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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 92783/2025
HEARD ON: 22 July 2025
JUDGMENT: 5 September 2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 5 September 2025
SIGNATURE:
In the matter between:-
K[...]: C[...] N[...]
OBO S[...] T[...] K[...] Plaintiff
AND
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH OF THE LIMPOPO PROVINCIAL GOVERNMENT Defendant
JUDGMENT
___________________________________________________________________
Strijdom J
INTRODUCTION
1. There can be no purer miracle than the miracle of new life, and that must have
been the expectation of the plaintiff throughout the nine months of her pregnancy.
However, by the time S[...] was born on 3 July 2013, her experience had been anything
but traumatic. Since then, S[...] has been diagnosed with hypoxic ischemic incident due
to perinatal asphyxia, causing him to sustain severe brain damage, a result of which he
is suffering from cerebral palsy, mental retardation and epilepsy.
2. In this matter, the plaintiff instituted legal proceedings both in her personal and
representative capacity as a mother and natural guardian of her minor son, S[...] T[...]
K[...] (S[...]), who was born on 3 July 2013 by caesarean section at St Rita’s Hospital, in
Limpopo Province.
3. The plaintiff’s claim against the defendant is for payment of damages suffered by
S[...], resulting from hypoxic ischemic incident due to perinatal asphyxia, causing him to
sustain severe brain damage, as a result of which he is suffering from cerebral palsy. 1
4. The basis of the plaintiff’s claim is that the defendant’s employees had a legal
duty to monitor the condition of the plaintiff and the unborn S[...] and act appropriately
on the results. It is pleaded by the plaintiff that they negligently failed to do so in breach
of that legal duty.
1 Particulars of claim para 5
5. It is the breach of that duty of care they had towards them, that caused S[...] to
be born with hypoxic ischemic incident due to perinatal asphyxia, causing him to sustain
severe brain damage, as a result of which he is suffering from cerebral palsy, mental
retardation and epilepsy.
6. The complication occurred as a result of the negligence of the defendant’s
employees.2
7. The defendant does not deny that at all relevant times to the birth and delivery of
S[...] and in particular during the period 1-3 July 2013, the employees who attended to
the plaintiff were acting within the course and scope of their employment with the
defendant.
8. The defendant denied any negligence in the above. When pleading to the cause
of S[...]’s condition, defendant predicated its defence upon the following in its amended
plea:3
“4.2.18 The injury suffered by the baby, acute profound hypoxic ischemic brain
injury is consistent with acute hypoxia occurring in the last 30 to 40 minutes prior
to delivery including Meconium Aspiration Syndrome (MAS).
4.2.19 The Meconium was passed while in transit and MAS occurred in utero,
this could not be foreseen, predicted, or prevented, the aspiration also occurred
in the last 30 to 40 minutes prior to delivery by caesarean section.
4.2.20 The staff at either hospital could therefore not be able to do anything to
prevent the MAS. This was not a preventable event.
4.2.21 Transfer was done timeously and caesarean section performed within an
hour of the first assessment at St Rita’s Hospital.
4.2.22 The decision for caesarean section was not fetal distress but CPD, poor
labour progress and postdates.”
2 Particulars of claim para 6
3 Caselines: A32 Amended plea
9. By agreement between the parties, the issues of liability and quantum were
separated in terms of the provisions of Rule 33(4) of the Uniform Rues of Court. The
matter thus proceeded to trial on the issue of liability.
COMMON CAUSE FACTS
10. The following facts are common cause and or not in dispute between the parties.
;
10.1 The plaintiff booked at Ikageng Clinic, and her first visit was on 5 January
2013.
10.2 She was a 25-year-old POG1 in 2012 and she was anaemic when she
booked at about 18 weeks gestation.
10.3 The anaemia became symptomatic during the early ANC period around 19
weeks, and she was admitted and transfused with 2 units of packed red blood
cells.
10.4 She was diagnosed with pregnancy induced hypertension and aldoment
was prescribed for treatment.
10.5 Back of the antenatal card was not included in the bundle of records.
10.6 The plaintiff was referred to hospital and admitted overnight on 1 July
2013 and she was not in labour at the time. The decision was taken to induce
labour using Cytotec/Misoprostol. She progressed to active labour by 23:45 and
partogram was also started at 23:34.
