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[2024] ZAECBHC 28
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Z.N v Member of the Executive Council for Health Eastern Cape Province (226/2017) [2024] ZAECBHC 28 (19 July 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO. 226/2017
In
the matter between:
Z[...]
N[...]
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN CAPE
PROVINCE
Defendant
JUDGMENT
COLLETT
AJ:
Introduction
[1]
The plaintiff has issued summons against the defendant claiming
damages for and on
behalf of L[…] N[…] (hereinafter
referred to as ‘
LN
’) relating to the alleged
negligent treatment that she received during her confinement and the
birth of
LN
at the Nessie Knight Hospital (hereinafter
referred to as ‘
NKH
’).
[2]
At the outset of the trial, the court made an order separating the
issues of merits
and quantum in terms of
rule 33(4
) of the
Uniform Rules of Court
(hereinafter referred to as ‘
the
Rules’
)
.
Accordingly, the trial proceeded
solely on the issue of the negligence by the employees of the
defendant, it being alleged that
the plaintiff and
LN
in
utero
and at birth during the period 29 and 30 August 2002,
received substandard care at
NKH.
[3]
The gist of the matter is whether the hypoxic ischaemic
encephalopathy (hereinafter
referred to as ‘
HIE’
)
was caused by the employees of the defendant during the active and
second stage of labour as a consequence of substandard care.
[4]
The salient issues for determination are best summarized as follows:
1.
The exact nature of the
hypoxic ischaemic encephalopathy
(hereinafter referred to as ‘
HIE
’) suffered by
LN
.
2.
Whether the
HIE
suffered by
LN
occurred during labour
and/or at birth as a consequence of the substandard care of the
defendant’s employees.
3.
Whether the
HIE
resulted in the intellectual cognitive
impairment from which
LN
suffers.
[5]
Whilst this trial at first blush seems somewhat complex and
convoluted, when separating
the wood from the trees, this court is
enjoined to consider whether the employees of the defendant, and in
particular the nursing
staff and/or doctor involved in the management
of the plaintiff’s labour, were negligent in that treatment.
Axiomatically,
whether such negligence, if found to exist, gave rise
to the
HIE
and
sequelae
suffered by
LN
.
Pre-trial
admissions
[6]
The court has been referred, in argument, to the contents of the
pre-trial minute
dated 11 February 2020 (hereinafter referred to as
the ‘
first pre-trial’
) which is premised upon the
parties confirming that they were duly authorised to attend the
conference, deal with the business
raised therein and agree where
agreements were reflected. The undermentioned admissions are
significant:
1.
The obstetric history of the plaintiff was recorded, and the parties
agreed that
the summary of the labour documents and medical records
accorded therewith.
2.
The parties further agreed that the plaintiff’s ID copy,
L[...]’s
ID copy, road to health chart and hospital records
from
NKH
discovered by the parties are admitted as evidence
and are what they purport to be subject to the right of either party
to dispute
an entry, the correctness or authenticity thereof.
[7]
At this stage the expert reports of
Professor Lotz
,
Dr
Redfern
and
Dr Wright
, inclusive of their opinions, were
not admitted and the defendant indicated that it would appoint
experts to assess
LN
and prepare reports.
[8]
On 19 January 2021 a further pre-trial conference (hereinafter
referred to as the
‘
second pre-trial’
) was held by
the parties. Aside from confirming the admissions made during
the
first pre-trial
, the parties concluded the following
agreements:
1.
The injury displays a mixed pattern of prolonged partial (peripheral)
and perirolandic,
basal ganglia (BGT) (central) hypoxic injury.
2.
The findings of the MRI study suggest that genetic disorders as a
cause of
LN’s
brain damage is unlikely.
3.
The MRI findings suggests that inflammatory or infective causes are
unlikely
as causes of
LN’s
brain damage.
[9]
In addition hereto, the parties recorded as follows:
1.
That the medico-legal reports prepared and the joint minute between
Professor Lotz
and
Professor
Andronikou
,
including all the opinions reflected therein, can be handed in as
evidence without formal proof.
[10]
A further pre-trial conference was held on 10 May 2022 (hereinafter
referred to as the ‘
third pre-trial’
) wherein,
significantly, the agreement relating to the joint minute between
Professors Lotz
and
Andronikou
was re-iterated. The
parties further agreed as follows:
1.
The parties agreed that the joint minute of
Professor Cooper
and
Dr Redfern
would be handed in as evidence in respect of
the following issues as recorded in the pre-trial agenda more
particularly paragraphs
5.1; 5.3; 5.6 and 5.7 which read as follows:
‘
5.1
That the maternity case record shows that, after an uncomplicated
pregnancy, L[...] was born via
vaginal delivery at estimated 41
week’s gestation at NKH.
5.3
That the intention had been to transfer the mother to
NMAH
prior to delivery for emergency caesarean section.
5.6
That the paediatric experts agree that the reports of both Professors
Lotz and Andronikou describe
changes consistent with a mixed pattern
of prolonged partial and acute profound hypoxic ischemic injury.
5.7
That the joint minute of Dr Redfern and Professor Cooper be handed in
as evidence of the agreements
reflected therein.’
2.
The following was agreed upon relating to paragraph 5.2:
‘
5.2
There was prolonged second stage (1h50min) and fetal bradycardia for
at least 90 minutes prior
to deliver, and the intention had been to
transfer the mother to NMAH prior to delivery for emergency caesarean
section.
The defendant placed on record that Dr Cooper
agrees and notes that the recorded bradycardia was 100/min which is
below the limit
of 110min’
3.
The maternity case record (hereinafter referred to as
‘
maternity record’)
could be handed in as evidence
of what it purported to be:
1.
That the brief clinical notes made when the plaintiff was admitted to
hospital
in the latent labour indicates that the plaintiff had no
complications during the antenatal period and this suggests that it
is
unlikely that
LN
suffered the brain injury before the
onset of labour;
2.
That there was no history of postnatal cause for
LN’s
brain injury;
3.
That there was evidence of fetal distress;
4.
That it is unlikely that an
abruptio placenta
occurred in the
second stage of labour;
5.
That the joint minute of
Dr Ebrahim
and
Dr Swan
be
handed in as evidence of the agreements reflected therein.
4.
The Guidelines for Maternity Care (2002) (hereinafter referred to as
‘
Maternity Guidelines
’) were admitted as evidence
without formal proof.
