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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 34666/2018
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS JUDGES: NO
(3) REVISED
DATE: 2025/06/26
SIGNATURE:
In the matter between:
L.S.W. FIRST PLAINTIFF
(O.B.O. F .B.W.)
F.B.W. SECOND PLAINTIFF
(O.B.O. F .B.W.)
and
THE PREM IER, GAUTENG PROVINCE FIRST DEFENDANT
THE MEC FOR HEALTH AND SOCIAL SECOND DEFENDANT
DEVELOPMENT, GAUTENG PROVINCE
JUDGMENT
MOTHA, J :
Introductio n
(1) F.B.W. was born o n 27 February 2012, and due to intrauterine severe oxygen
deprivation during his delivery, he suffered a serious brain injury that manifested in
cerebral palsy (CP). Following an unopposed application in term s of Rule 33(4) of
the Uniform Rules of Court, the issue of liability was separated from quantum , which
was postpon ed sine die . Accordingly, the issues for determination are th ose of
negligence and causation.
(2) Since some of the medical experts of the plaintiff hail from Cape Town, it was
agreed that the trial would be in a hybrid format , part physical and part virtual .
Several medical experts testified on behalf of the parties , six to be e xact. In addition,
the first plaintiff was the sole factual witness regarding her treatment at the Tshwane
District Hospital (“ TDH”). Neither the doctor(s) nor any nursing staff identified in the
hospital records were called to testify . The par ties agreed that the re was no need to
traverse the joint minutes of the specialist physicians because that evidence was
relevant to the issue of quantum. Therefore, the evidence to be examined was that of
the Radiologists, Neurologists, G enetists, Obstetr ician Gynaecologists ,
Paediatricians and Midwives .
(3) The issues were considered by all the afor ementioned experts , each of whom
had a counterpart , and result ed in the compilation of joint minutes . These joint
minutes significantly narrowed the issues and eliminated the ne ed to call those
experts without disagreements recorded in the ir joint minutes.
The parties
(4) The first plaintiff is L.S.W., an adult female born on 23 August 1991 , who acts
in her personal and representative cap acity as the mother of the patient, F.B.W.
(5) The second plaintiff is B.F.W., an adult male born on 15 January 1983 , who
acts in his personal and representative capacity as the father of the patient, F.B.W.
(6) The first defendant is the Premier of Gauteng Province, who is cited in his
official capacity as the head of the Department of Health of the Provincial
Government of Gauteng P rovince .
(7) The second defendant is the MEC for Health , Gauteng Province, who is cited
in her official capacity as the Head of the Department of Health of the Provincial
Government of Gauteng Province .
The plaintiffs’ case
(8) The first plaintiff testified that sh e currently resides in Eersterus Township and
was 19 years old at the time of her pregnancy. On 26 February 2012, she
experienced labour pains at around 04h00 and presented herself at Tshwane District
Hospital (TDH) at a pproximately 06h00 . She was advised that her cervix was 1 cm
dilated and since the pain was not severe, she decided to go back home. When her
contractions increased and became stronger, she returned to TDH between 10h00
and 11h00 Upon the assessment of her cervix, she was admitted with a cervical
dilation of between 2 and 3 centimeters .
(9) To increase the cervical dilation, she was instructed to walk a round and a
heart machine was attached to her to monitor the heartbeat of the baby . At
approximate ly 20h00 , she felt her contractions intensif ying and communicated to the
nurses that she felt as though the baby wanted to come out. A drip was administered
to increase the contractions , and a heart machine was reapplied to her. After
returning from the ladies’ room, she accidentally pulled out the drip , which resulted in
her bed being soaked in blood. Consequently, they switch ed her to another bed, and
shortly thereafter , she lost consciousness. Between 00h00 and 00h30, she was
awakened, moved to the labor ward, and informed that it was time.
(10) It was her testimony that two nurses attended to her, one on her right side and
the other at the end of her feet , at the labour ward . The nurse on her right side
placed her hands below her breast and pushed down on her stomach, she stated.
This is what the experts refer to as funda l pressure. She estimated that this process
endured for about 20 minutes , and the baby was delivered , neither crying nor
breathing , at 02h30 . She mentioned that she overheard the doctor telling the nurses
that she should have delivered a long time ago. She was discharged later that
afternoon .
Cross -examination
(11) Under cross -examination, she testified that a cardioto cography (CTG)
machine was not on her at all time s, save from 20h00 until she switched beds. Her
cross -examination was uneventful, as her testimony was unchallenged .
(12) In response to the court’ s questions, she mentioned that she stopped the
consumption of alcohol when she became aware of her pregnancy , and reduced her
cigarette intake to a pproximately 2 to 3 cigarettes per day.
(13) Overall, her testimony was reliable and candid . She was credi ble and did not
shy away from taking the court into her confidence. For example, she openly
admitted to smoking during her pregnancy.
The u ncontested joint minutes
(14) The Geneticists, Neurologists , and Radiologists reduced their testimonies into
joint minutes , which w ere submitted as uncontested evidence and accepted as
common cause between the parties1. In the main, t heir agreements were recorded
as follow s:
The Radiologists [Dr. T. Kamolane for the defendant and Prof.Andronikou for
the plaintiff ]
1 Defendant’s heads of argument para 5.2.3
(15) These experts agree d that: -
The MRI demonstrate d a basal -ganglia -thalamus [BGT] pattern of hypoxic -
ischemic injury in the chronic stage of evolution. TK submitted that the
features were consistent with acute profound hypoxic brain injury in a term
brain, now in the stage of evolution. They also agree d that there were no
features to suggest a congenital infection or malformation.
Neurologists [Drs. D. Pearce , for the plaintiff and V.R. Mogashoa for the
defendant ]
(16) The neurologists agree d as follows:
“4. We agree that F has an asymmetrical mixed -type cerebral palsy,
predominantly dystonic. He is classified as GMFCS V, (Gross motor functional
classification scale) and CFCSV (Communication functional classification
scale)
5. We agree that F is incapable of independent mobility and his co -
morbidities include profound intellectual disability, early contractures,
microcephaly, pseudobulbar palsy, previous epilepsy (according to the records
from Steve Biko), possible subluxation of his hips, wasting and nutritio nal
concerns, and severe developmental delay.
6. We agree that the MRI which was performed on 15/06/2018 reveals the
following features: The MRI study identifies features that constitute an acute
profound hypoxic -ischemic injury of a term brain at a chron ic stage of
evolution. There are no MRI features to suggest intracranial: congenital
infections, congenital anomalies, metabolic disorders, inflammatory
conditions , or haemorrhage.
7. We agree that the clinical examination concluded by Dr . Pearce and Dr .
Mogashoa of F is in keeping with the aforesaid MRI findings .
THE AETIOLOGY OF F’S NEUROLOGICAL DISABILITY
8. We agree that F fulfils the criteria for the diagnosis of a Grade II -III neonatal
encephalopathy (According to Samat classification)
9. In determining the aetiology of F’s neonatal encephalopathy we have
excluded, as far as possible, the following aetiologies: congenital brain
abnormalities, intrauterine growth restriction, intracranial haemorrhage,
neonatal infection, genetic disorders, inborn errors of metabolism and
acquired metabolic causes.
9.1. We have deferred maternal medication and placental insufficiency to
expert obstetric opinion.
10. Having regard to ACOG 2003 and 2019 we are of the opinion that when
considering intrapartum hypoxia and the aetiology of cerebral palsy, F fulfils
sufficient criteria.
10.1 metabolic acidosis – pH 7. 06/pC02 21/BE -22.3/ HC03 6 .1
Severe metabol ic acidosis. Gas taken 90 minutes after del ivery. – fulfils
criteria
10.2 early onset of neonatal ence phalopathy (HIE II -III) – fulfils crite ria
10.3 cerebral palsy of mixed type, predominantly dystonic - fulfills criteria
10.4 exclusion of other identifiable causes -excluded as far as possible
provided based on records available.
10.5 APGA R score of 2 and 4 at 1 and 5 minutes respectively . - fulfills criteria
10.6 Multisystem involvement : Evidence of respiratory, autonomic and
neurological dysfunction noted
10.7 early imaging of acute non -focal cerebral abnormality - cranial sonar
showed inhomogen eous parenchyma
10.8 sentinel hypoxi c event /deterioration in f oetal heart rate following the
event - defer obstetric opinion
11. We agree that the timing of the insult is most likely intrapartum.
12. We agree that having regard of ACOG 2019, and based on available
records, intrapartum hypoxia is the most probable cause of the neonatal
encephalopathy in this child.
13. We theref ore agree that F’s condition is most likely the result of
intrapartum hypoxia.
14. Possible risk factors include maternal nicotine exposure, prolonged labour,
meconium -stained liquor and fetal distress. We defer the management of
these and their possible contribution to the expert obstetrician.
Geneticists [Drs. G.S.Gericke for the plaintiff and L . Bhengu for the
defendants ]
(17) In a nutshell , these experts ’ agreement can be summed up as follows:
F.B.W. ’s birthweight was 2700 g, length 48cm, head circumference 34cm.
These measures are in keeping with the gestational age at delivery and thus it
is clear that there was no intrauterine growth retardation (IUGI) which would
have been indicative of an intrauterine/antenatal factor in fluencing the delivery
outcome. Furthermore, the normal head circumference at birth, with
microcephaly subsequently developing would be in keeping with the effects of
intrapartum hypoxic ischemic on the postnatal evolving brain.
In summary, none of the a vailable facts are as yet contradictory to the
outcome of a clinical genetic investigation , which indicates the absence of a
genetic contributor/underlying hereditary predisposing factor for EM to have
suffered birth asphyxia and/or to develop cerebral pal sy associated with
global developmental delay. No genetic syndromic features were found
clinically or with MRI neuroimaging , and no further investigations or laboratory
testing appear to be warranted under the present circumstances.
The findings in this case comply with the baby having suffered intrapartum
birth asphyxia and neonatal encephalopathy. The presentation of a mixed
cerebral with no syndromic features , even without relevant MRI findings of
hypoxic ischemic injury , suggests a linked chain from a n intrapartum injury to
the current neurological presentation.
With regard to commenting on labour , neonatal management , and cause(s)
considered to have resulted in the adverse neurological outcome , they defer
to obstetric, neonatal , and pa ediatric ne urological experts.
The second witness for the plaintiff was Professor Edward John Coetzee , an
Obstetrician and Gynaecologist .
(18) His opening remarks were that neither alcohol nor smoking could be linked to
the subsequent condition of neonatal encephalopathy and mixed -type cerebral palsy
suffered by F.B.W.
(19) Commenc ing his testimony , he focused on the CTG tracings and said he had
sight of five CTG tracings , to wit: 06h20, 17h30, 00h19, 00h50 , and 01h20 CTG
tracings. He explained that the normal foetal heart rate (FHR) is placed at 110 beats
per minute (bpm) in some textbooks , but he placed it at 160 bpm. When interpreting
a CTG trac ing, one would observe short -term variability of at least 5 bpm, as the
foetal heart rate was constantly oscillat ing, he said . Further , he clarified that
accelerations were defined as increases in the foetal heartbeat of at least 15 bpm
lasting for a minimum of 15 seconds, while decelerations refer red to the foetal heart
rate decreas ing by at least 15 bpm sustained over at least 15 seconds.
(20) When i nterpreting the 00H1 9 CTG trac ing, he stated that it showed that there
was reduced short -term variabilit y and demonstrated five decelerations that lasted
for more than 15 bpm, and some lasted for 3 minutes . This , he said , was a long time
for a baby’s heart rate to go down to that low level.
(21) Commenting on t he 00h50 CTG trac ing, he stated that it was difficult to
interpret as the mother was restless, and it was recorded so on the trace report.
Following some probing questions, he said that he saw a few decelerations. He,
then, focused on the 01h20 CTG trac ing and described the decelerations as subtle.
(22) Finally, he commented on the 17h30 CTG trac ing, which he regarded as
reassuring . This trac ing was recorded approximately 5 hours and 40 minutes after
the plaintiff’s a dmission at TDH .
(23) Unpacking and e xplaining the science behind CTG s, he stated that the
deceleration can be compartmentalised into two: (1) Early decelerations which are
caused by the contractions on the baby’s head which cause the slowing of the
heartbeat, but the moment the contraction relaxe s, the pressure on the head also
relaxes, and the baby’s heart rate goes up again. That is a nerve reaction to the
contraction. (2) Late deceleration , which is the delay that lasts longer than the
contraction. This is more likely to be indicati ve of hypoxia. Of paramount importance
was his statement that there was nothing absolute about CTG or FHR ; rather , its
value lay in suggesti ng th e possibility of hypoxia and indicating that the foetus might
not be coping with the stress of labour.
(24) He emphasised that the court need ed to understand that , during the
contractions in labour , the baby virtually gets no oxygen from the mother, as the
oxygen supply is suddenly cut off . Once the contraction ends, oxygen flow resumes .
Therefore, a baby is a little hypoxic with every contraction . However, if the baby fails
to recover adequately between contraction s, it usually signifies that the hypoxia
persist s beyond the contractions.
(25) Referring to the 00h19 CTG trac ing as horrendous, he opined that the
preparation for a Caesarean section (C-section ) should have been initiated at that
time. Given the severity of the CTG tracing, he insisted that a C -section should have
been done within 30 minutes , and certainly within an hour .
(26) To the q uestion that Dr. Mbokota only saw one deceleration at 00h19 , he
firmly disagreed that one could see one deceleration.
(27) He lamented the absence of CTG tracings from 01h20 and expressed doubt
about the swift cervical dilation of the plaintiff from 3 cm to 9cm within approximately
30 minutes. Furthermore, he criticised the quality of the midwife’s clinical notes and
the partogram , describing them as extremely poor and lacking in essential
information. This was in direct contr avent ion of the Maternal G uidelines2 , which
require d that the FHR be recorded hourly, and during active labour , at least every
half hour or after every second or third contraction ; none of this was done , he stated .
2 guidelines for maternal care in South Africa Department of Health Republic of South Africa 2007
third edition
(28) Responding to a question about the fundal pressure, he said that it was not
recommended , and given that the uterus was contracting , it was most unus ual. He
interpreted t his as an indication that the nurses were worried and questioned the
decision to resort to episiotomy . At the time of this labou r, epis iotomy was frown ed
upon and only pe rformed if it was evident that the baby could not make it out of the
mother’s perineum without assistance.
(29) He queried the APGAR score of 2, which is given for a heart rate higher than
100 bpm. Considering that the baby’ s heart rate was 40 bpm upon arrival at Steve
Biko Hospital (SBH) and s eeing that it was hypoxic, not breathing , and its colour was
blue, he doubted the score . He , however, on this score , deferred to the
neonatologists. On the weight of the baby, he deferred to the Paediatricians and Prof
Smith and said it was a borderline case. To determine IUGI, he mentioned that one
of the most important organs was the placenta. To him , the weight issue was
irrelevant because when the mother arrived at TDH, her CTG was normal , with a
well-oxygenated baby.
(30) Responding to the question about the administration of pethidine and atarax,
he testified that the attending staff ought to have been concerned about the
preparation for a C-section, rather than administering medicine that would depress
the baby’s respiration after birth. With regard to the Neurologists’ joint minutes, h e
deferred to the m.
(31) Before dealing with the issues of smoking and birthweight, i t bears mentioning
that co unsel for the plaintiff mentioned that alcohol and cigarettes were not issue s for
determination by this court , but an issue between the OBSTETRICIAN AND
GYNACOLOGISTS (My e mphasis ). When he was asked to comment on those
issues, he testified that smoking two to five cigarettes a day did not lead to cerebral
palsy ( CP). He added that small er mother s tended to have small er babies , and there
was no IUG R in this case. Instead, he testified, the abnormal CTG tracing pointed to
an intrapa rtum event as the likely cause of the CP. He remarked that the placenta
was neither weighted nor examined , with the only recorded observation being that it
was flat and round.
Cross -examination
(32) In response to the q uestion about his opinion that a C -section should have
been performe d following what he described as a “horrendous ly abnormal CTG
pattern soon after 0 0h19 when she was only 3cm dilated, with deep prolonged FHR
decelerations3,” as recorded in his report, he reaffirmed his position a nd added that
the presence of meconium stain liquor (MSL) should not be overlooked . He recorded
that the doctor was over an hour late.
