N.S.M v Wits Health Consortium (Pty) Ltd (2017/10193) [2025] ZAGPJHC 1098 (28 August 2025)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG.

CASE NO: 2017/10193
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE 28 August 2025
SIGNATURE

In the matter between:

N[...] S[...] M[...] Plaintiff

and

WITS HEALTH CONSORTIUM (PTY)LTD Defendant
registration number 97/15443/07

JUDGMENT

CORAM; YENDE AJ
Introduction.

[1] By agreement between the parties, the issue of liability and quantum have
been separated in terms of Rule 33(4) of the Uniform Rules of the Court ,
thus the matter only proceeded before me on the issue of liability only.

[2] The plaintiff claims for damages from the defendant based on the alleged
negligence of the defendant’s doctor and /or medical staff at Khulandoda
Male Circumcision Clinic run by Wits Health Consortium (Pty)Ltd,

situated in Johannesburg, Gauteng Province following a male circumcision
he underwent on 1 st September 2014 that caused damage and permanent
deformity on his manhood- penis.

[3] The plaintiff Mr N S M[...] and adult male person who resides in Nancefield
Hostel Pimville, Soweto, Johannesburg. The Defendant is Wits Health
Consortium (Pty) Ltd, a company duly registered in terms of the law of the
Republic of South Africa, with registration number 97/15443/07 and with
registered address and principal place of business at 3[...] P[...] o[...] W[...]
T[...], Parktown, Gauteng Province.

[4] The issues to be adjudicated i s the liability as to the causation of the
plaintiff’s permanent deformity of his manhood and whether the alleged
damages w ere as a direct result of the defendant ’s doctor and/or staff
negligence during the plaintiff’s circumcision and post the circumcision.

[5] The defendant disputes that its doctors and /or staffs were negligent in their
dealing with the plaintiff during the circumcision and post the circumcision.
The defendant further denies liability and claims to be protected by the
contractual indemnity which the plaintiff signed before he was circumcised
by its employees.

[6] In every civil litigation it is trite that parties must plead their case properly and
further support their case with evidence that support their pleaded case. I
now turn to the proceedings before me.

[7] Brief relevant Background Facts.
[7.1] On or about 1 st of September 2014 the plaintiff was circumcised by the
Defendant’s employee/s at Khulandoda Male Circumcision clinic after being
recruited by the defendant’s employee who were promoting the Defendant’s
services at a local area.
[7.2] After the circumcision, the plaintiff was discharged and was given
medication, pain killers and given information and/or told how he should look

after himself while recovering from the circumcision procedure. He was
advised to come for the further observation on the 3rd of September 2014.
[7.3] The plaintiff did present himself at the clinic on the 3 rd day of September
2014 and was seen by a nursing personnel member by the name of S. Bongi
who made the following observations on her medical assessment form: -
[7.3.1] that the wound was clean and healthy,
[7.3.2] the suture line was intact and;
[7.3.3] that the plaintiff is able to pass urine.
[7.3.4] The plaintiff was then ordered to come back to the clinic for further
assessment on the 10th September 2014.
[7.4] The plaintiff returned to the clinic on the 9th September 2014 complaining
of sever pains, discomfort and swelling on his penis and was seen by medical
personnel who introduced himself to the Plaintiff as Dr. Makhudu who carried
out the following: -
[7.4.1] it was recorded that the plaintiff came in with the swelling of the penis
and;
[7.4.2] that the wound was cauterised and sutured, and;
[7.4.3] covered with antibiotics and pain killers;
[7.4.4] The plaintiff was specifically told that the pains and swelling will
subside;
[7.4.5] The plaintiff was then ordered to come back to the clinic for further
assessment on the 12th September 2014.
[7.4.6] Accordingly no expert advice was either sought or obtained and/or a
referral to an expert / Urologist was made by Dr Makhudu after having re -
opened the wound removed the stiches, drained the clot blood and re -
sutured the wound and covered same with the antibiotics.
[7.5] On the 10 th of September 2014, seeing that the plaintiff’s pain was not
subsiding and his condition was deteriorating, the plaintiff’s brother called
Khulandoda clinic to inform them that his younger brother was experiencing
severe excruciating pains on the wound area and was told that the plaintiff
must go buy pain killers a t a local Click’s store and this will help the pain to
subside.

must go buy pain killers a t a local Click’s store and this will help the pain to
subside.
[7.6] Later on the 10 th September 2014 after a failed attempt to get the clinic
to urgently intervene, the plaintiff’s condition worsened and this prompted his

brother to urgently call an ambulance which came and stabilised the plaintiff
then took him to Chris Hani Baragwanath Academic Hospital on emergency
basis (herein referred as “CHBAH”).
[7.7] The plaintiff arrived at “CHBAH” at or about 23h00hrs and was taken to
causality section and put in a room, then assessed by nursing personnel who
put on drips to help ease the pains from the wound. The plaintiff was kept at
the casualty room until he was admitted at 02h40 on 11th of September 2014.
In the early morning, the plaintiff was attended to by the Doctor who
recommended that the plaintiff should be admitted and be urgently referred to
a Urologist.
[7.8] On or about the 15th September 2014, the plaintiff was seen by an expert
Urologist who according to the plaintiff, recommended that the plaintiff should
be operated.
[7.9] The plaintiff was then booked for surgery on the 30th of September 2014.
[7.10] On the 30 th of September 2014, the plaintiff was operated by a certain
Dr. Basienicz assisted by another medical personnel. The plaintiff was then
stabilised after the operation and/or surgery and taken back to the ward for
admission and further monitoring or observation.
[7.11] The plaintiff was provisionally discharged and/or was given pass out by
the medical personnel on the 7 th of October 2014 as his conditions was out of
danger and recovering well so as to free up the beds for other emergencies
and was advised to return on the 17 th of October 2014 for further
assessments.
[7.13] On the 17th of October 2014 the plaintiff returned to “CHBAH” where he
was again admitted and only discharged on the 10th of November 2014.

[8] Plaintiffs’ testimony.
[8.1] It is apposite to mention that t he plaintiff testified under oath and
confirmed that he went for circumcision on the 1 st September 2014 at
Khulandoda Male circumcision clinic. He stated that he was 23 years old
when he went for the circumcision. He mentioned that before the medical

when he went for the circumcision. He mentioned that before the medical
staff commenced with the procedure, he was given an anaesthe sia injection
to take away the pain. When they commenced with the procedure, he could
not feel any pain but in the middle of the procedure he started feeling pains

and he informed the medical staff about this discomfort . He mentioned that
he could not hold himself and he started crying instead he was told to be
patient until the Doctor was finish with the procedure.

[8.2] He further testified that after the circumcision procedure the pain was
unbearable, it was difficult for him to walk and he was directed to the
recovery room for monitoring until the pain subsided. After a while he was
given pain medication, told how to look after the operation while recovering
and released to go home the same day.
[8.3] He confirm ed that he returned to the clinic as directed on the 3 rd of
September 2014. He stated that on the 3rd September 2014 he was seen by
nursing sister S. Bongi confirmed the medical assessment observations as
recorded by nursing sister S. Bongi except that he was not sure if the
dressing was removed around the circumcised area. He confirms that the
circumcision procedure was fine and it never had any pains and/or swelling
and further that he could pass urine with great ease. After the third day of
post circumcision procedure, he was advised to return to the clinic on the
10th September 2014 for further assessment.

[8.4] He testified that he started feeling pains on his private parts and his
manhood started to develop swelling. He asked his brother to call the clinic
to inform them about the sudden pain and swelling on his manhood.
Accordingly, his brother was told by someone at the clinic that he can go to
the local Click’s store to buy pain tables and these would help make the pain
to subside. In deed they went to purchase the pain table at the local Click’s
store. He took the pain killers and the pain never subside instead the pain
and the swelling on his private parts got worse.

[8.5] On the morning of the 9th September 2014 the pain became unbearable
and the swelling of his manhood was persisting , thus he decided to present
himself at the defendant’s Khulandoda Male clinic. He confirms that while at

himself at the defendant’s Khulandoda Male clinic. He confirms that while at
the clinic the nursing sister referred him to Dr Makhudu who after assessed
his operation, informed him that he had a blood clot on his veins. He was
given an anesthesia injection and after a while Dr Makhudu removed the

stitches, drain the blood that had clot and then re -sutured his operation and
thereafter the wound was covered with antibiotics, he was feeling better and
he went home.

[8.6] He confirms that when Dr Makhudu re -worked on his circumcision
procedure, he did not feel any pains and he was put in the recovery room
and later allowed to return home. He testified further that once again he was
told to look after his operation and given medicine to help ease the pain and
the swelling.

[8.7] He stated that on the 10 th September 2014 his operation was getting
worse in that the skin on his penis was turning black and, on the area, where
he had stitches, cracks were beginning to develop and his operation started
to bleed. He told his brother to call the clinic. After a number of calls to the
clinic someone answered his brothers call and advise him to continue to take
the medical and man up. Later at night he experience d excruciating pains on
his operation and his private parts become swollen. He testified that his
brother called an Ambulance which arrive and transported him to Chris Hani
Baragwanath Academic Hospital “CHBAH” at about 23h00 hrs.

Plaintiff arrives at CHBAH at 23H00hrs on the 10 September 2014.
[9] He confirmed that when he arrived at the “CHBAH” it was around 23h00 hrs,
he was taken to casualty ward where a file was opened for him and the
hospital personnel then put him in a room not far from the casualty ward
where he was given a drip to reduce the pains. He testified that the drip did
not help to reduce the pains on his manhood. According to the plaintiff the
hospital staff that attended to him, informed him that there were no Urologist
at that night time but he will have to wait until the following morning for a
Urologist to attend to him.

[10] The plaintiff explained that after a drip was put on him, he was seen by a
medical doctor who observed him and told him that he must wait until the

medical doctor who observed him and told him that he must wait until the
morning so as to be seen by a Urologist. He testified that in the morning of
the 11 September 2014 he was attended to by a medical doctor who took a

scan of his private parts and he was further taken to another Department
which he cannot recall. He re-called that the doctors who attended to him
had informed him that the cause of his pains was that his penis had
contacted a virus and/ an infection and that was the cause of his conditions.
The medical doctors who attended to him had informed him that there is
nothing that they can do as the infection and/virus had spread all over his
penis to the point that there is nothing they can do. The only thing they can
do to help him was to remove his scrotum and the skin of his pe nis because
it was already damaged.

[11] He testified that it was not long after he was admitted at “CHBAH” that he
was booked in a theatre where the Doctors conducted the procedure to
remove his scrotum and the skin of his penis . He cannot remember the date
when he went to the theatre but he can recall that, that there was a weekend
in between and about five days when this operation was done on him.

