SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 1830/2018
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 29/9/25
SIGNATURE:
In the matter between:
M[...] T[...] V[...]
obo O[...] M[...] PLAINTIFF
and
MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH OF THE LIMPOPO PROVINCIAL
GOVERNMENT DEFENDANT
JUDGMENT
NKOANA A.J
"I was happy to see O[...] coming out of the theatre. This was because finally the
long awaited operation on his knee was done. I cried tears of joy which later turned
into sorrow as I realized that they had operated O[...] on the right-side knee instead
of the left knee."1
INTRODUCTION
[1] In this matter the Plaintiff, acting in her representative capacity as the mother
and natural guardian of O[...] M[...], a minor child, instituted proceedings against the
Defendant.
[2] At the hearing of the matter, a notice was filed substituting the Plaintiff for O[...]
M[...] who had attained the age of majority. No objections were raised against the
Rule 15(2) Notice.
[3] The damages claim arises from the negligent treatment provided to O[...] M[...]
at Lebowakgomo Hospital. The substandard care complaint concerns the period
between 07 February 2013 and post 28 October 2013 after Oftense underwent a
surgical procedure called femoral supracondylar Osteotomy on his right leg, instead
of his left leg, whereas it was his left leg that required the operation.
Rule 38(2) Application
[4] At the commencement of the trial, the Plaintiff's Counsel launched an
application in terms of Rule 38(2) to adduce t he evidence of Doctor A F Pienaar, the
Orthopedic Surgeon through an affidavit.
[5] The said application was not opposed by the Defendant and after hearing the
parties, I granted the order in terms of Rule 38(2) for the evidence of Doctor AF
Pienaar, as set out in his expert summary dated 17 July 2020 and supported by his
affidavit dated 07 March 2025 be admitted as evidence.
[6] Additionally, I also granted an order for a copy of an undated letter by Doctor
L A Ledwaba and copies of the Lebowakgomo Hospita l records regarding the
1 Part of the Testimony of Ms V[...] M[...].
treatment and care of O[...] at the hospital during the relevant period be admitted in
terms of Section 3(1) of the Law of Evidence Amendment Act 45 of 1988.
[7] Dr Pienaar in his expert summary, categorized the negligence he ide ntified
into four stages of negligence he identified in four stages, namely:(a)The
diagnosis;(b)Treatment other than surgery;(c)The surgery; and (d)Post operative
care.
[8] I will deal with them in turn hereunder.
The Diagnosis:
[9] Dr Pienaar observed that Dr Ledwaba initially diagnosed O[...] as having
"anteria ligament instability". In addition, Dr Pienaar emphasized that in Paediatric
Orthopaedic surgery there i s a general principle which says that children are not
miniature adults.
[10] The treating Orthopaedic Surgeon, Dr Ledwaba should reasonably have been
aware that knee ligaments injuries are improbable in growing children because the
weakest links in the b one/ligament/joint complex are epiphyseal growth plates. It
follows that the growth plate will fail before the ligament rupture.
[11] Dr Pienaar concluded that in O[...]'s case, the probable diagnosis was
congenital valgus knee with attenuation of the med ial collateral ligament (and
possibly anterior cruciate ligament) with malalignment and relative instability of the
knee. There was no ligament failure and the operation note of 28 October 2013 only
refers to "olysplastic lateral femoral condyle".
Treatment other than surgery:
[12] Dr Pienaar opined that the administration at the Lebowakgomo Hospital was
substandard and displayed scant regard for the family circumstances as the Plaintiff
and O[...] had to travel to the hospital and be admitted on s everal occasions, only to
be sent home without any procedure done.
[13] Dr Pienaar states that it is reasonable to expect patients residing a significant
distance from the hospital to receive timely notification of any changes to their
scheduled surgeries, thereby preventing unnecessary travel when no procedure will
be performed.
[14] Dr Pienaar noted that the hospital's medical records lacked sufficient clinical
detail, which violates standard practices requiring accurate record keeping.
Comprehensive records are essential to keep all healthcare providers informed
about a patient's condition, ensuring effective and safe treatment. The doctors at the
hospital were unable to refer to previous arthroscopic findings because these
records were not available in the file.
[15] Owing to the absence of detailed medical records, Ms M[...] had to sign a very
vague consent for surgery "reconstruction of anterior ligaments both knees". This
was done in circumstances where she had never been concerned about O[...]'s right
knee, only the left knee had issues.
[16] The previous consent for surgery forms which she had signed before 28
October are all related to the left knee. An informed consent implies that Ms M[...]
had to be informed about the exact diagnosis fr om a precise planned procedure,
alternative mode of treatment, possible complications and why the recommended
mode of treatment was the better choice. This did not happen and is sub standard
care.