10.7 The doctor assessed the plaintiff at 3:20 after 95 minutes delay.
10.8 Caesarean section could not be performed at Jane Furse hospital due to
lack of electricity. Transfer was undertaken to St Rita’s Hospital at 4:45.
10.9 S[...] was delivered by caesarean section on 3 July 2013 at the St Rita’s
Hospital in a compromised state and that he had suffered a hypoxic ischemic
brain injury which occurred during the intrapartum period (i.e., during labour and
delivery). As a result of the hypoxic ischemic brain injury, he had been left with
an asymmetrical mixed type of cerebral palsy in consequence whereof he is
incapable of independent mobility. His co-morbidities include profound
intellectual disability, microcephaly multiple contractures, scoliosis, strabismus
and probable cortical visual impairment, pseudobulbar palsy, uncontrolled
epilepsy and global developmental delay.
10.10 The defendant does not deny that at all times relevant to the birth and
delivery of S[...], the employees who attended to the plaintiff were acting within
the course and scope of their employment with the defendant.
ISSUES TO BE DETERMINED
11. Whether the delay by Dr Buwane to assess the plaintiff and lack of electricity
contributed to the hypoxic ischemic brain injury suffered by S[...] and the resultant
cerebral palsy.
12. Whether substandard care by the employees of the defendant resulted in hypoxic
ischemic brain injury suffered by S[...].
13. Whether a sentinel event, namely cord compression occurred.
THE FACTS
The expert evidence tendered by the plaintiff
14. Dr Linda Murray, a specialist obstetrician and gynecologist testified as follows:
14.1 That the plaintiff’s pregnancy progressed to postdates and she had
induced labour.
14.2 The plaintiff developed obstructed labour for which she needed a
caesarean section but the hospital in question could not carry out the caesar and
she was transferred to St Rita’s Hospital where the caesarean was performed
some hours later and she gave birth to a baby born in a compromised state, in
keeping with hypoxia. The plaintiff was high-risk because of postdates.
14.3 The CTG was not used to monitor the foetal heart and that is substandard
care. CTG should have been used according to the guidelines for maternity care
because the plaintiff was induced and her pregnancy was over 42 weeks.
14.4 Dr Buwane took one hour and 35 minutes to attend to the plaintiff. There
was a delay in him attending to this labour complication and when he did, he
diagnosed obstructive labour and poor progress, he indicated caesarean section,
but his note shows that they could not do that at Jane Furse.
14.5 Labour should be induced in a hospital equipped with a 24-hour labour
and delivery unit with a fully functional operating theatre. According to the
guidelines. The fact that there were no lights in theatre means that the theatre
was not operational, it means they could not do a caesarean section.
14.6 There were two delays, firstly, there was a delay in the doctor assessing
the plaintiff and another delay when she needed to be transferred from one
hospital to another.
14.7 The delivery interval was 2 hours and 10 minutes from the time the doctor
said she should have a caesar. This was excessive as the guideline state that
caesar should be done within an hour of the decision.
14.8 The passage of meconium, the fact that there was foetal heart abnormality
and obstructed labour, all together are indicators of significant foetal hypoxia.
14.9 With this type of brain injury, the brain is injured over a shorter period of
time, but the cause of the change can occur over time. She testified that the
collapse was foreseeable. There was foetal tachycardia (fast heart rate) at 2:30
and there was delivery at 5:40. There were no warning signs of non-reassuring
condition over a period of hours. Had there been proper monitoring, the medical
staff would have taken action to prevent the injury.
staff would have taken action to prevent the injury.
14.10 There is no evidence that the post term pregnancy was acknowledged
antenatally or that an earlier induction of labour was considered even though all
pregnant woman should be referred to hospital at 41 weeks for purposes of
evaluating the maternal and foetal condition and planning delivery.
15. Professor Johan Smith, a specialist Neonatologist, testified as follows:
15.1 Maternal anaemia probably did not play a causal role in the outcome of
the pregnancy since it is not associated with development of cerebral palsy
15.2 He agrees with Professor Cooper that the pregnancy was at least 42
weeks gestation. That it was post term. That puts the foetus at risk for hypoxia
ischemia during labour and delivery.