[12] He further confirmed that since he was admitted on the 11 September 2014,
he did not leave “CHBAH” until he was operated and was given a pass out
on the 7 October 2014 as he felt better and returned on 17 October until the
10 November 2014 when he was finally discharged . As to the procedure of
removing his scrotum and the skin of his penis he testified that the wound
was scaring and a watery substance was coming off from the wound area.
He testified that after the initial procedure of removing his scrotum and the
skin of his penis there were other procedure that he underwent . While at
“CHBAH” the doctors were constantly observing him , he was given sperm
cells injections to help boost his wound to heal.

[13] He testified further that he has been to the theatre for almost three to four
times. He recalls that the second time he went to the theatre was when the
head of Urologist suggested to him that fat tissue had to be harvest from his

head of Urologist suggested to him that fat tissue had to be harvest from his
stomach in order to boost his sperm cell thus piece of fat – tissue and blood
was taken from him.

[14] He testified that during this period he was not completely healed from the
operation but when he was discharged on the 10 November 2014, his
condition had improved in that he was feeling better as the pain had
subsided and he could walk.

[15] The plaintiff’s elder brother also testified but his testimony could not amplify
the plaintiff’s testimony s ave to confirm that on the 10 September 20214 he
was asked by the plaintiff to call the clinic when he was experiencing pains
on his private part. He testified that he called the clinic and the medical staff
advised him to go and buy pain tables at the local Clicks store to help reduce
the pain.

[16] After returning from Clicks, he left the plaintiff to do his business and when
he returned later, he found the plaintiff sleeping he decided to open his
trouser to see the operation at that time the plaintiff could not wake up, he
got scared and call for an ambulance.

[17] The ambulance came and the plaintiff was put on trasher and transported to
CHBAH. When they arrived at the CHBAH the plaintiff was taken to casualty
ward and he was told to return the next day. The next day he returned to
CHBAH and he found the plaintiff admitted and the plaintiff told him that he
was seen by a doctor who told him that he must be seen by the Urologist.

[18] As mentioned earlier that the plaintiff’s brother testimony could not shed any
light as to what had transpired to the plaintiff from the 1 st, the 3rd and the 9th
of September 2014. The thrust of his evidence is about the events as they
unfolded on the 10th September 2014 as adumbrated supra.

[19] It is now apposite now to turn to the expert who testified on behalf of the
plaintiff. Dr E. M. Moshokoa, t he plaintiff’ s only expert that was called to
testify, is a first African specialist urologist in South Africa with a
comprehensive list of qualification against her name namely, MBChB (Cum
Laude), MMed ( Urol) MEDUNSA, FCS (Urol SA ), CIME , Diploma

Laude), MMed ( Urol) MEDUNSA, FCS (Urol SA ), CIME , Diploma
Laparoscopy ( Strasbourg): ORCID org/ 0000 -0002-7263-7508. She has

been practicing as a medical doctor for 26 years but she has been a
Urologist for 20 years.

[20] The defendant called three witnesses. Dr Makhudu , a medical practitioner,
Nurse S. Bongi, Dr F.J. Van Wijk a specialist Urologist who hold MBChB
(Pret) MMed (Urol Pret) FCS (Urol SA).

[21] In Blyth v Van der Heever 1, the Court in determining the question of
negligence considered the following issues:
‘(i) what factually was the cause of the ultimate condition of [Plaintiff];
(ii) did negligence on the part of [the Defendant] cause or materially
contribute to this condition in the sense that [the Defendant] by the exercise
of reasonable professional care and skill could have prevented it from
developing.’

[22] In determining whether there was negligence it is apposite to record the
areas of agreement between the experts as well as the aspects which the
experts conceded by defendant’s witnesses. In the joint minutes between
both Drs Moshokoa and Van Wijk, I deemed it fit to restated the relevant
agreed joint minutes “Ad history both experts agree that the plaintiff, Mr M[...]
was approached for a circumcision drive that was done in Khulandoda Clinic.
They both further agree that he signed the consent form for the procedure
and had a circumcision on the 1 st September 2014 under local anesthesia.
Both agree that he returned to the clinic after he had a swelling of the penis
and? A hematoma was diagnosed. The wound was opened, under local and
cleaned and then re -sutured. They both further agreed that he then
deteriorated then phoned the ambulance that took him to Chris Hani
Baragwanath Academic Hospital. They both agreed that he was consulted
by an expert Urologist and was booked for surgery in September 2014.

[23] The experts further both agreed that the Claimant decided to consent for
stem injection for the recovery of his wounds. They both agreed that Mr M[...]

1 Blyth v Van der Heever 1980 (1) SA 191 (A) at 196E

currently complaints of disfiguring of his penis as not having good quality
erections and that he also has problems in passing urine and sometimes has
to express the urine through compression on the urethra.

[24] On examination both the experts agree that examination findings are as
described in respective reports. In summary, both the experts agreed that
they don’t have any information on the technique that was used and the
sterile environment in which the treatment was done. They further both
agreed that Mr M[...] developed a hematoma, that he was treated under local
anesthesia and sutured again. They both agreed that he should have been
referred to the Urologist to manage this and reasonably be kept overnight for
observation.

[25] Both the experts agreed that there was a time lag before he was re -operated
while he was in Chris Hani Baragwanath Academic Hospital. Both experts
agreed that the claimant did develop complications afterwards which looked
like a clot or an infected hematoma that formed underneath the skin and
were or became secondary infected. This caused severe infection of the
fascia of the surrounding tissues with the developed into Fournier’s
gangrene and the full extent of damage due to that.

[26] Both the experts further agree that with secondary intention healing to the
defect is covered by fibrotic/ scar tissue. The experts further agreed that he
currently has sexual dysfunction, low sensation, and difficult penetration and
relationship problems and that relationship problems deferred to a clinical
Psychologist. Lastly both experts agreed that the reconstructive part after
that is to do skin graft, which is currently accepted to be the standard
treatment car. In this case the claimant selected to have stem cells and this
caused healing by secondary intention and very severe scar tissue
formation.”

[27] Dr Moshokoa testified that she complied her report after perusal of the
Hospital records from CHBAH as well as the ID copy of the plaintiff. It was

Hospital records from CHBAH as well as the ID copy of the plaintiff. It was
during her testimony during the proceedings that her evidence was led in

respect of the medical records from Khulandoda clinic. Dr Moshokoa
conceded that the anesthesia used on the plaintiff being a combination of
macaine 0.5 % -2,5ml, the lignocaine 2% - 7.5ml together were the total
volume dose of 10ml. She stated that the doses of the anesthesia used
during the procedure on the 1 st September 2014 was insufficient, this was
evidenced by the fact that the plaintiff experienced pains during the
circumcision procedure. She stated that the plaintiff should have been give
at least 20mls is the dose she prefers administering in her private practice.
She found nothing amiss with the ring block procedure use. In essence she
did not raise any issue with the method used to circumcised the plaintiff.

[28] She testified that when the plaintiff presented himself at the Khulandoda
clinic on the 9 September 2014 with the swelling penis she would have
referred the plaintiff to a urologist and kept the plaintiff for further
observation. She however did not challenge and/or question the manner in
which Dr Makhudu dealt with the wound of the plaintiff which was to open
the wound, cauterized and re-sutured and covered the wound with antibiotics
and pain killers.

[29] Dr Moshokoa confirmed that upon analysing the medical records from the
clinic from the 1 st September 2014 to 9 th September 2014 and the note s
recorded therein everything looked ok after the operation.

[30] Dr Moshokoa further testified that according to her medical experience, on
the 9 September 2014 it appears that the plaintiff presented with adverse
event which is not expected on a normal circumcision procedure. She stated
that at the clinic the plaintiff should firstly have been properly diagnosed,
secondly to rate how server his condition was and then manage it
accordingly. The clinic failed to document the condition of the plaintiff
whether it was an adverse event, secondly it was not rated whether it was
server or not, thirdly there was an additional intervention onto this adverse

server or not, thirdly there was an additional intervention onto this adverse
event on which there was no consent form and nothing was recorded as to
how much of local anesthesia was given.

[31] She stated that a reasonable action by the clinic on the 9 September 2014
could have prevented the deterioration o f the condition of the plaintiff. She
stated that these included interalia the general examination and the local
examination based on the past examination of the plaintiff. She stated that
the information captured on the medical records on the 9 September 20214
was deficient. She stated that treatment on the 9 September 2014 had to
change given the adverse event that the plaintiff presented with. On
treatment she testified that there had to be a change on the antibiotics, since
the wound was no longer clean, it was already contaminated despite being
given antibiotics.

[32] She further stated that on treatment, the procedure that was done which
seemed to have been similar to circumstances under which the circumcision
was done does not give sterility that is optimal like in th eatre and same
treatment does not offer better control for the surgeon as compared to when
it should have been done in theatre. She further stated that the administering
of the local anesthe sia already on the wound which was already swollen
could be detrimental.

[33] She testified that the conditions that the plaintiff presented himself with on
the 9 September 2014 at Khulandoda clinic could be characterised as
hematoma. She stated that the treatment of such condition under local
anesthesia and re suturing was not enough accordingly, the plaintiff should
have been referred to a Urologist to manage this and be kept overnight for
observation. She noted that from her observations of the medical records
from Khulandoda clinic the treatment of the plaintiff’s condition was not
aggressive.

[34] She testified that from the medical record from CHBAH she could decipher
that sonar/ x-ray was taken from the plaintiff on the 11 September 2014 by a
Uro-consult after a query on scrotal abscess and was admitted in ward 7.
She testified further that from the hospital record from CHBAH it was not

She testified further that from the hospital record from CHBAH it was not
clear when the Fournier’s gangrene was diagnosed. She testified that the

plaintiff’s condition while at CHBAH could have been managed and not
reversed as there was already a dead tissue on his private parts.

[35] During cross-examination, Dr Moshokoa conceded that when she made her
report, she did not have the medical record from Khulandoda clinic and that
she was never requested to file a supplementary medical report by the
plaintiff’s legal team. She also conceded that her evidence with regard to the
medical record from Khulandoda Clinic never formed part of her report which
was discovered to the defendants. This also included her testimony about
some operations which she concluded might have been undertaken by the
plaintiff at CHBAH which were never pleaded and/or testified to by the
plaintiff during his evidence in chief. She further conceded that the procedure
on the 1 September 2014 was generally acceptable in public clinics and also
conceded that the Forceps Guided and Vicryl Rayoide was an acceptable
method for performing circumcision.

