S v Beale (SS10/2021) [2025] ZAGPJHC 209 (4 March 2025)

1

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG


Case Number: SS10/2021



In the matter between:






In the matter between:


THE STATE

and

BEALE, PETER GORDON Accused

Criminal law -Fraud and Murder charges following surgery related death s- Intention
– dolus eventualis – Test for dolus eventualis restated - it is whether accused
subjectively foresaw the possibility of harm ensuing from his conduct, and whether he
reconciled himself to that possibility - dolus eventualis nor culpable homicide not
established - Circumstantial evidence – Insufficient proven facts .

JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES

4 March 2025 ________ _________________
DATE SIGNATURE
2
MUDAU, J

[1] The accused , Mr Peter Gordon Beale, a retired professor and paediatric
surgeon , is on trial before me and two assessors appointe d in terms of section
145(1)(b) of the Criminal Procedure Act 51 of 1977 ( “CPA”). The charges
against the accused arise from surgery -related proce dures on three distinct
occasions. The indictment consist s of five charges, namely three counts of
murder (cou nts 2,3, and 5) read with section 51(2) and Part II of Schedule 2 of
the Criminal Law Amendment Act 105 of 1997 (“CLAA”), as amended, as well
as two counts of fraud (counts 1 and 4).
[2] The allegations regarding count 1 of fraud are that , on or about 16 March 2012 ,
at or near Sandton, in the district of Johannesburg North, the accused
unlawfully and with the intention to de fraud, misrepresented to D[…] J[…] T[…]
(Mrs T[…] ), the biological mother of E[…] S[…] T[…] (E[…] /the deceased in
respect of count 2) , that the pathology results of a rectal biopsy obtained from
the deceased on 12 March 2012 at Park Lane Clinic by the accused confirmed
that E[…] had Hirschsprung ’s disease , necessitating surgical intervention in the
form of a rectal pull -through procedure. As a result, Mrs T[…] consented to the
procedure, acting to her and/or E[…] 's actual or potential prejudice . In truth and
in fact, at the time the accused made the misrepresentation, he knew that there
had been no confirmation of Hirschsprung’s disease in the rectal biopsy
obtained from E[…] on 12 March 2012 . Consequently , the rectal pull -through
procedure was neither necessary nor appropriate.
[3] The allegations regarding count 2 (murder ) are that , between 30 and
31 March 2012 , at or near Morningside Medi -Clinic in the district of
Johannesburg North, the accused unlawfully and intentionally cause d the death
of a three -year-old male child, E[…] S[…] T[…] .
[4] The allegations regarding count 3 (murder ) are that , on or about 29 July 2016 ,
at or near the Morningside Medi -Clinic in the district of Johannesburg North, the
accused unlawfully and intentionally cause d the death of a 21 -month-old female
child, A [..] S[…].
3
[5] The allegations regarding count 4 (fraud ) are that , between 10 September and
the 11 October 2019 , at or near the Parklane Netcare Clinic in the district of
Johannesburg Central, the accused unlawfully and with the intention to defraud,
misrepres ented to Ms Z […] V[…] (previously S […] - the biological mother of
Z[…] S[…]), Mr Mohammed S […] (the biol ogical father of Z […] S[…]), Z[…]
S[…] (the d eceased in respect of count 5) , and Dr J Kussel (Z […]'s
paediatrician) that the pathology result s of a distal oesophage al biopsy,
obtain ed from Z […] on 3 September 2019 by the accused , revealed tha t Z[…]
had intestinal metaplasia . As a result of this misrepresentation, Ms V […], Mr
S[…], Z[…] and Dr Kussel accept ed and believe d that the presence of intestinal
metaplasia necessitated a Laparoscopic Nissen Fundoplication procedure .
Consequently , Ms. V […] and Mr S […], to their and Z […]'s actual or potential
prejudice , consented to the procedure being performed on Z[…] by the
accused. In truth and in fact, at the time the accused made this
misrepresentation, he knew that there were no feat ures of intestinal metaplasia,
nor any signs of dysplasia or malignancy , in the distal oesophag eal biopsy
obtain ed from Z […] on 3 September 2019 . Therefore, the Laparoscopic Nissen
Fundoplication was neither necessary nor appropriate.
[6] Finally, the alleg ations regarding count 5 (murder ) are that , on or about
11 October 2019 , at or near the Parklane Netcare Clinic in the district of
Johannesburg Central, the accused unlawfully and intentionally cause d the
death of a ten-year-old male child, Z […] S[…].
[7] Adv EHF Le Roux and Adv SH Rubin represent the State , whereas the accused
is represented by Adv B Roux SC and Adv IP Green SC. The accused pleaded
not guilty to the charges. In terms of section 115 of the
Criminal Procedure Act 51 of 1977 (“CPA”) , he denie s the essential allegations
contained in the various charges. The accused provided the following
explanation for his pleas, which are set out in detail below.
[8] In relation to count 1, the accused explained that E[…] (“the deceased in count
2”) and his paren ts consulted him with a history of severe constipation , which
had persisted for 18 months and had not responded to conservative treatment.
E[…] had previously been treated by other medical practitioners, including Dr A
4
Eyal, a general surgeon, who ordered a barium enema study that suggested a
diagnosis of Hirschsprung ’s disease. Dr Eyal suspected this diagnosis , and the
barium enema study was made available to the accused . The deceased ’s
symptoms , along with the barium enema study , were consistent with
Hirschsprung ’s disease. On 12 March 2016, the accused performed a rectal
biopsy on the deceased. The biopsy specimen was sent to Lancet Laboratories
and analysed by Dr Anita Gildenhuys who telephonically informed the accused
that her examination revealed the a bsence of ganglion cells , which is consistent
with a diagnosis of Hirschsprung's disease. The accused then informed Mrs
Teubes accordingly.
[9] Subsequently , Dr Gildenhuys conducted further examinations of the biopsy
specimen , which revealed no ganglion cells at initial levels , but occasional
groups of ganglions cells at deeper levels. This finding , along with the
deceased's overall clinical presentation, symptoms and radiological findings,
was consistent with a diagnosis of a variant of Hirschsprung's disease. The
symptoms and treatment of Hirschsprung's disease and its variants are the
same , and the findings indicated the need for the surgical intervention that the
accused performed. He denied that he made a misrepresentation and intended
to defraud or prejudi ce Mrs Teubes and/or the deceased.
[10] In respect of count 2, he explained that on 30 March 2012, he performed a
rectal pull -through procedure on the deceased. The rectal pull -through
procedure was appropriately indicated and properly carried out. He denied th at
any of his actions in the rectal pull -through procedure or thereafter caused the
death of the deceased.
[11] In respect of count 3, A [..] S[…] (“the deceased in count 3 ”) was born with a
serious congenital defect which had required medical and surgical t reatment
throughout her life. The deceased presented with symptoms consistent with
GORD (gastro -oesophageal reflux disease) which required a surgical
procedure known as a Nissen Fundoplication. On 29 July 2016, he properly
performed this procedure on the d eceased and den ies that any of his actions
in the operative procedure or thereafter caused the deceased ’s death. It
5
subsequently transpired that the deceased suffered from an undiagnosed
myocarditis which compromised her cardiac function.
[12] In respect of cou nt 4, he explained that Z […] S[…] (“the deceased in count 5”)
had a longstanding history of reflux and vomiting , which became more frequent
and severe. The deceased had previously been treated conservatively by other
medical practitioners without succe ss. On 29 August 2019, the accused
consulte d with the deceased and Ms V […], examined the deceased , and
recommended a gastroscopy and biopsy as part of his workup. On
3 September 2019, he performed both procedures on the deceased. During the
gastroscopy , he observed that the portion of the oesophagus closest to the
stomach was red , inflamed , and exhibited a wavy or tongue -like appearance.
These findings were consistent with a diagnosis of GORD. The laboratory
report on the biopsy sample recorded:
“- Mild ch ronic oesophagitis, with inflamed squ amoglandular junction derived mucosa
observed.
- The morphologic features favour a reflux associated aetiology.
- No micro -organisms are identified... ”
which was also consistent with a di agnosis of GORD.
[13] The accused explain ed that he told Ms V […] that the results indicated the
presence of oesophagitis, which was consistent with his observations and
confirmed the presence of reflux. He accepts t hat he told Ms V […] that the
biopsy results had shown the presence of metaplasia which he believed to be
the case at the time. However, h e subsequently realised that he had misread
the biopsy results , which did not indicate the presence of metaplasia. He denied
intentionally misinforming Ms V […] about the metaplasia. At the time , he
believed that the deceased suffered from GORD and that the Nissen
Fundoplication was necessary based on t he following: the history provided by
Ms V […]; the deceased ’s non-response to Nexium treatment; his clinical
examination of the deceased; the biopsy r esults (apart from the metaplasia );
and his observations during the gastroscopy. He denied that he committed
fraud. He denied committing fraud, asserting that he genuinely believed the
deceased suffered from GORD and that the operation was indicated.
6
[14] In re spect of count 5, the accused explained that on 11 October 2019, he
properly performed a Nissen Fundoplication procedure on the deceased and
denies that any of his actions in the operative procedure or thereafter caused
the deceased ’s death. It later emerg ed that the deceased suffered from an
undiagnosed myocarditis , which compromised his cardiac function , and that
there was a missed anaesthetic complication.
[15] From the onset, the accused made formal admissions per (Exhibit A) that are
recorded in terms of se ction 220 of the CPA. Regarding counts 1 and 2 , the
accused freely and voluntarily admitted that he, being a paediatric surgeon in
practice, was consulted by M r and Mrs T[…] regarding E[…] ’s medical condition
on 29 February 2012 for the first time. On 12 M arch 2012 , the accused
performed a rectal biopsy on E […]. The specimen retrieved by the accused
during the rectal biopsy was dispatched to Lancet Laboratories where it was
examin ed by Dr Anita Gilden huys. E […] was admitted at the Morningside Medi -
Clinic on 29 March 2012 to undergo the rectal pull -through procedure on 30
March 2012.
[16] The accused performed the rectal pull -through procedure on 30 March 2012,
from 14h52 to 16h34. During the rectal pull -through procedure , the accused
excised a 12cm section of E […]'s rectum. E […] passed away on 3 April 2012
at 12h35. Dr Moeng conducted a postmortem on E […]s body and prepared a
report with reference number DR 554/2012. The accused does not admit the
truth, correctness or accuracy of the report prepared by Dr M oeng. The accused
agreed that the avai lable hospital records for E […]’s admission to Morningside
Medi -Clinic during 29 March to 3 April 2012 could be handed in as
Exhibit C1-154 but the accused did not admit the truth, accuracy, correctness
or completenes s of those hospital records.
[17] Regarding count 3, t he accused formally a dmitted that he consulted A […] and
Ms S […] on 13 July 2016. The accused told Ms S […] that the trea tment of
A[…]’s GORD could consist of a surgical procedure known as a Nissen
Fundoplication. A […] was admitted to the Morningside Medi -Clinic on
29 July 2016. The accused performed the Nissen Fundoplication procedure
from 15h35 to 18h48 on 29 July 2016. A[…] was taken to the recovery room at
7
approximately 18:50. A[…], although a little pale, breathed spontaneously, and
was initially sta ble in the recovery room. A […] was declared dead at 20h57 on
29 July 2016.
[18] The accused formally admitted that the body of A […] sustained no further
injuries from the time of her passing until a postmortem was conducted
thereupon. Doctor Hestelle Nel (now van Staden) conducted a postmortem
examination on t he body of A […] on 1 August 2016 , and recorded her findings
on a form GW7/15 with serial number DR1671/2016 and deposed to an
accompanying affidavit, both of which were admitted as Exhibits E1 and E2 .
The accused agreed that the avail able hospital records for A […]'s admission to
Morningside Medi -Clinic on 29 July 2016 could be marked Exhibit F1–74 but
did not admit the truth, accuracy, corr ectness or completeness of those hospital
records.
[19] Regarding counts 4 and 5, the accused formally admitted that, in attempts to
obtain relief from the reflux and vomiting, Z […] consulted Dr J Kussel, a
paediatrician ; Dr R Khan, a specialist paediatric p ulmonologist ; and
Dr P Walabh, a paediatric gastroenterologist. The accused, being a paediatric
surgeon, was consulted by Ms V […] and Z […] on 29 August 2019 for the first
time. The accused performed a distal oesophageal biopsy procedure on Z[…]
on 3 September 2019. The specimen retrieved by the accused during the
procedure was dispatched to Lancet Laboratories , where it was examined by
Dr Charlotte Ray. Dr Ray signed off her final and only report on the specimen ,
designated as specimen number 19: LP0 67414, on 10 September 2019. This
report forms part of Exhibit J109.
[20] The accused formally admitted that Z[…] was admitted to Park Lane Clinic on
9 October 2019 and discharged on 10 October 2019. He was re -admitted on
11 October 2019 for a Nissen Fundopl ication. The procedure began at 14h45,
and the accused performed the surgery. Z[…] was transferred to the recovery
room at approximately 18:46. After Dr Munshi re -intubated Z […], he suffered a
cardiac arrest, and t he accused assisted in resuscitati on efforts . The accused
admitt ed that Z […] passed away at approximately 22h30 on 11 October 2019.
8
[21] The accused formally admitted that t he body of Z […] sustained no further
injuries from the time of his passing until a postmortem was conducted
thereupon. The accused admitted that Dr Vergie p erformed a postmortem o n
Z[…]'s body and prepared a report with reference number DR 2734/2019. The
accused agreed to Dr Vergie's postmortem report and her affidavit being
handed in as Exhibits H1 and H2 respectively . The accused did not admit the
truth, correctness or accuracy of Dr Vergie ’s report and her affidavit .
[22] The accused agreed that the availab le hospit al records for Z […]’s admissions
to Parklane Clinic on 9 and 11 October 2019 could be handed in as Exhibi t J1-
133 but did not admit the ir truth, accuracy, correctness or completeness. He
admitted the authenticity of the patient file kept by Dr A Munshi and agreed it
could be submitted as Exhibit K. He also admitted that Annexure ZS of A21 is
a transcript of a conversation between him and Ms V[…] and that it could be
handed in as Exhibit P. Additionally, he admitted the authenticity of the patient
files kept by Drs Kussel, Khan, and Walabh regarding their patient, Z […] S[…],
which were submitted as Exhibit s Q, R, and S, respectively .
[23] The accused made further formal admissions in terms of section 220 of the
CPA. He admitted that between the period 3 April 2008 and 20 February 2009,
he invested a total of R2 204 000,00 (two million , two hundred and four
thous and Rand) in an investment colloquially known as the Frankel Scheme,
which was promoted by , amongst others, Mr Barry Tannenbaum
(“the Investment /Tannenbaum Scheme ”).
[24] The accused admitted that during that period , he received payments from the
Investment, R8 0 000,00 of which had to be returned to the liquidators of the
Frankel Scheme in terms of section 29 of the Insolvency Act 24 of 1936. His
net loss on the Investment was R1 564 000,00 (one million , five hundred and
sixty-four thousand Rand). The State contends that this financial loss motivated
the accused to perform unnecessary surgeries to recover his losses from the
Tannenbaum Scheme.
[25] This Court has heard both factual and expert evidence. A summary of the
evidence follows.
9

