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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA )
Case No .: 1433/2015
Reportable Yes / No
In the matter between:
S[...] M[...] Plaintiff
and
MEC FOR HEALTH, EASTERN CAPE Defendant
JUDGMENT
Cengani -Mbakaza AJ
Introduction
[1] In 2015 the plaintiff instituted action against the defendant in her personal
and representative capacities , seeking damages arising from the defendant’s
negligent treatment of her daughter S […], born on 1 October 200 4. On 18
September 2018, the defendant conceded the merits .
[2] The quantum of the plaintiff’s claim in her personal capacity for loss of past
and future income was separated. This is the issue for determination before this
court. Allied to that, the court must decide whether the plaintiff is entitled to an
amount of R9 ,658,088, if it is found in her favour.
The pleadings
[3] In her particulars of claim, the plaintiff avers that had it not been for the
defendant’s negligent treatment of her child, she would have completed her diploma
studies which she commenced in 2009, at the end of 2012 at age 26. She
anticipates that she wou ld have entered labour market in Human Resources field in
accordance with Dr Gideon De Kock’s projections (Dr De Kock) , an industrial
psychologist.
[4] Further to the plaintiff’s case considering the pre -morbid scenario, her career
was delayed , and she would only be able to start her career once the funding
became available. Initially , it was envisaged that she would start her career in 2024.
It was further anticipated that in January 2029 at the age of 43 years she would
probably procure perman ent work at the lower quartile of Paterson C1, earning
R445,000. It was further projected that through further education, in in -house training
and job changes she is likely to have progress ed to a career ceiling at the mean
level of Paterson C1, being R505 ,000. These scenarios were later evolved during
the presentation of oral evidence.
[5] To fully comprehend the defendant’s case, it is apposite to outline the
plaintiff’ s timeline of events and academic studies as follows:
TIMELINE EVENT
3 September 1986 Plaintiff’s date of birth
2004 Plaintiff in grade 11, fell pregnant and
left school.
Plaintiff’s child S[…] born on 1 October
2004
2005 -December 2006 S[…] diagnosed with TB spine
2006 Plaintiff passed grade 11
2007 Plaintiff passed grade 12
2008 Plaintiff gave birth to a second child,
B[…] on 1 April 2008
2009 Plaintiff started studies at Walter Sisulu
University, enrolled for diploma in
Human Recourse Management (3 -year
course)
2010 Second year of studies
S[…] again diagnosed with TB of the
spine
2011 Third year of studies
Child’s condition deteriorated, she was
fully paralysed in August 2011 .
2012 Fourth year of studies. Plaintiff repeated
certain courses .
2013 Fifth year of studies. Enr olled for three
final courses in order to complete the
diploma but failed one course.
2014 National Student Financial Aid Scheme
(NSFAS) discontinued to fund the
plaintiff. She could not complete her
diploma
2017 All the courses that the plaintiff
previously obtained were invalidated for
failure of completing the diploma within
the stipulated time frames.
[6] The defendant therefore avers that the plaintiff’s delay in completing her
studies was not caused by the defendant’s negligent treatment of S[…] and therefore
is not entitled to any loss of income. It was ventilated during oral evidence that there
was no reason for her to drop off school in 2014 and 2015 and further no reason for
her not to study in 2017. The alternative to the defendant’s case is that the plaintiff
contributed to the delay in completion of her studies in that when the child was
placed at the boarding school, the plaintiff removed her in March 2013 after a period
of two mont hs without any cause.
The evidence
[7] The plaintiff’s timeline of events is captured at paragraph 5 of this judgment.
However, to put issues into perspectiv e it is crucial to summarise the reasons why
the plaintiff could not timely complete her educational qualifications according to her
own version. In 2009 she enrolled for five courses and passed three of those. The
failure of the two courses, so she testif ied was attributed to the fact that unlike in the
high school environment where she previously studied, she was unfamiliar with the
nature of the studies to which she was exposed .