[36] The plaintiff closed its case at the end of Dr Moshokoa’s testimony and
never adduce any further evidence by either the doctors and /or medical staff
from CHBAH . The defendant counsel then indicated that it will call three
witnesses, Nurse Bongi, Dr Makhudu and Dr Van Wijk a urologist expert.
Nurse Bonekile Sithebe testified to the effect that she is a professional nurse
currently working for South African Blood services since 2010. She testified
that on the 1 st September 2014 she was employed as a professional nurse
by Wits Khulandoda male clinic. She has been involved with the Wits
Khulandoda Male clinic since 2011 and left in 2015.

[37] She testified that at the Khulandoda Male circumcision clinic the facilities
were aseptic and all the material used was from CHBAH. She testified that
before a patient could be circumcised, she will do a health screening,
checking for any abnormalities on the penis and check for any infection,
check for blood pressure and the pulse and if they pass the screening a

check for blood pressure and the pulse and if they pass the screening a
patient would be taken to theatre for the operation.

[38] She confirmed that before the patient could be assessed they will be given
oral information on what was expected from them as well as forms detailing
what is expected of them and how they must look after the operation post
the circumcision. This form was printed in the various local languages. Once
a patient passes the screening he will be taken to the theatre -the
circumcision room.

[39] She testified that on the 1 st September 2014 she was at Khulandoda male
clinic and she consulted with the plaintiff who came for a male circumcision.
The plaintiff went through the normal screening process and was presented
with a consent form whose contents was explained to him and thereafter he
signed it in front of her and she witnessed same.

[40] She testified that on the 3rd September 2014 the plaintiff returned to the clinic
for the 1 st / 48Hrs visit and she personally attended to him. She stated that
she assessed the plaintiff and noted the following observations:
(a) the wound was clean and healing
(b) suture lines intact;
(c) able to pass urine
(d) and the plaintiff to come back to the clinic on the 10 September 2015.

[41] She stated that after the initial circumcision procedure the patient has to
remove the bandage the following day after the circumcision and when he
returns to the clinic for the first visit the bandage should have been removed.
If the patient has not removed same, she removes it herself and assessed
the wound. She testified that when she assessed the plaintiff on the first visit
the bandage was already removed and the wound was clean.

[42] She testified that if there was anything wrong with the circumcision
procedure the Standard Procedure was to call the doctor and refer the
patient to urology. She testified that on the 9 th September 2014 he was not
involved with the plaintiff but it was Dr Makhudu.

[43] Dr Makudu testified under oath and stated that he has been practicing as a
medical doctor in South Africa since the year 2006, he is permanently
employed by an international NGO, and also runs a private medical practice
in the South of Johannesburg. He stated that during 2010 he was employed
with PHRU as a project director for circumcision programme -Khulandoda
Male circumcision project until the end of December 2014.

[44] Dr Makhudu stated that he recalled the matter of the plaintiff. He was
referred to the medical record from Khulandoda Male circumcision clinic a nd
he confirmed knowledge of same. He confirmed that all patient were
required to sign the standard indemnity form prior to be circumcised. No
patient could be circumcised without a duly signed consent and/or indemnity
form

[45] Dr Makudu was referred to the medical records from Khulandoda clinic
specifically on the 1 September 2014. He stated that anesthesia used on the
plaintiff was a combination of macaine 0.5% ---2,5ml which is long acting
anesthetic, which can stay up to six to eight hours to start working and the
lignocaine 2% --- 7.5ml is the short acting anesthetic one which start to
function almost immediately and last for a short while , the lignocaine was a
lower volume and the macaine was a higher volume and the combination
was enough. These volumes of the used anesthesia were in line with -
VMMC guidelines developed by WHO which were adopted by South Africa
in 2013. The anesthesia used on the plaintiff on the 1 st September 2014 was
more than sufficient as currently volumes in terms of the present guidelines
the ratio is 1:1.

[46] Dr Mokudu testified that if one were to use more volumes of anesthetic this
would distort the anatomy as a result one may end up taking more skin ,
hence the less anesthesia the better . He testified that on the 9 September
2014 he attended to the plaintiff who presented with a swelling penis. He
confirmed that he opened the wound cauterised, re sutured it and covered

confirmed that he opened the wound cauterised, re sutured it and covered
with antibiotics and gave the plaintiff painkillers. He stated that the condition
that the plaintiff presented with was a hematoma swelling on the penis and

that required him to open and re cauterized he further explained that
hematoma -Blood clot - is collection of blood under the skin . The decision
whether to open or leave it is based on the when you see how big the
swelling is or is growing actively, or actively bleeding when you see it.

[47] He testified that his decision to open the wound, cauterise and re -suture
was based on the fact that it was not a big swelling and it was not actively
bleeding. He stated further that since it was seven days since the plaintiff
was circumcised, he covered the wound with two broad spectrum antibiotics
to prevent it from having infections the broad spectrum was Augmentin and
plus flagella and the pain killer was paracetamol. He confirmed that there
was no sign of infection on the wound and averred that if there was any sign
of infection they would have immediately referred the plaintiff to urology and
send him to theatre. He stated that there was no sign of Necrotizing
Fascialities or Fournier gangrene on the plaintiff’s wound on the 9
September 2014 that is the reason he decided to treat the plaintiff himself
and not refer him to a urologist as it was not necessary. Dr Makhudu testified
that after treating the plaintiff he was advised to come back the clinic on the
12 September 2014.

[48] Dr Makhudu was referred to the plaintiff’s medical records from CHBAH on
the 11 September 2014 when he was admitted. Dr Makhudu testified that the
plaintiff’s clinical records from CBHAH on the 11September 2014 indicates
that the plaintiff’s wound had Fournier ’s gangrene and these particular
symptoms did not present themselves on the 9 September 2014 when he
treated the plaintiff for a hematoma. He also noted that although the CHBAH
plaintiff’s clinical records refer to the sceptic circumcision, according to him
these symptoms were a Fournier’s gangrene. Dr Makhudu further testified
that had the plaintiff presented with these symptoms there is nowhere that

that had the plaintiff presented with these symptoms there is nowhere that
he could have open the wound, cauterised and re -sutured and covered with
antibiotics. He was going to immediately refer the plaintiff to urology and to
the theatre immediately because these conditions rapidly progress within
hours.

[49] Dr Makhudu was also referred to the plaintiff’s amended particulars of
claim and/ version same restated for completeness of my judgment: -
“4.8 On or about the 11th of September 2014 early morning, the Plaintiff
was attended to by the medical personnel who recommended that the
Plaintiff should be admitted and must be urgently be referred to a
Urologist.
4.9 It was noted that the Plaintiff had swollen penis, discharging puss
and blood and scrotum with cellulitis and oedema, slough on wound,
necrotic skin and he diagnosed the Plaintiff as having sceptic
circumcision. The Plaintiff was admitted on the 11 of September 2014.
4.10 On or about the 15 th of September 2014, the Plaintiff was seen by
an expert Urologist who according to the Plaintiff, recommended that
the Plaintiff should be operated.
4.11 The Plaintiff was then booked for surgery on the 30 th September
2014.
4.12 On the 30th September 2014, the Plaintiff was operated by a certain
Dr Basienicz (with spelling to be confirmed) assisted by another
medical personnel Dr. Si... (whose name is unknown to the Plaintiff and
unclear on the medical records.) The Plaintiff was then stabilised after
the operation or surgery and taken back to the ward for admission and
further monitoring or observation.

[50] Dr Makhudu’s immediate response thereto was that in terms of timelines
therein the delay was too long to treat the symptoms that the plaintiff
presents with at CHBAH because in terms of the guidelines and the
recommendations the patient is supposed to be sent immediately to the
theatre. Dr Makhudu testified that having admitted the plaintiff on the 11
September 2014 it was too late for the plaintiff to be seen by a Urologist
expert on the 15 th of September 2014 and thereafter to be operated on the
30th of September 2014.

[51] Dr Makhudu further testified that the clinical records from CHBAH do confirm
that the plaintiff was diagnosed with Fournier’s gangrene but the clinical

that the plaintiff was diagnosed with Fournier’s gangrene but the clinical
records does not specifically state the date when this diagnosis was made.

[52] Dr Makhudu stated that the Fournier’s gangrene is caused by a number of
bacteria. It attacks the tissues just under the skin and it eats up everything
under the skin as the result that everything that is above the skin dies with it
within a short space of time. It then becomes dangerous because the death
tissue is also a sight for more infections. The more you leave it the more it
eats up the facia . The facia is the one that the skin is on top. Thus,
everything that is on top of the facia will die because the facia has been
eaten up by these bacteria. Dr Makhudu noted further that the Fournier’s
gangrene progresses rapidly from the penis it extends right up to the
abdomen hence when it is removed in the theatre all the dead tissues is
removed in terms of treatment. He averred that it was imperative that a
patient with such a condition has to receive treatment urgently as the
condition becomes a Necrotizing Fasciatis.

[53] Dr Makhudu further confirmed that from the clinical records from CHBAH on
the 11 September 2014 it is evident that necrotic skin distal to suture was
clinically observed and recorded yet the urologist attended to the plaintiff
only on the 15 September 2014.

[54] Dr Makhudu further testified that with regards to the treatment of the plaintiff
with stem cell rather than skin graft he cannot comment as the same was
not the standard way of treatment as same was on a clinical trial . Dr
Makhudu further stated that the condition of the plaintiff could have been
treated by way of skin graft which was the normal standard of treating such
conditions.

[55] Dr Makhudu confirmed under cross -examination that the plaintiff was
assessed and taken vital signs prior to being circumcised. He confirmed
further that the plaintiff signed a consent form. He further confirmed that on
the 9 th September 2014 the plaintiff was assessed and thereafter he
attended the plaintiff and treated him for the hematoma . He confirmed that

attended the plaintiff and treated him for the hematoma . He confirmed that
there were no signs of an infection on the wound. He maintained that he
opened the wound cauterised, re sutured it and covered with antibiotics and

gave the plaintiff painkillers. This was the best treatment he gave to the
plaintiff.

[56] Dr Makhudu further confirmed that having open the wound after nine days of
the actual procedure the decision to cover the wound with antibiotics was a
preventative measure to prevent the wound to getting infections . He
confirmed that the treatment he administered on the plaintiff was based on
the consent form that the plaintiff had duly signed on the 1 st September
2014. He maintained that the hematoma he treated on the plaintiff was a
swelling only on the penis and there was no swelling on the scrotum. He
confirmed that the circumcision procedure in general is done under local
anesthesia in what is referred to as surgical clean, sterile environment.

[57] Dr Makhudu further confirmed that the circumcision on the 1 st September
2014 was done under acceptable local anesthesia and the environment was
sterile, this he maintained was evidenced by the fact that after three days of
the procedure the plaintiff’s condition was fine as recorded by Nurse Bongi
Sithebe.