E[…]’s Case
[26] The summar y of E[ …]'s case follows hereunder. His mother, Mrs T[…] , testified
for the State. E[…] and his twin brother , L[…] , were born prematurely on
29 March 2009. The following facts are largely common cause. At 18 months ,
E[…] began suffering from constipation , which p rogressively worsened . His
condition was accompanied by bouts of abdominal pain , and he would stop
eating. From the time E[…] and Liam started eating solids at 18 months, E[…]
lagged behind his brother in growth . E[…] was treated for constipation by a
paed iatrician on two occasions and had also been seen by his general
practitioner. By October 2011 , E[…] weighed 12kg , and by the time of the
operation four months later, he had gained only 0.2 kg . In their effort s to
manage his condition, E[…] ’s parents consu lted multiple doctors, tried
over-the-counter medications, implemented dietary changes, and sought help
from a homeopath. They used suppositories and attempted an experimental
fibre diet.
[27] The efforts by E[…] 's parents to deal with his constipation had some effect, but
not enough, and the problem resumed. Matters reached crisis proportions on
Sunday, 19 February 2012. That morning , E[…] woke up complaining of pain.
His condition was concerning enough that his parents took him to their general
practitioner , Dr Mohammed, despite it being a Sunday. Dr Mohammed ,
recognising the severity of E[…] ’s condition, referred him to Dr Eyal, a specialist
surgeon. Dr Eyal ordered an abdominal x-ray and administered an enema , but
the enema had no effect . Dr Eyal then ordered a barium enema examination.
[28] The barium enema report (CL7) stated , “[f]indings are suspicious for
Hirschsprung's disease. Please correlate with rectal biopsy. ” Based on these
findings , Dr Eyal informed E[…] 's parents that there may be a surgical solution
to his constipation. He explained the possibility of surgery and referred them to
Dr Mapunda. However, f or reasons not provided by E[…] 's parents , they did
not consult Dr Mapunda and instead sought the opinion of the accused.
10
[29] It is common cause that the acc used first saw E[…] on 29 February 2012 at his
rooms in the Parklane Clinic. The consultation was attended by E[…] , his twin
brother L[…] , and their parents. Liam served as a useful comparison for the
accused in asses sing E [..]’s development and condition . At 36 months old, E[…]
weighed only 12.2kg, placing him in the 8th to 10th percentile. He was 2kg
lighter than his twin brother. During her testimony, Mrs T[…] presented a
collection of 12 photographs, marked as Exhibit ZZK1 -12, depicting the twins
from i nfancy up to a week before E[…] ’s passing.
[30] It is common cause that Mrs T[…] provided E[…] ’s medical history during the
consultation . As previously indicated, E[…] had suffered from constipation from
18 months of age , and various conservative treatment s had been attempted .
According to her version, they had only one consultation with the accused,
which lasted approximately 15 minutes. Apart from the phone calls on 16 March
2012 , when the accused informed her that E[…] had Hirschsprung's disease,
and another call before E[…] ’s admission on 29 march 2012, their
communication was limited. She also recalled a brief conversation with the
accused on the morning of 30 March, a few hours before the operation.
[31] In her testimony, Mrs T[…] was adamant that the accus ed ne ver properly
examined E[…] during their first consultation. From the time of that consultation
until the day of the operation, it was never explained to her that other conditions ,
such as hypoganglionosis or intestinal neuronal dysplasia (IND), could mimic
Hirschsprung's disease. She testified that if the accused had informed her that
E[…] did not have Hirschsprung's disease , she would have had a choice to
consult other doctors and possibly considered alternative options. She further
stated that she ultimat ely signed the consent form under pressure , as she did
not want E[…] to suffer any further. According to her, she “ consented ” to the
operation because she was falsely led to believe that E[…] had Hirschsprung’s
Disease .
[32] Whilst providing E[…]'s medical hist ory, Mrs T[…] mentioned Dr Eyal , who had
ordered abdominal x -rays and a barium enema examination. She had the
radiologists ’ reports and the x -ray film with her. The x -ray report indicated faecal
loading but no bowel obstruction. The barium enema report not ed that the
11
results were suspicious for Hirschsprung’s Disease and recommended a rectal
biopsy.
[33] As previously indicated, E[…] was admitted to the Morningside Clinic on
29 March 2012 and was taken to theatre at approximately 14h00. According to
the hospital records , the surgery lasted from 14h52 to 16h34. Exhibit ZD is an
animated representation of the procedure performed on E[…] subject to two
qualifications :
a. The video depicts cauterisations of the mesenteric vessels , whereas the
accused clamped the vessel, placed ties on both sides , and then divided
it. The ties used by the accused were made of vicryl, a suture material.
b. E[…] was positioned on his back with his legs up during the procedure ,
whereas the video depicts the patient face down with buttocks up.
[34] The assistant surgeon was Dr Milan Gopal , and t he anaesthetist was
Dr Lynda Blesovsky. After the operation , the accused met Mr and Mrs T[…]
outside the theatre. The accused informed them that the procedure had gone
well, that E[…] was in the recovery room , and that he would be transferred t o
the ward. Whil e E[…] was in the ward , Mrs T[…] testified that he already had a
distended stomach by the time the accused did his rounds at 19:30. When s he
questioned this, the accused attributed it to trapped gas followi ng the
procedure.
[35] There is a dispute regarding the quantity of water that Mr s T[…] was told E[…]
could be given . Mrs T[…] stated that the accused told her E[…] could drink
without any restriction on quantity. She estimated his fluid intake at
approximately 100ml from a 300ml NUK bottle. She te stified that she did not
give E[…] a large amount of fluid but clarified that she gave him apple juice , not
water. During cross -examin ation, she challenged the meaning of “ small sips ”
and was non -committal when asked whether she understood that E[…] could
have as much fluid as he wanted. We return to this aspect later in the judgment.
[36] The events of the evening of 30 March 2012 are best determined from the
hospital records. In this regard, t he State presented the evidenc e of
12
Nurse Pretty Mankoe , who was then an enrolled nurse assisting Sister Charity
Hines, who oversaw the ward that night. Nurse Mankoe’s role was to record
observations and report to Sister Hines. The hospital records serve as a
contemporaneous recordal of events . While they may not capture ever y detail ,
as later became apparent, and whil e the times tamps may not be precisely
accurate, they provide the most reliable evidence of what transpired that
evening. For this reason, it is convenient to consider the e vents of the
30 March 2012 into the morning of 1 April 2012 , with reference to the hospital
records.
[37] The relevant hospital records include t he nursing notes for the evening of
30 March 2012 and the observation chart. Each of these documents was dealt
with during the cross -examination of Nurse Mankoe . These records were also
addressed during Nurse Mankoe’s testimony on behalf of the State.
[38] E[…] returned to the ward at 17:00 and was fully awake. No observations were
recorded at that time . At 17:30 , E[…] was g iven pain medication as prescribed ,
but no observations were recorded . At 18:00 , E[…] was sleeping , with no
observations recorded . At 18:15 , his dri p was running well with no redness. The
observations , recorded at 18:13 , noted that E[…] 's respiration rate was 34, his
oxygen saturation was 92 % on room air, his pulse rate was 130, and his
temperature was 36.3 °C. At 18:30 , E[…] vomited after being given medication
but no observations were recorded . At 18:35 , E[…] soiled his nappy , with no
observations recorded . At 18:46 , Dr Blesovsky was telephoned, and it was
reported to her that E[..] had vomited . Dr Blesovsky advised the nurses that
there was no cause for concern . At 19:05 , observations were recorded : oxygen
saturation was 90 % on room air, pulse rate was 165 , and his temperature was
36.2°C. At 19:20 , E[…] appeared pale, and his oxygen saturation ranged
between 88-90% on room air.
[39] E[…] was then placed on 2 liters of oxygen. At 19:20 , observations were
recorded : his respiration rate was 36, oxygen saturation wa s 98% on 2 liters of
oxygen, and his temperature was 37 °C. Importantly, the pulse rate entry of 175
was annotated as “wrong entry ”. Nurse Mankoe stated that she made this
annotation to indicate that she had mistakenly recorded the respiration rate at
13
19:20 and that it should have been entered in the next column at 20:30.
Significantly , there is no indication that E[…] 's respiration rate was elevated
when he was seen by Dr Blesovsky and the accused at 19:30.
[40] At 19:30 , E[…] was seen by Dr Blesovsky and shortl y thereafter by the accused .
The entry regarding Dr Blesovsky ’s assessment is recorded under the 20:30
timestamp and annotated as a “ late entry ”. Dr Blesovsky instructed the nursing
staff to “observe patient closely ”. At 19:30 , the accused ordered a full b lood
count and prescribed Val oron drops , an analgesic. At 20:15 , E[…] was reported
to be dyspnoeic, with flared nostrils . He was placed in the Fowler ’s position.
There is no nursing note for 20:30 , as this was the late entry for Dr Blesovsky ’s
assessment . The observations at 20:30 recorded that E[…]’s respiration rate
was 38, oxygen saturation was 97 % on 2 liters of oxygen, pulse rate was 175,
and his temperature was 37.1°C. At 21:30 , the nursing notes recorded only
E[…] 's vital signs , which matched the re adings on the observation chart :
respiration rate was 40, his oxygen saturation was 100 % on 2 liters of oxygen,
pulse rate was 166 , and temperature was 37 °C.
[41] At 21:50 , Sister Hines telephoned the accused to inform him of the full blood
count test results he had ordered. She reported that E[…] ’s haemoglobin level
was 10.9 , which the accused did not find concerning . It is common cause that
this was the last communication with the accused until he was telephoned by
Sister Hines at 04:26 on 31 March 2012.
[42] At 22 :30, E[…] was intermittently asleep . His abdomen was distended , and he
was tachypneic. The nursing notes record a pyrexia of 38.4 °C, and a blanket
was removed from him. His observations showed a respiration rate of 36,
oxygen saturation of 99% on 2 liters of oxygen, a pulse rate of 176, and a
temperature of 38°C. Despite the deteriorating trend in E[…] 's vital signs, the
nurses did not inform the accused or Dr Blesovsky, nor did they contact
Dr Obor , the paediatrician on call.
[43] At 23:00 , the nursing notes re corded that medication , including Perfalgan, was
administered to E[…] . Perfalgan is paracetamol , which would have treated
E[…]'s pyrexia. E[…] was also given Augmentin , a broad -spectrum antibiotic ,
14
routinely prescribed following abdominal surgery. Normally this would have
controlled an infection. At 24:00 , the nursing notes record ed that E[…] 's
temperature was re -checked and the results were reported by Nur se Mankoe
to Sister Hines. E[…] 's observations showed a respiratory rate of 48, oxygen
saturation of 100%, a pulse rate of 180, and a temperature of 38.4°C. At 01:00 ,
the nursing notes report ed that E […] appeared to be sleeping and breathing
well.
[44] At 01:30 , E[…] 's observations showed a respiratory rate of 44, oxygen
saturation of 99%, a pulse rate of 190 and a temperature of 37.1°C. The drop
in temperature may have been the effect of the Perfalgan. At 02:00 , the nursing
notes record ed that E[…] was in pain , scored as 6/10 , and was given Val oron
drops. At 03:00, the nursing notes record ed that E[…] was stil l complaining of
pain and was tachypneic and tachycardic. His pulse was noted as 168 , and his
respiration is 48. E[…] 's observations at this time showed a respiratory rate of
66, oxygen saturation of 96%, a pulse rate of 198, and a temperature of 38.4°C.
At 04:00 , the nursing notes record ed that E[…] was awake , complaining of
abdominal pain , and that his abdomen was distended. He was also noted to be
tachypneic and tachycardic and appeared disorientated. The notes indicate that
the accused was telephoned ; however, it is accepted that the recorded time is
incorrect . It is common cause that the accused was only telephoned at 04 :26.
[45] When the accused was telephoned, he was informed that E[…] ’s abdomen was
distended , and he instructed Sister Hines to inse rt a nas ogastric tube into
E[…] 's stomach. The accused also ordered an abdominal x -ray. The note
recording the accused's instruction to insert the nasogastric tube is
timestamped 04:10 on the nursing notes . At 04:20 , the nursing notes record ed
that the nasogastric tube was inserted, and 250 ml of light brown fluid was
drained, which is consistent with the entry on the fluid balance chart.
[46] At 04:30 , E[…] 's observations showed a respiratory rate of 64, his oxygen
saturation of 98%, a pulse rate of 168, and a temperat ure of 39.4°C. There is
no note in the nursing records for 04:30. At 04:40 , the nursing notes record ed
that E[…] convulsed , and the accused was notified. The telephone records
show that this call was made to the accused at 04:58 , and he stated it was
15
made while he was on his way to the hospital. At 04:44 , the nursing notes
record ed that the accused prescribed Valium for the seizure. Other nursing
notes for 05:00. record that a “code blue ” was activated, that E[…] stopped
convulsing, that Dr Karen from ICU h ad seen E[…] but did nothing to him , and
that E[…] was seen by the Emergency Room doctor and a chest and abdominal
x-ray was carried out. This is the x -ray the accused had ordered. The State
concede s that, in this case, there can be little doubt that Siste r Charity Hines
should have acted sooner rather than later.
[47] Dr Nancy Obor testified and confirmed that she was on call at the Morningside
Medi -Clinic on 31 March 2012 when she received a telephone call from the
accused at approximately 06 :00, request ing that she assess E[…] . She was
briefly informed that E[…] had under gone a distal rectal dissection for the
treatment of Hirschsprung’s Disease on the evening of 30 March 2012.The
accused advised her that the deceased was in marked respiratory distress ,
which he suspected was due to aspiration of oral fluids administered contrary
to his instructions. She examined E[…] , who was in the general ward, at
approximately 06 :10 in the presence of his parents and grandparents. On
examination , E[…] appeared pale, cold , and clammy to the touch. She testified
that his abdomen was distended but not tense , and appeared to be filled with
air; however , with no bowel sounds detected.
[48] Neurologically, E[…] was floppy and moribund. He was not opening his eyes
spontaneously. E[…] ’s vital signs were also abnormal: his oxygen saturation
levels on the monitors were 87% and his heart rate was 196 beats per minute.
Additionally , E[…] ’s pulse was not palpable on his wrists or feet , and a blood
pressure reading was therefore not detectable. It was apparent that the
deceased was in hypovolaemic shock and in severe respiratory distress by the
time that Dr Obor arrived at the general ward, approximately ten minutes after
she received the call from the accused. She immediately commenced
resuscit ation by increasing the oxygen flow to 8ml per minute , and the
saturations improved after the increase in oxygen.
[49] Dr Obor further reviewed a chest x -ray taken at approximately 05 :30. The x -ray
revealed a gas bubble in the abdomen and a markedly distended l oop of bowel
16
crossing the abdomen. Gas was also detected within the distal bowel. At the
time, the nasogastric tube was visualised in the midline of the chest, but the tip
was not visualised in the abdomen. She wheeled E[…] , with the assistance of
Nurse Mankoe and a porter , to the ICU ward , even though the ICU bed was not
yet available.
[50] E[..] was admitted in the ICU at approximately 07 :15. Dr Obor intubated him on
arrival at the ICU. The x -ray taken at 08 :43 shows the presence of an
endotracheal tube , confi rming that E […] was intubated. This is consistent with
Dr Obor's note , which she timestamped as 07:15. She remained at the E[…] ’s
bedside , monitoring his condition and making relevant adjustments to his
treatment. It is undisputed that at approximately 09 :00, E[…] suffered a cardiac
arrest.
[51] At the Morningside Clinic, there is a dedicated resuscitation team known as
“Code Blue ”. They were immediately contacted. By 09 :09, the deceased was
already intubated and bagged, with chest compressions being performed by
Dr Piakowski. A few minutes later , at 09 :11, Dr Gottlich arrived to assist with
the resuscitation.
[52] Prior to the cardiac arrest at 09:00 , E[…] had shown some improvement, and
his ventilation seemed to be acceptable. According to Dr Obor’s version, the
blood results collected at 09:18 were drawn before the arrest . The blood results
were indicative of severe sepsis and/or bacterial infection. Shortly before 09 :30,
the E[…] ’s heart rate started dropping again; resuscitation was commenced
immediately. E[…] , however , had a sustained bradycardia followed by a second
cardiac arrest. Dr Gottlich was present during this resuscitation, and they
alternated between chest compressions and bagging. The nursing notes
describe the second cardiac arrest as “more respirato ry as (endotracheal tube)
was not in the correct place ”.
[53] Dr Obor contacted the accused for assistance . During the resuscitation, she
noted that there was poor air entry to the chest and reduced chest movements.
She then re -sited the endotracheal tube to as certain whether the poor response
was due to the tube being dislodged during resuscitation. There was still no
17
response to the resuscitation. It is common cause that when the accused
arrived in the ICU during the resuscitation following the second cardiac arrest,
Dr Gottlich asked the accused to check E[…] 's airway, which he did using a
laryngoscope. The endotrac heal tube was inserted into E[…] 's oesophagus and
not his trachea. The accused , as a result , re-sited the endotracheal tube into
E[…] 's trachea. It is this endotracheal tube that is shown on the x -ray taken at
10:43, which is slightly too deep , with its end going into the origin of the right
main bronchus.
[54] By 1 April 2012, E[…] remained in intractable shock and was passing minimal
urine despite medic al interventions. His abdomen was distended with free fluid
in the abdominal cavity. He was comatose (Glasgow coma scale of 3/15) and
unresponsive , with fixed dilated pupils. His blood sugar continued to drop, and
he failed to maintain body temperature eve n after gradual rewarming. By
2 April 2012, E[…] remained in critical condition. His respiratory status was still
poor, with oxygen saturation levels at 75%. His kidney function continued to
deteriorate. By 3 April 2012, E[…] ’s clinical condition remained critical, with no
significant improvements. There was no spontaneous respiration. His pupils
were fixed , dilated , and he was unresponsive. His abdomen was silent and
continued to drain fluid. E[…] ’s parents , therefore , opted to make the difficult
decision to withdraw treatment .
[55] It is common cause that E[..] was certified dead at 12 :35 on 3 April 2012.
Dr Obor opined that E[…] died of peritonitis, not pulmonary pneumonitis. She
testified that aspiration would not cause infection, and certainly not cause
bacteria to grow in the abdominal cavity. She testified further that E[…] should
have been admitted to the ICU after the operation, given that he had undergone
a major surgery. The hospital's policy was adjusted afterwards with respect to
paediatric surgical c ases.
[56] However, during the cross examination of Dr Obor, she conceded that E[…]
was found to be brain dead following several investigations , and it was on that
basis that his medical team recommended that life support be withdrawn. From
the evidence, it wou ld seem the brain damage had been sustained during the
resuscitation following the 09:30 cardiac arrest , when E[…] was intubated into
18
his oesophagus, which would have resulted in him being deprived of effective
ventilation for a considerable period.
The Po st-mortem of E[…]
[57] The State argued tha t there was a defect in the surgery and that the defect is
evidenced by the post -mortem observations of Dr Moeng. In her report ,
Dr Moeng states:
“Intestine and Mesentery : Show evidence of surgery across the rectum, ev ident on
internal examination. The sutures appear loose, with no tightly adequate
approximation of the wound edges. There is an organizing haematoma in the surgical
area across the rectum, revealing a 25mm unsutured defect, just below the suture line.
There is a fibrino -purulent exudate in the area of the surgery. The intestinal contents
are yellow and gelatinous, with no formed stools .”
It must be recalled that the State did not call Dr Moeng as a witness and sought
to explain that through the investigatin g officer , W/O Chris Muller, who testified
that he could not locate her.
[58] The State presented the evidence of Professor Banieghbal about a
conversation that he had with the accused at a conference in support of the
allegation s of fraud and murder charges . In this regard , Professor Banieghbal
says that the accused raised the losses he had suffered in the Tannenbaum
Scheme and suggested that he would even act as an assistant surgeon. This
statement was deposed to in October 2023 and deals with a conversation t hat
is alleged to have taken place in June 2009. The discussion that
Professor Banieghbal referred to took place on the first night of a conference in
Austria, at a social gathering where food and alcohol were served.
[59] According to Professor Banieghbal, the accused said that he would even assist
other surgeons to recoup his losses. However, in cross -examination, when it
was proposed that this could not have been seriously intended ,
Professor Banieghbal acknowledged that both he and the accused would have
had a drink in hand at the time of the conversation . It was two colleagues having
a social chat at a welcoming function at a convention. When this was put to
Professor Banieghbal , he said, “[i]t is quite possible, but l remembered because
19
of this unusual comm ent about assisting other surgeon [s] in private practice,
not in government hospital [s].”
[60] Regarding E…] , he testified that he reviewed the hospital records and the two
histology reports of Gildenhuys and Harrison , concluding that E[…] did not have
Hirschsp rung's disease or hypoganglionosis and, therefore, did not require the
rectal pull -through procedure performed by the accused. In coming to this
conclusion, he had access to the complete police docket regarding this matter,
specifically Exhibit D2. He opin ed, as per exhibit D2 and in his oral evidence ,
that the accused “ignored a normal rectal biopsy report and embarked on a
complex and complicated operation for a non -existing disease while convincing
the parents that the procedure was relatively simple. Th e outcome of this
decision was fatal for his patient ”. Further he stated that “surgery was
unnecessary”, but the accused “ignored the rectal biopsy result to secure a
monetary reimbursement. The less likely alternative is that [the accused ] was
mentally un stable and on heavy sedation impairing his clinical judgement at that
period”.
[61] The State was constrained to concede that Prof Banieghbal's testimony was
not without criticism. During cross -exam ination regarding E[…] , Banieghbal
made several concessions , which impacted his evidence in chief. For example,
he conceded that his approach to Hirschsprung ’s, it’s diagnosis , and treatment
may be simplistic — either you have it, or you don’t, which was his “approach”.
He then suggested his approach was the approach o f most paediatric
surgeons. Prof Banieghbal conceded that there may well be other paediatric
surgeons who have a different opinion.
[62] Prof Banieghbal conceded that , whereas he has a personal preference that
differs from the paediatric surgeon who considers a variant of Hirschsprung's,
he was in no position to say that one or the other is correct or incorrect. In
summary, he conceded that, there is a group of paediatric surgeons who, when
exercising their clinical judgment , would reas onably have concluded that E[…]
suffered from a functional disease that required surgery to treat it. He was also
constrained to concede the existence of a body of literature that deals with
variants of Hirschsprung's disease , authored by experts in the field.
20
[63] In addition, he conce ded, upon confrontation with the Prem Puri article on
variants of Hirschsprung ’s1, that a biopsy should be approached with caution.
He testified that the volume of fluid drained from the stomach, even if one
accept s that it is around 500ml, although excess ive, is not unusual. Importantly,
during cross -examination following his criticism of the surgery, when asked if
his evidence on the surgery should be ignored until Dr Moeng had explained
her report, he said “yes”.
[64] It is common cause that, in E[…] 's case , proceedings took place before the
Health Professions Council of South Africa ( “HPCSA ”), the body established to
assess the conduct of doctors . These proceedings involved charges against
the accused relating to informed consent, the indication for surgery , and the
post-operative treatment. Notably , the accused was found not guilty on these
charges, a conclusion with which Professor Banieghbal, who served on the
panel, agreed. During cross -examination, Professor Banieghbal conceded that
he had not received an y new or additional facts in this trial that were not
available at the HPSCA hearing. He further conceded that, based on this, his
opinion as expressed in the HPCSA finding ought not to change as he sought
to do in this tr ial.
[65] Dr Paula Eyal (Exh ibit ZE) al so testified in E[…] ’s case. At the request of
Mr Teubes, she re -examined the specimens previously assessed by
Dr Gildenhuys and Dr Harrison. In her expert opinion, neither the original rectal
biopsy nor the subsequent rectal resection specimen exhibited features
consistent with Hirschsprung’s Disease or any other disorder. Significantly ,
during cross -examination, Dr Eyal conceded that it is entirely possible for two
pathologists to reach differing conclusions when assessing a biopsy, a
phenomenon recognise d as inter -observer variability.
The Accused’s Training and Experience (as per Exhibit ZZP )
[66] The accused was born on 5 August 1946 and was 77 years old at the time of
his testimony. He was 73 at t he time of Z […] S[…]’s death , 69 at the t ime of

