IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE NO: 11661/2021
In the matter between
MEC FOR HEALTH, WESTERN CAPE APPLICANT /DEFENDANT
And
L A SAMPSON RESPONDENT /PLAINTIFF
DATE OF HEARING (Application for leave to appeal): 2 APRIL 2025
DATE OF JUDGMENT: Judgment was handed down electronically by
circulation to the parties and their representatives by email and released to
SAFLII. The date for hand down is deemed to be 11 April 2025.
JUDGMENT : APPLICATION FOR LEAVE TO APPEAL
[1] The applicant (cited as the defendant in the trial) applies for leave to appeal to
the Full Court of the Western Cape High Court, alternatively the Supreme
Court of Appeal , against the whole judgment and order handed dow n on 6
February 2025, which found that:
[1.1] The applicant/defendant is liable for such damages as the
respondent/plaintiff may prove to have arisen as a result of the
treatment administered to him at Mitchell’s Plein District Hospital
(“MPDH ”) in and during January 2020, resulting in the performance
of a nephrectomy on 21 January 2020; and
[1.2] The applicant is to pay the costs of suit on a party -and-party scale
with costs of senior counsel at Scale C and the reasonable and
necessary expenses of Dr F Plani.
[2] The parties will be referred to in this judgment as they were cited at trial (i.e.
the applicant as defendant and the respondent as plaintiff).
THE LEGAL POSITION IN DECIDING IF LEAVE TO APPEAL SHOULD BE
GRANTED
[3] Section 17(1) of the Superior Courts Act provides that leave to appeal may
only be given where the Judge is of the opinion that:
[3.1] The appeal would have reasonable prospects of success; or
[3.2] There is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration.
[4] The prospect of success required in terms of Section 17(1)(a)(i) is to be
decided without reference to the parties’ wishes.1 Inn Mont Chevaux Trust v
Goosen2 the Court held that:
1 Rail Commuter Action Group v Transnet Limited trading as Metrorail (Number 2) 2003 (5) SA
593 (C)
2 2014 JDR 2325 (LCC)
“It is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion, ...The
use of the word "would" in the new statute indicates a measure of
certainty that another court will differ from the court whose judgment is
sought to be appealed against. ...”3
[5] The test of reasonable prospects of success postulates a dispassionate
decisio n based on the facts and the law, that a Court of Appeal could
reasonably arrive at a conclusion different to that of the trial Court. In order to
succeed, the applicant must convince the Court on proper grounds that he
has prospects of success on appeal and that those prospects are not remote
but have a realistic chance of succeeding. There must be a sound, rational
basis for the conclusion that there are prospects of success.4
[6] Leave to appeal is further granted not in respect of the reasons for the
judgment but in respect of the order itself. Therefore, the success of the
application for leave to appeal must be related to the outcome of the case and
not an argument that fails to dispose of the case in the Appellant's favour.5
[7] In the matter of Tecme d Africa v Minister of Health6 the Supreme Court of
Appeal held:
“[17] First, appeals do not lie against the reasons for judgment but
against the substantive order of a lower court. Thus, whether or not a
court of appeal agrees with a lower court’s reaso ning would be of no
consequence if the result would remain the same (Western
Johannesburg Rent Board v Ursula Mansions (Pty) Ltd 1948 (3) SA 353
(A) at 354).”
3 At para 6
4 S v Smith 2012 (1) SACR 567 at 570, para 7
5 Goodwin Stable Trust v Duohex (Pty) Ltd (2) [1996] 3 All SA 119 (C)
6 [2012] 4 All SA 149 (SCA)
GROUNDS UPON WHICH TO LEAVE TO APPEAL IS SOUGHT
[8] The application for leave to appeal is fundamentally based on the following
grounds:
[8.1] That the Court erred in deciding that the factual cause of a
nephrectomy was an act or omission on the part of the medical
practitioners at Mitchells Plein District Hospital (MPDH ).
[8.2] That the Court erred in ho lding that the applicant was negligent in
not offering the appropriate or timeous treatment reasonably
required to diagnose and treat the pelvic renal injury.
[8.3] That the Court failed to distinguish between a gunshot wound injury
to the renal pelvis and a gu nshot wound injury to other parts of the
kidney and incorrectly concluded that even if there had been a
different treatment plan, given that it turned out to be an injury to the
renal pelvis, that it would have resulted in a different outcome.
[8.4] By not acce pting or attributing sufficient value to the evidence of Dr
Kaestner that Groote Schuur Hospital (GSH) had not repaired an
injury of this nature in her years of experience, and in doing so
accepted Dr Plani’s speculative evidence as to what G SH could and
would have done.
[8.5] The Court incorrectly ruled on causation by determining that any act
or omission by the medical personnel at MPDH was likely the cause
of the respondent’s loss.