Expert evidence
Professors
Lotz
and
Andronikou
[11]
The joint minute of
Professors Lotz
and
Andronikou
was
agreed upon at the
second
and
third
pre-trial
conference. The significant features of the joint minutes are:
(a)
The experts agree that the injury displays a mixed pattern of
prolonged partial (peripheral)
and perirolandic, basal ganglia
thalamus (BGT) (central) hypoxic ischemic injury.
(b)
The experts agree that the findings of the MRI study suggest that
genetic disorders as a
cause of
LN’s
brain damage are
unlikely.
(c)
The experts agree that the MRI findings suggest that inflammatory or
infective causes
are unlikely as causes of
LN’s
brain damage.
(d)
That the injury occurred in a term brain from 36 weeks onward.
(e)
The nature of the injury is not in dispute, but the probable cause
and timing was deferred
for a review of the clinical and obstetric
records by specialists in the neonatology and obstetric fields.
[12]
The
viva voce
evidence of
Professor Lotz
expanded upon
the contents of his report (despite the early admission of its
correctness in material respects as further evidenced
by the joint
report).
Professor
Cooper
and
Dr
Redfern
[13]
Both paediatric experts,
Professors
Lotz
and
Andronikou
describe changes consistent with mixed patterns of prolonged partial
and acute profound hypoxic ischemic injury but agreed that
the MRI
cannot time the injury other than to indicate that it occurred at
term gestation. They agreed that there was a prolonged
second stage
of labour and documented fetal bradycardia for at least 90 minutes
prior to delivery with an intention to transfer
the plaintiff to
NMAH
for a caesarean section.
Furthermore,
they
agreed that there is limited information regarding the condition of
the baby at and after delivery besides Apgar scores which
are
inconsistent with the documented fetal distress and bradycardia.
[14]
The neonatal encephalopathy is critical to the timing of
LN’s
brain injury, particularly with regards to the
intrapartum
period. The only examination available was performed one hour
forty minutes after the delivery of
LN
and demonstrated signs
of neonatal encephalopathy to which there appeared to be consensus.
However,
Professor Cooper
preferred to interpret the
singular inscription of
LN’s
condition as ‘
statis’
prior to discharge and that he received his first immunizations
to unequivocally confirm that any abnormal signs of encephalopathy
had settled. Regrettably for
Professor Cooper,
the reliability
and timing of the inscriptions is unknown and nobody testified on the
accuracy or circumstances of the recordals
rendering the relevancy
hearsay.
[15]
Professor
Cooper
was of the opinion that
LN
developed only a mild neonatal encephalopathy which had settled by 12
hours after birth and that according to
Volpe’s
Neurology of Newborn
[1]
(hereinafter referred to as ‘
Volpe’
),
only moderate and severe encephalopathy resulted in neurological
sequelae
,
whereas mild encephalopathy does not result in long term
neurological
sequelae.
Dr
Redfern
referred to the same page in
Volpe
and stated that later neurodevelopmental follow-up had also
identified disability in infants that had mild encephalopathy.
In addition, he referred to recent research of
Conway
et al
[2]
where the authors indicated that disability in a group of children
with mild encephalopathy may only appear as intellectual, behavioural
or learning disabilities at an older age.
Drs
Swan and Ebrahim
[16]
Drs Swan
and
Ebrahim
both agreed that the MRI cannot
time the injury other than to show that it occurred at gestation
.
Dr
Ebrahim
opined that the hypoxic injury mixed pattern,
in accordance with
Volpe,
and evolved over several hours
rather than minutes.
Dr Swan
stated that as the MRI
findings indicated both a prolonged partial and an acute profound
pattern, in this instance it could be
concluded that there was a
possible decompensation of fetal bradycardia that had commenced
before onset of labour.
[17]
Dr Swan
referred to
Volpe
regarding factors relating to
the timing of hypoxia-ischemic as the aetiology of neonatal
HIE
namely:
a)
fetal distress / fetal risk for hypoxia/ischemia
b)
resuscitation and/or low Apgar scores and
c)
overt neurological syndrome in first hours or days of life.
He mentioned that there
was evidence of fetal distress in the last hour of labour and a tight
cord which could be a sentinel event.
No other factors were
present.
[18]
Both
Drs Ebrahim
and
Swan
accept the opinion of
Dr
Redfern
that there was no history of a postnatal cause for
LN’s
brain injury.
Dr Ebrahim
considered it
most probable that the brain injury and intellectual disability was
due to a severe hypoxic injury that occurred
intrapartum
whereas
Dr Swan
opined rather that it was exacerbated
intrapartum
.
[19]
Dr Ebrahim
stated that the partogram does not indicate that
the fetal heart rate was checked before, during and after
contractions as stipulated
in the
Maternity Guidelines
during
the first stage of labour. In addition the
Maternity
Guidelines
specify that CTG monitoring should have been used as
the plaintiff was post term. Accordingly, it is not known if
fetal decelerations
were present during the first stage of labour.
A fetal bradycardia was present during the second stage.
[20]
Dr Swan
, did not agree that the plaintiff was post term but
regarded her as post- date and therefore not in a high risk
category.
However, he agreed that monitoring should be done before,
during and after contractions. He said an abrupt change from
normal
heart rate to bradycardia was clearly noted at full dilation.
[21]
Dr Ebrahim
stated that the nature of the injury is indicative
of evolving over hours rather than minutes so it is likely that the
decelerations/fetal
distress was present several hours before the
birth stage of labour and throughout the second stage.
[22]
Dr Swan
stated that there is no conclusive evidence of a
compromised fetal heart rate throughout the first stage of labour but
bradycardia
was noted at full dilation at 23h00. Although
meconium was noted when membranes ruptured at 21h00, the amount was
not graded.
He agreed that if
CTG
had been done more
subtle signs of fetal distress may have been noted.
[23]
Both obstetricians concluded that
abruptio placenta
was
unlikely to have occurred in the second stage of labour. They
both agreed that if fetal heart rate monitoring was
carried out
correctly during labour, decelerations/fetal distress ought to have
been detected earlier and the delivery expedited
resulting in a
healthy baby with normal brain function albeit that
Dr Swan
added the rider that ‘
if sophisticated monitoring had been
available’
. However, he accepted that the
deviation from the standard guidelines was not to document the fetal
heart rate before,
during and after contractions.
[24]
Dr Ebrahim
concluded that the failure to diagnose fetal
distress in the first stage of labour probably resulted in the
hypoxic brain injury
and intellectual disability of
LN
.
Dr Swan
was of the view that a combination of fetal priming
and an unavoidable cord complication contributed to the hypoxic brain
injury
and intellectual disability of
LN.