[8] When S[…] took ill in 2009, she could not focus well on her studies . In 2011
she enrolled for four courses and only passed one. The plaintiff testified that she had
to focus on attending S[…]’s illness by frequently visiting hospitals . When visiting
hospitals, sh e had to stand on long queues. This consumed a lot of time for her to
study, so she explained.
[9] When the child’s situation deteriorated especially when she could not walk,
she had to manage both. Despite the difficulties she endured, in 2012 she registered
for three courses and passed all of them. In 2013 when she enrolled three of her
courses, she passed two courses because she had to focus on also finding a
boarding school for S […]. Owing to t he fact that the child developed bed sores in the
boarding school , she had to remove her. She looked after the child at home and
simultaneously focused on her studies which made her not to cope.
[10] The plaintiff explained that the reason she dropped out of school in 2014 and
2015 was because NSFAS could not fund her, having exhausted her five -year
funding limit. According to NSFAS rules, funding is only available for a qualification
within five -year-period, and student who exceed s the timeline without completing
their qualification become ineligible .
[11] The plaintiff testified that despite all these difficulties, she made other
attempts to study in 2016. Her mother funded her registration but later stopped due
to unavailability of funds. He mother could not pay for her and S […]’s funds. This led
her to go to Gqeberha and take care of S […] who was also studying.
[12] The plaintiff further testified that she was unsuccessful in obtaining jobs, even
temporary ones. Had she obtained her diploma in 2012 or the worst in 2013, she
would have pursued her career by further education and training. She planned to
study a degree in Education at the University and should this claim succeeds she w ill
pursue her studies as such . The birth of her second born, so she explained , did not
contribute to the delay in her studies because he was always a healthy child and a
daycare scholar.
[13] Dr Gedeon De Kock interviewed the plaintiff on 04 June 2024. Based on his
interview , he opined that the plaintiff had tenacity to complete her diploma in at least
four years , consistent with the pace of approximately 50% of the students .
Furthermore, he concl uded that the defendant’s negligent treatment of S […]
immensely contributed to the plaintiff’s delay in completion of her studies. He
explained that the negligent treatment of the plaintiff’s child changed the plaintiff’ s life
not only temporarily but forever. The plaintiff had to suddenly deal with a six -year-old
child that was healthy up to a point to suddenly become ill and the defendant not
showing any sense of urgency in treating the child , ending up with her being
paralysed .
[14] This had an enormous impact on her person life, her own well -being, psyche,
and her own performance, so he explained. Dr De Kock explained that the plaintiff
could not neglect her motherly roles. According to him, the plaintiff’s high school
failures were not relevant to the issues at hand. He opined that the fact that the
plaintiff got news in 2011 that her child will be paralysed forever, a month before her
exams , had an enormous impact on her state of mind and her readiness to engage
for final examinations. Therefore, it was not a surprise that she only passed one
subject.
[15] In his testimony , Dr De Kock referenced to job grading systems and actuarial
reports . In terms of his projections, individuals with tertiary qualifications typically fall
within the C band , while graduate s often start with B band and progress to skilled
level within C. Dr De Kock projected that the plaintiff starting at 50% of the B2 salar y
level, would likely undergo a process of job seeking and temporary employment
before advancing to B4, with a salary of R267 000 per annum, representing the
lower level of B4, once she secures permanent employment.
[16] During his grading, he moved the plaintiff to C5 band which is R781 000 per
annum at age 45 . According to Dr De Kock , age 45 is the age that people normally
plateau in terms of their careers. In this case he provided for inflation increases p er
annum. Dr De Kock indicated that higher than normal contingencies (20%) should be
applied in this case. The plaintiff will further her tertiary studies through the
settlement of this claim, so he explained.