The Surgery:
[17] Although O[...] was never admitted to t he hospital with a history of a problem
with his right -side knee, and the available records demonstrate planned surgery to
reconstruct a ligament in his left side knee, inexplicably on 28 October 2013, a
surgery was performed on his right knee which is the incorrect knee.
[18] During surgery the surgeon decided to abandon the ligament repair as the
ligaments and menisci found to be intact on the right sided knee. The surgeon,
instead of abandoning the procedure so that he could further consult with the moth er
and plan afresh for an alternative treatment, continued to perform a supra-condylar
osteotomy of the right femur.The result thereto was a massive flexion deformity of
the femur instead of creating a varus alignment.
[19] On this aspect Dr Pienaar conclu des that not only did the surgeon operate on
the incorrect leg, but the surgery that he performed on the incorrect leg itself was
also flawed in terms of the result that he apparently attempted to achieve.
Post Operative Care:
[20] Due to poor after care and rehabilitation, O[...]'s right femur healed with gross
malalignment and loss of mobility of the right knee. A reasonable Orthopaedic
Surgeon would have noticed the malalignment, both clinically and radiologically, and
would have undertaken corrective measures at an earlier stage.This did not happen
and O[...] was left with an untreated left lower extremity and significant impairment of
the function of his right leg.What is stated above amounts to substandard care and
negligence by the Defendant's employees.
[21] Doctor Pienaar's evidence remains uncontested as the Defendant did not
appoint any medical experts.
Causation
[22] Dr Pienaar examined O[...] in the year 2017.Without any treatment or
corrective surgery, O[...]'s impairment probably only became worse. Dr Pienaar
examined O[...] and made the following findings (a) Gross malalignment of the femur
of the right leg;(b) loss of mobility of the right knee;(c) relative shortening of the right
lower leg; and (d) a persistent physical impaired of his untreated left leg.
[23] Dr. Pienaar stated that O[...]'s significant physical impairment resulted directly
from the substandard and negligent treatment and surgery at Lebowakgomo Hospital.
[24] Dr Pienaar's concluded that t he cause of O[...]'s current permanent
impairment of both his legs, his clinical presentation was indeed caused by (a) the
negligent surgery that was performed on his right sided knee on 28 October 2013,
and (b) the failure to correctly diagnose and treat the problem he experienced with
his left sided knee.
[25] From the reading of the hospital records it is clear that the reasons for O[...] to
attend at Lebowakgomo Hospital was because of his problematic left knee, which led
to him seeing an Orthopedic Surgeon in the first place, which remains untreated to
date.
[26] The surgeon who performed the surgery on O[...] proceeded with an
unplanned surgery which was not consented to, after he realized that the knee he
operated on does not require the planned ligament reconstruction/ repair. Instead of
abandoning the surgery he proceeded with unplanned surgery.
TESTIMONY OF MS V[...] M[...]
[27] Ms M[...] testified that she is the biological mother of O[...], who was born on
12 August 2005.The inci dent happened when O[...] was eight (8) years old and
during the hearing of this matter, he was 19 years old.
[28] Ms M[...]'s evidence is to the effect that when O[...] was a year and six months
old, she noticed that unlike children of his age, he c ould not walk. She took him to
Mokopane hospital to have his left leg examined. She took O[...] to the hospital on
several occasions and they were transferred to Mankweng Hospital, where they
advised her that O[...] needed to wear a brace on his left leg.
[29] He was then transferred to Polokwane to have the brace made for him. As
time went by, she realized that there was a problem as the leg was getting weaker.
The brace did not work.
[30] It is Ms M[...]'s testimony that she had a conversation with on e of her
neighbours, who recommended Dr Ledwaba who was in private practice.She
eventually consulted with Dr Ledwaba who is an Orthopaedic Surgeon. She was
informed by the Dr that he could not operate on O[...] as he was in private practice.
[31] Doctor L edwaba, however, indicated that he also worked at the
Lebowakgomo Hospital on Wednesdays and Thursdays. Ms M[...] was advised to
take O[...] to Lebowakgomo hospital, where an operation will be booked on behalf of
O[...].
[32] The first proc edure was Arthroscopy which was explained to her as being a
procedure to examine the ligaments and identify which procedure to undertake
thereafter.
[33] She signed the first consent to operation form on 07 February 2013,which
pertained to left knee ligament reconstruction and arthroscopy surgery.
[34] O[...] was admitted in hospital from 10 to 11 February 2013, when he was
discharged from hospital without the procedure having been performed. This was
due to their machines not functioning in theatre.
