IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG

Case no: 7630/2013P
In the matter between:

A[…] S[...] PLAINTIFF

and

MEMBER OF THE EXECUTIVE COUNCIL FOR THE DEFENDANT
DEPARTMENT OF HEALTH KWAZULU-NATAL


Coram: MOSSOP J
Heard: 3 November 2025
Delivered: 4 November 2025


ORDER



The following order is granted:
1. Leave is granted to the plaintiff to:
1.1 Re-open her case.
1.2 Adduce the further expert evidence at the resumed trial of:
1.2.1 Prof J. Anthony;
1.2.2 Prof J. Smith; and
1.2.3 Dr Y. Kara.
1.3 Give further evidence herself.
2. The costs of the application shall be costs in the cause.

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JUDGMENT


MOSSOP J:

Introduction
[1] The parties to this application are presently opposing parties in a partly
heard trial before me. In the trial, t he plaintiff seeks damages from the defendant as
a consequence of her child (the minor child) being born with cerebral palsy. The
plaintiff has presented her evidence to the court in that trial and has closed her case.
The defendant has almost presented her case to the court, with her last witness, a
Professor Eckhart Buchmann (Prof Buchmann), being cross-examined when the trial
was adjourned approximately two years ago. No further evidence has been led since
then and the cross -examination of Prof Buchman n has neither been resumed nor
finalised.

[2] What is presently before me is an application by the plaintiff to reopen her
closed case. I shall refer to the parties as they are referred to in the trial and the
reference to the plaintiff is thus a reference to the applicant in this application.

[3] I stood the matter down after hearing argument yesterday morning and
indicated that I would prepare this judgment overnight and deliver it this morning. I
was of the view that the parties should have access to a decision as soon as
possible to allow for the further planning and conduct of the matter as expeditiously
as possible. This judgment may be less than perfect given the haste with which it
was prepared, for which I apologise in advance.

The prior agreement to permit the reopening of the plaintiff’s case
[4] While this is an application to reopen her case, the plaintiff has already, by
agreement, been permitted to reopen her case. Prior to the trial being adjourned with
Prof Buchmann still in the witness box, the defendant agreed that the plaintiff could
reopen her case to deal with certain specific issues. I was advised of this agreement
by the parties and accordingly it is mentioned in a judgment that I delivered on 28

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November 2023 pursuant to the plaintiff moving an application to amend her
particulars of claim

[5] Upon the consensual reopening of the plaintiff’s case, i t was anticipated that
the plaintiff herself would give evidence on the issue of her allegedly feeling her baby
moving prior going into labour. The further evidence of a previous expert witness
called by the plaintiff, Dr Yatish Kara (Dr Kara), would also be called to comment on
blood test results relating to samples of blood extracted from the minor child shortly
after his birth. Those blood test results only came to hand at the eleventh hour and
after the plaintiff had closed her case.

The re-enrolment of the trial
[6] The trial was finally enrolled for the hearing of further evidence, commencing
yesterday and continuing until 7 November 2025. It was accepted that this would be
sufficient time to comp lete the cross -examination of Prof Buchmann and to permit
the further evidence of the two identified witnesses after the consensual re-opening
of the plaintiff’s case.

[7] Thus, as of yesterday, the defendant had consented to the re -opening of the
plaintiff’s case for the defined purposes just mentioned. Mr Mullins SC, who appears
for the defendant, confirmed yesterday that the defendant had no objection to the
plaintiff reopening her case for those purposes.

The further application to reopen the plaintiff’s case
[8] However, on 16 October 2025, just over two weeks before the matter was
enrolled for the hearing of further evidence, the plaintiff delivered an application in
which, inter alia, the following relief was sought:
‘2. The plaintiff be permitted to:
2.1 Re-open the plaintiff’s case.
2.2 Adduce further expert evidence in the trial from:
2.2.1 Prof J. Anthony, (Obstetrician/Gynaecologist).
2.2.2 Prof J. Smith, (Neonatologist).
2.3 Recall the plaintiff.’

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[9] Given the fact that the plaintiff already had the defendant’s leave to reopen
her case and also had the defendant’s blessing for herself to give further evidence, it
seems to me that the relief claimed in paragraph s 2.1 and 2.3 narrated above was
unnecessary. The true focus of the application is , thus, the intended evidence of
Professor Anthony (Prof Anthony) and Professor Smith (Prof Smith) , identified in
paragraph 2.2 of the notice of motion.

[10] Having earlier consented to the reopening of the plaintiff’s case on the
grounds adumbrated, the defendant opposes the broader reopening now required by
the plaintiff.