15.3 At 1:45. The plaintiff’s cervix was seven centimeters dilated. The
membranes had raptured draining clear amniotic fluid. On infusion a drip with
Ringer’s Lactate was erected and urinary catheter was in place and was draining
bloody urine. The doctor was informed telephonically about the situation who
said he will come and assess the patient.
15.4 At 2:30, the plaintiff was reassessed. The foetal heart rate was 168 to 174
beats per minute and was described as clear and regular,” this rate is a foetal
tachycardia. The plaintiff had the “urge to push and she pushes continuously
without resting.” The doctor was called again and informed about the plaintiff
who said that “he will come and assess the patient”. The plaintiff was nursed in
the left position and maternal oxygen was administered.
15.5 At 3:15 the urinary catheter was still draining blood-stained urine. The
plaintiff was complaining of lower abdominal pain. The foetal heart rate was 168
beats per minute. The doctor was again informed.
15.6 At 3:20, the doctor reviewed the plaintiff, this was 95 minutes after he was
first requested to review the plaintiff.
15.7 The doctor diagnosed cephalopelvic disproportion (CPD), that is the baby
is too big for the birth canal.
15.8 The doctor noted that the plaintiff was primigravida at post dates. The
foetal head was 4/5th above the pelvic brim. The cervix was eight centimeters
dilated and there was moulding and caput.
15.9 The doctor diagnosed poor progress and postdates. There is then a note
that “there are no lights in theatre.”
15.10 At 3:30 the nursing notes reveal that the patient was seen by the doctor
who said that he is transferring the patient to St Ritas because there is no
electricity in theatre.
15.11 At 4:55 the plaintiff was reviewed by a doctor who transferred her to
theatre. She was taken to theatre where she was received at 5:13.
15.12 The baby was born in a compromised condition, a probable state of
secondary apnoea, and this is usually the result of a preceding severed
intrapartum hypoxic event.
15.13 Prof Smith testified that the type of brain injury described by Dr Alheit
occurs after perinatal sentinel events which he told the court was not present
here.
15.14 He testified that the doctor decided to perform an emergency caesarean
and there was no electricity in the theatre. In his view the event was foreseeable
and preventable and that theatres should have emergency access to electricity.
The plaintiff was transferred to St Rita’s, where delivery occurs two hours later.
16. Dr Pearce, a pediatrician neurologist, testified as follows:
16.1 She performed a neurological examination on S[...] on 30 August 2021.
S[...] has a severe asymmetrical mixed type of cerebral palsy predominantly
spastic.
16.2 His co-morbidities include profound intellectual disability. He is not even
aware that his mother is present, he cannot follow any instructions. He has what
we call microcephaly, that is a small head.
16.3 He has uncontrolled epilepsy seizures. He is dependent on others for all
activities of daily functioning.
16.4 Dr Pearce and Mogashoa concluded that the neonatal encephalopathy
was caused by an intrapartum hypoxia. That the reason that the child has
cerebral palsy is the result of an intrapartum hypoxic event. It happened during
labour and delivery.
The expert evidence tendered by the defendant
17. Dr Mbokota, a specialist obstetrician and gynecologist, testified as follows:
17.1 He had the hospital records and the report of the defendant’s radiologist,
Dr Kamolane during the time that he prepared the report.
17.2 He compiled joint minutes with Dr Murray, the plaintiff’s expert
gynecologist and obstetrician.
17.3 He testified that the nature of brain injury that occurred in this case is
called acute profound. It is brain damage that occurs when there is a severe
shortage of blood and oxygen supply to the brain of the foetus and in this case, it
is termed acute profound hypoxic injury or basal ganglia thalamic. It is acute,
which means a near total or total shut down of blood and oxygen to the foetus for
a period not less than 10 minutes but not exceeding 30 minutes. This injury can
occur anytime during a pregnancy but in this case, it has occurred during labour.
17.4 Usually this type of injury, the central or basal ganglia thalamic injury or
acute profound injury generally would occur in instances where we have this
thing called sentinel events. It is things that just happen suddenly during labour
which were not expected, and they have catastrophic outcomes. He gave
examples of sentinel events as abrupted placenta, the uterus just ruptures, or it
can be an accident of the umbilical cord where the cord is compressed, or it is
prolapsed or is knotted.