(33) He recanted his statement that the baby was small for gestational age and
said the 10th percentil e does not reach small for gestational age and deferred to Prof
Smith.
(34) He was confronted with the contents of paragraph 8 of his report , which read :
“Of note is the fact that this newborn only weighed 2.7 kg at almost 39 weeks ,
which makes him small for gestational age (see Prof Smith’s notes). This
could have been due to placental insufficiency (mother was a smoker), which
was not detected, and this could explain why the fetal condition deteriorated
so rapidly.”
(35) He testified that something was supposed to have been done when they
realized that the baby was hypoxic, but nothing was done. He insisted that when the
mother arrived at the hospital , the baby was healthy.
(36) Referring to his statement : “However, despi te the rapid 2nd stage mother
needed an episiotomy because she struggled to push ,” he said he did not
understand because this appeared to have been an easy delivery , yet fungal
pressure was applied.
(37) Asked about the Pediatricians’ agreement that the normal red blood cell count
“(NRBC) was strong evidence against a prolonged ( > 6 hours ) exposure to
3 Medicolegal report page 8.
intrauterine hypoxia”4, he agreed with the Pediatricians tha t the hypoxia was not
prolonged, as “there was a hypoxic incident at least 00.00 on 27/2/2012 till birth .”5
He stated that this fit in with his argument that this hypoxia happened late in labour.
(38) When confronted with the Neurologist’s agreement that the possible risk
factors for F’s condition - which most likely result from intrapartum hypoxia - included
maternal nicotine exposure, prolonged labour, meconium -stained liquor , and fetal
distress, he said he could not be expected to answer what these experts said.
(39) Whilst he agree d with the midwife’s in itiation of intrauterine resuscitation , he
insisted that the decision to perform a C-section should have been made two hours
earlier . Consequently, he did not agree with the proposition that since delivery
occurred within 25 minutes after the full dilation , a call for a C-section was not
justified . He asserted that by the time the full di lation occurred , a C-section would
have been underway.
(40) He was questioned on his opinion that neither alcohol nor smoking c ould be
linked to the subsequent condition. He disagreed with Dr . Mbokota’s reading of the
00h20 CTG tracing and added that the nurses , too, did not agree with Dr. Mbokota.
Hence, they instituted intrauterine resuscitation , and a fter the said resuscitation , FHR
was better but never reassuring , he stated . The fact that the doctor told the nurse to
monitor for repeat decelerations mean t that there were other decelerations before ,
he asserted.
(41) He testified that , scientifically , he could not explain why Dr . Mbokota
interpreted the 00h19 CTG tracing differently. He acknowle dged that short -term
variability could be open to difference s of opinion , especially in interpreting
oscillations, which is less than five ; other s might see it as above 5 or 6 or 7, but
when it came to decelerations , there was no ambi guity. Decelerations a re clear by
anyone’s definition , decelerations are decelerations , and in all the literature , there is
an agree ment on what a deceleration is, he said . To be courteous to his colleague,
4 Joint minutes of Pediatricians para 1.19
5 Supra para 7
he wrote that “all the difference s in opinion about the interpretation of CTG are based
on our individual professional opinion”6,
(42) Further, h e testified that a single reading of FHR was insufficient , as the
midwife should have stated the FHR before and after the contraction. A single
reading means nothing , he e mphasised .
(43) He disagreed with Dr . Mbokota that this was a precipitous delivery. In
interacting with the court, he explained that, at present , science cannot measure
oxygen supply in vitro; doctors deduc e the foetal supply of oxygen from what is
happening to the FHR , as it is known that when a baby is starved of oxygen , the
heart rate goes down. He agreed that the active phase started at about 02h00 . Had
the timely medical interv ention (C-section ) occurred, the catastrophic results could
probably ha ve been prevented , he said. The court suggested that it would have
taken just as long to prepare for a C -section ; he answered that the C -section could
have been prepared within an hour , and that would have still made a difference.
(44) On further interacti on with the court on the issue of a C -section, he clarif ied
that level 1 hospitals are staffed primarily by midwives ; level 2 hospital s have both
midwives and general doctors, who might not be specialists ; and level 3 hospitals
are fully equipped , including the presence of specialists such as Obstetrician s. It is
common cause that the TDH is a level 1 hospital. After explaining M SL, he dealt with
the issue of smoking and said 10 and 20 cigarettes would be heavy , but in this case ,
that did not play a role. He said there is no proper study on that. On engagement
with the court, he ruled out nicotine as the cause of low birth weight.
(45) He testified that d ue to the limited research his opinion on smoking was based
on decades of his clinical experience, dating back to 1973. He stated that he dealt
with hundreds of cases involving women who smoked during pregnancy, and there is
no evi dence that smoking cause s cerebral palsy.
6 Joint minutes of Obstetricians gynecologists page 5
(46) For the court’s benefit , he explained the physiological changes in labour. He
stated that b efore labour begins , the cervix is about 3cm long . As labour progresses ,
the cervix , which is the mouth of the womb , becomes shorter and shorter as it opens
(dilates ). The dilation from 0 to 10cm is dependent on the phase of labour . The latent
phase of labour is from 0 cm to 5cm dilation . During this stage of labour , the cervix
dilate s by 1 cm every one to two hours . Upon reaching 5 cm, the cervix should dilate
1cm per hour until 10cm dilation is reached , which is called the active phase of
labour .
Paediatricia n Prof J. Smith was the third witness for the plaintiff .
(47) Prof J Smith testified that , in his opinion , it was after midnight that the foetal
condition changed from reassuring to non -reassuring. In the absence of the CTG
tracings before 00h19, he agreed to the proposition that one could not make a
definitive comment on the foetal condition based on CTG tracing s, because the y are
not there. When informed that the mother testified that a CTG monitor was applied
each time her cervical dilation was assessed , he testified that the court was missing
a bulk of CTG tracings.
(48) Commenting on the presence of a meconium -stain ed liquor (MSL) which was
recorded at 00: 09, he said it was a common finding in term pregnancies , but if
accompanied by a non -reassuring foetal status (NRFS ), foetal distress should be
considered. Thick MSL is almost a sine qua non for foetal distress , he stressed. In
casu, he testified that they agreed that one and a half hours after birth , there was a
significant neonatal metabolic acidosis which indicated th at significant prior
(intrapartum) sustained hypoxic -ischemic injury (HIE) to the foetus causing t he
passing of the thick meconium, during the hypoxia and the aspiration as a
consequence thereof.
(49) As he continued his evidence in chief , he stated that in these matters where it
was alleged that labour caused the brain injury, one must have the essen tial
component or doorway (the encephalopathy) through which the asphyxia step s on a
causal pathway to cause cerebral palsy. In this matter, he testified that they agreed
that there was a prior hypoxia that caused acidosis , as a consequence , there was
the development of a neonatal encephalopathy, which is an altered neurological
status of the baby shortly after birth. That was the doorway through which the
hypoxia stepped to cause the eventual cerebral palsy , he testified.
(50) He stated that t he experts agreed that the outcome (mixed cerebral palsy)
was directly related to intrapartum (labour and delivery) sustained hypoxic -ischaemic
brain injury.
(51) Regarding the agreement that baby F was small for the gestational age at 39
weeks, which was probably r elated to some degree of uteroplacental insufficiency,
related to maternal smoking, he testified that the gestational age of 38 weeks would
be appropriate for baby F, and s uggested that he was constitutionally small ( meaning
genetic ally small). Moreover, the placenta was not measured, and all that was
recorded was that it was flat and round, which he said did not help.
(52) He opined that the hypoxia was of a duration shorter than six hours because it
did not cause a significant rise in the n ucleated red blood cells. Given the conclusion
that there is more evidence of a shorter -lived hypoxia than a chronic , prolonged
hypoxia , he testified that this somewhat argue d against a chronic placental
insufficiency before labour.
(53) He pointed out that they agreed that there was no identifiable or recorded
perinatal sentinel or catastrophic event in baby F’s case . In the absence of a sentinel
event , he postulated that suboptimal/ substandard intrapartum obstetric
management emerge d as the probable cause underlying the sequence of events
and the recorded outcome of the baby. He testified that this manifested itself in the
form of the failure to recognise the non -reassur ing foetal status that required
intensive attention and probabl y expedited delivery.
(54) Repeating that it was after midnight that there was a change in the CTG , he
opined that delivery should have been expedited over and above intrapartum
resuscitation . He deferred to the obstetrician on the reading s of CTGs.
(55) In addre ssing the radiologist’s description of the structural brain injury as
acute profound, he clarified that the term acute profound as used by the radiologists
was incorrectly applied since it described the structural brain lesion (basal ganglia -
thalamic [BGT]). He further testified that it was recognised that the terminology
created a problem as it misle adingly suggested a patho genesis involving an abrupt,
short -lived hypoxic event , and this was incorrect .
(56) The radiologists look ed at a static image on an MRI, and without the
knowledge of the clinical context, they could not comment on the process, he stated.
The use of this term did not suggest a brief or abrupt sentinel event ; in this case, the
process of hypoxia was more prolonge d, considering the abnormal CTG trac ing after
midnight , he testified .
(57) They also agreed that maternal smoking was a prevalent cause of intrauterine
growth restriction. He said smoking affect ed the foetal placental function , and if it
was insufficient, it show ed itself during labour, especially as labour progresse d.
“What happens ”, he continued, “was that the uterine contractions become stronger
and longer in duration during the active phase . The hypoxic stress of normal labour
becomes more; thus, an insufficient placenta will not cope with oxygenating the
foetus , and the foetus will show a change in the foetal heart rate . Hence, monitoring
is important .”
(58) He main tained that t here was an association between smoking and low birth
weight, and t he more cigarettes one smoke d, the more likely one would have a
foetus of lower birth weight than a woman who d id not smoke . If one s topped
smoking before the last trimester , that reduce d the risk ; therefore, it all boil ed down
to placental function , he conclude d.
(59) He expressed doub t about the accuracy of the recorded APGAR score of 2
out of 10 because the baby exhibited bradycardia, with a pulse rate below 100 beats
per minute, and required manual respiratory support. Based on this, he suggested
that an APGA R score of 1 out of 10 would have been more correct.
(60) Addressing the issue of fundal pressure, he stated that it is described as a
form of maternal abuse. This ma neuver exerts external pressure on the uterus when
the contractions are at their peak and the mother is bearing down, subjecting the
foetus to three simult aneous forces . He said that t hese forces accumulatively distort
the foetal skull bones, and this mechanical distortion may lead to int racranial
pressure that drops the blood flow to the brain by even 95%.
Cross -examination
(61) He was challenged on his understanding that the mother stopped smoking.
He responded that , save for reducing the fo etal weight, whether she smoked 5, 6, 7,
8, or 9 cigarettes per day, that, in and of itself , had zero chance of causing brain
injury. When asked if he knew when the injury occurred and whether it occurred at
00h19 or 02h00, he answered that it was seldom possible to pinpoint the time of the
injury. He explained that t his type of injury typically follow ed a preceding hypoxic
event , and because of the depletion of foetal reserves , the final insult knock ed the
brain , commonly during the last 20 or 30 minutes of labour. When pressed to state
whether it occurred at 00h19 or 02h00 , he e lucidated that it was the final insult that
occurred during that time , as opposed to the injury. In his opinion, t he threshold for
injury was reached when the significant threshold of acidosis was crossed , which
occurred sometimes after midnight.
(62) Having agreed that 60 minutes was the permitted limit within which to initiate
a C-section , he deferred to the obst etricians for a re asonable response time for a
doctor , since the doctor took a little more than an hour to respond to calls at 00h45
and 01h00 He said that the Neonatolog ists weigh babies after birth. Asked by the
court about CTG and FHR, he said that CTG was not the only instrument used to
measure the foetal heartbeat . He menti oned other instruments such as a foetal
scope or a sensor resembling a sonar probe. As the court continued to interact with
him about the appro priateness of the C -section , he mentioned that other ways could
have been considered such as vacuum or a forceps, what is termed operative
vaginal delivery, which includes episiotomy. He explained that operative v aginal
delivery or assisted va ginal delivery c ould only be done once the cervix was fully
dilated. When questioned about the fact that an episiotomy was done, he said that it
should have been done 20 minutes 40 minutes after midnight. The court pointed out
that she was 3 cm dilated and , therefore , they could not make that call . At this point ,
he mentioned that the C -section should have been opted for.
Prof Du Plessis , a Midwife , was the final plain tiff’s witness .
(63) In their joint minutes , the midwives agreed that, in this case, the midwife did
not act according to Maternity Guidelines. The Guidelines clearly stated that when
dealing with a pati ent in labour, a medical opinion must be obtained if that patient ’s
cervix has not dilated to 4cm (active phase of labour) after 8 hours following her
admission into the facility , she testified . Upon realising that the labour was not
progressing well and 8 hours had passed since admission, s he stressed that
midwi ves should have called a doctor to asses s the reasons for the slow progress.
(64) Discussing the plaintiff’s first stint at TDH at 06h00 , she said that it was not
uncommon, and as a matter of fact, it was a standard practice to send the patient
home for the contractions to get stronger . She noted that the plaintiff was already in
the latent phase of labour with her cervix 1cm dilated.
(65) She testified that there was a prolonged latent phase of labour as she was
admitted at 11h50 am with a cervi cal dilation of between 2 to 3 centimetres. With the
cervix remaining at 3cm dilation at 00h00 , she testified that t he normal protocol
would have been to call a doctor . This was only done at 00h45 , after observing the
non-reassur ing CTG tracing .
(66) The prolonged latent phase of labour c ould be caused by various issues, such
as the malalignment between the baby and th e pelvis (the baby might be too large),
or insufficient ut erine contractions , she said. Therefore , the midwife had to refer the
patient to the doctor to determine the cause of the delay and i ssue appropriate
instruction s for furthe r manage ment , she continued .
(67) Even though t hey agreed with the cause of action of internal resuscitation ,
she testified that i n a situation such as this one of non -reassuring CTG tracing , with a
poor beat -to-beat and decelerations, a proper cause for a midwife is to prepare the
patient for surgery over and above internal resuscitation. The fact that she phoned
the doctor twice was indicative of her concern , she added .
(68) They agreed that the administration of pethidine was incorrect because there
was already meconium and a non-reassuring CTG tracing. She said pethidine has a
depressive effect, and the child becomes floppy after birth, but this can be reversed.
(69) She explained that the progress of labour was poorly plotted on the
partograph, which has a predi ctive nature and was supposed to provide the
midwives with an overview of what was happening to the mother and foetus .
Consequently, she added that they could not interpret that the latent phase was
prolonged , and medical opinion had to be obtained.
Cross -examination
(70) When asked about a doctor’s reasonable response time to a call from a
nurse , she answered that she would not know , but the midwives were concerned ;
hence , they called the doctor twice at 00h45 and 01h00 , and h e arrived at 02h00.
(71) She stated that delay s in such circumstances were unacceptable. Upon re-
examination , she said that on seeing the non -reassuring and possib ly pathological
CTG tracing, her response would have included initiating a drip, administer ing
oxygen , and correct ing the positioning of the patient . Following that, she would have
given the tracing 15 minutes to determine if the condition improve d. She added that
in most cases , a doctor would be contacted simultaneously . In this case, she
continued , the doctor ’s opinion should have been sought at 00h30 The reason for
that was that the decelerations observed on the CTG tracing were continuous ; it was
not just one deceleration or an isolated event , she explained .
(72) The fact that the doctor came an hour and a half late was of great worry. In
respon se to the court’s queries regarding the prolonged latent phase, she stated that
the applicable Guideline provided that where there is no progr ess in labour 8 hours
after the admi ssion of a patient , a doctor must be consulted . The court enquired what
could have been the p roper course of action if at 20h00 the CTG trac ing was still
reassuring, she mentioned that under such circumstances where the foetal heart rate
(FHR) remained normal , the Guidelines d ictate that the membran es should be
ruptured, or labour be augmented. To augment labour, she explained, typically
involved the administ ration of medication such as oxytocin , via a n intravenous drip,
to stre ngthen the uterine contractions, if that was ident ified as the cause of the delay.