1 Prem Puri & Jan -Hendrik Gosemann, Variants of Hirschsprung Disease , Seminars in Pediatric Surgery
(Nov. 2012).
21
A[…] S[…]’s death, and 65 at the time of E[…] T[…] ’ death . In 1970 , he
graduated with an MBChB degree from the University of Pretoria Medical
School. During the first six months of 1971, he was an intern in the surgery
department at what is now Steve Biko Hosp ital. In the second half of 1971, he
interned at Baragwanath Hospital in the Obstetrics and Gynaecology
department. In the first six months of 1972 , he served as a senior intern in
Internal Medicine at Steve Biko Hospital, and in the latter half of the yea r, he
was a senior house officer in Surgery and Neurosurgery.
[67] In 1973, the accused was appointed as a registrar in general surgery in the
Surgery Department at the University of Pretoria , rotating between Steve Biko
and Kalafong Hospitals. At the end of 19 77, he wrote the College of Medicine
exams for surgeons and qualified as a Fellow of the College of Surgeons of
South Africa (FCS SA), followed by the MMed ( Surgery) exam at the University
of Pretoria. He also wrote the surgical examinations in Edinburgh, Scotland,
and was admitted as a Fellow of the Royal College of Surgeons Edinburgh,
(FRCS Edinburgh).
[68] In 1978, he joined the University of the Free State as a consultant in the General
Surgery Department and was eventually appointed as the head of a general
surgery unit. He was assigned responsibility for paediatric surgery. During his
18-month s tenure at the University of the Free State , he also worked at
Universitas and Pel onomi Hospitals. During this period, he performed and
taught both general and paedia tric surgery. In July 1979, he joined the
University of the Witwatersrand as a senior registrar in paediatric surgery ,
provid ing services at Charlotte Maxeke Hospital, Baragwanath Hospital and
Rahima Moosa Mother and Child Hospital . During this period, he performed
Nissen Fundoplication operations, which were conducted as open surgical
procedures , as endoscopic surgery was not yet available . The accused has
been performing Nissen procedures on paediatric patients since 1979.
[69] From January to July 1981, he worked as a senior clinical resident at the
Children's Hospital in Seattle, United States, where he gained additional
experience in paediatric surgery, completing the requirements for registration
as a paediatric surgeon with the HPCSA. In July 1981, he retu rned to the
22
University of the Witwatersrand and was employed as a junior consultant in the
Paediatric Surgery Department on what is known as the “Wits Circuit ”, which
included the Charlotte Maxeke Johannesburg Academic Hospital,
Helen Joseph Hospital, Rahi ma Moosa Mother and Child Hospital, and
Chris Hani Baragwanath Hospital . During this period, his primary focus was
children's surgery , but he was also involved in the Wits transplant unit ,
performing renal transplants in both children and adults. He remain ed a
member of the transplant unit for 30 years , during which he performed
approximately 1500 renal transplants , 360 of which were in children.
[70] In March 1983, the accused was appointed as a Senior Consultant in the
Department of Paediatric Surgery. In Marc h 1992, he was appointed as a
Principal Specialist in Paediatric Surgery and was later appointed as the Head
of the Department . In January 2002, he was appointed as an Adjunct Professor
in the School of Medicine, specialising in paediatric surgery. From
December 2004 to September 2013, he served as t he Chief Specialist in the
Department of Paediatric Surgery and was actively involved in surgical
procedures on a daily basis . In his capacity as Head of the Department , he was
also responsible for teaching and training.
[71] Given his ongoing academic involvement, the accused also served as the
convenor of the paediatric surgery examinations in Johannesburg and was
appointed as an examiner at the College of Medicine for paediatric surgeons .
Over the years , he has presented numerous academic papers at both local and
international conferences and congresses. In 2007, he received an award from
the HPCSA in recognition of excellence in healthcare.
[72] Around 1990 , he commenced what is he termed as a “limited private practice ”.
Upon retiring f rom the University of the Witwatersrand at the age of 67 , he
continued his private practice.
The Accused’s Version in Respect of E[…]
[73] According to the accused, after examining E[…] , he informed E[…] 's parents
that his clinical assessment w as consistent with the possibility of Hirschsprung's
disease. He explained that Hirschsprung's disease is a condition where nerves
23
are absent in the distal part of the bowel , preventing it from working properly
and causing functional constipation. He further explained the treatment of
Hirschsprung's disease to E[…] ’s parents. He explained that the procedure was
known as a short segment trans -anal endorectal pull -through , which involved
cutting the bowel and pulling the upper section of normal bowel down to the
anus. He also explained the main risks of the procedure, including the
possibility of a leak, which he said might seldom occur and infection.
[74] The biopsy was performed on 12 March 2012 , at Linksfield Hospital without
complications. During the procedure , the accused removed an ellipse -shaped
section measuring approximately 2mm in width and 10mm in length . It was a
full thickness biopsy. The sample was sent to Lancet Laboratories. The
accused recalls contacting Lancet Laboratories to inquire about the path ologist
assigned to the sample and was informed that it had been allocated to Dr
Gildenhuys , whom he knew professionally from the Wits Medical School.
[75] It is noted that although Dr Gildenhuys was on the State's witness list, she was
not called as a witness. After the accused spoke with Dr Gildenhuys , he had a
conversation with Mrs T[…]. Mrs T[…] stated that this conversation took place
on Friday , 16 March 2012. According to the accused, he had not yet seen the
Lancet report at that stage. The biopsy report w as sent to the Johannesburg
General Hospital (Charlotte Maxeke) and to the Linksfield Clinic , where the
biopsy procedure had been performed , but not to the Parklane Clinic , where he
held his rooms. The accused was away at a congress after 16 March 2012,
over the weekend of 17 and 18 March 2012.
[76] When the accused eventually reviewed the biopsy report, it stated that
Dr Gildenhuys had identified occasional groups of ganglion cells in the deeper
layers of the biopsy . Upon receiving the report, the accused conta cted
Dr Gildenhuys to inquire whether her findings were consistent with
hypoganglionosis. According to the accused, Dr Gildenhuys responded that,
while she had not measured the distance between the groups of ganglion cells ,
she believed her analysis was co nsistent with hypoganglionosis.
24
[77] Hypoganglionosis is a condition characterised by a decreased number of
ganglion cells in the bowel. According to the accused, hypoganglionosis, like
Hirschsprung’s Disease , leads to intractable constipation and presents a
clinical picture similar to that of E […]. The treatment for hypoganglionosis , as
stated by the accused, is the same as for Hirschsprung's disease. On his
version, the key difference between Hirschsprung’s Disease and
hypoganglionosis is that , in Hirschsprun g’s Disease , there are no ganglion
cells, whereas in hypoganglionosis , there are too few ganglion cells. The
outcome is the same : the bowel fails to function properly. Hypoganglionosis is
a recogni sed variant of Hirschsprung ’s disease.
[78] Given that there was no difference in the treatment regime, the accused
explained that he chose not to inform Mrs T[…] that Dr Gildenhuys had
identified occasional groups of ganglion cells and believed her findings were
consistent with hypoganglionosis. In making this decisio n, he aimed to avoid
confusing Mrs T[…] .
[79] E[…] was admitted to the Morningside Clinic on 29 March 2012. Upon his
admission , the accused prescribed Kleen Prep to be administered as bowel
preparation. This was necessary to clea r any faecal matter from the bow el,
which assists with infection control during and after the operation , and ensures
a clean operative field. On the evening of 29 March 2012, the accused visited
E[…] in the ward , where he met Mrs T[…] .
[80] The accused explained to Mrs T[..] that he had presc ribed bowel preparation
and that, if it did not have the desired effect , a bowel washout procedure might
be required. Mrs T[…] inquired whether the procedure should be done under
general anaesthetic. He explained that general anaesthe sia was not required
and that it was the equivalent of an enema. The accused further explain ed that,
to lighten the mood and in jest , he remarked, “ sometimes it's the mom that
needs the sedative ”.
[81] According to the accused, the procedure was uneventful and uncomplicated.
After t he operation , he met with the parents and , upon their enquiry , advised
that E[…] may have sips of water to keep his mouth moist .
25
[82] When doing his rounds , he saw E[…] at around 19:30 in the ward and n oted
that he looked a little pale. Otherwise, there was not hing that concerned him.
However, he did order a full blood count. He further testified that Et[..] s stomach
was not distended, and that his breathing was normal. The accused was only
called 04:26 the following morning, by which time E[…] was already in de ep
trouble.
[83] Another expert, Prof essor Moore (Exhibit s ZZY and ZZZ) , testified on behalf of
the accused . He stated briefly that, upon reviewing Dr Govender’s report on the
barium enema conducted on E[…] on 22 February 2012, he agreed with the
assessment tha t the findings were suspicious for Hirschsprung’s Disease . In
his conclusion , he was of the opinion that surgery was indicated in E[…] ’s case
under the circumstances.
[84] It is significant to note that the events concerning E[…] took place in February,
March a nd April 2012 — more than 11 years before any of the witnesses
testified based on their recollection of the events leading to his demise.
A[…] S[…] ’s Case
[85] The mother, Mrs M[…] S[…] , retired nurse Tara Ramjee , and
Professor Loveland testified on behalf of t he State. The assistant surgeon ,
Dr Germon , did not give evidence. The accused and Prof essor James testified
in his defence. The following facts are common cause:
A[…] was born on 7 October 2014 with oesophageal atresia , which was
surgically repaired at bi rth. She suffered from complicated gastro -oesophageal
reflux disease (GORD ). The accused informed Mrs S[…] that A[…] needed to
undergo a Laparoscopic Nissen Fundoplication. At the age of 21 months, on 29
July 2016, she was admitted at the Morningside Medi -Clinic , where the
accused, the operating paediatric surgeon, performed the procedure with the
help of the assistant surgeon , Dr Germon , and the anaesthetist ,
Dr Linda Blesovsky, who is now deceased.
[86] There is no dispute that the indication for this procedur e was appropriate.
Surgery commenced at 15 :00 and concluded at 18:50, lasting approximately
26
four hours . According to Prof Loveland, this is a significantly long operative time
for the procedure, suggesting considerable difficulty. The complexity of the
procedure was exacerbated by the loss of a suture needle, which , although
eventually retrieved , caused additional delay . There were also multiple power
outages and difficulty in suturing . The most significant complication, however,
was an iatrogenic injury to an accessory or replaced left hepatic artery, which
runs through t he gastrohep atic ligament and is at risk of injury during this
operation.
[87] Prof Loveland , as per Exhibit G1 and in his testimony , opined that, “ [w]hilst the
intra-operative course and compli cations are recognised morbidities, these
were poorly managed” . In his view, this constituted negligence on the part of
the anaesthetic and surgical team s, resulting in an avoidable operative death.
Furthermore, t he failure to document the impact of blood loss during the
operation — either by requesting an urgent haemoglobin level or by performing
an intra -operative arterial blood gas — and, consequently , the failure to identify
haemorrhagic shock and treat it with an urgent blood transfusion , constituted
negligent conduct.
[88] According to the accused, Dr Blesovsky had been the anaesthetist for his
surgeries for approximately 24 years, and he had no reason to doubt her
abilities. The accused denied that he nicked the aberrant left hepatic artery , as
suggested b y the State, and stated that he had visualised the left hepatic artery
and avoided it. He described the artery that was nicked as being contained
within inflammatory hypervascularity surrounding the inflamed oesophagus
tissue and maintained that it was not a known artery. When the artery was
nicked, the accused informed Dr Blesovsky of the incident and set about
stopping the bleed by tamponading it. As he began this, a power failure
occurred, and there was a delay of a few minutes until the hospital's emerg ency
generator switched on. During the power failure, he lost sight of the operative
field, and the insufflation of A[…] 's abdomen was lost. This delay prolonged the
time required to manage the bleed. In all , power was lost about three times
during the ope ration.
27
[89] On the accused’s version, the blood loss was measured and recorded by
Dr Blesovsky and the nursing staff as 200ml. After he had stopped the bleeding ,
Dr Blesovsky did not inform him that A […] was haemodynamically unstable, nor
did she instruct him to stop the procedure for any other reason. However, he
requested that Dr Blesovsky perform a haemoglobin test. The accused
explained that he requested the haemoglobin test because he was sufficiently
concerned about the blood loss .
[90] When the a ccused aske d Dr Blesovsky about the haemoglobin results, she
replied that she had not been able to draw a blood sample for testing.
Afterwards, he broke the sterile field, drew a blood sample for haemoglobin
testing , and handed it to Nurse Mathete to be sent to the l aboratory. After the
surgical procedure , Dr Blesovsky transferred A[…] to the recovery room and
hand ed her over to Nurse Ramjee.
[91] The accused gave evidence that it was not standard practice to pre -operatively
order type -matched blood for the type of surge ry performed on A […]. Hospitals
keep universal donor blood in their emergency departments , which is available
for use in theatre in case of an emergency. However, in Al […]'s case , the
hospital had not replenished its stocks of emergency blood in the emer gency
department after it had been used two days prior to her surgery.
[92] Based on the common cause evidence, the accused spoke with Mrs S[…] after
the surgical procedure. However, a discrepancy exists regarding what was
communicated. Mrs S[…] testified that she was told that A […] had lost a lot of
blood , whereas t he accused denied using the term “lots” but acknowledged that
he told her that A[…] had lost blood.
[93] It is common cause that the accused and Dr Blesovsky had another patient to
attend to after A[…] , so they returned to the theatre and began operating on the
next patient. Whil e operating on this subsequent patient , a nurse called
Dr Blesovsky to attend to A […] in the recovery room . It is common cause and
not seriously disputed that a patient in the recovery room , is managed by the
anaesthetist rather than the surgeon. When Dr Blesovsky returned to the
theatre, the accused testified that s he told him that A […] was “okay ”. At that
28
time, the accused as indicated by the common cause evidence remained in a
sterile operative field and was unable to check on A […]. He further testified that
he had no reason to doubt Dr Blesovsky's assessment of A […]'s condition in
the recovery room.
[94] According to Nurse Ramje e, she became concerned about A[…] because she
had not woken up , prompting a call for Dr Blesovsky. In her statement , Nurse
Ramjee indicated that this occurred at 19 :40 — about 50 minutes after A[…]
had been taken to the recovery room . She added that Dr Blesovsky “came
almost immediately ”, examined A […], stated that A[…] needed to be ventilated
and admitted to the ICU, and then requested that N urse Ramjee make the
necessary arrangements. After making these arrangements, Nurse Ramjee
returned to the recovery room , where Dr Blesovsky s aid she was going to
intubate A[…] and requested anaesthetic medication to facilitate the intubation.
[95] Dr Blesovsky began to intubate A[…] and, although she struggled at first, she
eventually succeeded ; however, during the intubation A[…] 's oxygen saturation
dropped to 84%. It appears that A[…] suffered a cardiac arrest. Resuscitation
efforts were commenced by Dr Blesovsky and the accused , and Dr Taylor
Smith arrived to assist. The State has suggested that some significance should
be attached to the fact that Nurse Ramjee stated that the accused was called
from the tea -room , whereas the accused denied this, stating that he was
elsewhere in the hospital. Nothing turns on this matter, and in any event, as the
defence contended, the accused was nearby.
[96] It is common cause that the resuscitation of A[…] was unsuccessful, and she
sadly died.
[97] Testifying in defence of the accused, Professor James opined that the blood
loss was not the cause of death. He stated that a person losing an amount of
blood such as 200ml will exhibit physiolog ical signs “but will not be a
life-threatening risk ”. In the same vein , he maintained that a post -operative
haemoglobin level of 7 is not life threatening. Professor James was adamant
that blood loss was not the cause of death and that the haemorrhagic sho ck
theory advanced by Professor Loveland could not be sustained. In his view, an
29
anaesthetist cannot administer an infinite amount of crystalloids, and excessive
crystalloid therapy is associated with increased patient deaths. He testified that
the rule of thumb is to administer 40ml of crystalloid per kilogram of body weight.
In this case, A[…] weighed 10 kilograms, so she should have received no more
than 400ml of crystalloid therapy. ‘ He further emphasised that crystalloid fluids
should not be administer ed in a single dose but instead be titrated.
[98] Dr Blesovsky's report records that she administered 800ml of crystalloid fluid .
Professor James described that as “huge ”, comparable to giving an adult 6 or
7 litres of fluid which, in his view, would have many adverse effects. He
regarded the resulting fluid overload as unacceptable. The administration of
more than 400ml of fluid to A[…] resulted in fluid overload , with the excess fluid
leaking from the circulatory system and caus ing oedema. Significantly, in
A[…] ’s case, this excess fluid leaked into her lungs , leading to pulmonary
oedema.
[99] For example, A[…] ’s potassium was recorded as 9.6 , which James opined was
a “startling measurement ” and a “near lethal concentration ”. The importance of
potassium is that if it becomes too high , it will stop the heart. Additionally, her
glucose was recorded as 1, which he described as “ very dangerous low blood
sugar ” that was “certainly going to cause unconsciousness ”.
[100] In essence, Professor James opined that the cause of deat h was the
mismanagement of A[…] 's physiology during the anaesthetic by Dr Blesovsky ,
who failed to monitor A[…] 's glucose levels and allowed her to become energy
depleted, thereby permitting potassium to leak from her cells. He emphasised
that the surgeon manages the anatomy while the anaesthetist manages the
physiology — a very clear -cut distinction. This was compounded by
Dr Blesovsky ’s fluid overloading of A[…] , which compromised her lungs and
inhibited her ability to absorb oxygen. When A[…] was in the recovery room , Dr
Blesovsky did not identify her low glucose, high potassium nor her
fluid-overloaded status.
[101] From the evidence, Professor James was not alone in his criticism of the
glucose and potassium levels in A[…] . When Professor Lundgren testified and
30
was asked about the blood gas , she identified the glucose and potassium levels
as being problematic. Professor Lundgren described the potassium as “terrible ”
and the glucose as “brain damaging ”. The post -mortem report recorded the
cause of death as myo carditis. Because A[…] suffered from myocarditis, she
was unable to cope with stresses that a person with a healthy heart could have
managed . Regarding the State ’s contention that the accused should have
followed up on the haemoglobin test results , but, even if one accepts the State ’s
argument that blood loss was the cause of death , the circumstances were such
that there was no blood available in the hospital for A[…]. That can hardly be
attributed to any fault on the part of the surgeon.
[102] Significantly, the pathologist, Dr Nel, stat ed in her postmortem report
(Exhibit E2) that the complication of arterial haemorrhage was addressed in a
timely and appropriate manner, as evidenced by the absence of free blood in
the peritoneal cavity.
[103] It is common cause th at the HPCSA investigation into the management of A[…]
S[…] by the accused established no fault on his part ; his explanations were
accepted. Simply put, there was no evidence of unprofessional conduct on his
part.
The Evidence in Respect of Z[…]
[104] Dr Ku ssel, one of Z[…] ’s paediatrician s, testified that Z[…] had been his patient
since July 2013. Since then, he had seen Z[….] for a variety of childhood
illnesses. Over the years, v arious consultations, examinations , and tests were
performed and prescription s were given accordingly. On 8 October 2019, he
was contacted by Z[…] ’s mother who explained that she was on her way to si gn
a medical consent for Z[…] to undergo an operation performed by the accused.
Ms V […] then requested that he contact the accused. H e did so on 8 October
2019 , and the accused advised him that Z[…] required surgery for the following
reasons: the biopsy findings indicated cellular changes with the potential for
malignancy , rendering the biopsy abnormal; the esophagoscopy revealed an
abnormal lower end of the oesophagus; and p rior measures to control Z[…] 's
vomiting had not succeeded.
31
[105] After his discussion with the accused, Dr Kussel contacted Ms V […] and
explained the accused 's findings, as relayed to him, indicating that s urgery was
necessary for Z[…] . He also testified that he requested a copy of the Lancet
report a few days after Z[…] 's passing, which he subs equently discussed with
Ms V […]. Upon a reading of the report, he was surprised to find that it did not
reflect that Z[…] had me taplasia , as had been suggested. Had he known the
content s of this report before the operation, he testified that he would never
have advised the parents to proceed with the surgery .
[106] During cross -examination , however, Dr Kussel stated that there would be
months -long interruption s where he would not see Z[…] . His parents would then
return to him, recounting “ stories of what other doctors had said and other
doctors had done and asked for my comments on it ”.
[107] He was also not a ware that Ms V […] had reported that Z[…] had been suffering
from vo miting since the age of three. He confirmed that he had written a letter
to Z[…] s nursery schoolteacher in March 2014, stating that Z[…] had anxiety
episodes. However, he acknowledged that this letter was written without having
diagnosed Z[…] as suffering from anxiety. Significantly, he was unaware that
Dr Walabh had diagnosed Z[…] with reflux oesophagitis. It is common cause
that he was also unaware that Z[…] had been seen by a child psychologist and
a psychiatrist since 20 18.
[108] In his testimony, Dr Kussel confirmed , significantly, that he had previously
prepared an affidavit (Exhibit ZV ) with the assistance of attorneys. The affidavit
was prepared in response to questions posed to him by the State. In the
affidavit , Dr Kussel explained what the accused had conveyed to him during the
telephone conversation , as well as the reasons why Z[…] required surgery. Dr
Kussel recorded three reasons given to him by the accused : firstly, the biopsy
results indicated cellular changes that c ould become malignant; secondly, the
oesophagoscopy revealed an abnormal lower end of the oesophagus; and
thirdly, measures to control Z[…] 's vomiting had been unsuccessful . Dr Kussel
also confirmed that , based on the information provided by the accused , he
agreed that surgery was necessary.
32
[109] There is no doubt that , as the defence also contended, Dr Kussel's evidence
was n ot a complete account of Z[…] 's medical history. It follows that the views
he expressed regarding oesophageal reflux and psychological car e were made
without the knowledge of Z[…] 's full medical history.
[110] Ms V […] testified that the deceased suffered from reflux, which became more
severe after their return from Turkey in July 2019. It caused him to vomit
regularly. Consequently, she took him to several doctors in an endeavour to
ascertain the source of this problem and to resolve it. She took Z[…] to
Dr Kussel, at the Park Lane Clinic in Parktown. Dr Kussel works in association
with another paediatrician, Dr Riaz Khan , who also treated him. Z[ …] missed a
lot of schooling because the vomiting continued.
[111] On 7 August 2019, Z[…] was extremely dehydrated . As a result, he was
admitted by Dr Khan to the Park Lane Clinic , where he remained until
8 August 2019 for treatment of vomiting, diarrhoea , and a bdominal pain. Z[…]
was also admitted to hospital on 10 August 2019 for persistent vomiting and
abdominal pain. On 15 August 2019, Ms V […] took Z[…] to see Dr Moosa, a
paediatrician at Garden City Cli nic. Dr Moosa attributed Z[…] 's vomiting to
anxiety. On 19 August 2019 , Ms V […] sent a picture to Dr Kh an of th e toilet
bowl into which Z[…] had vomited, describing it as containing a “lot of blood ”.
[112] Mrs V […] explained that , later, she did not think it was blood after all. She had
panicked after seeing it and sent the picture to the doctor. To quote her words,
“so if he had beet root, if he had curry, if he had ice -cream, if he had an
Energade, it would come out that colour ”. Z[…] was subsequently readmitted
to the Parklane Clinic by Dr Khan. Dr Khan then re ferred Z[…] to Dr Priya
Walabh, a paediatric gastroenterologist at Sunninghill Hospital , as he continued
to vomit. Dr Walabh prescribed Nexium, which , according to Ms V […], did not
alleviate Z[…] ’s condition.
[113] The uncontested evidence is that, on 20 August 2019 , Dr Walabh treated Z[…].
Z[…] was diagnosed as suffering from reflux oesophagitis and chronic
constipation with faec al loading. Con trary to Ms V [..]’s evidence , Dr Walab h
denies diagnosing that Z[…] had constipation lumps. The situation did not
33
impro ve. Instead, on 26 August 2019 , Ms V […] returned to Dr Khan, and it was
during that consultation that Dr K han suggested that Z[…] be taken to the
accused . On 28 August 2019 , Ms V [..] sent a WhatsApp message to Dr K han
saying she had decided to go ahead wi th the scope and asked for it to be done
the next day.
[114] It is common cause that the accused performed the biopsy on
3 September 2019. Ms V […] then left for Cape Town with Z[…] on holiday. On
10 Septe mber 2019, acc ording to Ms V […], the accused called her and
informed her that , from the results of the scope, her son had intestinal
metaplasia and pre -malignant cancerous cells and that he had to undergo an
operation. She looked up the terms on the internet and then telephoned her
ex-husband to tell him what t he accused had sa id. Whilst in Cape Town, Z[…] 's
condition improved to the extent that he stopped vomiting. However, that was
only temporary , as the vomiting resumed upon their return from Cape Town.
[115] Upon their return to Johannesburg, on 6 October 2019, Ms V[…] sent a
WhatsApp message to the accused stating that Z[…] had been vomiting non -
stop and requested an appointment to see the accused the following day. This
message was sent at 22 :08. It is common cause that the accused consulted
with Z[…] and Ms V [..] on 7 October 2019 , during which they discussed the
upcoming Nissen Fundoplication operation. Following this consultation, Z[…]
was scheduled to undergo the procedure on 8 October 2019. However, o n 8
October 2019, the accused was informed b y the nursing staff that Z[…] 's
parents had cancelled the operation.
[116] Later , on 8 October 2019 , Ms V […] telephoned the accused and requested that
the operation proceed, However, as it was too late, the operation was
rescheduled for Friday , 11 October 2019. On 9 October 2019, Ms V […] brought
Z[…] to the accused because his vomiting was uncontrolled. Concerned about
Z[…] 's condition, the accused admitted him to the hospital. However, the
deceased's parents took him home on 10 October 2019 and returned for the
operation on 11 October 2019. The operation did not last the anticipated
90 minutes but instead took almost 4 hours t o complete. According to Ms V [..],
34
the accused informed them (the parents) after the operation that the extended
duration was due to Z[…] 's excessive w eight.
[117] Ms V[…] testified that , as the accused was about to leave, Dr Munshi
approached him and indicated that he suspected a tension pneumothorax.
When asked what this meant, the accused assured them it was not serious and
that Dr Munshi could handle it. Despite the accused being call ed back to the
hospital, Z[…] passed away shortly thereafter following a failed resuscitation
attempt. A few days later, Ms. V […] called the accused and recorded the
conversation. The relevant part of the cell phone recording reads:
“MRS S S [..]: You said he had metaplasia and he didn't even have metaplasia.
What was that about?
DR P BEALE: I just told you what the pathologist said.
MRS S S […]: Sorry?
DR P BEALE: I just told you what the pathologist said, that's all, what ’s in the
pathology report.
MRS S S […]: Did he have the metaplasia? Did you see it [there] in the report?
Did he have it? Did he even need the op?
DR P BEALE: He had whatever I told you he had. It ’s in the pathology report.
MRS S S […]: So what is metaplasia exactly? What is it? You said that's the
premalignant cells, is that correct? Is [that] true? Did he have it?
DR P BEALE: He had intestinal metaplasia , yes .”
[118] It is apparent from this exchange that the accused believ ed at the time that Z[…]
had intestinal m etaplasia. Significantly, Ms. V […] conceded under cross -
examination that the accused never admitted during the recorded telephon e
conversation that he was aware of the pneumothorax whil e in theatre.
[119] Mr S […] testified and broadly repeated part of MS V […]’s evidence. He stated
that when he spoke to the a ccused on 11 September 2019 “[he] explained to
me what it meant in medical terms which was above my paygrade."
35
Significantly, he did not claim that the accused told him Z[…] would die. This is
clear from th e following extract of the record:
“So he [Professor Beale] says well it [the vomiting] is going to come back, it is not going
to stop. So obviously when you hear something like that, that your child could possibly
die you cling onto any hope of help of so rting out the issue and that was basically the
long and short of the conversation on the 11 September .”
Clearly, Mr S […] believed that Z[…] would die following his conversation with
the accused on 11 September 2019. Exhibit ZP was introduced. ZP contains a
message from the late Dr Munshi to a colleague, Dr Beeton, explaining
developments post -surgery. The relevant parts of t he message read:
“Slow Deterioration started when extubated as he could not generate enough negative
pressure to inflate the good lung . My differential was atelectasis . So needed a cxr to
decide what to do next. Unfortunately waiting for cxr was golden time being lost, and
by the time the icd was inserted though he was awake and even distressed, there was
worsening acidosis, low cardiac output and hypoxia developed from the tension
pneumothorax, these I thought will immediately improve with the lcd, but he then
arrested
Regret I should have kept him in theatre intubated and done cxr on table, before
moving to recovery, but was awake and w anted ett out, so thought will be fine, got to
recovery with initial s ats of 92 on oxygen, B P 90/50. There was gradual subsequent
deterioration while waiting for cxr…”.
The witness could not comment on the WhatsApp message.
[120] Dr Riaz Khan also testified and confirmed that he had treated Z[…] from
approximately 2017 , up to the period before his death in 2019 . Z[…] had a
history of vomiting after meals since the age of three , along with constipation
and signs of anxiety. Dr Khan also confirmed that he eventuall y referred Z[…]
to Dr Walabh and subsequently to the accused for a biopsy. He further testified
that, upon receiving the toilet bowl photo via WhatsApp , he was unsure whether
it was blood or something Z[…] had eaten. He was called to the hospital on the
night of Z[…] 's passing and , upon arrival , assisted with Z[…] 's resuscitation, but
36
to no avail. When he read Z[…] ’s Lancet report , he was surprised because there
was no mention of the presence of intestinal metaplasia.
[121] In her testimony regarding the Lancet r eport, Dr Ray stated that she did not find
any features of dysplasia or malignancy in the biopsy specimen. However, she
identified mild chronic oesophagitis with an inflamed squamoglandular junction,
which, as she explained, was at the lower end of the oes ophagus. Dr Ray was
confronted with various extracts from an article published in the Journal of
Gastrointestinal and Digestive System . The article emphasised — an assertion
with which she agreed — that the early diagnosis of GERD /GORD is crucial, as
it is a key risk factor for the development of Barret t’s oesophagus.
[122] Regarding Z[…] , Prof Banieghbal (E xhibit L) testified based on his evaluation
of the patient files from Drs Kussel and Khan, as well as the histology report by
Dr Ray . He opined that there was no indication for surgery in the first place and
considered Z[…] to be a psychogenic vomiter. He criticised the accused for
conveying to the parents a finding that was contrary to Dr Ray ’s findings in her
Lancet report , alleging that this was dishonest an d done for financial gain. In
his view, Z[…] should have been referred to a psychologist or a psychiatrist for
treatment instead. He further testified that had he received a histology report
indicating that a child of Z[…] 's age had intestinal metaplasia, he would have
re-examined the report and contacted the pathologist to query the result, as he
would have suspected an error in the analysis. This , he explained, was because
intestinal metaplasia is extremely rare in children. However, the defence
contended that the better approach is to recognise that paediatric surgeons
exercise their judgment on a case -by-case basis and will recommend surgery
if they deem it appropriate. Nonetheless , Professor Banieghbal was presented
with a series of facts concerning Z[…], which were not seriously challenged in
this case:
“509.1 A biopsy identifying chronic oesophagitis.
509.2 The visualisation of an inflamed oesophagus and wavy tongue like features
during the esophagoscopy.
509.3 Z[…] had persistently vomited for seven years.
37
509.4 Specialist pa ediatricians had treated Z[…] and had been unable to resolve
his condition.
509.5 A paediatrician had referred Z[…] to Professor Beale and had considered that
surgery might be required.
509.6 Other d octors had recorded that Z[…] ’s reflux was problematic.
509.7 Z[…] ’s reflux had not responded to proton pump inhibiter medication.
508.8 A Nissen Fundoplication operation effectively stops vomiting;
509.9 Z[…] ’s life was miserable, he was vomiting all day and was missing school.”
Profes sor Banieghbal was constrained to concede that that surgery may be
helpful in that case.
[123] Prof Loveland testified for the State and confirmed his report as per Exhibit M.
In his report , he noted:
“From a professional perspective it is important to first mak e a categorical diagnosis of
Gastro Oesophageal Reflux, and thereafter to determine whether this is simple reflux
(which is a normal physiological process), or whether it is Gastro Oesophageal Reflux
Disease (GORD). The former is managed by adjusting lifes tyle, including weight loss,
and potentially with the addition of medical management, including the prescription of
a PPI. The latter, GORD, is categorised as being uncomplicated or complicated, with
complications of GORD either being oesophageal or extra -oesophageal.
Uncomplicated GORD is best managed medically, as described above, with surgery
only reserved for complicated GORD”.
Regarding this matter , Professor Loveland was of the opinion that the diagnosis
of Gastro Oesophageal Reflux in Z[…] ’s case was highly questionable and , if
present, did not meet the diagnostic criteria for GORD . In his opinion , surgical
intervention was not indicated, and initial management should have focussed
on lifestyle modification, particularly weight loss . He was equally co ncerned that
the accused did not make any notes on the biops y procedure performed on
Z[…] .
38
[124] Prof Loveland was highly critical of the Netcare Parklane Clinic , expressing the
view that it is not an appropriate facility for major operative procedures on
childr en. Whil e the facility has a reputable Neonatal Intensive Care Unit, it lacks
a Paediatric Intensive Care Unit (PICU) and Paediatric Intensive Care
specialists. Furthermore, t he hospital is not equipped for high volume general
paediatric surgery. He attrib uted this issue to individual hospitals and hospital
groups, which, in his view, push for the provision of all medical specialty
services at all of their facilities , even where those facilities are not adequately
equipped .
[125] Prof Loveland was also highly cri tical that of the response to the intra-operative
pneumothorax . He stated that when the pneumothorax first presented, neither
the Accused nor Dr Munshi took steps to temporarily cease operating in order
to diagnose and definitively treat the pneumothorax, a recognised and
acceptable morbidity . The appropriate response, in his view, would have been
to insert an intercostal drain ; however, instead of taking this step, the operation
continued for a further two hours . He further criticised Dr Munshi’s
post-operative management of the patient, stating that it was inadequate and
further delayed , ultimately leading to irreversible cardiac arrest and death . As a
result, the later involvement of the Adult Intensive Care Unit and the adult
physicians, Drs Khan and Moo la, was, in his words, “too little too late ”.
[126] Professor Lundgren , who testified for the State, was of the view that it would
have been preferable to manage Z[…] further in theatre, rather than move him
to the recovery room. In her view, although a pneumoth orax is a common
complication during a Nissen Fundoplication procedure, it is often clinically
asymptomatic. However, s he acknowledged that it can be lethal in up to 25%
of children in Z[…] ’s age group . She testified that once a tension pneumothorax
is sus pected, it constitutes an emergency that must be treated with the
necessary urgency. She further stated that the appropriate course of action —
insertion of an intercostal drain — is a joint responsibility of both the
anaesthetist and the surgeon. She also testified that a tension pneumothorax
is diagnosed clinically and that one does not wait for an x-ray, as was done in
this instance.
39
[127] Dr Elliot also testified and h er written report is recorded as Exhibit ZZL. As the
State suggests, the essence of her evid ence can be summarised as follows: Dr
Munshi mention ed a suspected pneumothorax towards the end of the
operation . Both Dr Elliot and the accused were equidistant from Dr Munshi
when this was said, and she heard it clearly. She stated that she did not kn ow
whether Z[…] was stable at that moment , but Dr Munshi appeared less
concerned as they were finishing the procedure .
[128] Dr Vergie testified reg arding Z[…] ’s post-mortem, which she compiled as
Exhibit s H, ZZG, and ZZH. As indicated from the o utset, she conclude d that the
primary cause of death was consistent “with a history of a pneumothorax in a
person with reported severe gastroesophageal reflux disease ”. She
subsequently compiled a histology report (Exhibit ZZG ), in which her findings
were consistent with int erstitial pneumonitis in the lungs and a viral myocarditis.
Furthermore, she observed “dense areas of chronic inflammation” in a section
of Z[…] ’s oesophagus. According to Exhibit ZZH, which she confirmed :
“The postmortem examination further revealed marke d pallor (a pale colour of the skin
and internal organs which can be caused by illness, shock or anaemia and this is
consistent with a low haemoglobin level) of the internal organs and a markedly
enlarged heart (the normal range of heart mass for a 10 year old is 140g to 154g; the
deceased's heart mass was 200g )”.
[129] Exhibit ZZH further records that :
“The effect of the myocarditis would be to decrease the heart muscles’ ability to pump
at a normal rate and rhythm. If the body's oxygen requirements increase (as in this
case, oxygen deprivation as a result of the collapsed left lung), the heart might be
unable to respond at a rate commensurate to the increased oxygen demand of the
body. Interstitial pneumonitis was diagnosed histologically as part of the post mortem
examinations. Interstitial pneumonitis, an inflammatory disorder of the mesh -like walls
of the air sacs of the lung could decrease the lungs’ ability to exchange carbon dioxide
for oxygen). This would cause an increase in the carbon dioxide content of the blood
and a decrease in the oxygen content of the blood”.
[130] During cross -examination, it was pointed out that Z[…] had an enlarged heart,
to which Dr Vergie agreed. She further conceded that myocarditis and the
40
interstitial pneumonitis impaired good oxyg enation within Z[…] . However, s he
was of the view that myocarditis and interstitial pneumonitis could not have
been the primary cause of death but were contributory factors.
[131] The accused testified in his defence . The summar y of his e vidence as follows :
He asserted that he had no reason to conduct the procedures for financial gain
but rather based on the indications in each case. Regarding the Tannenbaum
Scheme, the accused testified that he did not need to cancel holidays due to
the loss of his investment. He explained that Tannenbaum , a pharmacist by
profession , had invested in the scheme with the aim of acquiring raw materials
for the manufacture of antiretrovirals. According to the accused, the
Tannenbaum Scheme was not a “get rich quick ” scheme . He furthe r stated that
he was not the only person to lose money ; approximately 800 other s, including
prominent businesspeople, also suffered financial losses . He testified that h e
did not have to sell his house or take any other extreme measures as a result
of the loss.
[132] As of 2009, the accused’s career had been financially successful, and he had
been very busy professionally. He testified that he was disappointed and angry
about losing money in the Tannenbaum Scheme, which led to a period of
reactive depression lasting a few months, from which he eventually recovered.
In 2009, he earned between R4 million and R5 million annually from his
employment at Wits and from his private practice . At that time , his joint estate
with his wife was valued at approximately R40 million, excluding their unbonded
house in River Club, Sandton. The accused also owned a 50% share in a
holiday home at the San Lameer Estate, an upmarket golfing estate on the
South Coast of Kwa -Zulu Natal.
[133] The accused further testified that he had made some successful investments.
He had invested in an aircraft in which he held a 40% share , and because
aircraft investments are denominated in US Dollar s, it performed very well.
Additinally, h e invested in the Linksfield Clinic Hospital by signing as surety
when the Clinic first opened. When the Clinic was eventually taken over by
Netcare, the accused was allocated shares worth R1.9 million. Alongside the
capital value of his investments, he receives a pension , which he described as
41
“a very good pension ”. He was divorced from his wife in 2020, after separating
in 2018. At the time of the divorce, his capital base was still approximately
R20 million. The accused’s evidence regarding his financial position was not
seriously challenged by the State and must therefor e be accepted as true.
[134] Regarding the Z[…] matter , as the State pointed out, there is little dispute
concerning the sequence of events from the date of the first consultation up to
Z[…] ’s death. Z[…] previously consulted other paediatricians without success .
Following the referral, the established histology , and subsequent consultations,
the accused considered that a Nissen Fundoplication might be a solution but
decided to do a biopsy first. It is common cause that the biopsy was conducted
on 3 September 201 9.
[135] He testified that when he performed the biopsy on Z[…] , he observed at the
lower end of the oesophagus, extending several centimetres — approximately
four centimetres — from the gastroesophageal junction , there was an area of
inflammatory change with ob vious red ness and inflammation of the
oesophagus . There was also a wavy pattern at the proximal end , which he
described as tongue -like extensions. He subsequently informed the mother that
his finding was consistent with reflux oesophagitis, but they would need t o wait
for the biopsy report to confirm .
[136] The biopsy results became available on 10 September 2019. Upon receiving
the Lancet report, he mistakenly identified intestinal metaplasia as being
present and informed Ms V […] that Z[…] had this condition. H e later realised
that he had misread the biopsy results , which did not indicate the presence of
metaplasia. He did not intentionally mi sinform Ms V […] regarding the
metaplasia. According to the accused, his focus was on the oesophagitis, and
that he would not have altered his course of treatment for Z[…] ’s condition
based on this misinterpretation .
[137] According to the accused , Z[…] 's life was miserable . He was vomiting all the
time, in pain, and he had not responded to medical treatment , which was a clear
indication that he needed that procedure . The misdiagnosis of intestinal
42
metaplasia was incidental , and the ant i-reflux procedure would have reversed
that process and prevented any further progression.
[138] Upon their return from Cape Town, Ms V […] informed him t hat Z[…] had initially
improved while they were in Cape Town, where he has been taking Nexium
40mg daily. However, upon returning to Johannesburg, he had experienced
recurrent symptoms and had not returned to school. She showed him videos of
Z[…] retching, referred to as “spewing into a toilet ”, and they discussed the
possibility of a laparoscopic Nissen procedure. On the morning of 11 October
2019, he received a text from Ms V [..], which read: “[m]orning Prof, Z […] has
croup, he is coughing badly, will he still have the op? Is it going to be on? Ok?"
[139] He responded as follows : “[b]ring him prepared at twelve, the anaesthetist will
assess .” This was because the anaesthetist is responsible for determining
whether the patient is fit for anaesthesia , and he le ft the decision to Dr Munshi .
Dr Munshi reported that he was satisfied with Z[…] ’s condition , noting that any
upper respiratory symptom s were likely related to acid reflux and persistent
vomiting rather than any other cause .
[140] The accused described the opera tion as longer than usual due to Z[…] ’s
overweight condition but maintained that it was otherwise uncomplicated.
Approximately 1 hour and 15 minutes into the operation, the procedure was
briefly interrupted for approximately 5 to 10 minutes at Dr Munshi’s request ,
who informed him that “the oxygen saturations are down, and the pulse rate
has gone up”. Regarding Dr Elliot's testimony that she heard Dr Munshi express
concern about a possible pneumothorax towards the end of the operation , the
accused testified that he did not hear this.
[141] After the operation , he spoke to the parents and reassured them that everything
had gone a ccording to plan. He also spoke to Dr Munshi in the recovery room ,
who was attending to Z[…] . Dr Munshi noted that Z[…] had decreased a ir entry
in the left lun g and requested a n x-ray, suspecting a pneumothorax or
atelectasis. The accused offered t o wait in the tearoom , but Dr Munshi said he
could leave, which he did, having full confidence in Dr Munshi's abilities. He told
Dr Munshi that he lived only ten minutes away and could return if Z[…] required
43
a drain or further assistance. Just as he reached the entrance of his home, he
received a call from Ms V[…] and promptly returned to the hospital.
[142] Upon returning to the recovery room , Dr Mu nshi had placed an intercostal drain
on the left side , which appeared to be bubbling . Z[…] had recovered as
expected following the drainage of a pneumothorax. The x-ray had been
completed, revealing a pneumothorax on the left side with a degree of tension.
The accused immediately placed a se cond intercostal drain , ensuring b oth
drains were in the pleural cavity. Z[…] was subsequently transferred from the
recovery room to the ICU by Dr Muller. Despit e efforts to resuscitate Z[…] over
the next few hours, he d id not survive. As in the other cases, the accused
denied that the operation had been performed for fi nancial gain.
[143] Professor Coetzee testified in the accused’s defence, analysing the anaesthetic
trend print -out, w hich recorded several of Z[…] ’s vital sign s. It was confirmed
that Z[…] anaesthetised 15:00 , and ventilation was established at 15:27. At
16:09, his heart rate slightly increased to 121, and at 17:09 , it had risen further.
At 17:39 , the heart rate increased to 149, with oxygen saturation remaining
stable , but blood pressure dropped to 73/42 , and oxygenation increased from
31% to 61 %. Blood pressure instability persisted from 17:39 to 17:51.
[144] Professor Coetzee in his testimony on behalf of the accused agreed with
Professor Lundgren that , had Z[…] not been suffering from myocarditis , he
would likely have been able to cope with the stress caused by the tension
pneumothorax. It is common cause that the myocarditis and enlarged heart
could not have been detected prior to the surgery.
[145] In its closing submis sions, t he State sought the conviction of the accused on all
charges, except coun t 3, murder in respect of A[…]. For count 3 , the State
sought the conviction of the accused on the competent charge of culpable
homicide.
[146] The applicable legal principles make it clear that the accused bears no onus to
prove the truth of any explanation he provides. As stated in Rex v Difford :2