[58] Dr Van Wijk a urologist was called by the defendant and he stated that he is
a urologist in private practice for the past 35 years and a part-time lecture at
Steve Biko Academic Hospital . Dr Van Wijk testified that he was requested
to look at the medical -legal aspects concerning the plaintiff’s circumcision
that was performed at Khulandoda Male Circumcision clinic on the 1 st
September 2014.

[59] Dr Van Wijk testified that upon perusing the clinical records from Khulandoda
Male Circumcision clinic he found nothing untoward with the volumes of the
anesthesia used during the circumcision. He observed that the time used by
to conduct the procedure was normal as it only involved the actual
procedure. He stated that the clinical records by nurse Sithebe on the 3 rd
September 2014 were a clear indication that the nurse had to observe and
assess the plaintiff penis before she could make her findings, thus it is

assess the plaintiff penis before she could make her findings, thus it is
impossible that the nurse could have recorded such clinical observation

without physically looking at the wound itself. He confirmed that the clinical
records on the 3rd September 2014 were an indication that the circumcision
that took place on the 1 st September was up to standard hence the
observations by nurse Sithebe that -:
(a) the wound was clean and healing
(b) suture lines intact;
(c) able to pass urine

[60] Dr Van Wijk testified that his analysis of the clinical record from Khulandoda
Male circumcision clinic on the 9 th September 2014 he formed an opinion
that the plaintiff presented with symptoms of a hematoma. He stated that no
infection was recorded by Dr Makhudu and he confirmed that the manner in
which Dr Makhudu treated the wound was an acceptable standard of care
that any surgent could have done when presented with such a condition. He
confirmed that in the absence of any infection recorded there was no need to
refer the plaintiff to a urologist and to theatre. He explained that it is normal
to develop a hematoma normally about five to seven days after the initial
circumcision due to involuntary erection while the wound heals.

[61] Dr Van Wijk testified that he could not found any thing untoward with the
manner in which Dr Makhudu dealt with the condition that the plaintiff
presented with on the 9 the September 2014 according ly, that was a normal
standard of care performed by any surgeon in the circumstance.

[62] Dr Van Wijk testified that the clinical records from CHBAH on the 11
September 2014 indicated that the plaintiff had developed a purulent
discharged and swelling of the scrotum. Dr Van Wijk stated that though the
plaintiff was not sure about the exact date of surgery, but he was consulted a
couple days by a Urologist on the 15 September 2014 and was booked for
surgery on the 30th September 2014.

[63] Dr Van Wijk stated that i t is unknown by the plaintiff and from the medical
record from CHBAH why the operation was only done so long after he was

record from CHBAH why the operation was only done so long after he was
admitted at CHBAH on the 11 September 2014. He stated that plaintiff told

him that his condition did not stabilize and he was taken to theatre for
debridement of the necrotic skin. Dr Van Wijk explained that the clinical
records from CHBAH revealed the conditions that the plaintiff present with
on the 11 September 2014 was clearly diagnosed as Fournier’s gangrene.

[64] He observed that when the plaintiff was admitted on the 11 September 2014
the clinical medical records reveals that some of the assessment included
inter alia “swollen penis + scrutum cellulitis+ oedema, Septic circumcision
wound, necrotic skin distal to suture, no active bleeding”. To which Dr Van
Wijk stated th e condition was a clear Fournier ’s gangrene and that the
plaintiff should have been referred to the theatre and the seen by a urologist
immediately.

[65] Dr Van Wijk testified that by t hat stage the plaintiff had developed Fournier’s
gangrene which was caused by bacterial infection of the underlying fascia
leading to necrosis of the overlying skin. He stated that from the medical
records from CHBAH extensive debridement of the skin was done, and the
plaintiff’s left testicle was replaced under the Inguin al skin on the left side
and right testicle remained in the part on the scrotum that survived. He
observed further that from the medical records from CHBAH there was a
problem with time lag before the plaintiff was re -operated while at CHBAH.
He stated that it was extremely paramount that while at CHBAH the plaintiff’s
infection on his penis and surrounding tissue should have been treated
aggressively with antibiotic , sometimes intravenous antibiotic. The
Fournier’s gangrene that presented itself required extreme urgent surgical
intervention by CHBAH in order to excise all the dead tissue and to clean the
wound.

[66] Dr Van Wijk stated that the plaintiff should have been advised about the skin
graft and not the stem cells. He stated that the best treatment would have
been skin graft which was a normal standard operation and a standard care.

been skin graft which was a normal standard operation and a standard care.
The stem cell was on trial stages and it resulted in the severe scaring on the
plaintiff’s wound. He stated that in the case of the plaintiff, the stem cells will
stimulate the growth of the tissue but the underlying tissue is then replaced

by mostly scar tissue and it heals by secondary healing often causes severe
contractures.

[67] Dr Van Wijk testified that from the medical records from Khulandoda clinic he
found nothing untoward and that standard of care was observed on the 1 st,
3rd and the 9 th September 2014. He lamented that, though the hospital
records from CHBAH it is noted that blood cultures were obtained from the
plaintiff but is still not clear were the infection came from.

[68] Dr Van Wijk was subjected to cross-examination but throughout he stood
and maintained his report as well as his observation of the medical clinical
record from both Khulandoda and CHBAH.

[69] Dr Van Wijk conceded that th e plaintiff’s condition post the normal
circumcision was a very unusual complication of a circumcision. He stated
that more aggressive wound care, as well as antibiotics or intravenous
antibiotics should have been administered. This could have prevented the
severity of the damage to the plaintiffs’ perineum and the resulted
disfiguration and from the hospital records it is not clear what the delay in
debridement at CHBAH contributed to the plaintiff’s disfiguration.

[70] The defendant having closing its case I now turn to the defendant’s defense .
The defendant defends its-self on three basis, being: -
(a) Indemnification;
(b) Novus actus intervenience;
(c) No negligence on the defendant’s part.

[71] The defendant averred that the plaintiff signed a consent form that contained
an indemnity clause at Khulandoda Male Circumcision clinic. Same was
pleaded on its amended plea and sadly, no reply by way of pleadings was
received from the plaintiff after the defendant had amended its plea in order
to incorporate same as a defence , thus the plaintiff does not challenge such
defense on his papers before court. It is common cause that indeed the
plaintiff admitted in cross-examination that it is his signature on the indemnity

form and same was duly witnessed by Nurse Sithebe . This was also
confirmed by the experts in their joint report that the plaintiff signed the
consent form which contained the indemnity.

[72] It trite that e xclusionary clauses in the form of hospital exemption clauses
are mainly used in the private health care sphere and seek to protect the
hospital (or doctor) from personal liability arising from negligence that will
cause the patient harm.2

[73] In contracts, exclusionary clauses are called by many name s including
‘exemption clauses’, ‘indemnity clauses’, ‘exculpatory clauses’ and ‘waivers.

[74] These clauses aim to limit or exclude the liability of hospitals and medical
professionals for damages arising from medical procedures, often due to
negligence.

Interpretation of exclusionary clauses.

[75] The courts have attempted to protect the public by interpreting exemption
clauses narrowly and/or limiting their effect, or even striking them out in the
interest of public policy.3

[76] It is also suggested , fairly regularly , that exemption clauses should be
construed contra proferentem 4 against the person for whose benefit the
exemption is included, and at whose behest it is drafted. However, the
guides to interpretation, such as contra proferentem, should be resorted to

2 See Letzler “The law of contract, the Consumer Protection Act and medical malpractice law” (2012) June De
Rebus 22.
3 See Van der Westhuizen v Arnold [2002] 4 All SA 331 (SCA) ; 2002 (6) SA 453 (SCA) at [18]. See also Afrox
Healthcare Bpk v Strydom [2002] ZASCA 73; 2002 (6) SA 21 (SCA) at [9]: In relation to exclusion or exemption
clauses such as clause 2.2, the general approach in our law is that such clauses, though valid and enforceable,
must be construed restrictively.
4 The "contra proferentem" maxim is a rule of contract interpretation that dictates ambiguous contract terms
should be construed against the party who drafted the contract. This principle aims to discourage vague or

unclear language in contracts and places the burden of ambiguity on the party best positioned to prevent it.
Essentially, if a contract clause is unclear, the interpretation that favours the non-drafting party will be adopted.

only where the application of the general principles of interpretation fails to
yield a clear meaning.5

[77] In the absence of legislation regulating unfair contract terms, and where a
provision does not offend public policy or considerations of good faith, a
careful construction of the contract itself should ensure the protection of the
party whose rights have been limited, but also give effect to the principle that
the other party should be able to protect himself or herself against liability in
so far as it is legally permissible.6

[78] In Afrox Healthcare Bpk v Strydom ,7 (Afrox case) the exemption clause
indemnifying the hospital, its employees and agents from all liability for
damages or loss of whatsoever nature, including consequential damages or
special damages from any direct or indirect injury caused to the patient by
act or omission was before court for determination.

[79] The SCA held that these clauses were the norm, not the exception, and, as
such, were sound business practice and not contrary to public policy.
Further, the court could not find evidence that the patient was in a weaker
bargaining position than the hospital. The court did not deal with gross
negligence, but it indicated that even that would not result in an automatic
invalidation of the clause.8

[80] The court further dismissed the alternative basis of the claim, that the
contract was unenforceable because it is unreasonable, unfair and in conflict
with the principle of bona fides or good faith . It held that, when it comes to
the enforcement of contract terms, the court has no discretion and does not
proceed on the basis of abstract ideas, but only upon the basis of
crystallised and established legal rules.9


5 See n2 at [19]. See also Section 4(4)(a) of the Consumer Protection Act 68 of 2008.
6 Id at [21].
7 [2002] ZASCA 73; 2002 (6) SA 21 (SCA).
8 Id at [13].
9 Id at [32].

[81] On the further alternative of awareness when signing the contract, the court
held that there was no legal duty upon one party to bring an exclusionary
clause, pertinently, to the other party’s attention. The party is bound by the
clause as though he had read and expressly agreed to it.10

Comparative legal principles in other countries.


[82] In the United States these clauses are generally regarded as invalid in
hospital contracts. The courts tend to rely on the common law in its
interpretation and application of the law as opposed to statutory guidelines.
As the medical profession and medical practices affect public interests, the
profession and medical practices are governed by public regulations that
involve health, safety and welfare, as well as ethics. Any conduct that would
move away from a generally accepted standard of discharging professional
duties is frowned upon.11

[83] Section 2(1) of the English Unfair Contract Terms Act 1977 states that: ‘A person
cannot by reference to any contract term … exclude or restrict his liability for
death or personal injury resulting from negligence’. It was generally accepted in
most, if not all, European countries that exclusion clauses were unlawful in
respect of medical liability.