17.5 He testified that some sentinel events will be visible even after the delivery
of the child and in other instances like cord compression you cannot really see
because it occurs inside the pelvis.
17.6 The guidelines for maternity care (2007:106) refer to a pre-induction CTG
and in using oxytocin for IOL (induction of labour), the guidelines (2007:50) says
“Use CTG monitoring wherever possible”. There is MSL (Meconium Stained
Liquor), the guideline (2007:51) says “use CTG when available.”
17.7 The guidelines (2007:51) also say that “cardiotocography (CTG) is used
for high-risk labour only and should be available in hospitals. (TG machines are
however in short supply.)
17.8 CTG monitoring is not the minimum standard but should only be used
when available. The hospital was thus justified to commence the induction of
labour on the plaintiff.
17.9 Foetal heart rate was monitored manually and not by CTG. The use of
CTG in this case was not mandatory.
17.10 He agreed with the guidelines but disagreed with conclusions when there
was foetal tachycardia, the midwife correctly intervened by commencing IPFR
(intrauterine partum foetal resuscitation) while waiting for the doctor. Induction of
labour was done in hospital, the theatre is said to have been without electricity
and thus the caesarean section could not be done at Jane Furse hospital. It is
not clear as to when this electricity problem arose. It would be irregular and
substandard to commence IOL when there is full knowledge to all the staff that
the theatres are not working.
17.11 He testified that the plaintiff was at term (42 weeks) and her IOL was on
the 1st day of her 42nd week, she was not post-term.
17.12 The hypoxic ischemic injury suffered by the child could only have occurred
between 05:10 and 05:40 while she was being taken to theatre and the
caesarean section performed. Nothing could have been done to rescue
intrapartum brain injury other than delivering the baby quicker.
17.13 Dr Mbokota testified that there was a delay from the time that the decision
for a caesarean section was taken to the time the baby was delivered. The delay
was evident because the mother had to be transported to another hospital.
17.14 It is correct that when the decision for caesarean was made, it would have
been ideal that the caesarean section be done at Jane Furse Hospital. However,
the injury suffered by the child most likely occurred 30 minutes prior to delivery,
the injury suffered by the child most likely occurred 30 minutes prior to delivery,
there was no hypoxic insult or injury prior to that time.
18. Professor Peter Allan Cooper, a specialist neonatologist, testified as follows:
18.1 That the radiologists, doctors Alheit and Kamolane agreed that the
features on the MRI scan were exceedingly likely to be central PPBGT, hypoxic
ischemic brain injury.
18.2 This type of brain is referred to as an acute profound type of hypoxic
ischemic brain injury. It is a sudden episode where there is virtually complete
shutdown of blood to the brain. It needs ten minutes to start causing damage to
the central areas of the brain, and if it goes on for more than 45 minutes,
invariable death ensures.
18.3 He commented on the evidence of Prof Smith that acute profound brain
injury occurs only in circumstances where there is a known sentinel event like
cord prolapse, uterine rupture and shoulder dystocia, these are called
recognizable sentinel events, they cause severe shutdown of blood to the brain.
18.4 He testified that some sentinel events such as compression of the cord
during later stages of labour, are not recognizable, unless you have a
cardiotocograph running continuously or after birth you would not know that there
was compression of the cord, these are unrecognized but classified as sentinel
events.
18.5 There are also well-described episodes where the foetus has been
monitored by cardiotocograph, and the tracing has been completely normal and
then there is a sudden bradycardia. Bradycardia is a slow heart rate, the brin of
the foetus depends largely on the heart rate to get enough blood. Once the heart
rate drops down, we know that there is going to be a severe insufficiency of
blood getting to the brain, that is also a sentinel event, but the actual cause is not
clear because there has been monitoring before, up until the time of the
bradycardia. Then the pattern brain injury has been described as a central one,
similar to what we are seeing here.
18.6 Similarly, you may be monitoring the foetal heart rate half hourly, as is
done during the latter stages of labour, but if during that half hour there is a
done during the latter stages of labour, but if during that half hour there is a
sudden bradycardia, you would not know about it until the next time you monitor
the foetal heart rate or listen to the foetal heart, rate these are what we call
unrecognizable sentinel events.