2 1937 AD 370 at p 373.
44
“If he gives an explanation, even if that explanation be improbable, the Court is not
entitled to convict unless it is satisfied, not only that the explanation is improbable, but
that beyond any reasonable doubt it is false. If there is any reasonable possibility of
his explanation being true , then he is entitled to his acquittal."
[147] In the frequently cited case of S v Van der Meyden ,3 it was stated:
“The onus of proof in a criminal case is discharged by the State if the evidence
establishes the guilt of the accused beyond reasonable doubt. The corollary is that he
or she is entitled to be acquitted if it is reasonably possible that he migh t be innocent
(see, for example, R v Difford 1937 AD 370 especially at 373, 383). These are not
separate and independent tests, but the expression of the same test when viewed from
opposite perspectives. In order to convict, the evidence must establish the guilt of the
accused beyond reasonable doubt, which will be so only if there is at the same time
no reasonable possibility that an innocent explanation which has been put forward
might be true. The two are inseparable, each being the logical corollary of the other. ”
[148] In relation to the murder ch arges, t he State is to prove not only that the
accused’s action s were the factual cause of the deaths , but also that they were
the legal cause.
[149] Regarding expert testimony, the trite position is that a Court should no t blindly
accept the evidence of an expert witness , but must decide for itself whether it
can safely accept the expert ’s opinion .4 An expert witness is expected to assist
the Court by offering an objective, unbiased opinion on matters within their
expertis e. An expert witness in the High Court should never assume the role of
advocate. Furthermore, a n expert witness must disclose the facts or
assumptions underlying their opinion and must not disregard material facts that
might undermine their concluded opini on.5
[150] Wessels JA , in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlings bekämpfung Mb h remarked as follows:6