[17] On 08 to15 June 2022, Dr De Kock and his colleague, Dr Althea Van Der
Merwe (Dr Van Der Merwe) who is the defendant’s expert concluded their first joint
minute. At the time , the defendant’s expert agreed that there was indeed a loss
attributable to the negligent treatment of the p laintiff’s child. The defendant’s expert
further opined that the plaintiff would work half a day hence she gave her a
projection of 50% of those earnings. Dr De Kock further opined that from age s 30 to
45 the plaintiff would progress s teadily from B5 to C5 . On the other hand, Dr Van Der
Merwe had only moved the plaintiff to C1 which is on e notch. According to Dr De
Kock, a person with an NQF6 qualification would fall into the skilled category which
is C1-C5. The job grading skills may e ven proceed to category D.
[18] Further to his testimony, Dr De Kock referenced to the second joint minute
which was between himself and Dr Van Der Merwe. According to the second joint
minute, they agreed on the post -morbid scenario. They further agreed that higher
contingencies should be applied in this case. Accor ding to Dr De Kock’s projection,
the plaintiff will enter a labour market as an older person with no experience and may
take longer to find a permanent employment. With this evidence, the plaintiff closed
her case.
[19] The defendant called the evidence o f Dr Van Der Merwe, and her evidence
can be summarised as follows: On 07 October 2021, she compiled a report on behalf
of the defendant. She did another report on behalf of the plaintiff on 2 February
2022. According to her assessment , she considered that had it not been the illness
of the plaintiff’s daughter, the plaintiff would have timely completed her diploma. She
then concluded that there was a delay in plaintiff’s career path for a period of 10
years which would have been occasio ned by loss.
[20] She confirmed to have concluded a joint minute with the plaintiff’s expert . In
the joint minute she repeatedly recorded that there was a delay in the plaintiff’s
career path which due to the illness of the child had occasioned the plain tiff a loss.
When she was preparing for a trial, she felt that she needed more information.
Following that, she saw the plaintiff again and prepared an addendum dated 03
March 2023 (the second report) . In the second report she opined that the negligent
treatment of the plaintiff’s child did not result in the plaintiff’s delay in completion of
her studies and consequently did not cause any loss to the plaintiff.
[21] When asked to explain the change in her reports, she testified that on further
investigati on she noted that in 2009, before the child’s injury the plaintiff had failed
two subjects. When the child was ill, the plaintiff had the support of the hospitals, the
social worker , and the family carer. In addition, so she explained, the plaintiff
removed the child from school and took care of her. Furthermore, the plaintiff was
funded by NSFAS which would in exceptional circumstances grant her a permission
to study for even a fifth year. She confirmed the agreements and disagreements she
had with Dr De Kock in the joint minutes. With this evidence, the defendant closed its
case.
The legal framework
[22] In civil proceedings the plaintiff bears onus to prove her case on a balance of
probabilities . The term ‘ onus’ should be used in the original sense referring to the
ultimate burden of proof on the plaintiff to satisfy the court of her entitlement to
succeed in her case rather than merely the duty to counter the defendant’s case.1
[23] In Opelt v Department of Health, Western Cape,2 a case that I was referred to
by Mr Mtshabe SC on behalf of the defendant, the Constitutional Court (CC) outlined
the general approach to be adopted in medical negligence cases , particularly where
conflicting expert opinions arise. The CC referenced to Linksfield3 and held:
‘It is perh aps as well to re -emphasise that the question of reasonableness and
negligence is one for the court itself to determine on the basis of the various,
and often conflicting, expert opinions presented. As a rule that determination
will not involve considerati ons of credibility but rather the examination of the
opinions and the analysis of their essential reasoning, preparatory to the
court’s reaching its o f own conclusion on the issues raised …’ [emphasis
added]
Discussion
[24] Both parties submitted heads of argument which this court considered in
preparing its judgment. Mr Scho eman SC, counsel for the plaintiff argued that the
plaintiff was a credible witness and the refore has proved her case on a balance of
probab ilities. He further argued that Dr De Kock’s opinion should be accepted and
that of Dr Van Der Merwe be rejected on the basis of contradictions she made.