18.7 Prof Cooper testified that material aneamia probably did not play a causal
role in the outcome of the pregnancy since it is not associated with the
development of cerebral palsy.
18.8 There was a delay of 95 minutes by the doctor to review the plaintiff.
18.9 There was no electricity in the theatre and the transfer of the plaintiff to St
Ritas Hospital caused further delay.
Evaluation of the evidence
19. When the evidence in this matter is considered in its totality, it is apparent that
there is no dispute between the expert witnesses on most of the material issues in this
matter safe for the issue whether there was an unknown sentinel event.
20. There is no dispute between the expert witnesses on the following material
issues:
20.1 The plaintiff was admitted to the Jane Furse Hospital at around 17:00 on
the 1fst of July 2013.
20.2 The foetus was in a reassuring condition on admission and there were no
apparent concerns regarding the foetal condition There is no dispute between
the neonatologists that maternal anaemia did not play a causal role in the
outcome of the pregnancy.
20.3 The plaintiff’s labour was induced around 11:44 on 2 July 2013
20.4 The guidelines for Maternity Care in South Africa (2007) stipulate that
labour should only be induced in a hospital. The most basic hospital would be
regarded as a level 1 hospital. The guidelines stipulate that a level 1 hospital
should have 24 – hour labour and delivery high-risk woman, as well a a fully
equipped operating theatre.
20.5 There was a concern over the foetal condition at around 01:45 on the 3rd
of July. A doctor was called, to assess the plaintiff. This was the first sign of any
possible distress. The doctor did not arrive and was again called At 02:30 and
03:15. The expert witnesses accept that this 95-minute delay constituted an
unreasonable delay in attending to the plaintiff.
20.6 The plaintiff was eventually seen by a doctor at 03:20 on 3 July. She was
assessed to have cephalo-pelvic disproportion, poor progress of labour and she
was post-dates. A decision was made that an emergency caesarean section be
performed.
20.7 There was no electricity at the theatre of the Jane Furse Hospital and
arrangements were made for a transfer of the plaintiff to the St Rita’s Hospital.
20.8 In light of the fact that the theatre at Jane Furst Hospital was not
operational the induction of labour should never have been performed there, and
the plaintiff should have been referred to be induced in a setting which was fully
equipped to manage any complications arising during the induction of labour.
20.9 The plaintiff was transferred to the St Rita’s Hospital where her son was
delivered, via emergency caesarean section, at 05:40 on the 3rd of July 2013.
20.10 The decision-delivery interval was around 2 hours and 20 minutes. The
guidelines for Maternity Care in South Africa (2007) state that any caesarean
section should be performed within an hour of the decision to operate.
20.11 Both the defendant’s expert witnesses, Prof Cooper and Dr Mbokota,
testified that it is probable that S[...]’s brain injury could have been prevented had
the caesarean section been done at Jane Furse Hospital. Prof Cooper’s
evidence was that the severe hypoxic-ischemic episode probably occurred after
03:45 and that, had a caesarean section been feasible at Jane Furse Hospital,
the brain injury could have been avoided. He referred to this in his evidence as
“a health system failure.
“a health system failure.
20.12 Dr Mbokota during cross-examination conceded that the brain injury would
have been prevented had the caesarean section been performed at Jane Furse
Hospital an hour of the decision having been made at 03:20. His evidence was
that there was no hypoxic injury prior to 05:10.
20.13 S[...] was born with a very low Agpar score of 4/10, did not cry at birth, and
had to be resuscitated. There was also meconium-stained liquor (grate 3) at
birth that was suctioned. S[...] was born in a very compromised condition, which
is usually the result of a preceding severe intrapartum hypoxia-ischemia.
20.14 The fact that S[...] suffered a hypoxic ischemic injury of a term/mature
brain is confirmed on MR imaging. He developed an early onset neonatal
encephalopathy of moderate degree. This diagnosis confirmed the essential
component (“doorway”) linking intrapartum asphyxia to subsequent cerebral
palsy in a casual pathway.
20.15 The paediatric neurologists have confirmed intrapartum hypoxia as the
most likely cause of S[...]’s neurological condition and outcome.