The requirements to reopen a closed case
[11] An application to reopen a closed case is not simply there for the asking . It
must be properly and thoroughly explained and motivated. It is settled law that a trial
court, such as this court is, has the power to allow a plaintiff to call a fresh witness
even after the defendant has closed his case and that the exercise of that power is in
the discretion of the court.1 That discretion must, however, be exercised judicially.2

[12] The requirements which should be considered when evaluating an
application to re -open a closed case were considere d in Oosthuizen v Stanley ,3
where Tindall JA observed that:
‘Several considerations have a bearing on the exercise of such discretion, for instance, the
reason for the plaintiff's failure to call the witness before, the danger of prejudice to the
opposite party owing to his being no longer able to bring back his own witnesses, and, of
course, the materiality of the evidence. In application for leave to lead fresh evidence in this
Court the test as to materiality laid down in Colman v Dunbar is that the evidence tendered
must be presumably to be believed and such that it would be practically conclusive. In a trial
Court, however, in my judgment the test of materiality should be held to be satisfied where

Court, however, in my judgment the test of materiality should be held to be satisfied where
the evidence tendered, if believed, is material and likely to be weighty.’ (Citation omitted)


1 Bellstedt v South African Railways 1936 CPD 397.
2 Embling v Two Oceans Aquarium CC 2000 (3) SA 691 (C) 694G-H; R v Zackey 1945 AD 505 at
513.
3 Oosthuizen v Stanley 1938 AD 322 (Oosthuizen) at 333.

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[13] In Mkwanazi v Van der Merwe,4 Holmes JA synthesised the abovementioned
dicta from Oosthuizen, and came up with the following criteria which usually need to
be traversed and considered when the re-opening of a closed case is sought:
‘1. The reason why the evidence was not led timeously.
2. The degree of materiality of the evidence.
3. The possibility that it may have been shaped to relieve the pinch of the shoe.
4. The balance of prejudice, i.e. the prejudice to the plaintiff if the application is
refused, and the prejudice to the defendant if it is granted. This is a wide field. It may include
such factors as the amount or importance of the issue at stake; the fact that the defendant ’s
witnesses may already have dispersed; the question whether the refusal might result in a
judgment of absolution, in which event whether it might not be as broad as it is long to let the
plaintiff lead the evidence rather than put the parties to the expense of proceedings de novo.
5. The stage which the particular litigation has reached. Where judgment has been
reserved after all evidence has been led on both sides and, just before judgment is
delivered, the plaintiff asks for leave to lead further evidence, it may well be that he will have
a harder row to hoe, because of factors such as the increased possibility of prejudice to the
defendant, the greater need for finality, and the undesirability of throwing the whole case into
the melting pot again, and perhaps also the convenience of the court, which is usually under
some pressure in its roster of cases. On the other hand, w here a plaintiff closes his case
and, before his opponents have taken any steps, asks for leave to add some further
evidence, the case is then still in medias res as it were.
6. The healing balm of an appropriate order as to costs.
7. The general need for finality in judicial proceedings. This factor is usually cited
against the applicant for leave to lea d further evidence. However, depending on the

against the applicant for leave to lea d further evidence. However, depending on the
circumstances, finality might be sooner achieved by allowing such evidence and getting on
with the case, than by granting absolution and obtaining and opening the indeterminate way
to litigation de novo in all its tedious amplitude.
8. The appropriateness, or otherwise, in all the circumstances, of visiting the
remissness of the attorney upon the head of his client.'

The issues in the trial
[14] The principal issue that falls to be determined in the trial is when the insult
that led to the minor child’s condition occurred. Did it occur prior to the plaintiff being
finally admitted to the East Griqualand and Usher Memorial Hospital at Kokstad (the

4 Mkwanazi v Van der Merwe 1970 (1) SA 609 (AD) (Mkwanazi) at 616G- 617D.

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hospital) and going into labour? Or did it occur only after she went into labour in the
hospital? That the plaintiff received sub -optimal treatment and care by the
defendant’s servants during her extended period of labour is admitted by the
defendant. The defendant’s case is that such treatment did not contribute to the
condition of the minor child because he had already received the insult that
determined his condition before being admitted to the hospital and before his
mother’s labour commenced. Everything, thus, hinges on when the insult to the baby
occurred.

The plaintiff’s submissions
[15] Mr P Uys appeared yesterday morning to represent the plaintiff. 5 He
confirmed
that the plaintiff still intended to re-enter the witness box to give further evidence and
that Dr Kara would also be recalled to give evidence on the significance of the blood
test results previously mentioned.

[16] The plaintiff delivered a comprehensive founding affidavit in support of her
application for a more extensive reopening of her case , which was both detailed and
thorough. Equally detailed heads of argument from the plaintiff were handed up
yesterday morning as well.