[25]
Dr
Redfern
indicated that the Apgar scores of 8 at one and five minutes are not
sustainable given the prolonged fetal bradycardia and the
evidence of
the plaintiff that
LN
did not
cry and was placed in an incubator. Added to this is the dangers of
relying on the Apgar scores as recorded by
Sineka,
whose general expertise is questionable.
Volpe
also
regarded the dangers of relying on Apgar scores in such a context as
‘
fraught
with hazards’.
[3]
[26]
Dr Keshave
disagreed with
Dr Redfern
and said
that the Apgar scores were in-keeping with the discharge of
LN
on the same day, the administration of the BCG immunization and that
if
LN
sustained a significant degree of hypoxic ischemic
injury, he would have been far worse with neurological defects
typical of cerebral
palsy. Curiously,
Dr Keshave
conceded that
if there was bradycardia then the Apgar scores are unlikely to have
been correctly measured which is significant given
the clear
documentation of bradycardia.
Dr
Keshave
,
Professors
Gericke and Christiansen
[27]
Dr Keshave
indicated that in the absence of evidence
relating to fetal distress, depression at birth and neonatal
encephalopathy, then
the brain injury
intrapartum
becomes less
probable.
Dr Redfern
, however, suggests that based on
the plaintiff’s evidence that the baby did not cry at birth and
the ‘
twitching’
which lasted for a week this
is consistent with the neonatal encephalopathy revealed at the
first examination.
[28]
Dr Keshave
, whilst accepting that the examination revealed the
presence of mild encephalopathy, noted that the baby was born with
microcephaly
having a head of 32cm at 41 week gestation which would
indicate an insult prior to 34 week gestation which would add to the
risk
of neonatal encephalopathy.
Dr Redfern
opined that
the head circumference was just below the 3
rd
centile for
41 week gestation and not indicative of congenital/primary
microcephaly and was probably measured inaccurately considering
that
he has a normal head circumference as an adult.
[29]
Dr Keshave
indicated that
LN
presents a mainly
intellectual disability and microcephaly that has persisted from
birth with a head circumference of 52cm in a
20 year old is
indicative of an antenatal insult or genetic aetiology as being most
probable. He stated that according to
Volpe,
seizures
after 24 hours of birth are not related to
intrapartum
asphyxia but rather antenatal insults or postnatal injury.
Professor
Christiansen
was not called to testify on behalf of the
defendant, but the joint minute between him and
Professor Gericke
was handed in by agreement. However, he stated in his report that the
head circumference of
LN
as an adult was normal which brings
into question the alleged congenital microcephaly at birth based on a
head circumference below
the 3
rd
percentile. This is also
supported by
Professor Gericke
and accordingly adds merit to
Dr Redfern’s
theory of inaccurate measurement at birth.
[30]
Dr Keshave
agreed with
Dr Redfern
that intellectual
disability without cerebral palsy is a recognised
sequelae
of
hypoxic ischemic encephalopathy but opined that the microcephaly at
birth and its persistence, positive genetic results, lack
of cerebral
palsy and even postnatal results should also be considered as causes
of the injury.
[31]
Professor Gericke
in his report refers to the ANK3 gene as a
novel mutation which has yet to be proven of any clinical
significance and cannot be
attributed to be pathogenic in this case.
Dr Keshave
disagreed and stated that the presence of a variant
of unknown significance (hereinafter referred to as ‘
VUS’
)
does not mean it is not clinically relevant.
[32]
Dr Redfern
persisted that clinical significance cannot be
attributed to a
VUS
without a formal, multi-step process so
the genetic test must be considered negative for the purposes of the
court and it also
does not fit the clinical presentation of
LN.
According to him, of the few cases of ANK3 mutation outlined in the
literature, none of them had small head circumference at birth
or as
adults or hypoxic ischemic damage on an MRI so there is no logical
connection with
LN
in this matter.
Dr Keshave
proposed that even if the mutation is currently a
VUS,
in
three years it may be labelled a pathological variant and therefore
there is a strong case to indicate that the mutation played
a vital
role in the present case.
Factual
witness evidence
Z[...]
N[...]
[33]
The plaintiff was in good health during her pregnancy and attended
regular antenatal visits at
the Nxotwe Clinic. She was a
primigravida
17 years old when she was admitted to
NKH
for labour and delivery of
LN
. The plaintiff’s
relevant evidence was that her blood pressure and fetal heart rate
was checked by the nursing staff intermittently
and she was vaginally
examined to establish her level of dilation. She indicated that
she experienced severe labour pains.
[34]
At a certain stage, the nursing staff were not happy with the
condition of the unborn
LN
because of slow progress and
summoned a doctor to examine the plaintiff. The doctor upon
examining the plaintiff
ordered that an ambulance be
called to convey her to Nelson Mandela Academic Hospital (hereinafter
referred to as ‘
NMAH’
) for the performing of a
caesarean section. Apparently, the ambulance was delayed in arriving
and the plaintiff was assisted by
two nurses to vaginally deliver
LN
. Significantly, according to the plaintiff,
LN
did
not cry at birth, looked grey and floppy. According to her,
LN
was placed in an incubator, was not well, would not feed and was
‘
twitching
’. She was assured by the nursing
staff that this was because
LN
was tired as a result of
the prolonged labour.
[35]
The plaintiff and
LN
were discharged on the same day but
LN
was not well and continued to ‘
twitch’
.
The plaintiff took
LN
to the Nxotwe Clinic on 31 August
2002 and was informed that she should not have been discharged from
hospital. The ‘
twitching
’ subsided after a
week. The plaintiff testified that
LN
delayed in walking
and talking. She also testified about the psychological effects
resulting from the birth of
LN
which were not challenged.
Sister
NC Sineka
[36]
Sister Sineka
, testified that she was a qualified midwife at
the time. When testifying, she indicated that she had no independent
recollection
of her involvement but could reconstruct based on the
maternity records
. She was not qualified as an expert
witness. She testified that she had delivered 4 or 5 babies.
She was also not qualified
on expertise regarding Apgar scoring.
Significantly, she confirmed that she had never read the
Maternity
Guidelines
and had no knowledge of them.
[37]
She was of the view that a single reading of the fetal heart rate
determined over 30 seconds
which fell within the normal range was
reassuring of fetal well-being during labour which was the procedure
that she adopted for
fetal monitoring. Despite testifying that
she observed and recorded contractions every thirty minutes, she was
unable to
convincingly explain the shading which appeared not to have
been made contemporaneously. She did, however testify that the
plaintiff was 7cm dilated and having strong contractions. When
questioned as to when the active phase of labour begins, she
responded
as follows:
‘
I am still
trying to remember, M’Lady. It is active when the contractions
have to be strong.’