20.16 S[...] was born with a weight, length and head circumference that are all
normal for a baby born at term thereby reasonably excluding an antenatal injury
to the brain.
21. Prof Smith and Dr Murray was not cross-examined on material issues. Dr Pierce
was not cross-examined at all and her evidence was thus accepted by the defendant.
22. The plaintiff’s expert witnesses gave reasons for their opinions and the logic
inferences which they drew from the totality of the evidence on the issues that they
testified about. Their conclusions and opinions on all material issues were corroborated
by the evidence of the defendant’s expert witnesses. They gave rational answers
based on logical reasoning. There is no reason to reject the evidence of any of the
plaintiff’s expert witnesses on any of the material issues.
23. Dr Mbokota did not make a favourable impression on me. He conceded a
number of factual errors in his report. At least 14 factual errors were identified and
admitted by him during cross-examination. The evidence of Dr Murray is to be
accepted on any issue where there is a difference in her conclusions and that of Dr
accepted on any issue where there is a difference in her conclusions and that of Dr
Mbokota. However, material concessions were made by Dr Mbokota on the core issue
in this matter.
Negligence – Legal Principles
24. It is trite law that the onus rests on the plaintiff to prove on a balance of
probabilities that the employer and medical personnel who attended to the plaintiff when
she was pregnant and in labour with S[...] were negligent, and that such negligence was
causally linked to the intrapartum hypoxic ischemic brain injury that S[...] suffered with
the resultant cerebral palsy.
25. The Constitutional Court in Oppelt v Head: Health, Department of Health
Provincial Administration4 held as follows:
´[71] In simple terms, negligence refers to the blameworthy conduct on a
person who has acted unlawfully. In respect of medical negligence, the question
is how a reasonable medical practitioner in the position of the defendant would
have acted in the particular circumstances …
[73] The negligence of medical practitioners is assessed against the standards
at the medical profession at the time.”
26. In my view, the principles of negligence in medical context relating to medical
practitioners equally apply to the negligence of professional nurses.
27. The test is therefore based upon what can be expected of the ordinary or
average healthcare provider in view of the general level of knowledge, ability,
experience, skill and diligence possessed and exercised by the practitioner in his field.5
28. It was conceded by the defendant that the substandard monitoring of the
plaintiff’s labour amounted to a breach of a legal duty and was therefore wrongful.
4 2016 (1) SA 325 (CC). See also S v Kramer and Another 1987 (1) SA 887 (W)
5 Buthelezi v Ndaba 2013 (5) SA 437 (SCA), Van Wyk v Lewis 1924 AD 438.
However, it was submitted by the plaintiff that this area of negligence is not materially or
directly related to the outcome in this matter in that the main issue is the delays.
29. It was submitted by the defendant that there was nothing that could have been
done to save S[...] as the caesarean section was underway at the time he suffered
hypoxic ixhemic brain injury. It was further submitted that a sentinel event, namely cord
compression occurred and it was not visible or recognizable after the baby was
delivered.
30. On the common cause facts in this matter I conclude that the conduct of the
defendant’s employees in delaying the assessment of the plaintiff by a doctor, which
would probably have resulted in the decision to perform a caesarean section having
been made earlier, and the delay in performing the caesarian section was a deviation
from the standard of how the reasonable nurse, midwife and doctor would and should
have acted in the circumstances of this matter. Reasonable medical and nursing
members of staff would have foreseen that the said delays will cause injury to the foetus
and would have taken reasonable steps to avoid the injury to the foetus. The said
conduct in my view was grossly negligent.
FATUAL CAUSATION
31. In International Shipping Co (Pty) Ltd v Bentley6, the SCA stated:
“The enquiry as to the factual causation is generally conducted by applying the
so-called ‘but-for’ test which is designed to determine whether a postulated
cause can be identified as a causa sine quo 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”.
32. In Minister of Safety and Security v Duivensboden 7 it was decided that:
6 1990 (1) SA 680 (A) at 700
“A plaintiff is not required to establish the causal link with certainty, but only to
establish that the wrongful conduct was probably a cause of the loss, which calls
for a sensible retrospective analysis of what would probably have occurred based
upon the evidence and what can be expected to occur in the ordinary course of
human affairs rather than an exercise in metaphysics.”