(73) She testified that 20h00 would have been the correct time to call the doctor ,
who could have changed the plan of action and taken the decision for C -section
before the foetal distress, or the foetal problems occurred. She referred the court to
Regulation 2488 of the Nursing Act, which regulates the practice of midwives and
prescrib es that a midwife must obtain a medical opinion when labour is prolonged at
any stage. The Maternity Guidelines 2007 regulate the 8 -hour stage of the latent
phase , she concluded .
Defendants’ case
The defendants’ first witness was Dr. Mbokota , an Obstetrician -Gynecologist
Dr. Mbokota was cross -examined extensively and at length . The following constitutes
his testimony.
(74) Firing an opening salvo , he testified that there was nothing the hospital staff
could have done to alter the outcome of this matter. The hypoxic -ischemic
encephalopathy (HIE) was not preventable. He testified that when the first plaintiff
arrived at the hospital , the fetal condition was normal . She disclos ed a history of
cigarette smoking and social alcohol consumption . He conceded that her latent
phase of labour was slightly prolonged , lasting for approximately 13 hours instead of
8 hours , but that did not have an impact on the outcome of the pregnancy , because ,
throughout that prolonged period, the fetal condition remained normal . He related
that she had a quick progression of labour from 3 centimeters to full dilat ion in a
space of two hours, from 00h30 to 02h00 , when she became fully dilated. He
testified that t his suggested that she had what they call precipitous labour.
(75) Cigarette smoking during pregnancy was a major risk factor for what is called ,
in utero placenta insufficiency , IUGI, he ass erted . The nicotine in the cigarette affect s
the blood vessels in the body , including the blood vessels in the placenta , by
reducing the efficiency of the placenta in transferring oxygen and nutrients from the
mother to the baby , he attested . Consequently, she entered labor with the placenta
with reduced reserves , and that put her at risk of rapid decompensation during the
stress of labour , he continued .
(76) He opined that s he suffered an acute fetal compromise durin g the second
stage of labour. He illuminated the stages of labour as follows: The first stage of
labour has two phases , namely the latent and active phase s. The latent phase is
from 0 to 4 cm cervical dilation , and the active phase is from 4cm to 10 cm cervical
dilation . The second stage of labor is from the 10-centimeter cervical dilation up to
the time the baby is deliver ed. The final stage is the delivery of the placenta.
(77) During the active phase of labour at approximately 02h05, when she was fully
dilated, s he suffered a foetal compromise , which he said necessitated that the
delivery be expedited . The method chosen to be utilized was depen dent on the
available time. He explained that t he quickest way of delivery was for the mother to
bear down and deliver the baby through spontaneous pushing . If that was not
feasible, the next option include d assisted de livery using either a vacuum device,
which would typically be applied to the bab y’s head to facilitate delivery , or forceps ,
which resemble jaws that would be placed around the baby's head to aid delivery.
Finally, a Cesarean section , which require d more time for preparation. Vacuum and
the forceps usually took about 15 to 20 minutes to prepare , and t he Cesarean
section t ook about 60 minutes , he concluded . Therefore, at that time , they had to
determine the quickest and safest way of deli very.
(78) In this case, t he baby decompensated , which meant the heart failed to provide
oxygen to the brain during the active phase of labor ; he maint ained. He sai d the
most likely cause s of this were : first , there was in utero placenta insufficiency, IUGI
as a result of alcohol , and second , the baby may have aspirated meconium , which
had to be confirmed by the neonatologists and pediatricians . When the baby
aspirates the MSL, its effects are seen after birth . MSL is a stool that bab ies normally
pass still in the womb , and generally , it is pass ed before go ing into labour or during
labour when the baby experiences episodes of distress , he narrated . They are
normally grouped into three grade s. Grade one is usually very thin and gets passed
before the baby goes into labour, grade two is greenish , and grade three is a thick
meconium , which indicates that it was passed recently .
(79) The type of injury that the baby suffered, as contained in the radiologist 's
report , suggested that the baby had an acute profound hypoxic injury , he asse rted.
By definition , this type of injury occurs when there is a complete blockage of blood
and oxygen supply to the baby for a period of not less than 10 minutes ; furthermore,
he said that i f that blockage last ed for longer than 25 to 30 minutes , the baby would
die in the womb. Therefore , when the baby is born alive, doctors deduce that the
injury would have occurred at least 30 minutes before birth. Regarding how she was
managed during labour, he reiterated that she had a slightly prolonged latent phase
of labour , which , in his opinion , did not affect the outcome. If it did , the type of injury
observed would have been what is called a partially prolonged injury , he con cluded .
(80) Exam ining the issue of CTG tracing , he explained that a CTG has two probes :
one probe records the fetal heart rate, and the other probe record s the contractions
of the mother . The readings produce d a graph that would be interpreted . In
interpreting the graph , some rules had to be followed , namely: examining the heart
rate, rhythm , variabi lity, and whether there were accelerations or decelerations , he
averred . He explained that t he CTG tracing could either be normal (reassuring ),
abnormal (pathological ), or in between (non-reassuring ).
(81) At approximately 00h30, the staff interpreted the CTG tracing as non-
reassuring , and he agreed with their interpretation . He testified that midwives
follow ed the Guidelines by initiating intrapartum fetal resuscitation , which entail ed
altering the position in whi ch the m other was lying, administering oxyge n, and putting
her on a drip . The y continue d monitoring to observe if the fetal heart improve d. If it
improve d, they would allow labour to progress , but if it did not improve , they were
expected to intervene , either through the C -section or using the two other methods
mentioned above , depending on how far she was in labor , he testified .
(82) His view was that t he staff intervened timely which resulted in the
improvement of the CTG , hence the labour was allowed to progress . Accordingly, the
doctor agreed with the staff and instructed them to continue monitoring her with
specific attention to any further decelerations , as she was about 4cm dilated .
Thereafter, s he progressed rapidly to almost full dila tion by 2h05 and went on to
deliver the child vaginally . He testified that i t was during delivery that she suffered
acute distress , which resulted in this acute profound hypoxia injury. When such
distress occurs , all that one does is simply to expedite the delivery and hope that one
will deliver the baby quick ly enough before the onset of an injury. He mentioned that
the chronology of events is the distress , then an insult , and finally an injury . By the
time one sees the FHR changes , it means the baby ’s heart is struggling to pump
enough blood to the baby's brain . So, if one can deliver the baby quickly , one would
save the baby. Thus, he conclude d that this outcome was not preventable. Had the
staff opted for the C -section, it would have taken one hour , which would have been
well after 2h30 , he stated. Likewise, the other options would not have been of any
assistance because they would have taken 15 to 20 minutes , he reasoned.
Therefore, th e intervention would not have helped ; hence , his conclusion.
(83) When questioned about what con stitutes a reasonable response time for
doctors to attend to an emerg ency call , he said 30 minutes was , on average , a
reasonable time. He noted that the mother was restless , and to calm her , she was
sedated with opiates in the form of pethidine an d ataraxia, which prevents the side
effect s of opi ates. He sugg ested that since t he clinical notes were written at 02h00 ,
the doctor must have arrived before 02h00 , because he would have first assess ed
the patient before writing the notes . The doctor allowed the labour to progress and
ment ioned regular with FHR at 128 bpm. He testified that he saw up to seven ( 7)
CTG tracings , namely:
“CTG TRACINGS
5.1. CTG done on 26/02/2012 at 06h10: this trace is reactive with baseline
FHR of 150 bpm, good variability and accelerations.
5.2. CTG done on 26/02/2012 at 11h18: this trace is reactive with baseline
FHR of 140 bpm, good variability and accelerations.
5.3. CTG done on 26/02/2012 at 17h30: this trace is reactive with baseline
FHR of 145 bpm, good variability and accelerations.
5.4. CTG done on 26/02/2012 at 23h56: this part of the trace shows poor
contact with lots of interference, impossible to interpret.
5.5. CTG done on :27/02/2012 starting at 00h20 to 00h40: this part of the
trace is faint but shows mild to moderate contractio ns, with FHR showing
good variability and some accelerations and no decelerations. The baseline
FHR is around 120 bpm.
5.6. CTG done on :27/02/2012 starting at 00h50 to 01h10: this part of the
trace shows a baseline FHR of about 140 - 125 bpm, variability of at least 5 -
10 bpm, no decelerations noted. Contractions were good. Between 01h00 and
01h10, there is poor contact with a suggestion of a deceleration at the time
when the patient was restless.
5.7. CTG done on :27/02/2012 starting at 01h20 to 01h40: this part of the
trace shows a baseline FHR of about 120 - 125 bpm, variability of at least 5 -
20 bpm, no decelerations noted. Contractions were good. ”7
(84) During the process of pointing out the disagreements with his counterpart ,
Prof Coetzee, counsel for the plaintiff objected to the mentioning of IUGI and
asserted that Prof Coetzee had excluded IUGI as a cause . He said alcohol was a
well-known teratogen with its most severe eff ects m anifesting in foetal alcohol
syndrome . The effect of the insult as a result of alcohol would be seen after bi rth. On
the other hand, s moking causes the narrowing of blood vessels in various organs ,
the placenta being the most important organ affected. That results in IUGR, meaning
the baby does not grow to its full potential. At this stage , counse l for the plaintiff
objected and submitted that it was common cause that there was no IUGI in this
case . It is excluded by Paediatric ians, Neurologists, Genetic ists, Neonatologists, and
Prof Coetzee , he added . Counsel for the defendant did not dispute that assertion
and stated that it was not an issue. The objection was upheld.
(85) The focus shifted to the issue of precipitous labour. Responding to the court ’s
question on rapid dilation, he said that he found it hard to believe that she
7 Medico -legal report of Dr Mbokota p ara 5
progressed from 3cm to full dilation in less than an hour, especi ally for a person with
a prolonged latent phase of labour and whose membranes were ruptured p ast
midnight. However, he said , to quote him: “ Patients do not read textbooks .” He
concluded that it was possible , hence he call ed it precipitous labour .
(86) Rever ting to the issue of CTG tracings , he explained that there were three
standards for interpreting CTG s, namel y: the International Federation of
Obstetricians an d Gynecologists , the American College of Obstetricians and
Gynecologists , and the National Institute of Clinical Excellence in the UK. At this
stage , the court’ s interest was piqued , and it enquired whether it was possible for
one practitioner , applying one standard , to arrive at non -reassuring CTG tracing ,
while another , examining the same CTG tracing , to conclud e otherwise. He
responded in the affirmative and added that it was even more likely if one already
knew the outcome . He elaborated that two individuals c ould interpret CTG tracing
using the same standard and yet arrive at different co nclusions.
Cross -Examination
(87) Referring to Dr. House, a TV Programme , counsel enquired whether Dr.,
Mbokota accepted the TV doctor 's state ment that if a doctor gets more than one call
from a nurse about the same patient , the doctor should interpret that as a n
emergency and should stop what ever she was doing and rush to the patient because
that would be a matter of life and death. H e answered that it depend ed on where the
doctor was. If she were at home , yes, but if she were in the casualty attending to
other patients who were also facing life -and-death challenges , no. He explained that
when in the ca sualty , a doctor would be busy seeing patients , otherwise she would
be in her room. Answering a question about the doctor’s notes , he called the notes
retrospective note s because a doctor first does the examination and then writes.
(88) When asked about the literature he relied upon, specifically the 2014
publication by the American College of Obstetricians and Gynecologists (ACOG)
titled Neonatal Encephalopathy and Neurologic Outcome , he responded that this
Guideline or article was relevant because it outlined that one must fulfill the criteria
that exclude proximal risks which are: genetic disorders, congenital infections,
smoking before concluding that the Hypoxic Ischemic Encephalopathy suffered by
the child occurred intrap artum, during labour, Secondly, to prove the relevancy of this
article, if the A FGAR score at 5 minutes is 5 or less , it was most likely that the insult
occurred intrapartum . Additionally, he stated that the presence of multi -system organ
failure in the baby was indicative of an intrapartum insult .
(89) Under cross -examination, he was a sked why he referred to an article that had
no bearing on the issue s. He mentioned that the court needed to know whether HIE
occurred before labour (antepartum) , during labour (intrapartum) , or after delivery
(postpartum) . Concerning the seven CTG tracings he had reviewed , it was put to him
that, save for the first batch of CTG tracing s which were normal , there was no clear
picture of what was happening when focusing on the three CTG tracings from 00: 20
onwards , he disagreed with this proposition and asserted that in his view the staff
had a reasonabl e picture of what was happen ing on the day in question , especially, if
regard was had to the Latent Phase observations , namely:
Latent Phase observations
Date Time BP Contractions FHR
26/02/12 14H00 137/77 Mild 139
26/02/12 16H00 129/68 Mild 144
26/02/12 18H00 120/57 Mild 150
26/02/12 20H00 128/81 Mild 150
26/02/12 22H00 141/65 Mild 150
27/02/12 00H00 131/68 moderate 134
(90) Presse d to answer whether the table on Latent Phase shows beat-to-beat
varia bility or anything else that one picks up on a CTG tracing, he said the record
showed a normal FHR condition. At this point , he cautioned against creating an
impression that CTG tracing was the only instrument for fetal monitoring. He
protested that it was , in fact , the last thing , as the first and most important mon itoring
tool, and the Guidelines confirmed that much , was manual auscultation with the fetal
stethoscope , which was where the recordings c ame from. Further, he said , if there
was an electronic one , which also does not produce a graph , that too was sufficient.
Only in high-risk patients do they use CTGs, and the guidelines record if available,
the CTG was not the only thing that monitor ed a baby , he attested .
(91) Consequent ly, he concluded that they had a reasonable picture of what was
happening to the baby . He concede d that there was a failure to comply with HPCSA
2016 Ethical Guidelines on record keeping, because the patient ’s record s, which
include test results and imaging investigation results, were not kept as direct
evidence in litigation .
(92) Questioned about the statement that alcohol tended to have adverse e ffects
in the first two months after con ception and the most extreme negative outcome of
alcohol being fetal alcohol syndrome , he said t he effects of alcohol were only seen
after the birth of a baby. When pressed on th is point, he stated that this was a
statement from a textbook that was based on research , and the aim was to show
mothers and women that they should cease consuming alcohol when planning to fall
pregnant . The damage occur s within the first two months to the neural tube , which
forms a baby's brain , he said . But that c ould only be seen after the b irth of a baby,
and it was the Pediatricians who c ould tell whether a baby ha d that spectrum, and
the most extreme form of that spectrum was fetal alcohol syndrome , he reiterated .
(93) Since t he Pediatricians who came before the court did not find any fetal
alcohol syndrome , he acknowl edged that he could not dispute their findings . Given
that the plaintiff was a soc ial drinker, he was asked whether he had asked the
plaintiff if she had attended any social functions before realizing that she was
pregnant , he con cede d that he did not and added that because she stopped alcohol
consumption early, it may be the reason there was no fetal alcohol syndrome .
Ultimately, he conceded and agreed with counsel that alcohol had to be ruled out as
a contributing factor to the CP.
(94) When q uestioned about the agreement between the parties that there was no
IUGI and therefore that ruled out placental insufficiency, he disagreed and said the
definition of IUGI was relative, if a child has a b irth weight of 10th percentile instead
of a 15th percentile that meant that baby ha d not grown to its full potential and in
obstetric terms that would be considered as growth restrictions but in pediatric terms
they did not consider it to be growth restricti on at 10th percentile. For that baby not to
have grown to its full potential , there may have been many causes, and one of them
was placental insufficiency , he said . He stated that he did not disagree with the
pediatricians that there was no IUGI .
(95) He was cross -examined on why the placenta was not investigated , but simply
said t hat it was flat and round . He answered that it was not routine practice to send
the placenta for epistemology unless there was a reason . He confirmed that all
placentas are around and conceded that it would have been better if the placenta
had been sent for epistemology. He said the effect of smoking was at the level of the
blood vessels and microscopic .
(96) Explaining the statement that maternal hemoglobin was inactivated by carbon
monoxide from smoking , he stated that hemoglobin was not reduced , but it was the
capacity to carry oxygen that was reduce d, and he made an example of Izimbawula
(brazier s).