[38]
She indicated that she was not taught neither did she record the
fetal heart rate before,
during and after a contraction. She
testified that there was nothing that she did to assist
LN
from when the low fetal heart rate was detected until the plaintiff
gave birth.
[39]
The partogram contained further inaccurate recordings, more
particularly, an Apgar score of 10/10
which the
Sineka
said
was a ‘
mistake
’ which she should of ‘
scatched
off’.
Furthermore, she observed the presence of meconium
for four hours and understood that if it was ‘
thick
’
it could indicate a problem with the fetus. She accepted the
proposition that she recorded the meconium in red ink because
she
must have regarded it as significant. However, her version was that
she did not grade it because there is no space on the partogram.
Her
evidence regarding the recording of the Apgar scores raised doubt as
to whether she fully comprehended the scoring procedure
particularly
in view of her concession that she was not familiar with the
Maternity Guidelines.
[40]
She confirmed completing the first examination of
LN
an
hour and forty minutes after birth. Despite recording a ‘
sick’
baby and other clearly compromised conditions, she attempted to
explain the same as being as a result of
LN
‘
waking
up from sleep
’ prior to the examination in an endeavour to
justify the recordings. She stated the following in a further attempt
to persuade
the court that
LN’s
examination was normal:
‘
Because of
other many things, M’Lady, that I observed that are normal. To
mention a few: the temperature was normal, the nutrition
seemed to be
normal; the behaviour seemed normal; the colour seemed normal, those
made me think that the child, M’Lady was
normal.’
Evaluation
The
pleadings
[41]
The factual basis of the plaintiff’s claim is set out in
paragraphs 4 to 17 of the Particulars
of Claim to which the defendant
ultimately filed an Amended Plea on 13 May 2019. Noteworthy is that
other than raising the
defence
that the hospital did not
perform caesarean sections ‘
due to lack of capacity’
and that a decision to refer the plaintiff to ‘
UGH’
was made, none of the defences raised at trial relating to
genetics
or ‘
fetal priming factors’
were raised.
[42]
Regrettably, the trial evolved into a somewhat hapless and prolonged
narrative of expert evidence
the basis of which was not pleaded. None
of this evidence addressed the elephant in the room, which was
whether the plaintiff received
substandard care, particularly
regarding the fetal monitoring during labour resulting in
LN
suffering
HIE,
and causally, the associated
sequelae
.
As will become more apparent hereunder, what developed was nothing
more than an unfortunate and speculative side-show not
in-keeping
with the expert testimony and facts as would have been expected in
the circumstances of the case, particularly in view
of the pleadings,
the pre-trial admissions and joint minutes.
Rule
37
admissions
[43]
The purpose of
rule
37
of
the
Rules
is to facilitate efficiency in the conduct and conclusions of
litigation. The
rule
envisages the expedition of trials with the potential limitation of
issues resulting in cost-saving for all litigants. To permit
a party
to resile from agreements reached at a pre-trial conference would
frustrate and negate the very purpose of the
rule
aimed at limiting the disputed issues of the litigation.
[4]
Our courts have repeatedly held that where parties have consciously
agreed on issues that curtail the proceedings, save for special
circumstances, the parties must be held to such agreements.
[5]
[44]
Significantly, from the
first pre-trial conference,
there was
consensus as to the injury that
LN
had suffered.
Inter
alia,
the
maternity records
of the plaintiff were admitted
as proof of what they purported to be, and the
Maternity
Guidelines
were admitted without formal proof.
[45]
During the ensuing pre-trial conferences, further admissions were
made as outlined earlier. Of
particular significance was the
admissions that
the
brief clinical notes made when the plaintiff was admitted to hospital
in latent labour indicated that the plaintiff had no complications
during the antenatal period thus suggesting that it was unlikely that
LN
suffered the brain injury before the onset of labour and that there
was no history of a postnatal cause for
LN’s
brain
injury. Crucially, it was admitted that there was evidence of fetal
distress. The
MRI
study (and opinion of both parties’ experts) suggested that
genetic disorders as a cause of
LN’s
brain damage was unlikely. The defendant is not entitled to resile
from agreements made between the parties in the absence of special
circumstances.
Expert Evidence
[46]
At this juncture, I consider it prudent to consider the purpose of
expert evidence presented
at court prior to having reference to the
applicable evidence in the present matter. An expert witness
testifies as to an opinion
based upon his/her expertise in a
particular area with the function to assist the court in arriving at
a conclusion relating to
issues which the court does not possess the
requisite knowledge.
[47]
The expert witness is required to satisfy the court based upon
his/her special skills or experience
as to why the opinion expressed
should be acceptable and decisive of the issue. The decision on
the opinion is for the court
to pronounce. The position is
succinctly stated by Kriegler J in
S
v M
[6]
and cited with approval in
NSS
obo AS v MEC for Health, Eastern Cape Province
[7]
as follows:
‘
A
court’s approach to expert evidence has been dealt with on many
occasions. This court is not bound by expert evidence.
It
is the presiding officer’s function ultimately to make up his
own mind. He has to evaluate the expertise of the
witness.
He has to weigh the cogency of the witness’s evidence in the
contextual matrix of the case with which he is
seized. He has
to gauge the quality of the expert qua witness. However, the
wise judicial officer does not lightly
reject expert evidence on
matters falling within the purview of the expert witness’s
field.’
[48]
Whilst the expert is required to provide the court with the benefit
of his/her expertise, this
does not absolve the expert from providing
the court with an objectively unbiased opinion and should not wander
into presenting
evidence which defies the logic and scientific
expertise which he/she is professed to possess. The court is
enjoined to assess
on a balance of probability what has been
established based on the facts and the cogency of the experts
reasoning. The court
must bear in mind that when dealing with
medical certainty which may be uncertain it should not wantonly
accept statements made
by experts.
[8]
[49]
In
Oppelt
v Head: Health, Department of Health
[9]
,
the Constitutional Court aptly summarized the approach to be adopted
by the court:
‘
As
a rule, that determination will not involve considerations of
credibility but rather the examination of the opinions and the
analysis of their reasoning, preparatory to the court’s
reaching its own conclusion on the issues raised. The experts agree
that a review of the clinical and obstetric records by appropriate
specialists in the field of neonatology and obstetrics to be
essential in determining the cause and probable timing of this
hypoxic ischemic injury’
[50]
Regrettably, during the course of the evidence presented by certain
of the defendant’s
experts, this court was frequently drawn
down the proverbial rabbit hole with speculative opinions frequently
neither based on
proper facts, admissions or plausible scientific
evidence.