33. The defendant contends that on a balance of probabilities and having regard to
the joint minutes of the Radiologist in particular Dr Alheit, that “BA submits that only if
there is a history of a sentinel event during labour can this injury pattern be named as
acute profound in nature.”
34. It was submitted by the defendant that a sentinel event, namely cord
compression occurred and it was not visible or recognizable after the baby was
delivered as per the testimonies of Prof Cooper and Dr Mbakata.
35. In this matter, it is not in dispute that had the caesarean section been performed
earlier by no later than 05:10, at Jane Furse Hospital, the brain injury to S[...] would
have been avoided.
36. The risk of S[...]’s brain injury would have been reduced if not for the Hospital’s
negligent omissions. The defendant’s witnesses conceded the issue of factual
causation.
37. Even if it is accepted that there was not foetal distress prior to 30 minutes before
delivery, and that everything was well right until 30 minutes before delivery, there is no
merit in this defence based on the concession made by both expert witnesses for the
defendant namely that a caesarean section ought to have been done long before then
and had it been done, there would have been no brain injury to S[...]. The question as
to whether there was an unknown sentinel event becomes immaterial in this matter.
7 2002 (6) SA 431 (SCA)
CONCLUSION
38. In my view, given the evidence of all the experts the concessions made by the
defendant’s experts and the common cause facts, it is manifest that injuries suffered by
S[...] were as a direct consequence of the negligent conduct of the employees of the
defendant and that; on the conspectus of the evidence placed before me, the plaintiff
has succeeded in proving that the defendant is liable for any proven agreed damages
suffered by plaintiff and S[...] as a result.
COSTS
39. Adv M Coetzer has argued that over and above the fact hat costs should follow
the outcome, the costs occasioned by the employment of counsel fo the plaintiff,
including the trial costs for the appearances on the 12th, 13th, 15th, 19th, 21st, 22nd and
23rd of May 2025, and the 22nd of July 2025 should be paid on the attorney-and-client
scale C.
40. It was submitted by counsel for the plaintiff that the defendant unreasonably
prolonged the trial by requesting on two occasions that the matter stand down to
accommodate the defendant’s witnesses and that the defendant should reasonably
have been aware, on a proper consideration of the available evidence and admitted
facts and opinions, that there was no reasonable prospect of successfully defending the
action.
41. Counsel for defendant argued that he has acted reasonably in his conduct of the
litigation and that no special grounds are present to award costs on attorney-and-client
scale.
42. In general, it can be stated that the court does not order a litigant to pay the costs
of another litigant on the basis of attorney and client unless some special grounds are
present.
43. It cannot be said that the defendant was mala fide or that counsel for defence
has acted unreasonable, reckless or maliciously.
44. In awarding costs, the court has a discretion to be exercised judicially.
45. Upon weighing the issues in this case and the conduct of the parties, I am of the
view that a costs order on attorney-and-client scale would not be proper under the
circumstances.
46. In the result, the draft order marked “Annexure A” is made an order of Court.
_____________________________
J.J. STRIJDOM
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PREORIA
APPEARANCES:
For the plaintiff: Adv M Coetzer
Instructed by: Wim Krynauw Attorneys Inc
For the Defendant: Adv SS Sape
Instructed by: State Attorney, Pretoria
ANNEXURE ‘A’
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION – PRETORIA
CASE NUMBER: 2015 / 92783
BEFORE THE HONOURABLE MR JUSTICE STRIJDOM
DATED ON THIS THE 5TH DAY OF SEPTEMBER 2025
In the matter between:
K[...]: C[...] N[...]
obo S[...] T[...] K[...] Plaintiff
and
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH OF THE LIMPOPO
PROVINCIAL GOVERNMENT Defendant
This Order is made an Order of Court by the Judge whose name is reflected herein,
duly stamped by the Registrar of the Court and is submitted electronically to the Parties
/ their legal representatives by email. This Order is further uploaded to the electronic file
of this matter on Case Lines by the Judge or her Secretary / Registrar. The date of this
Order is deemed to be the 5 September 2025
COURT ORDER
IT IS ORDERED THAT:
1. The issue o f liability is separated from the issue of the determination of the
quantum of the Plaintiff’s claim in her personal and representative capacities in
accordance with the provisions of Rule 33(4) of the Uniform Rules of Court.