The Consumer Protection Act.

[84] The Consumer Protection Act 12 (the Act) states that the common law should
be developed ‘as necessary to improve the realisation and enjoyment of
consumer rights generally’. In the hospital context, the consumers are the
patients and the suppliers are the hospitals.


10 Id at [36].
11 See n1 above.
12 Act 68 of 2008.

[85] Sections 48 13 and 49 of t he Act regulates clauses which prohibits unfair,
unreasonable, or unjust contract terms . The A ct aims to prevent
exploitation of patients by medical professionals and hospitals through the
use of standard form contracts with onerous exemption clauses. The Act
further adds scrutiny, requiring that clauses be clear, understandable, and
brought to the consumer's attention .

[86] Examples of unfair, unreasonable or unjust terms include ones that are
‘excessively one-sided in favour of any person other than the consumer’ , as
are ones where ‘the terms of the transaction or agreement are so averse to
the consumer as to be inequitable’.14

[87] A term which could , whether or not that is the intention , serve to relieve a
supplier of services of the obligation to take reasonable care in any of its
dealings with consumers is particularly liable to be considered unfair.

[88] A party relying on an exclusion of liability or indemnity clause must prove it
was brought to the consumer's attention and that the consumer understood
its implications. Patients should carefully review all contracts and seek
clarification on any clauses they do not understand, especially those limiting
liability.

[89] Patients may still have recourse against hospitals or medical professionals
for damages, even if an exclusionary clause is present, if the clause is
deemed unfair or not properly disclosed. The courts may also consider
public policy when assessing the validity of such clauses, particularly in the
context of medical care.

[90] There are long -standing professional standards of conduct and ethical rules
that the medical profession is expected to meet. Failure to meet such

13 Section 48(1)(a)(ii) of the Consumer Protection Act prohibits ‘terms that are unfair, unreasonable or unjust’.
This is supported by section 48(1)(c), which prohibits any agreement that requires a consumer to waive any

rights, assume any obligations or waive any liability of the supplier on terms that are unfair, unreasonable or
unjust.
14 Section 48(2)(a) and (b) of the Act.

standards is inarguably proof that the hospital has failed to perform in a
manner that the patient is ‘generally entitled to expect’. This is a direct
breach of the hospital’s obligations under the A ct. Being an obligation
stemming from the A ct itself, it cannot be waived and liability for failure to
perform properly cannot be excluded.15

[91] Most exclusionary clauses would contravene the above requirement
because, by excluding a hospital’s liability, the clause would shield the
hospital from its duty under the A ct to perform ‘in a manner and quality that
persons are generally entitled to expect’.

[92] In insisting that the patient accept the provision of waiver in the contract, the
hospital certainly exercises a decisive advantage in bargaining. When the
patient signed the contract, he completely placed himself in the control of the
hospital; he subjected himself to the risk of its carelessness. The hospital,
under such circumstances, occupied a status different than a mere private
party; its contract with the patient affects the public interest.

[93] Any exclusionary clause that excludes liability for the gross negligence of the
hospital would be void on the basis of th e provision of section 51(1)(c)(i)16 of
the Act, over and above the general prohibition on exclusionary clauses .
Thus, in no circumstances can an exclusionary clause that contravenes the
abovementioned provisions be relied on by a hospital to escape liability.17

[94] Consequently, the effect of the above provisions, specifically ss 54(1)(b) and
51(1)(c)(i) of the CPA, will inarguably render most exclusionary clauses in
hospital contracts void.

15 Section 54(1)(b) of the Act provides that: ‘ When a supplier undertakes to perform any services for or on behalf
of a consumer, the consumer has a right to – the performance of the services in a manner and quality that
persons are generally entitled to expect; having regard to the circumstances of the supply, and any specific

criteria or conditions agreed between the supplier and the consumer before or during the performance of the
services.’
16 Section 51(1)(c)(i) of the Act prohibits any term in a hospital contract that purports to ‘limit or exempt a supplier
of goods or services from liability for any loss directly or indirectly attributable to the gross negligence of the
supplier or any person acting for or controlled by the supplier.
17 Section 51(3) of the Act provides: ‘A purported transaction or agreement, provision, term or condition of a
transaction or agreement, or notice to which a transaction or agreement is purported to be subject, is void to the
extent that it contravenes this section.’

[95] A term of a consumer agreement is ‘presumed’ to be unfair if it has the
purpose or effect of “excluding or limiting the liability of the supplier for death
or personal injury caused to the consumer through an act or omission of that
supplier”. Thus, the unlimited enforcement of an exemption clause excluding
liability for death or personal injury cannot be tolerated and should be set
aside.

[96] It is likely that the Act will entirely revoke the principles laid down by the SCA
in the Afrox case. This will bring South Africa in line with foreign jurisdictions
in regard to medical liability, specifically in respect of exclusionary clauses in
hospital contracts. This is especially so when one considers the duty of the
courts to take account of foreign and international law when interpreting the
provisions of the Act.18

[97] It can therefore be argued that it is likely that any type of exclusionary
clause, at least where it appears in a hospital contract, will no longer be valid
in light of the A ct, especially when regard is had to comparative case law
dealing with what should be regarded as an unfair, unreasonable or unjust
term. Thus, an exclusion of a hospital’s duty to provide quality service would
almost certainly fall foul of the A ct, especially where the hospital is at fault,
regardless of whether it is intentional or due to negligence.

Case Law post-Consumer Protection Act.


[98] To find out whether an indemnity form or contract holds water, one usually
needs a court to pronounce on its validity. There are many factors which the
court considers, including the nature of the underlying contract or activity and
the relevant bargaining positions of each party.


18 Section 2(2) of the Act.

[99] South African courts take into account public policy, seen in the light of the
Constitution, when determining whether a particular indemnity undertaking is
enforceable in certain circumstances and whether negligence or fault on any
person's part should exclude the enforceability of that clause in a given case.

[100] A hospital is reasonably expected to provide quality services by ensuring
that patients are treated in a professional manner and in accordance with
professional standards that do not cause harm. This view is based on the
principle of reasonable expectations. The law should be more willing to
protect the reasonable expectations of parties and should give them legal
force.19

[101] In applying the principles articulated in Barkhuizen,20 the court in Naidoo v
Birchwood Hotel21 held that:

“the plaintiff was a guest in a hotel, and did not take his life in his hands
when he exited through the hotel gates. To deny him judicial redress for
injuries he suffered in doing so, which came about as a result of the
negligent conduct of the hotel, offended against notions of justice and
fairness. Public policy, with the notions of fairness, justice and
reasonableness, would preclude the enforcement of a contractual term
if its enforcement would be unjust or unfair. In the circumstances of this
particular case, to enforce the exemption clause would be unfair and
unjust. The court could 'not let blind reliance on the principle of freedom
of contract override the need to ensure that contracting parties must
have access to courts'.”

[102] The Constitutional Court case, in Fujitsu Services Core (Pty) Limited v
Schenker South Africa (Pty) Limited22 involves the interpretation of
exemption clauses and whether they can exclude liability for theft by

19 See Mupangavanhu “Exemption Clauses and the Consumer Protection Act 68 OF 2008: An Assessment of
Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ)” PER / PELJ 2014 (17) 3.

Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ)” PER / PELJ 2014 (17) 3.
20 See Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); (2007 (7) BCLR 691 at [55] and [73].
21 2012 (6) SA 170 (GSJ) at [73] – [74].
22 [2023] ZACC 20; 2023 (9) BCLR 1054 (CC); 2023 (6) SA 327 (CC).

employees. Further, it explores the interplay between contract interpretation,
public policy, and the Consumer Protection Act.

[103] Osman Tyres and Spares CC & Another v ADT Security (Pty) Ltd 23 case
demonstrates the importance of specifically mentioning negligence in an
exclusion clause for it to be effective.

[104] In Dutfield v Lilyfontein School ,24 the Court held that the defendants would
be indemnified against any claims provided that stringent safety measures
were in place. In the event that the defendants failed to ensure that such
safety measures were in place, the indemnity would not be operative . The
Court found that the defendants had failed to do so. The case was thus
decided in favour of the plaintiff.

[105] The rights to life and bodily and psychological integrity are embodied in the
Bill of Rights, and it has been said that compelling a patient to waive these
rights in order to obtain medical treatment or to be admitted to a hospital
‘would surely be contrary to public policy’.25

[106] In summary, while exclusionary and indemnity clauses in medical contracts
are still permissible, they are subject to the provisions of the Consumer
Protection Act. Hospitals and medical professionals must ensure that these
clauses are fair, understandable, and properly communicated to patients to
be enforceable.

[107] Even if the exclusionary clauses in hospital contracts do not fall under the
blacklist contained in section 51 of the Act, but they certainly fall under the
general prohibition on unfair, unreasonable or unjust terms contained in
section 48 of the Act , as such, they are void and cannot be relied on by a
hospital to escape liability.


23 [2020] ZASCA 33; [2020] 3 All SA 73 (SCA).
24 [2011] ZAECGHC 3.
25 See Carstens and Pearman “Foundational Principles of South African Medical Law.” Durban, LexisNexis 2007
at 560-561.

[108] In essence, the Consumer Protection Act aims to level the playing field
between suppliers and consumers, preventing businesses from easily
escaping liability through the use of exclusionary clauses. Courts are now
more likely to consider the context of the agreement, the consumer's
understanding of the clause, and whether the clause is fair and reasonable
before upholding it.

[109] Having outline the law on indemnity I now turn to the second defence by the
defendant being novus actus intervenience.

[110] In cases of medical negligence, the “novus actus interveniens” (novus
actus), Latin for “a new intervening act”, can be a defence, meaning that an
independent event occurring after the initial negligent act breaks the causal
link between that act and the resulting harm, potentially relieving the initial
wrongdoer of liability. Essentially, it argues that the harm was not a direct
result of the original negligence, but rather a consequence of this intervening
act.26

[111] This doctrine provides a defence when an intervening act occurs after the
initial negligence. If this intervening act is considered sufficiently independent
and powerful, it can be deemed to have broken the chain of causation,
meaning the initial negligent act is no longer the direct cause of the harm.

[112] [112] For instance, imagine a patient suffers a minor injury due to a doctor's
negligence. The patient is then treated for that injury, but the treatment is
also negligent. The second act of negligence (the treatment) could
potentially be considered a novus actus, meaning the doctor who caused the
initial injury might not be liable for the harm caused by the subsequent
negligent treatment.

Defence in case of medical negligence.


26 See Neethling and Potgieter “Law of Delict” 8th Edition, Durban, LexisNexis 2020 at 250-251.

[113] In medical negligence, establishing causation27 is crucial. It means proving that
the doctor's negligence directly led to the patient's injury or harm. A novus actus is
not confined to either factual or legal causation only, and can interrupt the causal
chain at either point.