[51]
In view of the critical admissions made by the parties, the content
of the
maternity records
(that were admitted) and the evidence
presented by particularly
Sineka
, the opinions presented to
this court for consideration were beyond disappointing.
[52]
Firstly,
Dr
Swan
’s
attempted to suggest that causation should be based on the existence
of
fetal
priming factors
prior
to labour or the role of the umbilical cord found to be wrapped
around the body and ankle of
LN
was nothing short of speculative and unsustainable. He further
suggested a possible decompensation of fetal bradycardia that had
commenced before the onset of labour.
It
deserves mention that the initial agreement regarding the clinical
notes made when the plaintiff was admitted to hospital in
latent
labour indicating no complications during the antenatal period,
rendered it unlikely that
LN
suffered the brain injury before the onset of labour.
[53]
Moreover, in
Dr Swan’s
own report regarding the
umbilical cord in this matter, he concluded that:
‘
there is little
evidence from the literature that a cord in such a situation would
necessarily contribute in any significant way
to fetal compromise’
.
Hence,
the mere punting of this as a possibility of an acute sentinel event
which could not have been anticipated and possibly a
causative factor
of
LN’s
ultimate condition is most disconcerting. This
opinion, included in the joint minute, was eventually conceded by him
as speculative
during his evidence. Nonetheless, it should never have
seen the light of day given the lack of factual or scientific
evidence upon
which it was offered.
[54]
Yet a further unsettling aspect of
Dr Swan’s
evidence
was his lack of regard to the evidence of
Sineka
either whilst
preparing his report or giving evidence, more particularly, the
absence of adequate fetal heart rate monitoring before,
during and
after contractions practically for the duration of the plaintiff’s
labour. Significantly, he conceded that the
failure to monitor
the fetal heart rate during labour was a significant risk factor for
HIE
and that
intrapartum
injuries of a prolonged
partial nature are avoidable if there is adequate fetal monitoring.
Perhaps the most telling concession
when faced with the methodology
adopted by
Sineka
in monitoring the fetal well-being was that,
according to
Dr Swan,
she would have had ‘
no chance
at all of detecting any fetal distress if she monitored in that way’.
[55]
The disturbing feature of
Professor Cooper’
s evidence is
that, despite his own concession that the records upon which he was
to base his opinion we unacceptably ‘
sparse’
and
that he required more information to formulated further views in the
matter, he nonetheless offered an opinion albeit that it
was
subsequently amended once being provided with the neonatal
examination, to include a mild encephalopathy at birth. His evidence
was further marred by the fact that not only did he have no regard to
the
viva voce
evidence of
Professor Lotz
but had not
been apprised of the evidence of
Sineka
relating to the fetal
monitoring (or lack thereof) during labour.
[56]
Moreover,
Professor Cooper’s
willingness to conclude (or
rather speculate) that
LN
was well when he was discharged,
despite the unequivocal documentary evidence of a compromised baby on
the first examination, merely
because of an entry ‘
satis’
and that
LN
had been given his immunizations which would
only be administered to a healthy baby, is shocking. The inescapable
conclusion is
that he is prepared to draw unwarranted inferences from
the very records that he regarded as ‘
sparse’
in
the face of other damning evidence.
[57]
Effectively,
Professor
Cooper
failed to have regard to much of the evidence presented (or conceded)
by the other experts such as
Redfern,
Keshave, Lotz and Gericke
.
Not surprisingly, he eventually agreed with
Dr
Redfern
’s
assertion that mild neonatal encephalopathy could give rise to a
predominantly cognitive impact which, incidentally, was
the outcome
of
LN.
[58]
Despite the admissions regarding the unlikelihood of genetic
involvement, discounting of postnatal
causation and that the nature
of the injury was to a brain of term gestation (36 weeks),
Dr
Keshave
presented evidence that flew in the face of both
admissions. Just to add insult to injury, he similarly had no regard
to the evidence
of
Sineka
demonstrating a lack of appropriate
fetal monitoring during labour.
[59]
Aside from the fact that
Dr
Keshave
’s
opinion was based on a gene variant of uncertain significance,
referred to as
VUS,
it was
speculative and unsupported by science. He was simply unable to
indicate how many ANK3 variants were pathological or benign
or
VUS
either
at the time of preparing his report or giving evidence. His evidence
bordered on the bizarre especially when he encouraged
the court to
gaze into a crystal ball and determine that the ANK3 gene variant may
sometime in the future be declared to be pathogenic
instead of a VUS
and based on this speculation (even on his own version), to find that
it is associated with brain injuries of
a hypoxic nature constituted
by a mixed pattern.
[60]
He presented no scientific evidence suggesting that and injury caused
by this
VUS
could
occur in the antenatal period or that there was an association
between the ANK3 and the novel
VUS
,
microcephaly, hypoxic injuries or mixed pattern
HIE.
More
concerning is that he failed to take cognisance the fact that hypoxia
and fetal distress had been diagnosed during the
intrapartum
stage
when promoting his theory. His postulation of a viable alternative
aetiology or causation beyond the
intrapartum
period
failed dismally given that it was predominantly based on irrational,
unscientific speculation.
The duty to monitor
[61]
A professional person’s failure to
conform to the general level of skill and diligence possessed
and
exercised by a person of the same profession to which he
or she belongs would ordinarily constitute negligence.
[10]
[62]
In
Goliath
v MEC for Health
[11]
in considering the issue of negligence it was stated as
follows:
‘
At the end of
the trial, after all the evidence relied upon by either side has been
called and tested, the judge has simply to decide
whether as a matter
of inference or otherwise he concludes on the balance or
probabilities that the defendant was negligent and
that such
negligence caused the plaintiff’s injury. That is the long and
short of it.’
[63]
The overarching question to be determined at the
conclusion of all the evidence is whether there is
sufficient
evidence to draw an inference of negligence and as voiced in
Goliath
supra
:
‘
... it is
important to bear in mind that in a civil case it is not necessary
for a plaintiff to prove that the inference that she
asked the court
to draw is the only reasonable inference. It suffices for her to
convince the court that the inference that she
advocates is the most
readily apparent and acceptable inference from a number of possible
inferences (AA Onderlinge Assuransie
Assosiasie Bpk v De Beer
1982
(2) SA 603
(A); see also Cooper & another NNO v Merchant Trade
Finance Ltd
2003 SA 1009
SCA).