(97) He explained that cerebral palsy was the end result of brain cell injur y caused
by a lack of oxygen supply, due to fa ilure of the organ responsible for the delivery of
oxygen . Therefore, it could not be said that cigarette smoking was not a proximal risk
factor for cerebral palsy, he an swered .
(98) Confronted with the possibility that the child ’s low birthweight could be
attributable to genetics because his mother was a tiny lady with a BMI of 20.7 , he
accepted th at possibility but added that at the end of the day the baby was small in
relation to what the average weight should be at term , which should be 3.2 kg and
hers was 2.7kg. At this point , counsel queried that she was at term and said she was
38 weeks . He clarified that at term was from 37 weeks to 41 weeks , and at 38
weeks , 3.2 kg would be expected .
(99) Faced with the Neurologists ’ agreement that the y have excluded as possible
aetiologies : congenital brain abnormalities, int rauterine growth restriction , intracranial
hemorrhage , neonatal infection , genetic disorders, inborn errors of metabolism and
acquired metabolic causes , he said they excluded IUGI as a direct cause of cerebral
palsy. Given these exclusions , he was asked wh at was left as an aetiolo gy. He
reiterated that what caused the intrapartum hypoxia was the result of something
because the baby was not fully grown , the placenta did not allow the baby to endure
the stress of labo ur, especially at the second stage of labour. His evidence was that
the birthweight was below average at term.
(100) In his comments regarding the presence of meconium, he explained that thick
meconium , classified as Grade 2 or 3 , was of greater clinical concern. In contrast,
Grade 1 meconium, which is thin, typically indicates that the fetus passed meconium
prior to the onset of labour.
(101) When p resented with his incomplete recording of the hospital records , he
concede d that he left out a word that was illegible when recording : “CTG
128bpm …… regular and history of non-reassuring CTG on a primigravida at 2h00. ”
(102) Again, w hen it was pointed out that he omitted repeat deceleration, he
accepted that the handwriting was d ifficult to read. He was challenged on his
statement that she remained in the latent phase until 01h00 the next day; he
referred to notes which indicate d that PV done CX 9cm at 02h00 27 /2/2012.
Therefore, the active phase star ted at 02h00 .
(103) The court enquired if he knew w hen exactly the dilation from 3cm to 9cm
occurred . He said we could never know when she moved from 3cm to 9cm. The last
assessment was in t erms of the Guidelines , which in the latent phase require d the
assessment every 4 hours and in the active phase every two hours. He explained
that the p rogress of labour mean t the dilation of the cervix and the descent of the
head. So, the last time she was found to be 3cm dilated in the latent phase was at
01h00 , and the next time they were prompted to assess her because she was
bearing down was at 02h00 when she was 9cm dilated .
(104) He testified that delay s in the latent phase c ould be caused by various factor s,
such as when it was a woman ’s first labour , or when there was poor uterine activity ,
meaning the uterus was not contracting sufficiently to facilitate cervical dilation . If the
latent phase of labour ha d gone beyond 8 hours from the time of admission, he said
the G uidelines dictate d that a reassess ment should be done and the membranes
should be ruptured (ROM) to speed up the contractions. Due to the prevalence of
HIV, he said it was difficult these days. When asked whether a doctor should be
called under such circumstances , he answered that the intervention was determine d
by the cause of the delay , and if appropriate action was ROM , it would be proceeded
with. If there was no progress after 2 hours, then labour c ould be augment ed,
meaning giving medicine to add to the contractions , and that require d a doctor , he
explained .
(105) He referred the court to the Guidelines , specifically under the heading Poor
Progress in the latent phase of labour , which state d that the latent phase was
prolonged when it exceed ed 8 hours . From the reading of the Guidelines , it soon
became apparent that it d id not mention the calling of a doctor. He added that each
institution c ould develop protocols that were specific to the management of labour ,
but should be in line with the Guidelines.
(106) He conceded that the midwives did not intervene when the latent phase was
prolonged , and that was substandard care. He explained the differences between
rupturing the membrane s and augmentation of labour. The former is just allowing the
mother’s own intern al processes to speed up labour so that the head of the fetus can
descend to the mouth of the womb , and the latter means a doctor is giving medicine ,
called oxytoci n, through a drip to exogenously improve the contractions.
Augmentation carries significant risks, such a s uterine hyperstimulation , which is
when the uter us over-contracts without intervals of relaxation , potentially resulting in
foetal hypoxia.
(107) It was put to him that the risks associated with prolonged labour include
infections . He responded that if the membrane was not r uptured , there was no such
risk. He acknowledged that it could cause fetal distress if there were contractions . In
response to the question that labour was induced to prevent these risks, he clarified
that induc tion of labour refers to initiating labour in someone with no labour pain or
not yet experiencing contractions by exogenously start ing labour , such as by giving
them a gel or medicine to drink , to stimulate the onset of labour .
(108) On the issue of meconium stain, he explained again that meconium is green
in colour , but over time it changes to brown. When challenged with his reliance on
Cronje et al writing s which stated MSL does not necessarily mean fe tal distress , it
just places the patient in a higher risk category during labor and only the presence of
fetal he art abnormalities in the presence of MSL increases the risk of fetal acidosis
and birth asphyxia and thus agent delivery is needed. He mentioned that thin
meco nium staining require d no special management . To explain the process that
resulted in the passing of MSL , he referred the court to the days of capital
punishment. He said that in the case of a condemned person as the noose tightened
around a neck , it precluded the blood flow and oxygen supply resulting in the anus
sphincters loosen ing leading to the passage of stool . This was analogous to what
happens to a fetus experiencing hypoxia, its anus sph incters loosen and meconium
is passe d. A thin meconium was not a cause for concer n and may be ignore d, he
concluded .
(109) Under cross -examination , he was informed that Prof Coetzee said he did not
want to be unkind to the colleague, he said that Prof Coetzee had every reason to
disagree with him, but he had not been active whilst he was still in active service. He
stood his ground when he was told that he was the only one who did not note the
decelerations noted by several experts who agreed that there were deep
decelerations on the CTG tracing at 00h 20. He testified that when the baby was still
in the womb , it was the Obstetrician’s field, and when it c ame to CTG interpretation ,
it was subject to misinterpretation, especially when one already kn ew the outcome.
(110) He insisted that t he management of non -reassuring CTG tracing was not
delivery but intrapartum resuscitation , and observing if there was improve ment . If it
did, labour would be allowed to progress, but if it d id not, then deliver y would be . A
pathological CTG is the one that call s for an expedited delivery . He was asked to
interpret the CTG tracing , which prompted the nurses to record it as non -reassuring
at 00 :19. He answered that what he saw were two variable decel erations that
rendered the CTG non -reassuring , but not pathological.
(111) His c ross-examination continued on 17 October 2024 . He was asked that i n
the latent phase, the Guidelines require 4 hours v aginal examination and this was
not done . He conceded th at th e care was substandard , noting that following the
19h30 assessment , the subsequent assess ment should have taken place at 23h30 .
However, it was conducted 40 minutes late, at 00h 10, and, in his view , this was n ot a
significant deviation . He readily conceded that there was no compliance with protocol
when he was referred to the first gap in monitoring between 12h 00 and 19h30 .
(112) It was put to him that the Guidelines require d that all the risk factors be clearly
noted , given the evidence of smoking and drinking , this was not done. He said it was
documented on the antenatal card. When counsel pointed out that the Guidelines
state d that women with problems or risk factors should be referred to an experienced
midwife or doctor who may transfer the mother to a hospital, he answered that the
patient was already in the hospital and confirmed that he did not know the
experience of the midwife who assessed her . They both agreed that the Tshwane
District Hospital is a Level 1 hospital ; the Steve Biko Hospital is a Level 3 Hospital.
Counsel en quired why the patient was not transferred to SBH . He answered that it
was not as simpl e as counsel thought. For good and sound reasons , Level 1
Hosp itals transfer to Level 2 Hospital s.
(113) He was asked about the plaintiff’s unchallenged evidence , especially the
failure to reco rd in the hospital notes the following : (1) she ha d a CTG machine on
her at 20h00 ; (2) she complained of strong pains as if the baby wanted to come out ;
(3) a drip was put on her and it accidentally came out wetting h er bed; (4) she lost
consciousness ;(5) at about midnight she was woken up and (6) she described a
maneuver called fundal pressure which was also not recorde d. When assessing
patients, he stated that clinicians record both the important positives and imp ortant
negatives . An important positive refers to something that is discovered , whilst an
important negative refers to some thing clinicians specifically look for but do not find.
He stated that clinician s were left to exercise th eir judgment on what would be
document ed, and did not include ev erything the patient mentioned .
(114) On the question of fundal pressure , he s tated that the practice was
discouraged, and his views were derived from the Multi-Centre Review of
Interventions . Explaining further, he said that: first, it did not shorten the second
stage of labour ; second, it did not cause hypoxia in the baby ; and th ird, it could harm
the mother by causing tear s to the uterus . However, a soft abdominal belt was still
being investigated. He agreed that t he nurses did not follow the doctor’s instructions
to continue monitoring the CTG ; hence , the tracings were not avai lable. In
agreement with the midwives, he said t he CTG tracing was incorrectly discontinued .
(115) When addressing the impo rtance of the partograph during labour , he
unpacked the partogra ph by showing that it was plotted at 02h with a circle on 2 ,
which speak s to the level of the head , and an x on 9 , indicating the cervical dilation .
He mentioned that he was t aught by the person who designed the parto graph. He
emphasised that the partograph was not plotted during the latent phase but during
the active phase of labour. On the issue of rupturing of the membrane s, he referred
to the Maternal Guidelines , which require d that other causes , such as abdominal
pains like abruption placentae, false lab our, fetal distress , and cephalopelvic
disproportion ( CPD) , be excluded before the membrane could be ruptured. If there
was no progress in labour two hours after r upturing the membrane s, he said , then
and only then would augmentation of labour be undertaken , and this mean t starting
oxytocin infusion .
(116) When cross -examined about the reasons for ROM, he answered that:
(1) ROM is done to allow the fetal head to come onto the cervix, the mouth of
the womb , thereby facilitating cervical dilation as the uterine contract ions push
the head down .
(2) When the membrane is r uptured , prostaglandins , which are produced by
the body , assist in the uterine contraction to assist with the process of labour ;
hence , the two -hour delay in calling a doctor . This allows prostaglandi ns time
to work.
(3) The membrane gets r uptured to observe if the amniotic fluid is clear or
contains meconi um, and if so, to assess the type of mecon ium. When the
membranes are still intact , the amnio tic fluid remains .
(117) Still, u nder cross -examination, he was asked if speeding up the delivery was
not the primary reason for ROM and the administration of oxytocin ; he emphasi sed
that it was not speeding up the delivery but assist ing in the progress of the delivery.
When pressed on this, he expanded and ex plained the concept of the four Ps:
Power, Passenger, Passage and Psyche . Finally, he said , when the labour was
prolong ed, the first person to get tired was the mother , and next was the fetus.
(118) Answering the asphyxia complication, he said that it only happen ed where
there ha d been consistent ly strong ut erine contractions, meaning a minimum of three
contractions every ten minutes lasting for more than forty seconds , and the strength
of contractions was determined by the duration they last ed over forty seconds
without labour progress . This would lead to fetal distress . With each uterine
contraction, the blood flow to the placenta was reduced , and when the contraction
relaxe d, the blood flow would be restored , he explained . A healthy foetus was able to
tolerate these intermi ttent reductions in the place ntal blood flow for a period of 18 to
20 hours.
(119) He co nceded that ROM was supposed to be done at 8 o'clock (20h00) and it
was not done .
(120) He was referred to the pediatri c growth chart for calculation of newborn
babies’ weight s; it was suggested to him that they are more competent to comment
on the issue of weight . He testified that Pediatricians de alt with the bab ies after birth .
As obstetricians , he said, they assess ed fetal growth during pregnancy , based on ,
inter alia , the last normal menstrual period , the clinical examination of a patient , the
cervi cal measurement , fundal height measured in centimeters from the pubic area to
the top of the uterus , and ultrasound estimations . If the estimated f oetal weight was
less than the expected range for the gestational age, the fetus would be classified as
small for the gestational age. Furthermore, if the weight estimate f ell below the 10th
percentile, by definition , it was called intrauterine growth restriction , he said .
(121) Confronted with Prof Smith’s statement that “it , therefore, appears that the
baby was either a small gestational age baby (SGA) (pathological state) all
constitutionally small (genetic traits). The length and weight of the baby suggest that
he was of very small stature. His body proportions , IE, ponderal index (w eight length
ratio) , were 97th percentile for gestational ages between 38 and 42 weeks. These
again point to a constitutionally small baby rather than a pathological small size.”8 He
deferred to the pediatricians .
(122) Reverting to the issue of CTG tracing recorded at 00h19 , about which Prof EJ
Coetzee said it showed marked decelerations and about which the staff recorded at
00h30 that it was non-reassuring with decelerations present, whilst Dr . Mbokota said
it was faint but showed no decelerations , counsel asked for an explanation. He
maintained that he agreed with the staff , and his CT G tracing was faint as recorded
in his notes . Having seen the clearer CTG tracing , he confirmed that there were two
or three variable decelerations , but they were not pathological. It was put to him that
he was not certain and required clarity , hence he wrote : “that the birth weight of 2.7
kg places the baby just above the 10th centile which is the cut off for low birth
weight, we , unfortunately, do not have the weight of the placenta which would clarify
us if there was indeed placental pathology which could be due to cigarette smoking
and would have contributed to the baby not growing to its full potential average had
the weight of 3kg.”9 He answered that: “it is as clear as it is ”. When it was put to him
that he was not sure , he said what we were sure of was that the birthweight of the
child was 2,7 kg , which mean t the baby was small for its gest ational age. He
continued that small babies tend ed to decompensate quickly in the second stage
and said: “As to whether there was placental pathology due to cigarette we do not
know because : (1) we do not have the weight of the placenta and (2) we do not have
the histology .”
(123) He accep ted that all CTG tracings should have been made available, that the
nurses did not follow the protocol after 8 hours of the latent stage, and that the
partogram was not completed . However , he said the plotting started at 2 hours. He
said that his opinion remai ned unchanged , but agreed that the progress of labour
should have been pl otted on the partogram , and failure to do so was substandard .
With all of that , or even if the partogram was well plotted, he believe d that it would
not have change d the outcome .
My impression of Dr . Mbokota and his counterpart , Professor Coetzee .
8 medical legal report of Prof Smith page 10.
9 join minutes of obstetricians at page 6
(124) I found Dr. Mbokota ’s knowledge of the subject matter to be exceptional and
second to none . Over the course of six hours on the witness stan d, including f our
hours of gruelling and rigorous cross -examination, he not once lost his cool or
became animated . He conducted himself with dignity throughout . I am , indeed,
indebted to him for the il lumina ting lecture , which shed light on the intricacies of this
topic . The same is true of Prof. Coetzee. However, like all the plaintiff’s witnesses, he
was not subjected to any robust cross -examination. I found both these experts
unwilling to concede in the face of patent contradictions . They were both wedded to
their position s. Bias is not the word that comes to mind. If anything , they viewed
questions that demanded them to concede as some form of personal attack on their
knowledge of the subject. Overall , they added value and shed light , albeit under
duress at times. Certainly, there were moments in their testimony where their
opinions were properly supported by the facts and accorded with logic.
The Paediatrician, Dr. W. Kganane , was the second witness for the defendant s.
(125) Her testimony was succinctly summari sed in her statement that her expertise
was limited to the post-natal care of a baby . When it came to reading CTG tracin gs
and i ntrapartum care, she deferred to the obstetricians . She testified that exposure to
teratogens, such as alcohol , smoking , and traditional medicines , had adverse effect s
on foetal development . Babies who were exposed to the se teratogens tended to be
born smaller for gestational age , with a reduced reserve , which m ade the normal
stress of labour and delivery significantly more strenuous, she testified. Moreover,
these babies were comparatively compromised at birth and may present with
developmental abnor malities relative to their unexposed counterparts. She testified
that the plaintiff told her that she smok ed 8 to 9 cigarettes per day during pregnancy.