[114] In respect of factual causation, a novus actus interrupts the nexus between the
wrongful act of the initial wrongdoer and the consequences of his act to such an
extent that it frees him of the liability of his actions. However, when assessing novus
actus in respect of legal causation, regard must be had to the aspects of policy,
fairness, reasonableness and justice in order to determine whether liability for the
initial wrongful act can still be imputed to the initial wrongdoer, and whether the
causal chain has been broken. 28 Therefore, a novus actus disrupts the "directness"
aspect of the initial act and the subjective test of legal causation cannot be fulfilled.

[115] It is important to distinguish novus actus from contributory negligence.
Contributory negligence involves the patient’s own negligence that contributes to
their injury, while novus actus involves an independent intervening act by a third
party.29

Key Considerations.
[116] The courts will carefully consider the circumstances to determine if the
subsequent treatment was truly independent and severe enough to break the causal
chain. The courts will analyse several factors when determining if an intervening act
qualifies as a novus actus, including:
a) Foreseeability: was the intervening act foreseeable by the original
wrongdoer?30
b) Independence: was the intervening act independent of the initial
negligence?31

27 Causation ordinarily consists of two elements that determine whether or not a party can be held liable for the
damages caused to another. These elements are factual causation and legal causation. A full and lengthy
explanation of both elements can be found in the case of Groenewald v Groenewald 1998 (2) SA 1106 SCA.

28 See Road Accident Fund v Russell [2000] ZASCA 66; 2001 (2) SA 34 (SCA) at [26].
29 Novus actus is often utilised as a defence by initial wrongdoers who wish to prove that their liability is limited or
non-existent and should be imputed on another party.
30 If the subsequent event was reasonably foreseeable at the time of the initial wrongful act, it is not to be
considered as a novus actus capable of limiting the liability to be imputed on the initial wrongdoer.
31 It can be occasioned by anyone or anything other than the initial wrongdoer. This general category also
includes the injured party him or herself, another third party or even an act of God.

c) Voluntariness: was the intervening act a voluntary action by the patient
or another party?32
d) Severity: was the intervening act sufficiently serious to be considered a
break in the chain of causation?33

[117] In order to qualify as a novus actus interveniens in the context of legal
causation, the plaintiff’s conduct must be unreasonable. Reasonable conduct on the
part of the plaintiff cannot free the defendant from the imputation of liability. Even
unreasonable conduct on the part of the plaintiff will not always absolve the
defendant. Whether it will do so, depends on the facts of the particular case.34

Comparative Jurisprudence.

[118] In Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust ,35 the
claimant contracted polio as a child which affected her mobility. Whilst working for
Barclays Bank ship tripped on a protruding stone in their forecourt and injured her
polio affected leg. This caused her excessive problems and her consultant advised
her that it would be best if she had her leg amputated from above the knee. She
went through with the amputation which meant she was wheelchair bound but was
still experiencing excessive pain. It turned out the advice of the consultant was
wrong and he had not fully discussed the implications of such an operation or
sufficiently explored alternative options.

[119] The court held that the doctor's actions did not break the chain of causation but
the Bank was entitled to a contribution, under the Civil Liability (Contribution) Act
1978, from the Trust to reflect the proportion of pain, suffering and loss of amenity
caused by them.36


32 See Mafesa v Parity Versekeringsmaatskappy Bpk (In Likwidasie) 1968 (2) SA 603 (O): “The court held that
the fall had been caused by the plaintiff's own carelessness and that the defendant was not liable for the damage
caused thereby: the fall was an intervening cause which broke the causal effect of the original negligence.

33 See S v Tembani 1999 (1) SACR 192 (W): The court held that only if the medical negligence was so
overwhelming as to make the original wound merely part of the history of the chain of events could it be said that
death did not flow from the wound.
34 See Premier of the Western Cape Province and Another v Loots NO [2011] ZASCA 32 at [20].
35 [2002] PIQR P8.
36 Practitioners have taken the decision as authority for the proposition that for medical treatment to amount to a
break in the chain of causation, the treatment must not only be negligently provided, but grossly negligent.

[120] In Jenkinson v Hertfordshire County Council ,37 the court did not consider that
Webb is authority for the proposition that only gross negligence on the part of
treating doctors can amount to a novus actus interveniens ; whether or not medical
treatment breaks the chain of causation will be highly fact -sensitive and will depend
on all the circumstances of the case, including the nature and extent of the
negligence and its foreseeability on the part of the tortfeasor.

[121] In Western Australia, a successful break in the chain of causation absolves the
original tortfeasor from liability for the injured party’s ultimate loss. This inquiry is also
known as the “scope of liability” which is reflected in section 5C(1)(b) of the Civil
Liability Act 2002 (WA). 38 This inquiry requires the Court to consider whether it is
appropriate for the scope of the original tortfeasor’s liability to extend to the harm in
question and whether liability for the harm should be imposed on the original
tortfeasor.

[122] Australian Courts have consistently held that to establish a novus actus
interveniens capable of severing the chain of causation, the original tortfeasor must
establish, on the balance of probabilities, that the subsequent treatment was “grossly
negligent”, and therefore not a reasonably foreseeable consequence of the original
injury. A mere error or lapse of judgment will not possess enough “causal potency” to
amount to an intervening act capable of breaking the chain of causation.

[123] In the case of Aquilina v NSW Insurance Ministerial Corporation (1994) 157,
the negligent driver in a motor vehicle accident was held liable for both the back
injuries sustained in the motor vehicle accident and the severe complications of
negligently-performed back surgery (including brain damage). This was on the basis
that the surgeon’s negligence did not amount to gross negligence and the back
injuries from the motor vehicle accident carried the risk that some negligent medical

injuries from the motor vehicle accident carried the risk that some negligent medical
treatment might be given.


37 [2023] EWHC 872 (KB).
38Section 5C (1): A determination that the fault of a person (the tortfeasor) caused particular harm comprises the
following elements — (a) that the fault was a necessary condition of the occurrence of the harm (factual
causation); and (b) that it is appropriate for the scope of the tortfeasor’s liability to extend to the harm so caused
(scope of liability).

[124] Similarly, in the case of Liston v Liston,39 the South Australian Supreme Court
held a negligent driver liable for the back injuries sustained in the car accident and a
subsequent permanent back disability sustained as a result of an unsuccessful
laminectomy. This was on the basis that there was nothing “ultroneous” nor
“unreasonable or extraneous or extrinsic” about the surgeon’s decision to perform
the laminectomy.40

SA Case law on novus actus.
[125] I now turn to deal with the defendant’s defense of novus, i n MEC Health,
Eastern Cape v Mkhitha and Another,41 the plaintiff sustained right femur fracture in
the accident. When she was transferred from the Nelson Mandela Academic
Hospital to the Bedford Orthopaedic Hospital (BOH) to undergo surgery, the fracture
was not properly repaired, as there was a large piece of bone that was not aligned in
a normal position and as a result thereof, the plaintiff's knee joint was incongruent.42

[126] The staff at BOH failed to take the necessary x -rays of the plaintiff's leg, which
would have indicated that there was a mal -alignment of her right leg. As a result, the
leg healed with a 15 -degree angulation, which she alleged was as a result of the
hospital's negligence.43

[127] The court a quo found that the substandard medical care did constitute a novus
actus and that the RAF could not be held liable for the plaintiff's sequelae even
though the injuries were initially caused by the negligence of the RAF's insured
driver.44

[128] The court a quo dismissed the special plea and held that should it allow the
MEC's special plea to succeed, the court would deny the plaintiff of her common law
right to sue the MEC as a result of his staff's negligence and would limit the damages

39 (1981) 31 SASR 245.
40 See Wright v Cambridge Medical Group [2012] 3 WLR: The original tortfeasor must prove that the subsequent
negligent treatment went beyond the realms of a “failure to take reasonable care”, and must instead, be

considered outstandingly bad to amount to gross negligence, capable of breaking the chain of causation.
41 [2016] ZASCA 176.
42 Id at [2].
43 Id at [7].
44 Id at [9].

she would be able to claim from the RAF to those that would result due to the less -
severe sequelae of the injuries sustained during the collision.45

[129] In the Supreme Court of Appeal (SCA), the court held that although the plaintiff
would not have been hospitalised but for the collision, the negligent treatment of the
plaintiff by the staff of BOH had significantly contributed to the consequences of the
injuries sustained by the plaintiff and therefore had broken the causal chain between
the collision and the severity of the injuries sustained by the plaintiff. The SCA
dismissed the appeal on the basis that the special plea was bad and the appeal had
no prospect of success.

[130] When entering the hospital, the duty of care shifts. The hospital itself then had
the duty of care to provide the plaintiff with reasonable medical care. It was
unforeseeable that the hospital would not have provided the plaintiff with reasonable
medical care, that the medical staff would have been negligent when providing the
plaintiff with care and would breach their duty of care towards the plaintiff.

[131] When having regard to legal causation, the negligence of the hospital staff
severed the chain of causation as the sequelae suffered by the plaintiff is no longer
sufficiently closely and directly linked to the motor vehicle collision for liability to be
imputed on the RAF.46

[132] In Road Accident Fund v Russell ,47 the court held that, even though the
deceased’s act of suicide may be said to have been deliberate, the weight of the
evidence proved, on the probabilities, that the deceased's mind was impaired to a
material degree by the brain injury and resultant depression. Consequently, his
ability to make a balanced decision was deleteriously affected. Hence his act of
suicide, though deliberate, did not amount to a novus actus interveniens. The
appellant was held liable to compensate the respondent for such damage as she
may prove.48


45 Id at [15].
46 Id at [14].

may prove.48


45 Id at [15].
46 Id at [14].
47 [2000] ZASCA 66; 2001 (2) SA 34 (SCA) at [25].
48 Id at [26].

[133] The question before court, in S v Tembani ,49 was whether an assailant who
inflicts a wound which without treatment would be fatal, but which is readily treatable,
can escape liability for the victim’s death because the medical treatment received is
sub-standard and negligent.

[134] The court, in applying R v Mabole,50 held that an assailant is entitled always to
expect that medical attention will be given in good faith, and to hope that it will be
given also with reasonable efficiency; but where the latter is lacking and death
ensues it does not entitle him to exculpation. The court further found that it would
apply this standard also in the case of ‘gross negligence’, so long as ‘gross’ is not
taken to imply absence of good faith.51

[135] In N.G and Others v Road Accident Fund ,52 the court held that the lack of
medical treatment by the medical staff was not a fresh cause of death. The
deceased would have died anyway from the injury even if he had not been taken to
the hospital. Consequently, the defendant was held liable for deceased injuries.