[12]
[64]
A plaintiff is not required to establish the
causal link with certainty, but only to establish that the
wrongful
conduct was probably a cause of the loss.
[13]
[65]
Despite their differences, the majority of the experts who testified
in this matter were
ad idem
that appropriate fetal
monitoring that measured the fetal heart rate before, during and
after the mother’s contractions
to assess any fetal
distress, is consistent with the standard of reasonable care outlined
in the
Maternity Guidelines
and a
sine qua non
for a
safe delivery without any adverse outcomes.
[66]
Where the defendant has negligently breached a legal duty and the
plaintiff has suffered harm,
it must still be proved that the breach
is the cause the harm. It must be established whether the act or
omission of the defendant
has been proved to have causally or
materially contributed to the harm suffered based on the
‘
but for’
test.
[67]
The enquiry is whether, in the circumstances,
LN’s
injury could have been avoided if
Sineka
had adequately monitored the plaintiff and her fetus,
appropriately assessed the results which would in all
likelihood have
alerted her timeously to signs of fetal distress
requiring her to apply established methods of intervention to avert
harm to
LN.
[68]
It is clear from the evidence that not only did she fail to document
the fetal heart rate readings
appropriately, but on he own version,
she only took one reading after listening for 30 seconds. In
addition, she failed to adequately
document the surrounding issues
relating to the meconium present for some four hours (which she
herself confirmed were significant)
or the actual contractions.
Besides that her actions failed to comply with the
Maternity
Guidelines
, she confirms being unaware of such guidelines.
This conduct undeniably misses the mark of the professional standard
required.
The mere fact that she documented the fetal heart
rate according to her method is irrelevant and of cold comfort,
effectively
rendering the inscriptions recorded somewhat
questionable and of no value to anyone.
[69]
Her negligence does not only relate to her failure to monitor in
terms of the
Maternity Guidelines
but whether
in casu,
the
facts found to exist demonstrated that her monitoring and management
of the plaintiff’s labour over the relevant period,
met the
standard of a reasonable professional. Indeed, a perusal of the
maternity records demonstrates ‘
sparse information’,
inadequate reporting, blank pages and, on her own admission,
errors that needed to be ‘
scratched out’.
This
haphazard, inaccurate and sparse reporting can only but be
indicative of the standard of management and monitoring of
the
plaintiff’s labour.
[70]
To my mind, this plausibly explains why fetal distress was not
adequately recognised when
it in all probability arose during the
earlier phases of labour leading to the crisis that developed
with the
HIE
insult to
LN.
Contrary to the
defendant’s supposition that
LN’s
injury did not
occur
intrapartum
and was unexpected, it was in all
probability due to the failure of
Sineka
to have
properly monitored the plaintiff and
LN’s
wellbeing,
consistently and in relation to a developing crisis, which
could have been averted by the fulfilment of the proper
objectives of
fetal monitoring.
[71]
The importance of the fetal monitoring in managing potential negative
outcomes is unquestionable
and, if nothing else, conceded by the
experts.
Dr Swan’s
ambivalence that there was no
‘
conclusive evidence’
of the fetal compromise in
the first stage does not exclude its existence as the evidence
established that
Sineka
neither monitored nor recorded the
fetal heart rate correctly during this period. The evidence
established that at 19h00 the plaintiff
was having strong
contractions, was 7cm dilated and subject to the monitoring and care
of
Sineka
until delivery and first examination of
LN.
[72]
To digress, the importance of establishing
the heart rate before , during and after a contraction
is because,
the fetus will exhibit a response to what has happened during the
course of the contraction, which it is
necessary to confirm its
wellbeing and oxygenation after the contraction. The monitoring after
a contraction is to recognize when
the fetus shows any evidence of
hypoxia relative to a uterine contraction which typically presents as
degenerative changes in the
fetal heart rate. Monitoring can be
performed by using a fetoscope or by way of electronic
monitoring (by CTG).
[73]
In any event, the fetal response to a
contraction is not simply a recording of the heart rate but
whether
the fetus can sustain a uterine contraction without showing a
cardiovascular response which is indicative of hypoxia during
that
event. This is the reason why the
Maternity Guidelines
stipulate the need to observe the heart rate before, during
and after the contraction to establish the fetal well-being.
The evidence of
Sineka
established that this critical
monitoring was absent predisposing the fetus to the risk of harm and
a negative outcome.
[74]
The
Maternity Guidelines
prescribe different processes of
monitoring during the various stages of labour. In the latent phase
of labour, when the contractions
are weak and relatively infrequent,
assessment intervals are to be longer. Once there is active labour is
reached the assessment
periods are shorter. During the second
stage of labour, when the mother becomes fully dilated at 10 cm, and
the frequency
of the observations increases even further.
[75]
The evidence of
Sineka
was somewhat disconcerting when asked
to explain when the active stage of labour is reached, particularly
considering the monitoring
prescripts that are indicated for the
different phases. It leaves one to ponder whether she possessed the
reasonable standard of
skill and knowledge to either monitor or
manage the labour of the plaintiff. Furthermore, her evidence seemed
to be that once the
plaintiff was fully dilated and waiting to be
transferred, she did not monitor her thereafter. This is unequivocal
negligence compounded
by the fact that on
Sineka
’s own
version, she was unaware of the prescripts of the
Maternity
Guidelines
and she was ‘
not taught that way’
.
This, in itself, is a frightening admission.
[76]
The necessity for fetal monitoring is obviously
because fetal oxygenation during labour is always at risk
as it is
inherently a hypoxic process regardless of the pregnancy risks.
Contractions that are too frequently or too strong,
may
interrupt the blood supply to the fetus causing it to become hypoxic
hence monitoring is designed to observe signs of evolving
fetal
hypoxia. Sineka’s evidence was that the plaintiff was having
strong contractions, all the more reason for copious monitoring
of
the fetal condition. The experts were
ad
idem
that
fetal distress and bradycardia are undeniable features in the
diagnosis of
HIE
at birth. The evidence, at the very, least demonstrates fetal
bradycardia and distress in the active phase even on
Sineka’s
questionable
methodology. This scenario reasonably establishes the timing of the
HIE
injury
suffered by
LN.
Analysis
of the versions
[77]
It is trite that where there are two mutually destructive
versions, the litigant
upon whom the onus rests must be
satisfy the court that its version is true and the other false
before the onus is
discharged.
[14]
Ultimately, the onus must be discharged on a balance of
probabilities firstly by considering the qualitative assessment
of the truth and/or inherent probabilities of the evidence of a
witness and secondly by assessing which of the two versions
is
the more probable.