2. The issue of the determin ation of the quantum of the Plaintiff’s claim in her
aforesaid capacities is postponed sine die.
3. The Defendant is liable for payment of 100% (one hundred percent) of the
Plaintiff’s proven or agreed damages in her personal and representative capacitie s,
which damages flow from the severe brain injury sustained by the Plaintiff’s son, S[...]
T[...] K[...], during the intrapartum period in consequence of the negligence of the
hospital and medical staff of the Jane Furse Hospital and St. Rita’s Hospital d uring the
period between the 1st and the 3rd of July 2013, and the resultant cerebral palsy (and its
sequelae) which he suffers from. 6-2 6-2 3
4. The Defendant shall pay the Plaintiff’s taxed or agreed party -and-party costs of
suit on the High Court scale up to finalisation of the issue of liability, which costs shall
include (but not necessarily be limited to):
4.1 the costs occasioned by the em ployment of counsel by the Plaintiff,
including the trial costs for the appearances on the 12 th, 13th, 15th, 19th, 21st, 22nd
and 23rd of May 2025, and the 22 nd of July 2025, such costs to be paid on Scale
C;
4.2 the Plaintiff’s costs of obtaining the m edico-legal reports of the following
experts and joint minutes relating to the issue of liability, including the cost of
Counsel on Scale C of drafting the Plaintiff’s expert summaries in respect of the
issue of liability;
4.2.1 Dr Alheit;
4.2.2 Dr Murray;
4.2.3 Professor Smith; and
4.2.4 Dr Pearce.
4.3 the cost of preparation, qualifying and reservation fees, and fees for
testifying at the trial on the aspect of liability of Dr Murray, Professor Smith and
Dr Pearce, including their reasonable traveling and accommodation expenses,
and including the cost of consultations by the Plaintiff’s legal representatives with
these experts, and the costs of these experts in preparing for and holding joint
meetings with their respective counterparts, and preparing joint minutes;
4.4 the costs of the MRI investigatio n of S[...]’s brain performed by Burger
Radiologists on 17 March 2015 for purposes of the report of Dr Alheit, expert
radiologist;
4.5 the costs consequent upon the drafting of heads of argument;
4.6 the costs and expenses of accommodation and of trans porting the Plaintiff
and the minor child in attending all medico -legal examinations and consultations
by the Plaintiff’s and the Defendant’s experts, (where applicable), for purposes of
preparing their reports for the trial relating to the issue of liabil ity, subject to the
discretion of the Taxing Master; and
4.7 the costs of trial, in relation to the appearances as per paragraph 4.1
above, shall be paid on party and party scale C.
5. The costs stipulated above shall be paid into the trust account of the Plaintiff’s
attorney, the details which are: WIM KRYNAUW ATTORNEYS TRUST ACCOUNT
ABSA – TRUST ACCOUNT ACC. NR: 4[...]REF: K WILLIAMSON / MEC0587.
6. The following provisions shall apply regarding the determination and payment of
the Plaintiff’s abovementioned taxed costs:
6.1 the Plaintiff’s attorney shall serve the notice of taxation on the Defendant’s
attorneys of record;
6.2 the Plaintiff’s att orney shall allow the Defendant 30 (thirty) calendar days
to make payment of the taxed costs from date of settlement or taxation thereof;
6.3 should payment not be made in accordance with paragraph 6.2 above, the
Plaintiff shall be entitled to recover in terest at the applicable legal rate of interest
on the taxed or agreed costs calculated as from 31 days from the date of affixing
of the Taxing Master’s allocatur or date of settlement of the issue of costs, to
date of final payment.
____________________
BY ORDER OF COURT
THE REGISTRAR
Counsel for the Plaintiff: Adv. M. Coetzer
083 409 8077
martincoetzer@vodamail.co.za
Attorneys for the Plaintiff: Wim Krynauw Attorneys Inc. – Ms K. Williamson
(011) 955-5454 kelly@wkattorneys.co.za
Counsel for the Defendant: Adv. S. Sape
083 695 9616 stonesape@law.co.za
Attorneys for the Defendant: State Attorney (Pretoria) – Mr N Phalatse
NgPhalatse@justice.gov.za