[35] On 4 April 2013, Ms M[...] and O[...] again went to Lebowakgomo hospital
where the surgery was not performed.
[36] The second Consent to Operation form which stated that the operation will be
done on the left knee was signed on 21 J uly 2013.Ms M[...] and O[...] were
discharged on 23 July 2013 and told to come back on 28 July 2013.
[37] On 28 July 2013, O[...] was readmitted in hospital and an investigative
arthroscopy was performed on his left knee on 29 July 2013.The ligament re pair
procedure was scheduled for 02 August 2013, however due to the theatre not
working he was discharged. O[...] was discharged on 2 August 2013, and the
diagnosis was stated as anterior ligament instability.
[38] On 27 October 2013, O[...] was admitted to hospital for the ligament
repair/reconstruction surgery. The operation was performed on 28 October 2013.
[39] Ms M[...] vehemently denied that she agreed to have an operation undertaken
on both knees as she only knew that O[...] was troubled by the left knee only. Prior to
the operation, there is no Doctor who told her that both the left and right knees of
O[...] needed medical attention.
[40] She testified further she would not have consented to a procedure on O[...]'s
right knee as there was no issue at all on the right knee.
[41] She cried a lot when she realized that O[...] was operated on the right knee
which is the incorrect knee. The problematic knee was the left knee.
[42] She engaged the Paediatric Matron who said that she would be able to call
the Doctor for her. The Dr who came was someone else and not Dr Ledwaba. The
said doctor insisted that the procedure performed on the right knee was the correct
one.
[43] She denied this as she knew that there were no issues with the right knee.
The said Doctor insisted that they had fixed the problem.
[44] They were referred to a Physiotherapist who mentioned that the operation
was not done well. They were referred back to the doctor who said that he knew
what he was doing and the Physiotherapist m ust attend to O[...]. No interventions
were made.
[45] Ms M[...] testified that on a certain day while listening to the radio, she heard
an announcement advising listeners to seek assistance if a hospital did not perform
its duties properly, and that li steners could contact a number provided during the
broadcast.
[46] She called the number and the person that assisted her wanted the file
number and the name of the hospital. The said person promised to call her back and
he called back in a week's time and told Ms M[...] to go to Lebowakgomo hospital
again.
[47] Upon arrival at the hospital, she met the CEO of the hospital and two other
Doctors who asked her what happened, and how she knew that they had operated
on the wrong knee.
[48] That is when she explained that all along O[...]'s problem was on the left leg
and not the right leg. They spoke amongst themselves and apologized for the
mishap that happened, and they promised to rectify the mistake.
[49] They told Ms M[...] that they would arrange tr ansport for her to fetch her from
her homestead and bring her to the hospital until the problem was resolved. She was
also told not to queue when she comes to the Hospital, as she would have her files
drawn already.
[50] They came to the hospital on the arranged date however they found a new file
in the Doctor's possession. Seeing that the Doctor was given a new file which did not
contain the whole history of the matter she said she could not proceed until the old
file is sought. She confirmed that O[...] was never operated on, and he is struggling
to walk now with two problematic legs.
[51] Miss M[...] testified that since she requested that the old file be sought, she
was never contacted by Lebowakgomo Hospital, and she was not offered any
medical intervention for O[...].
[52] The Plaintiff then closed her case.
[53] There was no cross examination by the Defendant.
Defendant's Case
[54] The Defendant closed its case without calling any witnesses. The Defendant
had not appointed any experts.
[55] The evidence of the Plaintiff remains uncontested. Documentary proof in the
form of medical records provided, makes it clear that the m edical issue that Ms M[...]
was complaining about related to the left knee of O[...]
.
[56] The numerous consent forms signed pertain to the left knee. The arthroscopy
that was performed on O[...] on 29 July 2013 was done on the left knee.
[57] Ms M[...] consented for " ligament reconstruction left knee joint arthroscopy ".
When O[...] was readmitted to hospital on 27 October 2013 the provisional diagnosis
was stated as ineligible, but for anterior ligament repair.
[58] The procedure performed was desc ribed as " femoral supra -condylar
Osteotomy right, femoral supracondylar Osteotomy right"
[59] There is nothing to countenance Doctor Pienaar's expert evidence that the
surgery of 28 October 2013 was performed on the incorrect right sided knee.
[60] The pro cedure performed on the right -side knee was the correct surgery to
treat the deformed left knee. However, because the surgery was performed on the
right knee which did not have issues it resulted in gross malalignment of O[...]'s right
femur, loss of mobi lity of the right knee and relative shortening of the right lower
extremity.