(126) In response to the question about the terms partially prolonged hypoxic -
ischemic encephalopathy (HIE) and acute profound , she deferred to the Radiologist
and ment ioned that she was a Pediatrician .
Cross -examinatio n
(127) When counsel for the plaintiff pointed out that in her report, she noted that the
child was born on 27 February 20 17, she said it was a typo. She was asked if it was
not another typo th at the plaintiff said she smoked 8 to 9 cigaret tes a day during
pregnancy . She answered in the negative and said that there was no mistake in that
regard. Having referred to her notes, she confirmed that the statement about 8 to 9
cigarettes was correct. It was pointed out to her that t he pregnancy was classified as
a low-risk pregnancy despite the issue of smoking.
(128) Her recording of t he plaintiff ’s first visit to the hos pital was incorrectly captured
as 20 October 2011 instead of 1 August 2011. When she was asked if that was not
another typo , she conceded that her record was incorrect.
(129) Confronted with her failure to record that the patient was 2 to 3 centim eters
dilated, that the next PV was due at 15hrs as contained in the hospital records , and
that atarax was given intramuscular ly when recording what was mentioned in the
hospital notes , she did not have an answer. She once more reiterated that her role
started after the birth of a baby. On the dilation questions , she deferred to the
Obstetricians. On the artificial rupture of the membrane s, which showed a thin
meconium stain, she deferred to the Obstetricians. She concede d that there was
another typo in that she recorded at 00h30 “ CTG non -reassuring with poor beat -to-
beat deceleration s” instead of “AND deceleration s’(my emphasis) .
(130) As already stated, s he reiterated that she did no t have any comments on CTG
tracings . Asked why she was selective in her recor ding of the hospital records, she
said she did not record everything. She testified that any cigarette exposure in the
first trimester was significant. When informed of the fact that Dr Mbokoda and Miss
Smit were told that she smoked 2 to 3 cigarettes per day, she stood by her record at
the time of the interview. She did not have enough evidence to decide on the
presence of IUGR ( head circumference and length ). She explained that LGA, SGA ,
AGA and IUGR (Large, small, appropriate for gestatio nal age and un der or
intrauterine growth restriction) were not ticked or circled, just disregarded .
(131) She conceded that between midnight and two o ’clock , the fetal monitoring
was not done . When reminded that she said that she could not read CTG tracing and
yet agreed with the interpretation of CTG tracing as non -reassuring, she said she
was reading an interpretation , not expressing her opinion.
(132) She disavowed her posit ion in paragraph 7.4 in the joint minutes in which she
said: “Adequate fetal monit oring was done ” rather than agreeing with her
counterpart, Prof Smith , who wrote : “The compromise during labour i s readily
detectable by appropriate fetal monitoring which frequently shows late decelerations
and/or decelerations (c ord compression) .” She stated that she should have deferred
to the Obstetricians .
(133) When q uestioned about the fungal pressure, she deferred to the
Obstetricians. Answering the court’s queries, she said the first trimester (first three
months) was important as that was when the baby was developing and organs were
forming. She said that t he weight of the baby , which was 2,7 kg, was relatively small
for the gestational age.
My impression of Dr. Kganane and her counterpart Professor Smith
(134) Dr. Kganane was not confident at all and had to be told to speak up on
several occasions . She conceded readily ; it is not an exaggeration to say that she
deferred to the Obstetricians on almost all the activities before birth . She disavowed
her earlier position in the joint minutes. She was overwhelmed by the occasion.
Despite the court’s reassurance, she never settled down. On the other ha nd, Prof
Smith made a good impression and was not afraid to challenge the Radi ologists’
conclusions . Her opinion was sound and supported by facts and reason, e ven
though she was not cross -examined extensively . She illuminated why it cannot be
said that F .B.W. sustained acute profound hypoxic brain injury .
The last witness for the defendant was Ms.Smit , a Midwife.
(135) She testified that in this case, by looking at the Latent Phase monit oring,
nothing was alarming . The Latent Phase monitoring read:
TIME Cervix Contractions Rom FHR BP PULSE
26.2.12
14h00 CM Mild Intact 139 137/77 80
16H00 Mild Intact 144 124/68 95
18H00 3-4 cm Mild Intact 150 120/57 80
20H00 3cm Mild Intact 150 128/81 99
22H00 Mild Intact 150 141/65 79
26.2.12
00H00 3cm Moderate Raptured 134 131/68 61
At 00h30 , the nurse ’s notes read that CTG was non -reassuring, poor beat to beat
with decelerations noted.
(136) She confirmed that the mother was progressing slowly, but the latent phase
was difficult to assess as there was no time limit. She referred the court to the
differences between The Maternal Guidelines , which record that the latent phase is 8
hours in hospital from the time of admission , and the World Health Organisation
(WHO) , which records that the latent phase is from 12 to 24 hours . The Maternity
Guidelines of South Africa change d in 2016 to align with WHO’s 24 hours for a
mother to dilate from 1cm to 4 cm. In line with WHO, 4 cm ha d been altered to 5cm ,
as the beginning of the active phase of labour , she stated.
(137) Reading from the nurse’s notes, she mentioned that Ms. W was restless and
moving around , which negatively impacted the quality of th e CTG tracing s. There
were two b ands around her abdom en, one for the contractions and the other for the
foetal heart rate , since she was moving around , the reading would not be accurate .
On the time it took for the casualty doctor to respond, s he stated that it depend ed on
what the doctor was doing at the time.
(138) She confirmed that the plaintiff was given pain medication, pethidine and
atarax, intramuscular, meaning as an injection . Following t he midwife ’s phone call to
the doctor at 01h15 , she te stified that the doctor must have arrived earlier, perhaps
at 01h45 , because he wrote his notes at 02h00 , which was after the examination.
The CTG was found by the doctor to be regular with FHR at 128 bpm.
(139) Asked if the doctor had arrived at 01h30 and decided on a C-section, she said
it would have taken about 90 minutes because the procedure involve d sourcing a
porter , an anaesthetist , and o btaining her consent . However, the books stated that C -
section should occur within an hour , she said.
Cross -examination
(140) Confronted with her incorrect narration that the plaintiff was admitted to Steve
Biko Hospital , she could not explain the obvious error because the plaintiff was
admitted to Ts hwane District Hospital. She answered that it was her mistake .
(141) When t old that the plaintiff was admitted at 07h15 . and no problems were
identified , she conceded that she was in the latent phase in the morning. Explaining
the differences between 3-4cm cervical dilation at 18h00 and 3cm cervical dilation at
19h00 , she said that different staff took over , and the new staff could have arrived at
3cm dilation. When a sked about the dilation from 3cm to 9cm within an hour , she
said that when pethidine was given the mother relaxed , and she had seen patients
promptly dilating from 3 to 4 cm to full dilation in under 5 minutes but conceded that
the dilation was too quick, as the norm was 1cm dilation every hour.
(142) Asked if it would not have been ap propriate to immediately contact the doctor
whilst performing the resuscitation , she responded that they did not have to, but she
did not see the CTG , which was horrendous .
(143) She stated that there were two doctors on duty , but still they did not att end to
the call immediately ; she could n ot confirm whether either of them was a
Gynaecologist . She explained that a partogram was based on the active phase of
labour and only sta rted in the active phase. She conceded that the documentation in
this case was substandard and confirmed th at a partogram was essential as it has a
predictive nature . That failure to document the progress of labour on the partogram
was substandard care, she agreed.
(144) She stated that she did not receive any CTG tracing s. She saw the reading
written by the doctor as regular at 128 bpm .
(145) Under cross -examination, she was q uestioned about her conclusion that Ms .
W. was managed according to the Maternal Guidelines; she confirmed that her
opinion did not alter. It was put to her that th at conclusion contradicted her joint
minute in subparagraph 2.1 , which record s an agreement that the midwife did not act
according to protocol when the latent phase of labour did not progress to the active
phase of labour after 8 hours of her admission into the hospital facility . She stood by
her joint minutes , but later conceded. Her discussion with Prof Du Plessis changed
her opinion , she said. She conceded that the Guidelines were not followed.
(146) She conceded that a doctor could have done a whole host of things. She
conceded that in a case like this , where labour was prolong ed, the Guidelines
direct ed that more frequent monitoring should take place, which was not done .
(147) She was asked a series of questions focused on whether the obstetric
management provided was optima l or suboptimal :
Q: that a doctor t ook approximately one hour and 15 minutes to respond to a
nurse’s call?
A: She said it was not optimal , but one had to think about the period of the
day. Q: that a doctor was not called to investigate that her cervical dilation
was not progressing after 8 h ours in hosp ital?
A: Suboptim al, she answered
Q: that pethidine and aterax were administered , given the CTG tracing and
evidence of MLS?
A: she deferred to the Gynaecologist .
(148) Counsel challenged her answer by referring to her joint minutes at 4.2 , which
records: “While awaiting assessment by the doctor, the midwife administered
Pethidine for pain management .
4.2.1 Pethidine , however , is known for its respiratory depressive action.
4.2.2 Administering Pethidine on observation of a non -reassuring CTG tracing
was incorrect, and potentially contributed to the adverse neonatal outcome s.”
(149) She did not agree but finally conceded that it was suboptimal.
Q: that the CT G was stopped at 01h50 ?
A: She agreed that the CTG was stopped at 01h50 and it was suboptimal .
Q: that the partogram was not plotted in the latent phase of labour ?
A: she answered that the partogram was plotted in the active phase .
Q: What co mment would she advance to the fact that the hospital notes have
no doctors’ notes or midwife up until 00h09 of the next day ?
A: She said that the Latent Phase observations indicated that they knew what
they were doing .
(150) Whilst she agreed that the placenta sh ould have been investigated , she
suggested that it might not have been done because of religious reasons.
My impression of Ms. Smit and Professor Du Plessis
(151) Ms Smit ma de several concessions which assisted the court . For example,
she conceded that the Guidelines were not followed , and if a doctor had been called
sooner, a doctor could have made meaningful intervention s. Together with Dr
Mbokota , Prof. Du Plessis and Ms Smit assisted the court to adopt a broader
perspective of this matter. They opened the court’s eyes to that a narrow approach
based on what happened at 00h30 was tantamount to a red herring. The root of this
case is deeply embedded in the failure to follow the Maternal Guidelines. They laid a
proper factual basis and explained their reason ing to the court.
My Total Impression of the Experts
(152) I found the experts to be well -drilled in slanting their case in the direction they
wanted it to go. They tended to over -elaborate and give a detailed explanation if it
favoured their version , and h old back if it harmed their version. Unless one has a
benc h made up of Gynaecologists or Obstetricians, it is very easy to over -emphasize
a particular point to advance one’s version and understate a particular point to avoid
harming one’s version. If funds were not an issue , one or two assessors would be of
great assistance to achieve justice in these matters. For example, the fact that Dr.
Mbokota said a CTG tracing can be interpreted differently , especially when one
already knows the outcome , is most worrying. His assertion was confirmed by Prof
Coetzee that va riabilities are open to interpretation. It is trite that an expert witness is
required to assist the court and not to usurp the function of the court. Upon a proper
analysis of the evidence of the experts and their joint minutes , it was imperative to
separ ate the wheat from the chaff and search for an imprint of truth. Accordingly, I
think the truth lies in the testimonies of both the plaintiff’s and defendants’ experts ,
when viewed in totality.
The joint minutes recording the agreements of the six experts who took the
stand:
(153) The Paediatricians // Neonatologists ’ agreement as reflected in the ir joint
minutes:
“1.1 The experts agree that the antenatal period appears to have been
unremarkable except for the acknowledgement that the first plaintiff smoked
2-3 cigarettes a day (D r. M. Mbokota [for the defendant; Dr. D Pearce [for the
Plaintiff]), after realizing she was pregnant. From Dr W Kganane , she did not
consume alcohol during pregnancy but has been smoking throughout
pregnancy. She smoked 8 -9 cig/day.
1.2 The plaintiff probably entered labour with a reassuring foetal
condition/status.
1.3 During labour (intr apartum) the foetal condition changed from reassuring
to non -reassuring. When this occurred is disputed.
1.4 Thin meconium -stained liquor (MLS) was recorded at 00:09.
1.5 A CTG was attached to the patient. This CTG tracing between 00:19 and
01:40 was in k eeping with a non -reassuring foetal status (NRFS). This NRFS
was recognized as such at 00:30, since there was poor beat -to-beat-variability
and accompanying FHR decelerations. Intrapartum ‘resuscitation’ was
initiated, and it was planned to review the CTG in 15 minutes. A doctor was
called.
1.6 F was born in a compromised, depressed condition at 02:30.
1.7 F required resuscitation in the delivery room.
1.8 The paediatric doctor noted that there had been thick MSL.
1.9 F developed meconium aspiration and was meconium stained.
1.10 Within 1½ hours after birth a significant uncompensated metabolic
acidosis was recorded (pH 7.06; BE – 22.3 mmol/L; HCO3: -6.1 mm ol/L:
PaCO2:27 mmHg)
1.11 F developed an early onset neonatal encephalopathy with accompanying
multi -organ failure/dysfunction.
1.12 The cause of the brain damage (encephalopathy) is considered to be
hypoxia (reduced oxygen delivery to any tissues, such a s the brain) and
ischemia (depressed blood flow to the body tissue), hence the
encephalopathy is referred to as “HIE” (hypoxic -ischemic encephalopathy).
1.13 F was correctly so, subjected to therapeutic hypothermia
1.14 F now suffers from non -progressive mixed cerebral palsy and associated
co-morbidities (Dr's W Kganane [for the Defendant]; Dr . VR Mogashoa [for the
Defendant]; Dr . D Pearce [for the Plaintiff])
1.15 The MRI of F's brain revealed what is described by radiologists (Dr . T
Kamolane [for Defenda nt]; Prof S Andronikou [for Plaintiff]; Dr . W Burger [for
the Plaintiff]) as 'acute profound hypoxic ischaemic injury, i.e. injury to the
basal ganglia -thalamus and peri rolandic cortex, also known as cerebral -deep
nuclear neuronal injury (Volpe JJ. Neonat al Encephalopathy: An Inadequate
Term for Hypoxic — Ischemic Encephalopathy. Ann Neurol 2012;
2012;72:156 — 166)
1.16 The respective radiologists found no features of congenital infection or
malformation
1.17 The experts are in agreement that the outcome (m ixed cerebral palsy) is
directly related to intrapartum (labour and delivery) sustained hypoxic -
ischaemic brain injury, as also acknowledged by Dr . VR Mogashoa (for the
Defendant); Dr . M Mbokota (for the Defendant); Dr . D Pearce (for the
Plaintiff)]; Dr . G Gericke (for the Plaintiff); Prof EJ Coetzee (for the Plaintiff)
and Prof D du Plessis (for the Plaintiff)
1.18 There is evidence to state that F was small for gestational age at 39
weeks, which was probably related to some degree of utero -placental
insufficiency, related to maternal smoking.
1.19 Blood tests were negative for infection. The FBC was normal in all
respects; the blood culture was negative and the CRP (C -reactive protein)
was slightly raised on day 4 of life. A raised CRP is found in the p resence of
inflammation due to hypoxic ischemia and /or meconium exposure, in the
absence of infection. The nucleated red blood cell count (NRBC) was normal
(8/100 WBCs). This normal NRBC count is strong evidence against a
prolonged (> 6 hours) exposure to intrauterine hypoxia. The normal NRBC <
10/100 WBCs
2. Smith: The CTG recording of between 00:19 and 01:40 revealed a non -
reassuring foetal status (NRFS) throughout. The features it contained, namely
poor beat -to-beat variability and accompanying FHR decel erations were in
keeping with probable foetal acidemia (pathologic foetal status)
Kganane: I would ask for comment from the Obstetricians on this.
3…
4. Smith: There was no recorded perinatal sentinel or catastrophic event
(uterine rupture, uterine tear, placenta praevia, abruption placenta, umbilical
cord prolapse, facto -maternal haemorrhage, maternal collapse, shoulder
dystocia) which occurred during labour which could theoretically explain the
outcome of the birth of a depressed baby who subsequently de veloped an
encephalopathy and then developed neurological disability
Kganane: Agreed
5…
6…
7…
7.1 Maternal smoking is a prevalent cause of intrauterine growth restriction,
especially noting drop off in birth weight.