3 1999 (2) SA 79 (W) at 80H -J.
4 See R v Nksatlala [1960] 3 All SA 377 (A).
5 See PriceWaterhouseCoope rs Incorporated and Others v National Potato Co -operative Ltd and Another
[2015] ZASCA 2; [2015] 2 All SA 403 (SCA).
6 976 (3) SA 352 (A) at 371F -H.
45
“As I see it , an expert ’s opinion represents his reasoned conclusion based on certain
facts or data, which are either common cau se, or established by his own evidence or
that of some other competent witness. Except possibly where it is not controverted, an
expert's bald statement of his opinion is not of any real assistance. Proper evaluation
of the opinion can only be undertaken i f the process of reasoning which led to the
conclusion, including the premises from which the reasoning proceeds, are disclosed
by the expert. ”
[151] I return to evaluating the totality of the evidence , taking into consideration the
applicable legal principles r eferred to above. An issue that underlies the entirety
of the State ’s case , as the defence pointed out and is supported by the charges ,
is that the accused performed unnecessary surgeries for financial gain. As
counsel for the accused contended, without th e alleged financial motive —
stemming from the need to recover losses incurred due to the Tannenbaum
Scheme — the State's entire case collapses .
[152] It must be recalled that Professor Banieghbal ’s evidence began with a
conversation he had years ago with the ac cused at a conference . According to
Professor Banieghbal , the accused mentioned the losses he had suffered in the
Tannenbaum Scheme and even suggested that he would even act as an
assistant surgeon. However, i t was put to Professor Banie ghbal that this could
not have been seriously intended. Rather, it was suggested that it was merely
a casual conversation between two colleagues at a social event during the
convention. Professor Banieghbal conceded this when this was put to him .
[153] There is no direct evidence supporting the allegations of murder in any of the
related charges. The legal principle governing inference -based reasoning is
based on two cardinal rules of logic. First, the inference sought must be
consistent with all the proved facts. If it is not, the inference cannot be drawn .7
Second, the established facts should exclude every reasonable inference
except the one sought to be drawn. If alternative reasonable inferences remain ,
there must be a doubt as to whether the sought inference is correct.