[25] Conversely, Mr Mtshabe SC argued that the plaintiff’s decision to carry over
courses from previo us years to subsequent years was unrelated t o the defendant’s
negligent treatment of her child. Even if the child’s injury had affected the plaintiff’s
studies , there was no evidence to support this claim. Counsel referenced to NK v
Member of the Executive Council for Health , Eastern Cape4 (NK). He contended
that expert testimony such as from an educational or clinical psychologist was
1 Pillay v Krishna 1946 AD at 952.
2 2016 (1) SA 325 (CC), 2015 (12) BCLR 1471 (CC) (14 October 2015 ) at para 36.
3 Michael and Another v Linsfield Park Clinic (Pty)(Ltd) and Another (1) (361/98) [2001] ZASCA 12;
[2002] 1 All SA 384 (A) (13 March 2001).
4 (502/2017) [2023] ZAECBHC 24.
necessary to establish the impact of shock and trauma on the plaintiff’s academic
performance, as the plaintiff herself is not an expert.
[26] With the se principles in mind , I will now proceed to apply the analytical
process to the facts of this particular case. Although the defendant’s expert Dr Van
Der Merwe acknowledge d contradictions between her first and second re ports, she
failed to adequately justify her second opinion, despite conceding that opinions
should be based on facts . During cross -examination, she made several crucial
concessions, including:
(a) The plaintiff’s child paralysis impacted her studies; the time spent caring for
the child delayed her studies;
(b) The plaintiff’s educational failures could be attributed to her child’s illness and
her caregiving role, including standing in hospital long queues;
(c) And that the plaintiff’s role in caring fo r her sick child must have had both
physical and emotional impacts;
(d) She further conceded that the plaintiff had to play various roles, and due to
her experiences, she could not pass all her subjects.
[27] I acknowledge all the shortcomings in Dr Van Der Merwe’s testimony.
However, what was stated in AM and Another v MEC, Health, Western Cape5finds
relevance in this case. The court per Wallis JA (with Swain, Mokgohloa and Dlodlo
JJA concurring) held :
‘[21] The opinions of expert witnesses involve the drawing of inference from
the facts . The inferences must be reasonably capable of being draw n from
those facts. If they are tenuous , or far -fetched they cannot from the foundation
for the court to make any findings of fact. Furthermore, in any process of
reasoning the drawing of inferences from the facts must be based on the
5 (1258/ 2018) [ 2020] ZASCA 89, 2021 (3) SA 337 (SCA) (31 July 2020).
admitted or proven fa cts and not a matter of speculation. As Lord Wright said
in his speech in Caswell v Powell Duffryn Associated Collieries Ltd :
‘Inference must be carefully distinguished from speculation. There can
be no inference unless there are objective facts from which the
inference to infer the other facts which it is sought to establish…But if
there are no positive proved facts from which th e inference can be
made, the method of inference and what is left is mere speculation or
conjecture .’ [footnotes omitted].
[28] In this instance, when Dr Van Der Merwe prepared the first report which
motivated her to make certain agreements with Dr De Kock, she had already
considered all the circumstances surrounding the plaintiff’s case. There was no new
information that could have motivated her to change her initial position. Therefore, I
reject the second report dated 3 March 2023 on the basis that it was insufficiently
motivated.
[29] On the other hand, it would be a wrong approach to entirely reject Dr Van
Der Merwe’s evidence based on credibility concerns, as suggested by Mr Schoeman
SC. It must be acknowledged that although testifying for the defendant , she re-
affirmed her initial opinion that the plaintiff’s academic progress was impacted by the
defendant’s negligent treatment of her child.
[30] Notwithstanding the fact that the plaintiff was not a perfect witness when
viewed in isolation, her evidence made logical sense when considered in the context
of the entire case. Most of the facts presented by the plaintiff regarding the timeline
of event s and her experiences in caring for her child during this difficult journey are
common cause. In my view, b oth experts strengthened the reliability of the plaintiff’s
evidence to a great extent.