Kganane: Agreed
7.2 The infant with IUG R is much more likely to experience difficulties during
labour and delivery, primarily related to utero -placental insufficiency
Kganane: Agreed
7.3 These foetuses are partly compromised, but become completely
compromised as labour progresses
Kganane: Agreed.”
(154) The agreement of the Midwives , as recorded in the ir joint minutes :
“1. Ms.W started antenatal attendance early in pregnancy and att ended the
clinic regularly without default.
1.1 But for maternal smoking, the pregnancy progressed without
complications. 1.2 The management and care provided by the midwives at the
antenatal clinic were appropriate and according to protocol.
2. Ms.W was a dmitted on 26.2.2012 at 11H50 to TSHWANE DISTRICT
HOSPITAL in the latent phase of labour at 2 –3 cm dilation of the cervix.
2.1 The midwife did not act according to protocol when the latent phase of
labour did not progress to the active phase of labour, 8 h ours after admission
to a hospital facility [DOH:2010]
2.2 According to R.2488 which regulates the Scope of the midwives Practice,
the medical practitioner must be informed of all abnormal findings during
labour such as a prolonged latent phase.
2.2.1 Ms. Smit: the doctor was informed at 00h45 on 27.2.2012 after internal
resuscitation was done at 00h30
3. Assessment of fetal wellbeing was not done according to the Guidelines for
Maternity care [2010]
4. The CTG tracings at midnight was markedly non -reassuri ng with deep
decelerations.
4.1 The midwife correctly communicated the abnormal findings to the medical
practitioner and instituted intrauterine resuscitation according to protocol.
4.2 While awaiting assessment by the doctor, the midwife administered
Pethidine for pain management.
4.2.1 Pethidine, however, is known for its respiratory depressive action.
4.2.2 Administering Pethidine on observation of a non -reassuring CGGtracing,
was incorrect, and potentially contributed to the adverse neonatal outcomes.
5. The delay in assessment by the medical practitioner, considering the
observation of fetal distress, falls outside the midwife’s control.
6. The decision by the doctor to continue with labour progress, despite the
observed non -reassuring trace, falls within the scope of the obstetrician.
7. Continuous fetal monitoring is indicated especially when FHR abnormalities
were observed.
7.1 The trac ing was incorrectly discontinued at 01:50, despite the instruction
from the doctor to carefully monitor the fetus for further decelerations.
7.1.1 Sr R Smit: Doctor Notes at 02h00 indicated CTG was regular with FHR
at 128bpm.
7.1.2 Ms.W was fully dilated at bearing down at 02h05.
7.2 The FHR was not assessed during the second stage of labour as per
protocol, which resulted in an unanticipated asphyxiated newborn baby.
8. Sr R Smit: Baby was born at 02h30, birth was within 25 minutes of full
dilatation (se cond stage) - intervention e.g., Caesarean section would have
taken longer than 25 minutes.
8.1 Prof du Plessis: Agree.
9. Documentation of the progress of labour was poor as it was not plotted on
the Partograph. The DOH regards omission to document the pro gress of
labour on the Partograph as sub -standard care.”
(155) Finally, the agreement of Obstetricians -Gynaecologists , as reflected in
their joint minute:
“LW was a 19 -year-old G2PO, not a primigravida (EJC). Her last normal
menstrual period (LNMP) start ed on 03/06/2011 and her expected due date
(EDD) was therefore 08/03/2012. Her gestational age (GA) and EDD was
supported by an Ultrasound Imaging examination (U/S) done on 01/11/2011
when the fetal measurements showed a fetus of 21 weeks GA (using the 50t h
centile. Her height was 1.6m and weight was 53kg. She smoked and did drink
alcohol socially, but stopped drinking alcohol when she discovered that she
was pregnant and according to her history was only smoking 2 cigarettes/day
towards the end of the preg nancy,
(1) (Neither the alcohol nor the smoking can be linked to the subsequent
condition of F.B.W. i.e. neonatal encephalopathy & mixed type cerebral palsy
[EJC])
(2) MM opinion: Disagree:
(3) i. Alcohol is a known teratogen meaning that it is an agent th at act
adversely on the fetus causing permanent anatomical (Cillier 2015:129).
Alcohol’s teratogenic effects occur in the first 2 months after conception and
the most extreme outcome of alcohol syndrome (Brand 2011:442). There is no
safe maternal blood alc ohol level and thus any amount during
(4) We agree that the routine antenatal tests were all normal and she
attended antenatal clinic regularly. No problems were encountered.
(5) Labour
(6) First note concerning labour is at 07:15, but there is no date. It is not
clear when labour pains commenced, but as she was only 1cm dilated she
apparently returned home and was instructed TCB (to come back) when
membranes ruptured (ROM), pains get worse, or any bleeding occurs. She
was readmitted at 11:50. Still no RO M, but now 3cm dilated. She is reviewed
regularly, but there was no further dilation of the cervix. (MM&EJC agree).
(7) There is a CTG (cardiotocograph tracing) with the patient’ s name on it
and the machine records the date and time i.e. 17:30 on 26/02/2012. This
CTG is normal (re -assuring) [MM & EJC agree]
(8) At 00.00 membranes are ruptured artificially and thin meconium -
stained liquid is seen. A CTG tracing at 00.19 shows marke d decelerations.
(9) At 02:05 LW was fully dilated, and F .B.W. is delivered after an
episiotomy was done at 02:30 with APGAR score of 2 and 4 at 1 & 5 -minutes
i.e. birth asphyxia. There were no CTG tracings or observations during the 2nd
stage
(10) Both M M & EJC find it difficult to believe that the LW progressed from
3cms. dilated to full dilation in under an hour.The 3rd stage was normal. There
is no weight given for the placenta. All the requirements of MM are therefore
met to indicate an intrapartum ev ent.
The law
(156) It is trite that to be successful in a claim for delict, a plaintiff must prove
positive conduct or an omission, causation, wrongfulness, fault , and harm, on a
balance of probabilities. In casu, the parties are ad idem that the issue for
adjudication by th is court is whether the Tshwane District Hospital staff were
negligent, and, if so, whether their negligence caused FBW’s hypoxic -ischemic injury,
which resulted in cerebral palsy. It bears mentioning that there must be a causal
nexus between the negligent act alleged and the damages suffered. The onus is on
the plaintiff to prove negligence on the part of the defendant’s servants, be it by act
or omission.10
Causation
(157) As Nkabinde J stated: “The point of departure is to have clarity on what
causation is. This element of liability gives rise to two distinct enquiries. The first is a
factual enquiry into whether the negligent act or omission caused the harm giving
rise to the claim. If it did not, then that is the end of the matter. If it did, the second
enquiry, a juridical problem, arises. The question is then whether the negligent act or
omission is linked to the harm sufficiently closely or directly for legal lia bility to ensue
or whether the harm is too remote. This is termed legal causation”11
(158) When all is said and done, the court in Lee did not replace the “but for” test
as set out in International Shipping Co (Pty) Ltd v Bentley ,12especially in delict ual
liabilities involving commission. T his test is “designed to determine whether a
postulated cause can be identified as a causa sine qua non of the loss in question. In
order to apply this test , one must make a hypothetical enquiry as to what probably
would have happened but for the wrongful conduct of the defendant ”13. Dealing with
this test , the constitutional court in Lee said:
“Application of the ‘but for’ test is not based on mathematics, pure science or
philosophy. It is a matter of common sense, based on the practical way in
which the ordinary person’s mind works against the background of everyday -
life experiences. Or, as was pointed out in similar vein by Nugent JA
in Minister of Safety and Security v Van Duivenboden – and -Gore. In Gore
10 Telematrix (Pty) Ltd v Advertising Standards Authority SA 2006(1) SA 461 (SCA) para 12
11 Lee v Minister of Correctional Services (CCT 20/12) [2012] ZACC 30; 2013 (2) BCLR 129 (CC);
2013 (2) SA 144 (CC); 2013 (1) SACR 213 (CC) (11 December 2012) para 38.
12 1990 (1) SA 680 (A)
13 Supra para 65.
the approach adopted in discharging the onus in relation to factual causation
was described thu s:
‘With reference to the onus resting on plaintiff, it is sometimes said that the
prospect of avoiding the damages through the hypothetical elimination of the
wrongful conduct must be more than 50%. This is often followed by the
criticism that the resulting a ll-or-nothing effect of the approach is
unsatisfactory and unfair. A plaintiff who can establish a 51% chance, so it is
said, gets everything, while a 49% prospect results in total failure. This,
however, is not how the process of legal reasoning works. Th e legal mind
enquires: What is more likely? ”14
(159) The constitutional court concluded that : “Our existing law does not require, as
an inflexible rule, the use of the substitution of notional, hypothetical lawful conduct
for unlawful conduct in the application of the but -for test for factual causation. ”15
Negligence
(160) The locus classicus on negligence remains Kruger v Coetzee ,16viz:
“For the purposes of liability culpa arises if -
(a) a diligens paterfamilias in the position of the defendant -
(i) would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.
This has been constantly stated by this court for some 50 years. Requirement
(a) (ii) is sometimes overlooked. Whether a diligens paterfami lias in the
position of the person concerned would take any guarding steps at all and, if
so, what steps would be reasonable, must always depend upon the particular
circumstances of each case. No hard and fast basis can be laid down. Hence
14 Supra para 47 .
15 Supra para 50.
16 1966(2) SA 428 (A) .
the futility, in general, of seeking guidance from the facts and results of other
cases.”17
The role of experts
(161) Unpacking the role of expert witnesses, the court in Bee v RAF18 stated :
“It is trite that an expert witness is required to assist the court and not to usurp
the function of the court. Expert witnesses are required to lay a factual basis
for their concl usions and explain their reasoning to the court. The court must
satisfy itself as to the correctness of the expert’s reasoning. In Masstores (Pty)
Ltd v Pick ‘n Pay Retailers (Pty) Ltd [2015] ZASCA 164 ; 2016 (2) SA
586 (SCA) para 15, this court said '[l]astly, the expert evidence lacked any
reasoning. An expert’s opinion must be underpinned by proper reasoning in
order for a court to assess the cogency of that opinion. Absent any reasoning
the opinion is inadmissible'. In Road Accident Appeal Tribunal & others v
Gouws & another [2017] ZASCA 188 ; [2018] 1 ALL SA 701 (SCA) para 33,
this court said '[c]ourts are not bound by the view of any expert. They make
the ultimate decision on issues on which experts provide an opinion'. (See
also Michael & another v Linksfield Park Clinic (Pty) Ltd & another [2002] 1
All SA 384 (A) para 34.)”19
(162) The court continued and held:
“In The State v Thomas (CC 19/2015) [2016] NAHCMD 320 (19 October
2016), the mental condition of the accused, which was in question, was
enquired into by two psychiatrists and they produced reports. In respect of the
experts' reports, the court at para 29 said:
'When dealing wit h expert evidence the court is guided by the expert witness
when deciding issues falling outside the knowledge of the court but within the
expert’s field of expertise; information the court otherwise does not have
17 Paras E, F and G.
18 (093/2017) [2018] ZASCA 52; 2018 (4) SA 366 (SCA) (29 March 2018 )
19 Supra para 22 .
access to. It is however of great importan ce that the value of the expert
opinion should be capable of being tested. This would only be possible when
the grounds on which the opinion is based are stated.7 It remains ultimately
the decision of the court and, although it would pay high regard to the views
and opinion of the expert, the court must, by considering all the evidence and
circumstances in the particular case, still decide whether the expe rt opinion is
correct and reliable.'”20
(163) On agreement s between the experts, the court said:
“This raises the question as to the effect of an agreement recorded by experts
in a joint minute. The appellant’s counsel referred us to the judgment of
Sutherland J in Thomas v BD Sarens (Pty) Ltd [2012] ZAGPJHC 161. The
learned judge said that where certai n facts are agreed between the parties in
civil litigation, the court is bound by such agreement, even if it is sceptical
about those facts (para 9). Where the parties engage experts who investigate
the facts, and where those experts meet and agree upon th ose facts, a litigant
may not repudiate the agreement ‘unless it does so clearly and, at the very
latest, at the outset of the trial’ (para 11). In the absence of a timeous
repudiation, the facts agreed by the experts enjoy the same status as facts
which a re common cause on the pleadings or facts agreed in a pre -trial
conference (para 12). Where the experts reach agreement on a matter of
opinion, the litigants are likewise not at liberty to repudiate the agreement.
The trial court is not bound to adopt the opinion but the circumstances in
which it would not do so are likely to be rare (para 13). Sutherland J’s
exposition has been approved in several subsequent cases including in a
decision of the full court of the Gauteng Division, Pretoria, in Malema v The
Road Accident Fund [2017] ZAGPHC 275 para 92.
In my view, we should in general endorse Sutherland J’s approach, subject to
the qualifications which follow. A fundamental feature of case management,
20 Supra para 29.
here and abroad, is that litigants are required to reach a greement on as many
matters as possible so as to limit the issues to be tried. ”21
(164) From the reading of this judgment, it is patent that where experts in the same
field have reached an agreement “a litigant cannot be expected to adduce evidence
on the agreed matters. Unless the trial court itself were for any reason dissatisfied
with the agreement and alerted the parties to the need to adduce evidence on the
agreed material, the trial court would, I think, be bound, and certainly entitled, to
accept the matters agreed by the expert .”22
Submissions :
Plaintiff’s counsel
(165) Counsel for the plaintiff submitted that the defendant’s witnesses fared very
poorly. He r eminded the court that the Pediatr icians excluded IUGI as an etiology in
this case ; both the Obstetricians found it hard to believe that the plaintiff promptly
dilated from 3cm to full dilation in under an hour ; the midwives agreed that R2488
was not observed and t he FHR was not assessed during the second stage of labour
which resulted in the asphyxiat ion of the newborn baby. When summar ising the
eviden ce of the plaintiff’s experts , he bemoaned the defendants’ failure to produce
CTG tracings between 20h00 and 00h00 .
(166) He asked the court to draw a negative inference for the defendant’s failure to
call the nurses and doctors to testify. Dealing with the defendant's experts , he
submitted that they recorded in their reports that the management of the plaintiff was
according to Maternity Guidelines and everything was done according to the bo ok,
yet all of them , without exception , conceded under cross -examination that that wa s
not the case. He submitted that Dr K ganane was of no assistance to the court and
questioned her presence because she could not comment on the obstetric
management. In essence, i t was his submission that a ll the witnesses of the
defendant s were biased.
21 Supra paras 64 to 65.
22 Supra para 70.
(167) He questioned how the defendant s conducted their case , noting that Sister
Smith was not furnished with CTG tracings despite having asked for them nor was
Dr. Mbokota furnished with the reports prepared by other experts . He asserted that
Sister Smith was horrified upon being show n the 00h19 CTG tracing and had no
hesitation in concurring with Prof Coetzee. She testified that the failure to plot the
partogram constituted substan dard care . Conse quently , she said the staff did not
know what was happening to the patient , he reminded the court.
(168) Referring to Dr. Mbokota ’s statement that the CTG tracing on caseLines was
clearer than the one given to him , he questioned his failure to ask for a clearer copy.
Questioning Dr. Mbokota’s classification of CTG tracing into reassuring, non -
reassuring , and pathological , he said these were not contained in his report or his
joint minutes. He had no option but to acknowledge that Dr. Mbokota was an
educated man , but concluded that he was biased. He questioned Dr. Mbokota’s
reliability in the face of agreements that IUGI was ruled out by pediatric ians,
neurologist s, and genetic ists, and added that he was not able to counter the opinion
of Prof Smith that the baby was a constitution ally small baby rather than a
pathological ly small baby . He asserted that t he genet icists effectively remove d IUGI.
He pointed to a contradiction in Dr. Mbo kota’s assertion that smoking was the cause
of IUGI , yet he concluded in the joint minutes that “ we unfortunately do not have the
weight of the placenta , which will clarify if there was indeed placental pathology
which could be due to cigarett e smoking. ” He said one can not express something
with certainty and also seek clarity.