7 See R v Blom 1939 AD 188 at p 201 -2.
46
[154] The St ate relied on i nferential reasoning to establish intent in the form of dolus
eventualis for the murder charge. The test for the element of intention ,
specifically dolus eventualis , required for a murder conviction , was outlined by
Holmes JA in S v Sigwahla as follows:8
“1. The expression ‘intention to kill ’ does not, in law, necessarily require that the
accused should have applied his will to compassing the death of the deceased.
It is sufficient if the accused subjectively foresaw the possibility of his ac t
causing death and was reckless of such result. This form of intention is known
as dolus eventualis , as distinct from dolus directus .
2. The fact that objectively the accused ought reasonably [to] have foreseen such
possibility is not sufficient. The dist inction must be observed between what
actually went on in the mind of the accused and what would have gone on in
the mind of a bonus paterfamilias in the position of the accused. In other words,
the distinction between subjective foresight and objective fo reseeability must
not become blurred. The factum probandum is dolus , not culpa . These two
different concepts never coincide.
3. Subjective foresight, like any other factual issue , may be proved by inference.
To constitute proof beyond reasonable doubt the inference must be the only
one which can reasonably be drawn. It cannot be so drawn if there is a
reasonable possibility that subjectively the accused did not foresee, even if he
ought reasonably to have done so, and even if he probably did do so. ”
[155] In this case , it must first be established that the initial requirement for liability is
met, namely , that the accused directed his will towards committing the crime
(before considering foreseeability). As the defence argued , if this requirement
is overlooked, ev ery surgeon whose patient dies during surgery would be guilty
of murder based on dolus eventualis , since every surgeon is aware that death
may occur in the course of an operation . In this instance, t he State failed to
demonstrate that the accused knew that the intra -operative act was not
indicated , considering the totality of the evidence. Consequently, the necessary
knowledge of unlawfulness, which is required for criminal intent, is absent , and
foreseeability does not come into the picture. The State also failed to prove tha t