[15]
[78]
The evidence of
Sineka
and its shortcomings have been referred
to
supra,
suffice to state that whilst she testified that she
had no independent recollection of the event and would be basing her
evidence
on the
maternity record
, she did not hesitate to
embellish her version when pressed for reasons relating to the
recording of the first examination of
LN
to add facts, such as
having woken up the baby, in an attempt to justify/explain her
recording. Her understanding of what was required
of her as a midwife
on the day in question leaves much to be desired and renders reliance
on her actions and recordings as parlous.
Lastly, the paucity of the
information on the maternity record combined with the errors and
blank pages is a cause of grave concern.
[79]
It deserves mention that despite the first examination indicating a
‘
sick’
baby with, at the very least mild
encephalopathy, the ‘
Discharge Check and Plan’
was
never completed and even the inscription of ‘
satis’
so
readily referred to by the defendant’s experts is
sans
time
or basis. Significantly,
Dr Keshave
conceded that further
evidence would be needed to establish the condition of
LN
after
the first examination.
[80]
It, regrettably, serves little purpose to refer to the
Maternity Guidelines
in reference to or analysing
Sineka’s
evidence as she admits not having knowledge of them and
accordingly failed to conform thereto. Whilst the
Maternity
Guidelines
incidentally spell out the standardised care expected
from doctors and nurses in respect of the management of mothers in
labour
and the delivery of their babies at state hospitals
applicable at the relevant time, it must be accepted by the court
that
these standards were not followed by
Sineka
. It is common
cause that these were the applicable guidelines and were admitted
without the need of proof.
[81]
The conduct of the defendant’s employees upon which the
plaintiff relies as constituting
the grounds of negligence, and thus
falling short of the standard of care reasonably expected from
medical practitioners and nursing
staff with appropriate obstetric
skill and knowledge, are set out in paragraph 11 of her particulars
of claim. It is specifically
pleaded that the plaintiff received
substandard care at the relevant times of providing medical services
to the plaintiff during
her labour and to
LN
postnatally.
[82]
None of the experts decry the reasonableness of fetal
monitoring specifically
aimed at assessing fetal distress and
this is consistent with the standard of reasonable care
outlined in the
Maternity Guidelines
. A failure to provide
such monitoring will undoubtedly constitute negligence. The experts
recognised a correlation between inadequate/failure
of monitoring of
the fetal heart rate and
HIE.
[83]
The plaintiff’s evidence was direct and credible relating to
the labour, birth and condition
of the
LN
after birth. There
is no reliable documentary evidence that challenges the version of
the plaintiff . The plaintiff is not required
to establish a causal
link with certainty but merely to establish that wrongful conduct was
probably the cause of loss upon a sensible
retrospective analysis.
Furthermore, where the plaintiff has presented evidence which of
itself raises, at the very least, a
prima facie
case of
negligence on the part of the defendant’s servants, an
obligation in the form of an evidential
onus
passes to the
defendant to rebut such
prima facie
case and to explain how
the injury came about. The defendant has dismally failed to discharge
this evidential onus.
[84]
Where the recordals in the maternity record made by the
servants of the defendant assist
the plaintiff and are prejudicial to
the defendant, they are regarded as admissions and admissible against
the defendant. Any entries
which are used to benefit the defendant
would need to be proved by those making them.
[16]
The entries, sparse as they are, are indicative of fetal distress,
bradycardia, the presence of meconium and a ‘
sick’
baby at the first examination. These entries, coupled with the lack
of completion of other records are admissions of the negligence
of
the defendant’s employees.
Conclusion
[85]
In considering the
evidence, the asphyxia caused by the inadequate and negligent
monitoring of the fetal heart rate during the labour
period is, on
the probabilities, the most plausible explanation for
LN’s
condition. This conduct is
undoubtedly substandard care at the hands of the defendant’s
employees. This negligent conduct
causally led to the hypoxic
ischemic encephalopathy suffered by
LN.
The failure on the part of such employees to foresee such harm and
their consequent failure to take any steps to guard against
its
occurrence, amounts to negligence on the part of such employees.
[86]
When considering the uncontroverted factual situation in its entirety
and more particularly,
the inadequate monitoring, this must
have indubitably have contributed to and been the causative
factor of the
resultant damage to
LN
.
This satisfies the ‘
but
for
’
test postulated in
Oppelt
v Department of Health, Western Cape
.
[17]
In
the circumstances, I find that the plaintiff has established that the
defendant is liable for any damages flowing as a consequence
of the
established negligence of the defendant’s employees as
aforementioned.
Costs
[87]
Lastly, there is the issue of costs to be determined by this court.
It is trite that the
court, when awarding costs, has a discretion
which is to be exercised judicially whilst considering the facts of
each case and
balancing fairness to both parties.
[88]
Plaintiff’s counsel rebuked the defendant as an organ of state
as having a constitutional obligation
to litigate responsibly and yet
coming to court without playing open cards with its own experts on
the facts. Accordingly,
counsel sought that this court award
attorney client costs on a measure of displeasure at the defendant’s
conduct. The issue
of costs was not fully ventilated by the parties
in argument.
[89]
Whilst I do not intend to deviate from the usual order that the costs
should follow the result,
it would be remiss of this court to remain
oblivious to the fact that the defendant presented evidence that was
largely lacking
in quality and ill-formulated.
[90]
I have outlined the admissions and agreements emanating from the
various pre-trial conferences
and the joint minutes as well as the
defendant’s plea to plaintiff’s claim. The
ineluctable conclusion is that
due and proper regard was neither
given by the defendant to the admissions, undisputed facts nor the
available evidence.
Frequently, the defendant’s experts
delivered their evidence without reference to these facts,
alternatively produced reports
that failed to address important
issues, compromising the quality of the evidence. The defendant was
bound by the agreements reached
at pre-trial stage and evinced in the
joint minutes.
[91]
The inescapable conclusion was the defendant’s experts were
repeatedly on the backfoot
when being apprised of the true factual
position during cross-examination and, despite gallant attempts at
fancy footwork to remain
consistent with their original narratives,
concessions central to the plaintiff’s case were forthcoming.
[92]
Significantly, the Constitutional Court in
MEC
for Health, Eastern Cape v Kirland Investments (Pty) Ltd
[18]
pointed
out that:
‘
[T]here
is a higher duty on the state to respect the law, to fulfil
procedural requirements and to tread respectfully when dealing
with
rights . . . . Government is not an indigent or bewildered litigant,
adrift on a sea of litigious uncertainty, to whom the
courts must
extend a procedure-circumventing lifeline.’