(169) He referred to some negative comments made by another court about Dr.
Mbokota. He submitted that the plaintiff was diagnosed at 06h00 and something
should have been done at about 14h00 , but was only seen by a doctor at 02h00, 12
hours later than required. Given Dr. Mbokota’s evidence, he continued, the
negligence a nd causation are evident. In addition, there were insults such as the
administration of peth idine which was contraindicated , the use of fundal pressure,
the non-recording of FHR during the second stage of labour, which according to the
midwives resulted in this outcome , and the failure to plot the progress of the labour
on the partogram , he added.
(170) He referred to Lee’s case and stated that cau sation ha d been established. He
then dealt with costs and asked for costs on a punitive scale because of the
defendants’ failure to produce CTG tracings and call the doctors and nurses to
testify . He argued that the more than one -hour delay in responding to the nurses' call
required an explanation. He s ubmitted that counsel for the defen dants failed to
cross -examine the plaintiff’s witness es. He found the attempt to restrict the court ’s
attention to only what occurred between 00h30 and 02h30 alarming and
misleading . The evidence of smoking and alcohol , which was not pleaded, he
submitted , was inadmis sible. He said Dr. Kganani ’s testimony was a wa ste of the
court ’s time.
Defendant s’ counsel
(171) Counsel for the defendant submitted that t he plaintiff ha d failed dismally to
demonstrate the causal connection. He submitted that this matter could be disposed
of easily , even if it was brought on a default judgment. Referring to the matter of Bee
v Raf , he said that the joint minutes are bindin g and cannot be deviate d from without
an application. He submitted that both Coetzee and Smith attempted to deviate from
their joint minutes . Responding to the issue of cross -examination, he argued that
cross -examination was a choice , and to paraphrase , he said if a witness was not
hurting one's case, one was not bound to cross -examine ; it is not a must. He argued
that experts are different from factual witnesses; they analyse the data and express
their opinions , and t he court decides which one is backed up by the facts.
(172) He referred to the Radiologist s’ joint minutes and asserted that this was an
acute profound injury. When the court enquired about the failure to amend the plea ,
he rei terated that this case could be dismissed even if the defendant was not there .
On further questioning by the court, he confirmed that smoking and alcohol were not
pleaded . Eventu ally, on the amendment issue, he said: “Why bother on something
that is conceded ? It is a fact.” He argued that the court c ould not exclude that
evidence simply because it was not pleaded and stated that the witnesses were
cross-examined on it.
(173) Questioning the credibility of Prof Coetzee, h e submitted that he disavowed
his medico -legal report ’s position , in which he wrote : “Gestational age was therefore
38+ weeks at birth…
Of note is the fact that this newborn only weighed 2.7 kg at almost 39 weeks which
makes him small for gestational age (see Prof Smith’s notes). This could have been
due to placental insufficiency (mother was a smoker), which was not detected and
this coul d explain why the fetal condition deteriorated so rapidly.”
(174) He submitted that he recanted this position in the joint minutes and said
“Neither the alcohol nor the smoking can be linked to the subsequent condition of
F.B.W. i.e. neonatal encephalopat hy & mixed type cerebral palsy [EJC]”
(175) He submitted that Neurosurgeons agreed in their joint minutes that: “Possible
risk factors include maternal nicotine, prolonged labour , meconium -stained liquor and
fetal distress. We defer the management of these and their possible contribution to
the expert obstetrician.” Furthermore, he referred to the joint minutes of Geneticists ,
specifically where they wrote: “There is a Mate rnal h istory of cigarette smoking
during pregnancy but denied alcohol ingestion.”
(176) Continuing in this line of submission, he pointed to the joint minutes of
Pediatricians, particularly where they said :
“1.18 there is evidence to state that F was small for gestational age at 39
weeks, which was probably related to some degree of utero -placental
insufficiency, related to maternal smoking.”
(177) Contrary to Prof Coetzee’ s statement that the CTG was subtle following the
intrapartum fetal resuscitation , Dr. Mbokota said it was normal , he said . He said Prof
Coetzee has a propensity to be partisan because he tried to be polite to Dr. Mbokota
on the interpretation of CT G and put his credibility into question because he has the
capacity to please people . Second, he submitted t hat Prof Coetzee cannot be relied
upon as he wrote different things in his report and the joint minutes.
(178) On the issue of the C-section, he submitted that there was just not enough
time for it because it had to be done within an hour from the action plan, which
includes organizing nurses, anesthetists and securing consent from the patient. He
embarked on a mathematical computation of possibl e time for a C -section and
asse rted that : Dr. Mbokota testified that 30 min utes is a reasonable response time
for a doctor to attend an emergency call ; the doctor was called at 00h45 . He
suggested that the doctor would have been expected at 01h15 and upon arrival, he
would have examined for 10 to 15 minutes , according to Dr . Mbokota , which would
lead to 01h30 . According to him, the C -section would have been done by 02h30 .
Therefore, that window of opportunity to perform a C -section was not available. He
argued that t he experts agreed that the injury occurred in the last 20 to 30 minutes.
(179) Referring to the matter of MEC of Health and Social Development of the
Gauteng Provincial Government v M ,23 he submitted that this case was similar to this
matter and mentioned paragraph 26 in which the court said :
“…The courts have cautioned against commencing with an unfavourable
outcome and working backwards in search of a cause. Hornbuckle J warned
that with the benefit of the knowledge that there has been a neurologically
unfavourable birth outcome, a plaintiff's attorney 'can take any foetal monitor
strip and make a malpractice case out of it ."
(180) Exam ining Lee’s case , he submitted that Lee was not applicable in this case .
He submitted that Lee’s case is not applicable where the cause and timing of the
injury are known and referred to AN v MEC for Health, Eastern Cape (585/2018)
[2019] ZASCA 102 (15 August 2019) .
(181) Since the nurses did not call the doctor for the third time, having already
called him at 00h45 and 01h15, he submitted that the situation was no longer so
adverse and that there was no longer any emergency . Hence, he added, the doctor
simpl y instruct ed the staff to monitor for further deceleration.
23 272/2022) [2024] ZASCA 21 (05 March 2024)
(182) He revisited the issue of pleadings and referred to the case of Minister of
Safety and Security v Slabbert , stating that the issue was fully canvassed and the
court cannot ignore it simply because it was not pleaded. He submitted that the
plaintiff did not raise any prejudice , but cross -examined witnesses extensively on it.
(183) In conclusion, he submitted that the matter should be dismissed for lack of a
causal nexus or connection , but conceded that there was evidence of non -
compliance with the Guidelines.
Reply
(184) In reply , counsel submitted that the plaintiff was preju diced by the defendant ’s
failure to amend pleadings to include the issues of smoking and alcohol. He insisted
that this was an issue between the experts and dealt with it as such , in anticipati on of
a possible amendment from the de fendants . He stood by his original submissions
and argued that the defendant had a duty to discover every document, including all
the CTG tracings. He enquired where the CTG tracings from 20h00 were . Finally, he
asked why the witnesses were not called to decipher the illegible notes and testify
about the missing CTG tracings.
ANAL YSIS
(185) It is common cause that the plaintiff prese nted herself at Tshwane District
Hospital on 26 February 2012 at approximately 06h00 . She was diagnosed as being
in the latent phase of labour , with a cervical dilation of 1cm. She elected to return
home . When her contractions intensified , she went back to the TDH and was
admitted at about 1 1h50 as a low -risk patient , with her cervix assessed to be 3cm
dilated, still in the latent phase of labour. It is also common cause that the next
cervical dilation was at 02h 05 of the following morning when he r cervical dilation was
9 cm.
(186) Furthermore, i t is common cause that t he midwi ves did not follow the Maternal
Guidelines ’ procedure s in dealing with the plaintiff. In terms of the Maternal
Guidelines , the latent phase is prolonged when it exceeds 8 hours. The plaintiff first
attended the Hospital at 06h00, and her 8 -hour cut-off would have be en 14h00.
However, in terms of the same Guidelines , the computation of the 8 hours
commences on admission, which was 11h50 . Consequently, the correct timeline is
19h50 or 20h00.
(187) It is noteworthy that a t 20h00, she experienced contractions and told the
nurses that she felt like the baby wanted to come out. This time coincided with the 8 -
hour deadline in terms of the Maternal Guidelines. Surely, the moment had come to
act and rupture the membranes after excluding other causes mentioned above, such
as abdominal pain and false labour in ter ms of the Maternal Guidelines. Whether one
accepts the version of Dr. Mboko ta, whom I hold in high regard due to his expertise
in the subject, or the midwives ’ version , this was not done . The membranes were
ruptured at 00:10, almost four hours late.
(188) Again, regardless of whether one accepts the version of t he midwives or Dr .
Mboko ta, at 22h00, two hours after the 8-hour deadline, a doctor should have been
called to initiate an oxytocin infusion if the delay in the progress of labour was
attributable to the weak contractions. This was not done. The doctor was called at
00h45 for the first time and at 01h15 for the second time (2hrs 45 minutes and
3hrs 15 minutes late ). The precise time of the doctor ’s arrival is disputed , but what is
not in contention is that he recorded his clinical n otes at 02h00, some four (4) hours
late according to Dr.Mbokota or six (6) hours late according to the midwives .
(189) Following the Maternal Guidelines, she was supposed to be v aginally
examined at two-hour intervals . This protocol was not observed . When it was
eventua lly follow ed at 00:10 , she was still 3cm dilated. Having regard to the
plaintiff’s uncontested testimony that a drip was inserted into her, which accidentally
got dislodged, leading to the change of beds, this court is not told, nor is it noted in
the hospital records , what necessitated the insertion of a drip. Moreover , the
absence of CTG tracings between 20h00 and 00h19 when a non -reassuring
tracing was recorded is both suspicious and devastating. It is s uspicious when
viewed alongside the plaintiff’s uncontested testimony that at 20h00 a heart machine
was put on her . Dr. Mbokota saw a CTG tracing done on 26/02/2012 at 23h56 and
stated : “This part of the trace shows poor contact with lots of interference, impossible
to interpret ”. This is d evastating because if the trac ing was non -reassuring at that
time, what was done at 00h19 would have been done earlier . It is more than
probabl e that a C-section at that time would have resulted in a different outcome.
(190) Whilst I understand that CTG is not the only tool to measure the foetal
heartbeat, in this case , a CTG was utilized . Accordingly, the tracings were supposed
to be made available. The defendant’s failure to call witnesses such as midwives and
doctors on duty on that faithful day to fill in th e gap does not put the defenda nt in a
good light , see Galante v Dickison . 24
(191) When the membranes were ruptured , some four hours late r, contrary to the
Guidelines , a thin m econium -stained liquor was observed . Nine minutes thereafter,
at 00h19 , the CTG tracing was non -reassuring. The comedy of errors , which would
be funny if it w ere not a matter of life and death , continued as they administered
pethidine and at araxy . To their credit , they did intrapa rtum resuscitation. This did not
help; hence , they called the doctor at 00h45 am, 55 minutes after the non -reassuring
CTG trac ing report . The fact that the y called the doctor for the second time , 30
minutes later at 01h15 , is indicative of the seriousness of the situation. In his
testimony , Dr Mbokota made too much of the doctor’s notes at 02h00 , which
recorded 128 bpm and regular. Besides the fact that he did not capture the notes
correctly, as he left out some word s, his testimony is at variance with the defendant’s
amended pleas at 6.16 which noted: “At 02h00 plaintiff’s cervix was still 3cm dilated
and CTG tracing was non -reassuring and it was reading 128bpm and was re gular.”
This CTG trac ing was not made available to the plaintiff or the court. Be that as it
may, the truth is that CTG tracing was non -reassuring. This reinforces the conclusion
that a C -section should have been prepared as early as 00h20 , if not significantly
earlier. During the court ’s conversation with Prof Coetzee, it became evident that a
C-section was both indicated and long overdue, particular ly in light of the fact that
she was still 3cm dilated .
(192) Dr. Mboko da had sight of seven CTG traces . The ones that are of interest are
the following :
24 1950 (2) SA460 (A) .
“CTG TRACINGS
5.4. CTG done on 26/02/2012 at 23h56: this part of the trace shows poor
contact with lots of interference, impossible to interpret.
5.5. CTG done on :27/02/2012 starting at 00h20 to 00h40: this part of the
trace is faint but shows mild to moderate contract ions, with FHR showing
good variability and some accelerations and no decelerations. The baseline
FHR is around 120 bpm.
(193) It is on the reading of this tracing that the midwife was pro mpted to not only
embark on intra -foetal res uscitation but also call the doctor. Dr. Mbokota’s
explanation for not seeing decel erations on this CTG tracing is that the one given to
him was illegible. The rhetorical question is , why make a definitive reading on a
tracing you cannot see pro perly, especia lly in a matter of life and death ? I reject his
explanation and accept Prof Coetzee 's version that the CTG tracing was horrendous
and require d expedited delivery.
(194) To his credit , though, Dr. Mboko ta revised his initial position of not observing
decelerations at 00h19 or 00h20 on the CTG tracing to seeing at least two to three
decelerations. His counterpart all along regarded this CTG tracing as horrendous
and necessitated an expedited delivery. Had this been done , the child would have
been delivered within 60 minutes in terms of the Guidelines, which could have been
any time before 01h20 or 01h30 at most . Seeing that she was still 3cm , the other
modes of exp edited delivery would have been contraindicated.
(195) Dr. Mbokota testified that the CTG tracing was not the only tool to monitor the
progress of labour and referred to Latent Phase Observations .
(196) LATENT PHASE OBSERVATIONS
DATE TIME TEMP. PULSE/ RESP. B/P URINE CONTRACTIONS
FHR
26/2/12 14h00 36.c 80-18 15/77 Toilet mild 139
26/2/12 16h00 36.5c 93 -20 129/68 --- mild
144
26/2/12 18h00 36.2c 80 -18 120/57 Toilet mild
150
26/2/12 20h00 86.6c 99 – co 128/81 Toilet mild
150
26/2/12 22h00 36. 79 – 20 141/65 mild
150
27/2/12 00h00 36. 2c 61 - 18 131/ 68 Toilet moderate 134
(197) He stated that this showed the monitoring was reliable. I do not agree ; if
anything , these notes rei nforce the testimony of the plaintiff. Indeed, she went to the
toilet at 20h00 as recorded in the notes. She said she lost consciousness just after
20h00 ; this dovetails with the recording as there is no toilet visitation between 20h00
and 00h00 She testified that she was awoken at 00h00 when she was told it was
time. This corresponds with the toilet visitation at 00h00 . It is probable that the
plaintiff was not attended to between 20h00 and 00h00 when ROM was supposed to
have been done. Given what is stated in the Guidelines, t his was a critical period,
regardless of whether the CTG tracing was reassuring or non -reassuring.
(198) The F HR, as shown , is of little help if there is no record of baseline variability,
accelerations , and/or decelerations. Documentation of the progress of labour was
poor as it was not plotted on the partograph. It is patent that from 19h30 to 00h30
there was no proper monitoring of the plaintiff. All the experts are in agreement that
this was substandard.
(199) Whilst on the issue of negligence, counsel for the defendant in his cl osing
remarks categorically stated that there is evidence of non -compliance with the
Guidelines, to quote him: “There is evi dence about n on-compliance with the
Guidelines that is there , we accept that we don’t have to… it is there . You check
what they did , you check the guidelines , it is there … but it does not establish
causation , you still have to establish a c ausal connection .” From this concession and
given Dr . Mbokota’s concessions, I am of the view that negligence has been
established. Accordingly , the issue of negligence is no longer in dispute.
What am I to make of the fa ct that the plaintiff was a social d rinker and
smoker?
(200) It is common cause that she (a) attended clinic regularly and all routine
antenatal tests were norma l, (b) the plaintiff was a social drinker and a smoker and
(c) she testified that she stopped drinking alcohol when she discovered that she was
pregnant and reduced her intake of cigarettes to two per day.
(201) It is impermissible for a court to have recourse to issues falling outside the
pleadings. It is undeniable that there is no reference to smoking and alcohol in the
defendant’s plea. When the court asked why an amendment was not effected to their
plea, counsel for the defendant said: “Why bother on something that is conceded.”