[17] In the plaintiff’s founding affidavit supporting the notice of motion in this
application, it was pointed out that since the plaintiff had closed her case , the
defendant had delivered further opinions and reports intended to establish that the
insult that the minor child suffered occurred before the plaintiff was admitted to the
hospital for which the defendant is responsible. In addition, further clinical reports,
chemical pathology reports, and haematology records were only discovered by the
defendant on 12 August 2025 , substantially after the plaintiff closed her case . These
were particularly important documents because they related to results, and samples
collected from the minor child, on the first day of his life.

collected from the minor child, on the first day of his life.

5 Mr N van der Walt SC was briefed to lead Mr Uys to move the application and signed the plaintiff’s
heads of argument (which are ordinarily not signed in this division). However, as a consequence of an
ageing and weakened chair, the inexorable power of gravity and a solid and immovable surface, Mr
van der Walt sustained an injury last week and could not appear yesterday for medical reasons .
Bereft of a leader, Mr Uys thus competently moved the application on his own.

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[18] Mr Uys furthermore su bmitted that Prof Buchmann’s opinion had morphed
since the matter commenced and drew my attention to those alleged changes . I
confess that I am not entirely sure what relevance this has to the application to
reopen the plaintiff’s case. Such a submission places me in a difficult position
because Prof Buchmann is still testifying, and the defendant has not yet closed her
case. I am loath in such circumstances to comment upon the nature of Prof
Buchmann’s evidence. I do not think that it would be appropriate for me to do so, and
I choose not to do so.

[19] As regards what Prof Anthon y and Prof Smith would testify to, Mr Uys
indicated in the plaintiff’s heads of argument that:
‘… there is significant clinical relevance in the interpretation of the blood results considered
through the spectrum of the intrapartum events and what is clinically reasonably expected
and foreseeable when a 41 week gestation foetus develops foetal distress over time and is
born in a compromised condition.’6

[20] It was stressed, in particular, that the evidence of Prof Anthony was of critical
relevance to the determination of the issue of when the insult occurred. His evidence
would focus on the unacceptable treatment that the plaintiff received in hospital and
would indicate that the insult suffered by the minor child was caused intrapartum and
not antenatally. His evidence would also be relevant to the blood results and whether
the markers found to be present could be associated with what allegedly occurred
intrapartum.

[21] Mr Uys suggested that the plaintiff’s legal representatives had not been
remiss in any way in the manner in which her case had been presented to the court.
The reason for the need to reopen the plaintiff’s case was because of:
‘[t]he belated blood results, the factual evidence and the late reporting by the defendant’s
experts which includes a superspecialist Neonatologist [which] necessitated further reports
and evidence.’

and evidence.’

The defendant’s submissions

6 Plaintiff’s heads of argument, para 40.

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[22] The thrust of the defendant’s complaint to the expanded reopening of the
plaintiff’s case is that the plaintiff seeks to introduce the evidence of two new
witnesses after all the other expert witnesses, called by both the plaintiff and the
defendant, have already completed their evidence. What is intended to be testified
about by the two new expert witnesses has not been put to any of the previously led
expert witnesses. Witnesses consequently may have to be recalled to allow this to
occur. Thus, it is subm itted, what the plaintiff is really attempting to do is to
commence her case again.

[23] The defendant further submits that if the application is successful, there will
be a further delay in the trial, this occurring in a matter that has already taken
inordinately long.

Analysis
[24] If the further expert evidence proposed to be led by the plaintiff establishes
that the insult occurred during labour and not before the plaintiff was admitted to
hospital, it would go a long way to assisting in resolving the conundrum that the court
is required to resolve. There is, however, no way of knowing whether th e proposed
evidence would be determinative of the outcome of the matter . It may be
determinative. Or it may not be. However, it can be confidently said that if it is not
heard, it will not be determinative of the outcome of the trial.

[25] It seems to me that, on the face of it, the additional evidence proposed to be
led by the plaintiff, if true, would indeed meet the threshold of being classified as
‘weighty,’ as contemplated in Oosthuizen.

[26] That, however, is not the only issue to be determined before deciding on the
desirability of hearing the further evidence. Why was it not called during the plaintiff’s
case? One answer would be that the blood test results were not known when the trial
commenced nor later when the plaintiff closed her case. That reasoning appears to
me to be sound and unanswerable. As to the other evidence that the plaintiff

me to be sound and unanswerable. As to the other evidence that the plaintiff
proposes to lead, Mr Uys candidly acknowledged that he could not advance any
reason why that evidence had not been led earlier in the trial. He simply did not know
why the witnesses had not been called. That, perhaps, is understandable , to an