[136] It has by now become well settled that in the law of delict, causation involves
two distinct enquiries. First, there is the so-called factual causation which is generally
conducted by applying the ‘but for’ test as described by the court in International
Shipping Co (Pty) Ltd v Bentley.53

[137] Second, is legal causation, in order to determine whether liability for the initial
wrongful act can still be imputed to the initial wrongdoer, and whether the causal
chain has been broken, regard must be had to the aspects of policy, fairness,
reasonableness and justice.

[138] Foreseeability plays a role in determining both negligence and legal causation.
Yet, the relative approach does not require that the precise nature and extent of the
actual harm which occurred was reasonably foreseeable. It means foreseeability of

49[2006] ZASCA 123; 2007 (2) SA 291 (SCA) at [1].
50 1968 (4) SA 811 (R) 816D-E.
51 Id at [30].

50 1968 (4) SA 811 (R) 816D-E.
51 Id at [30].
52 [2023] ZAECQBHC 23 at [15].
53 1990 (1) SA 680 (A) at 700E-G.

the actual harm as opposed to harm of a general kind. Nor does it require
reasonable foreseeability of the exact manner in which the harm actually occurred.54

[139] The novus actus interveniens test is expressed in terms of an ‘abnormal’,
intervening act or event which serves to break the chain of causation. The normality
or abnormality of an act or event is judged according to the standards of general
human experience.55 Snyman56 describes this test as, an act is a legal cause of a
situation if, according to human experience, in the normal course of events the act
has the tendency to bring about that type of situation.

[140] It is in the nature of mortal wounds that they would normally, in the light of
human experience, lead to death. However, the adequate cause test must not only
consider the nature of the initial conduct but also whether the initial conduct would, in
the light of human experience, including the advent of supervening acts or events,
have resulted in the unlawful consequence.57

[141] These are the tests which the court should consider before allowing a novus
actus interveniens defence.

Critical Analysis of Evidence.

[142] In casu the plaintiff’s head of argument averred that there was negligence on
the part of the defendant ’s medical doctor and staff on the 1 st, 3rd and 9 th of
September 2014. It was further the plaintiff’s testimony during the proceedings that
on the 1 st September 2014 he went for a circumcision procedure at Khulandoda
Clinic. When they commenced with the procedure, he could not feel any pain but in
the middle of the procedure he started feeling pains and he informed the medical
staff about this discomfort. He mentioned that he could not hold himself and he
started crying instead he was told to be patient until the Doctor was finish with the
procedure. After the circumcision procedure he was given medic ine for his wound
and a leaflet containing information how he must look after the circumcision.

54 See n9 at [13].

54 See n9 at [13].
55 Burchell “Principles of Criminal Law” 5ed (2016) JUTA at 104.
56 Snyman “Criminal law “6ed (2014) LexisNexis at 90.
57 See n30 at 110 – 111.

[143] On the 3 rd September 2014 he returned to Khulandoda Male Circumcision
clinic for a follow up assessment visit , Nurse Bongi saw him and found that
everything was in order. There was no recordable Advent Effect about the
circumcision procedure of the Plaintiff. He was instructed to return on the 10
September 2014. On the 9 th September 2014 a day before the scheduled da te the
plaintiff presented himself to the Khulandoda Male Circumcision clinic complaining of
a swollen penis.

[145] Dr Makhudu, the medical doctor who attended to the plaintiff, according to his
own testimony the plaintiff presented with a hematoma. He testified that his decision
to open the wound, cauterise and re -suture was based on the fact that it was not a
big swelling and it was not actively bleeding. He mentioned that there was no
swelling on the scrotum. He stated further that as a preventative measure he
covered the wound with two broad spectrum antibiotics to prevent it from having
infections the broad spectrum was Augmentin and plus flagella and the pain killer
was paracetamol.

[145] He confirmed that there was no sign of infection on the wound and averred that
if there was any sign of infection they would have immediately referred the plaintiff to
urology and send him to theatre. He stated that there was no sign of Necrotizing
Fascialities or Fournier’s gangrene on the plaintiff’s wound on the 9 September 2014
that is the reason he decided to treat the plaintiff himself and not refer him to a
urologist as it was not necessary. He maintained that the procedure he performed to
the plaintiff having assessed the wound was a standard care which is what any
reasonable doctor in his position would have done.

[146] On 11 September 2014, the plaintiff was admitted at the CHBAH having being
collected from his home by an ambulance on 10 September 2014 at 23h00hrs.
Sadly, the plaintiff and/ or his legal team never bothered to call and medical staff and

Sadly, the plaintiff and/ or his legal team never bothered to call and medical staff and
/ medical doctor from CHBAH to come and put into perspective and more particularly
to testify about exactly what transpired at CHBAH for the time the plaintiff was
processed from casualty and later admitted at 02h40 on the 11 September 2014 until
he was discharged on the 7 November 2014. Instead, this court had to rely on the

assessment of clinical records from Dr Makhudu and f rom the two Urologist expects
called by the respective parties.

[147] Both Dr s Moshokoa and Van Wijk including Dr Makhudu agreed that the
clinical records from CHBAH as recorded on 11September 2014 at 02h40
revealed that the plaintiff had fairly severe complications which included inter
alia:
1. Swollen penis and scrotum;
2. Septic circumcision wound;
3. Slough on wound with minimal discharge;
4. Necrotic skin;
5. No active bleeding.

[148] It is apposite to mention that according to the plaintiff’s own testimony, he
was seen by a urologist on the 15 September 2014, being 4 days after he
presented with the above symptoms. He further testified that he was booked
for operation of the 30 September 2014 , that is 15 days after he had a Uro-
consultation. This part of his testimony ties up with the plaintiff’s amended
particulars of claim.

[149] Both Drs Moshokoa and Van Wijk agreed that from the clinical records from
CHBAH it can be deciphered apart from the 15 September 2014 , that there
was other two (2) procedures that might have followed but there are no
clearly determinable dates mentioned from the clinical medical records. The
only date that is determinable was the operation date- the 30th September
2014, this was also pleaded by the plaintiff in his amended particulars of
claim.

[150] It cannot be disputed by any shred of evidence that the plaintiff as a result of
the chain of events while at CHBAH sustained severe and several
permanent sequela and disfigurement of his manhood. Apropos the
extensive testimony by Dr Moshokoa it is worthy to note that according to
her own testimony when she compiled her report she was never placed in
possession of the clinical record from Khulandoda Male Circumcision clinic

thus her expert medico -legal report was only based on the clinical records
from CHBAH and to some pictures which the plaintiff presented to her, the
same not being discovered and/or presented to court during her testimony.

[151] Both Drs Makhudu and Van Wijk testified t hat the conditions that the plaintiff
presented with at CHBAH required that there should have been immediate
surgical intervention on the 11 September 2014. The CHBAH should not
have waited until the 15 September 2014 in order for the plaintiff to be seen
by a urologist let along to have been booked for surgery only on the 30
September 2014. Whilst Dr Moshokoa could not come out vociferously about
the dilatory time-lines at which CHBAH treated the severe condition that the
plaintiff presented with having been diagnosed at CHBAH.

[152] As mentioned supra no medical staff and/or medical doctor was brought
before court by the plaintiff in order to give an account of evidence on behalf
of CHBAH as to the accuracy and/or glaring inaccuracies of the clinical
records/ documentation and most significantly to explain the time lag and / or
lengthy delays in plaintiff receiving immediate treatment.

[153] Although the plaintiff pleaded and testified that there was negligence on
behalf of the defendant on the 1 st, 3 rd and 9 th of September 2014. It is
apposite to note that although Dr Moshokoa testified that with regard to the
anesthesia on the plaintiff being a combination of macaine 0.5% -2,5ml, the
lignocaine 2%- 7.5ml a total volume being 10ml , she would have preferred a
combination of 20mls because at her rooms she normally prefers to give her
patient’s at least 20mls for the circumcision procedure. She did not testify
that the 10 ml used at Khulandoda on the 1 st September 2014 was not a
standard nor a recommended volume by W orld Health Organization
standard procedure

[154] In considering the expert evidence, the decision in Coopers (South Africa)
(Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH ,58 the
Court said:
"…it is the Court's duty to construe the specification and, on the merits, to draw
inferences from the facts established by the evidence. See Gentiruco's case, supra
at pp. 616D - 618G. There are, however, cases where the Court is, by reason of a
lack of special knowledge and skill, not sufficiently informed to enable it to
undertake the task of drawing properly reasoned inferences from the facts
established by the evidence. In such cases, subject to the observations in the
Gentiruco case, loc. cit., the evidence of expert witnesses may be received
because, by reason of their special knowledge and skill, they are better qualified to
draw inferences than the trier of fact."
And
‘… the facts or data on which the opinion is based. The facts or data would include
those personally or directly known to or ascertained by the expert witness, e.g.,
from general scientific knowledge, experiments, or investigations conducted by him,
or known to or ascertained by others of which he has been informed in order to
formulate his opinions, e.g., experiments or investigations by others, or information
from text-books, which are to be duly proved at the trial.’

[155] In Price Waterhouse Coopers v National Potato Co -operative Ltd ,59 the
following passage from a Canadian judgment was cited with approval:
“[326] “Before any weight can be given to an expert’s opinion, the facts upon which
the opinion is based must be found to exist...”
[327] “As long as there is some admissible evidence on which the expert’s
testimony is based it cannot be ignored; but it follows that the more an expert relies
on facts not in evidence, the weight given to his opinion will diminish”.
[328] An opinion based on facts not in evidence has no value for the Court.”

[156] It is evident from the testimony of Nurse Bongi Sithebe that when the plaintiff

[156] It is evident from the testimony of Nurse Bongi Sithebe that when the plaintiff
returned to Khulandoda Male Circumcision clini c that there was nothing
untoward and/amiss with the circumcision procedure of the plaintiff. Both Drs

58 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH 1976 (3)
SA 352 (A) p at [33]
59 Price Waterhouse Coopers Inc and Others v National Potato Co-operative Ltd and Another [2015]
ZASCA 2; [2015] 2 All SA 403 (SCA) para 99.

Moshokoa and Van Wijk agreed that indeed the clinical records on the 3 rd
September 2014 from Khulandoda Male Circumcision clinic did not record
any advent event nor negligence on the part on the defendant as the wound
was well and healing. Interestingly, both Drs Moshokoa and Van Wijk agree
that there was time lag from CHBAH in aggressively treating the plaintiff’s
condition including referring the plaintiff to theatre.