[93]
Furthermore, the Constitutional Court in
Ex
Parte Minister of Home Affairs
[19]
stated that:
‘
A
higher duty is imposed on public litigants, as the Constitution’s
principal agents, to respect the law, to fulfil procedural
requirements and to tread respectfully when dealing with rights’
[94]
Moreover, there is a duty upon the litigant, duly guided by the
expertise and ethical duties
of its legal representatives, to ensure
that cases are properly prepared and genuine arguable issues are
ventilated. Our
Constitutional Court further stated that:
‘
The
legitimacy of our judicial system, particularly the courts, will fall
into disrepute if shockingly poor conduct of litigation
… is
allowed to continue unchecked’
[20]
[95]
As a mark of displeasure, the Constitutional Court in
Ex
Parte Minister of Home Affairs
[21]
ordered
certain officials and legal representatives to pay a portion of the
litigation costs in their personal capacity.
[96]
Whilst I do not intend to make a punitive costs award particularly
since the issue of costs was
not fully addressed during argument, the
defendant is cautioned to ensure that litigation pursued before this
court is of an acceptable
standard thus avoiding fruitless and
wasteful expenditure which, given the defendant’s present
predicament, it can ill afford.
The litigation must be regarded
as a joint venture and effort by the defendant and its legal
representatives. Accordingly,
failure to litigate responsibly,
meritoriously and with the required circumspection may constitute
grounds for adverse and/or punitive
cost order as envisaged by the
Constitutional Court.
[97]
Accordingly, the following order is granted:
1.
The defendant is ordered to compensate the plaintiff in her
representative capacity
in respect of any and all damages proven or
agreed to have arisen from the Hypoxic Ischemic Encephalopathy
suffered by L[...] on
29/30 August 2002 and in respect of the
plaintiff in her personal capacity in respect of such proven damages
to which she is entitled
to in consequence of L[...] having sustained
the aforesaid injury.
2.
The plaintiff is declared a necessary witness.
3.
The defendant is ordered to pay the plaintiff’s costs of the
proceedings
in respect of the merits on a party and party scale ‘B’
such costs include:
3.1
the cost of two counsel;
3.2
the costs of and associated with all postponements of the matter and
all reserved costs;
3.3
the costs of the reports, qualifying expenses, costs associated with
joint minutes, reasonable
day reservation fees, travelling and
subsistence, and of supplementary reports of the witnesses:
3.3.1 Professor Lotz
3.3.2 Professor Gericke
3.3.3 Dr Redfern
3.3.4 Dr Ebrahim
4.
The costs of travelling and subsistence of the
plaintiff’s
legal representatives, and of the plaintiff, for
purposes of consultation and trial;
5.
Interest on costs at the legal rate from a date 14 days after date of
allocatur
to date of payment;
6.
The aforesaid costs are to be paid into the trust account of Messrs
Sakhela Incorporated.
The particulars are as follows:
Name of Account:
Sakhela Inc Attorneys
Bank:
First National Bank
Account No:
6[…]
Branch Code:
250109
S
A COLLETT
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For
the Plaintiff
:
Adv
Dugmore SC
with
Adv
Malunga
Instructed
by
:
Sakhela Inc
54
Stewart Drive
Baysville
EAST
LONDON
For
the Defendant
:
Adv
Mtshabe SC
with
Adv
Dukada
Instructed
by
: The
Office of the State Attorney
17
Fleet Street
Old
Spoornet Building
EAST
LONDON
Date
heard
: 17,
27 January 2023
4,
5, 6 December 2023
2,
3, 4, 5, 8, 9 April 2024
31
May 2024
Date
judgment delivered
: 19
July 2024
[1]
Volpe JJ. Neurology of the Newborn, 6
th
edition 2018
[2]
Conway,
J.M. et al
.
(2018) ‘Mild hypoxic encephalopathy and long term
neurodevelopment outcome – A systematic review’, Early
Human Development, 120, pp. 80 – 87. Doi:
10.1016/j.earlhumdev.2018.02.007.
Murray,
D. M et al.
(2016) “Early EEG Grade and Outcome at 5 Years After Mild
Neonatal Hypoxic Ischemic Encephalopathy’, PEDIATRICS,
138(4).
Doi: 10.1542/peds.2016-0659;
Prepunpong,
C et al
.
(2018) ‘Prospective research on infants with mild
encephalopathy: The PRIME study’, Journal of
Perinatology,
38)1), 99. 80 – 85. Doi: 10.1038/jp.2017.164.
[3]
See
Volpe 537
[4]
MEC for
Economic Affairs, Environment and Tourism, Eastern Cape v Kruizenga
2010(4)
SA 122 (SCA)
[5]
F &
I Advisors (Edms) Bpk v Eerste Nasionale Bank van Suidelike Afrika
Bpk
[1998] ZASCA 65
;
1999 (1) SA 515
(SCA) at 524 E-H
[6]
S
v M
1991
(2) SARC 91(t) AT 352
[7]
2023 (6) SA 408 (SCA)
[8]
MF v
Road accident fund
2023 (1) SA 52
para 35 SCA AT PARA [34] ;
JA
obo DMA v The Member of the Executive Council for
Health, Eastern Cape
,
[2022] 2 All SA 112(ECB)
;
2022 (3) SA 475
(ECB) para 12ff
[9]
2016(1)
SA 325 (CC)
[10]
Goliath
v MEC for Health, Eastern Cape
2015 (2) SA 90
SCA at par 8
[11]
Supra
at par
18
[12]
Supra
at par 19.
[13]
Minister
of Safety and Security v Duivenboden
2002 (6) SA 431
(SCA) at par [25].
[14]
See:
National
Employer’s Mutual General Insurance v Gany
1931 AD 187
at 199.
[15]
Selamolele
v Makhado
1988 (2) SA 372
(V) at 374
[16]
HN
v MEC for Health, KZN
(1287/2014)
[2018] ZAKZPHC 8 (4 April 2018) at paras [8] and [9]
[17]
2016 (1) SA 325
(CC) at para 48.
[18]
[2014] ZACC 6:
2014(3) SA 481 (CC); 2014(5) BCLK 547 (CC) at
para 82; see also
Khumalo
v Members of the Executive Council for Education; KwaZulu- Natal
[2013]
ZACC49; 2014(5) SA 519 (CC);
2014 (3) BCLR 333
(CC) at para 51
[19]
2024 (2) SA 58
(CC) para [95]
[20]
Ex
Parte Minister of Home Affairs Supra
para 110
[21]
2024(2) SA 58 (CC)