(202) The court state d, in the ma tter of Imprefed (Pty) Ltd v National Trans port
Commission ,25 that:
"At the outset it need hardly be stressed that: - The whole purpose of
pleadings is to bring clearly to the notice of the Court and the parties to an
action the issues upon which reliance is to be placed …‘The object of
pleadings is to ascertain definitely what is the question at issue between the
parties; And this object can only be attained when each party states his case
with precision .’”26
(203) In Robinson v Randfontein Estates GM Co Ltd , 27 the court put it as follows :
"The object of pleading is to define the issues; and parties will be kept strictly
to their pleas where any departure would cause prejudice or would prevent full
enquiry. But within those limits the Court has a wide discretion. For plea dings
are made for the Court, not the Court for the pleadings. And where a party has
had every facility to place all the facts before the trial Court and the
25 1993(3) SA 94
26 Supra page 107 C to E
27 1925 AD 173
investigation into all the circumstances has been as thorough and as patient
as in this instance. ”28
(204) Examining the purpose of the pleadings , the court in the matter of Minister of
Safety and Security v Slabbert 29said:
“[11] The purpose of the pleadings is to define the issues for the other party
and the court. A party has a duty to allege in the pleadings the material facts
upon which it r elies. It is impermissible for a plaintiff to plead a particular case
and seek to establish a different case at the trial. It is equally not permissible
for the trial court to have recourse to issues falling outside the pleadings when
deciding a case.”
(205) Besides the fact that the defendant did not amend its pleadings to include this
issue, I agree that the issue was canva ssed at great length an d, therefore, this court
must consider it. In examining this issue, it is notewo rthy that , as already stated, the
experts excluded , inter alia, intrauterine growth restriction as an aetiology.
(206) Dr. Mbokata , who seemed to be a lone crusader on these issues of alcohol
and smoking, made serious concessions under cross -examination. On the issue of
alcohol, he conceded that he did not ask nor know how many social events the
plaintiff had attended before she knew she was pregnant and stopped alcohol
consumption since she was a social drinker. Having accepted the conclusion of the
Paediatricians, to whom he had deferred, that there was no foetal alcohol syndrome
in this case, he was constrained to concede that alco hol played no role in the HIE.
On the issue of smoking, it is common cause that nicotine affects the placenta , which
in turn has an effect on the growth of the foetus. In this case, Dr . Mbokota pointed
out that the birthweight was 2700 g. This was small for the gestational age of 38
weeks.
(207) It is common cause that smoking, per se, does not cause hypoxia. It is one of
the proximal causes of hypoxia. To arrive at the decision that ni cotine had a hand in
28 Supra para 198
29 (668/2009) [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) (30 November 2009
the hypoxia, the placenta needs to be investigated. In casu , this was not done . It was
simply said that the placenta was flat and round. Under cross -examination, Dr.
Mbokota stated that : “as to whether there was placental pathology due to cigarette
we do not know because (1) we do not have the weight of the placenta , (2) we do
not have the histology ”. Moreover, Prof Smit was not challenged in his conclusion
that this was a constitutionally small baby, having regard to the head circumfer ence
and the body length of the baby. In this respect , he was supported by the joint
minutes of the Geneticists and N eurologists , who exclude d (intrauterine growth
restriction) IUG R as an etiology.
(208) Prof Smith made a revealing statement that is based on the science of red
blood cells. To repeat, He opined that the hypoxia was of short duration , of less than
six hours , because it did not cause a significant rise in the nucleated red blood cells.
There is more evidence of a shorter -lived hypoxia than a chronic , prolonged hypoxia.
This, he testified, somewhat argues against chronic placental insufficiency before
labour.
(209) The Paediatricians agreed that there was a significant neonatal metabolic
acidosis, which indicated that significant prior (intrapartum) sustained hypoxic -
ischemic injury (HIE) to the foetus caus ed the passing of the thick meconium.
(210) By contrast, Dr. Mbhokota talks of precipitous labour. Indeed, if there w ere a
sentinel event , there would have been very little that the doctors could do. However,
this was not such a case. Given Prof Smith 's elucidation on what the Radiologists
called acute profound and the Pediatricians ' joint minutes that this was not a sentinel
event, it is most probable that the hypoxia was of a short duration of fewer than six
hours due to prolonged labour , which , in my view, is the aetiology of F.B.W.’s
neonatal encephalopathy.
(211) Both Dr. Mbokota and Pro fessor Coetzee questioned the rapid dilation of the
plaintiff from 3cm to 9cm in less than an hour. Secondly, the records of the
progression of labour were inadequate and unreliable as it was not plotted on the
partograph ; the CTG tracing was incorrectly discontinued at 01 h50. The paediatric
doctor noted that there had been thick meconium -stained liq uor. The midwi ves did
not comply with R2488 in that the y did not call a doctor when there was no progress
in labour after 8 hours f ollowing her admission into TDH.
(212) The courts are not imbued with magical retrocognition powers, nor can they
foretell the future like zangomas or soothsayer s. In civil matters, South African courts
rely on their Roman -Dutch colonial inheritance of the balance of probabilities30. A
very nebulous and ill-defined term and method for a party to discharge the onus it
bears to prove that its version is more likely to be true than the other party’s version.
This rule “that a judge may, in his discretion, act on the probabilities of the case, in
other w ords that a reasonable presumption or a strong probability may shift the onus
probandi , and, if not rebutted , may form the basis of judicial decision , is traceable to
the civil law , and is fully recognized by the Roman -Dutch jurists .”31 To me, a sound
test, which is located in the constitutional edifice, is what is just and equitable , given
the proven probabilities . I dare say that is more in line with the constitutional values
than to dog gedly foll ow the archaic Eurocentric method of thinking of jurists such as
Westenberg , Wigmore , and Voet, to name but a few.
(213) The fonds et origo of this case can be found in the varying versions which
outline the probable aetiolog y for HIE suffered by F.B.W. The first version is that
there was no sentin el event , as noted in the joint minutes of Pediatricians and
Geneticists . In terms of this version, the catastroph e (HIE) would not have occu rred
had a C-section been prepared at 00h30 , upon observing the horrendous CTG
tracing.
(214) The second version is that there wa s an acute profound brain injury, as
observed by the Radi ologists in their joint minutes ; consequently , there was very little
the staff could do to change the outcome . Furthermore , a C-section w ould not have
been of assistance since she experienced a rapid dilation from 4cm to 9cm at 02h05 .
By this period, it was too late to organise a C-section as an acute profound brain
injury had occurred.
30 Ley v Ley’ s Executors and Others 1951 (3) SA 186 (A) at 192 -3.
31 West Rand Estate Ltd v New Z ealand Insurance Co Ltd 1925 A.D. 2 45 at 263
(215) At the centre of these first two versions are the terms acute profound , and
partial profound brain injuries . Elucidating the differences between the two, the court
in NSS obo AS v MEC for Health, Eastern Cape Province32 said:
“An acute profound HII must be distinguished from a partial prolonged HII.
According to the reports by both experts, an acute profound HII is essentially
a severe asphyxial event (deficient supply of oxygen) that occurs suddenly
and progresses rapidly in term neonates, resulting in a primarily central
pattern of injury involving the deep grey matter of the brain. The cause of an
acute profound HII is generally referred to as ‘a sentinel event’. Partial
prolonged partial HII develops over a period of time, allo wing compensatory
redistribution of blood flow to occur, which results in a different pattern of
injury to the white matter or peripheral structures of the brain. ”
(216) As already mentioned, Prof Smith testified this was not a n acute profound
brain injury, and he was not cross -examined on this issue. Dealing with cr oss-
examination, the court i n President of the Republic of South Africa and Others v
South African Rugby Football Union and Other s33 held:
“The institution of cross -examination not only constitutes a right, it also
imposes certain obligations. As a general rule it is essential when it is
intended to suggest that a witness is not speaking the truth on a particular
point, to direct the witness’s attention to the fact by questions put in cross -
examination showing that the imputation is intended to be made and to afford
the witness an opportunity, while still in the witness box, of giving any
explanation open to the witness and of defending his or her character. If a
point in dispute is left unchallenged in cross -examination, the party calling the
witness is entitled to assume that the unchallenged witness’s testimony is
accepted as correct. This rule was enunciated by the House of Lords
in Browne v Dunn and has been adopted and consistently followed by our
courts. ”34
32 (017/22) [2023] ZASCA 41; 2023 (6) SA 408 (SCA) (31 March 2023
33 (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999
34 Supra para 61.
(217) In the joint minutes, the Paediatrician agreed that there was no recorded
perinatal sentinel or catastrophic event.
(218) The third version , which was highlighted by the midwiv es and Dr. Mbokota , is
that several conceivable postulatio ns could have pl ayed themselves out if, at 20 h00
the Maternal Guidelines w ere followed, and mem branes were ruptured.
(219) On a balance of probabilities , the test of negligence as outlined in Kruger v
Coet zee has been met. The next q uestion is whether the negligent act or omission
caused the harm giving rise to the claim . Had the midwi ves followed the protocol at
20h00 would the inju ry ha ve occurred ? In Ocean Accident and Gu arantee
Corporation Ltd v Koch ,35 the court said:
“The fact that , scientifically speaking , the aetiology of the disease is uncertain ,
does not hamper the Court in deciding on the facts and on the expert
evidence adduced in a given case , whether a likely cause was proved in such
case . Judicial decision s reflect the particular facts and testimony of each case
and are not intended and cannot be regarded as scientific treati ses.
Accordingly , the possibility of future scientific disproof of the opinion of one or
the other expert medical witnesses is , judicia lly, a matter of no moment - the
court must do the best it can on the material presently before it in each
case .”36
(220) For a court to draw a proper inference in civil matters , the inference sought to
be drawn must be consistent with all the proven facts ; secondly , on a bal ance of
probabilities, the court must “select a conclusion that seems to be more natural or
plausible from amongst several conceivable ones , even though that co nclusion be
not the only reasonable one.”37 Had the Maternal Guidelines been followed , it is
plausible that she would have remained at 3cm an d even after the administratio n of
oxytocin. A C -section would have been prepared within an hour; per the midwives’
35 1963 (4) 147 [A.D.]
36 Supra pag e 159 F
37 Supra page 159 C
version , it would have been ready at 10h30, even after factoring in an extra hour for
the doctor’s arrival and examinations of the patien t, and p er Dr. M bokota ’s testimony ,
it should have been ready at 00h30 On a balance of probabilities, this is the most
plausible conclusion, given that at 00h19 ROM did not lead to cervical dilation
beyond 3cm.
(221) The constit utional court in Lee said that:
“56 Even if one accepts that the substitution approach is better suited to
factual causation, the preceding discussion shows that there is no
requirement that a plaintiff must adduce further evidence to prove, on a
balance of probabilities, what the lawful, non -negligent conduct of the
defendant should have been. All th at is required is “the substitution of a
hypothetical course of lawful conduct and the posing of the question as to
whether upon such a hypothesis the plaintiff’s loss would have ensued or
not”.116 What is required is postulating hypothetical lawful, non -negligent
conduct,117 not actual proof of that conduct. The law recognises science in
requiring proof of factual causation of harm before liability for that harm is
legally imposed on a defendant, but the method of proof in a court room is not
the method of scientific proof. The law does not require proof equivalent to a
control sample in scientific investigation. ”
(222) The d efenda nts’ counsel submitted that this matter resembled MEC of Health
and Social Development of the Gauteng Provincial Government v M . I do not agree.
First, in M , the partogram was plotted correctly , and the mother was prop erly
monitored using Doppler . Second, in M, there was progress in labour ; hence , it is
recorded that she was in the active phase of labour at 07h30. When the “Foetal
distress was diagnosed at 14h30 and Ms M was prepared for a caesarean section.
However, she became fully dilated at 14h45, after being wheeled into theatre, and
she deliv ered L naturally at 15h10. ” In casu , a cesarean section was not prepared ,
notwithstanding the following :
1. The presence of MSL .
2. Non-reassuring CTG tracing ( a horrendous tracing) .
3. Lack of progress in labour despite ROM (3cm cervical dilation) .
4. Failure to comply with Guidelines ( 8 -hour deadline missed) .
5. Delay by the doctor .
6. Failure to plot the partogram .
7. Failure to follow the doctor’s instructions.
(223) I am alive to the presence of other conceivable postulations , such as the
cervix would have dilated and she could have given birth naturally, or that a
precipitous delivery could have occurred. Even a sentinel event could have occu rred.
(224) On a balance of probabilities , and having regard to the but -for test , the plaintiff
has proven the causal nexus between the HIE and the negligence of the defendants.
On a balance of probabilities, I am convinced that had the staff follow ed the
Guidelines and call ed the doctor before 00h00 , the CP would not have occurred. But
for the ir failure to prepare for a C-section after 20h00 at the earliest or after 00h2 0 at
the latest , the catastrophic result would not have occurred. By the time ROM was
performed , the die had already been cast ; expedite d delivery was imperative .
Indeed, t he plaintiff correctly heard the doctor s ay she should have long delivered ,
and certainly, s moking was not the smoking gun in this case. Consequently, the
plaintiff h as proven the causal nexus .
Costs
(225) It is trite that costs follow the results . I do not think a case for costs on a
punitive scale has been made. In the result, I make the following order :
Order
1. The Defendants are jointly and severally ordered to pay 100% of the
Plaintiff ’s agreed or proven damages consequent on the hypoxic
ischaemic cerebral damage sustained by F.B.W. (ID NO …) born on 27
February 2012 that has resulted in cerebral palsy.
2. The D efendants shall pay the Plaintiff ’s taxed or agreed costs of suit to
date on party and party scale C.
3. The costs shall include the following: -
3.1 The costs of the liability trial;
3.2 The costs attendant upon obtaining the medico -legal reports
including addendum reports, preparation, consultations and reservation
fees, if any, of the plaintiffs’ experts, namely: -
3.2.1 Dr.R.F.Scott
3.2.2 Prof. S. Andronikou
3.2.3 Dr. G.S. Gericke
3.2.4 Dr.W.Burger
3.2.5 Dr.D.Pearce
3.2.6 Prof.D.DuPlessis
3.2.7 Dr.G.S.Gericke
3.2.8 Prof.J.Smith
3.2.9 Prof.E.J.Coetzee
4. The appearance costs of Prof. D. du Plessis, Prof. E.J.Coetzee and
Prof. J. Smith.
5. The costs consequent upon the employment of counsel including the
costs of consultations, preparation, attendances at pre -trial
conferences, drafting, preparation of heads of argument, appearances
on trial and argument.
6. The costs consequent upon the employment of counsel on Scale C.
7. The costs of the plaintiffs’ attorneys of record subject to the discretion
of the Taxing Master in preparation for trial, travelling costs, and
attendance at court.
8. The reasonable costs of the Plaintiffs to attending the medico -legal
examinations of both parties.
9. Costs consequent to the preparation of trial and witness bundles.
10. Costs of holding pre -trial conferences, the parties having specifically
agreed that the costs of Counsel were necessarily incurred.
11. The notice of taxation shall be served on the Defendants ' attorneys of
record.
12. The Defendants shall pay interest at the prescribed rate on the
Plaintiffs taxed or agreed costs of suit calculated withi n thirty -one days
after agreement or from the date after affixing of the Taxing Master’s
allocatur to the date of final payment.
13. Any payment due in terms of this order shall be paid into the Trust
account of the plaintiffs’ attorneys of record:
Ivan Ma itin Attorneys Inc,
First National Bank,
Account no: 6 […],
Branch code:250 655.
14. The determination of quantum and the issue of prescription of the
Plaintiffs’ personal claims are postponed sine die.
____________________________
M.P. MOTHA
JUDGE OF THE HIGH COURT, PRETORIA
Date of hearing: 26 August 2024 – 06 September 2024 ; 15 & 17 October 2024
and 14 February 2025
Date of judgment: 26 June 2025
APPEARANCES:
For the Plaintiff s: Adv M. Patel instructed by Ivin Maitin Attorneys Inc.
For the defendants : Adv S. Malatji, Adv. L. Rakgwale and Adv. M. Mpama
instructed by The State Attorney