill child and the problems are summarised below:
-
Unresolving pneumonia (on TB treatment and
various antibiotics), with resolution only after 6-8 weeks.
-
Malnutrition on admission with
gastroenteritis
-
Hypoalbuminaemia (which would delay healing
at the drip site)
-
Salmonella septicaemia and Klebsiella
infection with multiresistance.
-
Severe drip site necrosis on left parietal
and temporal area, requiring surgery (skin graft)
-
Left 3
rd
cranial nerve palsy and left 7
th
cranial nerve palsy (said to be upper motor neurone –
suggesting it was an intracranial lesion but to me it appears to be
lower motor neurone suggesting a local neuropathy).
-
Eye surgery – tarsorraphy (eye
opening is narrowed to protect the eye from drying).
The
IV Line
–
The IV line
infiltration and damage to the scalp, face, neck and possibly the
eyelid area is indefensible…
There is little doubt
that the continued flow of fluid and drugs into the facial tissue lef
to tissue necrosis and permanent scars.
The pain suffered at the time
of the injury and the long term psychological damage due to the
disfiguration of the face is immense.
The entire episode was easily
avoidable had the line been discontinued on the 17
th
Feb
2008 when first noted.
…
The
Facial Nerve Injury - …It would make sense that this was
damage due to facial welling following the IV line infiltration.
….
The probable cause for the 3
rd
(or 6
th
)
nerve palsy is a combination of factors rather than 1 specific factor
and its cause may not be related to the facial nerve palsy…
…
The
Developmental delay – it is unlikely that this was related to
the IV line issue. This was an extremely ill child even
prior to the
IV line infiltration – he was malnourished, had cerebral
atrophy on CT scan (which was done at the end of Feb
2008). Cerebral
atrophy is not likely to occur 10 days after an acute injury, it is
more reasonable that this was pre-existing
eg due to malnutrition and
illness. By this I mean that the CT scan if done on admission may
have shown the same features…
In summary are too many
confounding factors to attribute the developmental delay tp be due to
the IV line complications (this is
the only item of negligence in
hospital care). It is more likely to be due to the combination of
malnutrition, encephalopathy and
possible vasculitic injury with
microthrombi following septicaemia…
Conclusion – S.
K.
The facial injury and
facial nerve injury with skin necrosis and disfigurement and the eye
injury (including the need for surgery
to protect the eye) is
attributed to the negligence on the part of the staff at Frere
Hospital who failed to act timeously when
they noted the facial
swelling in the area of the IV line site – discontinuing the
infusion may have limited the damage considerably.
It is not possible to
convincingly link the developmental delay, speech delay and possible
intellectual impairment to the events
that occurred in hospital in
Feb. 2008 due to numerous other factors (as detailed in paragraph
25.3) that may have contributed
to cortical atrophy and developmental
deficits.’
[33]
It is accordingly clear on the evidence
presented on the defendant’s behalf that the defendant ought to
be held liable for
all the injuries referred to in the plaintiff’s
claim, except for the alleged brain atrophy which was referred to for
the
first time in the report on a CT scan performed some time after
the child was admitted to hospital, the blindness to his left eye
and
the “psychological or intellectual impairment” somewhat
obliquely alluded to in the plaintiff’s third attempt
at
drafting comprehensible particulars of claim.
[34]
The evidence presented on the plaintiff’s
behalf with respect to these conditions is not at all clear. There
is no reliable
independent evidence to suggest that the child’s
sight in his left eye is compromised or absent. The claim in
this
regard accordingly falls to be dismissed.
[35]
On the aspects of psychological and
intellectual impairment, I only have the evidence of the plaintiff,
whose averments that the
child is reported to be a slow learner, are
vague and inconclusive at best. In any event, the report of Dr
Mokabane who testified
for the plaintiff makes no mention of
psychological and intellectual impairment and a compromise of the
child’s earning capacity.
Here too, the claim falls to be
dismissed.
[36]
This leaves the claim that the child
presents with brain atrophy as a consequence of the hospital staff
failing to timeously remove
the intravenous line which had tissued on
two occasions when sited in the child’s head.
[37]
The issue of brain atrophy is not mentioned
at all in Dr Mokabane’s initial report. In an addendum to that
report delivered
some time later, after having considered various
other reports including those of Drs Bhagwan and Kara Dr Mokabane
once again
makes no reference to “brain atrophy”, but
does say that “it would however seem that S. lost part of his
skull
as it appears on the reports.” In commenting in evidence
on a medico legal report by an eye surgeon, Dr Mokabane’s
view was that the brain atrophy was as a result of intravenous sepsis
caused by the failure to remove the drip. According
to the
doctor the sepsis resulted in necrosis which caused the child’s
skull bone to disappear. In the premises Dr Mokabane
disagreed
with the opinion of the eye surgeon which states that the “atrophy
(small shrunken brain), …is unlikely
due to events in the past
two weeks and it takes a lot longer for tissue to evolve. The
brain atrophy is related to antenatal
or immediate postnatal
results.”