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extent. Mr Uys has previously not been involved in the matter at all. The plaintiff was
represented initially by a local senior counsel, who later withdrew from the matter
after a considerable amount of evidence was led. The plaintiff was then briefly
represented by a silk from Pretoria, who moved an application to amend her
particulars of claim, which application led to the judgment that I delivered on 28
November 2023. When the application to amend was dismissed, t hat silk did not
reappear, and the plaintiff is now represented by Mr van der Walt and Mr Uys, who
are both from Johannesburg. There is correspondence before me in the application
that indicates that the matter is being conducted on a contingency basis by the
plaintiff’s legal representatives and that may explain the coming and going of
counsel. But all that movement of counsel is not good for a fluid and consistent
presentation of the plaintiff’s case. Why decisions taken by a predecessor were
taken may not be known by the next counsel that comes into the matter, although
the plaintiff’s attorney ought to have provided some assistance in this regard.

[27] It is so that there has been a substantial amount of expert medical evidence
already led. Some of it is contradictory. Some of it is speculative. If the evidence
proposed to be led by the plaintiff were to provide any clarity on the probable cause
of the insult that the minor child undoubtedly suffered, it should be heard in my
opinion. This is not a game but a quest for fairness and the elusive concept of
justice. I accordingly am not able to agree with the defendant that this is an attempt
by the plaintiff to recommence her case. The issues remain the same and have not
been changed, nor will they be changed, by the introduction of the evidence of the
two professors.

[28] As to whether this is a stratagem by the plaintiff to avoid a difficulty that has
emerged from the evidence already led, I do not perceive that to be the case. The

emerged from the evidence already led, I do not perceive that to be the case. The
versions advanced by the parties at this stage do not noticeably lean in favour of any
one of them. It will only be possible to determine the outcome of the matter once all
the evidence has been heard. It cannot be excluded that one possible outcome may
be that absolution from the instance may be granted.

[29] It would probably be fair to state that t his is a matter of considerable
importance to both parties, but I daresay that it is probably more important to the

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plaintiff than to the defendant. Both sides have instructed eminent senior counsel to
secure an outcome in their favour. I have not heard from the defendant that if the
application were to be granted that it would cause any insurmountable problems for
the defendant as regards any further witnesses she might wish to call or to recall. It
seems to me that the plaintiff would suffer the greater prejudice should her
application be refused than any prejudice that the defendant may suffer if her
application is granted.

[30] In any event, the defendant had already consented to the plaintiff re -opening
her case. All that is sought is the broadening of the grounds upon which further
expert evidence may be led. The defendant has not yet closed its case and is
therefore at liberty to call any further witnesses that it believes is necessary if the
application is granted.

[31] I do not lose site of the fact that there must be finality in legal proceedings.
However, this matter has been permitted to proceed at a glacial speed, and I do not
believe that the defendant can claim with any sincerity that it will be prejudiced by a
further adjournment if the application were to be granted.

Conclusion
[32] I am satisfied that this is an instance where I should exercise my discretion
in favour of the plaintiff and permit her to reopen her closed case.

Costs
[33] Holmes JA in Mkwanazi mentioned the ‘healing balm’ of an appropriate
costs order. Mr Uys, most properly in my view, submitted that whilst the application
was opposed, and whilst the applicant had asked for its costs to be paid by any party
unsuccessfully opposing the application , he could not in good conscience ask for
costs in the light of the fact that the plaintiff was effectively seeking an indulgence.
He proposed, rather, that the costs to be awarded be costs in the cause. I think that
is a sensible submission.

Order

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[34] In formulating the order that I make, I have inserted the name of Dr Y Kara
into it to remove any uncertainty over whether he is entitled to be recalled as a
witness, this previously having been agreed to. He is not required to testify again but
he may do so, dependent on the guidance provided to the plaintiff by those advising
her.
[35] I accordingly grant the following order:

1. Leave is granted to the plaintiff to:
1.1 Re-open her case.
1.2 Adduce the further expert evidence at the resumed trial of:
1.2.1 Prof J. Anthony;
1.2.2 Prof J. Smith; and
1.2.3 Dr Y. Kara.
1.3 Give further evidence herself.
2. The costs of the application shall be costs in the cause.




_____________________________

MOSSOP J

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APPEARANCES


Counsel for the plaintiff : Mr P Uys

Instructed by: : Sakhela Incorporated
54 Stewart Drive
Baysville
East London

Locally represented by:

J Leslie Smith and Company Incorporated
332 Jabu Ndlovu (Loop) Street
Pietermaritzburg

Counsel for the defendant : Mr S R Mullins SC

Instructed by : Norton Rose Fulbright South Africa
Incorporated
3 Pencarrow Crescent
La Lucia Ridge
Durban

Locally represented by:

Cajee Setsubi Chetty Incorporated
195 Boshoff Street
Pietermaritzburg

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