8 1967 (4) SA 566 (A) at 570B -F.
47
the accused foresaw that E[…] could die as a result of the intra -operative act
and that he recklessly disregarded th is possible outcome .
[156] Regarding the competent verdict of culpable homicide, negligence will be found
if the conduct of the accused deviated from that of a reasonable doctor
performing the medical intervention under those particular circumstances. The
standard is based on what a reasonable doctor would have foreseen in the
circumstances and the care such a doctor would have exercised to prevent the
outcome , without the benefit of hindsight. Culpable homicide is a competent
verdict if the accused performed the operation negligently, thereby causing the
death of E[…], A[…], and Z[…] . Additionally, if the accused failed to prov ide the
required post -operative care, which led to E[…], A[…], and Z[…] ’s death s,
culpable homicide may also be found .
[157] The undisputed evidence shows that when the accused visited E[…]
post-operatively on the evening of the operation , there was no need for medical
intervention , other than possibly follow ing up on E[…] ’s progress .
Nurse Mankoe , on behalf of the State , confirmed that when the accused
attended to E[…] at about 19:20 , “there was no reason for concern ”. The
nursing staff assured the accused that E[…] was fine , which was consistent
with Sister Hine’s assessment . The accused was contacted around 4:20
regarding E[…] ’s deteriorating condition. He immediately departed for the
hospital , where upon arrival , the code blue team and Dr Ob or had already
attended to E[…] , and the accused took over.
[158] Contrasting evidence before the Court does not assist the Court in determining
with any d egree of certainty whether E[…] ’s rapid deterioration in the ward was
because of peritonitis due to an anastomotic leak or fro m aspiration of gastric
content into the lung. Complications are part of everyday surgical practice, Their
detection and management form part of every surgeo n’s training and practice.
E[…] ’s complication, whether primarily abdominal or pulmonary should hav e
been detected earlier and managed appropriately. That this did not happen is
primarily due to the inadequate number of experienced nursing staff in the ward
on the night of E[…] ’s surgery who neglected to report to the accused the
48
deteriorating situation of E[…] on time. When they finally di d so in the morning,
it was too little too late.
[159] Regarding the fraud charge, the totality of evidence shows that the accused
genuinely believed the operation was indicated , even with a diagnosis of a
variant of Hirschs prung ’s Disease . This variant presents with the same
symptoms and functional difficulties , necessitating the same operation. The
State’s star witness, Professor Banieghbal , whose testimony as an expert was
critical , was proven to be unreliable and discredi ted, failing to meet the
standards expected of an expert witness . This was due to the fact that he had
previously been part of the unanimous decision by HPC SA panel to find the
accused not guilty of charges relating to the absence of informed consent and
the non -indication of surgery for E[…] . Professor Banieghbal , as the paediatric
surgeon on the panel , provided an inconsistent position, which the defence
argued was inexplicable , particula rly in the absence of any new facts.
[160] In this Court, Professor Banieg hbal failed to provide an explanation for the
discrepancy between the finding in the HPCSA heading and his testimony here.
The State did not prove beyond a r easonable doubt that the accuse d intended
to mislead Mrs T[…] into consent ing to the operation, knowing that she would
not have consent ed had she been fully informed .
[161] The undisputed evidence shows that E[…] suffered from a serious functional
disease that could only be treated surgically. E[…]’s parents consented to the
operation to address this f unctio nal problem. The S tate’s key witness,
Professor Banieghbal , acknowledged that E […] may have bee n suffering from
a functional disease, a variant of Hirschsprung's Disease , as supported by
existing literature on the condition (E xhibit W), a point that Prof Banieghbal was
constrained to concede .
[162] The evidence before this Court clearly established that that there is a group of
paediatric surgeons , including the accused , who, in exercising their clinical
judgment , would reasonably have concluded that E[…] suffer ed from a
functional disease that required surgery . The accused ’s approach in this case
49
was further supported by Dr Gildenhuys ’ report , whom the State failed to call,
record ing the presence of occasional groups of ganglion cells .
[163] As for the surgery itself, Dr Banieghbal initially criticised the procedure
performe d by the accused on E[…] . However, when asked whether his
evidence on the surgery should be ignored until the pathologist , Dr Moeng , had
explained her report, he conceded , thus making a vital conces sion. As
indicated, Dr Moeng was never called by the State. The accused specifically
disputed Dr Moeng ’s post-mortem report. Dr Moeng's report refers to the
“defect ” being in the rectum, whereas, according to the accused, the operation
was performed on the anal canal, as demonstrated in his testimony. Given the
accus ed’s t estimony and his demonstration of how the surgery was conducted
in E[…] ’s case , Dr Moeng's post-mortem report cannot be relied upon,
notwithstanding the provision s of section 212(4) of the CPA.
[164] Significantly, both Professor Banieghbal and Professor Loveland — as the
defence pointed out — accepted that while one paediatric surgeon may have a
more optimistic assessment of whether surgery will assist a patient, another
paediatric surgeon may take a more conservative view . In instances such as
this, where clinical judgment is involved, neither surgeon can definitely state
that the other is wrong .
[165] Contrary to Professor Banieghbal’s evidence and insinuations, the uncontested
evidence , as the defen ce pointed out , is that at the time the surgeries were
performed on E[…] , A[…] , and Z[…] , the accused was financially secure .
Furthermore, following his divorce , his estate was valued at approximately R20
million, excluding his holiday home in San Lameer. He was not reliant on his
assets for daily expenses , as he received a substantial pension . It therefore
follows , as the defence counsel contended, that his denial of performing
unnecessary surger ies for financial gain must be accepted .
[166] In the fraud charges relating to E[…] , the State alleged that Mrs T[…] was not
informed that E[…] did not have Hirschsprung's Disease but rather a variant of
the condition. Similarly, in Z[…] ’s case, it was alleged that Ms V[…] was told
Z[…] had intestinal metaplasia when , in fact, he did not . The accused explained
50
why he did not inform Mrs T[…] about the variant of Hirschsprung's Disease
and admitted that he misre ad the biopsy report for Z[…] . There is nothing to
contradict these explanations , and in the absence of a financia l motive , there is
no reason to doubt them . To suggest that the accused intentionally
recommended unnecessary surgeries is therefore unsubstantiated .
[167] The recorded cell phone conversations referenced above , which took place
after Z[…] ’s death, clearly estab lish that until that point, the accused gen uinely
—but mistakenly — believed that the biopsy report confirmed the presence of
intestinal metaplasia. There is no evidence that the accused knowingly made a
misrepresentation in relation to E[…] and Z[…] , nor t hat he did so with the intent
to sustain the allegations proffered by the State. Furthermore, Dr Kussel could
have easily accessed the laboratory report, which would have exposed any
alleged falsehood or intentional misrepresentation . This further validate s the
accused’s version that the discrepancy was due to a mistake rather than an
intention to deceive. The State bears the onus of proving beyond a reasonable
doubt that the accused intentionally sought to deceive the alleged victims in the
fraud charges. As the defence argued , the evidence does not support such a
finding.
[168] The defence contended — with which we respectfully agree — that i n E[…]'s
and Z[…] 's case s, there is no dispute that the accused informed the parents of
the procedure to be performed. Whe ther Mrs T[…] was specifically told about
hypoganglionosis while under t he impression that the diagnosis was
Hirschsprung’s Disease is not an informed consent issue . This is because , in
both cases , the procedure and associated risks are the same . Informed consent
focuses on the risks of the procedure .
[169] In Z[…] 's case , his parents were aware that a Nissen Fundoplication would be
performed. The fact that the accused misread the pathology report did not alter
the recommended surgical procedure or the risks asso ciated with it. As a result,
the misreading of the pathology report is irrelevant to the issue of informed
consent.
51
[170] As for the murder charges, this Court was referred to Principles of Criminal Law
the learned author states:9
“ln terms of principle, where mens rea in the form of intention is required, liability is
dependent upon the existence of intention in respect of every circumstance or
consequence of the crime in question. Since unlawfulness is an essential element of
every offence, logic dictates that knowledge on the part of the accused that his conduct
was unlawful is a prerequisite of liability. ”
In this case, the accused subjectively believed that the operation was indicated.
Accordingly, the State failed to establish the element of intention , premi sed on
its allegation of dolus eventualis .
[171] Regarding the requirement of causation in relation to the murder charge in
Z[…] ’s case, both the accused and Dr Munshi were unaware , and could not
have reasonably been aware , that Z[…] was suffering from unde rlying
myocarditis , which undoubtedly complicated the surg ical process. Based on the
common cause evidence and viewed objectively , had Z[…] not been suffering
from myocarditis, he would likely have been able to withstand the stress
imposed by the tension pneumo thorax , as suggested by the expert testimony
referred to above. The crime of murder is only complete when the victim dies.
It is only at that moment that the cause takes effect and becomes effective as
the cause of death .10 This principle applies to all the murder charges in this
case .
[172] In sum, the State called for the conviction of the accused for culp able homicide
in A[…]’s case. Regarding causation, there is no evidence connecting A […]’s
death to any wrongful actions by the accused. There is nothing to show that his
conduct deviated from that of a reasonable person (paediatric surgeon) in the
circumstances. As the defence contended, given that the onus is on the State
to prove the offence beyond a reasonable doubt , even on circumstantial
evidence — the State’s case falls short of the requisite proof and is seriously
wanting.