[157] In Caswell v Powell Duffryn Associated Collieries Limited:60, it was said
"Inferences must be carefully distinguished from conjecture or speculation.
There can be no inference unless there are objective facts from which to
infer the other facts which it is sought to establish ... But if there are no
positive proved facts from which the inference can be made, the method of
inference fails and what is left is mere speculation or conjecture”

[158] In Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold
Storage (Pty) Ltd and Another, 61 the Court said:
“. . . [I]t should not be overlooked that in the ultimate analysis the true criterion for
determining negligence is whether in the particular circumstances the conduct
complained of falls short of the standard of the reasonable person. 40.2. [I]t has
been recognized that while the precise or exact manner in which the harm occurs
need not be foreseeable, the general manner of its occurrence must indeed be
reasonably foreseeable.”

[159] Having regard to the issue of factual causation, but for the wrongful conduct
of the medical staff and/or medical doctor , would the plaintiff’s loss have
ensued or not? It was submitted on behalf of the plaintiff that if the wrongful
negligent conduct of the medical staff and/or medical doctor was eliminated -
and on the assumption that all precautionary requirements were satisfied
and carried out – the damage to the manhood of the plaintiff would not have
occurred. Having considered all the evidentiary material including the plaintiff

occurred. Having considered all the evidentiary material including the plaintiff
pleaded case in casu , Factual causation has thus not been satisfied. Our
Courts have indicated that a plaintiff is not required to establish the causal

60 Imperial Marine Co v Deiulemar Compagnia 2012 1 SA 58 (SCA) at 70 at par 24.
61 Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd
and Another 2000 (1) SA 827 (SCA) paras 21-22.

link with certainty, but only to establish that the wrongful conduct was
probably a cause of the loss. 62 In casu the plaintiff has not establish that
there was any negligent and/or wrongful conduct on the part of the medical
staff and/or medical doctors at Khulandoda Male Circumcision clinic.

[160] The plaintiff has failed to establish c ausation in casu in so far as the
defendant is concerned. Both Drs Moshokoa and Van Wijk agreed that there
was blood cultures obtained from the plaintiff whilst at CHBAH and yet the
results thereof were never presented as evidence at court as such it can
never be established as to where did the bacteria originate from or what kind
of pathology caused the plaintiff harm to his manhood.

[161] It is trite that the determination of negligence ultimately rests with the court
and not with expert witnesses. Yet, that determination is informed by the
opinions of experts in the field which are often in conflict in many instances.
Fortunately, in casu the experts are both seasoned, with vast practical
experience and are both urologists. To the extent that I rely on an analysis
underlying reasoning mostly that is to an extent based on the clinical record
from Khulandoda Male circumcision clinic and to a larger extent from
CHBAH, there has been agreement on a number of issues by both sides as
adumbrated supra.

[162] To my displeasure, the plaintiff’s legal team never bothered and/or failed to
call any medical staff and/or doctor(s) from CHBAH to come and give
evidence before court as to what informed the delay in not aggressively
treating the plaintiff’s condition when he was received from casualty on the
10 September 2014 at 23h00hrs until being admitted at 02h40 on the 11
September 2014. No one was ever called by the plaintiff’s legal team from
CHBAH to present the crucial evidence as to how many surgeries and/or
procedures did the plaintiff undergo and as to what had happened to the

procedures did the plaintiff undergo and as to what had happened to the
blood cultures that were obtained from the plaintiff while at CHBAH.


62 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 25

[163] To my earlier statement that in every civil litigation it is trite that parties must
plead their case properly and further support their case with evidence that
support their pleaded case. I deem it fit that having critically analysed the
evidence in toto before me that I need not make my findings on the defence
of indemnity, but to make my findings on the plaintiff’s pleaded case and the
viva voce evidence presented before me.

[164] In Fox v RAF Tlhapi J stated63:
“[11] Liability depends on the conduct of the reasonable person. The test for
negligence was stated in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E -G
as follows: For the purpose of liability culpa arises if-
(a) A diligens paterfamilias in the position of the defendant –
(i) Would have 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,
Whether a diligens paterfamilias 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 circumstance of each
case. No hard and fast basis can be laid down.”
[12] It is trite that the onus then rests on the plaintiff to prove the defendant’s
negligence which caused the damages suffered on a balance of
probabilities. In order to avoid liability, the defendant must produce evidence
to disprove the inference of negligence on his part, failing which he/she risks
the possibility of being found to be liable for damages suffered by the
plaintiff.”

[165] Dr Van Wijk testified and corroborated the testimony of Dr Makhudu that the
Fournier’s gangrene that the plaintiff was diagnosed with at CHBAH on the
11 September 2014 at 02h40 is an extreme ly rare complication with
circumcision and explained that it rapidly develops and progress within

circumcision and explained that it rapidly develops and progress within
hours. I find that there was novus actus interveniens in this matter.

63 Fox v RAF (A548/16) [2018] 285 (26 April 2018).

Considering the Plaintiff’s own testimony that he was seen by the urologist
on the 15 September 2014 and only booked for operation on the 30
September 2015, I find that the CHBAH was negligent in not establishing the
novus, or at the least the delay in not aggressively treating the Fournier’s
gangrene which was diagnosed on the same day that the plaintiff was
admitted at CHBAH on 11 September 2014 at 02h40 contributed to the
plaintiff’s conditions thus harming him . I find that early aggressive
intervention at CHBAH by medical staff and or medical practitioners that
treated at him at casualty prior to admission on the 11 th September 2014
might have arrested the rapid progression of the plaintiff’s condition and
made a difference.

[166] The law on the incident on 9 September 2014 is crystal clear given the fact
that it is proven on the balance of probabilities that there was no infection or
history that there might be en infection on the wound . Dr Makhudu testified
that the plaintiff presented with a hematoma which was a swelling only on
the penis and there was no swelling on the scrotum.

[167] That having been said, Dr Makhudu was under a legal duty to person the
procedure he did and to dispense proficient medical care to the plaintiff. The
Constitutional Court in matter of Oppelt v Health, Department of Health
Provincial Administration: Western Cape64 held that:
“There is no doubt that the legal convictions of the community demand that
hospitals and health care practitioners must provide proficient healthcare
services to members of the public. These convictions also demand that
those who fail to do so must incur liability”.

[168] The question is if the service rendered on 9 September 2014 by Dr Makhudu
at Khulandoda Male Circumcision clinic was not proficient? In Topham v
MEC for the Department of Health, Mpumalanga Province 65 it was held that:
- “Professional negligence is determined by reference to the standard of

- “Professional negligence is determined by reference to the standard of
conduct of the reasonable skilled and careful practitioner in the particular

64 2016 (1) SA 325 (CC) at paragraph [54].
65 (351/2012) [ZASCA] 65 (27 May 2013).

field and in similar circumstances. A medical practitioner diagnosing and
treating a patient is expected to adhere to the general level of skill, care and
diligence possessed and exercised at that time by the members of the
branch of the profession to which he or she belongs”.

[169] Recently, the test for medical negligence was aptly captured in November
2023 by Joubert66when he discussed the cases of Chapeikin and Another v
Min67 He concluded that:
“a. The existence of negligence for purpose of liability is that fault arises if a
reasonable person in the position of the defendant would foresee the
reasonable possibility of his conduct injuring another in his person or
property and causing him patrimonial loss; and would take reasonable steps
to guard against such occurrence; and the defendant failed to take such
reasonable steps.
(b) There are two steps, the first is foreseeability- would a reasonable person
in the position of the defendant foresee the reasonable possibility of injuring
another causing loss. The second is preventability - would that person take
reasonable steps to guard against the injury happening,
(c) Negligence must be evaluated in light of all the circumstances.
(d) Because the test is defendant -specific the standards are upgraded for
medical professionals. The question for them is whether a reasonable
medical professional would have foreseen the damage and taken steps to
avoid it.
(e) The appellate division noted that this standard does not expect the
impossible of medical personnel.
(f) A medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional skill, but he is

66 https://www.millers.eo.za/ OurInsights/ArticleDetail.aspx?ArticleID=3121accessed on 8 August
2025.Also see Joubert, W: WHEN CONSTITUTIONAL GUARANTEES MEET REALITY IN HEALTH
CARE,29 April 2016, Medical Negligence, De Rebus in 2017(June issue) DR42,

CARE,29 April 2016, Medical Negligence, De Rebus in 2017(June issue) DR42,
https://vzlr.co.za/2016/04/29/when-constitutional-guarantees-meet-reality-in-health-care/also
accessed on 8 August 2025.
67 (103/2015) [2016] ZASCA 105 (14 July 2016 and Oppelt v Head: Health, Department of Health
Provincial Administration: Western Cape (CCT185/14) [2015] 33; 2016 (1) SA 325 (CC); 2015 (12)
BCLR 1471 (CC) (14 October 2015)

bound to employ reasonable skill and care and he is liable for the
consequences if he does not.
(g) A practitioner can only be held liable if his diagnosis is so palpably wrong
as to prove negligence, that is to say, if his mistake is of such a nature as to
imply absence of reasonable skill and care on his part, regard being had to
the ordinary skill in the profession.
(h) The test is always whether the practitioner exercised reasonable skill and
care or put differently, whether his or her conduct fell below the standard of a
reasonable competent practitioner in the field.
(i) If the error is one that a reasonable competent practitioner might have
made it will not constitute negligence”.

[170] The final conclusion lies in the testimony of Dr Van Wijk when he testified
that if he was presented with the similar symptomatic diagnosis of hematoma
he would have treated the wound the same manner that Dr Makhudu treat ed
it because in the absence of any infection from the wound the treatment was
that of standard care. The covering of the wound with antibiotics as
explained by Dr Makhudu was a preventative measure.

[171] I am constraint to arrive at the overwhelming decision that the plaintiff has
failed to prove negligence on the part of the medical staff and /or medical
doctors of the defendant at Khulandoda Male Circumcision clinic on the 1 st,
3rd and the 9th September 2014.

[172] In the premises the following order is made:

Order
[173] The plaintiff’s claim is dismissed on the merits with costs.




J YENDE
Acting Judge of the High Court

Gauteng Local Division, Johannesburg


APPEARANCES

For the Plaintiff: Adv M MAKAMU

Instructed by Nkobi Attorneys Inc

For the Defendant: Adv S KROEZE

Instructed by Whalley Van Der Lith Inc

Heard: 22/23/24/25/28/ 29/30 October 2024 & 7/9/ April 2025
Reserved: 9 April 2025
Heads of Argument – Plaintiff’s counsel 30 April 2025.
Head of argument -Defendant’s counsel 13 May 2025.
Delivered: 28 August 2025

This judgment was prepared by YENDE AJ. It is handed down electronically by
circulation to the parties/their legal representatives by e -mail and uploaded on
Caselines electronic platform and by publication of the judgment to the South African
Legal Information Institute. The date for hand-down is deemed 28 August 2025.