[31] Therefore, i n the overall scheme of things, the court is faced with the
evidence of two industrial psychologists who agreed with the plaintiff’s version that
the defendant’s negligent treatment of the child significantly harmed the timely
completion of her studies. The question arises whether the veracity of their evidence
is questionable given their speciali sation as industrial psychologists rather than
educational or clinical psychologists.
[32] The defendant’ s challenge to Dr De Kock’s opinion based on speciality is
startling, given that he also called Dr De Van Der Merwe, an industrial psychologist ,
and a colleague of De Kock to rebut his opinion. If his approach were legally valid in
this regard, one would expect him to have called a clinical or educational
psychologist to rebut Dr De Kock’s stance. In my analysis, after Dr Van Der Merwe
made crucial concessions, the defendant opted to deem the industrial psychologists’
opinions irrelevant. This approach is not supported by the circumstances of this
case.
[33] Therefore, there is no legal or factual basis to discount the evidence of the
two psychologists especially where they agree . As experts in the field of psychology ,
they provided the court with general knowledge concerning their discipline . Their
opinion s remain relevant , and their credentials were never placed in dispute. The
information they provided was necessary to assist the court, which it did rather than
usurp ing its function.
[34] Furthermore, the plaintiff’s case is distinguishable from NK6, a case that I
was referred to by the defendant’s counsel . In NK, the court criticised the plaintiff’s
reliance on the expert opinion of a gynaecologist regarding psychological trauma and
depression emanating from the birth of her brain damaged child , noting that the
expert lacked expertise in psychology. In contrast, the current case focuses on delay
in completing studies caused by the defendant’s negligen t treatme nt of the plaintiff’s
child. The plaintiff did not testify that she suffered from depression or psychological
trauma.
[35] Therefore, the evidence before this court is sufficient to prove on a balance
of probabilities that the defendant’s negligent treatment of the plaintiff’s child delayed
the plaintiff’s academic progress . Given Dr Van Der Merwe’s significant concessions,
6 Fn 4 supra .
this fact remains uncontroverted, and the defendant’s plea of contributory delay is
unfounded.
[36] The next issue is the quantification of loss of earnings. Mr Schoeman SC
submitted that the court would consider the actuary’s calc ulations of the plaintiff’s
loss dated 03 May 2024. He referenced to a plet hora of authorities and prayed that
regarding the pre -morbid scenario, the court should apply 5% which is the normal
contingency and 15% in respect of the past and future loss of income. In respect of
post-morbid scenario, so he submitted, the court would apply higher contingencies
as per the testimony of Dr De Kock, consequently contingency of 35% in respect of
future loss of earnings should be applied.
[37] Conversely, Mr Mtshabe SC argued that the court cannot gran t the propose d
figures on page 29 of the plaintiff’s head of argument which are derived from an
actuarial report dated 3 May 2024 as they contradict the plaintiff’s pleaded case.
Furthermore, there is no evidence from either the plaintiff or De Kock justifying the
R9,6 58,088 award, as his evidence pertains to a scenario where a person would
work as a human resource personnel member until retirement. The plaintiff could
have called the actuary to justify her calculations, so he argued.
[38] The legal position is that an enquiry into the damages for loss of earnings is
to its nature speculative because it involves a prediction as to the future without the
benefit of crystal balls, soothsayers, augers or oracles. All the court can do is to
make an estimate, which is often a very rough estimate of the present value of a
loss.7
[39] When determining a suitable contingency allowance, some subjective
judgment is unavoidable, as predicting the future is not a judicial skill. This
proposition was supported by Margo J in Goodall v President Insurance Co Ltd8,
where he held:
7 Southern Insurance Association Ltd v Bailey NO 1984(1) SA 98.
8 1978(1) SA 389 (W) at 392H -393A.