9 Burchell, J. (2016). Principles o f Criminal Law (5th ed.), Chapter 26, p. 386. Juta & Company Ltd.
10 See S v Dlamini and Others [1984] 1 All SA 33 (N ).
52
[173] In conclusion, we are satisfied that the State has failed to prove , beyond a
reasonable doubt and considering the totality of the evidence , any of the various
charges proffered again st the accused , includ ing competent verdicts where
applicable.
Order
[1] The accused, Professor Beale , in respect of count 1 , is found NOT GUILTY of
fraud .
[2] In respect of count 2 , the State has failed to prove beyond a reasonable doubt
that the accused, Profess or Beale , intention ally or negligently killed Et[…] T[…] .
He is found NOT GUILTY .
[3] In respect of count 3 , relating to A[…] S[…] , the accused , Professor Beale is
found NOT GUILTY.
[4] In respect of count 4, fraud, the accused, Professor Beale , is found NOT
GUILT Y.
[5] Lastly , in respect of count 5, the State has failed to prove beyond a reasonable
doubt that Professor Beale intentionally or negligently killed Z[…] S[…] . The
accused , Professor Beale , is found NOT GUILTY.
[6] There remains another matter : the accused, stated that he regretted leaving
when Z[…] S[…] ’s condition was reported to him , but chose to do so . Because
of this conduct and admission, this judgment is to be referred to the HPCSA for
consideration , in the event the accused considers pursuing his practice .


___________ ________________
MUDAU J
Judge of the High Court
Johannesburg

I agree
53
___________________________
Professor C Lazarus

I agree
___________________________
Professor J M Dippenaar


APPEARANCES

Counsel for the State : Adv. EHF Le Roux and Adv SH Rubin
Instructed by: National Prosecuting Authority

Counsel fo r the Accused : B ROUX SC and IP GREEN SC
Instructed by: MacRobert Attorneys
Dates of hearing: first term 2024
Date of closing submissions: 18 & 19 November 2024
Date of Judgment: 4 March 2025