[38]
Dr Bhagwan’s evidence that the person
best qualified to comment on aspects of brain atrophy (colloquially
described as shrinkage
of the brain) would be a paediatric
neurologist or a paediatrician (such as Dr Kara) was not challenged.
Dr Kara’s firm
opinion (which was not seriously challenged
and which appears from excerpts from his medico-legal report which I
have already referred
to) is likewise that the atrophy was due to a
pre-existing condition such as malnutrition or illness, which
according to Kara’s
reading of the clinical records were
present when the child was admitted.
[39]
Dr Kara referred this court in evidence to
a publication on CT scans of the head and cerebral atrophy in infants
with protein energy
malnutrition, by Samir El-Tatawy (department of
radiology, faculty of medicine, Cairo University), and Nadia Badrawi
and Amal Bishlawy
(department of paediatrics, faculty of medicine,
Cairo University). According to studies and tests performed by the
authors, protein
energy malnutrition is found predominantly in
infants whose requirement for protein have not been met for some
time, the age of
peak incidence being between the ages of six and 30
months. Of the 40 infant subjects with protein malnutrition,
all had
mental symptoms, and the results of CT head scans revealed
that all the infants presented with central and cortical atrophy. In
the word of Dr Kara, “if the baby does not grow, the brain does
not grow.”
[40]
As I have said, I am satisfied that Dr
Kara’s evidence was presented in an unbiased fashion. The
plaintiff’s expert
on the other hand, tended at times to be
argumentative, emotional, and in my view overly critical of the
informed view of her colleagues.
I am satisfied that where her
evidence and her views differ from those of Dr Kara, Dr Kara’s
evidence is to be preferred.
[41]
In the premises I am not persuaded that the
plaintiff has shown on a balance of probabilities that the cerebral
atrophy detected
when the CT scans were performed, is causally
connected to the conduct of the hospital staff.
[42]
The plaintiff has however been partially
successful and in my view is entitled to the costs of this action.
This partial success
is in my view, attributable in the main to
the plaintiff having been granted leave to amend her pleading, which
application she
brought in response to the defendant’s claim
for absolution from the instance at the close of the case for the
plaintiff
in terms of rule 39(6), which she is entitled to do and
which application I granted in terms of the wide provisions of rule
28(10).
This being the position, I am of the view that the
plaintiff ought to be liable for all costs occasioned by and
consequential
to the application for an amendment, including all
costs occasioned by consequential adjustments to the documents and
the plea
already filed by the defendant.
[43]
In the premises I make the following order:
Order:
(a)
The defendant is liable for the
plaintiff’s proven or agreed damages arising out of the
negligent treatment of the plaintiff’s
child S. K., at Frere
Hospital during the period February to May 2008, which
treatment has caused the child to suffer facial
injuries, facial
nerve injuries, skin necrosis and facial disfigurement in the form of
a squint left eye which does not close properly,
a permanent bald
patch on the left lateral aspect of his head, and a lateral deviation
of his mouth.
(b)
The defendant is directed to pay the
plaintiff’s costs including the costs associated with the
plaintiff’s successful
opposition to the defendant’s
claim for absolution from the instance, but excluding all costs
associated with the amendment
of the plaintiff’s particulars of
claim and the consequential pleading and filing of further documents,
which costs are to
be borne by the plaintiff.
I.T. STRETCH
JUDGE OF THE HIGH
COURT
26
June 2015
[1]
Rauff
v Standard Bank Properties
2002 (6) SA 693
(W) at 703I-J.
[2]
Dowson
& Dobson Industrial Limited v Van der Werf
1981 (4) SA 417
(C) at 420E.
[3]
S
v Malinde
1990 (1) SA 57
(A) at 67J-68E.
[4]
Minister
of Health and Another NO v New Clicks South Africa
2006 (2) SA 311
(CC) at 354J-355C.
[5]
Absa
Bank Ltd v Bernert
2011 (3) SA 74
(SCA) at 79C.
[6]
2012
(2) SA 346
ECG at 359C-360B and 366E-370B.
[7]
Second
Edition (June 2013) volume 4 Q-4.
[8]
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A); Nonkwali v Road
Accident Fund
2009 (4) SA 337
(SCA);
Kitayi
v RAF (unreported) ECM case no. 690/06.