‘In the assessment of a proper allowance for contingencies arbitrary
considerations must inevitably play a part, for the art or science of foretelling
the future so confidently practised by ancient prophets and soothsayers, and by
modern authors of certain type of almanack, is not numbered among the
qualification of a judicial office. ’
[40] Although the defendant’s counsel contested the calculations of the actuary
dated 3 May 2024, he provided no updated recommendations or alternative s to
assist the court in determining a suitable award. Furthermore, regarding the possible
award , he cited no authorities for the court’s consideration. Notably, Dr Van Der
Merwe conceded that her projecti on of the plaintiff working half -a-day was illogical.
Therefore, no reliance can be placed in her project ions.
[41] After reviewing the current actuarial calculations dated 16 January 2025
which assume that the plaintiff would start studies in 2026 unt il 2030, contrary to the
03 May report assumption of 2024, I conclude that the earlier reports favour the
defendant due to the increased claim amount in the new calculations. The updated
calculations dated 16 January 2025, estimate a total loss of income t o be
R10,928, 723.
[42] Having considered the circumstances of this case, specifically the plaintiff’s
age, the unemployment rate including the tremendous delay in her studies, I adopt
the actuary’s calculations dated 03 May 2024. I further conclude that the application
of higher contingency deduction of 35% in respect of future loss of earnings in the
post-morbid scenario is justified. The adopted calculations are as follows:
Item of loss Past Income Future
Income Total
Income
PRE-MORBID SCENARIO
Income had incident not
occurred 3256460 12271315 15527775
Less contingency of 5%
for past and 15% for 162823 1840697
future income
Pre-morbid loss of
income 3093637 10430618 13524254
PRE-MORBID SCENARIO
Income having regard to
the incident / joint minute - 5947947
Less contingence of 35% 2081781 3866166
TOTAL LOSS OF INCOME
Pre-morbid less post -
morbid loss of income 9658088
Order
[43] Consequently, the draft order is hereby incorporated into and made part of
the court order as follows:
1. The defendant is ordered to pay the plaintiff the amount of
R9,658,088.00 in respect of her claim for loss of past and future income.
2. The defendant is furthermore ordered to pay the aforesaid amount
within 14 (fourteen) days of date of this judgment, failing which interest will
accrue at the prevailing legal rate from 14 (fourteen) days after date of order
to date of final payment.
3. The aforementioned amounts are to be paid into the trust account of
Mpambaniso Attorneys, with the following details:
Account Name: Mpambaniso Inc. Attorneys
Bank: Nedbank
Account No.: 1[...]
Branch code: 118420
4. The defendant is ordered to p ay the costs of the hearing of the matter
together with all reserved costs, if any, on scale C, together with interest
thereon at the legal rate from a date 14 (fourteen) days after allocatur and/or
agreement to date of payment, which costs will furthermor e include:
4.1 The costs of two counsel, where utilized.
4.2 The costs of the hearing on 3 and 4 June 2024, 9 and 10
December 2024 and 16 January 2025, including counsel’s fees.
4.3 The costs of preparing for consultations and trial.
4.4 The costs of obtaining the court record, perusal thereof and
preparation thereon.
4.5 The costs of preparing heads of argument.
4.6 The travelling and accommodation expenses, if any, of the
Plaintiff’ s legal representatives attending consultations with witnesses
and court.
4.7 The reservation fees, if any, together with the qualifying fees, if
any, of the Plaintiff’s expert witnesses, Dr Gideon De Kock and IAC
Actuaries, relating to the abovementio ned issue, together with travelling
costs and accommodation costs, if any, in respect of the
abovementioned witnesses.
_______________________
N CENGANI -MBAKAZA
ACTING JUDGE OF THE HIGH COURT
Appearances
For the Plaintiff : Adv A.D Schoeman SC. with Adv H.B. Ayerst
Instructed by : MPAMBANISO ATTORNEYS
C/o VAPI ATTORNEYS
Mthatha
Ref.: PJQ/tb/CIV8216
For the Defendant : Adv N.R. Mtshabe. SC with Adv Z. Madlanga
Instructed by : STATE ATTORNEY
Mthatha
Ref.: 1147/14 -A2
Date Heard : 16 January 2025
Date Delivered : 22 April 2025