[61] The test for negligence in medical context is contained in the case of Kruger
v Coetzee, 1966(2) SA 428 (A) at pages 430 (E- G).
[62] Did Dr Ledwaba or any other surgeon wh o operated on O[...] forsee the
possibility of him suffering an injury as a result of being operated on the incorrect leg?
And was the surgery substandard? Were any reasonable steps taken to guard
against the harm?
[63] Without the benefit of the Defendan t's expert and factual evidence, I find no
reason not to accept Dr Pienaar and Ms M[...]'s testimony which states that the
Defendant's employees were negligent in that they offered substandard care to O[...].
[64] I find that the Plaintiff has establish ed negligence against the Defendant and
that there is a causal link between the said negligence and the damages suffered by
O[...].
The Issue of Costs
[65] Counsel for the Plaintiff submitted that the Court should consider awarding
costs, including cost of Counsel on Scale C.
[66] Counsel for the Defendant submitted that costs of Counsel should be on
Scale B.
[67] In my view, there was no reason for the Defendant to defend this matter to its
logical conclusion. I say so because the Defendant did not of fer anything in rebuttal
of the Plaintiff's expert witness.
[68] The Defendant did not appoint experts and did not present factual evidence.
[69] The Plaintiff must be indemnified from paying any shortfall from the award
which he must utilize to pay for future medical expenses.
[70] I am of the view that costs must follow the results, and, in this instance, the
cost of Counsel must also be on Scale C.
Order
[71] I will make an order in terms of the Draft Order provided as follows:
73.1 The issues of liability and quantum in respect of the Plaintiffs claim on
behalf of O[...] M[...] ("O[...]"), are separated in terms of the provisions of R ule
33(4) of the Uniform Rules of Court.
73.2 The Defendant is liable for and shall compensate the Plaintiff for 100%
of the proven or agreed damages the Plaintiffs son, O[...], suffered as a result
of (a) the sequelae of the surgery performed on O[...]'s right sided knee on 28
October 2013, and (b) the failure to treat/operate his left sided knee.
73.3 The Defendant shall pay the Plaintiffs taxed or agreed party and party
costs of suit in respect of the liability trial of 13 March 2025 on the High Court
scale, such costs to include:
73.3.1 The costs occasioned by the employment of counsel by the
Plaintiff, on Scale C, including the cost of preparation for, and
attendance of all pre -trial conferences that were held and attended, as
well as the drafting a nd settling of the pre -trial agendas and minutes
and the drafting of the practice notes;
73.3.2 Counsel's fees for drafting the Rule 36(9)(b) expert summary of
Dr Pienaar;
73.3.3 The Plaintiffs costs of obtaining the medico -legal report of Dr A
F Pienaar relating to the issue of liability;
73.3.4 The reasonable preparation, qualifying and reservation fees, if
applicable, of Dr A F Pienaar in respect of the liability trial of 13 March
2025, including the cost of consultations (inclusive of telephonic and
video-consultations) by the Plaintiff's legal representatives with Dr
Pienaar;
73.3.5 The costs stipulated above shall be paid into the trust account of
the Plaintiffs attorney, the details which are:
Account holder : N Kelly Attorney Inc
Attorney Trust Account
Bank: NEDBANK
Branch Code : 198765
Account Number: 1[...]
REF NO: Ms Kelly/MAL/M282
73.4 The following provisions shall apply regarding the determination and
payment of the Plaintiffs abovementioned taxed costs:
73.4.1 The Plaintiffs attorney s hall timeously serve the notice of
taxation on the Defendant's attorneys of record;
73.4.2 The Plaintiffs attorney shall allow the Defendant 30 (THIRTY)
calendar days to make payment of the taxed costs from date of
settlement or taxation thereof;
73.4.3 Should payment of the Plaintiff's taxed or agreed costs not be
effected timeously, the Plaintiff will be entitled to recover interest at the
prescribed rate calculated from the 31st calendar day after the date of
the Taxing Master's allocatur or of settlement of costs, up to the date of
final payment.
73.4.4 The matter is postponed sine die for the determination of the
quantum of the Plaintiff’s claim on behalf of O[...].
LA NKOANA A.J
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
Heard on 13 March 2025
Judgment delivered on:
29 September 2025
This Judgment was handed down electronically by circulation to the Parties'
representatives by e -mail, the date and time fo r hand down of the Judgment is
deemed to be 10H00
For the Plaintiff
Adv. F Pauer
Instructed by N Kelly Attorney
Paulshof
For the Defendant
Adv. S Green
Instructed by State Attorney.
Polokwane