[8.6] That the Court failed to apply a sensible retrospective analysis of
what would probably have occurred based on the evidence and what
can be expected to have occurred in the ordinary course of human
experience if all had gone according to measures taken by
reasonable medical personnel in the circumstances.
[8.7] That the Court erred in not finding that the gunshot would have
caused irreparable damage to the renal pelvis and that irrespective
of when the imaging was performed , or the date when the operation
took place, the renal pelvis would not have been repairable.
[9] Ms. Bawa SC, on behalf of the defendant, argued that the probabilities favour
the defendant’s case, as another court might reach a different conclusion due
to the complexities of expert testimony and differing expert opinions. She
contended that a differe nt court would acknowledge the difference between
damage from blunt force and gunshot injuries. There is also no evidence that
Dr. Moodley checked the bullet's trajectory, but that was irrelevant, as she
suspected a non -significant kidney injury, based on the plaintiff’s symptoms
and the clinical picture he presented, which was resolving. The extent of the
renal pelvic injury was determined during surgery on 21 January 2020 and
could not be seen earlier through imaging. The court, further, did not explain
its preference for Dr. Pani's opinion over Prof. Borman's.
[10] Mr. Corbet t SC, who appears for the plaintiff, argued against the application
for leave to appeal , citing , amo ng other things, that the surgical team
consulted with Dr. Kreasner during surgery on 21 January 2020 due to the
presence of sepsis and friable tissues. He submitted further that t he plaintiff
need not prove causation with certainty; a reasonable, retrospe ctive approach
suffices. Dr. Pani, with extensive experience in kidney reconstructive surgery ,
stands in contrast to Prof. Borman, who last operated in the 1980s. Another
court would likely accept Dr. Pani's testimony regarding the high success rate
of kid ney reconstruction, which is supported by the standard of care that
recommends imaging once a patient is stable. Mr. Corbett emphasised that
Prof. Borman failed to justify his claim that the renal pelvis was irreparably
damaged by the gunshot, relying sole ly on what he was told by Dr.
Salukazana, the surgeon who performed the nephrectomy . Dr. Salukazana
did not testify, and Prof. Borman’s opinion lacked a factual basis and
supporting reasons. The experts concurred that the plaintiff needed earlier
imaging, confirming negligence.
CONCLUSION
[11] How severe was the pelvic renal injury? The short answer is that none of the
parties can tel l. No direct evidence is available regarding the extent of the
damage as of 1 January 2020 , when Dr. Moodley performed the emergency
surgery. However, what remains unchallenged is that the hematoma Dr.
Moodley viewed during the emergency surgery was non -pulsating. GSH
continued treating the injured kidne y on the basis that it was capable of being
reconstructed and saved.
[12] Suppose the defendant’s claim that the bullet damaged the kidney beyond
repair is correct. In that case, it does not make sense why GSH ins erted the
double stent on 1 6 January 2020 (more than two weeks after the gunshot)
and why the treatment plan, when the nephrectomy was performed on 21
January 2020, was a so -called ureteric proximal pelvic repair, meaning that
only if the kidney was not repairable, a nephrectomy would be performed. Dr.
Kaestner agreed during her testimony that the surgical team intended to repair
the injury ; however, this was found to be infeasible during the procedure. This
supports Dr. Pani’s opini on that if the plaintiff had undergone an imaging
contract test two weeks earlier, it would have been possible to detect the
injury. The procedure is performed by inserting a catheter and scope in the
urethra. Contrast is inserted under pressure to identif y and leakage. A double -
jointed stent could have been inserted to stop the leakage. The double -jointed
stent allows for drainage without leakage. Because the leakage was not
detected early, the whole area around the kidney became infected, making it
imposs ible to perform reconstructive surgery.
[13] Having considered the totality of evidence and the arguments submitted on
behalf of the parties, I find that there is no reasonable prospect of success
that a Court of Appeal could reasonably arrive at a conclusion different to that
of the Court. The grounds of appeal and legal issues raised are not of
substantial importance or public interest .
[14] The outcome of any appeal would largely depend on the application of well -
established legal principles to the facts of this particular case. Regardless of
any criticisms directed at the reasoning of the judgment, the result will remain
the same based on th e undisputed facts concerning the treatment plan
implemented by GSH and the attempts to preserve the kidney .
[15] In the premises , the following order is granted:
(1) The application for leave to appeal is dismissed with costs , including
the costs of counsel on scale C.
BY ORDER
VAN DEN BERG AJ
FOR APPLICANT /DEFENDANT
ADV N. BAWA SC
ADV T. M. STEYN (HEADS OF ARGUMENT)
STATE ATTORNEY
CAPE TOWN
FOR RESPONDENT /PLAINTIFF
P. A. CORBETT SC
MALCOLM LYONS & BRIVIK INC
REF: MR T. BRIVIK